Washington – Judge Samuel Alito played a bit role in the biggest abortion case to come before the Supreme Court since the Roe vs. Wade ruling of 1973.
Now, his solo dissent in that 1991 case is a big reason conservatives are so enthusiastic – and liberals so troubled – about his nomination to the Supreme Court.
At issue was whether a state could force married women to notify their husbands before they obtain an abortion. The Pennsylvania legislature enacted such a regulation in 1989, saying that a father has a legitimate interest in the fate of his unborn child.
Alito voted to uphold it as a judge on the U.S. appeals court in Philadelphia. He argued that the rule did not put an “undue burden” on women, and he did so based on his reading of a standard that had been set earlier by Justice Sandra Day O’Connor in cases that tested whether teenage girls must notify their parents before getting an abortion.
But when the case reached the Supreme Court, O’Connor and the court majority rejected Alito’s view and characterized the “spousal notification” rule as an insult to married women.
“Women do not lose their constitutionally protected liberty when they marry,” the court said in an opinion written in part by O’Connor. It is “repugnant to our present understanding of marriage” to permit the state “to enable the husband to wield an effective veto over his wife’s decision,” the high court said.
On Monday, President Bush nominated Alito to fill the seat of the retiring Justice O’Connor, and some women’s rights advocates said his opinion in the case of Planned Parenthood vs. Casey probably will be Exhibit A in their challenge to his confirmation.
“This really sends a major signal about his mind-set and about how he is different from Justice O’Connor,” said Marcia Greenberger, co-president of the National Women’s Law Center. “He failed to recognize the basic respect due to adult women to make that decision.”
His defenders said Alito simply tried to follow the law as he understood it.
“It’s a very narrow ruling, very carefully crafted on the basis of Justice O’Connor’s decisions in previous cases about what could constitute an undue burden for women,” said Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee and a supporter of abortion rights.
When the Casey case came before Alito’s court in 1991, the law on abortion was anything but clear. Indeed, the justices appeared poised to overturn Roe vs. Wade. The court’s close divide had been apparent in 1989, when the justices took up a Missouri abortion case. Four conservative justices favored overturning the right to legal abortion. Four liberals voted to uphold the abortion right.
O’Connor set a middle course. She said states could regulate abortion, so long as they did not put an “undue burden” on a woman’s decision to end a pregnancy.
Later, Pennsylvania moved to adopt stricter regulations on abortion. One new rule said doctors in Pennsylvania may not perform an abortion for a married woman until she provided a “signed statement” saying she had notified her spouse.
The Planned Parenthood Federation challenged it as unconstitutional and a violation of the right to abortion.
The three-judge appeals panel split on the “spousal notice” rule, with two judges voting to overturn it.
Alito dissented. He said the question was whether this amounted to an “undue burden” on women, and judged by that standard, the state’s rule was constitutional.
The case was appealed to the Supreme Court, and it set up a showdown in 1992 over abortion and the fate of Roe vs. Wade. To the surprise of many, that court, despite the recent addition of two Republican appointees, issued a 5-4 opinion that pledged to uphold abortion rights.
