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Both Sides of Abortion Debate Speculate on Alito

Supreme Court nominee Samuel Alito, left, meets with Sen. Olympia Snowe (R-ME),  Nov. 16, 2005.
Chip Somodevilla
Getty Images
Supreme Court nominee Samuel Alito, left, meets with Sen. Olympia Snowe (R-ME), Nov. 16, 2005.

Opponents of legalized abortion are among those most happy about President Bush's nomination of Appeals Court Judge Samuel Alito to the Supreme Court. That's ironic, because in the relatively few abortion cases Alito has ruled on, he has mostly sided with the pro-choice position.

Still, abortion opponents pronounce themselves largely satisfied with the president's second pick to fill the seat of retiring Justice Sandra Day O'Connor, after the withdrawn nomination of White House Counsel Harriet Miers. "I had pretty much made up my mind (to support Alito) just looking at his long record, and the way he'd ruled on cases, which clearly supported the law, even in cases where I didn't agree with the law," said Sen. Jim DeMint, (R-SC), following his private meeting with Alito before Congress left for its Thanksgiving break.

Some senators who support a woman's right to abortion say they're not convinced Alito would actually vote to overturn the landmark 1972 case Roe v. Wade. Sen. Olympia Snowe (R-ME), who met with Alito just before DeMint did, said she's not even that concerned about a 1985 job application for the Reagan Justice Department, where Alito wrote that he did not believe the Constitution protected a right to abortion. "He said he could set aside his personal beliefs, to consider what the law is, the Constitution, and, of course, stare decisis, which is an important doctrine in preventing the overturning of existing precedents," Snowe told reporters. "Certainly that would be crucial in making any decisions concerning abortion."

Outside the Capitol, however, just about everyone else seems convinced that Alito would likely side with anti-abortion forces in most cases.

His most detailed abortion ruling came in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Supreme Court used that 1992 case to reaffirm a Constitutional right to abortion. In so doing, the court struck down several provisions of a Pennsylvania abortion law, including one requiring that a married woman notify her husband before she could obtain an abortion.

Then-Appeals Court Judge Alito ruled on the case before it went to the Supreme Court, and he wrote that the provision should be allowed. Nancy Northup, president of the pro-choice Center for Reproductive Rights, says Alito's dissent in the case came despite a lengthy record from the trial court that found serious risks to pregnant women in troubled marriages. "The majority opinion in that case had gone through all the difficulties that women were going to face: physical or psychological abuse, economic vulnerability, exposure to those harms. Judge Alito disregarded that factual evidence and found that this law should stand," Northup said.

Not surprisingly, abortion opponents find comfort in Alito's dissent in Casey. But they're also reassured by a case in which Alito helped strike down New Jersey's ban on so-called partial birth abortion. That case, Planned Parenthood of Central New Jersey v. Farmer, came in 2000, just weeks after the Supreme Court struck down a similar Nebraska law. The majority of his fellow Appeals Court judges in the case ruled against the New Jersey law, but for substantive reasons.

Alito, on the other hand, agreed that the law should fall, but for the sole reason that the Supreme Court said it should. And while they disagree with the outcome, that's the kind of reasoning pro-lifers want to see, says Kathy Cleaver-Ruse, a senior fellow for legal studies at the Family Research Council. "In this case we have Judge Alito showing more restraint than the majority judges, by saying 'Look, we need to follow Supreme Court precedent.' It's not proper for us to go off on our own, write our own opinion about the law," she says.

Cleaver-Ruse also says she's not that worried that in respecting precedent, a Justice Alito might feel compelled to allow previous abortion-rights rulings to stand. Even without directly overturning Roe v. Wade, she said, the right to abortion could be further constricted, as it was in Planned Parenthood v. Casey. "There may be other cases that would further modify Roe v. Wade, and Judge Alito, from all we can understand, would be certainly open to hearing logical arguments about why Roe v. Wade might be further modified," Cleaver-Ruse said.

Of course that's just what worries abortion-rights backers. "You can leave Planned Parenthood v. Casey and Roe v. Wade on the books, but you can completely gut it," said Northup. That, she said, "would mean that anything short of just an outright criminalization of abortion from the earliest weeks might be able to stand. That's where the real concern is."

Should Alito be confirmed, that speculation could be tested quickly. The federal Partial-Birth Abortion Ban Act is currently working its way toward the Supreme Court. In the earlier case on the subject, the deciding vote to strike the state law down came form Sandra Day O'Connor -- the justice Alito would replace.

Copyright 2022 NPR. To see more, visit https://www.npr.org.

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