Alito on abortion: No need to guess

In a 1991 opinion, Bush's latest nominee put himself to the right of the sitting Supreme Court.

By Tim Grieve
Published October 31, 2005 1:56PM (EST)

With Harriet Miers, the question of abortion rights turned into a weird sort of constitutional guessing game: The White House orchestrated talk about her religious views, and her first try at responding to the Senate Judiciary Committee's questionnaire included a 1989 survey in which she put herself at the far right edge of the antiabortion movement. And yet in a 1993 speech -- the one that seems to have led pretty directly to her undoing when the Washington Post found it last week -- Miers talked up the importance of "self-determination" and framed the abortion debate in pro-choice terms.

Even John G. Roberts, in his own way, made it hard to know for certain how he'll rule on abortion rights as a Supreme Court justice. Although he'd written that Roe v. Wade was "wrongly decided and should be overturned," the Bush administration could claim -- and did -- that those were the words of a lawyer representing a client and not the words of a judge ruling on the issue.

Samuel Alito is different. In 1991, Alito argued that the state of Pennsylvania could prohibit married women from obtaining abortions without telling their husbands first -- and he made the argument not as a city council candidate looking to please an interest group or as a lawyer representing a client. He made it as a sitting judge. In a lone dissent in a case that would ultimately become the Supreme Court's Planned Parenthood v. Casey, Alito said that a state did not impose a constitutionally impermissible "undue burden" on abortion rights unless it outlawed abortion altogether or had the "practical effect of imposing severe limitations on abortion."

In Alito's mind, requiring a woman to tell her husband didn't amount to such a "severe limitation." Alito said that the Pennsylvania Legislature "could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion." In other words, the state can require a woman to tell her husband before getting an abortion because the husband may know things that the woman doesn't.

Does it matter? On Casey, maybe not immediately: The Supreme Court rejected Alito's views, invalidated the Pennsylvania statute and reaffirmed Roe on a 5-4 vote in 1992, but the court has picked up a pro-choice vote -- in the Ruth Bader Ginsburg for Byron White swap -- since then. Replacing Sandra Day O'Connor with Alito would simply move the court back to 5-4 on the question of preserving Roe. But as Alito's dissenting opinion in the Casey case shows, you can gut Roe without reversing it by simply defining away terms like "undue burden" until they provide no protection at all. With another justice "in the mold" of Antonin Scalia and Clarence Thomas, the court could -- and almost certainly would -- move ever closer to doing just that.

Tim Grieve

Tim Grieve is a senior writer and the author of Salon's War Room blog.

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