Samuel Alito Has Pro-Life History on Abortion as Appeals Judge

National   |   Steven Ertelt   |   Oct 31, 2005   |   9:00AM   |   WASHINGTON, DC

Samuel Alito Has Pro-Life History on Abortion as Appeals Judge Email this article
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by Steven Ertelt Editor
October 31, 2005

Washington, DC ( — President Bush’s selection of Samuel Alito to replace outgoing pro-abortion Justice Sandra Day O’Connor is certain to spark an intense debate over abortion. While O’Connor was a swing vote on the court on some abortion issues and supported Roe v. Wade, Alito has upheld pro-life legislation and would overturn the infamous decision.

As a judge on the Third Circuit Court of Appeals, Judge Alito was the lone vote to uphold a Pennsylvania pro-life law that had several provisions to reduce abortion, including one requiring a woman to notify her husband she planned on having an abortion.

In his opinion, he said, "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 the 1992 case of Planned Parenthood v. Casey, the Supreme Court agreed to uphold the other provisions but struck down the spousal notification requirement.

In that case, the high court upheld abortion on a 6-3 vote and the only change in membership on the court since then has been Chief Justice John Roberts, who is believed to support overturning Roe, replacing pro-life Chief Justice William Rehnquist.

Should Alito replace O’Connor, that would move the court to a 5-4 position on the case and make the court one vote away from overturning it.

More immediately, Alito would be much more likely than O’Connor to uphold pro-life laws in two cases already before the Supreme Court.

In one, the court will consider a parental notification statute from New Hampshire and in the other, it will consider the partial-birth abortion ban President Bush signed in 2003.

O’Connor was the deciding vote in 2000 in a case that struck down a partial-birth abortion ban in Nebraska and effectively overturned many others. In her opinion, she wrote that the ban lacked a health exception — something Alito likely won’t favor.

In that Pennsylvania case, Alito wrote an opinion in that case arguing for a standard that would permit virtually any restriction on abortion. His presence on the court would change that 5-4 decision against the ban to a 5-4 ruling in favor of it. Such a decision would positively impact similar abortion bans across the country.

Alito favors overturning Roe and allowing states to decide whether to make abortion illegal. From New Jersey, Alito is known in legal circles as "Scalia lite" or "Scalito" in reference to pro-life Supreme Court Justice Antonin Scalia.