Samuel Alito’s Votes on Other Abortion Cases Prompt Questions

National   |   Steven Ertelt   |   Nov 2, 2005   |   9:00AM   |   WASHINGTON, DC

Samuel Alito’s Votes on Other Abortion Cases Prompt Questions Email this article
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by Steven Ertelt Editor
November 2, 2005

Washington, DC ( — Samuel Alito is described as a jurist in the mold of pro-life Justice Antonin Scalia, he took the pro-life position in a key abortion case the Supreme Court eventually heard and his mother told reporters yesterday her son opposes abortion. But Alito’s rulings in three other abortion cases are prompting some questions about where he stands.

For pro-life groups, the best evidence a judicial nominee can give showing their position on abortion and whether they would vote to overturn Roe v. Wade is their decisions in prior abortion cases.

The ruling drawing the most attention in the press is Alito’s participation in a 1991 case involving Pennsylvania’s abortion regulations.

Although other limits on abortion were involved, one notable aspect for Alito was his dissent on the issue of whether a wife should tell her husband about a planned abortion. Alito said fostering communication between the two strengthens the marriage and would help solve issues that could be leading the wife to consider an abortion in the first place.

The Supreme Court eventually struck down that requirement.

The case is garnering more attention because Alito disagreed with the "undue burden" standard Justice Sandra Day O’Connor, who he would replace, set up to evaluate pro-life laws. That standard has been used by many judges and courts to invalidate pro-life laws that Alito would likely vote to uphold.

"Whether the legislature’s approach represents sound public policy is not a question for us to decide," he wrote in his dissent. "Our task here is simply to decide whether [the abortion law] meets constitutional standards."

What abortion advocates fear is that once he’s on the high court he can establish a majority of votes to overturn that standard and even overturn Roe itself.

Alito’s participation in three other abortion cases is what is prompting questions from some pro-life advocates, but the decisions are receiving little attention in the media.

In 1995, Alito sided with a 2-1 panel of the 3rd Circuit Court of Appeals that struck down a Pennsylvania law requiring women seeking to use state funds for an abortion in a case of rape or incest to have reported the incident to law enforcement officials so they could prosecute the offender.

The court struck down the statute as being inconsistent with federal law — the Hyde amendment that prohibits federal funds from paying for abortions. It also said the state should have followed an administrative ruling by the federal Health and Human Services Department saying the reporting requirement was not allowed.

In 1997, Alito agreed with a challenge to a New Jersey law that prevented parents from suing for damages on behalf of the wrongful death of an unborn child. The court ruled that the law conflicts with the Roe v. Wade decision that doesn’t recognize the personhood of the unborn child until viability.

In 2000, Alito sided with the majority in striking down New Jersey’s partial-birth abortion ban and the appeals court cited the Supreme Court decision earlier in the year invalidating a Nebraska ban because it lacked a health exception.

Normally, such decisions would be a cause for concern in the pro-life community and indeed some pro-life advocates are concerned and say they make it more difficult to assess whether Alito would vote to overturn Roe.

Others say the votes simply show that Alito is a "pro-law" judge who respects Supreme Court precedents and the supremacy of federal law. Under that view of the Constitution, they say, a vote to overturn Roe would become a new precedent and pro-life advocates wouldn’t want lower courts to overturn it.

"I don’t think these cases tell us anything about whether he would vote to overturn Roe v. Wade or not," says James Bopp, general counsel for National Right to Life. "Nor do they tell us whether he supports pro-life as a value."

Still Bopp told the Christian Science Monitor these cases show Alito doesn’t legislate from the bench.

"In these cases he didn’t go beyond the issues that needed to be resolved," he says. "He wasn’t trying to create law. He was just carefully following the existing law."

For other pro-life advocates, it’s not the results of the decisions that matter but his legal reasoning. Those, they say, point to Alito overturning Roe.

"It can’t be characterized as an abortion ruling on the merits," Jan LaRue, chief counsel of Concerned Women for America, told the Washington Post about the 1995 case.

In fact, in the 2000 case concerning the partial-birth abortion law, Alito published his own dissent and chided the majority on the court for publishing a lengthy opinion that they held onto for months until the high court ruled.

Some observers say it shows Alito disagreed with the ruling but felt obligated as an appeals court judge to follow precedent.

Ultimately, Bopp to the Monitor newspaper that the three additional abortion cases should provide good insight for how he will decide abortion issues in the future.

"He’s not a rookie. He’s been doing this for 15 years," he says. "That usually doesn’t change. He will do the same thing as a justice."

But Seth Kreimer, professor at the University of Pennsylvania Law School and co-counsel on the pro-abortion side in the 1995 case, disagrees and told the Monitor that Alito’s appeals court decisions may have been handed down because he had to show restraint as a lower court justice.

"[T]here are a lot more degrees of freedom at the Supreme Court level than at the court of appeals," he said.

Observers say the 1991 case is the most telling as well because it is the only one where the Supreme Court had not established a precedent. As a result, Alito tried to push for the strongest pro-life law possible.

In fact, newly minted Chief Justice John Roberts cited that fact in his Senate hearings and said it would normally be wrong for an appeals court to overturn a Supreme Court decision.

Pro-life groups hope Alito has been waiting to get to the high court to overturn Roe and establish a new legal precedent respecting unborn children.