Abortion likely to be confirmation flashpoint

WASHINGTON – President Bush's new Supreme Court nominee has a clearer track record on abortion and would become a tie-breaking vote in deciding how far the government can go to restrict women's access to the procedure.

It is not guaranteed that conservative judge Samuel Alito would vote to overturn Roe v. Wade, the court's landmark ruling ensuring a woman's right to abortion. However, he has sharply different views from the justice he was picked to replace, Sandra Day O'Connor, and could shift the court to the right on the issue.

O'Connor has provided the fifth vote to limit government power to restrict abortions. Under her standard, limits that impose an "undue burden" on women must be struck down.

Alito's voting record is more like that of Justice Antonin Scalia, who contends the undue burden standard is hopelessly unworkable. Scalia also would like to overturn Roe.

As a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, Alito voted in 1991 to uphold a Pennsylvania law that included a provision requiring women seeking abortions to notify their spouses. That case went to the Supreme Court, where justices used it to reaffirm Roe v. Wade. O'Connor was an architect of the decision that struck down the state's spousal notification requirement.

Abortion rights groups immediately criticized Bush's choice.

"His confirmation would radically transform the Supreme Court and create a direct threat to the health and safety of American women," said Karen Pearl, interim president of Planned Parenthood Federation of America.

If he is confirmed, Alito could have a quick impact on abortion. An appeal is pending at the Supreme Court from the Bush administration, seeking to reinstate a 2003 federal law that bans the type of late-term abortion known as partial-birth abortion. Lower courts have said the law is unconstitutional, and O'Connor would have been a sure vote against the law. Without O'Connor, the court may be split 4-4.

In addition, justices hear arguments in late November on New Hampshire's parental notification law, which a lower court said is unconstitutional because it lacks an exception allowing a minor to have an abortion to protect her health. That case could be reargued after the Senate confirmation, if justices are deadlocked and O'Connor would have been the deciding vote.

A new justice will not make the difference on Roe v. Wade in the court's present configuration. Besides the moderate O'Connor, five of the eight other justices have endorsed a woman's right to the procedure.

As an appeals court judge, Alito was required to follow Supreme Court precedent, which he did.

In 2000, for example, Alito was among the judges who ruled that a New Jersey law banning late-term abortions was unconstitutional, following high court precedent.