Alito's dissent in abortion case draws scrutiny

WASHINGTON — Judge Samuel Alito played a bit role in the biggest abortion case to go before the Supreme Court since the Roe v. Wade ruling of 1973.

His solo dissent in that 1991 case is a big reason conservatives are so enthusiastic — and liberals so troubled — about his nomination to that court. Indeed, his dissent is being closely examined as an indication of whether he would eventually vote to overturn Roe v. Wade.

At issue in the case, Planned Parenthood v. Casey, was whether a state could force married women to notify their husbands before they obtain an abortion. The Pennsylvania Legislature enacted such a regulation in 1989, saying a father has a legitimate interest in the fate of his unborn child.

Alito voted to uphold it as a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia. He argued the rule did not put an "undue burden" on women, and he did so based on his reading of a standard set two years earlier by Justice Sandra Day O'Connor in cases that tested whether teenagers must notify their parents before getting an abortion.

But when the case reached the Supreme Court in 1992, O'Connor and the court majority rejected Alito's view and characterized the "spousal-notification" rule as an insult to married women. "Women do not lose their constitutionally protected liberty when they marry," the court said in an opinion written in part by O'Connor. It is "repugnant to our present understanding of marriage" to permit the state "to enable the husband to wield an effective veto over his wife's decision," the court said.

Hints on Roe?

On Monday, President Bush nominated Alito to fill the seat of the retiring O'Connor, and some women's-rights advocates said his opinion in the Casey case probably will be Exhibit A in their challenge to his confirmation. "This really sends a major signal about his mind-set and about how he is different from Justice O'Connor," said Marcia Greenberger, co-president of the National Women's Law Center. "He failed to recognize the basic respect due to adult women to make that decision."

His defenders said Alito tried to follow the law as he understood it.

"It's a very narrow ruling, very carefully crafted on the basis of Justice O'Connor's decisions in previous cases about what could constitute an undue burden for women," said Sen. Arlen Specter, R-Pa., chairman of the Judiciary Committee and a supporter of abortion rights.

Although Alito's mother, Rose, told reporters yesterday, "Of course he's against abortion," Specter said the judge voiced support for the legal foundation of Roe v. Wade during a private meeting Monday.

Specter said Alito described Griswold v. Connecticut — a 1965 case that established the right to privacy on which Roe turns — as "good law." He said Alito also indicated that the longer a decision was in effect and the more it was reaffirmed, the more "extra precedential value" it had.

2 other cases

The Casey case is Alito's only major opinion in an abortion case during his 15 years as an appellate judge. In two other cases, however, he joined his colleagues in decisions that struck down state efforts to limit abortion.

In 1995, Alito joined a 3-0 ruling that made it easier for poor women who were victims of rape and incest to obtain a free abortion paid for with federal funds. Federal law generally forbids paying for abortions, except when the mother's life is in danger or in cases of rape and incest.

Pennsylvania had tried to block funding for such abortions if the sex crimes were not reported to police. The U.S. appeals court, including Alito, said state officials could not add this extra requirement.

Five years ago, Alito joined a 3-0 ruling that struck down New Jersey's ban on a type of late-term abortion that critics call "partial-birth" abortion. In a concurring opinion, Alito said the law was clear. But when the Casey case went before Alito's court in 1991, the law on abortion was not clear. Indeed, the justices appeared poised to overturn Roe v. Wade.

The close divide was apparent in 1989, when the high court took up a Missouri abortion case. Four conservative justices favored overturning the right to legal abortion. Four liberals voted to uphold the abortion right and to strike down a series of rules adopted by the Missouri Legislature.

O'Connor set a middle course. She said states could regulate abortion, so long as they did not put an "undue burden" on a woman's decision to end a pregnancy. She voted, for example, to uphold regulations that required doctors to wait 24 hours after a pregnant woman asked to have an abortion. She also upheld rules that required teens to notify a parent before seeking an abortion.

Spousal notice

Encouraged by the high court's shift in 1989, several states, including Pennsylvania, moved to adopt stricter regulations for abortion. One new rule said doctors in Pennsylvania may not perform an abortion for a married woman until she provided a "signed statement" saying she had notified her spouse.

The Legislature said this rule promoted the state's "interest in the integrity of the marital relationship." There were exceptions for women who said the spouse was not the father of the child, when the spouse could not be located, when the pregnancy resulted from a sexual assault that was reported to the police or when the woman said telling her spouse "is likely to result in the infliction of bodily injury."

The Planned Parenthood Federation challenged it as unconstitutional and a violation of the right to abortion. A three-judge panel on Alito's court in Philadelphia upheld most of Pennsylvania's regulations because, as the court said, they did not put an undue burden on women or their doctors. But the panel split on the "spousal-notice" rule, with two judges voting to overturn it.

Alito dissented on this point. He said the court should not decide whether the state's "approach represents sound public policy." Rather, the question was whether this amounted to an "undue burden" on women. He noted O'Connor had defined this to mean an "absolute obstacle or a severe limitation" on a women seeking an abortion.

Judged by that standard, the state's rule is constitutional, Alito said. "The Pennsylvania legislature could have rationally believed that ... discussion prior to the abortion" between a wife and her husband might prompt her to rethink her plans to obtain an abortion, he said.

The case was appealed to the Supreme Court, and it set up a showdown in 1992 over abortion and the fate of Roe v. Wade. To the surprise of many, the court issued a 5-4 opinion that pledged to uphold the right of women to choose abortion. The court's opinion also upheld the 3rd Circuit's ruling and threw out the "spousal-notice" rule.

Material from Newsday, Newhouse News Service and Knight Ridder Newspapers is included in this report.