Right On
Conservatives got what they wanted in Samuel Alito. He's no Harriet Miers--and no Sandra Day O'Connor either
The case most frequently cited as a window into Alito's view on abortion is Planned Parenthood v. Casey, which challenged Pennsylvania laws that limited access to abortion, including requiring women to notify their husbands before seeking an abortion. The Third Circuit rejected the spousal notification requirement, and Alito objected. In his dissent, he attempted to anticipate whether the Supreme Court would view such a rule as an "undue burden" and concluded that it would not. The high court disagreed. In an opinion seen as affirming Roe v. Wade, Alito's reasoning was rebuked by none other than O'Connor.
But on other abortion-related cases, Alito, who if confirmed would become the fifth Roman Catholic on the high court, has deferred to Supreme Court precedent, including a 2000 challenge to New Jersey's ban on late-term abortions. He joined his colleagues in striking down the New Jersey law, arguing that it failed to contain a health-of-the-mother exception as required by the high-court precedent. In other cases, Alito ruled that parents could not sue for wrongful death of a fetus because the Constitution does not protect the unborn, and he joined his colleagues in striking down as too restrictive a Pennsylvania law requiring victims of rape or incest to report the crime before seeking Medicaid funds for an abortion.
After a private meeting last week with Alito, Sen. Dick Durbin, a Democratic member of the Judiciary Committee, said the nominee acknowledged a constitutional right to privacy, the underlying basis for Roe. So Democrats are trying to move the debate beyond abortion and have pledged to question Alito carefully on his views regarding civil rights and federalism. Still, committee Chairman Arlen Specter, a Pennsylvania Republican who favors abortion rights, is expected to lead off the hearings with the privacy question, just as he did with Roberts. "I will be interested in Judge Alito's views on following precedent," Specter said, "though I'm not going to ask him how he's going to rule on any case."
With Senate Republicans showing a united front and the "Gang of 14" group of moderate Democrats and Republicans showing no stomach--yet--for blocking this nominee, Alito's chances for a spot on the court look good. Given the stakes, a healthy dose of fiery rhetoric is to be expected, and the cerebral Alito is in for some roughing up at his hearings, particularly since he would be replacing a moderate justice. But barring any stunning revelation, he is likely to take his seat on the court early next year--and a very different court it will be.
advertisement
