FOR IMMEDIATE RELEASE
November 7, 2005
Today's Washington Post editorial discussing Judge Samuel Alito's record on abortion presents Alito as a cautious but diligent judge whose "opinions imply a discomfort with legal abortion" but nonetheless reflect an "effort to diligently apply Supreme Court precedent." While the Post acknowledges that Alito’s record suggests "an inclination to read abortion rights as narrowly as reasonably possible," it fails to highlight the critical difference between a circuit court judge who is bound to follow Supreme Court precedent and a Supreme Court Justice who is able to narrow or even overturn precedent. ["Judge Alito and abortion," Washington Post, 11/07/2005]
Anti-Choice Groups Not Confused on Alito's Record
Americans should not doubt why Alito's nomination to the Supreme Court has near-universal support from anti-choice groups.
Remember that President Bush caved in to the anti-choice far right when his first nominee, Harriet Miers, failed to meet these groups' call for a reliable opponent of the fundamental freedoms guaranteed by Roe v. Wade.
Groups like Concerned Women for America and Operation Rescue officially opposed Miers. Their opposition came despite reports that Miers contributed money to an anti-choice group, supported a constitutional ban on almost all abortions during her run for the Dallas City Council, led the fight at the American Bar Association to repeal its pro-choice policy, and had numerous friends and colleagues attest to her anti-choice beliefs. Her record was insufficient and unreliable for them. They insisted the President go back to the drawing board--and he capitulated to their demands.
Tellingly, on the day President Bush announced Alito's nomination, those same anti-choice, far-right groups who have long demanded the overturn of Roe v. Wade cheered the news.
Concerned Women issued a statement, "Judge Alito has always been one of our top choices for the Supreme Court." [CWA press release, 11/01/05] Operation Rescue was even more blunt, "We are trusting that we are now on the fast-track to derailing Roe v. Wade as the law of the land." [Troy Newman, president, Operation Rescue, 10/31/05]
Edward Whelan, president of the conservative Ethics and Public Policy Center, also told the Washington Post that, "[S]omeone who's shown the high-quality judging Alito has and is not ideologically driven to the left will of course recognize that Roe is an abomination that has distorted American politics for 30 years." [Nominee's Reasoning Points to a Likely Vote Against Roe v. Wade, Washington Post, 11/02/2005]
Key Points on Alito's Rulings
Women’s reproductive health and freedom are on the line, and Alito's record simply makes him too risky.
In his most significant ruling on the right to choose, Alito dissented in favor of a law that required married women seeking abortions to notify their husbands. The district court judge, the two-judge majority on the Third Circuit from which Alito dissented, and the five Justices on the U.S. Supreme Court who all looked at this law agreed that the spousal-notice provision was an unconstitutional burden on a woman’s right to choose. In fact, other than Judge Alito, the only jurists who would have upheld this law were the four Supreme Court justices who would have overturned Roe v. Wade in its entirety.
In reaching his conclusion, Alito disagreed with the majority and the district court, which understood that "the real-world consequences of forced notification in the context of wife/husband relationships . . . . creates a substantial risk that women who would otherwise have an abortion will be prevented from having one" and that spousal notification therefore constitutes an undue burden. [Planned Parenthood of Southeastern Pennsylvania v. Casey, 947 F.2d 682, 711-12 (3d Cir. 1991)] Alito, in contrast, adopts a much less protective standard for showing an undue burden: "[A]n undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown." [947 F.2d at 721] In other words, under the Alito standard, as long only the most vulnerable women’s constitutional rights are violated, the law can stand. That Alito would acknowledge this heavy impact yet still uphold the law is extremely disturbing. Justice O’Connor and her colleagues rejected this view of the undue burden standard when the case came before the Supreme Court.
In a second case on the right to choose, Alito was compelled by squarely applicable precedent to vote to strike down the law that had the effect of banning abortions as early as twelve weeks and that lacked the constitutionally required provisions to protect women's health in the event of a medical emergency. The Supreme Court had ruled on a virtually identical statute from another state and found it to be an undue burden. Because lower courts are obliged to follow Supreme Court precedent, his opinion was not a signal of any extraordinary fairness or open-mindedness, much less any latent respect for a woman's right to choose.
Anti-choice groups also have rightly dismissed Alito's vote to strike down Pennsylvania's rules on abortions funded by Medicaid as an issue of administrative law. "It can't be characterized as an abortion ruling on the merits," said Jan LaRue, chief counsel of Concerned Women for America, which opposes Roe. [Nominee's Reasoning Points to a Likely Vote Against Roe v. Wade, Washington Post, 11/02/2005]
Americans who do not want politicians at the state and federal levels deciding whether and when women can have abortions should not be forced to wait and see whether Alito will respect precedent if he is confirmed to the Supreme Court. It's a risk pro-choice Americans should not be forced to take.
Contact:
Ted Miller, (202) 973-3032
