LIBERALS OPPOSED to the nomination of Judge Samuel A. Alito Jr. to the Supreme Court and conservatives ecstatic over it seem to agree that abortion is one area in which the judge will, if confirmed, shift the court substantially to the right. Though he has not publicly pronounced his views of Roe v. Wade, both sides seem to regard his record on abortion as clear enough to assume him a vote to overturn abortion rights.
But Judge Alito's record on abortion is more complicated than the caricatures would suggest. His opinions imply a discomfort with legal abortion and suggest that he may be more willing than Justice Sandra Day O'Connor to uphold restrictions on abortion. But his writings also reflect an effort to diligently apply Supreme Court precedent in a changing and controversial area of law. They offer no definitive word as to how he would vote on whether to overrule Roe if presented with an opportunity.
The most famous of Judge Alito's abortion opinions is his dissent in Planned Parenthood v. Casey, the case the Supreme Court later used to reaffirm and modify the Roe holding. In Casey, Judge Alito's court, the U.S. Court of Appeals for the 3rd Circuit, confronted a spate of Pennsylvania abortion restrictions and a question of what legal standard should be used to evaluate them. The judges agreed that the relevant standard, then much in flux, was one articulated by Justice O'Connor: Abortion restrictions that constitute an "undue burden" should receive much higher scrutiny than those that do not.
On this basis, the judges unanimously upheld all but one of the Pennsylvania laws, a provision generally requiring notification of husbands before married women received an abortion. The provision provided an exception for women who feared physical abuse, but the court majority said it could still constitute a burden to women concerned about psychological or economic coercion, harm to their children, or sharing with other relatives what they intended to keep secret.
Judge Alito dissented on this point, not because he disagreed that some women might be deterred but because he interpreted "undue burden" differently. He reasoned that married women were a minority of those seeking abortions and married women who didn't tell their husbands a very small minority of those; because only a small percentage of women overall would be affected, the provision did not constitute an undue burden to the right of abortion in general. His dissent suggests an inclination to read abortion rights as narrowly as reasonably possible but is also consistent with a good-faith effort to construe the murky opinions of Justice O'Connor. The Supreme Court later agreed with the 3rd Circuit majority.
Cutting the other direction, his opinion concerning New Jersey's partial-birth law is rightly restrained. His court heard the case and drafted its opinion while the Supreme Court was considering a similar Nebraska law. After the high court struck that statute down, his colleagues released their opinion overturning the New Jersey version. But it was written before the high court ruled, and its reasoning did not precisely track that of the Supreme Court. Judge Alito declined to join it and rightly suggested instead narrowly following the path the Supreme Court had just laid out.
In at least one case, Judge Alito voted on the pro-choice side of litigation that split his court. In 1995 he signed a colleague's opinion deferring to a federal interpretation of Medicaid rules that required funding for certain abortions in cases of rape or incest or when the mother's life was at stake, despite contrary Pennsylvania legal restrictions. This was technically a question of administrative law, not constitutional abortion rights, but the case did spark a dissent. A judge overeager to read the law to stop abortions could have found a way onto the other side -- and made the case go the other way.
How Judge Alito will eventually rule on abortion may be determined as much by his view of precedent as by his views on the underlying question. Concerning the latter, his record, while suggestive of attitudes with which we disagree, is not disqualifying and reveals significantly less than both sides publicly insist. We will consider his record on other issues in subsequent editorials.