Alito Under Fire

Whoa, there are an awful lot of people throwing fits about Judge Alito’s view on abortion! There are also an unusual number of liberal leaning folks, including judges and clerks that have worked with Alito, that are supporting the nomination and warning against putting a label on him.

So what the hell is going on? What I’ve observed is the difference between considering the question based upon the detailed facts as opposed to based upon general descriptions.

In the most famous case, Planned Parenthood v. Casey, Alito was a dissenting voice on a spousal notification provision in a Pennsylvania abortion law on the 3rd Circuit. A provision which was subsequently also found unconstitutional, by a vote of 5-4, by the Supreme Court. In his dissent from the Supreme Court opinion, Chief Justice Rheinquist quoted judge Alito’s opinion on the spousal notification provision.

This single decision appears to have mushroomed into howls of outrage about Alito’s disdain for the right of a woman to choose and dire predictions about the imminent demise of Roe v. Wade. One quote, from DEFCON, was “I find it hard to accept a nominee who so unabashedly argued that women do not have the right to make decisions without the blessing of the man of the house.”

Well I would have a hard time accepting him too IF he said anything of the sort. First of all, the Pennsylvania Law in question required simply spousal notification and not spousal consent. In other words the “blessing of the man of the house” was not in any way, manner, shape or form required. As a matter of fact, it only required a non-noterized statement from the woman saying that the spouse had been told. In addition, there was a significant list of exceptions under which no claim of notification was even required.

(1) Her spouse is not the father of the child.
(2) Her spouse, after diligent effort, could not be located. [505 U.S. 833, 909]
(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.
(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.”

Note that exception number (4), technically, resolves the concerns about women stuck in an abusive relationship and being in fear of their husbands.

The fact is that whether you agree with spousal notification or not, polls have shown that somewhere between 60 and 70 percent of Americans do so such a decision by Alito is certainly within the definition of “mainstream.”

If Judge Alito is guilty of anything in Planned Parenthood v. Casey it is of thinking with his brain rather than with his heart. If one places oneself into the shoes of a woman, probably a poor woman, perhaps even a woman at or below the poverty level that has decided on an abortion without already informing her “spouse,” you can be certain she’s too terrified of him to do so and too terrified to think straight if told she has to certify that she has told him even if the situation falls under one of the restrictions.

So yes, this is an “undue burden” and should not be allowed to stand. The Supreme Court majority was right and Alito and Rheinquist were wrong BUT they were wrong for very different reasons.

Rheinquist, in his dissent, makes it crystal clear that he believes the right to an abortion is not, and never has been, a right protection from regulation by the states. Rheinquist clearly states that Roe v. Wade is simply bad law that should be overturned at the first opportunity and that the concept of “undue burden” is totally unworkable and ill defined.

Alito, on the other hand, applies the concept of “undue burden,” as it was then defined, and concludes that the Pennsylvania law’s spousal notification provision, given the ease of declaration and wide range of exceptions, did not present an “undue burden.”

I might also point out the Supreme Court definition of an “undue burden” was far narrower prior to Casey. The prevailing definition was from Akron v. Akron Center for Reproductive Health which stated that a statute imposes an "undue burden" if it imposes "absolute obstacles or severe limitations on the abortion decision.”

In Casey it was “determined that a burden is ‘undue’ if it merely imposes a substantial’ obstacle to abortion decisions.”

So Judge Alito was working with a much narrower definition of “undue burden.” The definition was only widened when the case got to the Supreme Court.

I may be wrong and the Alito nomination may be the biggest threat to Roe v. Wade in recent memory and maybe the judge has promised his aging mother to overturn the decision the first chance he gets, but I see no evidence of that. I see no evidence that Alito has an ideological axe to grind with Roe as Scalia and Thomas do and Rheinquist had. I find his decisions, including his decision in Planned Parenthood v. Casey, reasonable and well within the definition of mainstream. If anything I think he needs to have a little more empathy for those who are less fortunate, but who knows, that may come with the added responsibility.

This is another liberal who cannot, in good conscience, at this time oppose the nomination of Judge Samuel Alito to the Supreme Court.

Just as a footnote, even the ACLU, while they identify some of his decisions as troubling, is not quite ready to oppose Judge Alito. In a newsletter on the subject, they promised to compile a report of his civil liberties record, both the good and the bad. When that report is ready, I’ll re-evaluate my position.