November 6, 2005
Myths About Alito and Abortion

By Steve Chapman

Samuel Alito Jr. was nominated to the Supreme Court on Halloween morning, and it was soon clear he wouldn't need a costume to go trick-or-treating: His critics had already made him unrecognizable.

What did we "learn" about this obscure federal appeals court judge? We heard that he is a hard-edged ideologue in the mold of Justice Antonin Scalia, so much so that he's been nicknamed "Scalito." We found out that he is against abortion rights -- a CBS News report said "he has favored limits on abortion, most notably arguing that women seeking abortions should be required to inform their husbands." We were told he is likely to, in the words of National Public Radio correspondent Nina Totenberg, "eviscerate" the court's 1973 decision in Roe v. Wade.

There is some truth in these claims, just as there is some Vitamin A in a box of Cap'n Crunch, but it's far from the main ingredient.

Like Scalia, Alito is an Italian-American from New Jersey, but that doesn't make him a clone of the caustic, free-swinging justice. Even liberal experts dismiss that comparison. Cass Sunstein of the University of Chicago, author of "Radicals in Robes: Why Extreme Right-Wing Courts Are Wrong for America," noted that unlike Scalia, "Alito avoids theoretically ambitious claims." Sunstein also praised his opinions as "measured, low-key . . . more than competent, unfailingly respectful and plausible."

The issue that has taken center stage is abortion -- even though no one has yet turned up any public statement by the nominee to indicate whether he is for it, against it, or perfectly indifferent. But his detractors assume he hates it with a burning passion.

Why? Because, as a judge on the 3rd U.S. Circuit Court of Appeals, Alito wrote an opinion that would have upheld a law requiring married women to affirm they had notified their husbands before getting an abortion. That dissent allegedly places him well outside the mainstream of legal and popular opinion.

Even if he thinks in his heart of hearts that the law was a good idea, he's not exactly on the lunatic fringe: A 2003 Gallup poll found that 72 percent of Americans support spousal notification requirements.

But to say that Alito himself thinks women should have to inform their husbands before having an abortion, merely because he voted to uphold that law, is ridiculous -- like saying that because the Supreme Court struck down laws against flag desecration, it must hate Old Glory.

All Alito said was that, judging from the standards established by the Supreme Court, and particularly by Justice Sandra Day O'Connor, the law did not appear to violate the Constitution. A law, for the record, can be unwise and still be constitutional.

Alito made a judgment on a hard call. O'Connor, generally the pivotal vote on these matters, had voted to uphold a law requiring parental notification (though not parental consent) before a minor could get an abortion. In her previous opinions, she said restrictions were permissible unless they created "absolute obstacles" -- such as a parental veto -- or "severe limitations." Alito concluded that O'Connor would not regard the spousal notification rule as a "severe" limitation on a married woman's right to abortion.

You may ransack that opinion for any sign of revulsion at the procedure or any animus for Roe v. Wade, but you will come up empty-handed. It merely examined the relevant Supreme Court precedents, which did not resemble a crystal vase in their clarity, and tried gamely to apply them. Though the Supreme Court ultimately struck down the spousal notification rule, Alito can hardly be blamed for stumbling in the fog created by its previous decisions.

It's possible he would vote to "eviscerate" Roe v. Wade or even overturn it. But you can't tell from that opinion or any of his others -- some of which came down on the side of abortion-rights groups. As an appeals court judge, he is notable for behaving as an appeals court judge should: applying the law and the Constitution as interpreted by the Supreme Court, not as interpreted by his own solitary self.

In the end, Alito's record implies that whatever his view of abortion as a matter of morality or policy, it won't affect his view of it as a matter of constitutional law. That approach may not please activists who care only about getting their way. But it suggests he grasps a fundamental truth: What courts decide is less important than how they decide it.

Copyright 2005 Creators Syndicate

Steve Chapman

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