November 6, 2005
Myths About Alito and Abortion
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.
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.
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.
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."
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.
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.
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.
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.
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
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.
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.
2005 Creators Syndicate