Another Dud

For prolifers, President Bush’s nominations of John Roberts and Harriet Miers were duds. When Miers was forced out, Bush nominated Samuel Alito. With the Democrats snarling and bellyaching, you’d think Alito is an angel. What the Dems want is for Alito to pledge his fealty to Roe v. Wade, the 1973 Supreme Court decision that legalized abortion nationwide. (The Dems, of course, must play to their base and their donors.) But with abortion issues still in play in the courts, the meticulous Alito need not reveal his hand on Roe. Of all the candidates Bush has nominated for the Supreme Court, we like Alito the best. But still he won’t vote to overturn Roe, and let us tell you why.

On the same day Alito was nominated (Oct. 31, 2005), he met with pro-abortion Sen. Arlen Specter, Chairman of the Senate Judiciary Committee. Alito told Specter of his respect for precedent (and Roe is precedent), adding, according to Specter, that “when a case has been reaffirmed many times [as Roe has been], it has extra weight” (USA Today, Nov. 1, 2005). Later, Alito met with Sen. Joseph Lieberman, and Alito told him, according to Lieberman, that “Roe was precedent on which people, a lot of people relied, that it had been precedent for decades and therefore deserves great respect” (The New York Times, Nov. 9, 2005).

Alito has been a judge for 15 years on the Philadelphia-based Third U.S. Circuit Court of Appeals. He has heard six abortion cases, and in five of those cases he came down on the pro-abortion side.

As for the one case where he came down on the prolife side: In 1991 there was a challenge to a Pennsylvania law that required married women to notify their husbands before getting an abortion. Alito voted to uphold the Pennsylvania law. Writing in National Review (Dec. 5, 2005), Edward Whelan of the Ethics and Public Policy Center (George Weigel’s neocon outfit), says the Pennsylvania law “was in fact mild.” Whelan, who amazingly is writing in favor of Alito, says: The wife seeking an abortion “was not required to do so if she instead stated that a) her husband was not the father of the child, b) her husband could not be located, c) the pregnancy resulted from spousal sexual assault that had been reported, or d) she had reason to believe that furnishing notice would likely result in bodily injury to her. Notice was also not required in the event of a medical emergency. Further, as Alito observed in an aside, it was ‘glaringly apparent’ that this provision would be ‘difficult to enforce and easy to evade.'” It was easy to evade because it required no proof other than the woman’s word that she had told her husband. Then there was Justice Sandra Day O’Connor’s 1989 “undue burden” test for women seeking an abortion to be considered. Women wanting an abortion cannot be held to an “undue burden.” But what is an undue burden? Whelan says: “Alito carefully explained why O’Connor’s own analysis supported his judgment that the provision passed her [‘undue burden’] test…. O’Connor — famous for her inconsistency — was part of a five-justice majority [in 1992] that ruled that the spousal-notice provision did constitute an ‘undue burden’….”