Alito v. O’Connor

How the nominee tried to restrict Roe.

Does Judge Alito want to do away with Roe?

In 1991, when Judge Samuel Alito became a mini-hero of the far right in the abortion battles, the fate of Roe v. Wade was far less settled than it is now (or, at least, than it has been until now). Alito’s role wasn’t to pen a manifesto—his partial dissent in the 1991 abortion case Planned Parenthood v. Casey is appropriately legalistic. Still, Alito’s opinion in that case would have limited the right to abortion more severely than Sandra Day O’Connor, whom he will replace if confirmed, has ever been willing to do. And Alito’s split with O’Connor involves not only abortion but also marriage. She worried about wives who might be victims of domestic violence. He put first the rights of husbands to know what their wives are doing.

Casey challenged a Pennsylvania law that required a woman to receive extensive information about the fetus and the abortion procedure, to wait 24 hours, to sign a statement of informed consent, and—most controversially—to tell her husband about her intention to have an abortion. A panel of three appeals judges on the Third Circuit upheld all the regulations except for the spousal notification. Alito, who was on the panel, dissented from the part of the ruling that struck down the requirement that women tell their husbands before obtaining an abortion.

Alito agreed with the other two judges on the Casey panel that the test for the constitutionality of Pennsylvania’s law was whether it imposed an “undue burden” on a woman’s abortion decision. O’Connor had introduced the undue burden test in a series of earlier opinions. To figure out whether the Pennsylvania law fell on the safe or foul side of her line, Alito emphasized examples from earlier O’Connor opinions that expressed greater disapproval of abortion. He pointed out that she had once written that an undue burden “has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision.” O’Connor had also noted that other laws found to be unconstitutional had “criminalized all abortions except those necessary to save the life of the mother,” he continued. Alito played down O’Connor’s rejection of a Minnesota law that required girls to tell both their parents before having an abortion, without providing for a “judicial bypass” that would allow the girls to go instead before a judge to explain why they didn’t want to tell their parents. Alito pointed out that O’Connor said two-parent notification was OK, as long as the judicial bypass came with it.

“Taken together,” Alito wrote, “O’Connor’s opinions allow for abortion regulations unless they prohibit abortion, give someone veto power over the mother’s decision, or have ‘the practical effect of imposing ‘severe limitations.’ ” Requiring women to tell their husbands before having an abortion would do none of those things, Alito concluded. Then he explained why, in his view, Pennsylvania had a legitimate interest in requiring women to tell their husbands: “The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems—such as economic constraints, future plans, or the husbands’ previously expressed opposition—that may be obviated by discussion prior to the abortion,” Alito wrote.

When Casey reached the Supreme Court, the case became famous for upholding the core of Roe v. Wade. It’s the decision in which O’Connor, David Souter, and Anthony Kennedy acted as a keep-the-peace triumvirate and voted with John Paul Stevens and Harry Blackmun, Roe’s original author, to preserve it in the name of stability and respect for precedent. At the same time, Casey tossed the Roe “trimester framework” that allowed for more intrusive regulation of abortion as a pregnancy progressed. In its place, the court substituted O’Connor’s undue burden test, much as the Third Circuit panel in Casey had anticipated. Along, the way, the court also upheld Pennsylvania’s 24-hour waiting period, its informed-consent requirement, and its rule that women had to hear all about the growth and development of their fetuses.





That’s Alito’s star turn on the abortion stage thus far. It is direct evidence that Casey would have come out far differently if he, rather than O’Connor, had been on the court 13 years ago.