Supporters of Judge Samuel Alito are out in full force today, arguing that he is conservative but not extreme; principled but not overzealous. The example being widely touted: He may have voted against a broad right to abortion in one case, but he struck down an abortion regulation in another. In one article after another it is suggested that Alito has taken a middle-of-the-road position in abortion cases. Now, let’s be very clear: Judge Alito might be ambivalent about many things, but he is not ambivalent about abortion. Seeking to cloud this issue by pointing out that Alito authored opinions on both sides of the issue is nonsense. Nothing could be further from the truth.
In 1991, Alito was very clear. In Planned Parenthood v. Casey—the very case the Supreme Court later used to affirm Roe v. Wade—Alito joined the majority in holding that it is not an undue burden on a woman’s right to choose to require women to wait 24 hours for an abortion, to require minors to obtain parental consent, or to require that abortion providers give women information about alternatives to abortion and comply with certain disclosure and public-reporting requirements. But Alito went even further than the majority in that case. Though he joined the other two judges in upholding most of Pennsylvania’s law, he disagreed with them that the spousal notification portion of the statute was unconstitutional. Alito would have upheld the entire statute, including the spousal notification provision, on the grounds that it did not constitute an undue burden. It was this part of the statute the Supreme Court struck down in Casey.
Nine years later, in 2000, in Planned Parenthood v. Farmer, Alito faced a Pennsylvania statute banning the so-called partial-birth abortion procedure. But this time he did not get a chance to rule. The Supreme Court had granted review on an almost identical Nebraska statute, and the 3rd Circuit postponed handing down its own decision until it could hear from the Supreme Court. Alas, the Supreme Court struck down the Nebraska statute in Stenberg v. Carhart. Therefore the Pennsylvania statute had to fall as well. Alito had no choice: To do otherwise would have been to ignore a direct command of the Supreme Court.
What is interesting, however, is that Alito did not join the majority opinion in Farmer. He wrote separately. Why? Here’s a very good guess: The majority opinion in Farmer had been drafted before the Supreme Court had issued its decision in Carhart; indeed, Judge Maryanne Trump Barry, who wrote it, expressly noted as much. Instead of rewriting the draft opinion, Barry simply tacked on the Carhart precedent to the beginning of her existing decision, observing that her opinion was essentially in agreement with the Supreme Court’s. Had Alito originally agreed with Barry, it is a good guess he would have gone along with this shortcut, since the outcome was exactly the same. But I suspect that he didn’t agree with the majority and certainly did not want some reasoning lurking out there that might have been even marginally broader than the Supreme Court’s. So, Alito went out of his way to distance himself from Barry’s opinion, which, he observed in concurrence, “was never necessary and is now obsolete.”
Alito’s snub of the Barry majority opinion echoes his logic in Casey, in which he rejected the majority’s application of the undue burden test to Pennsylvania’s spousal notification provision. That provision required a married woman to notify her spouse if she was planning to have an abortion unless she swore that her spouse was not the father of the child, her husband could not be located after diligent effort, the pregnancy was a result of a sexual assault that had been reported to the authorities, or she had reason to believe that notification would likely result in infliction of bodily injury.
The 3rd Circuit majority in Casey accepted expert testimony that this provision—even with its exceptions—would impose an undue burden on a woman’s right to choose to undergo an abortion. The majority observed that most married women would voluntarily tell their husbands of their plans, but that in circumstances where they would not, requiring notification could result in spousal coercion. The exception for bodily harm, reasoned the majority, did not take into account the myriad forms of psychological coercion a husband could apply to a wife, including withdrawal of financial support or threats to dissolve the marriage. Moreover, the exception for spousal sexual abuse required that women report their abuser to the police, an action experts testified was likely to lead to further abuse and one a battered woman was unlikely to take. The majority of the Casey judges, taking account of the “real world consequences of forced notification,” concluded that “because of the nature of the marriage relationship and the emotional character of the human response to pregnancy and abortion, the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless.”
But Alito rejected this “real world” approach, arguing that the plaintiffs had not sustained their burden of proving that the spousal notification provision would result in spousal coercion. Alito’s interpretation of “undue burden” is noticeably crabbed: It is not enough, he argued, to show “that a law will have a heavy impact on a few women.” Rather, those challenging the law must prove a “broader inhibiting effect.” Alito thus demanded that the plaintiffs provide the court with a rough number of how many women would be inhibited from obtaining an abortion by the requirement of spousal notice. The majority’s common-sense reasoning was not enough; the “undue burden” test required the plaintiffs to provide actual evidence that coerced spousal notification would inhibit some actual number of women’s decision-making.
Of course, that kind of evidence is almost impossible to obtain. How would one begin to figure out just how many women would have sought an abortion but did not because they were required to notify their spouse? The plaintiffs provided expert evidence that women are often coerced physically and emotionally by abusive husbands; that the abortion decision presents them with a terrifying choice in those circumstances; and that required notification adds to the burden of an already difficult decision by holding out the threat of spousal reprisal. For Alito, this was not enough, and so he dissented.
That Alito was on the wrong side of the 3rd Circuit majority and the Supreme Court should be enough for those who are full-throated supporters of a woman’s right to choose. But this fact is also important for anyone who finds themselves in the middle on this issue: Note that the judges who joined the 3rd Circuit opinion in Casey—Judges Walter Stapleton and Collins Seitz—were not radical, bra-burning feminists of any sort. Stapleton—who wrote Casey—was appointed by Ronald Reagan, and Seitz was a Johnson appointee; one can only characterize their jurisprudence as emphatically moderate and mainstream. And remember that the swing justices who upheld Casey and reaffirmed Roe—Anthony Kennedy and Sandra Day O’Connor—were also appointed by Republicans and are also moderate and well within the mainstream of judicial attitudes.
If Alito replaces O’Connor, both of his crucial abortion opinions in the 3rd Circuit indicate that he will not take her centrist path. But this time, there will be no moderate Supreme Court above him to put on the brakes.