Chipping Away

Even if abortion hadn't been a key issue in nearly every Supreme Court nomination since Roe v. Wade was decided in 1973, Samuel Alito would have to expect it to be the centerpiece of his nomination fight. Since Robert Bork's defeat, the trend among Republican nominees has been toward people with no recorded involvement with abortion issues. Alito, on the other hand, wrote a solo dissent in Planned Parenthood v. Casey, the 1992 case that reaffirmed Roe and remains the controlling case when the courts asses the constitutionality of abortion regulations. His views on at least one piece of the abortion debate are thus quite clear -- and provide some troubling information for supporters of abortion rights about how he is likely to vote in subsequent abortion cases if confirmed by the Senate.

At the time of Casey, abortion law was in considerable flux, and the justices of the 3rd U.S. Circuit Court of Appeals thought that the controlling opinions were two concurrences by Justice Sandra Day O'Connor that held that abortion regulations would be subject to “strict scrutiny” only if they constituted an “undue burden” on a woman's right to have an abortion. A majority of the 3rd Circuit interpreted the undue-burden standard as providing fairly wide discretion to the states, upholding informed-consent and parental-consent requirements, a mandatory 24-hour waiting period, and clinic disclosure requirements -- but striking down a spousal-notification requirement. (This outcome would be entirely affirmed by the Supreme Court.) Alito, however, wanted to go further, arguing that even the spousal-notification provision was constitutional.

The arguments Alito used to justify upholding the Pennsylvania statute in its entirety should be chilling to supporters of a woman's right to choose. The standards that he would use to determine whether a regulation constituted an undue burden would make it exceptionally difficult for any regulation short of an outright ban to cross the line. The core of Alito's argument is his claim that the provision “cannot affect more than about 5 percent of married women seeking abortions or an even smaller percentage of all women desiring abortions.”

This is a highly problematic argument on its face. The reason that notification requirements (whether spousal or parental) are objectionable is precisely because, for all intents and purposes, they are applicable only to women in the worst family situations. Women in loving families will generally discuss their decision with their spouse or parents; it is women who feel they cannot who are affected by state coercion.

The Supreme Court also found Alito's argument legally erroneous. “The proper focus of constitutional inquiry,” noted the Court, “is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” The Court cited the Tornillo case, arguing that “we would not say that a law which requires a newspaper to print a candidate's reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law.”

In addition, as the Supreme Court also argued forcefully, Alito's acceptance of the legitimacy of the state's interest seems to rest on quite reactionary assumptions about marriage. The spousal-notification provision, the plurality opinion correctly argued, “embodies a view of marriage consonant with the common-law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution.” (As the opinion also pointed out, under Alito's logic a law requiring a woman to notify her husband if she took emergency contraception, or if she drank alcohol during her pregnancy, would also presumably be upheld.) Alito's reasoning sends bad signals not only about abortion but also about gender-equality jurisprudence more generally.

Despite their apparent popularity, regulations like spousal notification have dire real-world consequences. The laws currently in effect create considerable impediments, particularly for the most vulnerable minors. While under Casey states have generally permitted young women in abusive families to apply for a waiver from a judge, such bypasses tend to be enforced inconsistently, if at all.

Helena Silverstein, associate professor of government and law at Lafayette College, has studied the effects of parental-involvement laws on the ground in Pennsylvania, Alabama, and Tennessee. “In practice,” says Silverstein, “the implementation of the judicial-bypass option of those requirements is undermined by ignorance, bureaucratic hassles, and outright judicial defiance of the law. It is likely that exceptions to spousal-notification requirements would also provide inadequate protection and be enforced arbitrarily.”

While it's true that the purely numerical effect of these regulations on abortion rates is surprisingly modest, this is partly due to the Court's striking down the spousal-notification provision, which sent a signal that the undue-burden standard would have some teeth (although states still have a lot of leeway to make abortions more difficult and expensive to obtain). Alito would give a green light to states to continue to expand these regulations, which disproportionately burden poor women and make exercising their rights a humiliating obstacle course -- without achieving the conservative goal of substantially reducing abortion rates.

Alito's nomination also comes at a pivotal time for abortion jurisprudence. The Court's upcoming docket includes Ayotte v. Planned Parenthood, in which the Bush administration is seeking to make it far more difficult to raise “facial challenges” -- that is, challenges to a law as written, not just as applied in an individual case -- to abortion regulations. While this may seem like a mere technicality, is has very significant potential consequences for the survival of abortion regulations. Challengers would have to show that such laws are illegal in every possible case -- rather than just among, for example, the vulnerable women the Supreme Court previously sought to protect. Adopting this new standard would allow states to pass broad regulations that would remain in place while the expensive and time-consuming process of fact-intensive, case-specific litigation winds its way through the courts, and may also lead to opinions that allow regulations to remain on the books even if individual applications are unconstitutional. The standards for a facial challenge that Alito articulated in his Casey dissent make it all but certain that he would vote to apply this more difficult standard.

Nor -- contrary to the assumptions of even some liberals -- would this expansion of regulatory power be limited to individual states. Another of the cases the Court will soon hear concerns the constitutionality of the recent federal legislation banning “partial-birth” abortion. A concurrence Alito wrote in a recent case suggests that, while he was dutifully willing to apply the existing law, he would be likely to overturn the Court's Stenberg v. Carhart decision and uphold the federal legislation. The potential extension of federal and state regulation that would follow in the wake of this combination of decisions would make abortions considerably harder to obtain.

In addition, there is also the question of what his Casey opinion portends for the future of Roe itself. As an able, good-faith Circuit Court judge, Alito was constrained by the Supreme Court's precedents. On the Supreme Court, however, he would be free to overturn precedents as he chooses and the votes allow. Determining whether or not he would vote to overturn Roe or other long-standing precedents is an inherently uncertain enterprise, but, given his extremely broad -- if not strained -- interpretation of the “undue burden” standard, supporters of Roe cannot be optimistic and Alito should be considered an unacceptable risk.

There is more than one way to skin a precedent, and Roe's protections could be extenuated out of existence quite easily. During the deliberations in the pre-Casey abortion case Webster v. Reproductive Health Services, then-Chief Justice William Rehnquist attempted to essentially overturn Roe while technically maintaining it by articulating a new standard that would permit virtually any state regulation short of the almost-total ban struck down in Roe. This transparent ploy failed. (In response, Justice John Paul Stevens circulated a memo acidly critiquing Rehnquist's gambit. “I am not in favor of overruling Roe v. Wade,” he wrote, “but if the deed is to be done I would rather see the Court give the case a decent burial instead of tossing it out the window of a fast-moving caboose.”)

It failed, however, only because Rehnquist lacked the votes. It is very likely that Alito would go along with such a sub silentio overruling of Roe, and -- particularly if George W. Bush makes another appointment or if the Republicans retain the White House in 2008 -- he may well carry the five votes that Rehnquist could not.

Scott Lemieux is Assistant Professor of Political Science at Hunter College, CUNY. He contributes to the group blog Lawyers, Guns and Money.

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