Media mischaracterized Alito opinion striking down late-term abortion ban

››› ››› ANDREW SEIFTER

Numerous broadcast and print media have mischaracterized a concurring opinion issued by 3rd U.S. Circuit Court of Appeals Judge Samuel A. Alito Jr. -- now a Supreme Court nominee -- in the 2000 case Planned Parenthood of Central New Jersey v. Farmer, which struck down a ban on terminating later-term pregnancies. The media reports have juxtaposed Alito's opinion in Farmer with his dissent in a 1991 case striking down abortion restrictions to falsely suggest that Alito has issued conflicting rulings on abortion. In fact, Alito pointedly noted in his concurring opinion in Farmer that he was voting to strike down the abortion ban only because, as an appellate judge, he was bound by Supreme Court precedent, and he criticized the majority opinion for providing a detailed analysis of how the Supreme Court reached its decision.

The news reports cited Alito's Farmer opinion as counterevidence to his dissent in a 1991 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, which struck down a spousal notification requirement that Alito said was constitutional. In 1992, the Supreme Court, by a 5-4 vote, struck down the spousal notification provision. But Alito's concurring opinion in Farmer does not suggest a contrary view of abortion rights to what Alito had articulated in his Casey dissent. Alito issued a concurring opinion in Farmer, rather than joining the majority opinion, in order to indicate that he was voting to strike down the abortion ban only because he was obligated to follow Supreme Court precedent -- in this case the Supreme Court's 2000 decision in Stenberg v. Carhart, in which the court struck down a Nebraska law restricting certain late-term abortion procedures as an undue burden, in part because the ban did not include an exception for the health of the pregnant woman. Alito explicitly distanced himself from the majority opinion's affirmation that "nothing in that [Carhart] opinion is at odds with this court's opinion," writing that in light of the controlling precedent of Stenberg v. Carhart, the circuit court's majority opinion "was never necessary and is now obsolete."

The media's citation of Alito's concurrence in Farmer recalls a similar mischaracterization of remarks made by Chief Justice John G. Roberts at his hearing for his nomination to the federal appellate court. After Roberts's nomination to the Supreme Court, many reports wrongly cited Roberts's pledge at his 2003 appellate court nomination hearing to "fully and faithfully apply" Roe v. Wade -- the 1973 ruling affirming the right to an abortion -- as the "settled law of the land," as evidence that he would vote to uphold the decision if confirmed to the Supreme Court. Media Matters for America documented numerous instances of this mischaracterization and noted that his comments about Roe in the context of his appellate court nomination gave no information about how he would rule on the Supreme Court.

Alito's Farmer opinion repeatedly misrepresented in television, print media

Alito's Farmer opinion was mischaracterized in numerous October 31 television reports. For example, on ABC's Nightline, correspondent Chris Bury cited the decision as evidence that "Judge Alito has come down on different sides" of the abortion issue, without noting that Alito said he was merely following Supreme Court precedent. Similarly, on ABC's World News Tonight, correspondent Jake Tapper cited Farmer as evidence that "in some cases, Alito has voted for abortion rights previously defined by the Supreme Court."* On CNN's Paula Zahn Now, host Paula Zahn and chief national correspondent John King agreed that Alito's Farmer opinion "muddies" his views on abortion, and King attributed the rationale that Alito was merely following Supreme Court precedent to "conservatives" rather than to Alito himself:

ZAHN: But there's also a New Jersey case that -- that muddies this up a little bit more. Describe to us what his decision was in that case.

KING: It muddies it up quite a bit. That was one of many challenges to state laws banning so-called late-term abortions. Abortion critics call those partial-birth abortions. Judge Alito ruled in majority with the rest of the appellate judges on his court, throwing out the New Jersey state law, because it did not have an exemption when the health of the mother was at risk. Now, again, conservatives say in that case, he was an appellate judge who had no choice but to follow the edict of the Supreme Court, which set the precedent in a case involving Judge O'Connor. But that is -- that -- his record is mixed on this issue.

On November 1, many in the print media misreported Alito's opinion in Farmer as well. For example, while acknowledging that "Alito emphasized that the appeals court was bound by an earlier Supreme Court ruling," a report by USA Today ignored his rebuke of the majority opinion's support for that ruling, citing the case as evidence that "Alito's record on abortion is not uniformly against such [abortion] rights." A Washington Post article cited Alito's Farmer opinion as one reason that "[t]he differences in judicial philosophy between Alito and [outgoing Justice Sandra Day] O'Connor are not absolute," without mentioning that Alito was doing what appellate court judges must do to avoid the threat of reversal -- follow Supreme Court precedent. Similarly, a November 1 Philadelphia Inquirer article reported that Alito "concurred" that the abortion ban in Farmer was unconstitutional without noting his reasoning.

Several media outlets noted rationale for Alito's Farmer opinion

Notwithstanding the prevalent media misrepresentations of Alito's opinion in Farmer, several outlets reported the rationale Alito cited in reaching that conclusion. In a November 1 article, The New York Times quoted from both the majority opinion and Alito's concurring opinion, summarizing that Alito "declined to join the majority's reasoning, saying that the recent Supreme Court decision compelled the result and that little more need be said." On the October 31 broadcast of National Public Radio's (NPR) All Things Considered, George Washington University professor and New Republic legal affairs editor Jeffrey Rosen -- who has vocally supported conservative judges such as current Chief Justice John G. Roberts Jr. and 4th U.S. Circuit Court of Appeals Judge J. Michael Luttig -- assessed that in following Supreme Court precedent in the Farmer case, Alito "kind of grinned and beared it, you know, just did as little as possible." Similarly, on the October 31 edition of CNN's American Morning, correspondent Jeffrey Toobin described the Farmer opinion as "clearly a reluctant following of precedent" by Alito, and noted that he would have "a lot more flexibility regarding precedent" as a Supreme Court Justice:

TOOBIN: Well, there is another case later on, where in 2000, the Supreme Court and the decision by Justice Stephen Breyer, with Justice Sandra Day O'Connor in the majority, said that a Nebraska law, partial birth -- banning the practice of late-term or partial birth abortion was unconstitutional. Nebraska interfered with a woman's right to choose. Judge Alito honored that precedent. He used that precedent in striking down a similar law. So, you know, he is a lower court judge. He has to follow the Supreme Court. If he becomes a Supreme Court justice, you have a lot more flexibility regarding precedent. And that was kind of clearly a reluctant following of precedent by Judge Alito.

As Toobin concluded hours later on CNN's Live From...: "[I]t seems very likely if Judge Alito is on the court, the court could switch 5-4 the other way, allowing the partial-birth abortion law to stand."

Correction: 

Correction: In this item, we originally wrote that ABC correspondent Jake Tapper cited the Farmer case as evidence that "in some cases, Alito has voted for abortion rights." Tapper has complained that we truncated his full statement, that "in some cases, Alito has voted for abortion rights previously defined by the Supreme Court." The omission was an error, which we regret. However, while Tapper did note that there was Supreme Court precedent guiding Alito's vote, Tapper's statement nonetheless inaccurately suggested that Alito is in favor of the rights the Supreme Court has defined. As we discuss in a separate item addressing Tapper's criticism of our original item, there is no evidence that Alito is in favor of those rights; there is only evidence that Alito is in favor of not having his decisions reversed by the Supreme Court.

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