Wash. Times editorial board mischaracterized Alito's 2000 decision striking down late-term abortion ban

››› ››› RAPHAEL SCHWEBER-KOREN

In a November 22 editorial, the Washington Times mischaracterized a 2000 opinion by Supreme Court nominee Samuel A. Alito Jr., offering it as a counter-example to evidence suggesting that, if confirmed, Alito would overturn or restrict a constitutional right to an abortion. In that opinion, Alito concurred with an appeals court decision to overturn a New Jersey ban terminating later-term pregnancies.

The Times noted Alito's recently-revealed "Personal Qualifications Statement," which was a part of his 1985 application for an assistant attorney general's position at the Department of Justice. In that statement, Alito said he was "proud of his contributions in cases in which the government has argued in the Supreme Court ... that the Constitution does not protect the right to an abortion." The newspaper also referenced Alito's dissenting opinion in support of a spousal-notification provision in the 3rd U.S. Circuit Court of Appeals' 1991 ruling on the Planned Parenthood of Southeastern Pennsylvania v. Casey case. The editorial asserted that "careful observers of Judge Alito's judicial career say that it is not at all clear what he would do to Roe [v. Wade]," the 1973 decision affirming the right to an abortion, writing that "[f]or all the fuss about the application and Pennsylvania's spouse-notification law, there are just as many, if not more, examples where Judge Alito upheld laws approved by the pro-choice lobby, such as laws banning partial-birth abortion." The Times was apparently referring to Alito's concurring opinion in the 2000 Planned Parenthood of Central New Jersey v. Farmer case, although it misstated Alito's position and that of the pro-choice groups involved in the case: Alito concurred with the court's decision to strike down -- not uphold -- the late-term abortion ban, which is what Planned Parenthood, a reproductive rights group and a party in the case, advocated.

However, Alito's concurring opinion in Farmer does not suggest a contrary view of abortion rights to the one he articulated in either his 1985 application statement or his Casey dissent. Rather than join the majority opinion in Farmer, Alito issued a concurring 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 Carhart, the court struck down a Nebraska law restricting certain late-term abortion procedures as constituting an undue burden on a woman's right to abortion, in part because the ban did not include an exception for the health of the pregnant woman.

As Alito wrote in his concurrence, he did not want to join the majority opinion (written before Carhart was decided), which provided a detailed examination of the New Jersey law's constitutionality. Alito wrote that the majority opinion "fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's [recent] decision in [Carhart]. Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent." Alito made clear that he viewed the court's only responsibility was to "explain why Carhart requires us to affirm the decision of the District Court," which overturned the New Jersey late-term abortion ban. If Alito were a Supreme Court justice, however, he would not be required to follow precedent -- his sole reason for agreeing to strike down the ban. Therefore, his Farmer concurrence provides no information about how he would rule if a similar case came before him while on the high court.

From the November 22 Washington Times editorial, titled "Alito on abortion":

Americans might be getting a different impression of the Democrats' anti-Alito strategy, however. Last week, NARAL Pro-Choice America teamed up with Planned Parenthood -- two pro-choice groups most Americans associate with the leftmost fringe of the Democratic Party -- for a cable-television campaign. The advertisement refers to the recently uncovered 1985 application Judge Alito wrote when applying for a job in the Reagan administration in which he said, "the Constitution does not protect a right to an abortion."

The admission was just the hook Democrats and their liberal interest group allies have been looking for. The pro-choice interests obviously intend to play the application to the hilt, but the Democratic leadership attempts to be more subtle. We probably won't hear any talk about the return of "back-alley abortions." Avoiding the "word" is crucial.

Yet careful observers of Judge Alito's judicial career say that it is not at all clear what he would do to Roe. For all the fuss about the application and Pennsylvania's spouse-notification law, there are just as many, if not more, examples where Judge Alito upheld laws approved by the pro-choice lobby, such as laws banning partial-birth abortion.

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