A Wall Street Journal article on the constitutionality of South Dakota's recently passed abortion ban stated that Supreme Court Justice Samuel A. Alito "expressed skepticism about abortion rights while working for the Reagan administration." However, the suggestion that Alito merely "expressed skepticism" about abortion rights mischaracterizes his clearly articulated view that there is no constitutional right to abortion.
Reporting in the March 9 edition of the Wall Street Journal on the constitutionality of South Dakota's recently passed ban on most abortions in the state, staff reporter Deborah Solomon wrote that Supreme Court Justice Samuel A. Alito Jr. "expressed skepticism about abortion rights while working for the Reagan administration." However, the suggestion that Alito merely "expressed skepticism" about abortion rights mischaracterizes his view -- which he articulated clearly in a 1985 application for the position of assistant attorney general in the Reagan Justice Department -- that there is no constitutional right to abortion: Alito wrote of his "personal satisfaction" in helping "to advance legal positions in which I personally believe very strongly," adding that he was "particularly proud of his contributions in cases in which the government has argued in the Supreme Court ... that the Constitution does not protect a right to an abortion."
As Media Matters for America noted in the days leading up to Alito's confirmation hearing, some conservative commentators sought to downplay Alito's statements in opposition to a constitutional right to abortion by invoking the criticism by several prominent liberal jurists and constitutional scholars that the landmark 1973 abortion rights case Roe v. Wade was decided on the wrong constitutional basis. But the comparison was flawed: While the legal scholars they cited -- including Justice Ruth Bader Ginsburg, who was then an judge on the U.S. Court of Appeals for the District of Columbia Circuit, and Edward Lazarus -- criticized the court's reasoning in Roe, their writings and statements made clear that they agreed with the holding in the case establishing a constitutional right to abortion. By contrast, as evident by his 1985 statement, Alito did not agree that the Constitution provides a right to abortion.
Additionally, some media figures defended Alito's Reagan-era job application by claiming that Alito was not expressing his personal views when he wrote that "the Constitution does not protect a right to an abortion." In fact, Alito made clear in the application that he "strongly" and "personally" believed in the legal arguments in question:
Most recently, it has been an honor and a source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect the right to an abortion.
The South Dakota debate, in which advocates emphasized their desire to lead the anti-Roe charge, has sparked other states to follow. At least three states introduced legislation after South Dakota's ban; one was Mississippi, where lawmakers amended legislation that began not as a ban but rather as an attempt to require ultrasound screening before an abortion could take place.
"There's definitely a sense of 'me-too,' " says Jackie Payne of Planned Parenthood Federation of America, which plans a lawsuit to block implementation of the South Dakota ban.
Whether their effort will succeed remains unclear. A majority of the Supreme Court's justices are still expected to uphold Roe v. Wade.
The efforts to ban abortion have also galvanized state lobbying campaigns by activists who support abortion rights. In South Dakota, the local chapter of Planned Parenthood ran a newspaper advertisement against the abortion ban.
But antiabortion forces say their legal hand now is stronger. They are encouraged by the Supreme Court's newest members, Chief Justice John Roberts and Justice Samuel Alito, who both expressed skepticism about abortion rights while working for the Reagan administration.