On abortion, a nuanced stand
In 3 of 4 cases, Supreme Court nominee Alito voted on the side of abortion rights.
(Page 2 of 2)
Analysts are divided over the meaning of Alito's votes and his various writings while on the bench.Skip to next paragraph
Subscribe Today to the Monitor
"I don't think these cases tell us anything about whether he would vote to overturn Roe v. Wade or not," says James Bopp, general counsel for National Right to Life. "Nor do they tell us whether he supports pro-life as a value."
But Mr. Bopp says examining Alito's approach to deciding cases can reveal what kind of justice he might become. "In these cases he didn't go beyond the issues that needed to be resolved," he says. "He wasn't trying to create law. He was just carefully following the existing law."
Bopp says Alito's style of judging is likely to carry over to his work on the high court. "He's not a rookie. He's been doing this for 15 years," he says. "That usually doesn't change. He will do the same thing as a justice."
The Alito case receiving the most attention is his dissent in Planned Parenthood v. Casey. In his 15-page dissent, Alito said that while the provision might impose some limitation on a woman's ability to obtain an abortion it was not so severe as to rise to the level of an "undue burden."
The judge based that conclusion on his study of Justice O'Connor's writings on the issue.
Alito's dissent says that the potential implications on women in abusive relationships were "a matter of grave concern" to him.
But he added that it was for state lawmakers, not judges, to decide the wisdom of such measures. "Whether the legislature's approach represents sound public policy is not a question for us to decide," he wrote. "Our task here is simply to decide whether [the abortion law] meets constitutional standards."
The US Supreme Court took up the case the following year and used the case to broaden the "undue burden" standard, in a way that rejected Alito's analysis.
But his work was not totally cast aside. Then Chief Justice William Rehnquist embraced and quoted the Alito dissent in his own dissent, which was joined by three other members of the court.
Critics say Alito's dissent suggests he is not sensitive enough to the concerns of women. They see it as an example of his personal views on abortion influencing his approach to the law.
Supporters say he made an honest effort to identify and apply O'Connor's "undue burden" standard as it existed at the time.
In the 1995 Medicaid case, Alito cast the deciding vote striking down a Pennsylvania abortion restriction. Analysts say it was a close legal question and Alito could have decided the case either way.
"If he has antiabortion philosophical leanings he did not let that warp his judgment in the case," says Seth Kreimer, professor at the University of Pennsylvania Law School and co-counsel on the winning side in the 1995 case. "But there are a lot more degrees of freedom at the Supreme Court level than at the court of appeals."