AP On Alito And Abortion -- Incomplete At Best

October 31st, 2005 10:26 PM

One of the easiest things to predict was that President Bush's nomination of Samuel Alito to the Supreme Court would be met with cries of dismay from the left. (Indeed, Sen. Schumer's nonsense - "he had to pick a nominee likely to divide America instead of choosing a nominee...who would unify us" - notwithstanding, it's difficult to conceive of a potential Bush nominee who would NOT have provoked an outcry on the left.)

And one of the first issues that was certain to arise was the abortion issue. There are a couple of reasons why abortion was inevitable. The first is that Roe v. Wade is the single biggest flash-point between Conservatives and Liberals when it comes to the courts. When the Supreme Court issued Roe v. Wade (and its companion Doe v. Bolton), the issue was virtually removed from the sphere of practical legislation, a victory for the American left that it guards jealously. Because of that, abortion is going to be issue number one for virtually any nominee of a Republican president. But beyond that, Alito issued a dissenting opinion in the Planned Parenthood v. Casey case in 1992 that the Supreme Court eventually disagreed with, as it re-affirmed and expanded the scope of Roe v. Wade. And that dissent is going to spawn a flood of criticism, much of it inaccurate, or incomplete at best. Such as today's AP article, Alito Has Affirmed Abortion Restrictions. In it, the AP states that Alito is pro-life and implies that he would let that color his judgement on cases before the court.

Alito, a Catholic, is opposed to abortion, his 90-year-old mother forthrightly told reporters in New Jersey. As an appeals court judge, he held that states can require women seeking abortions to notify their spouses. The Supreme Court disagreed. "If he thinks that's OK, there are certainly other restrictions that he's going to be OK with," said Neil Siegel, who teaches law at Duke University. "He'll make a decisive difference."

The juxtaposition of those two statements (he is "opposed to abortion" and "he held that states can require...the Supreme Court disagreed") clearly presents the image of a radical judge deciding cases on personal feelings instead of constitutional law. But more than 24 hours before the AP wrote this story, Patterico had already addressed this, and anyone who's interested in the truth should read that. Or Ed Whelan's analysis, here.

The key points, which the media story does not address or give context for, are these. 1) There were 5 points to the Planned Parenthood challenge. 2) Alito agreed with his colleagues on 4 of them, that Supreme Court precedent demanded that those 4 restrictions were constitutional. 3) Alito's dissent on the 5th point was based upon careful reading of, and carefully outlined, Supreme Court precedent. Yes, he did rule that Pennsylvania's law requiring spousal notification - in some cases - was not unconstitutional. He did this by interpreting the writings and rulings of Sandra Day O'Connor. In fact, in order to overrule the Alito position, O'Connor actually had to change hers.

To quote from Justice Scalia's dissent (joined by the chief Justice and Justices White and Thomas): "The rootless nature of the "undue burden" standard, a phrase plucked out of context from our earlier abortion decisions, see n. 3, supra, is further reflected in the fact that the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O'CONNOR's earlier opinions." In other words, Alito correctly interpreted the relevant Supreme Court precedents, regardless of whatever his "personal policy preferences" might have been, and the Supreme Court actually had to change the state of abortion law in America to render his dissent incorrect. But the truth is too subtle for the AP to bother with. It's much easier to just say that he's "affirmed abortion restrictions" and leave it at that...

Lyflines - Lyford's other blog…