Alito and Abortion: A Main Question for the New Nominee

No matter what you would choose for yourself, do you believe that women have the right to terminate a pregnancy?

The nomination of Samuel A. Alito Jr. to replace Justice Sandra Day O’Connor on the Supreme Court has Americans arguing over abortion again.

On November 15, 2005, Judge Alito tried to downplay a 1985 memo in which he clearly refutes the Supreme Court decision that granted abortion rights, Roe v. Wade.

Inappropriate bias?

In 1985, Alito applied for a promotion from assistant to the solicitor general to deputy assistant to Attorney General Edwin Meese III. In his application, Alito compellingly described his commitment to conservative legal viewpoints:

"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 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 a right to an abortion."

Senator Charles Schumer (D-NY), member of the judiciary committee, explains that this statement reveals a clear bias, and that Mr. Alito will have to defend his impartiality to the judiciary committee.

Alito has already begun to amount a defense against critics’ claims that he would not be a fair and neutral member of the Court. He says the 20-year-old memo was a request for a political job, so it emphasized his political views. But he is not an advocate, he says, and does not put his personal views above the law.

At issue is how Constitutional law relates to abortion. Opponents point out that the Constitution does not protect the right to an abortion while proponents claim the right to privacy, which are contained in Amendments IX and X of the Constitution that explain that the government has no power to tell people what to do except in areas specifically authorized in the Constitution. What other Constitutional issues are involved here?

Abortion ruling

In 1991, Alito’s ruling in Planned Parenthood v. Casey validated a law that requires a woman to notify her husband before having an abortion.

Abortion rights proponents argue that a woman has the right to determine her own reproduction. They say the spousal consent law suggests that the husband has a legal right to his wife’s body.

Further, it ignores the possibility of rape and domestic violence, advocates say. If a woman is raped or beaten by her husband, it could be life-threatening to ask his permission to get an abortion, they contend.

Alito defenders claim that the law already includes provisions to protect battered wives. According to the law in question, a woman seeking an abortion does not have to get spousal consent if (1) the husband is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of spousal sexual assault that has been reported to the authorities, (4) the woman has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

However, many victims of domestic violence are afraid to report their husbands to the authorities -- the stipulation in item (3) -- and that fear could easily prevent a woman from claiming that her husband will be dangerous to her if she notifies him of the abortion.

Neither side is talking about unmarried couples who become pregnant. Should unmarried men have rights over a fetus?

Does Alito believe that Roe v. Wade is a settled precedent?

Senators Susan Collins (R-Maine) and Joe Lieberman (D-Conn.) interviewed Judge Alito and found that he believes Roe v. Wade to be a precedent deserving of "great respect." He also claimed that he will not overturn a case simply because there are disputes over the original ruling.

However, this does not mean that he would not overturn Roe v. Wade when given the chance. If Alito were to decide that a fetus is a person with rights, than he could overturn the case on the grounds that Roe v. Wade impinges on those rights. Or, Alito could rule that Roe violates the rights of citizens who would choose to prohibit abortion in their state if federal law did not prevent them from doing so.

Lastly, Alito could decide that Roe is not settled because the precedent has not resolved the abortion question. But because Americans fight over abortion, does that mean it is not settled legally?

Watch out for the way that private advertising from private groups is going to divide women on this personal question.

What do you think?

How do you think abortion got to be such an important issue? How do you discuss this issue with people who disagree?

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Posted on: 11/17/2005