'91 abortion case illustrates Alito's legal thinking


WASHINGTON -- Judge Samuel A. Alito Jr. played a bit role in the biggest abortion case to come before the Supreme Court since the Roe v. Wade ruling of 1973.

Now, his lone dissent in that 1991 case is a big reason that conservatives are so enthusiastic - and liberals so troubled - about his nomination to the Supreme Court.

At issue was whether a state could force a married woman to notify her husband before obtaining an abortion. The Pennsylvania Legislature enacted such a regulation in 1989, saying that a man has a legitimate interest in the fate of his unborn child.

Alito voted to uphold it as a judge on the 3rd Circuit Court of Appeals in Philadelphia. He argued this rule did not put an "undue burden" on women, based on his reading of a standard set by Justice Sandra Day O'Connor in cases that tested whether teenage girls must notify their parents before getting an abortion.

When the case reached the Supreme Court, O'Connor and the court majority rejected Alito's view and characterized the "spousal notification" rule as an insult to married women.

"Women do not lose their constitutionally protected liberty when they marry," the court said in an opinion written in part by O'Connor.

Yesterday, President Bush nominated Alito to fill the seat of the retiring O'Connor, and some women's rights advocates said his opinion in the case of Planned Parenthood v. Casey is likely to be Exhibit A in their challenge to his confirmation.

"This really sends a major signal about his mind-set and about how he is different from Justice O'Connor," said Marcia Greenberger, co-president of the National Women's Law Center.

His defenders said Alito simply tried to follow the law as he understood it.

The Casey case is Alito's only major opinion in an abortion case during his 15 years as an appellate judge. In two other cases, however, he joined his colleagues in decisions that struck down state efforts to limit abortion.

In 1995, Alito joined a 3-0 ruling that made it easier for poor women who were victims of rape or incest to obtain an abortion paid for with federal funds. Federal law generally forbids paying for abortions, except when the woman's life is in danger or in cases of rape or incest.

Pennsylvania had tried to block funding for such abortions if the sex crimes were not reported to police. The U.S. appeals court, including Alito, said state officials could not add this extra requirement to the federal rules.

And five years ago, Alito joined a 3-0 ruling that struck down New Jersey's ban on certain late-term abortions. In a concurring opinion, Alito said the law was clear and judges had to follow a Supreme Court decision that had struck down a nearly identical Nebraska law a few months earlier.

But when Casey came before Alito's court in 1991, the law on abortion was anything but clear, and the Supreme Court appeared poised to overturn Roe v. Wade.

The close divide was apparent in 1989 when the high court took up a Missouri abortion case. Four conservative justices favored overturning the right to legal abortion. Four liberals voted to uphold the right and to strike down regulations adopted by the Missouri Legislature.

O'Connor set a middle course. She said states could regulate abortion as long as they did not put an "undue burden" on a woman's decision to end a pregnancy. She voted to uphold regulations that required doctors to wait 24 hours after a pregnant woman asked to have an abortion. She also upheld rules that required teenage girls to notify a parent before seeking an abortion.

Encouraged by the high court's shift in 1989, several states, including Pennsylvania, moved to adopt stricter regulations of abortion. One new rule said doctors in Pennsylvania could not perform an abortion for a married woman until she had a "signed statement" saying she had notified her spouse.

The Legislature said that rule promoted the state's "interest in the integrity of the marital relationship." There were exceptions for when a woman said her spouse was not the father; when the spouse could not be located; when the pregnancy resulted from a sexual assault that was reported to the police; or when the woman said telling her spouse would be "likely to result in the infliction of bodily injury."

Before the law could go into effect, the Planned Parenthood Federation challenged it as unconstitutional and a violation of the right to abortion.

A three-judge panel on Alito's court in Philadelphia upheld most of Pennsylvania's law because, the court said, it did not put an undue burden on women or their doctors. The panel split on the spousal notice rule, with two judges voting to overturn it.

Alito dissented on that point. He said the court should not decide whether the state's "approach represents sound public policy." Rather, the question was whether this amounted to an "undue burden" on women. He noted that O'Connor had defined this to mean an "absolute obstacle or a severe limitation" on a woman seeking an abortion.

Judged by that standard, the state's law was constitutional, Alito said. "The Pennsylvania legislature could have rationally believed that ... discussion prior to the abortion" between a wife and her husband might prompt her to rethink her plans to obtain an abortion, he said. "We have no authority to overrule that legislative judgment even if we deem it unwise or worse," he concluded.

The case was appealed to the Supreme Court, which issued a 5-4 opinion that pledged to uphold the right to abortion.

The court's opinion also upheld the 3rd Circuit's ruling and threw out the spousal notice rule. O'Connor made it clear that she found the Pennsylvania ruling offensive to women.

David G. Savage writes for the Los Angeles Times.

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