Puncturing the myths about Alito and abortion

November 09, 2005|By STEVE CHAPMAN

CHICAGO -- Samuel A. Alito Jr. was nominated to the Supreme Court on Halloween morning, and it was soon clear he wouldn't need a costume to go trick-or-treating: His critics had already made him unrecognizable.

What did we "learn" about this obscure federal appeals court judge? We heard that he is a hard-edged ideologue in the mold of Justice Antonin Scalia, so much so that he has been nicknamed "Scalito." We found out that he is against abortion rights. We were told he is likely to, in the words of National Public Radio correspondent Nina Totenberg, "eviscerate" the court's 1973 decision in Roe v. Wade.

There is some truth in these claims, just as there is some Vitamin A in a box of Cap'n Crunch, but it's far from the main ingredient.

Like Justice Scalia, Judge Alito is an Italian-American from New Jersey, but that doesn't make him a clone of the caustic, free-swinging justice.

The issue that has taken center stage is abortion rights - even though no one has yet turned up any public statement by the nominee to indicate whether he is for them, against them or indifferent. But his detractors assume he hates them.

Why? Because, as a judge on the 3rd U.S. Circuit Court of Appeals, he wrote an opinion that would have upheld a law requiring married women to affirm they had notified their husbands before getting an abortion. That dissent allegedly places him well outside the mainstream of legal and popular opinion.

Even if he thinks that the law was a good idea, he's not exactly on the lunatic fringe: A 2003 Gallup poll found that 72 percent of Americans support spousal notification requirements.

But to say that Judge Alito thinks women should have to inform their husbands before having an abortion, merely because he voted to uphold that law, is ridiculous - like saying that because the Supreme Court struck down laws against flag desecration, it must hate Old Glory.

All he said was that, judging from the standards established by the Supreme Court, and particularly by Justice Sandra Day O'Connor, the law did not appear to violate the Constitution. A law can be unwise and still be constitutional.

Judge Alito made a judgment on a hard call. Justice Sandra Day O'Connor, generally the pivotal vote on these matters, had voted to uphold a law requiring parental notification (though not consent) before a minor could get an abortion. In her previous opinions, she said restrictions were permissible unless they created "absolute obstacles" - such as a parental veto - or "severe limitations." Judge Alito concluded that Justice O'Connor would not regard the spousal notification rule as a "severe" limitation on a married woman's right to abortion.

You may ransack that opinion for any sign of revulsion at the procedure or any animus for Roe, but you will come up empty-handed. It merely examined the relevant Supreme Court precedents and tried to apply them.

In the end, Judge Alito's record implies that whatever his view of abortion as a matter of morality or policy, it won't affect his view of it as a matter of constitutional law. That approach may not please activists who care only about getting their way, but it suggests he grasps a fundamental truth: What courts decide is less important than how they decide it.

Steve Chapman is a columnist for the Chicago Tribune. His column appears Mondays and Wednesdays in The Sun. His e-mail is schapman@tribune.com.

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