It's impossible to know for sure how Judge Samuel Alito would vote if he had the chance to overturn the right to abortion. If you ask Senators Joseph Lieberman and Susan Collins, they might assure you, as they were recently assured by the judge himself, that he's not intent on overturning Roe v. Wade. Ask conservative Republican Senator Sam Brownback, though, and he'd probably tell you, as he told the New York Times, that the judge now sitting on the Third Circuit Court of Appeals is "open to a review of cases." Perhaps most telling is the fact that, despite his reassurances to Democrats and moderate Republicans who might otherwise be inclined to filibuster, antiabortion advocates, including the National Right to Life Committee and James Dobson's Focus on the Family, still strongly support Alito to replace Sandra Day O'Connor.
If he makes it through the storm he's ignited--a possibility that seems increasingly likely as Democratic senators Joe Biden, Kent Conrad and others downplay the possibility of a filibuster--Alito will soon have the chance to restrict abortion. And there's virtually no question that, if confirmed, he'd do just that. When he ruled on the much-discussed Planned Parenthood v. Casey as a Third Circuit judge in 1991, he upheld a law requiring doctors to inform women of alternatives to abortion and the potential "medical dangers" of the procedure. And he went even further, dissenting from the majority with his opinion that married women should have to notify their husbands before being allowed an abortion, leading some in the field to label him the "note-from-your-husband judge."
What hasn't been discussed as much is what Alito's willingness to restrict abortion might mean in light of two cases heading for the Supreme Court, both of which involve the question of whether laws limiting abortion have to include exceptions for women's health. Ayotte v. Planned Parenthood of Northern New England, which is scheduled for argument later in this month and might be re-argued after a new Justice is confirmed, considers whether a teen can get an abortion without waiting the forty-eight-hour period required by New Hampshire state law if her pregnancy threatens her health. The second case, Carhart v. Gonzales, a review of the 2003 federal "partial-birth abortion" ban, asks whether the ban on certain abortion procedures must make an exception if the mother's health would be harmed.
The consequences of Ayotte extend far beyond New Hampshire, according to Dara Klassel, who will be representing Planned Parenthood of Northern New England in the Supreme Court case. "If [the majority of Justices] say you don't need a health exception, it'll be a matter of a year or two before all red states revoke their health exception," says Klassel. "There will be women suffering serious health consequences, loss of fertility because of serious infection, anemia from blood loss."
As for the federal ban coming up for review, if Alito opposes the health exceptions as his record suggests he will, the decision will likely rest on the opinion of Justice Anthony Kennedy. Though he supported health exceptions in the past, Kennedy weighed in against the need for them when the US Supreme Court heard a similar case involving a ban on "partial-birth abortions" in 2000. And there's no sign he'll change his mind again. "My job is trying to answer the concerns that Kennedy had in the first case," says Priscilla Smith, director of the Domestic Legal Program at the Center for Reproductive Rights and the lead attorney in the case. "Whether I can do that, I don't know."
The chance that Alito will vote to protect women's health is far slimmer. In Casey, he went so far as to say that even psychological abuse of women or physical abuse of their children shouldn't be valid reasons for women not notifying their husbands before an abortion, since most women weren't in these situations. Alito's confession to Senator Dick Durbin that he spent much "time worrying and working over that decision" is likely of little comfort. He could work himself into a lather before making a bad ruling on the Supreme Court, too. But an effort to nail down the judge's thinking on the issue--and expose the logic behind it--could help build opposition to his confirmation. "What does he mean in his dissent in Casey?," asks CRR's Smith. "How many women would have to be beaten up before he struck this thing down? That's what [the Judiciary Committee] should be asking."
Though it would likely be the first reproductive crisis to which Alito could contribute, eroding Roe is really the lesser concern. Scarier still is that either of these two cases could provide the opportunity to do away with the ruling altogether. While the Justices are likely to rule more narrowly, they could decide to use the cases to "reach out," as lawyers call it, and question the fundamental principles involved in the right to abortion.
And if neither case leads to a full-on grappling with the right to choose, a more direct challenge to Roe is already in the legal pipeline. A Michigan law that would outlaw all surgical abortions throughout pregnancy (the status of medical abortions is unclear) was passed and immediately challenged this year. Now, in Northland Family Planning Clinic v. Cox, the ban is being appealed to the Sixth Circuit. The case could make its way to the Supreme Court in 2007.
If Alito is confirmed and both he and Chief Justice John G. Roberts Jr. vote to overturn Roe along with Scalia and Thomas, who are known to oppose the decision, the fundamental right to abortion established in the case would likely stand by only one vote. And if Bush has the chance to replace just one more Justice in the next three years--the 85-year-old John Paul Stevens, perhaps--then that fragile majority would likely vanish, taking the right to abortion along with it.
Between now and the confirmation hearings scheduled to begin on January 9, we have a chance to show which of the stories Alito is peddling on Capitol Hill is true--the one he's using to soothe the senators who could block his path to the court or the one antiabortion activists seem to find so reassuring. The answer lies in his record. Airing his extreme decisions for what they are and what they mean for women's rights and health is the best hope we have of preventing the "note-from-your-husband judge" from becoming the "not-on-your-life Justice."