If you suffered through the stultifying, weeklong confirmation hearings, you probably think you know all you can–or ever wanted to–about Samuel Alito. But there’s much about the judge’s views on issues affecting women that was buried under legal obfuscation and senatorial small talk, starting with his purposely confusing statements on Roe v. Wade. When Senator Dick Durbin asked Alito whether the case that established the constitutional right to abortion in 1973 was the settled law of the land, the judge equivocated. He might have simply taken the path Roberts did in his confirmation hearings, answering with a completely unenforceable “yes.” (Clarence Thomas made a similar statement during his confirmation hearings and then went on to vote to overturn Roe.) Instead, tellingly, Alito said he thought the decision could be re-examined.
This should come as no surprise. We already knew from the famous 1985 memo that was part of his application for a job in the Reagan Administration that Alito felt the Constitution didn’t protect the right to abortion and that he was “particularly proud” of his work making that point (this on top of the emphatic statement from his 90-year-old mother, Rose, that “of course he’s against abortion”). Yet Alito didn’t attempt to distance himself from his reputation as an abortion opponent, and in fact stood by his record on the issue. Indeed, the judge said, “I’d be the same sort of Justice on the Supreme Court that I’ve been a judge on the Court of Appeals.” So we know we can look to Casey v. Planned Parenthood, for instance, the much-discussed case he ruled on in 1991, to see what’s ahead. That’s the decision in which he not only upheld a law requiring doctors to inform women of the potential “medical dangers” of abortion but dissented from the majority by saying that married women should have to notify their husbands before being allowed one.
Alito’s less-publicized writings on reproductive issues may be even more revealing. In 1985 he outlined the road map for how to dismantle a woman’s right to an abortion piece by piece even if Roe stands, a blueprint that the antichoice movement has followed to dramatic effect. And in the same memo Alito recommended a law that would require doctors to inform “a woman that certain methods of birth control are abortifacients.” This line of thinking has become one of the hottest among antichoice activists and–because it would reclassify methods including the IUD, the pill and other hormonal forms of contraception as abortion–severely undercuts Alito’s reassurances that he supports the right to birth control. Without these devices, women would be left only with condoms and the rhythm method to prevent pregnancy.
Other Alito decisions not related to reproduction appear designed to strip women of their power and dignity (and, in one frequently noted case, poor little girls of their clothes, even when they’re not named in search warrants). The issue of Vanguard, which came up mostly in reference to Alito’s failure to recuse himself from cases involving that money-management company despite having investments in it, also involves the rights of women, like the plaintiff, a widow named Shantee Maharaj. As her lawyer, John Flynn, pointed out, Maharaj had nothing to her name but the Vanguard IRA her husband had left her. Alito voted to support others’ right to raid the account, despite IRAs supposedly being safe from creditors, and he blocked Maharaj from obtaining the funds it contained. Maharaj lost her home in the almost decade-long fight over the Vanguard account, a fact that never made it into the hearing.
We did, however, hear much about Alito’s humble character, the case for which hinged on the fact that he’s an Italian-American, didn’t join an eating club at Princeton and lives in New Jersey. Details about the few females who had a voice in the hearings, meanwhile, were unmistakably human against the backdrop of fine suits, white hair and testosterone. Dianne Feinstein, the only woman on the Judiciary Committee, spearheaded the abortion-related questioning along with Durbin and Charles Schumer. Democratic Representative Debbie Wasserman Schultz, of Florida, said she was testifying not just as a member of Congress but also in her “most rewarding role: as the mother of three young children who will come of age in an America guided by many of the decisions that this Court will make.”
Meanwhile, Kate Michelman, former president of NARAL Pro-Choice America, and the only witness to devote her testimony to women’s reproductive rights, told of the humiliation of having a pre-Roe abortion, in 1969. Then the mother of three young children, Michelman had to submit to questioning about the intimate details of her life and seek out the approval of her husband, who had deserted her during her pregnancy, before being granted permission to have the procedure.
It was hard not to reflect on the parallel tellings of Michelman’s personal story. Once again, she was reduced to recounting the details of her trauma in the desperate hope that she might convey a woman’s life to a group of men. The first time around, the young Michelman was successful, convincing the doctors she deserved an abortion. More than thirty years later, it’s not clear that she managed to get the men in power to understand what’s at stake for women with Alito’s appointment to the Court.
Most Americans don’t want Alito appointed if he will vote to overturn Roe, according to numerous polls. The impact of his appointment–and outrage over it–wouldn’t be spread evenly between the sexes, though. According to Kim Gandy, president of the National Organization for Women, “Women will have a very, very long memory and will lay their losses at the feet of the Republicans and at the feet of whichever Democrats help put this ultraconservative man on the Supreme Court.”
