Alito v. O'Connor
How the nominee tried to restrict Roe.
In 1991, when Judge Samuel Alito became a mini-hero of the far right in the abortion battles, the fate of Roe v. Wade was far less settled than it is now (or, at least, than it has been until now). Alito's role wasn't to pen a manifesto—his partial dissent in the 1991 abortion case Planned Parenthood v. Casey is appropriately legalistic. Still, Alito's opinion in that case would have limited the right to abortion more severely than Sandra Day O'Connor, whom he will replace if confirmed, has ever been willing to do. And Alito's split with O'Connor involves not only abortion but also marriage. She worried about wives who might be victims of domestic violence. He put first the rights of husbands to know what their wives are doing.
Casey challenged a Pennsylvania law that required a woman to receive extensive information about the fetus and the abortion procedure, to wait 24 hours, to sign a statement of informed consent, and—most controversially—to tell her husband about her intention to have an abortion. A panel of three appeals judges on the Third Circuit upheld all the regulations except for the spousal notification. Alito, who was on the panel, dissented from the part of the ruling that struck down the requirement that women tell their husbands before obtaining an abortion.
Alito agreed with the other two judges on the Casey panel that the test for the constitutionality of Pennsylvania's law was whether it imposed an "undue burden" on a woman's abortion decision. O'Connor had introduced the undue burden test in a series of earlier opinions. To figure out whether the Pennsylvania law fell on the safe or foul side of her line, Alito emphasized examples from earlier O'Connor opinions that expressed greater disapproval of abortion. He pointed out that she had once written that an undue burden "has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision." O'Connor had also noted that other laws found to be unconstitutional had "criminalized all abortions except those necessary to save the life of the mother," he continued. Alito played down O'Connor's rejection of a Minnesota law that required girls to tell both their parents before having an abortion, without providing for a "judicial bypass" that would allow the girls to go instead before a judge to explain why they didn't want to tell their parents. Alito pointed out that O'Connor said two-parent notification was OK, as long as the judicial bypass came with it.
"Taken together," Alito wrote, "O'Connor's opinions allow for abortion regulations unless they prohibit abortion, give someone veto power over the mother's decision, or have 'the practical effect of imposing 'severe limitations.' " Requiring women to tell their husbands before having an abortion would do none of those things, Alito concluded. Then he explained why, in his view, Pennsylvania had a legitimate interest in requiring women to tell their husbands: "The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems—such as economic constraints, future plans, or the husbands' previously expressed opposition—that may be obviated by discussion prior to the abortion," Alito wrote.
When Casey reached the Supreme Court, the case became famous for upholding the core of Roe v. Wade. It's the decision in which O'Connor, David Souter, and Anthony Kennedy acted as a keep-the-peace triumvirate and voted with John Paul Stevens and Harry Blackmun, Roe's original author, to preserve it in the name of stability and respect for precedent. At the same time, Casey tossed the Roe "trimester framework" that allowed for more intrusive regulation of abortion as a pregnancy progressed. In its place, the court substituted O'Connor's undue burden test, much as the Third Circuit panel in Casey had anticipated. Along, the way, the court also upheld Pennsylvania's 24-hour waiting period, its informed-consent requirement, and its rule that women had to hear all about the growth and development of their fetuses.
But the court rejected Alito's narrow reading of what sort of regulation constitutes an undue burden. O'Connor, Kennedy, and Souter wrote: "A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus." The definition of an undue burden on the right to abortion as a "substantial obstacle" wasn't exactly what the pro-choice crowd wanted to hear. But it was a lot better than the "severe limitation" prohibition, or veto, that Alito had proposed—definitions that would have allowed much more extreme restrictions.
The triumvirate also parted company with Alito entirely over his vision of the rights of husbands. The Constitution did not permit states to require wives to tell their husbands before getting an abortion, the Supreme Court majority found. The O'Connor-Souter-Kennedy opinion cited a lot of trial testimony about the prevalence and danger of domestic violence. Pennsylvania's law exempted wives who'd been raped by their husbands, but not those who'd been coerced into "sexual behavior other than penetration," the three justices noted. They continued:
In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from [Pennsylvania's] notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends.
The dissenters, by contrast, adopted Alito's sunnier, husband-centered version of marriage. Then Chief Justice William Rehnquist (joined by Antonin Scalia, Clarence Thomas, and Byron White), emphasized "a husband's interests in procreation within marriage and in the potential life of his unborn child." Rehnquist paid Alito the high compliment of directly quoting his words about the good that could come from requiring women to talk to their husbands. "This participation might in some cases result in a decision to proceed with the pregnancy," Rehnquist concluded.
That's Alito's star turn on the abortion stage thus far. It is direct evidence that Casey would have come out far differently if he, rather than O'Connor, had been on the court 13 years ago.
Emily Bazelon is a Slate senior editor and writes about law, family, and kids. Her forthcoming book, Sticks and Stones: Defeating the Culture of Bullying and Rediscovering the Power of Empathy and Character. Find her at firstname.lastname@example.org or on Facebook or Twitter.
Photograph of Samuel Alito by Luke Frazza/AFP/Getty Images.