This morning's Washington Times story about Sam Alito's views on abortion is interesting for any number of reasons, not the least of which is his assertion, in a 1985 job application, that "the Constitution does not protect a right to an abortion."
Stop the presses. Alito's conservative!
That abortion statement is being thoroughly chewed over today. It's part of the de rigueur constitutional doublespeak, in which most almost everyone privately agrees that: (i) Roe probably represented judicial overreaching; but (ii) Americans believe in a constitutional right to privacy; such that (iii) to be confirmed, conservative Supreme Court nominees must be privately opposed to indefensible Roe and publicly in favor of indefensible Roe. This abortion mambo is exhausting, but it does help keep the pounds off.
Perhaps most noteworthy about the Washington Times article, however, is the attempt to undercut the impact of Alito's ominous words with the ubiquitous claim that the judge "sided with abortion proponents in three of four rulings during his 15 years as a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, usually based on existing law and technical legal issues rather than the right to abortion itself."
The notion that Alito took the pro-choice side in 75 percent of the abortion cases before him as a court of appeals judge has become so pervasive that even left-wingers now doubtfully tout it in hopes of his future moderation on abortion cases. But a closer look at the cases suggests that the claim that he's pro-choice most of the time is a stretch, for either side.
The one Alito opinion almost everyone agrees upon is his dissent as a 3rd Circuit judge in Planned Parenthood v. Casey—the case that grew up to become Planned Parenthood v. Casey, the Supreme Court's major decision upholding the right to abortion. In Alito's dissent, he argued that it was not an "undue burden" for a wife to have to notify her husband prior to obtaining an abortion. The Supreme Court eventually disagreed. I suspect everyone can log Casey as a "pro-life" decision, although there is debate at the margins over whether it represented pro-life activism or a temperate prediction of where Alito thought the Supreme Court was headed.
The other case that clearly implicated the right to choose was Planned Parenthood v. Farmer—the 2000 case in which Alito agreed with two other judges that New Jersey's partial-birth abortion law was unconstitutional. But as Richard Schragger has argued, it's a stretch to read Farmer as a big victory for the pro-choice camp, except insofar as Alito declined to openly violate the law and ignore clear Supreme Court precedent. Yes, he agreed the ban on the procedure was unconstitutional *. He had to: The Supreme Court had only just struck down a nearly identical law in Nebraska, in Stenberg v. Carhart. If anything, Alito's position in Farmer emphasizes his go-through-the-motions unease with that precedent: As Schragger has pointed out, and as some pro-life groups emphasize, rather than signing on to the majority opinion, Alito elected instead to write his own narrow concurrence—in effect, to say that his hands were tied by the Supreme Court.
As he wrote sparely: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent." Alito then simply applied the facts of the New Jersey statute to the Supreme Court's holding in Stenberg and noted that the New Jersey statute failed because it was virtually indistinguishable from the Nebraska law that had just fallen. Perhaps this concurrence was simple judicial minimalism; Alito felt that the court should decide no more than it needed to, and in light of Stenberg, the case was closed. Or perhaps, as Schragger suggests, he was deliberately taking a shot at the 3rd Circuit majority—which had gone much further and analyzed the New Jersey statute for its own constitutional flaws. Either way, Alito's concurrence was no more a "win" for the pro-choice camp than any other instance of a judge following settled law is a "win." It was a win for stare decisis, yes. But not for choice.
Then there are the two cases that actually have very little to do with abortion: In the 1995 case, Elizabeth Blackwell Health Center for Women v. Knoll, Alito agreed to invalidate a Pennsylvania law requiring women who wanted Medicaid to pay for an abortion in cases of incest or rape to "personally report the crime to the appropriate law enforcement agency together with the name of the offender." The majority held that if the secretary of Health and Human Services reasonably found these requirements to be in conflict with federal law, as she had in this case, based on her reading of the Hyde Amendment, then the secretary's reading of the law would trump. State Medicaid programs are voluntary, and any state receiving Medicaid funds must comply with the federal requirements, so the secretary is generally accorded broad deference in interpreting agency rules. Knoll is not an abortion case merely because the underlying statute was about Medicaid-funded abortions. Knoll was a dispute about the level of deference granted a federal agency in implementing its own rules.
Which brings us to Alexander v. Whitman, the 1997 case in which Alito decided that for purposes of a wrongful-death claim brought by parents of a stillborn child, fetuses are not "persons" as defined by the Constitution. This case also has nothing to do with abortion, save for the fact that some pro-life groups would urge constitutional protection for the unborn. The parents in Alexander were trying to argue that fetuses were "persons" and thus protected under the 14th Amendment. All three judges on the panel in Alexander rejected that argument, finding, under Roe, that "the word 'person,' as used in the Fourteenth Amendment does not include the unborn." And drawing an important distinction both sides in the abortion wars may sometimes forget, the panel noted:
Our inquiry is not a factual one. It is a legal one. The question is not whether a stillborn child is a human being from the moment of conception, but whether that unborn "human being" is included within the meaning of "person" contained in the Fourteenth Amendment. That legal question was resolved over twenty-four years ago when the Supreme Court decided Roe.
It's worth noting that in Alexander, as in Farmer, Alito wrote a separate concurrence. He said that while he was "in almost complete agreement with the court's opinion," he had two small quibbles. He balked at the majority's suggestion that "there could be 'human beings' who are not 'constitutional persons,' " warning that the reference was "capable of misuse." He also wrote to emphasize that "substantive due process inquiry must be informed by history" and, consequently, that "at the time of the adoption of the Fourteenth Amendment and for many years thereafter, the right to recover for injury to a stillborn child was not recognized."
Perhaps the single most interesting aspect of all the decision-parsing on Alito is this: Every one of these data points can be spun either for him or against him. For instance, while some pro-choicers find Alito's narrow concurrence in Farmer a pointed slap at the majority, some pro-lifers are incensed that he "didn't even try to distinguish the N.J. case from Stenberg. He made no attempt to find a way to uphold the N.J. partial birth abortion law."
There are two mistakes underpinning this analysis. The first is the assumption that any judge who rejects Roe v. Wade will necessarily disregard its precedential value whenever he or she rules in any future abortion cases. Alito has shown—and even said explicitly—that he rejects Roe but still has been willing to adhere to its dictates.
The second mistake is to assume that any case that touches upon the right to choose necessarily becomes a referendum on Roe. Alito's four so-called abortion cases tell us more about his views on stare decisis, statutory deference to federal agencies, and his unwillingness to invent new federal constitutional rights than they tell us about what he thinks about the legality of abortion. Just as you can't search for every case in which Alito mentions "trains" for some global stance for or against trains, you cannot legitimately claim that these four abortion cases signal a global position on the right to life. Which is why the three-out-of-four statistic is silly.
It's almost impossible to predict what a judge will do with cases that present fact patterns that do not yet exist; and it's hard to tell what an appellate court judge might do once he's seated on the high court. Certainly we should scrutinize Alito's 1985 job application for hidden motives, just as we should scan his opinions for judicial theory. But randomly classing together disparate abortion cases will tell us very little about Alito—save for the fact that he's not so reflexively pro-life or pro-choice that the rest of constitutional law is just wallpaper for him. That should give both sides in this discussion some measure of comfort going forward.
I'm guessing it won't.