Samuel Alito on Abortion Supreme Court Justice (nominated by Pres. George W. Bush 2005)

Aggressive line of attack against Roe

In 1982 Pennsylvania had tightened its restrictions on abortion. In a memo on May 30, 1985, Alito wrote, "No one seriously believes that the Court is about to overrule Roe. But the Court's decision to review [the Pennsylvania case] may be a positive sign." He continued, "By taking these cases, the Court may be signaling an inclination to cut back. What can be made of this opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects?" Alito wound up recommending an aggressive line of attack against Roe. "We should make clear that we disagree with Roe v. Wade and would welcome the opportunity to brief the issue of whether, and if so to what extent, that decision should be overruled."

Stare decisis is first step; then an open mind on abortion

ALITO: What I have said about Roe is that if it were -- if the issue were to come before me, if I’m confirmed and I’m on the Supreme Court and the issue comes up, the first step in the analysis for me would be the issue of stare decisis. And that would be very important. If I were to get beyond that, I would approach that question the way I approach every legal issue that I approach as a judge, and that is to approach it with an open mind and to go through the whole judicial process, which is designed, and I believe strongly in it, to achieve good results, to achieve good decision-making.

Was against Roe in 1985, but a lot has happened since then

ALITO: The things that I said in the 1985 memo were a true expression of my views at the time from my vantage point as an attorney in the Solicitor General’s office. But that was 20 years ago and a great deal has happened in the case law since then. Thornburg was decided and Webster and then Casey and a number of other decisions. So the stare decisis analysis would have to take account of that entire line of case law.

Roe v Wade is important precedent but not settled law

ALITO: Roe v. Wade is an important precedent of the Supreme Court. It was decided in 1973. So it’s been on the books for a long time. It has been challenged on a number of occasions. The Supreme Court has reaffirmed the decision; sometimes on the merits; sometimes--in Casey--based on stare decisis.

DURBIN: Is it the settled law of the land?

ALITO: If “settled” means that it can’t be reexamined, then that’s one thing. If “settled” means that it is a precedent, then it is protected, entitled to respect under the doctrine of stare decisis in that way.

DURBIN: How do you see it?

ALITO: It a precedent that has now been on the books for several decades. It has been challenged. It has been reaffirmed. But it is an issue that is involved in litigation now at all levels.

Respect for precedent implies not overturning Roe v Wade

Defines ‘undue burden’ restrictively for abortion

• a) prohibits abortion or gives another person the authority to veto an abortion or
• b) has a practical effect of imposing ‘severe limitation,’ rather than simply inhibiting abortions ‘to some degree’ or inhibiting ‘some women.’

States can require women seeking abortions to notify spouses

Oppose publicly funded abortions for rape and incest victims

Unconstitutional to ban partial-birth abortions

In his concurrence, Alito cites the U.S. Supreme Court?s decision in Stenberg v. Carhart in support of upholding a lower court?s decision to permanently enjoin (i.e., prevent) enforcement of New Jersey’s Partial-Birth Abortion Ban Act of 1997
-- Abortion Ban Act is held unconstitutional

States can require notifying father before abortions

Alito?s dissenting opinion is often cited by opponents of abortion. In it, he concluded that ?Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus,? under the state?s abortion notification law. The U.S. Supreme Court subsequently ruled in the case, and disagreed with Alito.