Too Much is at Stake to Risk Placing Samuel Alito on the Supreme Court
Citing the long-standing national consensus supporting the right of women to make reproductive decisions, the Religious Coalition for Reproductive Choice (RCRC) urges the U.S. Senate to reject the nomination of Judge Samuel Alito to the U.S. Supreme Court. Aspects of Judge Alito's record on reproductive rights show a radical legal philosophy that would reverse and overthrow basic guarantees that have been essential to women's progress over the past 30 years. In a nation that affirms freedom, equality, and dignity, Judge Alito holds legal views that are directly counter to our country's highest aspirations.
RCRC bases its opposition to Judge Alito's nomination on two instances indicating Judge Alito's judicial philosophy and lack of respect for women's moral decision-making.
As a lawyer in the Reagan Administration, Judge Alito was actively involved in devising the government's position in Thornburgh v. American College of Obstetricians and Gynecologists, a 1985 Supreme Court case in which the government asked the court to uphold Pennsylvania and Illinois laws that imposed numerous restrictions on abortions, including that women be required to provide a variety of personal details. The government went even further and argued that the court should disregard precedent and overrule Roe v. Wade and "return the law to the condition in which it was before that case was decided." The Court rejected the government's argument and struck down the Pennsylvania statute.
Judge Alito expressed his pride in taking part in this case, writing in an application for a promotion to deputy assistant attorney general, "It has been an honor and source of personal satisfaction for me ... to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court ... that the Constitution does not protect a right to an abortion."
In his 1991 dissenting opinion in the Third Circuit Court decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, Judge Alito disregarded expert evidence about spousal abuse of pregnant women and concluded that a law requiring married women to notify their husbands prior to an abortion would not unduly burden women's access to abortion. When the case reached the Supreme Court in 1992, Justice Sandra Day O'Connor, whose seat he is nominated to fill, voted to strike down that provision. Justices O'Connor, Kennedy and Souter said Judge Alito's opinion would give a husband a "troubling degree of authority over his wife" and place the most vulnerable women "in the gravest danger" of abuse. The Justices invoked the possibility of state regulation over many more aspects of women's behavior--smoking, drinking, exercising, using contraception, having surgery--if husbands were granted control over their wives' decision about abortion.
Whether Judge Alito will uphold the precedent of Roe v. Wade and whether he will set aside his personal views about women's moral decisions cannot be answered before he is confirmed.
Alito, if confirmed, will replace Justice Sandra Day O'Connor, who has been the pivotal vote in cases to protect reproductive rights. Justice O'Connor has brought an open-mind and pragmatic approach to every case. Alito's writings and record indicate he is likely to follow his personal views on the subject of moral choices and will narrow or reverse existing rights.
With two reproductive rights cases before the Supreme Court docket this term, the stakes are enormous. The next Supreme Court Justice will be in a position to shape laws regarding reproductive choice for the next generation. (The cases are Ayotte v. Planned Parenthood of Northern New England and Scheidler v. NOW/Operation Rescue v. NOW.) Too much is at stake for women and families to risk confirming Samuel Alito to a lifetime position on the Supreme Court.
November 17, 2005
1985 Memo Sets Out Strategy Used by Right-Wing Groups
A 17-page memo* written by Supreme Court nominee Samuel Alito while an attorney for the Reagan Administration shows Alito as a passionate opponent of reproductive choice. Alito spelled out the legal and political strategy that right-wing organizations have used in their quest to eliminate access to abortion.
In his strongly worded legal analysis, Alito recommended upholding numerous restrictions as the surest way to undermine a woman's access to abortion services. Among the restrictions he named were state regulations requiring doctors to provide women seeking abortions with information about fetal development, the risks and "unforeseeable detrimental effects" of the procedure, and the availability of adoption services and paternal child support.
Alito advised against "a frontal assault on Roe v. Wade" because it might be rejected. He wrote: "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?" The Reagan Administration incorporated some of Alito's recommendations in its brief in the 1985 Supreme Court case Thornburgh v. American College of Obstetricians and Gynecologists, but decided to ask directly for Roe v. Wade to be overturned.
The memo confirms that, contrary to his assertions that his views on abortion are only personal opinion and would not affect his judicial rulings, Judge Alito has long-standing ideological beliefs. He should not be confirmed to a lifetime position in which he can impose his personal views on women's moral decisions.
*The memo was written in response to a decision by the 3rd Circuit Court of Appeals in Thornburgh v. American College of Obstetricians and Gynecologists that overturned provisions of the Pennsylvania Abortion Control Act. The act would have required doctors to inform women seeking abortion of fetal development and risks of and alternatives to the procedure, such as adoption or child support. Alito called the court's decision "extraordinary" but added, "No one seriously believes that the court is about to overrule Roe v. Wade." He suggested that the Reagan administration in a brief to the Supreme Court support the restrictions and withhold from calling for a ban on abortion. However, the administration asked the court to "abandon" Roe, and in 1986 the case was dismissed by a 5-4 vote.
More on Alito Rulings
Planned Parenthood of Southeastern Pennsylvania v. Casey
In Planned Parenthood of Southeastern Pennsylvania v. Casey, Judge Alito voted to uphold Pennsylvania's spousal notification requirement. In callous disregard of the increased danger of bodily harm to some women during pregnancy, Alito wrote separately from the other two judges hearing the case to support the provision, which would have required Pennsylvania women to notify their husbands prior to obtaining an abortion. Alito wrote that "time delay, higher cost, reduced availability, and forcing the woman to receive information she has not sought," although admittedly "potential burdens," could not "be characterized as an undue burden." This opinion indicates he would never find any burden to be undue.
The Supreme Court later ruled the spousal notification provision unconstitutional, holding that it not only placed the most vulnerable women "in the gravest danger" of abuse but deprived all women of a constitutionally protected liberty when they married. The opinion, co-authored by Justices Sandra Day O'Connor, Anthony Kennedy, and David Souter, stated, "A state cannot give a man control over his wife."
Planned Parenthood of Central New Jersey v. Farmer
In Planned Parenthood of Central New Jersey v. Farmer, the Third Circuit was asked to rule on an abortion regulation that did not contain a valid health exception for the life of the woman. Alito ruled against the regulation, but wrote his own opinion instead of concurring with the opinion of the majority. Although he applied the Supreme Court precedents in both Roe v. Wade and Stenberg v. Carhart to overturn the statute, he refused to endorse the reasoning of the Supreme Court in either case.
January 11, 2006
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Related Link: Can Christians Be Pro-choice? Yes.
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