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Samuel Alito on Abortion
Supreme Court Justice (nominated by Pres. George W. Bush 2005)
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Ok for states to require hospital nearby abortion service
The Supreme Court blocked Louisiana from enforcing a law that women's groups said would leave only a single doctor legally allowed to perform abortions in the state. By a 5-4 vote, the court said the restrictions must remain on hold while challengers
appeal a lower court decision in favor of the law.The vote was not a ruling on the legal merits of the restriction, but the decision to keep the law on hold signals that a majority of the justices have doubts about its constitutionality. Passed by
the state legislature in 2014, the measure requires any doctor offering abortion services to have admitting privileges at a hospital within 30 miles. Plaintiffs argued that it was identical to a Texas law the Supreme Court struck down in 2016, in which
the court said Texas imposed an obstacle on women seeking access to abortion services without providing them any medical benefits. Plaintiffs said Louisiana's law would leave only one doctor at a single clinic in New Orleans to perform the procedure.
Source: NBC News on 2019 SCOTUS case: "June Medical vs. Louisiana"
, Feb 7, 2019
Aggressive line of attack against Roe
The conclusion on Roe v. Wade was that "this right of privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy." And it was this conclusion above all that conservatives [opposed, including] Samuel Alito.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."
Source: The Nine, by Jeffrey Toobin, Chapter One
, Sep 9, 2008
Stare decisis is first step; then an open mind on abortion
SEN. DURBIN: When Senator Schumer asked you repeatedly, “Do you find that Roe v. Wade established and recognized a constitutional protection for a woman to make this most private decision?,” you wouldn’t answer.
You wouldn’t give a direct answer. 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.
Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings
, Jan 11, 2006
Was against Roe in 1985, but a lot has happened since then
SEN. DURBIN: Most of us are troubled by this 1985 memo. You said yesterday, you would have an open mind when it came to this issue. I’m sorry to report that your memo seeking a job in the Reagan administration does not evidence an open mind. It evidences
a mind that sadly is closed in some areas. And yet, when we have tried to press you on this critical statement that you made in that application, a statement which was made by you that said the Constitution does not protect a right to an abortion, you’ve
been unwilling to distance yourself and to say that you disagree with that. 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.
Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings
, Jan 11, 2006
Roe v Wade is important precedent but not settled law
SEN. DURBIN: John Roberts said that Roe v. Wade is the settled law of the land. Do you believe it is the settled law of the land? 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.
Source: Sam Alito 2006 SCOTUS Senate Confirmation Hearings
, Jan 11, 2006
Respect for precedent implies not overturning Roe v Wade
In recent conversations with senators, Alito has stressed his respect for precedent -- which some abortion rights supporters have seen as a sign that he might not overturn the landmark 1973 Roe v. Wade abortion rights ruling.
Alito has strong support from anti-abortion conservatives in the Senate.
Source: Reuters
, Nov 9, 2005
Defines ‘undue burden’ restrictively for abortion
An undue burden does not exist unless a law - 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.’
Source: ProChoiceAmerica.org
, Nov 1, 2005
States can require women seeking abortions to notify spouses
Alito, a Catholic, is opposed to abortion, his 90-year-old mother forthrightly told reporters in New Jersey. As a judge on the 3rd U.S. Circuit Court of Appeals in Philadelphia, he voted in 1991 to uphold a Pennsylvania law that included a provision
requiring women seeking abortions to notify their spouses. That case went to the Supreme Court, where justices used it to reaffirm Roe v. Wade. O’Connor was an architect of the decision that struck down the spousal notification requirement.
Source: Associated Press
, Oct 31, 2005
Oppose publicly funded abortions for rape and incest victims
In 2000, Alito was among the judges who ruled that a New Jersey law banning late-term abortions was unconstitutional, following high court precedent. He wrote a careful decision that said his vote was compelled. In 1995, he voted to invalidate
Pennsylvania restrictions on publicly funded abortions for women who are victims of rape or incest. The state wanted the women to have to report the crime to police first, but Alito joined another judge in finding that federal policy trumped state rules.
Source: Associated Press
, Oct 31, 2005
Unconstitutional to ban partial-birth abortions
Case Summary: Planned Parenthood of Central N.J. v. Farmer (3d Circuit 2000) 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
Source: FindLaw.com Case Summaries
, Jul 26, 2000
States can require notifying father before abortions
Case Summary: Planned Parenthood of S.E. Pa. v. Casey (3d Circuit 1991) 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.
Source: FindLaw.com Case Summaries
, Jun 29, 1992
Page last updated: Mar 21, 2022