His mother may know best, but conservatives do not share her certainty that Samuel Alito would overturn abortion rights.
Alito’s independent streak is complicating what might otherwise be an easy call as people on both sides of the abortion divide try to figure out his likely course if he were confirmed by the Senate for the Supreme Court.
The nominee’s 90-year-old mother, Rose Alito, has said of her Catholic son that “of course, he’s against abortion.” But that is her personal understanding, which is not always an accurate indicator of how a justice would vote.
“If you asked me to guess what Sam thought about abortion, it’s probably the same thing his mother said,” said Joshua I. Schwartz, a professor at George Washington Law School who worked with Alito in the solicitor general’s office during the Reagan administration.
“But obviously there is a real difference between what Sam Alito thinks is what’s right and what’s wrong and what does he think the law should be,” Schwartz said.
President Bush has nominated Alito, a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, to replace Justice Sandra Day O’Connor, who announced plans to retire in July.
O’Connor has been the divided court’s swing vote on abortion, frustrating conservatives who have pressed for the undoing of the landmark 1973 Roe v. Wade decision that legalized abortion.
Liberals say Alito is certain to roll back abortion rights. They contend that while Alito stuck to Supreme Court precedent as an appellate judge, he would be free as a justice to act on his personal opposition to abortion.
Abortion foes are not so sure he would vote their way. Their optimism about Alito’s nomination is tempered by their views on some of Alito’s decisions during his 15 years on the federal bench.
Conservatives cheered Alito’s 1991 vote requiring that women who seek abortions notify their spouses. But they were dismayed by his writings in three other cases:
* In 1997, in Alexander v. Whitman, Alito concurred with the appellate court’s decision that a fetus is not a person under the equal protection clause of the Constitution. A woman who delivered a stillborn baby had challenged a New Jersey law, arguing that she should be able to file a wrongful death lawsuit.
“I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a ‘person’ within the meaning of the 14th Amendment,” Alito wrote.
* In 2000, in Planned Parenthood of Central New Jersey v. Farmer, Alito was among the judges who invalidated a New Jersey law banning late-term abortions. He cited the high court’s decision on a Nebraska statute.
“Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent,” Alito wrote.
* In 1995, in Blackwell v. Knoll, Alito cited federal government policy in voting to invalidate Pennsylvania restrictions on publicly funded abortions for women who are victims of rape or incest.
Richard Collier, president of the Legal Center for the Defense of Life in New Jersey and a lawyer in the 2000 case on late-term abortions, said Alito had no reason to cite Supreme Court precedent in the case.
“He followed it for the wrong reasons,” said Collier, who fears that Alito would not vote to overturn Roe v. Wade.
Collier points to comments from Alito’s colleagues on the federal bench. They say Alito backs tighter abortion restrictions, but Senior Judge Leonard Garth has said, “Sam is not going to overturn Roe v. Wade.”
“How many people do we need to tell us that?” Collier asked.
Marie Tasy, executive director of New Jersey Right to Life, was heartened by Alito’s 1985 memo in which he said the Constitution does not protect a right to an abortion. But she noted that Alito was more inclined to offer his opinion in religious liberty cases than in abortion matters.
“He didn’t seem to want to go that extra step,” said Tasy, whose group has neither endorsed nor opposed Alito.
Troy Newman, president of anti-abortion group Operation Rescue, said his organization is backing Alito’s nomination, confident that Alito is far more conservative than O’Connor.
Newman did acknowledge the uncertainty within conservative ranks, but he said there are reasons to be hopeful.
“A conservative court led by (Chief Justice) John Roberts and with Alito should have no problem redefining personhood for the pre-born child, thus nullifying Roe rather than overturning it,” Newman said.
Should he join the high court, Alito probably would have the chance to rule on two major abortion cases in the current term.
One centers on New Hampshire’s parental notification statute and whether the state law is unconstitutional because it lacks an exception that would allow a minor to have an abortion for health reasons in a medical emergency.
The second case stems from the Bush administration’s request that the Supreme Court reinstate a national ban on a type of late-term abortion. Bush signed the 2003 law imposing the prohibition, but legal challenges have prevailed based on the argument that the statute lacked a health exception and was unconstitutional.
Kate Michelman, former president of NARAL Pro-Choice America, said that as a justice, Alito no longer would be bound by the precedent that dictated his appellate court rulings.
“Do I think he will overturn Roe immediately? I think no,” Michelman said. “But he doesn’t have to overturn Roe v. Wade explicitly. All he has to do it uphold the New Hampshire law, the federal ban on late-term abortion. All he has to do is decide differently from Sandra Day O’Connor and the right to choose is lost essentially for American women.”