Sunday, November 13, 2005

Alito and Anti-Abortion Judicial Activism?

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Update from The Washington Times: Judge Samuel A. Alito Jr., wrote that "the Constitution does not protect a right to an abortion" in a 1985 document obtained by The Washington Times... "I personally believe very strongly" in this legal position, Mr. Alito wrote on his application to become deputy assistant to Attorney General Edwin I. Meese III. The document is among many that the White House will release today from the Ronald Reagan Presidential Library.

Supreme Court nominee Samuel Alito voted with the majority on the third circuit court in Planned Parenthood vs. Casey to uphold restrictive abortion related measures passed by the Pennsylvania state legislature... measures that included a 24 hour waiting period and parental consent for minors. But, controversially, he dissented that the majority were wrong to strike down a statute effectively requiring women to obtain consent from their spouses before terminating their pregnancy. In this matter he was the lone dissenting member of the court. The reality for women of this interpretation is expounded upon powerfully here by Kate Michelman in the LA Times.

Alito wrote that forcing a woman to notify and effectively require her husband's consent for an abortion did not constitute an "undue burden," and could be justified as a "legitimate state interest," which is the only basis, set out by Justice Sandra Day O'Connor in Webster vs. Reproductive Health Services, by which the state can legislate abortion restrictions. If a law does place an "undue burden" then it can only be justified by a "compelling state interest," which Alito conceded was not justified by Spousal Notification.

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To prove that Spousal notification did not place an undue burden on a woman seeking an abortion Alito used Sandra Day O'Connor's written opinions to emphasize how extremely restrictive a law must be, in his opinion, to place an undue burden on a pregnant woman. Read a summary of the quotes he used from O'Connor here. Alito's interpretation of Sandra Day O'Connor's writings was that anything short of the most severe restrictions on abortion was constitutional, which flagrantly undermined the letter and spirit of Roe vs. Wade.

To me this indicates an activist intent to frame the argument and serve an already predetermined conclusion. Originalism, textualism, and literal interpretations of the law are nothing more than a conceit if you apply Samuel Alito's writing in this opinion. Sandra Day O'Connor did not agree with Alito's assessment of her rulings... and if a circuit court judge claims to adhere rigorously to the letter of the law, and the intent of the law..... reading history books like Antonin Scalia to identify the original intent of the founders in the writing of the constitution... then doesn't it matter that he accurately reflects the intent, spirit, and meaning of the rulings that he refers to in his opinions. If you are a circuit court judge, following and CITING a Supreme Court Justice, and you claim to be a rigid textualist, then doesn't it matter that you accurately reflect that Judge's opinion? Sandra Day O’Connor thought that Samuel Alito was dead wrong. Can someone explain to me why this doesn't qualify as judicial activism?

I am convinced it would be just as easy to craft from O'Connor's writings an opposing point of view about what constitutes an undue burden. If I was a Senator on the Judiciary Committee that is exactly what I would do... from the opinions of O'Connor that Alito used I would write a summation of her intent, substantiated by alternative quotes, that by contrast created a lesser "undue burden" standard. I would read it out to Alito in the hearings and ask him to explain how he thinks his claim to strictly interpret the law is manifest in his conclusions about Justice O'Connor's rulings... the implication being that his references were a selective distortion.

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To establish that Spousal notification was a legitimate state interest Alito argued in his opinion that the state has a justified commitment to further a husband's interest in the fetus, citing Skinner vs. Oklahoma.

Skinner vs. Oklahoma was about whether states could sterilize men after they had committed three crimes or more in the 1940's. Now I'm not a lawyer… I never went to law school… and I know absolutely nothing about the law... but how does a man's right to preserve his fertility relate to his rights in an individual pregnancy that he is partly responsible for? Aren’t they two completely separate things? Last time I checked, women having abortions without the expressed consent of their husbands does not leave those men permanently sterile, incapable of ever having children. Please tell me if I'm wrong.

Alito then referenced Michael H. vs. Gerald, to justify a husband's interest in the fetus, which states that a father who is willing to participate in raising his child has fundamental rights in the child's welfare. But, the law as it stood then and stands now does not consider the fetus a child or a human being. Samuel Alito may think that a fetus is a child, but the letter of the law that he proclaims to strictly adhere to disagrees. An abortion is not murder... a fetus is not a child under the law. How exactly is an argument legally justifying a husband's interest in a fetus, or in his wife's pregnancy, by comparing it to his established legal interest in his children not judicial activism?????

Planned Parenthood vs. Casey was not simply a question of minor abortion restrictions. The case went to the Supreme Court and the arguments put forward by Ken Starr, which identically echoed Alito's dissent, did explicitly seek to undermine Roe vs. Wade, and distort Sandra Day O'Connor's undue burden test. So much so that Sandra Day O'Connor, along with four other justices re-affirmed Roe vs. Wade in three parts:

Guaranteeing the right of the woman to choose to have an abortion before viability.
Allowing the State to restrict abortions only after fetal viability and only if the law contains exceptions for pregnancies which endanger the woman’s health.
Recognizing that the State has legitimate interests from the outset of the pregnancy in protecting the health of the woman and the life of the fetus that may become a child.

As a result the Pennsylvania measures were ruled unconstitutional.

I supported John Roberts. George Bush won the 2004 election and earned his right to nominate a Conservative judge. I criticized Democratic minority leader, Harry Reid, for voting against Roberts' confirmation, while praising Senator Feingold for voting for it. But, while my interpretation of Alito's opinion in Planned Parenthood vs. Casey is obviously elementary... it does seem that anything short of putting a gun to a woman's head for the duration of her pregnancy would have failed to meet Alito's undue burden standard. Is this what we want from a Supreme Court Justice? Is such a mistaken interpretation of Sandra Day O'Connor's intentions and rulings not a form of judicial activism considering this?

If Samuel Alito intends to overturn Roe vs. Wade the American people think he shouldn't be confirmed by 53% to 37%. I'm still undecided but maybe the time has come for the Democrats to make a stand.

Related Links:
PP vs. Casey: Alito's dissenting opinion in full.
Previous Article: Implications for Roe vs. Wade.
LA Times: This time it's personal.

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