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Samuel Alito on Abortion

Supreme Court Justice (nominated by Pres. George W. Bush 2005)


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 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 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 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
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

Other Justices on Abortion: Samuel Alito on other issues:
Samuel Alito
Stephen Breyer
Ruth Bader Ginsburg
Elena Kagan
Anthony Kennedy
John Roberts
Antonin Scalia
Sonia Sotomayor
Clarence Thomas

Former Justices:
David Souter
Sandra Day O'Connor
William Rehnquist
John Paul Stevens

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Page last updated: Mar 08, 2014