Judge’s Supporters, Foes See Much in One Dissent

Times Staff Writer

Judge Samuel A. Alito Jr.'s solo dissent in what became the biggest abortion case since Roe vs. Wade is the key reason conservatives are so enthusiastic -- and liberals so troubled -- about his nomination to the Supreme Court.

At issue in the 1991 case before the federal appeals court in Philadelphia was whether a state could force married women to notify their husbands before they obtained an abortion. The Pennsylvania Legislature enacted a law that included such a provision in 1989, saying that a husband had a legitimate interest in the fate of his unborn child.

Alito voted to uphold it as a judge on the U.S. 3rd Circuit Court of Appeals. He argued that the law did not put an “undue burden” on women, and he did so based on his reading of a standard set by Justice Sandra Day O’Connor in earlier cases that tested whether teenage girls must notify their parents before getting an abortion.

But when the Pennsylvania case reached the Supreme Court, O’Connor and the court majority rejected Alito’s view and characterized the “spousal notification” law as an insult to married women.


“Women do not lose their constitutionally protected liberty when they marry,” the court said in an opinion written in part by O’Connor. It is “repugnant to our present understanding of marriage” to permit the state “to enable the husband to wield an effective veto over his wife’s decision,” the high court said.

On Monday, President Bush nominated Alito to fill the seat of the retiring O’Connor, and some women’s rights advocates said his opinion in the case, Planned Parenthood vs. Casey, was likely to be Exhibit A in their challenge to his confirmation.

“This really sends a major signal about his mind-set and about how he is different from Justice O’Connor,” said Marcia D. Greenberger, co-president of the National Women’s Law Center. “He failed to recognize the basic respect due to adult women to make that decision.”

His defenders said Alito simply tried to follow the law as he understood it.


“It’s a very narrow ruling, very carefully crafted on the basis of Justice O’Connor’s decisions in previous cases about what could constitute an undue burden for women,” said Sen. Arlen Specter (R-Pa.), chairman of the Judiciary Committee and a supporter of abortion rights.

The Casey case is Alito’s only major opinion in an abortion case during his 15 years as an appellate judge. In two other cases, he joined his colleagues in decisions that struck down state efforts to limit abortion.

In 1995, Alito joined a 3-0 ruling that made it easier for poor women who were victims of rape and incest to use federal funds to pay for an abortion. Federal law generally forbids paying for abortions, except when the mother’s life is in danger or in cases of rape and incest.

Pennsylvania had tried to block funding for such abortions if the sex crimes were not reported to police. The U.S. appeals court, including Alito, said state officials could not add this extra requirement to the federal rules.


And five years ago, Alito joined a 3-0 ruling that struck down New Jersey’s ban on a late-term procedure that critics call “partial-birth” abortion. In a concurring opinion, Alito said the law was clear and judges were bound to follow a Supreme Court decision that had struck down a nearly identical Nebraska law a few months earlier.

But when the Casey case came before Alito’s court in 1991, the law on abortion was anything but clear. Indeed, the justices appeared poised to overturn the 1973 Roe vs. Wade ruling.

The close divide was apparent in 1989 when the high court took up a Missouri abortion case. Four conservative justices favored overturning the right to legal abortion. Four liberals voted to uphold the abortion right and to strike down a series of regulations adopted by the Missouri Legislature.

O’Connor set a middle course. She said states could regulate abortion so long as they did not put an “undue burden” on a woman’s decision to end a pregnancy. She voted to uphold regulations that required doctors to wait 24 hours after a pregnant woman asked to have an abortion. She also upheld rules that required teenage girls to notify a parent before seeking an abortion.


Encouraged by the high court’s shift in 1989, several states, including Pennsylvania, moved to adopt stricter regulations of abortion. One new law said doctors in Pennsylvania could not perform an abortion for a married woman until she provided a “signed statement” saying she had notified her spouse.

The Legislature said the law promoted the state’s “interest in the integrity of the marital relationship.” There were exceptions for a woman who said her spouse was not the father of the child, when the spouse could not be located, when the pregnancy resulted from a sexual assault that was reported to police, or when the woman said telling her spouse was “likely to result in the infliction of bodily injury.”

Before this law could go into effect, the Planned Parenthood Federation challenged it as unconstitutional and a violation of the right to abortion.

A three-judge panel on Alito’s court in Philadelphia upheld most of the Pennsylvania law’s provisions because, as the court said, they did not put an undue burden on women or their doctors. However, the panel split on the “spousal notice” law, with two judges voting to overturn it.


Alito dissented on this point. He said the court should not decide whether the state’s “approach represents sound public policy.” Rather, the question was whether this amounted to an “undue burden” on women. He noted that O’Connor had defined this to mean an “absolute obstacle or a severe limitation” on a woman seeking an abortion.

Judged by that standard, the state’s law is constitutional, Alito said.

“The Pennsylvania Legislature could have rationally believed that

The case was appealed to the Supreme Court, and it set up a showdown in 1992 over abortion and the fate of Roe vs. Wade. To the surprise of many observers, the court, despite the recent addition of two Republican appointees, issued a resounding 5-4 opinion that pledged to uphold the right of women to choose abortion.


The court’s opinion also upheld the 3rd Circuit’s ruling and threw out the “spousal notice” rule. O’Connor made clear she found the Pennsylvania ruling offensive to women.

“A state may not give to a man the kind of dominion over his wife that parents exercise over their children,” she said in the joint opinion for the court.


Times staff writer Richard Simon contribute to this report.