Some antiabortion groups are starting to wonder whether Supreme Court nominee Samuel A. Alito Jr. is as strong an ally of their cause as opponents have depicted him.
Although he has been wholeheartedly embraced by most major conservative groups, those whose sole mission is to restrict and prohibit abortion have reservations about the latest Supreme Court nominee as they learn more about his record on the divisive issue.
“I don’t know what his personal views are, but I know that he has ruled on pro-life cases four times and he has ruled against pro-life positions three times. And the fourth was a split decision,” said Richard Collier, president of the Legal Center for the Defense of Life, based in Morristown, N.J.
“If you look at the paper trail, it is all negative.”
Another group from New Jersey -- Alito’s home state and the jurisdiction where many of his rulings as an appeals court judge have had a direct effect -- is also concerned.
“There’s a big question mark about what he would do” on the Supreme Court, said Marie Tasy, executive director of New Jersey Right to Life.
“We certainly hope that Judge Alito is all the things that our opponents claim he is, but we don’t know that yet.”
A leading antiabortion group, the National Right to Life Committee, has not taken a formal position on Alito’s nomination, but the organization’s website suggests that the group considers his record on abortion to be mixed at best.
“In examining his record, there are four principal abortion-related cases,” the group’s website states. “Judge Alito voted in favor of the pro-life side once and against it three times.”
Americans United for Life, a national organization of antiabortion attorneys, believes his record is ambiguous.
Alito’s rulings “give no clear indication one way or another,” said Clarke D. Forsythe, director of the group’s Project in Law and Bioethics.
“They reflect his status as a Circuit Court judge applying precedent, and to me they give no indication of how he would vote” on Roe vs. Wade, the landmark 1973 Supreme Court ruling on abortion.
In short, Forsythe said, abortion foes are of two minds on Alito: “Many have hope and many are withholding judgment.”
Major social conservative groups such as the Family Research Council and Concerned Women for America have endorsed Alito without reservation.
But the chief counsel of Concerned Women for America, Jan M. LaRue, said the group considered more than just abortion in backing him, particularly Alito’s rulings in support of religious liberties.
LaRue said that in cases where Alito ruled against positions that some considered antiabortion, he was not expressing his own views but simply applying existing precedents, including Roe.
“The opinions I’ve read show a Circuit Court judge who recognizes what all the lower-court judges recognize, which is that they can’t overrule the Supreme Court,” LaRue said.
“Some folks want their outcome no matter how the judge gets there. If you do that, you are being inconsistent on judicial restraint.”
The National Right to Life Committee declined to comment on or clarify its position on Alito. In an e-mail, spokeswoman Megan Dillon pointed to the statement on the group’s website as “all we have.”
The group’s Pennsylvania affiliate, Pennsylvania Pro-Life Federation, was circumspect as well.
“We don’t want to go on the record on this,” Executive Director Michael Ciccocioppo said.
New Jersey Right to Life is not an affiliate of the national group, and its members have been more outspoken.
“We would prefer somebody with more of a paper trial on Roe v. Wade,” Tasy said.
In his 15 years on the U.S. 3rd Circuit Court of Appeals, Alito ruled in four cases that abortion opponents consider important.
In Planned Parenthood vs. Casey, Alito said it was not an “undue burden” for a married woman seeking an abortion to have to notify her husband -- a position overruled a year later by the Supreme Court.
Alito supporters argue that he was attempting to interpret the Supreme Court’s position, and that the law he upheld provided exceptions for a woman whose husband’s whereabouts were unknown, whose situation was an emergency or who feared violence.
In the three other cases, Alito’s rulings went against abortion opponents.
In one case, he voted with the majority to overturn a Pennsylvania law that would have required poor women seeking federally paid abortions after rape or incest to have first reported the crime to police.
In another case, Alito agreed that a New Jersey ban on a late-term abortion procedure that critics call “partial-birth abortion” was unconstitutional. The Supreme Court had previously struck down a nearly identical Nebraska law.
The remaining case is less well known, but some abortion foes consider it more important.
In 1997, Alito concurred in a ruling denying a woman the right to claim damages in the case of a stillbirth caused by alleged medical malpractice. The majority opinion in that case, Alexander vs. Whitman, explicitly held that a fetus had no constitutional rights.
Alito wrote that he was in “almost complete agreement with the court’s opinion,” which was based largely on Roe. He added that because stillborn fetuses were not considered to have rights at the time the Bill of Rights was drafted, they do not have them now.
“I perceive excessive hiding behind abortion precedents, unlike his boldness in other areas,” said Collier of the Legal Center for the Defense of Life.
“He’s sort of perceived as a radical conservative. It that’s true, why isn’t that true in the abortion area?”
Collier said other federal judges had been less docile in applying precedents they disagreed with, making clear in their rulings their disagreement with higher courts even when applying their rulings.
“I have never heard a peep of protest on precedents from Judge Alito,” Collier said. “He has not advanced the ball intellectually on how to overturn Roe and Casey.”