Alito's dissent in '91 case crucial

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Judge Samuel A. Alito Jr. ruled on four abortion cases during 15 years as a federal appeals court judge, one of which is more likely than the others to shape the questioning of senators weighing his nomination to the Supreme Court.

On three cases from 1995 to 2000, Judge Alito's writings largely fell under what some court observers call the umbrella of pro-choice rhetoric. But his dissent in a key 1991 case -- during his first year on the federal bench -- defended the rights of individual states to set requirements women must meet before undergoing an abortion.

The plaintiffs in Planned Parenthood of Southeastern Pennsylvania v. Casey sought to strike a 1982 state law that set provisions to be met for an abortion to be legal.

The law said doctors conducting abortions must provide a woman with information about health risks and possible complications, a married woman must notify her spouse before having an abortion, a minor must notify her parents and a woman must wait 24 hours before the procedure could be performed.

The U.S. District Court for the Eastern District of Pennsylvania ruled that all four provisions set by the state law were unconstitutional. The state appealed to the 3rd U.S. Circuit Court of Appeals for review by a three-judge panel, which included Judge Alito.

In a 2-1 ruling, the appeals court panel reversed most of the lower court's ruling, finding that three of the four abortion provisions were constitutional. However, the majority agreed with the physicians that one of the provisions -- of "spousal notification" -- was unconstitutional.

Judge Alito concurred with much of the majority's findings, but wrote a separate opinion arguing in favor of allowing Pennsylvania to require spousal notification, saying the provision was "constitutional because it is 'rationally related' to a 'legitimate' state interest."

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems -- such as economic constraints, future plans, or the husbands' previously expressed opposition -- that may be obviated by discussion prior to the abortion," Judge Alito wrote. "In addition, the legislature could have reasonably concluded that [spousal notification] would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure."

Quoting Justice Sandra Day O'Connor's opinion in the Supreme Court's 1990 Hodgson v. Minnesota decision, Judge Alito wrote that Pennsylvania's law did not impose an "undue burden" on women seeking abortions.

In 1992, Planned Parenthood v. Casey went to the Supreme Court, which delivered a 6-3 ruling against Judge Alito's reasoning and struck down Pennsylvania's law. Chief Justice William H. Rehnquist, in disagreeing with the court's majority ruling, quoted Judge Alito's dissent, saying he agreed with the younger judge.

Legal scholars say Judge Alito's support for states' rights to set limits on abortion explains the opposition from pro-choice advocates.

"I think the concern is that there could be any number of other restrictions that states impose and the court might uphold those," said Carl W. Tobias of the University of Richmond School of Law.

Judge Alito's other rulings on abortion appear less likely to be used by critics during the Senate confirmation process. In 1995, he supported striking a Pennsylvania law that required women getting an abortion after a rape to report the rape and the offender to police if they sought to pay for the abortion with Medicaid money.

In the 1997 case Alexander v. Whitman, he concurred that a New Jersey law that barred parents from suing for damages on behalf of an unborn child was unconstitutional. And in 2000, he cited Supreme Court precedent in striking down a New Jersey law banning partial-birth abortions.