- The Washington Times - Monday, November 21, 2005

In a surprising moment of frankness, a spokesman for Senate Minority Leader Harry Reid outlined the Democratic strategy against Supreme Court nominee Judge Samuel Alito. “The tactic is going to be to frame it as a debate over broader rights, including privacy, civil rights and women’s rights,” Jim Manley told Time magazine. This will avoid “the divisive debate over the word itself,” he said. The “word,” of course, is abortion or, more specifically, Roe v. Wade.

Americans might be getting a different impression of the Democrats’ anti-Alito strategy, however. Last week, NARAL Pro-Choice America teamed up with Planned Parenthood — two pro-choice groups most Americans associate with the leftmost fringe of the Democratic Party — for a cable-television campaign. The advertisement refers to the recently uncovered 1985 application Judge Alito wrote when applying for a job in the Reagan administration in which he said, “the Constitution does not protect a right to an abortion.”

The admission was just the hook Democrats and their liberal interest group allies have been looking for. The pro-choice interests obviously intend to play the application to the hilt, but the Democratic leadership attempts to be more subtle. We probably won’t hear any talk about the return of “back-alley abortions.” Avoiding the “word” is crucial.

Yet careful observers of Judge Alito’s judicial career say that it is not at all clear what he would do to Roe. For all the fuss about the application and Pennsylvania’s spouse-notification law, there are just as many, if not more, examples where Judge Alito upheld laws approved by the pro-choice lobby, such as laws banning partial-birth abortion.

Planned Parenthood v. Casey — the case of the spousal notice — is a case where Judge Alito clearly articulated his adherence to stare decisis, or “settled law”. The 3rd Circuit upheld most of Pennsylvania’s restrictions on abortion, except the spouse-notification law. On that point, Judge Alito dissented. His argument turned on the question of whether the law constituted an “undue burden” on the right to abortion, not his personal beliefs. Using the standards of “undue burden” developed by Justice Sandra Day O’Connor, Judge Alito argued that it did not present an “undue burden.”

Undoubtedly Judge Alito will be asked about the 1985 job application when hearings begin in January. There’s no reason for him to obfuscate. Several prominent Democrats — including Mario Cuomo and John Kerry — say that while they are personally against abortion, they would not force their beliefs on others. If Democrats want to make the application a major issue, they need only look to the man they tried to elect to the highest office in the land.

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