- The Washington Times - Monday, October 31, 2005

A lone dissent on an abortion case by federal Judge Samuel A. Alito Jr. has become the battle cry for both sides of the Supreme Court nomination.

Sitting on the 3rd U.S. Circuit Court of Appeals, Judge Alito dissented in Planned Parenthood of Southeastern Pennsylvania v. Casey. The case eventually reached the high court and was used to cement the standing of Roe v. Wade, the 1973 court case that guaranteed abortion as a constitutional right.

The Pennsylvania law in question, among other provisions, required married women to notify their husbands before undergoing abortions, although the law had a series of exceptions such as fear of spousal battery.

In his dissent, Judge Alito said the law should be upheld, arguing, “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 their husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.”

He noted that the legal precedents at the time required that limitations on abortion, in the words of Justice Sandra Day O’Connor, not impose an “undue burden.”

Judge Alito concluded that Pennsylvania’s law imposed no more of a burden than some of the restrictions Justice O’Connor had upheld as not imposing an “undue burden,” including parental-notification requirements and regulations that raise the price of abortions.

The Supreme Court later ruled 6-3 against Judge Alito’s reasoning and struck down the law, reversing many of the details of its own case law, including the “undue burden” test.

In dissent, Chief Justice William H. Rehnquist quoted Judge Alito and said he agreed with the argument.

The Pennsylvania case has attracted attention from both liberals and conservatives. Each see the case as evidence that Judge Alito would permit more restrictions on abortion and maybe even overturn Roe v. Wade and leave abortion laws to legislatures.

Citing Judge Alito’s role in the abortion rights case, Karen Pearl, interim president of the Planned Parenthood Federation of America, called the nomination “outrageous.”

“Judge Alito would undermine basic reproductive rights, and Planned Parenthood will oppose his confirmation,” she said, reflecting the reaction of most liberal interest groups.

Tony Perkins of the Family Research Council noted the case and called the judge an outstanding pick. He is thrilled in particular that Judge Alito is “an open book.”

Senate Judiciary Committee Chairman Arlen Specter, a pro-choice Pennsylvania Republican, said he has known Judge Alito for nearly 20 years and that the nominee has “a very distinguished record.”

After meeting with Judge Alito for more than an hour yesterday, Mr. Specter said the nominee confirmed a “right to privacy” in the Constitution, the foundation for Roe v. Wade.

Republicans say the nomination, combined with the prominence of the Planned Parenthood abortion rights case, creates a quandary for Democrats who want their party to be big enough for pro-life advocates.

One of those pro-life Democrats is Bob Casey Jr., who is running for the Senate seat held by Sen. Rick Santorum, Pennsylvania Republican.

Mr. Santorum is ardently pro-life and a close ally of Mr. Specter. Mr. Casey is the son of Robert P. Casey, who was Pennsylvania’s governor at the time of the Planned Parenthood case, and thus has his name on the case.

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