How Alito Could Affect Abortion Law

We begin a series of conversations about how the confirmation of conservative judge Samuel Alito to the Supreme Court could affect the court's rulings in several areas. Steve Inskeep and Legal Affairs Correspondent Nina Totenberg discuss Alito's possible impact on laws governing abortion.

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STEVE INSKEEP, host:

This is MORNING EDITION from NPR News. I'm Steve Inskeep.

RENEE MONTAGNE, host:

And I'm Renee Montagne.

When Americans elect a president, the choice affects the nation for years. When a president names a Supreme Court justice, the choice can affect the nation for decades. And as we're about to hear, activists and lawmakers are preparing for a fight over President Bush's latest nominee. Samuel Alito is meeting some of the senators who will consider his nomination. A key Republican who met with Alito said he was, quote, "clearly within the mainstream of conservative thought." Democrats remain skeptical and say they won't rule out the possibility of a filibuster.

INSKEEP: Over the next few days, we're going to examine what is at stake in the Supreme Court nomination of Samuel Alito, and we will start with the one issue that people mention most often when it comes to the Supreme Court, abortion. We're joined now by NPR legal affairs correspondent Nina Totenberg.

Good morning.

NINA TOTENBERG reporting:

Good morning, Steve.

INSKEEP: We can assume we're not going to find out before the confirmation vote whether Samuel Alito would vote to overturn Roe vs. Wade or not, but let's talk about the court he's joining. Can he actually change the balance one way or the other on Roe vs. Wade?

TOTENBERG: Not on a direct challenge to Roe. I mean, there would still be five votes, unless somebody changes his or her mind, to uphold the notion that a woman has a right to choose her reproductive destiny.

INSKEEP: Tell me the names of those five.

TOTENBERG: The five would be Ginsburg, Souter, Stevens, Breyer and Kennedy.

INSKEEP: Not directly, you said.

TOTENBERG: Not directly, but even though there is very little likelihood that Roe would be overturned, there is every likelihood that it will be eviscerated.

INSKEEP: What kind of case would cause that to happen?

TOTENBERG: Well, there's one right now involving parental notification. But the parental notification part is just a minor aspect of it. The main and important part of this case is that it has the potential to make it extremely difficult to challenge abortion laws in court before they go into effect, and to even possibly make it so that each person would have to litigate her case every time she wanted to challenge a restriction on abortion.

INSKEEP: So Alito, could he have an influential voice on cases like that?

TOTENBERG: He has a record, actually, of being very much in favor of making it difficult to challenge abortion restrictions.

INSKEEP: So you're saying there is still a majority in the Supreme Court for upholding Roe vs. Wade no matter how Samuel Alito might feel, no matter whether he gets confirmed or not?

TOTENBERG: Mm-hm. But the court could and probably would make it much more difficult for women to get abortions in the sense that they would likely uphold state regulations that put limits. Imagine a wall that has cabined off a right you have, and now the wall is beginning to squeeze down and there's a smaller and smaller space for women to be able to have abortions, and the court could make that even a smaller space.

INSKEEP: If hypothetically at some point, Roe vs. Wade were finally overturned, how would America be different tomorrow?

TOTENBERG: It would go to the states, and there would be probably be a lot of states where abortion would be illegal. It would be a crime. But we should say--this is going to sound very cynical to some people--but for Republican strategists, political strategists as opposed to those who really view abortion as murder, there's not a big payoff for overturning Roe, because then your base is sort of mollified and not energized. And at the same time, you have absolutely energized the opponents.

INSKEEP: If you win the issue, you lose the issue at election time.

TOTENBERG: It's possible.

INSKEEP: When you look at public opinion polls, is it clear today what it is that the public wants when it comes to abortion and when it comes to the Supreme Court?

TOTENBERG: It's clear that a majority of the public, a substantial majority, favors abortion rights, but it depends how you put the question whether those rights are significantly restricted or not for minors, parental notification, waiting periods, all that kind of thing. It depends how you put the question.

INSKEEP: The public is divided on all these nuances which are the very nuances that the court in the future may be arguing about.

TOTENBERG: Exactly.

INSKEEP: NPR legal affairs correspondent Nina Totenberg, thanks very much.

TOTENBERG: You're welcome.

INSKEEP: And tomorrow, we'll look at state's rights, another issue that is at stake as the Supreme Court changes.

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