MELISSA BLOCK, host:
This is ALL THINGS CONSIDERED from NPR News. I'm Melissa Block.
Samuel Alito is sure to be questioned closely about his rulings on abortion during his time on the federal bench. We're going to spend some time now talking about one case in particular from the early '90s. The case was Planned Parenthood vs. Casey; that is Robert Casey, who was governor of Pennsylvania. Jeffrey Rosen is professor at George Washington University Law School and legal affairs editor at The New Republic. He's here to talk about that case.
Professor JEFFREY ROSEN (George Washington University Law School; Legal Affairs Editor, The New Republic): Good to be here.
BLOCK: Let's go back a bit. This has to do with changes in the abortion law that were passed by the Pennsylvania Legislature in 1988 and 1989. What did that law say?
Prof. ROSEN: The law imposed a series of restrictions on abortion. It required minors to notify their parents with a restrictive judicial bypass provision. It had other informed notification provisions. But the most controversial part was that it required women to inform their spouses before they had abortions.
BLOCK: Well, this starts working its way through the courts and eventually goes to a three-judge panel on the 3rd Circuit of the US Court of Appeals. Judge Samuel Alito is one of those three judges hearing the case. What happened? How did they rule?
Prof. ROSEN: The three-judge panel voted to uphold many of the provisions, including the parental notification provision, but to strike down the part that required women to notify their husbands. And Judge Alito dissented on that point. He said that because this provision would affect a very small number of women--95 percent of married women already informed their husbands, and most unmarried women seek abortions as well--it might be a tiny percentage of women, 1 percentage of all women, he said. And therefore, because that was such a small group, it wouldn't have an undue burden on the amount of women trying to seek abortions.
BLOCK: I read some language where he seemed to be saying that the exceptions in the law would not create this undue burden that you're talking about and that discussion between the spouses could help overcome these perceived problems.
Prof. ROSEN: That's exactly right. He said the Pennsylvania Legislature could rationally have insisted that some married women are initially inclined to obtain an abortion without their husbands' previously expressed opposition, but if you just talked about it then maybe you could get over those problems and they might change their minds.
BLOCK: So Samuel Alito is dissenting here. After that decision, the case goes from the appeals court up to the Supreme Court. What did the Supreme Court say about this case?
Prof. ROSEN: Well, this, of course, became tremendously important because it was the decision that reaffirmed the core of Roe vs. Wade. And 5-to-4, the court said that you can't impose undue burdens on a woman's decision to abort a non-viable fetus. But in particular, although the court upheld many of the provisions, it agreed with the Pennsylvania court that the spousal notification provision should be struck down. And in a very significant passage, Justice Sandra Day O'Connor said, `The question isn't what's the overall number of women who are affected.' She said, `What's the impact on the small group of women, maybe even 1 percent, who actually don't want to tell their husbands because they might be afraid of some sort of abuse short of physical violence?' And she said because it's going to affect that group extremely strongly, the provision has to fall. So she disagreed with Judge Alito on that crucial point.
BLOCK: It's interesting, because there's another case that Judge Alito ruled on. This was a case out of New Jersey. And it found that the New Jersey law that banned partial-birth abortions was unconstitutional. How did he reconcile those two views?
Prof. ROSEN: Well, there he basically said, `The Supreme Court has spoken and I must obey.' The Supreme Court just recently had struck down partial-birth abortion laws because especially they didn't contain an exception for the health of the mother, and also because they were too vague and might affect constitutionally protected abortions. Judge Alito said little more than, `Because the Supreme Court settled this matter, I'm just going to follow its opinion and I'm not going to tell you more broadly what I think as a personal matter about these restrictions.'
BLOCK: Jeffrey, you've written a lot about the principle of stare decisis, of standing by that which has been decided, standing by precedent in other words. And in particular you've been talking about, writing about superprecedents. Explain what that means and how that might come into play with Roe and with the Casey case that we're talking about.
Prof. ROSEN: It's very interesting to focus on the different approach towards superprecedents of Judge Alito and his leading contender for the nomination, Judge Michael Luttig. In a similar case striking down a ban on partial-birth abortions, Judge Luttig went out of his way to say, `I believe that Casey vs. Planned Parenthood is a superprecedent.' Essentially, because Roe has been reaffirmed by different Supreme Courts appointed by different presidents of different parties and confirmed by justices and senators from different political parties, the country has come to accept it in a way that gives it special weight.
Judge Alito, by contrast, when he struck down his partial-birth law, did not go so far as to say anything in particular about Casey being a superprecedent. He kind of grinned and beared it, you know, just did as little as possible. So this suggests that it would be wrong to expect that Judge Alito, unlike Judge Luttig, believes that Casey or Roe is a superprecedent in any way, and this may lead to some strong questioning by someone like Arlen Specter, who's expressed concern on this very point.
BLOCK: Jeffrey Rosen, thanks very much.
Prof. ROSEN: Thank you for having me.
BLOCK: Jeffrey Rosen is professor at George Washington University Law School and legal affairs editor at The New Republic.
You can read some of Alito's key legal opinions in cases involving abortion, religion and freedom of speech at our Web site, npr.org.