MELISSA BLOCK, host:
Abortion opponents are generally pleased with the nomination of Judge Samuel Alito to the Supreme Court. But during his time as an appeals court judge, Alito ruled on just a handful of abortion cases, and in most of them, he sided with the pro-choice position. NPR's Julie Rovner has a look at this apparent disconnect.
JULIE ROVNER reporting:
South Carolina Republican Jim DeMint is among the most staunchly anti-abortion members of the Senate, and after his meeting with Judge Alito earlier this month, he told the assembled media scrum that he's quite satisfied with the president's pick.
Senator JIM DeMINT (Republican, South Carolina): I had pretty much made up my mind just looking at his long record and the way he had ruled on cases, which clearly supported the law even in cases where I didn't agree with the law.
ROVNER: But some senators who support a woman's right to abortion say they're not convinced Alito would actually vote to overturn the landmark 1972 case Roe v. Wade. Maine Republican Olympia Snowe, who met with Alito just before DeMint did, says she's not even concerned about a 1985 job application for the Reagan Justice Department where Alito wrote that he did not believe the Constitution protected a right to abortion.
Senator OLYMPIA SNOWE (Republican, Maine): He said he could set aside his personal beliefs to consider what the law is, the Constitution and, of course, stare decisis, which is an important doctrine in preventing the overturning of existing precedent. Certainly that would be crucial in making any decisions concerning abortion.
ROVNER: But outside the Capitol, just about everyone else seems convinced that Alito would likely side with anti-abortion forces in most cases. His most detailed abortion ruling came in Planned Parenthood of Southeastern Pennsylvania vs. Casey. The Supreme Court used that 1992 case to reaffirm a constitutional right to abortion. In so doing, the court struck down several provisions of a Pennsylvania abortion law, including one requiring that a married woman notify her husband before she could obtain an abortion. Then-appeals court Judge Alito ruled on the case before it went to the Supreme Court, and he wrote that provision should be allowed. Nancy Northup of the pro-choice Center for Reproductive Rights says Alito's dissent in that case came despite a lengthy record from the trial court that found serious risks to pregnant women in troubled marriages.
Ms. NANCY NORTHUP (Center for Reproductive Rights): The majority opinion in that case had gone through all of the difficulties that women who are going to face physical, psychological abuse, economic vulnerability, exposure to those harms. Judge Alito disregarded that factual evidence and found that this law should stand.
ROVNER: Pro-lifers not surprisingly are happy with Alito's dissent in Casey, but ironically, they're also reassured by a case in which Alito helped strike down New Jersey's ban on so-called partial birth abortion. That case, Planned Parenthood vs. Farmer, came in 2000 just weeks after the Supreme Court struck down a similar Nebraska law. The majority of his fellow appeals court judges in the case ruled against the law, but for substantive reasons. Alito, on the other hand, agreed that the law should fall, but for the sole reason that the Supreme Court said it should. And while they disagreed with the outcome, that's the kind of reasoning pro-lifers want to see. Cathy Cleaver Ruse is a senior fellow for legal studies at the Family Research Council.
Ms. CATHY CLEAVER RUSE (Family Research Council): So in a sense, here we have Judge Alito showing more restraint than the majority judges by saying, `Look, we need to follow Supreme Court precedent. It's not proper for us to go off on our own and write our own opinion about the law, but let's follow the relevant precedent.'
ROVNER: Cleaver Ruse says she's not that worried that in respecting precedent, a Justice Alito might feel compelled to allow previous abortion rights rulings to stand. Even without directly overturning Roe v. Wade, she says, the right to abortion could be further constricted as it was in Planned Parenthood vs. Casey.
Ms. CLEAVER RUSE: So there may other cases that would further modify Roe v. Wade, and Judge Alito, from all we can understand, would be certainly open to hearing logical arguments about why Roe v. Wade might be further modified.
ROVNER: And that's just what worries abortion rights backers like Nancy Northup.
Ms. NORTHUP: You can leave Planned Parenthood vs. Casey and Roe vs. Wade on the books, but you can completely gut it, which would mean that just anything that is short of just an outright criminalization of abortion from the earliest weeks might be able to stand. That's what the real concern is.
ROVNER: Should Alito be confirmed, that speculation could be tested quickly. The federal Partial-Birth Abortion Ban Act is working its way toward the Supreme Court. In the earlier case on the subject, the deciding vote to strike the state law down came from Sandra Day O'Connor, the justice Alito would replace. Julie Rovner, NPR News, Washington.
BLOCK: You can read some of Samuel Alito's rulings on abortion at our Web site, npr.org.
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