Abortion Opponents In Alito's Home State Withhold Support
Groups believe several rulings 'are not pro-life'
When federal appeals court judge Samuel Alito was nominated to the U.S. Supreme Court on Monday, he was quickly labeled an "anti-choice jurist" who would jeopardize a woman's right to an abortion. National groups such as Planned Parenthood, NARAL Pro-Choice America and People for the American Way mobilized to block his confirmation.
But abortion opponents in his home state of New Jersey are not rushing to endorse his confirmation, and at least one actively opposes it.
The heads of both New Jersey Right to Life and the League of American Families said they are troubled by Alito's 2000 ruling striking down the state's ban on partial-birth abortion.
Richard Collier, the lawyer who unsuccessfully defended that law, said Alito has shown he is not "committed to the cause of life." Collier said he has reviewed the four cases to come before Alito in which it was an issue and his rulings in three of them "are not pro-life."
"He's been tested four times and he's taken three dives as far as I'm concerned," Collier said. "That's not a record to be proud of."
Meanwhile, an Associated Press-Ipsos poll found evangelicals, Republicans and the wealthy were more hesitant to support Alito than they were to support John Roberts, who was confirmed to succeed the late Chief Justice William Rehnquist. Overall backing for Alito was closer to the level of early support for the failed nomination of White House counsel Harriet Miers.
The criticism Alito is getting from both sides of the abortion debate may say more about how it has polarized America than it does about the nominee. True believers on both sides of the issue are not willing to settle for an honest umpire; they want nothing less than a champion for their cause.
What is telling is the argument each side makes. They give Alito no credit for ruling in their favor while faulting him for what he might have done, but did not.
Elliot Mincberg, senior vice president and legal director of People For the American Way, gives Alito no praise for his rulings upholding abortion rights.
"He clearly was bound by precedent," Mincberg said. "That simply says Alito, as a lower court judge, is not going to defy precedent."
Collier, who also heads a Morristown-based legal clinic that aids abortion opponents, gives Alito no break for following the U.S. Supreme Court's orders. The high court guaranteed a woman's right to abortion with its landmark ruling in the 1973 case of Roe vs. Wade.
"You can follow precedent and still make a statement, and I have not heard any statement being made," Collier said. "I would expect someone with Judge Alito's intellect to use these cases to lay the foundation for overturning Roe or perhaps limiting Roe. I didn't see any of that."
Marie Tasy, director of public and legislative affairs for New Jersey Right to Life, has similar concerns about Alito.
"He's never said how he felt about Roe v. Wade," Tasy said, adding that Alito could have stated his views -- as some other judges have -- but did not.
"There's a big question mark here," Tasy said, adding that her group is scrutinizing Alito's record while deciding whether to endorse him. "I wouldn't say it's a given," she said.
John Tomicki, executive director of the League of American Families, said, "We have concerns about some of his reasoning in Planned Parenthood v. Farmer," his 2000 ruling on partial-birth abortion.
"It's not an opposition; it's a reservation and a concern," Tomicki said. "Right now, we're being cautious and have not fully formed our opinion."
Those who call Alito a threat to abortion rights point to his much-discussed dissent in a 1991 ruling on a Pennsylvania requirement that wives planning an abortion first tell their husbands. In a 2-1 decision, the U.S. Court of Appeals for the Third Circuit ruled it unconstitutional, with Alito voting to uphold it. The U.S. Supreme Court, in a 5-4 ruling, agreed the requirement unduly burdened a woman's right to have an abortion.
Nine years later, Alito struck down a 1997 New Jersey law banning partial-birth abortion, but did so on narrower grounds than his two fellow judges.
The appeals court had already heard arguments on New Jersey's law when the U.S. Supreme Court agreed to review an identical partial-birth abortion ban from Nebraska. The high court struck it down, 5-4, in June 2000.
A month later, federal Appeals Court Judge Maryanne Trump Barry released her ruling striking down New Jersey's law. Her opinion lambasted New Jersey lawmakers for passing a law "so vague as to encompass almost all forms of abortion." Barry said there was "simply no excuse" for their failure to be precise.
Alito agreed the law was unconstitutional under the U.S. Supreme Court's ruling in the Nebraska case, but argued there was no need to say more. The ruling from the top court made any further discussion moot. Enough said.
"I do not join Judge Barry's opinion, which was never necessary and is now obsolete," Alito wrote.
Mincberg said Alito "went out of his way not to join in that opinion," raising doubts about his commitment to upholding abortion rights.
Collier said, "If he were looking to distance himself, he would have gone one step further and sent it (the case) to the New Jersey Supreme Court."
Collier had asked the federal judges to do just that so the state court could rule it covered only one particularly gruesome procedure and save it from being unconstitutional. Alito's refusal, he said, was "just wrong. It's wrong on federalism grounds."
Alito also upheld abortion rights in 1995, when, in a 2-1 ruling, he cast the deciding vote striking down restrictions on Pennsylvania Medicaid-funded abortions that violated federal regulations.
In 1997, in a case that posed the question of whether a fetus has legal rights, he upheld a New Jersey law that does not allow parents to sue for the wrongful death of a stillborn child.
A number of conservative groups with a focus that goes beyond opposition to abortion, such as Concerned Women for America and the Family Research Council, are enthusiastically rallying support for Alito.
Collier said he may represent a minority viewpoint within the anti-abortion movement, but it has "been burned before." He said when Justices Sandra Day O'Connor, David Souter and Anthony Kennedy were nominated, "there were assurances given, 'trust me'-type things, that these were pro-life nominees. They certainly didn't turn out to be."
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Posted by Editor at November 7, 2005 08:18 AM
