Judiciary Committee, Minority Staff
Contact: Tracy Schmaler, 224-7703
See this document at: http://democrats.senate.gov/judiciarycommitteesupremecourt
Fact Check: Judge Alito on Privacy and Reproductive Rights
NOW:
Judge Alito said today, "Senator, I do agree that the Constitution protects a right to privacy." [1/10/06]
THEN:
However, in professional writings throughout his career, Judge Alito has clearly expresses his legal views on the issue of a woman's right to choose. Judge Alito's record on privacy and reproductive rights raises concerns that he would rule in favor of overturning Roe v. Wade were he elevated to the Supreme Court.
Judge Alito Said He Believes that the Constitution Does Not Protect the Right to an Abortion.
In his 1985 application to become a deputy assistant to Attorney General Edwin I. Meese III, Alito wrote that, "I personally believe very strongly" in the government's legal position that "the Constitution does not protect a right to an abortion."
"It has been an honor and source of personal satisfaction for me to serve in the office of the Solicitor General during President Reagan's administration and to help to advance legal positions in which I personally believe very strongly. I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion." [Samuel A. Alito, Attachment to PPO Non-Career Appointment Form (Nov. 15, 1985]
As a Lawyer in the Reagan Administration, Judge Alito Devised a Calculated Strategy for Chipping Away at Roe v. Wade.
In June 1985, while working in the Solicitor General's office, Alito wrote a 17-page memo offering a strategy for using the government's brief in the case of Thornburgh v. American College of Obstetricians and Gynecologists as an "opportunity to advance the goals of bringing about the eventual overruling of Roe v. Wade and, in the meantime, of mitigating its effects." The memo argued in favor of upholding restrictions on abortion. [Memorandum from Samuel A. Alito, Assistant to the Solicitor General, to Charles Fried, Acting Solicitor General, re "Thornburgh v. American College of Obstetricians & Gynecologists No. 84-495; Diamond .v. Charles, No. 84-379," at 8 (June 3, 1985)]
Alito helped write the Solicitor General's brief in the case which argued, as Alito had recommended in his memo, that the Court should sustain a series of burdens on the right to choose. In a 5-person majority opinion, the Supreme Court rejected these arguments. Yet, Alito was "particularly proud," as reflected in his 1985 job application, of his work to turn the Supreme Court against the right to an abortion.
As a Judge, Alito Upheld Extreme Restrictions on a Woman's Right to Choose.
As a judge, Alito supported the position he had articulated as an advocate, that the effects of Roe could be mitigated by upholding severe restrictions on its scope. Judge Alito was the sole vote to uphold a Pennsylvania law requiring women to notify their husbands before obtaining an abortion. In doing so, Judge Alito:
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Failed to distinguish requiring a teen to notify her parents from requiring an adult woman to notify her husband;
- Discounted evidence of the harm a spousal notification requirement would cause to women and focused only on the women who would not be affected by the dangers of the requirement;
- Showed more concern for a husband's interest than for the liberty of the woman.
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When the case, Planned Parenthood v. Casey, reached the Supreme Court, Justice O'Connor, in the majority opinion, rejected the position Judge Alito advocated, writing that the spousal notification requirement "does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle. We must not blind ourselves to the fact that the significant number of women who fear for their safety and the safety of their children are likely to be deterred from procuring an abortion as surely as if the Commonwealth had outlawed abortion in all cases."
Justice O'Connor further wrote that this requirement "embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution." [Planned Parenthood v. Casey, 505 U.S. 833 (1992)] In Casey, four Justices in their dissent felt that the Constitution does not protect a woman's right to choose and would have upheld state law.
Judge Alito's Record on Reproductive Rights in Not Mixed
Instead of joining the Third Circuit majority opinion striking down an unconstitutional abortion ban, Judge Alito wrote a separate concurrence that acknowledged Supreme Court precedent, but avoided demonstrating agreement with the core tenets of Roe v. Wade. [Planned Parenthood of Central New Jersey v. Farmer, 220 F.3d 127 (3d Cir. 2000)]
Real Life Consequences:
The contrast between Judge Alito and Justice O'Connor is stark. While Judge Alito has worked to undermine the right to choose, Justice O'Connor co-authored the Supreme Court's reaffirmation of the essential holding of Roe v. Wade. Operation Rescue said of Alito's nomination: "Roe's days are numbered . . . We are trusting that we are now on the fast-track to derailing Roe v. Wade as the law of the land." [Press Release, Operation Rescue, Bush Nominates Alito: OR says, "Roe's Days Are Numbered" (Oct. 31, 2005)]
The majority of Americans do not want Roe v. Wade overturned or a Supreme Court Justice who would vote to make abortion illegal. 66% of Americans believe that Roe v. Wade should not be overturned. [NBC News/Wall Street Journal Poll conducted December 9-12, 2005]
Nearly 70% of Americans would oppose Judge Alito's confirmation if they thought he would vote to make abortion illegal. [Harris Interactive poll conducted December 8-14, 2005; Wall Street Journal online]
Without the protections of Roe, physicians, nurses and women will again be at risk of receiving prison sentences under state laws. Prior to the Roe decision abortions were illegal in most states and in some cases the criminal penalties included life imprisonment. Around 5,000 women per year died from complications arising from illegal pre-Roe abortions. Exact numbers are not known in part because for a variety of reasons death certificates often did not cite illegal abortion as the cause of the woman's fatal infection or injury. Wealthier women often avoided these criminal laws by seeking abortions outside the United States.