As Appellate Judge, Alito Ruled on Key Abortion Case

Oct. 31, 2005 — -- As a judge on the 3rd U.S. Circuit Court of Appeals, Samuel Alito ruled on a case that went on to become one of the U.S. Supreme Court's most significant decisions on abortion rights since Roe vs. Wade.

In Planned Parenthood vs. Casey, the Third Circuit voted in 1991 to uphold a Pennsylvania law that included several provisions regulating abortions, including a 24-hour waiting period and a parental consent requirement for minors seeking abortions. The court, however, struck down a provision that required married women to notify their spouses of their intent to get an abortion.

Alito dissented on the spousal notification point, arguing that the plaintiffs did not establish that such notification created an "undue burden" on women seeking abortions. In his dissent, Alito repeatedly noted that opponents of the law did not present a clear picture of how many women would be adversely affected by the provision, and in what way.

"Clearly the plaintiffs did not substantiate the impact of [the law] with the degree of analytical rigor that should be demanded before striking down a state statute," he wrote.

Alito said he did not read the spousal notification requirement as creating either an "absolute obstacle" to women seeking an abortion, or giving their husbands "veto power." Such proof, he wrote, would require more than presentment of a "worst case analysis" or speculation that the provision would impose an undue burden "under some conceivable set of circumstances."

He noted he was persuaded by lower court findings that the "vast majority" of married women already tell their husbands of their plans to seek an abortion, and that most abortions are obtained by unmarried women.

He also highlighted exceptions to the law's notification exceptions, especially for women who believe notification would result in bodily injury by the husband.

"I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.

"Whether the legislature's approach represents sound public policy is not a question for us to decide," he says. "Our task here is simply to decide whether [the law] meets constitutional standards. … [I]t seems clear that an undue burden has not been established."

When Casey went to the Supreme Court the next year, the justices used it to reaffirm Roe. Justice Sandra Day O'Connor, whom Alito would replace if confirmed, was an architect of the decision that struck down the Pennsylvania's spousal notification requirement.