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NAF TOOK A STAND/JUDICIAL NOMINEES/SAMUEL A. ALITO/The National Abortion Federation opposes the nomination of Samuel A. Alito to the Supreme Court


> Facts about Samuel A. Alito
> See the new TV ad released January 13, 2006, by the Coalition for a Fair & Independent Judiciary, of which NAF is a member. Quicktime (.mov, 1.2 MB) or Windows Media (.wmv, 1.7 MB) format

The National Abortion Federation opposes the nomination of Samuel A. Alito to be an associate justice of the United States Supreme Court. This nomination fulfills President Bush's promise to the radical right to nominate a conservative justice in the mold of Justice Antonin Scalia. If confirmed, Alito would shift the court to the right and would be a vote to overturn Roe v. Wade, thereby jeopardizing women's lives and health.

Alito has made no secret of his opposition to abortion and a woman's constitutional right to privacy. From the beginning of his career, Alito maintained that Constitutional protections women rely on are fallacies. For example, in his 1985 application for deputy assistant attorney general, Alito stated,

I am particularly proud of my contributions in recent cases in which the government has argued in the Supreme Court that...the Constitution does not protect a right to an abortion.1

Although the Bush administration and their far right-wing allies claim that the application is twenty years old and not reflective of how Alito would rule on a case concerning abortion today, the President has remarked that his other Supreme Court nominees' positions will remain steadfast and are not going to change over time. The President's assurances of consistency offer little comfort that Alito would uphold Roe v. Wade and a woman's constitutional right to privacy. Alito has tried to downplay what he wrote in the application by stating that he was an advocate applying for a job and that his personal views will not affect how he will rule on a case that comes before him. However, he was not merely expressing his personal views in the application. Instead, Alito was offering his legal philosophy and legal opinion that the Constitution does not protect the right to choose.

Shortly after Alito went to work in the Department of Justice, he worked on the case that he referred to in his application. The Reagan administration filed an amicus brief in the case, Thornburgh v. American College of Obstetricians and Gynecologists, which specifically argued that Roe v. Wade should be overturned. In Thornburgh, the Third Circuit held that seven provisions of Pennsylvania's Abortion Control Act were unconstitutional including burdensome requirements on abortion providers and their patients. The Supreme Court affirmed the Third Circuit, strengthening the precedent set in Roe v. Wade and the premise that "the Constitution embodies a promise that a certain sphere of individual liberty will be kept largely beyond the reach of government."2 The administration's amicus brief stated that Roe, was "so far flawed...[the] Court should overrule it and return the law to the condition in which it was before that case was decided."3

The Thornburgh case was not assigned to Alito but that did not stop him from proactively offering to contribute to drafting the brief. Alito's research memo, which was recently released to the public, and which was deemed "sensitive material" at the time by Alito's colleague, outlined a specific and detailed strategy for eviscerating Roe. Although Alito suggested that he did not "seriously believe[] that the Court [was] about to overrule Roe v. Wade, he explained that the Court would not have granted cert in the case if it did not want to "cut back" on Roe.4 Alito further called the brief an opportunity to "advance the goals of bringing about the eventual overruling of Roe v. Wade...[but]...in the meantime, of mitigating its effects."5 In the memo, Alito noted that the brief would be an opportunity to "provide greater recognition of the states' interest in protecting the unborn throughout pregnancy or to dispel in part the mystical faith in the attending physician that supports Roe and the subsequent cases."6 Alito concluded by stating that a back-door assault on Roe was preferable to a "frontal assault" on Roe because,

It has most of the advantages of a brief devoted to the overruling of Roe v. Wade: it makes our position clear, does not even tacitly concede Roe's legitimacy, and signals that we regard the question as live and open. At the same time, it is free of many of the disadvantages that would accompany a major effort to overturn Roe.7

Alito's own co-author called his contribution "instrumental," affirming that Alito did "the research, the thinking, as well as the legal research and analysis."8

Only six years after his stint as deputy assistant attorney general, while serving on the Philadelphia-based U.S. Court of Appeals for the Third Circuit, Judge Alito supported restricting access to abortion and limiting the right to privacy. In the 1991 case Planned Parenthood of Southeastern Pennsylvania v. Casey,9 Alito would have upheld a provision requiring women to notify their husbands prior to having an abortion. Justice Sandra Day O'Connor, whose seat he is nominated to fill, voted to strike down that provision.10 She joined the plurality opinion upholding Roe and stated that the spousal notice requirement harkened back to the days when "a woman had no legal existence separate from her husband." The opinion concluded that "[t]he women most affected by [the] law - those who most reasonably fear[ed] the consequences of notifying their husbands that they [were] pregnant - [were] in the gravest danger."11

Alito's hostility toward abortion continued in the 2000 case Planned Parenthood of Central New Jersey v. Farmer,12 where he did not join the majority opinion in striking down a ban on abortion that lacked an exception to protect women's health. Instead, he wrote his own opinion making clear he joined the decision only because he was required to follow the Supreme Court precedent of Stenberg v. Carhart (Carhart I),13 a case he no longer will be required to follow as a Supreme Court justice.

Instead of uniting and strengthening the country by nominating a moderate, consensus candidate to the Supreme Court, President Bush chose to bow to the pressures and demands of his far-right base and nominate Samuel Alito, a jurist whose judicial philosophy is clearly out of the mainstream. The fact that the President chose such an extreme candidate to replace Justice O'Connor, who cast the swing vote in many reproductive rights cases, is unacceptable. Americans will not tolerate a return to the days of back-alley abortions when a woman had to sacrifice her life and health to terminate an unwanted pregnancy.

The most recent revelations from Samuel Alito's past solidify his hostility toward Roe v. Wade and reproductive freedom. For these reasons, the National Abortion Federation calls on the United States Senate to defeat the nomination of Samuel Alito to the United States Supreme Court.

References

  1. Application for Deputy Assistant Attorney General November 18, 1985. PPO Non-Career Appointment form. Presidential Office of Personnel, Office of Records, Reagan Library.
  2. Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 772 (1986).
  3. Brief for the Unites States as Amicus Curiae in Support of Appellants, Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986) (Nos. 84-495, 84-1379).
  4. Samuel A. Alito. Memo to the Solicitor General, re: Thornburgh v. American College of Obstetricians and Gynecologists. Reproduced from the holdings of the National Archives and Records Administration, Record Group 60, Department of Justice, Files of the Deputy Assistant Attorney General, Charles Cooper, 1981-1985, Accession #060-89-216, Box 20.
  5. Id.
  6. Id.
  7. Id.
  8. Michael Kranish. "A Co-Author Says Alito was Instrumental in Roe v. Wade Brief." The Boston Globe. November 16, 2005.
  9. 947 F.2d 682 (3d Cir. 1991).
  10. 505 U.S. 833 (1992).
  11. Id at 897-99.
  12. 220 F.3d 127 (3d Cir. 2000).
  13. 530 U.S. 914 (2000).

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