How Do We Know Alito Would Overturn Roe?

Washington’s conservative and pro-life activists are almost uniformly pleased with the nomination of Judge Samuel Alito as the replacement for retiring Supreme Court Justice Sandra Day O’Connor.  Alito has a long record of intelligent, conservative, by-the-text interpretation of the Constitution and law that promises an excellent Supreme Court justice.

Yet a few pro-lifers point to cases in which Alito did not rule in a pro-life direction.  I believe their criticism rests on a fundamental misunderstanding of judges’ proper role.

Alito, nicknamed “Scalito” for the similarity between his judicial philosophy and that of current Supreme Court Justice Antonin Scalia, is Catholic and married with two children.  He would be the fifth Catholic on the Supreme Court, putting Catholics in the majority on the court for the first time—though one of those Catholics, Justice Anthony Kennedy, issues rulings that have nothing to do with the Catholic faith, the Constitution, or anything other than the opinions of the fashionable elite people that his weak mind finds itself among.

Alito’s mother Rose told the Associated Press, “Of course he’s against abortion.”  That’s a positive sign, but he could be one of those personally-opposed-but-type Catholics such as Sen. John Kerry.  And some people who know Alito are saying he has such respect for precedent that he will not agree to overturn Roe v. Wade.  The same could still be true of new Chief Justice John Roberts.

So how do we know Alito would rule to overturn Roe and other precedents of grave concern to pro-family Americans, such as those severely restricting religious freedom?  The fact is, we don’t.  As far as is known publicly, Alito has never promised to overturn Roe, and he certainly won’t between now and the Senate vote on his confirmation expected January 20.

Disturbingly, the New York Times reports that Alito told far-left Sen. Dick Durbin (D.-Ill.) that the judicially depraved William Brennan was one of his favorite Supreme Court justices.  Let’s hope Alito meant he liked Brennan’s personality.

What we do know is that Alito has had a strong, career-long reputation for strict interpretation of the Constitution and law, and that conservative legal experts agree that he has abided by that philosophy in his 15 years as a federal appeals court judge.  He is a former prosecutor who worked for conservative, pro-life President Ronald Reagan.  For at least 15 years, he has been a member of the Federalist Society, a conservative-libertarian lawyers’ group that advocates interpreting the Constitution rather than making it up.

It is highly unlikely that Alito would use a secret decoder ring to find a right to abortion embedded in the Constitution as the Supreme Court apparently did in 1973.  The danger with Alito, as with Roberts, is that he would accept a long-standing precedent even though it was wrongly decided in the first place.  But Alito knows that Supreme Court justices are called upon to reverse precedents from time to time, and everything about his background and philosophy indicates that he will do so.

Alito has made four especially controversial rulings on abortion during his time on the 3rd Circuit Court of Appeals.  Alito’s pro-life skeptics note that three went against life.  They do not understand that judges are not supposed to make policy decisions, but merely apply the law.  This is especially true of lower court judges, who must follow the precedents of higher courts.  Alito not only should not have inserted pro-life views into his rulings beyond what the law allows, but could not have successfully done so: In its fanaticism for abortion on demand, the U.S. Supreme Court has long nullified ASAP any pro-life legal efforts anywhere in America.  Any clear-cut deviation from Roe v. Wade by Alito or any other judge probably would not have saved any unborn children, and would only have served to expose him as a pro-life judicial activist.

When he thought he could allow restrictions on abortion, Alito did so.  He dissented in his appeals court’s 1991 decision in Planned Parenthood v. Casey.  He argued that a legal provision requiring women to notify their husbands before obtaining an abortion was not an “undue burden” on the right to abortion under Roe’s definition, especially since a woman who claimed she feared abuse from her husband was exempted from the requirement.  This could be called a pro-life decision, but it was one in which Alito tried to stay within the Roe framework.

In Elizabeth Blackwell Health Center for Women v. Knoll (1995), Alito decided that the federal government could override a Pennsylvania law that required women who wanted Medicaid to pay for a rape or incest abortion to report the crime to the police.  This case did not revolve around abortion per se, but around the authority of the federal government, which was paying for the abortions in these instances.  Alito decided that the feds, who ultimately administer Medicaid and were reimbursing the states for these abortions, had the final say here.

In Alexander v. Whitman (1997), Alito decided that parents cannot sue for damages due to wrongful death of an unborn child as they could for a born child.  The unfortunate reality is that unborn children are not persons worthy of protection by the Constitution as the Supreme Court has interpreted the document, so Alito’s decision made sense.

In Planned Parenthood v. Farmer (2000), Alito concurred that New Jersey’s ban on partial-birth abortion violated Supreme Court precedent.

Interestingly, he did not join the court’s majority opinion in this case, even though he agreed with its decision, but wrote his own concurring opinion emphasizing that he agreed with striking down the law only because of Supreme Court precedent striking down a similar Nebraska law.  He criticized his court majority’s opinion for trying to justify its decision using methods other than citing Supreme Court precedent.  “I do not join Judge Barry’s opinion, which was never necessary and is now obsolete,” wrote Alito.  “That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court’s decision in Stenberg v. Carhart, 2000 (U.S. June 28, 2000).  Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.”

Some pro-lifers may not accept these explanations.  They want all judges to forbid abortion every time they can.  Such action would challenge our ordered, hierarchical legal system and undermine the argument that pro-family, pro-life Americans have been making for decades: That judges should not impose their moral beliefs as the Supreme Court did in Roe v. Wade, but leave such decisions to the other two branches of government.

In the real world, while pro-life jurists are earning their stripes, they have to work within the system—and if every judge made up the law as he saw fit, we would have chaos.

One may object that Alito had a moral responsibility to try to prevent every abortion he could, because every abortion is an intrinsically evil murder, even if the Supreme Court would have immediately overruled him.

Let us note that refraining from the commission of an intrinsic evil is always required, but preventing others from committing evil is not.

Should American Catholic judges refuse to grant divorces?  Should they imprison those who publicly spread heresy, which St. Thomas Aquinas argued is a worse sin than murder because it kills the soul?  It seems they should not, at least not until the legislature outlaws these acts.

Given what we know, Alito appears a fine choice for the Supreme Court.

Pro-lifers should thank President Bush for his nomination.