Abortion Advocates Worried by Alito Nomination

By Nathan Burchfiel | July 7, 2008 | 8:05 PM EDT


(CNSNews.com) - The pro-abortion group Planned Parenthood announced its disappointment over President Bush's nomination of Judge Samuel Alito to replace retiring Supreme Court Justice Sandra Day O'Connor. The group has reason to be upset with Alito.

The case of Planned Parenthood v. Casey is likely to become the focal point of pro-abortion criticism of Alito. In 1991, Alito issued the lone dissenting opinion of the U.S. Third Circuit Court of Appeals in Casey, a case that challenged the constitutionality of a Pennsylvania law requiring women to notify their husbands if they were seeking an abortion.

The court struck down the law and the Supreme Court upheld its decision , but Alito disagreed with his colleagues, defending "a husband's interest in the fetus in a sufficient percentage of the affected cases to justify the enactment of this measure."

He wrote that the Pennsylvania legislature, "could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems, such as economic constraints, future plans, or husbands' previously expressed opposition that may be obviated by discussion prior to the abortion."

In a release Monday, Planned Parenthood interim president Karen Pearl said Alito's opinion shows "callous disregard of battered women who would be affected by the statute." She said if he is confirmed, Alito "would undermine basic reproductive rights" and called him a "conservative hardliner."

If he is approved by the Senate, Alito will replace O'Connor, whom he cited dozens of times in his dissenting opinion in Casey. "Justice O'Connor found that no undue burden was imposed by a law requiring notice to both parents or judicial authorization before a minor could obtain an abortion," Alito wrote, referencing the 1990 case, Hodgson v. Minnesota, that questioned parental notification.

Much of Alito's opinion in Casey centered on the idea of "undue burden." He wrote of another O'Connor opinion, in which she "made clear that a party challenging the constitutionality of a statute must bear the burden of proving that the law imposes an undue burden."

He argued that Planned Parenthood did not prove the spousal notification clause of the Pennsylvania Abortion Control Act of 1982 caused undue burden on women.

When the case came before the Supreme Court, O'Connor wrote the plurality opinion that found the spousal notification clause unconstitutional. O'Connor wrote that the requirement to notify the husband "constitutes an undue burden, and is therefore invalid."

If Alito is confirmed before Nov. 30, he will be on the bench to hear the case of Ayotte v. Planned Parenthood. Ayotte questions the constitutionality of parental notification laws in New Hampshire.

In 1990, O'Connor cast the deciding vote to strike down parental notification laws in Hodgson v. Minnesota, and her departure could tip the balance of the Court to begin reversing those decisions, a possibility that worries Planned Parenthood.

"The Supreme Court's decision to hear Ayotte v. Planned Parenthood at the end of November spotlights the urgency of the threat to reproductive freedom," the group's release stated.

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