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Sam Alito's decades-long project

Alito’s antipathy to abortion rights is longstanding and well documented. But his own involvement in a landmark abortion rights case is often forgotten.


By now, the leaked draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey, the 1992 case that reaffirmed and refined Roe, has nearly broken the Internet. (That this legal bombshell dropped as a human bombshell, Kim Kardashian, strolled the red carpet in the actual “nudest dress” made famous by Marilyn Monroe just added to the cognitive dissonance.)

Yet for as often as this law nerd has read Casey, I had never digested before last week that Justice Samuel Alito, the draft’s author, played a central role in Casey itself.

That’s not because Alito’s stance on abortion was ambiguous or unknown. On the contrary, Alito’s antipathy to abortion rights was thoroughly probed at his 2006 confirmation hearings—and dates back at least as far as 1985. As a lawyer in the Solicitor General’s office, he authored a memo outlining his recommended approach in Thornburgh v. American College of Obstetricians and Gynecologists, a challenge to a cluster of Pennsylvania abortion restrictions. While urging that the Reagan Administration should not mount “a frontal assault” on Roe, Alito nonetheless identified an “opportunity to advance the goals of bringing about the eventual overruling of Roe” and “nudge the Court toward . . . greater recognition of the states’ interest in protecting the unborn throughout pregnancy.” 

Six years later, as a fairly-new appellate judge, Alito was confronted with another Pennsylvania statute curtailing abortion. While concurring with most of the panel’s decision, he dissented from its holding that Pennsylvania’s spousal notification law was unconstitutional. Instead, concluding that the obligation to notify one’s spouse did not impose an undue burden – a standard he interpreted to mean an all-out ban or “severe limitations” – on married Pennsylvania women, he then found that the provision was lawful because it was “‘rationally related’ to a ‘legitimate’ state interest.” Specifically, Alito observed that “a husband has a ‘legitimate’ interest in the welfare of a fetus he has conceived with his wife.” And despite concerns that the handful of exceptions to the spousal notification statute were both too narrow and unlikely to be utilized by battered women, Alito was unconvinced; the plaintiffs, he said, failed to prove how many women would actually suffer. Accordingly, he reasoned, it was entirely rational for Pennsylvania lawmakers to have “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 the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.” That case, Planned Parenthood v. Casey, famously was appealed to the Supreme Court, where it reaffirmed and refined Roe—and became the second of the Court’s two guideposts on abortion rights as understood today.

Yet as Jeremy Roebuck discussed in the Philadelphia Inquirer last week, Alito was not on the winning side in Casey. In fact, although Alito and his fellow Third Circuit judges correctly anticipated the Court’s application of an “undue burden” standard to determine which abortion restrictions could be lawful, Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, flatly dismissed Alito’s interpretation of that standard—and his characterization of Pennsylvania’s spousal notification provision:

In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from [the spousal] notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends. These methods of psychological abuse may act as even more of a deterrent to notification than the possibility of physical violence, but women who are the victims of the abuse are not exempt from [the spousal] notification requirement [either].

As Roebuck notes, Casey was among her most heralded achievements when Justice O’Connor retired from the bench in 2006. And although then-President George W. Bush initially nominated Harriet Miers, his then-White House Counsel, to replace her, Miers withdrew within weeks, in part due to her relative inexperience but more so because of vociferous opposition from anti-abortion conservatives. Days later, Bush announced a more a more reliable anti-abortion nominee: then-Judge Alito.

While Justice Alito’s decades-long history with abortion cases are not well remembered today, it was a central subject at his 2006 confirmation hearings. Indeed, recalling Alito’s mid-'80s memo to the Solicitor General about Thornburgh, as well as his Casey opinion, now-Senate Majority Leader Chuck Schumer told Alito in 2006: “We can only conclude that if the question came before you, it is very likely that you would vote to overrule Roe v. Wade.”

The reproductive justice movement no doubt wants Chuck Schumer to succeed these days. But where Alito is concerned, they certainly wish he had been wrong sixteen years ago. Schumer and other Senate Judiciary Democrats knew that in Alito’s hands, abortion would be endangered — and unless votes change over the next few weeks, the costs of Schumer’s prediction coming true could not be higher.