Is SCOTUS nominee Samuel Alito Pro Abortion?

Find Law ^ | 10.31.05

[Coleus]

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ALITO, Circuit Judge, concurring in the judgment.

I do not join Judge Barry's opinion, which was never necessary and is now obsolete. 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 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent. I write briefly to explain why Carhart requires us to affirm the decision of the District Court in this case. This is an appeal by the New Jersey State Legislature from a decision of the United
States District Court for the District of New Jersey holding the New Jersey Partial-Birth Abortion Ban Act of 1997, 2A:65A-5 et seq., unconstitutional and permanently enjoining enforcement of the Act. Planned Parenthood of Central New Jersey v. Verniero, 41 F. Supp. 2nd 478 (D.N.J. 1998). The New Jersey statute closely resembles statutes enacted in recent years in many other states.

On January 14, 2000, the Supreme Court granted certiorari to review the decision in Carhart v. Stenberg, 192 F.3d 1142 (8th Cir. 1999), cert. granted, 120 S.Ct. 865 (2000), which presented the question of the constitutionality of a similar Nebraska statute. The Supreme Court recently held that the Nebraska statute is unconstitutional. Stenberg v. Carhart, 2000 WL 825889
(U.S. June 28, 2000).

The Court based its decision on two grounds. First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother. See 2000 WL 825889, *9-*14. Second, in Part II-B of its opinion, the Court held that the Nebraska statute is unconstitutional because it imposes an undue burden on a woman's ability to choose the method most commonly used for second trimester abortions, the "dilation and evacuation" (D & E) method. See 2000 WL 825889, *14-*18.

Under Carhart, the decision of the District Court must be affirmed. First, the New Jersey statute, like its Nebraska counterpart, lacks an exception for the preservation of the health of the mother. Without such an exception, the New
Jersey statute is irreconcilable with Part II-A of Carhart.

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Second, the Supreme Court's holding in Part II-B of Carhart is also applicable here. As noted, in that portion of its opinion, the Court held that the Nebraska statute applied, not only to the "dilation and extraction" or D & X procedure, but also to the more commonly used D & E procedure. The wording of the relevant provisions of the Nebraska statute is nearly identical to that of the New
Jersey statute. Thus, the Supreme Court's holding in Part II-B of its opinion in Carhart must be regarded as controlling in this case.

In light of this interpretation of the New Jersey statute, the Legislature's argument that the plaintiffs lack standing must fail. As noted above, the New Jersey statute must be interpreted, in light of Carhart, as applying to the D & E
procedure, and the plaintiff physicians in this case perform that form of abortion. The Legislature's argument that this case is not ripe because the New Jersey statute has not been authoritatively interpreted by the state courts or state
enforcement officials must also fail. In view of the interpretation in Carhart, there is no reason to wait for interpretation by state officials or judges.

In a post-Carhart filing, the New Jersey Legislature has urged us to certify questions concerning the interpretation of the New Jersey statute to the state supreme court. In Carhart, however, the Supreme Court of the United States
turned down a similar request for certification by the Attorney General of Nebraska. 2000 WL 825889, *18. The decision of the Supreme Court of the United States to deny certification in Carhart must be regarded as controlling
here, both with respect to the Legislature's request for certification and with respect to its closely related argument that the District Court erred in refusing to abstain pursuant to Railroad Commission v. Pullman Co. , 312 U.S.
496 (1941).

In conclusion, Carhart compels affirmance of the decision of the District Court.

A True Copy:
Teste: 

       Clerk of the United States Court of Appeals
       for the Third Circuit 

                                43

[Coleus]

Looks like on July 26, 2000, the good judge wasn't producing enough testosterone for that day and instead of dissenting with Judge Mary Ann Trump Barry's decision; (Donald Trump's sister)  he filed a whole one-page concurring opinion, agreeing that the New Jersey statute is unconstitutional. 

That must have really hurt to write that whole ONE page being that he is such an Ivy-League legal scholar and a pro-life Catholic.  He sure knew how to express his pro-life views, LOL.

The Health of the Mother crap is used frequently by the pro-abortion feminists who claim a mother can die the day before she is supposed to give birth and that it's necessary to have the "health" exclusion.   Women, if they do die,  mostly die during childbirth.  In this day of age of modern medicine and sonograms, most women who have any problems usually undergo a planned Caesarian Section or abort in the first or second trimester.  This health of the mother clause is just an "open door" to continue to allow the Partial Birth Abortion procedure to be carried out in abortion mills since the butchers can use a mental health reason (let's say mild depression) in order to justify the baby killing.

So, thanks to Sam Alito, children in NJ are still having their skulls cracked open in the birth canal and are being murdered. 

You think if he were so rabidly pro life he would have written a dissent and possibly suggested  that the case be kicked back to the states, remember the 10th amendment, and let the NJ legislature write another bill.  Remember the unalienable right to life and the 5th and 14th amendments to the constitution?

I always thought that if the people of the state of NJ elected a legislature to represent them and said legislature passed a ban on Partial Birth Abortion a 3rd Circuit Court of Appeals would have agreed that the people of NJ deserved to have their voices be heard.     And he's not an obstructionist, eh?  Will he be another Anthony Kennedy?  Let’s hope not.

Alito is a seasoned jurist who has written over 750 concurrences and dissents in his 15 years on the Court of Appeals for the Third Circuit.  Judge Alito has also written in some concerning religious issues.  In most cases, not all,  he sided with the rights of individuals and communities to express their religious values; however, he never allowed cities or communities to only put up only Christmas decorations if the individual city wanted to do just that, they had to be "inclusive" and include everything. 

He added that even if the display were funded at taxpayer expense, the expenditure would have been de minimis and standing would be lacking.  ACLU of NJ v. Wall, NJ 246 F.3d 258 (3^rd Cir. 2001).  (OK,that was a good decision although it had nothing to do with the pro-life issue).

I wonder if Janice Rogers Brown or Priscilla Owens ever decided YES to ban partial birth abortions? I wonder why neither of the two were not picked?   Alito decided NO to the ban thus allowing the infanticide to continue in NJ, the cannibal state that allows embryonic stem cell research.  

Everyone was worried about Harriet Miers, including me, since she had NO opinion on abortion and yet nobody is concerned about Sam Alito who DOES have an opinion on abortion and decided against life and pro death.  And, This is not the first time Judge Alito has decided in an abortion case.  In Alexander v. Whitman, 114 F.3d 1392 (3d Cir.), cert. denied, 522 U.S. 949 (1997), he also filed a concurring opinion, using Supreme Court precedent (Roe and Casey).

Please, call him anything you want:  intelligent, conservative, great, republican, low-key,  a nice guy, a great pick, a great appointee, but just don't call him pro life, the dead children of NJ, killed by the PBA procedure, need to rest in peace.

[Coleus]

Does the ban on Partial Birth Abortion really ban Partial Birth Abortion???  Read on....

Re: the ban on PBA bill,  they (Rick Santorum and Chris Smith) wrote the following in S.3 and HR 760

 

`Sec. 1531. Partial-birth abortions prohibited:

 

`(a) Any physician who, in or affecting interstate or foreign commerce, knowingly performs a partial-birth abortion and thereby kills a human fetus shall be fined under this title or imprisoned not more than 2 years, or both. This subsection does not apply to a partial-birth abortion that is necessary to save the life of a mother whose life is endangered by a physical disorder, physical illness, or physical injury, including a life-endangering physical condition caused by or arising from the pregnancy itself. This subsection takes effect 1 day after the enactment.

`(b) As used in this section--

`(1) the term `partial-birth abortion' means an abortion in which the person performing the abortion--

`(A) deliberately and intentionally vaginally delivers a living fetus until, in the case of a head-first presentation, the entire fetal head is outside the body of the mother, or, in the case of breech presentation, any part of the fetal trunk past the navel is outside the body of the mother, for the purpose of performing an overt act that the person knows will kill the partially delivered living fetus; and

`(B) performs the overt act, other than completion of delivery, that kills the partially delivered living fetus.

 

http://thomas.loc.gov/cgi-bin/query/F?c108:1:./temp/~c108mi5Z42:e20078:

 

http://thomas.loc.gov/cgi-bin/query/D?c108:5:./temp/~c1084zcIum::

-----------------------------------------------

The ban on partial Birth Abortion does NOT ban partial birth abortion because

`Sec. 1531 allows the procedure if the navel of a breeched  baby is still in the birth canal and not showing outside the birth canal and in a regular delivery the fetal head is still inside the birth canal.   All these years the doctors breeched the baby anyway with the feet out first.   A little bit of an inconvenience for the butcher where the procedure is still doable.

 

With toothless restrictions like that, it is highly unlikely that even a single life will be saved. The only thing this will do is to make sure all the children are killed before the "entire fetal head" or the "fetal trunk past the navel" is showing. We waited thirty years for this?

[thoughtomator]

On the contrary this shows an understanding and respect of the role of the circuit court. As an appellate court judge, Alito and the others on that court don't have the authority to overrule the Supreme Court.

[Keith in Iowa]

By God, you're right. He's pro abortion. No seat on the SCOTUS for him. Hell, let's take away the seat he has. Get a rope, and find a suitable tree as people who think this way do not even deserve to live themselves...

(do I have to say that's sarcasm??)

[Coleus]

We'll find out sooner or later. I guess Justice Anthony Kennedy felt the same way and still does.

Why not bounce the case back to the state of NJ where the people and the legislature wanted the BAN on PBA?

He had the "authority" do to that.

[nickcarraway]

The question is not whether he is pro-abortion or not. It's whether he has the courage to make a decision on the Supreme Court. Justice Anthony Kennedy was pro-life, but he balked when Justice Brennan hit him.

[Coleus]

He voted for infanticide, where babies are still killed in NJ today, you can be as sarcastic as you want, but that doesn't change his record.

[Coleus]

The question is not whether he is pro-abortion or not. >>

That's the problem, it's a coin toss. He may be just another Justice Anthony Kennedy. Seems some freepers are content with that.

[onedoug]

Not again.

[Mrs. Shawnlaw]

Forget abortion (almost), I want to know his respect, or lack thereof, of personal property rights including protection!
Enough of this abortion. Get out of the hands of the feds and back to the States! Then back to the counties! Let locals decide if they want to pay/support it!

[flashbunny]

Sigh.

Do you even have a clue?

Everything is explained in this sentence:

"Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent"

Lower court judges are bound by the precedents set by the supreme court.

What he did is what conservatives always say they're about - knowing his proper role and not making up new law. If he would have ruled otherwise, he would have been engaging in 'judicial activism'. That is something that is rightly decried here.

He's doing exactly the right thing, even if you don't like the outcome.

On the supreme court he won't be bound by the upper court rulings -because he will be on the highest court in the land.

If this tells anybody anything, it's that he's exactly the kind of judge conservatives have been saying they want for decades.

[flashbunny]

Ugh.

[fatima]

I will call Father Frank's office.Is he is or is he ain't.

[Calpernia]

The minute I heard Alito was from NJ....I was worried.

Not in Our Name put out the propaganda about Miers.

I posted the info I found about their outline for their agenda against her here:

http://www.freerepublic.com/focus/f-news/1507280/posts

This is from their campaign against Miers:

Searches on BUSHCOMMISSION.ORG Database and Files:

>>>>Harriet Miers' deep loyalty to George Bush could lead to her making dangerous interpretations of the Constitution.

>>>>Campaign Manager: Miers "Is On the Extreme End of the Anti-Choice Movement"

>>>Operation Rescue urged rejection of Ms. Miers' candidacy, calling her insufficiently conservative.

>>>>make this a ferocious confirmation battle in the Senate

>>>>show the conservative credentials insufficient for many on the right.

Miers was filibustered without being heard.

[Coleus]

Get out of the hands of the feds and back to the States! >>

Alito had the choice to decide for the State of NJ, He chose NOT. The people of NJ and their legislature wanted a ban on PBA and Alito let them down.

[ConorMacNessa]

On the Supreme Court he will not be bound by prior S. Ct. decisions he doesn't agree with - give the man a chance.

[Coleus]

Lower court judges are bound by the precedents set by the supreme court. >>>

And the 10th amendment and the legislature and the people of NJ mean nothing?

[Coleus]

On the Supreme Court he will not be bound by prior S. Ct. decisions he doesn't agree with - give the man a chance. >>

We gave Justice Anthony Kennedy a chance and look what happened.

[NeoCaveman]

That's the problem, it's a coin toss. He may be just another Justice Anthony Kennedy. Seems some freepers are content with that.

Any sitting judge would have the same problem, upholding precedent. The only 2 Circuit Court judges I could name that have taken the full frontal assault approach to Roe are Edith Jones and Emilio Garza, which is why they would never get past the Senate because we do not have 50 pro-life Senators. So we pick the judges with the best odds and the ones who are strict constructionists. Anthony Kennedy is no strict constructionist.

[victim soul]

The Health of the Mother crap is used frequently by the pro-abortion feminists who claim a mother can die the day before she is supposed to give birth and that it's necessary to have the "health" exclusion. Women, if they do die, mostly die during childbirth. In this day of age of modern medicine and sonograms, most women who have any problems usually undergo a planned Caesarian Section or abort in the first or second trimester. This health of the mother clause is just an "open door" to continue to allow the Partial Birth Abortion procedure to be carried out in abortion mills since the butchers can use a mental health reason (let's say mild depression) in order to justify the baby killing.

Health of the mother is interpreted very broadly -- economic health, included.

If the health of the mother must be immediately attended to, there is the immediate option of Cesaerean section.

Partial birth abortion is at least a two day affair for the woman as her cervix has to be artificially and unnaturally opened before she goes into labor.

[oceanview]

if he had, it would have been tossed by the SCOTUS anyway.

[Always Right]

Do you even have a clue?

I am upset that Alito hasn't bombed any abortion clinics.

[flashbunny]

"And the 10th amendment and the legislature and the people of NJ mean nothing?"

Not when there is standing precedent in the case that says otherwise.

You overturn roe and the associateed laws, and then he would have had the power to rule otherwise. But since it was still in effect, he had no choice but to rule that way - unless he was being an 'activist'.

Circuit judges must abide by precedent set by the supreme court and other courts in the circuit.

[SteveMcKing]

I don't agree with everything my boss does, but I must abide by it.

As I slowly become the big-shot, then I get to make big decisions.

And so it was with Judge Alito.

[thoughtomator]

Alito's record - what I have seen of it, anyway - shows that he sticks scrupulously to the letter and the spirit of the law, rather than interpreting the law in light of his own desires. There is good reason to be confident that someone with that outlook, when given the authority and opportunity to rule on the Supreme Court, will say the basis for Roe and other decisions that usurp legislative power cannot be found in the law, and thus overturn them.

[riri]

I am upset that Alito hasn't bombed any abortion clinics.

LOL. It seems these are the lengths it will take to please some.

[ConorMacNessa]

But what about the Casey v. Planned Parenthood case? The abortionists have lined up against him for that one, where he was on our side. Which is where I think he will end up.

[Coleus]

Partial birth abortion is at least a two day affair for the woman as her cervix has to be artificially and unnaturally opened before she goes into labor. >>

thanks, that's right, I forgot about that it is a 2-3 day procedure.

[Soul Seeker]

I'm looking at the FR poll and Alito is in the 90% range, doing better so far than even Roberts.

This poster may want an activist Judge, but the vast majority do not. You summed up the opinion well, this opinion was known in an advance and stripped apart and found in keeping with what we expect from someone in that position. That doesn't seem to have affected the support of any of the pro-life groups, that are universal in their endorsements as well.

[fatima]

"Sigh.

Do you even have a clue?"
Who the hell are you .

[Always Right]

And the 10th amendment and the legislature and the people of NJ mean nothing?

They do, but since Alito followed the law as determined by the Supreme Court. The Supreme Court is the only court that can overturn itself. If the Supreme Court says 2 + 2 = 5, the circuit courts have no choice by to say 2 + 2 = 5 if that question comes before the court. It is the correct ruling eventhough they know it is wrong.

[Coleus]

Not when there is standing precedent in the case that says otherwise.

You overturn roe and the associateed laws, and then he would have had the power to rule otherwise. But since it was still in effect, he had no choice but to rule that way - unless he was being an 'activist'.

Circuit judges must abide by precedent set by the supreme court and other courts in the circuit.>>>>>>>>>>>>>>>>


this wasn't about overturning roe v. wade.

this was a state case banning PBA.

then, why is it that other states in the USA can ban PBA and NJ can not? Because of Alito the Conservative and Trump.

[Wolfstar]

Do you even have a clue? Everything is explained in this sentence: "Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent."

Well, flashbunny, it seems you and I are in agreement this time.

Coleus, you are hysterically taking something you obviously don't understand and compounding your error by using it totally out of context. If we listen to folks like you, pretty soon NO ONE will be qualified for the SCOTUS. Sheesh! Get a grip.

[oceanview]

we still need one more justice for that. the president elected in 2008 will likely replace Stevens and Ginsburg - that president will be the one to reshape the court. if Hillary wins the 2008 election, Roe will never be undone.

[Joseph_CutlerUSA]

Let's go back in time and abort him. That'll show him.

[victim soul]

7. Legislative Bill 23 defines "partial-birth abortion" as follows:

Partial-birth abortion means an abortion procedure in which the person performing the
abortion partially delivers vaginally a living unborn child before killing the unborn child and
completing the delivery. For purposes of this subdivision, the term partially delivers
vaginally a living unborn child before killing the unborn child means deliberately and
intentionally delivering into the vagina a living unborn child, or a substantial portion
thereof, for the purpose of performing a procedure that the person performing such
procedure knows will kill the unborn child and does kill the unborn child.

Where in the constitution does it give anyone the right to kill a child in the process of being born?

And don't give me that guff that this is only about abortion. We are killing off the disabled and Oregon is allowing the killing of its own infirm or depressed citizens as we speak!

[fatima]

I agree.

[flashbunny]

Yes, he's been endorsed by just about every pro-life and conservative organization. They knew who was on the list of nominees and they did their research. They know what this ruling means.

It was also brought up on another thread today. The key sentence is the one I pulled out- he was bound by precedent. If he wasn't, he could have ruled another way. But he knew his role and didnt' try to overstep the power of his position. That's to be applauded, not called into question.

It always amuses me when I see people saying they want judges to respect the law and the constitution and not be activists, but when somebody fails to bend the rules for their pet issue, all that high minded talk is thrown out the window.

[Mr. Mojo]

Well stated.

[Wolfstar]

I am upset that Alito hasn't bombed any abortion clinics.

I do assume you mean that sarcastically. As least I hope so. Around here these days, one cannot take such things for granted without checking.

[Petronski]

"Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent..."



You're wrong here.

[Diddle E. Squat]

Hey, your 99% there, why not finish your progression with another article:

Is G_d Pro Abortion?

If we go to the bible, we will find that the penalty for killing a woman is death. The penalty for killing the mother of an unborn child is death. But the penalty for harming a mother so that her unborn child dies but she survives is not death. How can we accept such unmistakable devaluation and cheapening of the life of the unborn? Clearly this is unacceptable, and something must be done. Don thee once again the mantle of woe and victimhood, because we cannot be the self-annointed leaders of the pro-life movement and not be perpetually disappointed and castigating.

[Calpernia]

>>>>If we listen to folks like you, pretty soon NO ONE will be qualified for the SCOTUS. Sheesh! Get a grip

We shouldn't be looking at prior rulings? That is what everyone wanted to see that Miers didn't have.

So, we should have no discussion? Not post records and ask no questions?

[flashbunny]

sigh.

Did you even read the articles about this?

" First, in Part II-A of its opinion, the Court held that the Nebraska law is unconstitutional because it lacks an exception for the preservation of the health of the mother."

It's not just roe, that's one of the biggies. But there are other decided cases out there that act as precedent. Not having the supreme court agreed upon "health of the mother" clause goes against the precedent, so they had to strike it down.

Did you do ANY research at all into this before you decided to post? It's been discussed here already today.

[victim soul]

I don't want an "activist" judge -- we are already suffering from the decisions of the activists on the court now!

Whatever happened to common sense and decency?

I want a judge that knows from the get go that killing children is no one's right.

"A nation that kills its children is a nation without hope." Pope John Paul II

[flashbunny]

the one with the clue.

[PhiKapMom]

It always amuses me when I see people saying they want judges to respect the law and the constitution and not be activists, but when somebody fails to bend the rules for their pet issue, all that high minded talk is thrown out the window.

Very well stated -- you have done a terrific job of explaining this and about 95% of Freepers will understand. The others are almost not worth the trouble except for those that read these threads and might get the wrong impression if people like you didn't set the record straight! :)

[Petronski]

Alito had the choice to decide for the State of NJ...

No, he did not.

[ConorMacNessa]

I agree - but I think Alito is on our side. The Carhart decision, wrongheaded as it was , is the law and he could not ignore it as a Court of Appeals judge. As a Supreme Court justice he can and will, IMHO, not ignore it but demonstrate the basic illogic of it as he helps to overrule Roe v. Wade.