Posted on 11/26/2005 10:13:24 AM PST by Reagan Man
WASHINGTON
His mother may know best, but conservatives do not share her certainty that Samuel Alito would overturn abortion rights.
Alito's independent streak is complicating what might otherwise be an easy call as people on both sides of the abortion divide try to figure out his likely course if he were confirmed by the Senate for the Supreme Court.
The nominee's 90-year-old mother, Rose Alito, has said of her Catholic son that "of course, he's against abortion." But that is her personal understanding, which is not always an accurate indicator of how a justice would vote.
"If you asked me to guess what Sam thought about abortion, it's probably the same thing his mother said," said Joshua I. Schwartz, a professor at George Washington Law School who worked with Alito in the solicitor general's office during the Reagan administration.
"But obviously there is a real difference between what Sam Alito thinks is what's right and what's wrong and what does he think the law should be," Schwartz said.
President Bush has nominated Alito, a judge on the Philadelphia-based 3rd U.S. Circuit Court of Appeals, to replace Justice Sandra Day O'Connor, who announced plans to retire in July.
O'Connor has been the divided court's swing vote on abortion, frustrating conservatives who have pressed for the undoing of the landmark 1973 Roe v. Wade decision that legalized abortion.
Liberals say Alito is certain to roll back abortion rights. They contend that while Alito stuck to Supreme Court precedent as an appellate judge, he would be free as a justice to act on his personal opposition to abortion.
Abortion foes are not so sure he would vote their way. Their optimism about Alito's nomination is tempered by their views on some of Alito's decisions during his 15 years on the federal bench.
Conservatives cheered Alito's 1991 vote requiring that women who seek abortions notify their spouses. But they were dismayed by his writings in three other cases:
_In 1997, in Alexander v. Whitman, Alito concurred with the appellate court's decision that a fetus is not a person under the equal protection clause of the Constitution. A woman who delivered a stillborn baby had challenged a New Jersey law, arguing that she should be able to file a wrongful death lawsuit.
"I agree with the essential point that the court is making: that the Supreme Court has held that a fetus is not a 'person' within the meaning of the 14th Amendment," Alito wrote.
_In 2000, in Planned Parenthood of Central New Jersey v. Farmer, Alito was among the judges who invalidated a New Jersey law banning late- term abortions. He cited the high court's decision on a Nebraska statute.
"Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent," Alito wrote.
_In 1995, in Blackwell v. Knoll, Alito cited federal government policy in voting to invalidate Pennsylvania restrictions on publicly funded abortions for women who are victims of rape or incest.
Richard Collier, president of the Legal Center for the Defense of Life in New Jersey and a lawyer in the 2000 case on late-term abortions, said Alito had no reason to cite Supreme Court precedent in the case.
"He followed it for the wrong reasons," said Collier, who fears that Alito would not vote to overturn Roe v. Wade.
Collier points to comments from Alito's colleagues on the federal bench. They say Alito backs tighter abortion restrictions, but Senior Judge Leonard Garth has said, "Sam is not going to overturn Roe v. Wade."
"How many people do we need to tell us that?" Collier asked.
Marie Tasy, executive director of New Jersey Right to Life, was heartened by Alito's 1985 memo in which he said the Constitution does not protect a right to an abortion. But she noted that Alito was more inclined to offer his opinion in religious liberty cases than in abortion matters.
"He didn't seem to want to go that extra step," said Tasy, whose group has neither endorsed nor opposed Alito.
Troy Newman, president of anti-abortion group Operation Rescue, said his organization is backing Alito's nomination, confident that Alito is far more conservative than O'Connor.
Newman did acknowledge the uncertainty within conservative ranks, but he said there are reasons to be hopeful.
"A conservative court led by (Chief Justice) John Roberts and with Alito should have no problem redefining personhood for the pre-born child, thus nullifying Roe rather than overturning it," Newman said.
Should he join the high court, Alito probably would have the chance to rule on two major abortion cases in the current term.
One centers on New Hampshire's parental notification statute and whether the state law is unconstitutional because it lacks an exception that would allow a minor to have an abortion for health reasons in a medical emergency.
The second case stems from the Bush administration's request that the Supreme Court reinstate a national ban on a type of late-term abortion. Bush signed the 2003 law imposing the prohibition, but legal challenges have prevailed based on the argument that the statute lacked a health exception and was unconstitutional.
Kate Michelman, former president of NARAL Pro-Choice America, said that as a justice, Alito no longer would be bound by the precedent that dictated his appellate court rulings.
"Do I think he will overturn Roe immediately? I think no," Michelman said. "But he doesn't have to overturn Roe v. Wade explicitly. All he has to do it uphold the New Hampshire law, the federal ban on late- term abortion. All he has to do is decide differently from Sandra Day O'Connor and the right to choose is lost essentially for American women."
This one is worth reading. While the other two judges wrote long pro-Roe concurrences Alito did not just sign on to their writings. He wrote a seperate and short decision based only on the controlling precedent. A pro-Roe judge would have joined the other two instead of writing his own opinion.
I guess it's all mute at this point. Alito is a solid choice, regardless of Roe. Either a president is allowed to make a solid appointment, or he isn't. As much as I hate abortion, it's time we concede who our president is and hope we get a future president who would not hesitate to appoint someone like Judge Roy Moore, someone who does not suck up to the baby killing law as though it were God, Himself.
Not one conservative justice is prepared to "overturn abortion rights."
If anything, they will overturn Roe, which sends it to the states.
ugh!
I think if the opportunity ever came up, Scalia and Thomas would vote to outlaw abortion. CJ Rehnquist was one of two votes, J.White being the other, against Roe v Wade. I have no idea about CJ Roberts and how he would vote. I think theres a chance Alito would stand with Scalia and Thomas. But that's just one conservatives guessimate. Abortion maybe a political hot potato for some elected and appointed officials in government, but on moral grounds its the grandest abomination in human history. Mankind is suppose to rise above the animal kingdom and have respect for all human life. Seems like some folks are still living in the jungle.
What constitutional basis would give the USSC the power and authority to outlaw abortion?
Btw, without a healthy respect for human life, the US Constitution means nothing.
At best, I think the USC and the USSC should just stay out of it. Finding a right to abortion in the USC was a mistake. Finding a ban on abortion in the USC would be a mistake, also.
It's the difference between wanting no activist judges at all, as opposed to wanting 'our' activists instead of theirs. I opt for no activism at all.
I want to know what his stance is on personal property rights.
Enough of abortion already. Lets put it to a vote to put abortion rights/non rights on the states and local levels.
I think President Reagan said it best in his essay and later book called, "Abortion and the Conscience of a Nation".
"Abraham Lincoln recognized that we could not survive as a free land when some men could decide that others were not fit to be free and should therefore be slaves. Likewise, we cannot survive as a free nation when some men decide that others are not fit to live and should be abandoned to abortion or infanticide. My Administration is dedicated to the preservation of America as a free land, and there is no cause more important for preserving that freedom than affirming the transcendent right to life of all human beings, the right without which no other rights have any meaning."
I think when the SCOTUS passed its decision in Roe v Wade and gave a legal right to a woman to kill her unborn baby, abortion on demand has led not just to a disrespect for human life, but I believe abortion on demand has cheapened life. Its part of the culture war Americans have been fighting for the last 40-50 years. The liberalism of anything goes versus the conservatism of traditional American values that our Founding Fathers advanced for all people.
No argument from me that abortion is wrong.
That being said, I think the principled stand for our side is to get the USSC out of the matter.
Sometimes good people have to step in and right a wrong that society has made. IMHO, such is the case with Roe v Wade and abortion on demand. Both should be outlawed.
That would be a good first step.
Just as with defending the American people from enemies both foreign and domestic, I believe the defense of human life is a federal issue. That makes abortion on demand a federal issue. On one hand, most Americans oppose abortion on demand. OTOH, most Americans don't believe they have a right to tell a pregnant woman she can't kill her baby. Sounds almost comical. Doesn't it? The right to life for all human life is a natural right. IOW, a right found in nature. Life, liberty and the pursuit of happiness.
Sometimes I can't believe people actually argue against the right to life for all human life, no matter what level of development it maybe at.
American society righted the wrong of slavery. Now it's time we did the same with abortion on demand. If we are to continue to exist as a land of freedom and liberty for all, infanticide must stop.
I agree. The strategy should be to change people's hearts and minds on the issue, and not persue a legislative solution to this.
Like you said, most polls show americans disfavor abotion, yet I don't see a majority eliminating first trimester abortions. Change their minds, and you change the policy.
Each side has to have the courage to let the people decide. I don;t doubt that each side will have something to lament after the votes, but it's the fairest way to settle this.
I disagree. There is only one side. The side that respects human life. Anyone who sees a right to privacy in the Constitution that gives a women the right to have an abortion and kill her unborn baby, is one sick creature. That is the culture of death that I've opposed since 1973. If they ever come to their senses, the people will have the final say in the matter. The people will decide through our election process, whether abortion on demand will continue, or whether like slavery, it will become an ugly footnote in history. So far, we've got in excess of 45-million deaths to explain. Most of which (95%!) do not fall within the parameters of rape, incest or the health/life of the mother.
Like I said, if we don't respect human life, the Constitution means absolutely nothing.
I don't think Thomas or Scalia would vote to outlaw abortion.
Would they overturn Roe? Yes. Should they? Yes.
But should they outlaw all abortions? No.
The Supreme Court is not some Super-Congress that gets to vote in their laws once one side takes over the majority. Only for the opposition to overturn it once they take power.
These decisions are to be left to the states.
Keep in mind, the Founders did not outlaw abortion in the Constitution, nor did they outlaw it in federal laws enacted in the first 10, 20, 50 that they were still alive.
That may not be what the Founders had in mind, but that's the way its been since Marbury v Madison. There have been some 200 SC decisions that have been overturned by a future court.
>>>>These decisions are to be left to the states.
As a first step I would agree, but once Roe is overturned the next decision should be to outlaw abortion on demand.
>>>> ... the Founders did not outlaw abortion in the Constitution, nor did they outlaw it in federal laws enacted in the first 10, 20, 50 that they were still alive.
Abortion is nowhere to be found in the Constitution and the Founders never would have approved of abortion on demand. The right to life is the one right that supercedes all others. No one has a right to end a life without good reason. That includes a pregnant woman who uses the abortion procedure as a form of birth control. 95% of all abortions fall into that catagory.
Without a healthy respect for human life, the US Constitution means nothing.
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