Alito's Reasoning Points to Vote Against Roe v. Wade (Washington Post)

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Nominee's Reasoning Points to a Likely Vote Against Roe v. Wade
By Charles Lane
Washington Post Staff Writer
Wednesday, November 2, 2005; A06

As far as anyone yet knows, Judge Samuel A. Alito Jr. has not made any public declaration calling for the overruling of Roe v. Wade , the 1973 Supreme Court decision that recognized a constitutional right to abortion. At least on the surface, Alito's record as an appeals court judge contains something for everyone. In 1991, he voted to uphold a Pennsylvania law that would have required married women to notify their husbands before getting an abortion. In 1995, however, he cast a deciding vote on a three-judge panel to strike down what abortion rights advocates saw as Pennsylvania's onerous regulations on federally funded abortions for victims of incest or rape. And in 2000, he concurred in a ruling that struck down a New Jersey ban on the late-term procedure called partial-birth abortion by opponents...

Yet for supporters and skeptics, Alito's record is not ambiguous, and it points toward the same conclusion: He would probably vote to strike down Roe. And they say this for a similar reason: It's not the results Alito reached in past cases that matters, it's his legal reasoning.

...It is Alito's concurring opinion in the 1991 case, Planned Parenthood v. Casey , that most intrigues supporters and opponents of Roe. For abortion rights advocates, the opinion shows that, on the one occasion when the applicable Supreme Court precedent was not crystal clear, he tried to push the law to the right -- arguing that an ambiguous standard sketched by O'Connor could be stretched to permit a state law requiring married women to notify their husbands before getting an abortion, unless they could show a threat of imminent physical harm.

"He was interpreting that in the most constraining way he could, and it would have resulted in horrible consequences for women," said Priscilla Smith of the Center for Reproductive Rights, a New York-based nonprofit that supports abortion rights. She said Alito ignored the possibility that women with abusive husbands might have faced other threats such as psychological abuse or physical retaliation against their other children...

http://www.washingtonpost.com/wp-dyn/content/article/2005/11/01/AR2005110101555.html