TURLEY: There will be no one to the right of Sam Alito on this Court. This is a pretty hardcore fellow on abortion issues.They don't call him "SCALITO" for nothing. _____________________________________________________ Senator Harry Reid on the nomination of Samuel "Scalito" Alito to the Supreme Court:
The nomination of Judge Alito requires an especially long hard look by the Senate because of what happened last week to Harriet Miers. Conservative activists forced Miers to withdraw from consideration for this same Supreme Court seat because she was not radical enough for them. Now the Senate needs to find out if the man replacing Miers is too radical for the American people.
I am disappointed in this choice for several reasons. First, unlike previous nominations, this one was not the product of consultation with Senate Democrats. Last Friday, Senator Leahy and I wrote to President Bush urging him to work with us to find a consensus nominee. The President has rejected that approach.
Second, this appointment ignores the value of diverse backgrounds and perspectives on the Supreme Court. The President has chosen a man to replace Sandra Day O'Connor, one of only two women on the Court. For the third time, he has declined to make history by nominating the first Hispanic to the Court. And he has chosen yet another federal appellate judge to join a court that already has eight justices with that narrow background. President Bush would leave the Supreme Court looking less like America and more like an old boys club.
Justice O'Connor has been the deciding vote in key cases protecting individual rights and freedoms on a narrowly divided Court. The stakes in selecting her replacement are high.
I look forward to meeting Judge Alito and learning why those who want to pack the Court with judicial activists are so much more enthusiastic about him than they were about Harriet Miers.
Here's one reason:
But soon after President Ronald Reagan was elected, Alito joined the Office of the Solicitor General, staying for four years and helping to decide what position the administration would take in cases up for review by the Supreme Court.
Will we see Scalito's documents? Another stonewall?
Another reason the Wingnuts love him on the flip.
My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 & Supp.1991), results from disagreement about the portion of Justice O'Connor's two-part test that must be applied to this provision. Under that test, as the majority explains, a law that imposes an "undue burden" must serve a "compelling" state interest. By contrast, a law that does not impose an "undue burden" must simply be "rationally" or "reasonably" related to a "legitimate" state interest. The majority holds that Section 3209 constitutes an undue burden. The majority therefore applies the first prong of the two-part test and strikes down Section 3209 on the ground that it does not serve a "compelling" interest. I do not believe that Section 3209 has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that Section 3209 is constitutional because it is "rationally related" to a "legitimate" state interest.
Although the majority and I apply different prongs of this two-part test, I see no indication that we disagree concerning the conclusion produced when either prong is applied to Section 3209. If the majority is correct that Section 3209 must satisfy heightened scrutiny, I agree that its constitutionality is doubtful. Similarly, I do not interpret the majority opinion to mean that Section 3209 cannot satisfy the rational relationship test. Indeed, the majority acknowledges that Section 3209 serves a "legitimate" interest. See majority opin. at 715, 716. Thus, my major disagreement with the majority concerns the question whether Section 3209 imposes an "undue burden," and I will therefore turn to that question.
A. Justice O'Connor has explained the meaning of the term "undue burden" in several abortion opinions. In Akron v. Akron Center for Reproductive Health, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting), she wrote that "an 'undue burden' has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision." She noted that laws held unconstitutional in prior cases involved statutes that "criminalized all abortions except those necessary to save the life of the mother," inhibited " 'the vast majority of abortions after the first 12 weeks,' " or gave the parents of a pregnant minor an absolute veto power over the abortion decision. Id. (emphasis in original; citations omitted). She suggested that an "undue burden" would not be created by "a state regulation [that] may 'inhibit' abortions to some degree." Id. She also suggested that there is no undue burden unless a measure has the effect of "substantially limiting access." Id. at 463, 103 S.Ct. at 2509, quoting Carey v. Population Services International, 431 U.S. 678, 688, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675 (1977) (emphasis added in Justice O'Connor's opinion).
Justice O'Connor reiterated the same analysis in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169 (1986). She wrote (id. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting)):
An undue burden would generally be found "in situations involving absolute obstacles or severe limitations on the abortion decision," not wherever a state regulation "may 'inhibit' abortions to some degree."
*721 She also criticized the majority for taking an approach under which "the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it." Id. 476 U.S. at 829, 106 S.Ct. at 2214 (emphasis added).
Justice O'Connor's application of the undue burden test in several cases further illustrates the meaning of this test. In Hodgson, 110 S.Ct. at 2950-51, 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. Justice O'Connor reached this conclusion despite statistics adduced by Justice Marshall to show that mandatory parental notice may inhibit a significant percentage of minors from obtaining abortions (id. at 2953-54) (Marshall, J., dissenting) and despite the district court's finding, noted in Justice Marshall's dissent, that the judicial bypass option "so daunted" some minors that they felt compelled to carry to term (id. at 2959, quoting 648 F.Supp. at 763).
Justice O'Connor has also suggested on more than one occasion that no undue burden was created by the statute upheld in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981), which required parental notice prior to any abortion on an unemancipated minor. Instead, she has stated that this statute merely inhibited abortions to "some degree." Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting); Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). In dissent in Matheson, Justice Marshall argued that the statute would result in substantial interference with abortions sought by minors. He wrote (450 U.S. at 398, 101 S.Ct. at 1164) (Marshall, J., dissenting) that "the minor may confront physical or emotional abuse, withdrawal of financial support or actual obstruction of the abortion decision." These harms are almost identical to those that the majority in this case attributes to Section 3209. See majority opin. at 711-12. See also Planned Parenthood Association v. Ashcroft, 462 U.S. 476, 505, 103 S.Ct. 2517, 2532, 76 L.Ed.2d 733 (1983) (O'Connor concurring and dissenting) (statute requiring parental consent or judicial authorization "imposes no undue burden").
Finally, Justice O'Connor has concluded that regulations that simply increase the cost of abortions, including regulations that may double the cost, do not create an "undue burden." See Akron, 462 U.S. at 434-35, 103 S.Ct. at 2494-95 (maj. op.); at 466-67, 103 S.Ct. at 2511-12 (O'Connor, J., dissenting). Justice O'Connor reached this conclusion even though it seems clear that such increased costs may well deter some women.
Taken together, Justice O'Connor's opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing "severe limitations," rather than simply inhibiting abortions " 'to some degree' " or inhibiting "some women." Thornburgh, 476 U.S. at 828, 829, 106 S.Ct. at 2213, 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). Furthermore, Justice O'Connor's opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson or the burden created by the regulations in Akron that appreciably increased costs. Since the laws at issue in those cases had inhibiting effects that almost certainly were substantial enough to dissuade some women from obtaining abortions, it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.
Senate is gonna have to ask him about "super stare decisis."