When Sammy Met Casey

Prospect: What Alito's Abortion Vote Means For Supreme Court

(The American Prospect)  In the 1989 case of Webster v. Reproductive Health Services, Supreme Court Chief Justice William Rehnquist applied a very deferential standard of review — what lawyers call the "rational basis" test — to a Missouri law restricting abortion. But Rehnquist could not get a majority of the Court to sign on to that approach. As a result, the lower courts were left in a state of uncertainty. Should they apply the rational-basis test or the more demanding "strict scrutiny" test of Roe?

Judge Alito's court, the U.S. Court of Appeals for the 3rd Circuit, split the difference and applied the test then favored by Justice Sandra Day O'Connor, as hers had been the swing vote in Webster. This test had two parts: The first asked whether a law restricting abortion imposed an "undue burden" on women's ability to obtain an abortion; if so, Roe's strict-scrutiny standard applied; if not, the deferential rational-basis test applied.

Of the six federal judges who had to decide whether Pennsylvania's requirement of spousal notice was an undue burden on the right of abortion, five — including three Republican-appointed Supreme Court justices — thought it was. They pointed to the psychological, physical, and financial coercion faced by women who decide not to notify their husbands that they are seeking an abortion.

Only Alito thought otherwise. In voting to sustain Pennsylvania's husband-notice provision, he reached the same bottom line as the four Supreme Court dissenters, who expressly called for Roe to be overruled.

Does that mean that a Justice Alito would necessarily vote to overrule Roe? Of course not. He may not have accurately predicted how O'Connor would vote, but upon taking her seat, he may well decide to adhere to the precedents to which she herself adhered, including Roe.

Just don't bet on it. Lower-court judges sometimes describe their job as simply implementing the authoritative rulings of the courts that sit above them. In fact, however, lower-court judges have great freedom to fill in the spaces of the decisions that bind them. In one high-profile case, Judge Alito used that freedom to constrict the constitutional right to abortion. Now it's up to the Senate to use its own substantial freedom to scrutinize Supreme Court nominees.


Michael C. Dorf is the Michael I. Sovern Professor of Law at Columbia University. His 2004 book, "Constitutional Law Stories" tells the stories behind 15 leading constitutional cases.