By now, the leaked draft opinion overturning Roe v. Wade and Planned Parenthood v. Casey, the 1992 case that reaffirmed and refined Roe, has nearly broken the Internet. (That this legal bombshell dropped as a human bombshell, Kim Kardashian, strolled the red carpet in the actual “nudest dress” made famous by Marilyn Monroe just added to the cognitive dissonance.)
Yet for as often as this law nerd has read Casey, I had never digested before last week that Justice Samuel Alito, the draft’s author, played a central role in Casey itself.
That’s not because Alito’s stance on abortion was ambiguous or unknown. On the contrary, Alito’s antipathy to abortion rights was thoroughly probed at his 2006 confirmation hearings—and dates back at least as far as 1985. As a lawyer in the Solicitor General’s office, he authored a memo outlining his recommended approach in Thornburgh v. American College of Obstetricians and Gynecologists, a challenge to a cluster of Pennsylvania abortion restrictions. While urging that the Reagan Administration should not mount “a frontal assault” on Roe, Alito nonetheless identified an “opportunity to advance the goals of bringing about the eventual overruling of Roe” and “nudge the Court toward . . . greater recognition of the states’ interest in protecting the unborn throughout pregnancy.”
Six years later, as a fairly-new appellate judge, Alito was confronted with another Pennsylvania statute curtailing abortion. While concurring with most of the panel’s decision, he dissented from its holding that Pennsylvania’s spousal notification law was unconstitutional. Instead, concluding that the obligation to notify one’s spouse did not impose an undue burden – a standard he interpreted to mean an all-out ban or “severe limitations” – on married Pennsylvania women, he then found that the provision was lawful because it was “‘rationally related’ to a ‘legitimate’ state interest.” Specifically, Alito observed that “a husband has a ‘legitimate’ interest in the welfare of a fetus he has conceived with his wife.” And despite concerns that the handful of exceptions to the spousal notification statute were both too narrow and unlikely to be utilized by battered women, Alito was unconvinced; the plaintiffs, he said, failed to prove how many women would actually suffer. Accordingly, he reasoned, it was entirely rational for Pennsylvania lawmakers to have “believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems — such as economic constraints, future plans, or the husbands’ previously expressed opposition — that may be obviated by discussion prior to the abortion.” That case, Planned Parenthood v. Casey, famously was appealed to the Supreme Court, where it reaffirmed and refined Roe—and became the second of the Court’s two guideposts on abortion rights as understood today.
Yet as Jeremy Roebuck discussed in the Philadelphia Inquirer last week, Alito was not on the winning side in Casey. In fact, although Alito and his fellow Third Circuit judges correctly anticipated the Court’s application of an “undue burden” standard to determine which abortion restrictions could be lawful, Justices Sandra Day O’Connor, Anthony Kennedy, and David Souter, flatly dismissed Alito’s interpretation of that standard—and his characterization of Pennsylvania’s spousal notification provision:








