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If you’ve kept a keen eye on the right over the last few days you may have noticed that no one on the right seems to be advocating that Alito will be a vote against Roe v. Wade. In fact the only chatter about abortion from the right-wing conservative intelligentsia concern the claim that Alito’s vote against choice inCasey v Planned Parenthood was a nuanced position that doesn’t reflect on his actual position on Roe. This from many of the same blogs that were up in arms over Miers’ speech in the early 90’s praising a woman’s right to choose. Thus far the only definitive on Roe has come from the fringe of the right-wing fringe, Operation Resuce.
“We are trusting that we are now on the fast-track to derailing Roe v. Wade as the law of the land”
As of this point, there’s been silence from the National Right to Life Committee, Focus on the Family has focused on praising Alito and talking about Democratic opposition to Alito, the Christian Coalition has a petition on their website expressing support Alito, no specific comment on a triumph on Roe.
Despite assurances on Griswold, (let’s just say it’s a sad day in history when a supreme court justice is deemed open because they believe the state can’t prosecute a couple for taking contraceptives), there’s a mountain of evidence that Alito represents that a strong vote against Roe, and in curtailing reproductive freedom for women.
The point of this post isn’t to clarify Alito’s views on choice, it’s rather to point out an observation that became obvious for me today. You’re not hearing a peep from Republicans about overturning Roe, which has been their signature issue on the moral values questionnaire because they’re playing a game of “dog whistle politics.” They let the pro-choice organizations motivate the conservative base. The religious right provides the wink-wink for their endorsement, and the pro-choice Republicans are reassured by their pro-choice Senators because they receive assurances that contraceptives will still be on the shelf. This is dog whistle politics folks; send a message to a certain constituency without turning off the other constituencies. Next to the dirty tricks it’s what makes Karl Rove famous.
Part of the calculus is that the national media, who traveled with Bush for over a year on the campaign trail and heard him exclaim over and over, “Scalia and Thomas”, “culture of life,” and “Dredd Scott” will return to form and not follow up on how Bush caved in to the religious right to give them the guaranteed vote against Roe. There’s good reason to not talk about Roe of course, with an already mixed reception, a discussion about Roe, and Alito’s anti-worker rulings, would doom Alito to the bork pile of history.
If you want to get an idea of how well some of the conservative blogs have gotten the message, read the early reaction from some of the same crowd who last week were blabbing about Roe and Miers all last week.
Abortion, let’s talk about Bob Casey, not Alito –
One thing you’re going to hear a lot of, with Samuel Alito the next nominee for the Supreme Court, is Judge Alito’s dissent in Planned Parenthood v. Casey, the big 1992 abortion case that passed through the Third Circuit on its way to the Supreme Court. Patterico takes a close look at that dissent, and you should go check that out.
Because cases coming before the SCOTUS in the near future include some crucial decisions –including an abortion rights blockbuster that will be argued in late November– it is very important to get a nominee for whom hearings can be scheduled immediately.
The number of examples where the MSM has claimed that Alito is opposed to abortion based on his ruling in the Casey decision is already to numerous to list. It may well be that Alito is pro-life in all things. But as many have already pointed out (see Bench Memos), Alito’s position rested on an interpretation of law not on anything to do with core issues of abortion. Indeed, his position was about a very narrow issue in the orbit of abortion: is it okay for a state to require a woman to notify her spouse before she gets an abortion?
Alito is at least as qualified as Roberts, and his Casey opinion will not sustain a convincing filibuster. The Democrats seem trapped here. Reid has warned the president not to nominate Alito. And despite the narrow and non-substantive character of Alito’s dissent in Casey, the Dems will be forced by their groups to make abortion the issue.
Kathryn already hit a little on this in Bench Memos: Several media outlets have already begun breathless reporting suggesting that Sam Alito is reflexively “anti-choice.” When asked “what we know about Sam Alito” by Imus this morning, Andrea Mitchell immediately reported that “we know that he was a dissenting judge on the issue of spousal notification” in the case that became Planned Parenthood v. Casey.
Let me explain more fully why Alito’s vote in a 1995 case involving Medicaid funding of abortion, Elizabeth Blackwell Health Center for Women v. Knoll, has everything to do with a threshold question of administrative law and nothing to do with abortion.
So a fair summary of Alito’s opinion is that he read O’Connor’s opinions to indicate that a spousal-notice provision that had all sorts of exceptions did not constitute an undue burden. No one should present the case as having anything to do with spousal consent rather than notice, no one should misrepresent the scope of the exceptions, and no one should read the case as expressing Alito’s own constitutional or policy views (as opposed to his reading of Supreme Court precedent) on any aspect of abortion.
Instapundit – (To be fair, Glenn says he’s pro-choice, so this is the defense for pro-choice Republicans.)
ABORTION AND SPOUSAL NOTIFICATION: As several people point out, that’s going to be an issue with regard to Alito. I’m not sure what I think about this issue, but looking at the Pennsylvania statute I notice a lot of exceptions, one of which is this: “Her spouse is not the father of the child.”I’m not sure about Pennsylvania, but in many states her spouse — even if he’s not the father of the child — would still be on the hook for child support. Likewise, if he didn’t want children, but she disagreed, lied to him about birth control, and got pregnant. And he certainly couldn’t force her to have an abortion if she did so, even if his desire not to have children was powerful, and explicitly expressed at the outset. (The usual response — “he made his choice when he had sex without a condom” — never comes up in discussions of women and abortion.)
Already this morning, I’ve heard a lefty on FNC scary viewers with abortion: Alito ruled that a woman needs her husband’s consent for an abortion. It was part of the Casey vs. Planned Parenthood case in 1991 and it was notification (vs. consent). And all Alito did was say thePennsylvania law was constitutional, as I, layman, understand it.
Another respect in which Hugh Hewitt’s op-ed is mistaken is his assertion that it would take a “miracle of Senate efficiency” to keep Justice O’Connor from casting a vote in the New Hampshire abortion case to be argued in late November. As I have explained, a justice cannot take part in the final disposition of a case unless she is still on the court at the time the opinion is rendered. It is highly unlikely that theNew Hampshire case will be decided before spring 2006. Even ordinary Senate efficiency (if you’ll pardon the oxymoron) ought to suffice to have O’Connor’s replacement confirmed and appointed by then. Of course, the case may need to be re-argued, but that’s a trivial cost.
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