Originally Published: November 3, 2005 12:49 p.m.
BOSTON – There was a moment in Samuel Alito Jr.’s introduction when he tipped his hat to the justice he hopes to succeed.
As a rookie arguing his first case before the Supreme Court, Alito remembered, Sandra Day O’Connor’s first question was a gentle one. “I was grateful to her on that happy occasion,’’ said Alito, “and I’m particularly honored to be nominated for her seat.’’
Alito did not mention the time Justice O’Connor was far less gentle the day she offered a bruising rebuttal to one of his appeals court opinions. It’s this head-on collision between Alito and O’Connor that tells you what a difference a justice makes.
The collision came over Alito’s opinion in Planned Parenthood v. Casey. The Pennsylvania Legislature had written a slew of restrictions on abortion, but when the law reached the 3rd Circuit appeals court, Alito was the only member who upheld the requirement that a woman must tell her husband before she had an abortion.
Alito argued that most women told their husbands anyway. He brushed aside the idea that this requirement would be a burden on women with abusive husbands. With a wink, a nod, and a footnote, he even implied that the law would be easy to get around, “difficult to enforce and easy to evade.’’
The Supreme Court turned out to be far more sensitive to domestic abuse than Alito. ``Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion,’’ wrote the majority.
The court upheld the right to abortion itself 5-4 in Casey. It doesn’t take a genius to see what would have happened with Alito in O’Connor’s seat. Nor does it take a crystal ball to see how far – back – a right-wing court can take us.
Legal history shows women gradually gaining their rights as separate individuals. Some men protest that they are left with no rights and all the bills. However, one of two people has to make the decision. Those decisions belong to the one who will bear the child.
Alito’s nomination reminds us that all of this is up for grabs. As Kathryn Kolbert, the attorney who argued Casey in the Supreme Court, says, ``To give deference to the rights of legislatures to force women to communicate with husbands is returning them back to the days when they weren’t independent human beings.’’
Alito’s paper trail will yield other telltale pages. But we know what Alito’s 90-year-old mother knows: ``Of course he’s against abortion.’’
This presidency will have other telltale moments, but we now know what happens when the right wing holds a weakened Bush in a vise grip. This is how far we can go.
(E-mail Ellen Goodman at firstname.lastname@example.org)