U.S. Court of Appeals Judge Samuel Alito after his nomination to the U.S. Supreme Court . President George W. Bush looks on.
Four days after Harriet Miers withdrew her nomination to serve on the United States Supreme Court, President Bush nominated U.S. Court of Appeals Judge Samuel A. Alito, Jr., to replace Associate Justice Sandra Day O'Connor.
Judge Alito has been a member of the Philadelphia-based 3rd U.S. Circuit Court of Appeals since 1990. From 1987 to 1990 Alito served as U.S. attorney for the District of New Jersey.
In examining his record, there are four principal abortion-related cases. Judge Alito voted in favor of the pro-life side once and against it three times.
In Casey v. Planned Parenthood, he joined with his colleagues on the appeals court in a unanimous opinion upholding most of the pro-life 1989 Pennsylvania Abortion Control Act. Judge Alito would have gone further; he would have upheld the spousal notice provision of the act. (This was the case that the United States Supreme Court later reviewed in Planned Parenthood v. Casey.)
In two of the cases where Judge Alito voted against the pro-life side, he felt bound by the controlling Supreme Court precedent on each issue. One of these cases involved a partial-birth abortion statute. The other was a wrongful death statute that involved the question of Fourteenth Amendment personhood of the unborn child.
The third case involved Pennsylvania rape and incest reporting requirements for Medicaid-funded abortions. Judge Alito was the deciding vote against the pro-life side, basing his decision on his reading of administrative law.
In an often testy congressional hearing November 1, science squared off against abortion ideology as experts testified that babies within the womb may feel pain as early as 20 weeks into their development.
Much of the expert testimony supported the principles in the Unborn Child Pain Awareness Act (H.R. 356 and S. 51), introduced by Rep. Chris Smith (R-NJ) and Senator Sam Brownback (R-Ks.), to "ensure that women seeking an abortion are fully informed regarding the pain experienced by their unborn child."
Pro-life Congressman Steve Chabot (R-Ohio), the chairman of House Judiciary Constitution Subcommittee, opened the hearing by quoting President Ronald Reagan: "Medical science doctors confirm that when the lives of the unborn are snuffed out, they often feel pain, pain that is long and agonizing."
Rep. Chabot noted that the bill "would apply to the approximately 15,000–20,000 abortions that are performed each year in the United States on unborn children who are 20 weeks or more past fertilization."
Some pro-abortion groups such as NARAL have remained uncharacteristically quiet on the bill, presumably because their opposition would focus public attention on the baby's pain during an abortion, and because the bill aims at providing women with information to insure their fully informed consent to an abortion. However, the Religious Coalition for Reproductive Choice (a coalition of a number of religious bodies, including the United Methodist Church, United Church of Christ, Episcopal Church, and Presbyterian Church USA), distributed a statement at the hearing opposing the bill.
The Unborn Child Pain Awareness Act would require abortionists to fully inform mothers, who are considering an abortion on an "unborn child who has reached a probable stage of development of 20 weeks after fertilization," regarding the pain her child will likely feel.
Intuiting Matters of the Heart
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Wanda Franz, Ph.D.
From the very beginning, the mainstream media have obscured the radical nature of the Roe v. Wade and Doe v. Bolton decisions. Typical media stories (and many opinion poll questions) would describe Roe as making abortion "legal for the first three months of pregnancy"--a partial truth, somewhat like shrinking the First Amendment to freedom of speech and excluding the parts about freedom of religion and the rights of assembly and petitioning the government.
It is therefore refreshing to see David Savage's report in the Los Angeles Times affirm what pro-lifers have said all along: Blackmun's "opinion made virtually all abortions legal as a matter of a constitutional right." Or "the most important sentence appears not in the Texas case of Roe vs. Wade, but in the Georgia case of Doe vs. Bolton," according to which "a patient's 'emotional well-being' was reason enough" to justify any abortion. And "legal scholars have long pointed to the shaky constitutional basis for a right to abortion."
To pro-lifers none of this is new. What is new is the exposure of Blackmun's legal naiveté and incompetence by a major newspaper.
I remember reading Roe v. Wade and Doe v. Bolton a day after they were issued. I was struck by the inadequacy of Blackmun's reasoning. There is Blackmun's pseudo-scholarly excursion into the history of abortion in ancient Persia, Greece, and Rome--all of it irrelevant to the constitutional issues at hand. There is his assertion that "we need not resolve the difficult question of when life begins"--the biological facts notwithstanding. Yet, a page or so later the issue is decided: "the unborn have never been recognized in the law as persons in the whole sense." The fetus is not a person under the Fourteenth Amendment, yet that same amendment contains an invisible right to abortion. And so on.