Alito and Partial Birth Abortion

Does Alito's decision in Farmer indicate he supports partial birth abortion, or would vote to strike down federal or state laws? Having read Alito's concurring opinion myself, I think not. In fact, I would say precisely the opposite.

Here is the beginning of Alito's opinion:

I do not join Judge Barry's opinion, which was never necessary and is now obsolete. That opinion fails to discuss the one authority that dictates the result in this appeal, namely, the Supreme Court's decision in Stenberg v. Carhart, 2000 WL 825889 (U.S. June 28, 2000). Our responsibility as a lower court is to follow and apply controlling Supreme Court precedent.

All I see here is Alito stating that the circuit court was bound by the Supreme Court's Stenberg v. Carhart decision, which struck down Missouri's partial birth abortion ban, to strike down the similiar New Jersey law. Now, to some pro-lifers, that alone is enough to damn Alito as a pro-abort. So bear with me as I unpack this a little.

There is nothing here to suggest that Alito himself agreed with the Carhart decision—in fact, as I'll explain below, there's every indication he did not agree with Carhart.

But even if Alito disagreed with Carhart, he does not have the authority, as an appellate judge, to make rulings that directly contradict Supreme Court decisions.

Only SCOTUS can overturn its own decisions (or the people, though the cumbersome process of amending the Constitution). Lower courts cannot do this. In fact, right now we at the Pro-Life Action League are fighting an attempt by the Seventh Circuit Court of Appeals to effectively overturn the Supreme Court's 8-1 decision in our favor.

In fact, Alito goes out of his way to say that the only reason the New Jersey partial birth abortion ban has to be overturned is SCOTUS's Carhart decision. Implicit in that statement is the fact that if SCOTUS were to decide the issue otherwise—if Carhart were to be reversed by a future SCOTUS decision—then the New Jersey law would be acceptable.

Alito also describes the majority opinion as "never necessary." That opinion was written before SCOTUS ruled in Carhart. It was held back awaiting the Carhart decision, but when Carhart came down, Justice Barry merely appended a brief mention of Carhart to the reasoning the majority had already embraced for overtuning the New Jersey law. (HT: Orin Kerr, Volokh Conspiracy.)

I think Alito is suggesting here that if it weren't for Carhart, he would have rejected the majority ruling and upheld New Jersey's ban on partial birth abortion.

It also looks to me as if Alito's decision in this case is carefully worded to allow such laws to be upheld in the future. He's offering the best pro-life opinion he can under the circumstances of being bound by SCOTUS.

The majority opinion, the one he did not join, held that there were other reasons, besides Carhart (which is hardly mentioned), for striking down this law. In that case, even if SCOTUS subsequently reversed Carhart, the New Jersey law would still be unacceptable for all those other reasons.

Alito is explicitly rejecting the majority's reasons for striking down the NJ law banning partial birth abortion. By saying that only Carhart requires the NJ law to be overturned, he makes it possible for the exact same law to be ruled constitutional if (when?) Carhart is overturned.

Interestingly, this is pretty much the reading that Planned Parenthood is offering about the case, in their statement denouncing Bush's nomination of Alito:

In Planned Parenthood of Central New Jersey v. Farmer, . . . Alito grudgingly applied the Supreme Court precedents in both Roe v. Wade and Stenberg v. Carhart to overturn the statute while refusing to endorse the reasoning of the Supreme Court in either case.

Let me offer a few more words here about the limits on Justice Alito's authority in this decision, since many pro-lifers will have difficulty accepting my characterization of an opinion rejecting a partial birth abortion ban as "pro-life."

Like it or not, appellate judges' hands are tied—their job, by its very definition, requires them to apply Supreme Court decisions, regardless of whether they think those decisions were reached correctly.

You might compare this to a police officer who is required to arrest a pro-lifer for an alleged violation of the Freedom of Access to Clinic Entrances Act (FACE), even if the officer is pro-life and believes FACE to be unconstitutional. No one could justly accuse a police officer for being pro-abortion for making such an arrest.

Or to use another example, we would not fault a police officer for not going into an abortion clinic and arresting the abortionist for murder, even if he thinks abortion is murder. We don't call every police officer a pro-abort for not arresting abortionists for murder, because we recognize he doesn't have that authority.

It's not for a police officer to decide whether FACE—or any other law—is constitutional; nor is it for an appellate judge to decide whether a SCOTUS ruling was correctly decided.

That so many pro-lifers have trouble with this idea shows, I think, how far we have adopted the idea that those men in black robes really do have unlimited power to decide the law—the "Supreme Beings" my father calls them. They don't—or shouldn't—have such power.

My reading of Alito's Farmer opinion is that he disagreed with SCOTUS in Carhart—and if he is confirmed, he'll be in a position to uphold the federal ban on partial birth abortion.

I also see here an admirable example of judicial restraint. Alito understands the limits to a judge's authority. That's exactly the kidn of man we desperately need on the Supreme Court.