Abortion Case Will Be Key at Alito Hearing

Pennsylvania lawmakers were among the first anywhere to approve restrictions on abortion—including one that required women seeking the procedure to notify their husbands. Alito voted to uphold that requirement, but the Supreme Court disagreed, striking it down in a landmark 1992 decision that reaffirmed Roe v. Wade.

Senators are expected to grill Alito about the case, Planned Parenthood v. Casey, at his Supreme Court confirmation hearing, scheduled to begin Jan. 9. They're also expected to ask him about memos he wrote in the 1980s in which he said Roe should be overturned.

While the court's decision in Casey upheld a constitutional right to abortion, the justices gave states new powers to make it more difficult for women to end their pregnancies. For that reason, activists on both sides regard Casey as the court's most important abortion case since Roe, the 1973 decision that legalized abortion nationwide.

Since Casey, state legislatures have approved hundreds of new regulations that determine when, where and how women may get abortions.

Waiting periods, parental consent laws, informed consent requirements and other restrictions have become commonplace. According to NARAL Pro-Choice America, an abortion-rights group, states have passed more than 460 abortion measures since 1995, although not all of them survived court challenges.

"The Casey decision greatly weakened the standard of review by which restrictions on the right to choose would be viewed by the court," said Blake Cornish, NARAL legal director.

While disappointed that the court failed to overturn Roe, anti- abortion activists seized on the court's reasoning that states may pass restrictions so long as they do not present an "undue burden" to a woman seeking to end her pregnancy.

"The Casey decision obviously did not go as far as we would have wanted, but it did allow us to work on legislation that (resulted) in saving lives," said Mary Spaulding Balch, director of state legislation for National Right to Life, an anti-abortion group.

Casey arose from 1980s-era abortion laws that were among the first of their kind in the nation.

They required women to wait at least 24 hours for an abortion; to certify that they had informed their spouses of the intended procedure; and to receive information from a doctor about fetal development and abortion risks and alternatives. Another provision required teenagers to get permission from a parent or judge before ending their pregnancies.

A three-judge panel of the 3rd U.S. Circuit Court of Appeals upheld most of the restrictions, but voted 2-1 to overturn husband notification, ruling that it presented an illegal barrier to women seeking abortions. The lone dissenter was Alito, who pointed out that the provision did not give husbands veto power over their spouses' decisions.

Although the Supreme Court rejected Alito's analysis, abortion-rights activists say the Casey decision gave them little to cheer about.

"Even though Roe stayed intact technically, Casey was the first challenge to Roe that started the erosion of Roe that is still going on now," said Dayle Steinberg, president and chief executive of Planned Parenthood of Southeastern Pennsylvania, the lead plaintiff in the case.

Jennifer Boulanger, who heads an abortion clinic that was a co- plaintiff in Casey, said women especially chafe at the 24-hour waiting period that the court's ruling ushered in.

"Most women who are making this decision have thought about it for weeks. By the time they call us, they're ready. They don't want to have to wait any longer," said Boulanger, executive director of the Allentown Women's Center.

Anti-abortion activists say such rules have worked to reduce the number of abortions.

After Pennsylvania's first abortion restrictions took effect in the early 1980s, the number of abortions in the state declined sharply— while rising nationwide. In the 1990s, the nation's abortion rate dropped as states began following Pennsylvania's lead.

"We were light years ahead of everybody else," said former state Rep. Stephen Freind, the architect of virtually all of Pennsylvania's abortion restrictions.

A 2004 study commissioned by the conservative Heritage Foundation found that abortion restrictions—including parental involvement, informed consent, a ban on the type of late-term abortion known as partial-birth abortion, and a ban on Medicaid funding of abortion— all helped reduce the number of abortions.

Abortion-rights activists cite other factors for the nationwide drop in abortions, including a decline in the number of unwanted pregnancies.

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