WASHINGTON, Oct. 31 - The 1991 abortion case on which the confirmation of Judge Samuel A. Alito Jr. to the Supreme Court may hinge arrived at his Philadelphia-based federal appeals court at a moment of great ferment in the development of abortion law.
The Supreme Court's 7-to-2 majority for abortion rights, as expressed in the 1973 Roe v. Wade opinion, had eroded to the vanishing point. The center of gravity was held by Justice Sandra Day O'Connor, whose position was difficult to parse and appeared to be evolving toward an uncertain destination.
The question facing Judge Alito and his colleagues on a three-judge appellate panel was the validity of a 1989 Pennsylvania law that placed various obstacles in the path of women seeking abortions.
All three judges agreed that most of the provisions were constitutional, as the Supreme Court itself eventually did. But on one important point, a requirement that a married woman notify her husband before obtaining an abortion, Judge Alito found himself at odds with his two colleagues, and ultimately with the Supreme Court's ruling, which sparked a debate on the high court that remains unresolved today.
The appeals court judges anticipated the Supreme Court's imminent adoption of Justice O'Connor's test for whether a regulation placed an "undue burden" on a woman seeking to exercise her constitutional right to terminate a pregnancy.
That was not as strict a test as the Supreme Court had adopted in Roe v. Wade, but it was still a test with teeth. Just the previous year, Justice O'Connor had joined the court's four most liberal members to rule that a law that required teenagers seeking abortions to notify both parents, and that did not provide the alternative of seeking permission from a judge, was unconstitutional.
The only dispute on the United States Court of Appeals for the Third Circuit was how to apply Justice O'Connor's "undue burden" test to the spousal notification provision of the Pennsylvania's Abortion Control Act.
Judge Alito's two colleagues, Judges Walter K. Stapleton and Collins J. Seitz, surmised that Justice O'Connor, casting the controlling vote on the Supreme Court, would find this provision unconstitutional.
They noted that most women seeking abortions were unmarried, and thus unaffected by the provision, and that among married women, most chose to involve their husbands in the abortion decision. But for those married women who feared the consequences of telling their husbands, the two judges said, the burden was indeed severe and failed to meet the test.
Judge Alito disagreed. The number of women who would be adversely affected by the provision, admittedly small, was unknown, he said, and the evidence of likely impact was insufficient to provide for striking down a new law on its face, before its impact could be tested and demonstrated. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.
Judge Alito's dissenting opinion went on to note that "needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern." But the Pennsylvania legislature took that concern into account, he said, in writing into the law an exception for a woman who "has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Further, he said, the law would be "difficult to enforce and easy to evade," because it required no proof beyond a woman's word that she had notified her husband.
The provision survived his understanding of the undue burden test, Judge Alito said, adding that "the Pennsylvania legislature presumably decided that the law on balance would be beneficial" and "we have no authority to overrule that legislative judgment, even if we deem it 'unwise' or worse."
The Supreme Court's decision the next year, in Planned Parenthood of Southeastern Pennsylvania v. Casey, proved him wrong. The 5-to-4 majority, which included Justice O'Connor, struck down the notice requirement as an undue burden on those few women whom it would place at risk.
A new abortion case to be argued on Nov. 30, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, poses a variant of the same question. The federal appeals court in Boston extrapolated from the Casey decision and struck down a New Hampshire parental-notification requirement for minors seeking abortions on the ground that because its lack of a provision for a health emergency would place a severe burden on some fraction of teenagers, the burden was "undue" for all.
Backed by the Bush administration, the state is arguing that the lower courts overreached in striking down the law, which was passed in 2003, before it had a chance to go into effect. In fact, the administration is arguing that the likelihood of an unconstitutional application of the law is so remote that it should survive scrutiny at this stage even with the approach the Supreme Court took in the Casey decision.
While the New Hampshire law lacks the explicit health exception that the Supreme Court's abortion precedents have required, the state argues that doctors and judges would apply the parental notice requirement sensibly and that "minors face no risk that doctors will not do what is best for their patients."
If Judge Alito is confirmed, he will vote in this case only if Justice O'Connor has cast the deciding vote, and then only if the court decides after she leaves the bench to break the tie by rearguing the case.