November 7, 2005
Alito vs. Michelman
By Robert
Novak
WASHINGTON -- The abortion lobby faces an uphill battle to prevent
a pro-life justice from replacing a pro-choice justice on the Supreme
Court. That explains why abortion rights activist Kate Michelman
cited her personal history to try to generate emotion against the
nomination of Federal Appellate Judge Samuel Alito. The problem
is that the example she cited is inappropriate and inapplicable.
Michelman,
longtime former president of NARAL Pro-Choice America, said Alito
as a judge affirmed legislation that would have required her to
notify a husband who had abandoned her of plans to get an abortion.
That raised the prospect of women chasing after a deserting spouse,
desperately trying to find him in order to fulfill notification
requirements. In fact, the Pennsylvania law in question would
have exempted Michelman from spousal notification in such a situation.
That reflects
the difficulty by left-wing pressure groups in seeking to use
abortion to generate mass opposition to Alito. The right to abortion
as asserted in Roe v. Wade has popular support, but that
case will not be reconsidered by the Supreme Court in the foreseeable
future, and Alito would not make the difference if it were reviewed.
However, a Justice Alito probably would make it harder to get
an abortion, and that is a difficult goal for the Democrats to
oppose.
President
Bush had barely announced the Alito nomination last week when
Michelman delved into her personal history. "More than 30
years ago," she said, "as a young Pennsylvania mother
of three daughters who discovered I was pregnant after being abandoned
by my husband, I made the difficult personal decision to have
an abortion." She added that she faced "humiliation"
under what was then Pennsylvania law: "I would be required
to obtain the permission of the man who had deserted me and my
family."
Michelman
continued: "Roe v. Wade emancipated women from the
humiliation endured. Judge Samuel Alito voted to return us to
it." That referred to Alito's 1991 dissent on a three-judge
panel of the U.S. 3rd Circuit Court of Appeals, in which he favored
a provision of a 1990 Pennsylvania statute requiring that a woman
"has notified her spouse that she is about to undergo an
abortion." This provision in 1992 was declared unconstitutional
by a Supreme Court majority including the jurist that Alito would
be replacing: Justice Sandra Day O'Connor.
However,
Michelman did not disclose the exemptions to spousal notification.
As an abortion-seeking woman searching for the husband who has
abandoned her, she would only have had to provide a signed (not
notarized) statement that "her spouse, after diligent effort,
could not be located."
The abortion
lobby also raises the specter of Alito forcing a pregnant woman
to risk a beating by notifying a violent husband of her intended
abortion. Actually, the statute permitted a woman to exempt herself
with a non-notarized statement that she "has reason to believe
that the furnishing of notice to her spouse is likely to result
in the infliction of bodily injury upon her by her spouse or by
another individual."
These inconvenient
facts make it more difficult to demonize Alito in the way Sen.
Edward M. Kennedy in 1987 warned Robert Bork would mean "back-alley
abortions." The right to abortion is not in danger. Even
counting Alito, there are at most four votes to overturn Roe
v. Wade among nine Supreme Court justices.
But Alito
replacing O'Connor on the high court could mean a new majority
for parental and spousal notification as well as restrictions
on the partial-birth abortion technique. These are what strategists
for the Alito confirmation call the 70 percent issues -- where
70 percent of the public favors the conservative side.
The carefully
wrought Democratic master plan to stave off a conservative Supreme
Court is in ruins. Massive filibustering of appellate court nominees,
instead of intimidating Bush in Supreme Court nominations, resulted
in the formulation of tactical means (the "nuclear option")
to counteract filibusters.
The Democratic
dilemma is intense. While pro-choice pressure groups are so important
to Democratic fund-raising that the party cannot be seen retreating
on abortion, many party strategists admit privately that the issue
has been a net minus for them. Kate Michelman obscuring the issues
will not help.
Copyright
2005 Creators Syndicate
