WASHINGTON -- Judge Samuel A. Alito Jr.'s controversial dissenting opinion in 1992 in the landmark abortion case Planned Parenthood v. Casey immediately placed abortion at the forefront of the unfurling debate over his nomination yesterday.
As a judge on the 3rd U.S. Circuit Court of Appeals, Judge Alito joined his colleagues in affirming a number of the restrictions that the Pennsylvania Abortion Control Act of 1982 placed on abortion that were being challenged, including the 24-hour waiting period before a woman can have an abortion and the requirement for minors to get parental consent unless they receive a waiver from a judge.
But Judge Alito went a step further than his two colleagues -- stating in a separate opinion that he did not think it was an undue burden for women to notify their husbands before having an abortion.
In 1992, the Supreme Court upheld the other restrictions while reaffirming a woman's underlying right to abortion under Roe v. Wade, but struck down the spousal-notification provision.
The question for senators who support abortion rights will be whether Judge Alito's views as expressed in his support for requiring spousal notification suggest that he would restrict abortion rights.
Abortion-right supporters were also alarmed yesterday by the comments of Judge Alito's mother, who told the Associated Press, "Of course, he's against abortion."
Conservative groups -- after stridently objecting to the hazy and contradictory abortion views of Mr. Bush's previous court nominee, Harriet E. Miers, who withdrew her name last week -- yesterday showered Judge Alito with praise.
They said his dissent in Planned Parenthood v. Casey illustrated his long record of deferring to the states regarding sensitive matters such as abortion and gun rights.
Groups on the left, some of whom immediately opposed the new nominee, said the dissent in the Planned Parenthood case was an ominous sign that Judge Alito could endanger women's reproductive rights.
Democratic senators on the Judiciary Committee, who favor abortion rights, wrapped Judge Alito's writings on abortion into their broader concern -- in the words of Sen. Edward M. Kennedy, D-Mass. -- that Judge Alito could push the court so far to the right that he would put at risk "decades of American progress in safeguarding our fundamental rights and freedoms."
The judiciary panel's top Democrat, Sen. Patrick Leahy of Vermont, called the choice "needlessly provocative" and criticized Ms. Miers' withdrawal as the result of a "right-wing litmus test."
Sen. Charles E. Schumer, D-N.Y., said concerns among Democrats -- who are ever cautious not to appear as though they have their own litmus test -- could not be narrowed to one issue.
"Many of the opinions that he has written over the last 15 years cast real doubt on whether he can be a fair, mainstream, albeit conservative judge, who strives to protect the rights of all Americans, instead of a judge who will use his power to restrict those rights and legislate from the bench," Mr. Schumer said.
But Judiciary Chairman Arlen Specter, R-Pa., who also supports abortion rights, plunged directly into the abortion issue yesterday during his 75-minute meeting with Judge Alito.
Mr. Specter said the nominee told him that he believes that there is a right to privacy under the Constitution's Liberty Clause, and that the Griswold v. Connecticut case, which upheld the right of married couples to use contraception and was an underpinning of Roe v. Wade, was "good law."
Mr. Specter said he thought Judge Alito's views in Planned Parenthood v. Casey would be "a factor" in the decision-making process of senators, but he described that dissent as "a very narrow ruling, very carefully crafted on the basis of Justice O'Connor's decisions in previous cases about what would constitute an undue burden for the woman."
"There's nothing in his dissent which suggests disagreement with the underlying decision in Roe v. Wade," Mr. Specter said. "But I'm sure it'll be a subject of discussion at the hearings."
The chairman also said he had asked Judge Alito many of the same questions that he asked then-Judge John G. Roberts Jr. about whether Roe v. Wade was a "super-duper precedent" because the high court had opportunities to overrule it but on numerous occasions had not. "He [Mr. Alito] used the term 'sliding scale' and said that when a case has been reaffirmed many times, it has extra -- I think he said 'weight' -- as a precedent," Mr. Specter said.
But many of the interest groups concerned about abortion issues were skeptical of how heavily Judge Alito would weigh the Roe case in future decisions on abortion.
"The Miers nomination process exposed the far-right's agenda on Roe: They want it eviscerated, or they want it overturned. And they are jubilant about [Judge] Alito," said Nancy A. Keenan, president of the abortion rights group NARAL Pro-Choice America. "That tells us a lot."
"I think it's pretty clear he would remove constitutional protections for women's health and rights if given the chance," said Laura Hessburg, director of public policy at the National Family Planning and Reproductive Health Association. "To us, it's just a slam-dunk case that he's not going to be a swing vote, and there's no hope there. So it's really defeating."
But Tony Perkins, president of the conservative Family Research Council, said the criticism from the left regarding Judge Alito's record on abortion was grounded in liberals' attempts "to maintain control of the court and impose their policy ideas on America."
Mr. Perkins said the reason Judge Alito's dissent in Planned Parenthood v. Casey, among other cases, makes conservatives comfortable is because it shows a broader commitment to giving deference to state legislatures on policy matters -- as was the case with the abortion restrictions that Pennsylvania's lawmakers had passed.
"[Judge Alito] didn't decide that policy; he didn't oppose that policy. That was a policy created by the elected representatives of the people," Mr. Perkins said. "That is the epitome of a judge that shows judicial restraint."
