U.S. Supreme Court Nominee Samuel A. Alito and the Abortion Opinions of the U.S. Court of Appeals for the Third Circuit

CRS Report for Congress
U.S. Supreme Court Nominee Samuel A. Alito and
the Abortion Opinions of the U.S. Court of
Appeals for the Third Circuit
December 16, 2005
Jon O. Shimabukuro
Legislative Attorney
American Law Division


Congressional Research Service ˜ The Library of Congress

U.S. Supreme Court Nominee Samuel A. Alito and the
Abortion Opinions of the U.S. Court of Appeals for the
Third Circuit
Summary
On October 31, 2005, Judge Samuel A. Alito was nominated by President
George W. Bush to replace retiring Associate Justice Sandra Day O’Connor. During
his tenure with the U.S. Circuit Court of Appeals for the Third Circuit, the court
considered a number of abortion cases, including Planned Parenthood of
Southeastern Pennsylvania v. Casey, a case that was later heard by the U.S. Supreme
Court. This report reviews the Third Circuit’s notable abortion opinions during
Judge Alito’s tenure and examines his concurring and dissenting opinions in some
of those cases.



Contents
Planned Parenthood of Southeastern Pennsylvania v. Casey.............1
Publicly-Funded Abortions......................................3
Claims Based on Fetal Death.....................................4
“Partial-Birth” Abortion.........................................6



U.S. Supreme Court Nominee Samuel A.
Alito and the Abortion Opinions of the U.S.
Court of Appeals for the Third Circuit
On October 31, 2005, Judge Samuel A. Alito was nominated by President
George W. Bush to replace retiring Associate Justice Sandra Day O’Connor. During
his tenure with the U.S. Circuit Court of Appeals for the Third Circuit, the court
considered a number of abortion cases, including Planned Parenthood of
Southeastern Pennsylvania v. Casey, a case that was later heard by the U.S. Supreme
Court. This report reviews the Third Circuit’s notable abortion opinions during
Judge Alito’s tenure and examines his concurring and dissenting opinions in some
of those cases. Judge Alito did not author the opinion of the court in any of the four
cases discussed in this report.1
Planned Parenthood of Southeastern Pennsylvania v. Casey
In Casey, the Third Circuit considered whether certain sections of the
Pennsylvania Abortion Control Act of 1982 were unconstitutional.2 These sections
imposed various consent, notification, and reporting requirements on individuals
either seeking or providing abortions. As a threshold matter, the Third Circuit sought
to determine the appropriate standard of review for abortion regulations. In Roe v.
Wade and subsequent abortion decisions, the Supreme Court indicated that such
regulations would be subject to strict scrutiny; that is, they would be upheld only if
they were necessary to satisfy a compelling governmental interest.3 However, the
Court’s decisions in Webster v. Reproductive Health Services and Hodgson v.
Minnesota, two abortion cases from 1989 and 1990 respectively, suggested that a4


new standard of review should be used by the lower courts.
1 Although Judge Alito authored the opinion of the court in two cases involving abortion and
asylum applications, he does not appear to have authored the court’s opinion in anyrd
substantive abortion case. See Zhang v. Gonzales, 405 F.3d 150 (3 Cir. 2005) (records
corroborating alien’s claim of forced abortion cannot be excluded based solely on alien’s
failure to comply with Immigration and Naturalization Service regulation); Chen v. Ashcroft,rd
381 F.3d 221 (3 Cir. 2004) (Board of Immigration Appeals’ determination not to extend
the statutory asylum protection afforded to women undergoing forced abortions to an
unmarried partner was reasonable).
2 947 F.2d 682 (3rd Cir. 1991).
3 For a discussion on Roe v. Wade and the U.S. Supreme Court’s other abortion decisions,
see CRS Issue Brief IB95095, Abortion: Legislative Response, by Karen J. Lewis and Jon
O. Shimabukuro.
4 492 U.S. 490 (1989); 497 U.S. 417 (1990).

After reviewing Webster and Hodgson, the Third Circuit concluded that it would
be improper to apply strict scrutiny to the state regulations. Instead, the court
determined that the appropriate standard of review was one that sought to determine
whether an abortion regulation imposes an undue burden on a woman’s ability to
have an abortion. This so-called “undue burden” standard had been discussed in
Justice O’Connor’s opinions in the two cases. Webster and Hodgson produced
splintered decisions in which multiple opinions were written. However, Justice
O’Connor’s opinions were controlling because she concurred in the judgment on the
narrowest grounds. Citing Marks v. United States,5 a 1977 case involving a statute
that barred the interstate transportation of obscene materials, the Third Circuit
explained: “Marks stands for a[n] important proposition: the controlling opinion in
a splintered decision is that of the Justice or Justices who concur on the ‘narrowest
grounds.’”6
Applying the undue burden standard to the relevant sections of the Pennsylvania
statute, the Third Circuit concluded that the provisions requiring informed and
parental consent, and those imposing reporting requirements on abortion providers
and facilities were permissible. However, the court determined that the spousal
notification requirement did impose an undue burden on a woman’s ability to have
an abortion. The Third Circuit maintained that there was a “realistic likelihood” that
a spouse could either prevent an abortion or cause serious physical or psychological
trauma for the pregnant woman if notification was required.7
In a separate opinion, Judge Alito concurred in the court’s judgment except with
respect to the spousal consent requirement. Judge Alito agreed with the majority’s
conclusion that the undue burden standard was the governing legal standard for
evaluating abortion regulations. However, he did not believe that the spousal
notification requirement imposed an undue burden on a woman’s ability to have an
abortion.
After examining Justice O’Connor’s opinions in Webster, Hodgson, and other
abortion cases in which she discussed the undue burden standard, Judge Alito
concluded that “an undue burden may not be established simply by showing that a
law will have a heavy impact on a few women . . . instead a broader inhibiting effect
must be shown.”8 Judge Alito maintained that the plaintiffs in Casey did not prove
that the spousal notification requirement would impose an undue burden: “Clearly
the plaintiffs did not substantiate the impact of [the requirement] with the degree of
analytical rigor that should be demanded before striking down a state statute.”9


5 430 U.S. 188 (1977).
6 Casey, 947 F.2d at 693.
7 Casey, 947 F.2d at 711.
8 Casey, 947 F.2d at 721.
9 Casey, 947 F.2d at 722.

In 1992, a plurality of the Supreme Court affirmed the Third Circuit’s decision
with respect to the spousal notification requirement.10 In a joint opinion, Justices
O’Connor, Kennedy, and Souter, writing for the Court, opined that the spousal
notification requirement is “likely to prevent a significant number of women from
obtaining an abortion.”11 The Court emphasized that the requirement
does not merely make abortions a little more difficult or expensive to obtain; for
many women, it will impose a substantial obstacle. We must not blind ourselves
to the fact that the significant number of women who fear for their safety and the
safety of their children are likely to be deterred from procuring an abortion as12
surely as if the Commonwealth had outlawed abortion in all cases.
Publicly-Funded Abortions
In Elizabeth Blackwell Health Center for Women v. Knoll, the Third Circuit
considered a challenge to Pennsylvania’s reporting and physician certification
requirements for publicly-funded abortions under the Medicaid program.13 The
Elizabeth Blackwell Center for Women, a reproductive healthcare facility that
provides abortions, and two other abortion organizations challenged the requirements
on the grounds that they were inconsistent with the so-called “Hyde Amendment,”
and thus invalid under the Supremacy Clause of the U.S. Constitution.14
The Hyde Amendment prohibits federal reimbursement for abortions except in
limited circumstances, such as when a pregnancy is the result of rape or incest, or
when the procedure is necessary to save the life of the mother.15 Federal regulations
and other agency directives for the implementation of the Medicaid program further
explain that federal funds are available for certain abortions:
As with all other mandatory medical services for which Federal funding is
available, States are required to cover abortions that are medically necessary. By
definition, abortions that are necessary to save the life of the mother are
medically necessary. In addition, Congress . . . added abortions for pregnancies


10 See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).
For a discussion on the U.S. Supreme Court’s decision in Casey, see Lewis and
Shimabukuro, supra note 3.
11 Casey, 505 U.S. at 893.
12 Casey, 505 U.S. at 893-94.
13 61 F.3d 170 (3rd Cir. 1995).
14 See U.S. Const. art. VI, cl. 2 (“This Constitution, and the Laws of the United States which
shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under
the Authority of the United States, shall be the supreme Law of the Land; and the Judges in
every State shall be bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding.”).
15 See Knoll, 61 F.3d at 173.

resulting from rape and incest to the category of medically necessary abortions16
for which funding is provided.
Pennsylvania law prohibited the use of federal or state funds for the termination
of pregnancies caused by rape or incest unless (1) a statement was obtained from the
physician performing the abortion that confirmed that the woman was a victim of
rape or incest and that she personally reported the crime to the appropriate law
enforcement agency together with the name of the offender; (2) the woman’s signed
statement to that effect was obtained from the physician; and (3) the appropriate state17
agency verified the reporting of the crime with the law enforcement agency. These
requirements could not be waived. In addition, in cases where the life of the mother
would be jeopardized if an abortion was not performed, Pennsylvania law required
an independent physician who would not perform the procedure and who had no
financial interest in the termination to certify the potential harm to the mother before
federal or state funds could be expended.18
The Third Circuit invalidated the reporting and physician certification
requirements on the grounds that they were inconsistent with the Hyde Amendment
and the agency’s interpretation of the Amendment. The court observed that the Hyde
Amendment “plainly puts participating states on notice of their obligations” to fund
certain abortions: “the Commonwealth was given clear notice that, if it elected to
continue to participate in the Medicaid program, it was obligated to provide funding
for such abortions.”19 Moreover, the Third Circuit stated that “any participating state
should have realized that reporting requirements could be so onerous as to defeat
Congress’s intent that Medicaid funding be provided for the categories of abortions20
in question.”
Judge Alito joined the majority in Knoll.
Claims Based on Fetal Death
In Alexander v. Whitman, the Third Circuit upheld the dismissal of a complaint
challenging the constitutionality of New Jersey’s Wrongful Death Act and Survival
Action Act.21 Alexander alleged that the two statutes were unconstitutional because
they denied recovery on behalf of stillborn fetuses in violation of the Equal
Protection and Due Process clauses of the Fourteenth Amendment of the U.S.
Constitution.22 She argued that her stillborn child was a “person” who was denied


16 Knoll, 61 F.3d at 174 (quoting December 28, 1993 directive to state Medicaid directors
from the Health Care Financing Administration).
17 Knoll, 61 F.3d at 175.
18 Knoll, 61 F.3d at 175-76.
19 Knoll, 61 F.3d at 177.
20 Knoll, 61 F.3d at 178.
21 114 F.3d 1392 (3rd Cir. 1997).
22 See U.S. Const. amend. XIV, § 1 (“No State shall make or enforce any law which shall
(continued...)

equal protection of the law because wrongful death and survival actions could not be
maintained on behalf of stillborn children. Under New Jersey law, however, such
actions could be brought on behalf of children who were injured prenatally, were
born, and then died as a result of the prenatal injury.
The Third Circuit refused to recognize Alexander’s equal protection claim.
Citing the Court’s analysis in Roe, the Third Circuit reiterated that “‘the word
‘person,’ as used in the Fourteenth Amendment does not include the unborn.’”23 The
court stated: “Since the unborn are not persons within the meaning of the Fourteenth
Amendment, no claim alleging an equal protection violation can be brought on behalf
of the stillborn child.”24
Alexander’s due process claim was premised on the notion that her relationship
with her unborn child during pregnancy was a fundamental interest that would
require the application of strict scrutiny to any statute that attempted to impact that
relationship.25 The court declined to consider whether a mother’s relationship with
her unborn child during pregnancy is a fundamental interest because it believed that
the statutes at issue did not affect Alexander’s relationship with her unborn child.
The Third Circuit explained: “A mother’s relationship with her fetus is exactly the
same whether or not she can bring a wrongful death or survivor action. It is not the
relationship that is affected here, it is the ability to recover for the loss of that
relationship.”26
Although the court did not subject the wrongful death and survival action
statutes to strict scrutiny, it did review the statutes under rational basis review, a less
rigorous standard of review that evaluates whether a measure is rationally related to
a legitimate state interest. Under that standard, the two statutes were easily upheld.
In a separate opinion, Judge Alito concurred in the court’s judgment, but made
two points. First, he expressed concern over the possible suggestion that there could
be “human beings” who are not “constitutional persons.”27 Second, Judge Alito
asserted that the doctrine of substantive due process must be informed by history. He


22 (...continued)
. . . deprive any person of life, liberty, or property, without due process of law; nor deny to
any person within its jurisdiction the equal protection of the laws.”).
23 Alexander, 114 F.3d at 1400 (quoting Roe v. Wade, 410 U.S. 113, 158 (1973)).
24 Id.
25 See Alexander, 114 F.3d at 1402-04. The Due Process Clause of the Fourteenth
Amendment requires that the government follow appropriate procedures when it seeks to
deprive any person of life, liberty, or property. In addition, courts have recognized a
substantive component of the Due Process Clause that guarantees protection for certain
rights or interests that have been found to be fundamental. When fundamental rights or
interests are involved, a state regulation limiting these rights or interests can be justified
only by a compelling state interest and only if they are narrowly tailored to satisfying that
interest.
26 Alexander, 114 F.3d at 1404.
27 Alexander, 114 F.3d at 1409.

explained: “It is therefore significant that at the time of the adoption of the
Fourteenth Amendment and for many years thereafter, the right to recover for injury
to a stillborn child was not recognized.”28
“Partial-Birth” Abortion
In Planned Parenthood of Central New Jersey v. Farmer, the Third Circuit
considered the constitutionality of the New Jersey Partial-Birth Abortion Ban Act of
1997.29 At the outset, the court’s opinion indicates that it was “in final form” before
Stenberg v. Carhart, a case involving Nebraska’s partial-birth abortion measure, was
argued before the U.S. Supreme Court.30 The Third Circuit noted:
Because nothing in [the Supreme Court’s Carhart] opinion is at odds with this
Court’s opinion; because, in many respects, that opinion confirms and supports
this Court’s conclusions and, in other respects, goes both further than and not as
far as, this opinion; and, because we see no reason for further delay, we issue this31
opinion without change.
In a separate opinion, discussed later in this report, Judge Alito concurred in the
judgment, but addressed the absence of any substantive discussion of Carhart in the
court’s opinion.
The New Jersey statute at issue in Farmer prohibited the performance of “an
abortion in which the person performing the abortion partially vaginally delivers a
living human fetus before killing the fetus and completing the delivery.”32 The
statute further defined the phrase “vaginally delivers a living human fetus before
killing the fetus” to mean “deliberately and intentionally delivering into the vagina
a living fetus, or a substantial portion thereof, for the purpose of performing a
procedure the physician or other health care professional knows will kill the fetus,
and the subsequent killing of the human fetus.”33 The statute included an exception
that would have allowed the prohibited procedure to be performed to save the life of
the mother, but did not include a similar exception to preserve the health of the
mother.
The District Court invalidated the New Jersey statute, finding that it was
unconstitutionally vague and imposed an undue burden on a woman’s ability to have
an abortion. The Third Circuit affirmed the lower court’s decision on similar
grounds. First, the Third Circuit agreed that the statute was unconstitutionally vague.


28 Id.
29 220 F.3d 127 (3rd Cir. 2000).
30 Id. at 130. For a discussion on Stenberg v. Carhart, see CRS Report RL30415, Partial-
Birth Abortion: Recent Developments in the Law, by Jon O. Shimabukuro.
31 Id.
32 N.J. Stat. Ann. § 2A:65A-6(e).
33 N.J. Stat. Ann. § 2A:65A-6(f).

The definition for the prohibited procedure was so broad that it encompassed almost
all forms of abortion. For example, the court observed:
the term ‘partially vaginally delivers’ could reasonably describe the delivery of
an intact fetus partially into the vaginal canal or the delivery of a fetal part into
the vaginal canal. All abortion procedures, save the hysterotomy and
hysterectomy which are typically not vaginal deliveries, could, therefore, be
encompassed within this definition because during each of the procedures a fetus34
may be partially delivered into the vaginal canal and thereafter killed.
The court noted that it is constitutionally impermissible to force a physician to guess
at the meaning of statutory language and risk losing a professional license and
receiving a heavy fine if the individual guesses incorrectly.35
Second, the Third Circuit determined that the New Jersey statute was
unconstitutional because it imposed an undue burden on a woman’s ability to have
an abortion. The court stated: “The Act erects a substantial obstacle because, as
already discussed in great detail, it is so vague as to be easily construed to ban even
the safest, most common and readily available conventional pre- and post-viability36
abortion procedures.” Moreover, the court noted that the measure would discourage
physicians from performing abortions because they would be unable to determine
precisely what kind of abortion was banned, and would fear license revocation and
fines.37 Thus, a woman’s ability to have an abortion would be unduly burdened.
In his concurring opinion, Judge Alito discussed the absence of any substantive
discussion of Carhart in the court’s opinion. He asserted that the responsibility of
a lower court “is to follow and apply controlling Supreme Court precedent.”38
Therefore, Judge Alito maintained that Carhart “compel[led] affirmance of the
decision of the District Court,”39 and contended that the court’s opinion “is now40
obsolete.”
Judge Alito’s discussion of precedent in his Farmer concurrence, and his
examination and acknowledgment of the relevant Supreme Court cases in his Casey
and Alexander opinions seem to suggest a recognition not only of the importance of
precedent, but the appropriate role of the lower courts with regard to precedent.
However, Judge Alito’s approach in these opinions may not provide an indication of
how he might analyze cases as a Supreme Court Justice. Unlike lower courts, the


34 Farmer, 220 F.3d at 136.
35 Farmer, 220 F.3d at 137-38.
36 Farmer, 220 F.3d at 144.
37 Farmer, 220 F.3d at 145.
38 Farmer, 220 F.3d at 152.
39 Farmer, 220 F.3d at 153.
40 Farmer, 220 F.3d at 152.

Supreme Court is free to change the standard or result from one of its earlier cases
when it finds it to be “unsound in principle [or] unworkable in practice.”41


41 Garcia v. San Antonio Metropolitan Transit Authority, 469 U.S. 528, 546 (1985).