Media mischaracterized Alito opinion striking down late-term abortion ban

[struggle4progress]

Numerous broadcast and print media have mischaracterized a concurring opinion issued by 3rd U.S. Circuit Court of Appeals Judge Samuel A. Alito Jr. -- now a Supreme Court nominee -- in the 2000 case Planned Parenthood of Central New Jersey v. Farmer, which struck down a ban on terminating later-term pregnancies. The media reports have juxtaposed Alito's opinion in Farmer with his dissent in a 1991 case striking down abortion restrictions to falsely suggest that Alito has issued conflicting rulings on abortion. In fact, Alito pointedly noted in his concurring opinion in Farmer that he was voting to strike down the abortion ban only because, as an appellate judge, he was bound by Supreme Court precedent, and he criticized the majority opinion for providing a detailed analysis of how the Supreme Court reached its decision.

The news reports cited Alito's Farmer opinion as counterevidence to his dissent in a 1991 case, Planned Parenthood of Southeastern Pennsylvania v. Casey, which struck down a spousal notification requirement that Alito said was constitutional. In 1992, the Supreme Court, by a 5-4 vote, struck down the spousal notification provision. But Alito's concurring opinion in Farmer does not suggest a contrary view of abortion rights to what Alito had articulated in his Casey dissent. Alito issued a concurring opinion in Farmer, rather than joining the majority opinion, in order to indicate that he was voting to strike down the abortion ban only because he was obligated to follow Supreme Court precedent -- in this case the Supreme Court's 2000 decision in Stenberg v. Carhart, in which the court struck down a Nebraska law restricting certain late-term abortion procedures as an undue burden, in part because the ban did not include an exception for the health of the pregnant woman. Alito explicitly distanced himself from the majority opinion's affirmation that "nothing in that opinion is at odds with this court's opinion," writing that in light of the controlling precedent of Stenberg v. Carhart, the circuit court's majority opinion "was never necessary and is now obsolete."

The media's citation of Alito's concurrence in Farmer recalls a similar mischaracterization of remarks made by Chief Justice John G. Roberts at his hearing for his nomination to the federal appellate court. After Roberts's nomination to the Supreme Court, many reports wrongly cited Roberts's pledge at his 2003 appellate court nomination hearing to "fully and faithfully apply" Roe v. Wade -- the 1973 ruling affirming the right to an abortion -- as the "settled law of the land," as evidence that he would vote to uphold the decision if confirmed to the Supreme Court. Media Matters for America documented numerous instances of this mischaracterization and noted that his comments about Roe in the context of his appellate court nomination gave no information about how he would rule on the Supreme Court. <snip>

http://mediamatters.org/items/200511010015