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Alito's record has feminists ready for battle
San Francisco Chronicle


November 23, 2005

From abortion to sex discrimination to family leave, some of Samuel Alito's most important rulings during 15 years on the federal bench have involved issues related to women, and some of the strongest opposition to his Supreme Court nomination comes from women's-rights groups.

Alito's record on these issues is not uniformly conservative. He has voted to overturn some abortion restrictions, and he wrote a groundbreaking decision in 1993 that opened the door to political asylum for women fleeing persecution in their home countries.

But his opinions have more typically reached conclusions that dismayed feminist groups - giving states more leeway to limit abortions, making it harder for discrimination plaintiffs to get to trial, and arguing for restraints on federal regulatory power, the cornerstone of civil-rights laws.




Alito's opponents say those decisions show that the judge maintains the attitudes he expressed as a government lawyer in a newly disclosed 1985 job-application letter, in which he described himself as a committed conservative who was proud of helping the Reagan administration argue against a constitutional right to abortion.

On women's issues, Alito's critics say, his record stands in marked contrast to the record of the justice he would replace, Sandra Day O'Connor, the first woman ever appointed to the court.

"Justice O'Connor was the fifth vote in many 5-4 decisions that protected women's fundamental rights and freedoms," said Marcia Greenberger, co-president of the nonprofit National Women's Law Center. "In nominating Judge Alito, President Bush has chosen someone who threatens the very existence of core legal rights that Americans, especially women, have relied on for decades."

"We are dismayed by Judge Alito's hostility to women's rights," said Susan Scanlan, chair of the National Council of Women's Organizations, which counts 200 feminist-oriented groups as members.

Alito is not speaking to reporters about his nomination, the White House said. But some who know him say his critics are unfairly depicting him as biased based on a handful of rulings, and that none of those cases shows the judge is hostile to women's rights.

"If you look at each one of these cases ... there's definitely not an anti-woman agenda and definitely not an anti-feminist agenda," said Nora Demleitner, a self-described liberal who was a law clerk for Alito in 1992-93 and now is a law professor at Hofstra University in New York.

Demleitner cited Alito's 1993 ruling on political asylum, the first by any federal appeals court to find that a nation's persecution of women could be grounds for asylum in the United States.

Alito found that the woman in that case, an Iranian who objected to wearing a veil, did not qualify for asylum as a political refugee. But he also said persecution of women or feminists could be a basis for granting refugee status, "not something you would expect if you believed he was a staunch conservative," Demleitner said.

On the other hand, she said, "I don't think his life experience would alert him to women's issues" in the same way it sensitized O'Connor and Justice Ruth Bader Ginsburg, the court's other woman. That may have been a factor, Demleitner said, in Alito's most prominent abortion opinion.

In the 1991 case of Planned Parenthood v. Casey, Alito dissented from a 2-1 ruling by the 3rd U.S. Circuit Court of Appeals in Philadelphia that overturned a Pennsylvania law requiring a married woman to notify her husband before having an abortion. He concluded that, for most women, the requirement would not impose an "undue burden."

Alito said most married women already discussed abortions with their husbands, and that some who feared doing so would be protected by the state law's exemption for battered wives. As long as the law had a rational purpose - such as protecting the husband's interest in the welfare of the fetus - it was constitutional, Alito said, even if it has "a heavy impact on a few women" or "would inhibit abortions to some degree."

The Supreme Court's 1992 ruling in the same case, which upheld a constitutional right to abortion and struck down the spousal-notification law by 5-4 votes, had a different tone and perspective.

The lead opinion by O'Connor and Justices Anthony Kennedy and David Souter focused on the plight of the women who would be most affected by the law - those who feared physical or psychological abuse if they told their husbands they were considering an abortion. The evidence showed that these women would constitute a "large fraction" of those covered by the law, the justices said.

"A husband has no enforceable right to require a wife to advise him before she exercises her personal choices," they wrote.

A comparison of the two opinions shows that Alito "discounted evidence of harm to women" because it couldn't be quantified, said Judy Appelbaum, vice president and legal director of the National Women's Law Center.

But Douglas Kmiec, a conservative Pepperdine University law professor, said Alito had merely been applying a previous Supreme Court standard that a law should be overturned only if it would be unconstitutional in nearly all its applications. The "large fraction" standard that O'Connor and the other justices spelled out in the 1992 ruling was a new approach that Alito could not have foreseen, Kmiec said.

Alito has taken part in two other significant cases in which he voted with a majority of his court to overturn state abortion laws. A 1995 decision struck down a Pennsylvania law requiring low-income women to report cases of rape or incest to police before receiving federal funding for their abortions. A 2000 ruling overturned New Jersey's ban on abortions in which the fetus is removed partially intact before being destroyed.

Both rulings relied on Supreme Court decisions, but some anti-abortion groups have expressed concern about Alito's acquiescence.

In several discrimination cases, Alito has dissented from rulings that upheld or reinstated suits by employees. He was the sole dissenter in a 10-1 decision in 1996 that restored a jury verdict in favor of Barbara Sheridan, a Delaware hotel employee who claimed she had been denied a promotion because of her sex and punished for complaining about it.

Alito argued that the trial judge was entitled to throw out the verdict and dismiss the suit because Sheridan had provided no direct evidence that her company had intentionally discriminated against her.

The court majority said an employee can put her lawsuit before a jury if she shows that the reasons her employer gives for acting against her - in Sheridan's case, poor performance and misconduct - have no basis in fact.

Rachel Brand, an assistant attorney general speaking for the Bush administration, described the ruling as "a narrow disagreement between Alito and the majority." She said the Supreme Court, in a later discrimination case, adopted the reasoning that Alito had used in his dissent.

In another case, Alito dissented from a 2-1 ruling in 1997 reinstating a race-discrimination suit by Beryl Bray, a black employee of a New Jersey hotel who claimed she had been unfairly passed over for promotion. The majority said a jury should decide whether discrepancies in the hotel's treatment of Bray and a white candidate were the result of racism; Alito said the hotel's failure to follow some of its own procedures was not significant enough to cast doubt on management's belief that the other candidate was better.

Alito has sided with plaintiffs in a few such cases, "but overall, when there are choices to be made, his tend to be against the victims of discrimination," said Erwin Chemerinsky, a liberal Duke University law professor. "O'Connor is more sympathetic to victims of discrimination and to women."


(Distributed by Scripps Howard News Service,

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