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.