The Nine [19]
Unlike the other branches of government, the courts, even the justices of the Supreme Court, cannot simply decide to take action on an issue of importance to them. They must wait until a case happens to move through the lower courts in a way that raises the issue. Savvy lawyers can shape the process. Indeed, as the Court became more conservative in the Burger years, certain liberal civil rights groups would sometimes actually put up money to pay off plaintiffs in controversial cases, so that the justices would not decide the case and create a “bad” precedent. But sometimes the interests aligned so that a major issue landed in the Court at the most dramatic possible time. That was what happened right after Thomas joined the Court.
In the years since Roe, states with antiabortion majorities had tried in different ways to pass restrictive laws that the Supreme Court would approve. The laws tracked the evolution of the Court. As the Court became more conservative, the states became bolder in tightening the restrictions. Anticipating the Court’s move to the right on abortion—and hoping to push it further in that direction—Pennsylvania had passed one of the nation’s most restrictive laws in 1989. The law forced women who wanted an abortion to wait twenty-four hours after contacting a clinic before getting one, and mandated that the women be given a lecture about fetal development and alternatives to abortion. Minors seeking abortions would have to get permission from a parent (or a judge), and married women would have to inform their husbands of their plans.
On October 21, 1991—six days after Thomas was confirmed and two days before he was sworn in—a three-judge panel of the United States Court of Appeals for the Third Circuit upheld the Pennsylvania law almost in its entirety. The majority in Planned Parenthood of Southeastern Pennsylvania v. Gov. Robert P. Casey rejected only one part of the law, the provision mandating that married women first inform their husbands if they sought an abortion. “Most married women will discuss the abortion decision with their husbands,” the majority said. But some married women would not, because “many husbands are capable of violence in circumstances of this kind and will use physical force and the threat thereof to keep the wife from access to the clinic.” The third judge on the Third Circuit panel disagreed, arguing that he would have upheld the spousal notification requirement along with the rest of the law.
That third judge, Samuel A. Alito Jr., had just been appointed to the bench a year earlier by President George H. W. Bush, and this was his first major opinion. He was only forty-one years old, a former federal prosecutor and Justice Department official who could expect serious scrutiny as a possible Supreme Court candidate down the line. Like all such judges, Alito knew that he would be in great measure defined by how he ruled on abortion. So the case was of no small consequence, and unlike the other judges on his panel, Alito didn’t split the difference. He supported all of Pennsylvania’s restrictions—including the requirement that women notify their spouses in advance before obtaining an abortion.
Spousal notification would affect very few women in Pennsylvania, Alito said. The evidence in the case showed that between 70 and 80 percent of women who sought abortions were unmarried, he noted, and 95 percent of married women who sought abortions did tell their husbands. “Thus, it is immediately apparent,” Alito wrote, that the law “cannot affect more than about 5 percent of married women seeking abortions or an even smaller percentage of all women desiring abortions.” In light of these small numbers, there was no “broad practical impact needed to establish an ‘undue burden.’ ”
In one important respect, the three Third Circuit judges agreed. By 1992, Roe v. Wade was still nominally the leading Supreme Court case on abortion rights, but the Third Circuit scarcely paid any attention