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In Pennsylvania, abortion debate comes full circle

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Pennsylvania, the old political saw goes, is Philadelphia on one side, Pittsburgh on the other, and Alabama in between. That makes us the perfect microcosm for the United States -- which, after all, consists of New York on one side, California on the other, and a lot of red states in the middle.

 

Maybe that's why Pennsylvania has reflected the country's muddled thinking about abortion, a right we limit even while acknowledging it. Maybe it's also why we've produced pro-choice Republicans like Sen. Arlen Specter, and pro-life Democrats like the Casey family.

 

But what Pennsylvania has given -- a muddled, middle-of-the-road approach to abortion that blurs party lines -- it is now poised to take away. Witness the nomination of Samuel Alito to the Supreme Court bench.

 

The controversy surrounding Alito is in many ways a Keystone State creation. He has presided over a federal appeals court based in Philadelphia. And Philly is, of course, the stomping grounds of Specter, who presides over the judiciary committee that will grill Alito in January's confirmation hearings. During those hearings, moreover, Specter and Alito will likely spar over two Supreme Court cases involving Pennsylvania's abortion law.

 

The first is Thornburgh vs. American College of Obstetricians and Gynecologists, which came before the Supreme Court while Alito was a lawyer in Ronald Reagan's Justice Department. The case involved restrictions that Pennsylvania's then-governor, Richard Thornburgh, placed on a woman's right to choose. In a 1985 legal memo, Alito noted that the Supreme Court was unlikely to overturn abortion rights. However, he wrote, the case "may be an opportunity to nudge the court toward...greater recognition of the states' interest in protecting the unborn throughout pregnancy."

 

Alito's bosses rejected this counsel: Instead, they launched a frontal attack on Roe vs. Wade, the case establishing a Constitutional right to abortion. But while Alito's legal strategy was ignored, his memo anticipated the anti-choice political playbook for the next 20 years. 

 

Three years after Alito wrote his memo, Pennsylvania adopted another series of restrictions on abortion, these signed into law by pro-life Democrat Robert Casey. The measures included a 24-hour waiting period, parental notification when the mother is under age 18, and notification of the husband. In effect, Casey's law did what Alito had counseled -- restrict abortion as much as possible within the terms set by Wade.

 

The provisions were challenged in the case Planned Parenthood vs. Casey, and the resulting 1992 Supreme Court decision is almost as important as Roe itself. That decision upheld a woman's right to choose, but it also upheld most of the state's restrictions. Only the husband-notification provision was struck down -- though Alito himself, sitting on his perch on the Philadelphia appeals court, had endorsed it.

 

The Casey decision was the harbinger for what followed: There have been repeated attempts to outlaw certain abortion techniques, and Pennsylvania-style restrictions enacted elsewhere. And the guy who advised a stealth attack on abortion 20 years ago, meanwhile, has become a stealth candidate for the Supreme Court today.

 

No one can say for sure how Alito will rule on abortion cases: He's certainly not going to tell us. But in another 1980s memo, Alito said that among the beliefs  "in which I personally believe very strongly" was the argument that "the Constitution does not protect a right to abortion."

 

Alito has said he was acting as an advocate back then rather than a judge, but so what? If he believes "very strongly" that the Constitution does not protect abortion rights, how could that not affect his rulings? Interpreting what's in the Constitution is what the Supreme Court does.

 

But Specter has yet to acknowledge that. Asked about Alito's response to the memo, Specter told reporters, "I am not satisfied, I am not dissatisfied."

 

That's probably how Republican moderates would prefer everyone to feel. Republicans have taken power in Washington partly because the GOP has campaigned against abortion without ever overturning it. Actually winning the battle against Roe risks driving away many women and independent voters.

 

What we've had, then, is a non-consensual consensus about abortion. For decades it has prevailed in -- and exists partly because of -- Pennsylvania's weird hybrid politics. That hybrid gave us Arlen Specter, and an approach to abortion whose confusion largely mirrors the conflicted feelings of America's tepidly pro-choice majority. 

 

But now that bipartisanship, and the right to choose itself, may be disappearing.

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