Alito voted to uphold it as a judge on the U.S. 3rd Circuit Court of Appeals. He argued that the law did not put an "undue burden" on women, and he did so based on his reading of a standard set by Justice Sandra Day O'Connor in earlier cases that tested whether teenage girls must notify their parents before getting an abortion.
But when the Pennsylvania case reached the Supreme Court, O'Connor and the court majority rejected Alito's view and characterized the "spousal notification" law as an insult to married women.
"Women do not lose their constitutionally protected liberty when they marry," the court said in an opinion written in part by O'Connor. It is "repugnant to our present understanding of marriage" to permit the state "to enable the husband to wield an effective veto over his wife's decision," the high court said.
O'Connor set a middle course. She said states could regulate abortion so long as they did not put an "undue burden" on a woman's decision to end a pregnancy. She voted to uphold regulations that required doctors to wait 24 hours after a pregnant woman asked to have an abortion. She also upheld rules that required teenage girls to notify a parent before seeking an abortion.
Alito said.
"The Pennsylvania Legislature could have rationally believed that … discussion prior to the abortion" between a wife and her husband might prompt her to rethink her plans to obtain an abortion, he said. "We have no authority to overrule that legislative judgment even if we deem it unwise or worse," he concluded.
The case was appealed to the Supreme Court, and it set up a showdown in 1992 over abortion and the fate of Roe vs. Wade. To the surprise of many observers, the court, despite the recent addition of two Republican appointees, issued a resounding 5-4 opinion that pledged to uphold the right of women to choose abortion.
The court's opinion also upheld the 3rd Circuit's ruling and threw out the "spousal notice" rule. O'Connor made clear she found the Pennsylvania ruling offensive to women.
"A state may not give to a man the kind of dominion over his wife that parents exercise over their children," she said in the joint opinion for the court.
