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Toobin: Alito could 'have a big impact very fast'

CNN legal analyst Jeffrey Toobin


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Samuel Alito

(CNN) -- President Bush on Monday nominated Circuit Court Judge Samuel Alito to replace Justice Sandra Day O'Connor. Alito, a former U.S. attorney who has been a judge for 15 years, is considered a favorite of conservatives.

CNN anchor Kyra Phillips spoke Monday with CNN senior legal analyst Jeffrey Toobin about one of Alito's better-known and controversial decisions as a judge.

PHILLIPS: We were talking a little bit about Judge Alito's background. And you and I have picked a couple issues to sort of focus on. Let's start with abortion. And this ruling requiring women seeking abortions to notify their husbands. You can misinterpret this ruling, right?

TOOBIN: Pennsylvania passed a law, that said, among other things, if a married woman wants to get an abortion, she is required to notify first her husband. And ... Judge Alito did something interesting. He actually anticipated correctly that the Supreme Court would use a new test.

The law has changed since Roe v. Wade. And Justice O'Connor proposed a test on abortion -- she said if the law imposes an undue burden on a woman's right to choose, then it's unconstitutional. Well, what Judge Alito did in his own opinion is, he said, well, as far as I can tell, this imposing this notification of the husband requirement was not an undue burden.

Well, the Supreme Court said, well, you got the test right. The test is undue burden, but the result was wrong. We, five justices on the court -- and it was a 5-4 decision in 1992 -- said, we believe that notification of the spouse requirement is too much, too much of an undue burden on the woman, and we strike it down as unconstitutional.

The language is not particularly inflammatory, but the substance of the decision is one that pro-lifers will like and pro-choicers will fear a great deal.

PHILLIPS: So, bottom line is, husband should know. But husband does not make the decision for the wife on what to do?

TOOBIN: Well, the law only said no to notification. The law didn't give the husband a veto power.


TOOBIN: But the Supreme Court said, even just a notification requirement was too much of an undue burden. And that -- they struck that law down.

PHILLIPS: All right. So considering how Judge Alito went forward with that, how could that impact? Because there are a number of cases waiting to be looked at, correct? How could that -- I guess his mentality -- impact an upcoming case?

TOOBIN: Well, you know, the Supreme Court hasn't dealt with the issue of abortion in five years. It's been a pretty long time. But the court has at least one, and probably two abortion cases.

One is going to be argued on November 30, while Justice O'Connor is still sitting, although she won't get to vote until the opinion is rendered.

But there's a case coming out of New Hampshire, it's up there on -- Ayotte versus Planned Parenthood, which is about the parental notification law. It's somewhat of an obscure corner of abortion law. It's not dealing with all parental notification laws.

But basically, New Hampshire tried to tighten the law, tried to make it more difficult for young women to get abortions. And this is the first time the court is going to deal with one of these issues in five years.

Perhaps even more dramatic is, later in the term, the court almost certainly will deal with the issue of partial-term abortions or late-term abortions. In 2000, the Supreme Court voted 5-4 to strike down Nebraska's law with Justice O'Connor in the pro-choice majority.

The court will probably have new membership, and it seems very likely if Judge Alito is on the court, the court could switch 5-4 the other way, allowing the partial-birth abortion law to stand.

So, I mean, this is going to have a big impact and soon if a pro-lifer, if that's ... what Judge Alito turns out to be, if he's appointed, could have a big impact very fast.

PHILLIPS: It's hard. Scalia, Scalito, Alito. I know, it's a big tongue twister.

TOOBIN: This is the first Supreme Court nominee whose nickname will be an issue on his confirmation, because his nickname is Scalito, little Nino Scalito.

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