No, Justice Alito did not agree with Trump’s sister on partial-birth abortion

For months, Donald Trump ignored criticism that he floated the idea of putting his sister, Third Circuit Judge Maryanne Trump Barry, on the Supreme Court despite her support for partial birth abortion. But the recent death of originalist Justice Antonin Scalia put new urgency on the issue of judicial nominees, so he finally walked back his earlier comments and suggested he was just kidding.

That was problematic enough (his original answer that she would make “one of the best” justices certainly didn’t sound like a joke), but at least it was an answer. But in the most recent debate, Trump muddied the waters yet again by invoking Justice Samuel Alito, who also served on the Third Circuit at the time, to suggest that his sister’s ruling wasn’t so bad after all…

Now, Ted’s been very critical — I have a sister who’s a brilliant — excuse me. She’s a brilliant judge. He’s been criticizing — he’s been criticizing my sister for signing a certain bill. You know who else signed that bill? Justice Samuel Alito, a very conservative member of the Supreme Court, with my sister, signed that bill. So I think that maybe we should get a little bit of an apology from Ted.

(By the way, Donald, signing bills is what presidents and governors do, not judges.)

The implication here is that Trump’s sister couldn’t have been that bad, because Alito did the same thing… and pro-lifers like him! Except Barry and Alito’s opinions (which can be read in their entirety here) don’t say the same thing, and in fact reveal wildly differing approaches to the law.

Barry claimed that the ban would have a “chilling effect on a woman’s ability to obtain a conventional and constitutionally permissible method of abortion,” and argued that the very concept of legally recognizing a partial-birth abortion was “based on semantic machinations, irrational line-drawing,” and emotionalism “instead of logic or medical evidence”:

Positing an “unborn” versus “partially born” distinction, the Legislature would have us accept, and the public believe, that during a “partial-birth abortion” the fetus is in the process of being “born” at the time of its demise. It is not. A woman seeking an abortion is plainly not seeking to give birth.

Yes, she actually argued that the mother’s desire for her child to come out dead trumps the fact that the child is in the process of coming out when killed.


Barry also argued that factoring in whether a baby had partially exited the cervix was “nonsensical on its face,” and that the ban had to be struck down because abortionists testified they would “stop performing all abortions” if the ban took effect out of fear of inadvertently violating it. She explicitly sought to protect abortionists and ensure as many of them felt free to continue doing business as possible.

If Samuel Alito endorsed a ruling that radical, it would indeed be a major story (albeit one that made him look worse, not her look better). But while he did write a concurring opinion agreeing with her result, that’s where the similarities end. Interpreting law can get a bit technical at times, but the fact that the very first words he writes are “I do not join Judge Barry’s opinion” should be a pretty strong clue.

Instead, Alito only wrote to make clear that her opinion “was never necessary” since the Supreme Court had already ruled against banning partial-birth abortion in Stenberg v. Carhart. Because the New Jersey law’s wording was “nearly identical” to the Nebraska one at issue there, he reasoned, the Third Circuit had no choice but to defer to it.

Alito manifestly did not support the merits of partial-birth abortion or make a policy case against banning it. Barry did both. Alito didn’t even argue whether he believed Stenberg was rightly decided—and in fact, once Alito himself was on the Supreme Court, he voted to uphold the federal ban on partial-birth abortion.

Based on her ruling here, Maryanne Trump Barry joining him is inconceivable. But in his scramble for a quick soundbite that superficially sounds exonerating, Donald Trump completely skips over any serious understanding of the legal concepts involved. And politically, for him to go from “my sister would be a great justice” to “our views are too different” to now “she deserves an apology,” only throws yet another muddle into the mix.

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