What's the prob with Alito???
Well, had the court been as it were before Alito, with O'Connor, this ban would not have been upheld. It was Alito's vote that sealed the majority. O'Conner would have sided with the dissenters, making the majority again 5-4 but if favor of striking down the ban.
New York Times quote: The most important vote was that of the newest justice, Samuel A. Alito Jr. In another 5-to-4 decision seven years ago, his predecessor, Justice Sandra Day O’Connor, voted to strike down a similar state law. Justice Alito’s vote to uphold the federal law made the difference in the outcome announced Wednesday.
I disagree with that quote. I think there is a strong chance that O'Connor would have come down on the same side as Kennedy, depending entirely on whether or not she accepted the argument that the procedure banned would never be necessary for the mother's health.
In Stenberg she specifically stated that the court would be dealing with an entirely different thing if the statute only banned the D&X procedure. "By restricting their prohibitions to the D&X procedure exclusively, the Kansas, Utah, and Montana statutes avoid a principal defect of the Nebraska law." Granted this language came under the undue burden element, but I think its a strong indication that she viewed these statutes as being substantially different than the Stenberg statute.
She also stated that the reason a health exception was required in Stenberg was because a significant body of medical opinion believed that partial birth abortion (including both D&E and D&X) was much safer than any alternative. There is no way for us to predict how she would have viewed the factual evidence with regards to whether or not D&X would ever be safer/necessary when D&E is still available. Admittedly, she did hint at the fact that the bans on D&X would also need to contain a health exception, but that was before all of the expert testimony in this case.