I’ve stayed out of Supreme Court discussions because the system here in the UK is completely different and my ignorance of the whole subject is so profound I have nothing useful to contribute. But this quote from Alito about husband notification stood out so much that I had to say something.
The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems”“such as economic constraints, future plans, or the husbands’ previously expressed opposition”“ that may be obviated by discussion prior to the abortion.
Every time I read it, my mind supplies a translation that runs something like this: “Those silly women think they need an abortion, but they don’t really. If they would only do the sensible, rational thing and discuss it with their husbands, they’d realise that.” And I know that, technically, Alito isn’t saying he thinks that – just that the Pennsylvania legislature could have thought it in good faith – but he seems to think it’s a perfectly reasonable way of looking at things.
The “perceived problems” Alito cites – which seem like genuine problems independant of perception to me – are reasons women might have an abortion, not reasons they might do so without their husbands’ knowledge. Whether a married woman discusses her decision with her husband depends less on her reasons for not wanting to continue the pregnancy as on the nature of the relationship between them.
It’s likely that in many cases, a woman will want to avoid telling her husband for the same reason the Pennsylvania legislature might theoretically find it desirable: a belief that he will try to talk her out of it. A fear that he will brush aside her reasons for not wanting to continue the pregnancy or even insist that he is better qualified than she to make this decision. The kind of rational arguments my ex-boyfriend used on my decision to continue with my pregnancy would be no more pleasant for a woman who made a different decision but faced similar opposition.
Trying to enforce “rational” behaviour by law doesn’t work because a decision looks different depending whether it’s viewed from the inside or the outside. When I rejected my ex-boyfriend’s suggestion that I should have an abortion, my fear that I would never have such an opportunity to become a parent and the fact that I already imagined my baby as the person it might become were both factors that influenced me. For me, these were more important than the economic factors that pointed to the conclusion that an abortion was the better choice. For him, the economic factors were all; my reasons for refusing had no place in his analysis. Neither of us could be said in an absolute way to be correct, but I was better able to weigh the factors that made a difference to me and therefore make the decision that was right for me.
As with abortion, so with husband notification. The worry that your husband will dismiss your reasons for wanting an abortion and try to manipulate you into continuing with the pregnancy may sound trivial to an outsider, but only the woman facing it can judge how far it could go or how badly it could affect her. Forcing a woman to convince outsiders that she has good reason to fear her husband’s reaction, when they know nothing about her or the relationship she has with him, undermines her ability to make her own choices based on what she knows. It replaces her judgement with the judgement of a court or panel. I don’t know the precise legal meaning of “undue burden”, but it certainly fits my layman’s understanding of the term.
Once again, great post, Nick. The problem with any kind of enforced “notice” restriction, husband, parent, whoever, is simple, and you summed it up well with:
Judge Alito is not saying what he believed or even if that belief would bear out to be true, he is simply stating a possible reason why the PA legislature might have thought they were doing a good thing. I happen to agree with James Taranto’s opinon Sat in the Wall Street Journal:
Judge Alito said basically the same thing in his dissent. Here is the whole paragraph from which the quote above is derived:
Judge Alito’s application of a rational relationships test is based completely on an anlaysis of prior O’Connor opinions. That stems from his opinion (also based on O’Connor) that the husband notification provision did not place an undue burden on the woman. If we assume for argument sake that he is right, then his demonstration of possible “rational relationships” is simply the logical conclusion of his argument. In no way does he propose that these possible “rational relationships” are good policy or are in any way his belief.
But deciding if a law is wise or unwise is the job of legislators, not judges. The Supreme Court is obliged to let even a foolish law stand unless the Constitution prohibits a state from enacting it.
And guess what? The Constitution does! Roe v. Wade was decided on the basis of an *individual* right to privacy, a right that is invalidated if a woman is required to tell someone else about her abortion. Even if that person is her husband. Individual rights are not rendered null and void thanks to marriage. If they were, it would be constitutional to pass laws saying that married couples are required to inform each other about their votes.
However, he does believe that there is no constitutional barrier to treating women’s relationship to their husbands and not very distinguishable from a child’s relationshiop to their parents. Whether or not he thinks this is good policy, he certainly thinks that such devaluation of women’s autonomy is constitutional policy.
The reliance on O’Connor is a bit strained – not least because O’Connor made it so clear that husband notification does fall squarely within what she considers an “undue burden.” As O’Connor pointed out, if a husband’s interest in what’s going on in his wife’s uterus is enough to legally force a wife to notify husbands of abortion, then where does the husband’s dominion over wife’s uterus end? Does she need to notify him before being prescribed the morning-after pill? Once pregnant, does she need to sign a statement saying that she’s informed her husband before she can order a glass of red wine? Under Alito’s logic, there’s no constitutional barrier to treating pregnant women like children, with a similar lack of independent rights. I think – and O’Connor thinks – that Alito is mistaken about that.
In other words, my objection to Alito isn’t that he thinks treating women like legal children is good policy – as you say, we can’t know for sure if he thinks that or not. My objection is that Alito thinks treating women like legal children is constitutionally sound policy.
* * *
Nick: Good post! But I can’t help but nit-pick one thing…
Forcing a woman to convince outsiders that she has good reason to fear her husband’s reaction, when they know nothing about her or the relationship she has with him, undermines her ability to make her own choices based on what she knows. It replaces her judgement with the judgement of a court or panel.
Slight correction: The law Alito wrote the dissent about did not require a woman seeking an exception to appeal to a court or panel, just to sign a statement.
The Washington Post editorial today is also illuminating:
In conclusion, the Post notes:
Apparently the Post is not nearly as concerned that he is a sexist infantalizer of women as the majority on this blog do.
I just posted about this, with similar points but I still think there’s a main point that’s not being pounded on. A man has a choice to not use his sperm. That will save him from any abortion problems. Why aren’t men being told to be responsible for that? That the abortion is just their fault for not using birth control?
http://lompyville.blogspot.com/2005/11/you-wanna-know-about-abortion-be.html
Roe also made it clear that the right to privacy it was recognizing was not universal. That right can be rendered “null and void” under certain circumstances. Certainly you recognize that the court allows parental notification and therefore there are situations where “a right that is invalidated if a woman is required to tell someone else about her abortion”.
Amp – Well put, all of it. But I still have not heard how the majority here feel about the court’s affirmation of advised consent and waiting periods. Is that not clearly more infantalizing than anything.
“Surely, you simple minded woman, you can’t have weighed all the factors in this decision and so here, you must read these pamphlets before we can be sure you have engaged your brain enough to come to a rational decision” and…
“Surely, you impulsive woman, you can’t have taken the time adequate to think this out rationally so you go home now and think about it for another 24 hours”.
Even if the effect of Alito’s analysis is as you say, regardless of his intent or belief, is it not the least infantalizing of the provisions in the PA law that are infantalizing and how do you then support such a outcry against his person while maintaining that Justice O’Connor is such a champion of the independent woman?
-“He reasoned that married women were a minority of those seeking abortions and married women who didn’t tell their husbands a very small minority of those; because only a small percentage of women overall would be affected, the provision did not constitute an undue burden to the right ”
It’s an interesting juggling with meaning, if WaPo is quoting Alito’s reasoning correctly. Alito isn’t arguing that requiring a wife to tell her husband isn’t an undue burden on that individual – as discussed in an earlier thread, no one but a complete sociopath could possibly believe that forcing a legal notification on a husband when his wife doesn’t want to tell him could be anything but excrutiatingly painful for everyone involved – he’s arguing that because not that many individuals will have this undue burden placed on them, it’s not an undue burden on the right to have an abortion.
If it were passed into law that in order to get an abortion, a woman had to walk fifty yards, in a straight line, unsupported and without using any material aid, most women could pass that test with ease. But it would lay an undue burden on some women who would be physically incapable of doing so. According to Alito’s reasoning, it would be completely reasonable to lay that undue burden on some women, because most women wouldn’t suffer by it.
Damn! PIMP. Italics begone! (That last paragraph wasn’t meant to be italicised, by the way.)
[What does PIMP mean? Anyhow, italics fixed. –Amp]
The fact is the law is silly. It doesn’t require discussion, and it doesn’t require proof that the woman in fact informed her husband. All it required was the woman said she did or that she couldn’t because of one of the exceptions listed. She didn’t have to talk to him, nor did it state how she informed him, to the best of my knowledge. She could have pinned a letter to his pillow thst morning as she exited the door.
Exactly how was this law to be enforced? How to prove that the woman did inform the husband? Can you see the case coming up in court. Somehow husband finds out his wife had an abortion.
“She had an abortion and didn’t tell me.”
“Yes I did.”
“No you didn’t”
“Yes I did. Can I help it if you never listen to me? If you would turn off the damn t.v. every once in a decade” (yes, I know stereotyping).
I am not a firm supporter of abortion. But this law is bad law. At most it would annoy.
Nick says:
I find this a simple yet profoundly true statement. But couldn’t the same be applied to parental notification: “Whether a young woman discusses her decision with her parents depends less on her reasons for not wanting to continue the pregnancy as on the nature of the relationship between them.”
Yet parental notification and even consent has been found constitutional because in the court’s opinion it is not an undue burden. Amp stresses that Alito’s dissent tried to equate parental consent with spousal notification, and he is right. But the context that comparison was made in is not what one would assume. Justice O’Connor’s assertion that the rights of a husband in this regard are not as significant as those of parents over a child are correct as well, IMO. But, since the question in the dissent is level of burden, not weight of rights, we should determine if the husband NOTIFICATION presents a greater burden on married women than parental CONSENT places on female minors. I simply can’t see any argument that it does. And since parental consent is not an undue burden then husband notification certainly is not either. So, Alito’s comparison is appropriate for the context of his dissent and the argument that husband notification is not an undue burden has merit, just as any argument that parental consent is not an undue burden has merit.
Jesurgislac’s arguments also are true on their face but are also equally true to parental consent.
“Forcing a legal notification on a husband [parents] when his wife [their child] doesn’t want to tell him [them] could be anything but excrutiatingly painful for everyone involved” How true – yet doing that isn’t considered an undue burden by the court.
Consent regardless of circumstances is more burdensome than notification. To believe the majority, we have to believe the opposite – that notification (of husband) is more burdensome than consent (of parents). Husband consent is, of course, undue. But that is because, all things being equal (i.e. consent is the action involved), the greater autonomy of the wife from her husband verses that of a child from parents comes into play.
That level of rights of husband vs. parents is not in play not only because the activity (notification) is not the same but because nobody thinks it’s in play. Even Alito does not try to make a case that husband’s rights in relation to their wife’s pregnanacy are at the same level as parent’s rights in relation to a pregnant child. His argument, again, is one that tries to get to the bottom of determining level of burden based on precedent. Maybe he got it wrong. But, as I’ve said before, it does not make him the extreamist sexist woman dominating sociopath (that’s for you Jesurgislac) tthat some continue to insist he is.
Gengwall,
Correct me if I’m wrong, but doesn’t parental notification infringe on a person who does not have all the rights and privileges of an adult? Are minors recognized to have all the rights and privileges of adults? You are comparing apples & oranges – only worse.
Your arguments seem to me to be saying, “Well, if it is okay to force a child to notify their parents it is okay to force a wife to notify her husband. That is, a child is to a parent as a wife is to a husband.” That, in itself, is infantilizing women.
I’m not saying that. I recognize that a parent’s rights in relation to their child’s activity are far greater than a husband’s rights in relation to his wife’s activity. But, those rights do exist. The court recognized that the husband has some rights in regard to the abortion decision but they were not compelling. Alito agrees with the majority on this.
So, in Alito’s mind, the case turned on how extreme the burden was. The level of right’s was established.
The comparison, therefore is between the level of burden of a child to get “consent” from her parents vs. the level of burden a wife to “notify” her husband (she doesn’t even have to do it verabally). I believe you would have a hard time demonstrating that husband notification constitutes a greater burden on the woman than parental consent does. And since parental consent is not considered by the court to be an undue burden, how could husband notification be?
The only reason that the 3rd circuit struck down the notification provision was because they determined it was an undue burden. Alito argues: “how can you say that when you have all this precedent explicitly laying out what an undue burden is and who has to prove it in court and none of that happened in this case”
Most of the criticisms have been about the control and infantalization of women. Would you still object if the abortion provider was required to inform the husband after the abortion had been carried out? If that were the case we wouldn’t be compelling wives to do anything (no infantalization) and husbands would only know after it had happened (no control).
gengwall: I recognize that a parent’s rights in relation to their child’s activity are far greater than a husband’s rights in relation to his wife’s activity. But, those rights do exist.
What rights are you claiming that a husband has over his wife? Please cite the legislation that you’re thinking of.
I believe you would have a hard time demonstrating that husband notification constitutes a greater burden on the woman than parental consent does. And since parental consent is not considered by the court to be an undue burden, how could husband notification be?
You seem to think, Gengwall, that husband-to-wife is somehow an equivalent relationship to parent-to-child. I could be much more eloquent about this, but I don’t think Amp would appreciate it, so I’ll just stick to two words: you’re wrong.
nik: Would you still object if the abortion provider was required to inform the husband after the abortion had been carried out?
Of course I would still object. It would still be horrifyingly cruel to both people concerned. There would be no reason to inform a husband that his wife had an abortion and didn’t want to tell him except if you wanted to hurt his feelings – and quite possibly, depending what his reaction was to having his feelings hurt, put his wife at physical risk.
nik, interesting proposition. Although I’m pretty sure the PA legislature wanted more out the restriction than pure notification.
It seems pretty clear, especially in the Alito dissent, that one objective was to prevent some abortions. The pro-choice movement abhors this kind of legislative meddling (they may be right). Nick sums up this take on it pretty well:
The opposite possible view is, of course, in the dissent itself (see my post 2)
Altito was non-commital on whether or not it makes for good policy (probably doesn’t) but was firm in his stance that it was not his job to decide that.
Still, your approach, I think, would aleviate the “infantalization of women” concern while still supporting a husband’s right to know, although not the husband’s right to be invloved in the decision. Of course, pro-choicers don’t think the husband should have the right to be involved anyway so they still should be OK with it.
I must admit that pro-lifers are caught in a catch-22 on this issue. On the one hand, they want husbands to have the right to say “but what if I want the baby” and to try and convince the wife to keep it. We would contend that that would be done in a loving and cooperative way. On the other hand, they certainly don’t want to be labeled as controlling or coercive or, as O’Connor put it, having a “common law” approach to marital relations. It is this very fact that supports pro-choicer’s legitimate argument that notification is the same as consent (I don’t agree in principal but the argument is not without merit).
So, what is a pro-lifer to do? I am inclined to like your compromise. What say the rest?
What purpose could notification after the fact have? It seems like it could very well cause risk of physical harm to the wife. I’m not sure I can see any beneficial results from such notification. In fact, it seems like a threat, an invasion of privacy, and I can see no legitimate government interest served by such a law.
Well, J, you beat me to the post button. So I know how you feel about nik’s idea.
As far as the husband’s right – I still can not see how you don’t get this. The 3rd Circuit and the SCOTUS both agreed that the husband has a legitimate right to have a say in childbearing decisions including abortion. Everyone agreed that this right was legitimate but not compelling. That is the only reason that the PA provision did not stand. Had it been compelling, like a parents’ rights concerning their child, it would have been given more weight. Since it wasn’t the argument shifted to the level of burden on the woman. Had the burden not been deemed “undue”, the husband’s right again would have been given more weight and the provision would have stood.
This answer avoids the question posed by the quote it is meant to contradict. The question is, “demonstrate how a husband NOTIFICATION requirement is more burdensome on the pregnant woman than a parental CONSENT requirement is”. You continue to miss the entire point of the whole PA case debate. It is not about whose rights are weightier (parents’ or husband’s) but which burden is greater. There never was disagreement in the case about the level of a husband’s rights.
Roe also made it clear that the right to privacy it was recognizing was not universal. That right can be rendered “null and void” under certain circumstances.
Marriage is never a circumstance for rendering individual rights “null and void.” Parenthood, as in your example, can be such a circumstance–not just for privacy but also for free speech, the right to bear arms, etc. The two circumstances are incomparable.
The question is, “demonstrate how a husband NOTIFICATION requirement is more burdensome on the pregnant woman than a parental CONSENT requirement is”
No. The point is not only that husband notification is more burdensome, but that it is an illegitimate burden as well. “Undue” does not only mean “severe;” it also means something that is not due.
Most of the criticisms have been about the control and infantalization of women. Would you still object if the abortion provider was required to inform the husband after the abortion had been carried out? If that were the case we wouldn’t be compelling wives to do anything (no infantalization) and husbands would only know after it had happened (no control).
I would certainly object. A woman who chooses to tell her husband about the abortion, before or after the fact, has a reason for doing so. A woman who chooses not to also has a reason for her actions. The husband in question might not be able to control what happens to that particular fetus, but as has previously been mentioned, he can certainly hurt the woman in retaliation. And I suspect that wouldn’t be an uncommon reaction under this law. Beyond that, if doctors are required to give out private information like this by law, what next? How can anyone trust a physician or surgeon under these circumstances? It’s a violation of confidentiality.
As far as the arguments comparing this notification idea to parental notification – I work for a bank. If a parent comes in and wants information on a child’s bank account, and that person is listed as the parent and provides identification, I can give them the information. If a husband or wife comes in and wants information on his or her spouse’s bank account, I cannot give that information under any circumstances. I’m Canadian and some of our laws may be different, but both the US and Canada recognize a fundamental difference between a parent’s powers over his or her child and powers over a spouse.
?The 3rd Circuit and the SCOTUS both agreed that the husband has a legitimate right to have a say in childbearing decisions including abortion
…and you linked to this decision where? Can you provide the link to this decision?
There never was disagreement in the case about the level of a husband’s rights.
Evidently there was, since Alito, like you, sees the relationship of husband to wife as parent to child, whereas the rest of the court seems to have gone with the (right) decision that the woman is an independent adult, and it is impossible to require her to hand over control of her body – in any way – to her husband.
Either “husband notification” gives the husband the right to interfere – putting him in the position of controlling/owning his wife’s body, which is unConstitutional – or else it does not, in which case it is merely government taking the moral stance that he ought to know, however much it hurts him – or in consequence, damages his wife.
You’ve evidently changed your course from “the husband’s feelings ought to be considered” to “the husband’s feelings ought to be outraged”. Quick work.
Jesurgislac – you know, this originally was annoying but now it has become comical, almost pathetic. I am going to start counting the number of times you insist I said something I didn’t say, meant somemthing I didn’t mean, thought something I didn’t think, or fealt something I didn’t feel.
BTW – you can find the opinions on FindLaw.com Read them yourself.
Linnet – you I can have a conversation with. I will ignore for the moment that you refuse to answer the question. Unfortunately, regardless of how you want the argument framed that is the fundimental question Alito was exploring in his dissent. He noted that parental consent has not been considered an undue burden by the court. (Also, informed consent, waiting periods, etc.) He analysed why that was and what kind of test the court has used to determine if something, anything, is an undue burden. He then applied that reasoning to the husband notification and determined that it did not meet the threshhold.
His dissent is soley about the level of burden. Read it. You cannot come to any other conclusion. You may not agree with the reasoning (obviously O’Connor et al didn’t) but the question he was reasoning on is indisputable.
Therefore, I will ask again – If your objection is to Alito then you need to object to the question he addressed, and that was: how does the level of burden of husband notification compare to parental consent (and other provisions of laws where level of burden has been determined).
Gengwall,
No matter how many times you repeat it, I don’t believe that the burdens of requiring parental consent and those of requiring spousal consent are analagous. Apples, oranges. Children, adults. See comments 19 & 20 from Linnet & mangala.
Dismiss Jesurgislac if you want, but she’s not the only one who reads you as equating the parent/child relationship to that of husband/wife. Perhaps, if that is not what you really mean, you should consider another, clearer, way of stating your point.
BTW, I find your dismissal of Jesurgislac bizarre considering that Linnet, mangala and myself are reading the same thing in your writing – to wit, that parent/child is analagous to husband/wife.
Dear Husband Smith;
Your wife has been a very naughty girl (emphasis on girl of course). We are hereby writing to inform you, that your wife has ….
Uhh yeah, right, nobody here would object to that shit.
While obviously communication of such decisions is very much seen as important within a marriage, the notion that it is an inherent right is nonsense. If it’s a right for a married man, then it is certainly an inherent right for any other man. But, it’s not. It’s unfortunate that any marriage would be in a situation where the spouses wouldn’t feel comfortable sharing such information, but cest la vie, most marriages are not perfect.
What exactly is the purpose of said notification, in the mind of people supporting this?
What if the woman’s child is not the husband’s? What if she is from a traditional type of background and was raped and is afraid to tell her husband and needs to get an abortion? What if she had an affair and does not want to tell her husband? Why should she? The husband is not supposed to be a parent and she should nto need his permission for what she does with her own body. Nor does she need to inform him with or without his permission. Unless the point of marriage is to acquire a male guardian.
I mean that the husband is not supposed to serve the role of parent to his WIFE, sorry that the post is so unclear.
Gengwall: I am going to start counting the number of times you insist I said something I didn’t say, meant somemthing I didn’t mean, thought something I didn’t think, or fealt something I didn’t feel.
On this thread on husband notification, you were consistently and persistently arguing that the husband had to be notified by the state because the husband’s feelings ought to be considered.
When I pointed out the gigantic flaw in this logic, you did not respond to explain why I was wrong: but you never commented on that thread again, and on this thread you’re not using the argument that the husband’s feelings deserve consideration: instead you are (as I pointed out in comment 43 on that other thread) taking a moral stance that the husband ought to know.
So, again: If I was wrong in comment 43, fine, show me how I was wrong. On that thread. If I was right, and that’s why you’ve quit arguing about the husband’s feelings… well, I can see why you don’t want to get involved in any future arguments with me. :-)
BTW – you can find the opinions on FindLaw.com Read them yourself.
Certainly. Link to them and I will.
Okay, I think that this may help clarify the dispute between Gengwall and various others over Alito’s dissent in Casey and how it relates to the rights of women within marriage not to be treated as the legal equivalent of minor children.
In summary, I think that Gengwall is right that the issue is not directly dealt with by Alito, or by the majority, or by the subsequent Supreme Court majority in this case. However, I think that Gengwall is wrong to think that the issue is not at all addressed by anyone, and therefore is wrong to think that Alito’s total failure to recognize the issue is not a legitimate subject for comment.
What follows is the basis for my belief:
Here is a link to Casey.
Find the phrase:
D. Spousal Notice
This marks the start of the relevant section of the decision. These are the things that Alito didn’t feel were an undue burden.
Find the phrase:
We turn first to marital integrity
This marks the section in which the court found that the state did not have a compelling interest that could over ride the right to have an abortion without undue interference.
Gengwall is right that because Alito found spousal notification was not an undue burden, he only had to consider whether the state interests involved in the spousal notification law met a rational basis. However, the majority went beyond finding that the state interests involved were not compelling. Instead, citing Justice Stevens writing for the majority in Hodgson (rejecting two parent notification) it found that the interests involved (controlling the nature of familial relationships) were not a legitimate state interest:
The court then goes further, and states that even if the state had a legitimate interest (perhaps keeping marriages together):
As to the husbands interest in the fetus, the court is also forceful, citing the SC on the nature of marriage within the law:
However, the court backs away from its strong rejection of the provision in a somewhat confusing passage:
I find this passage confusing, because promoting the possibility of spousal participation is exactly the sort of state control of the nature of familial relationships that it has previously emphatically rejected. However, this snippet provides Alito his out. The court as a whole considers that possibly promoting this vague interest is a legitimate state interest, so if the spousal notification is not an undue burden, then it has a legitimate interest, and must only meet the incredibly broad rational basis test.
Gengwall is correct (and I think almost everyone else is wrong) that the undue burden test is considered by the entire appellate court in this case to be a binary test: either the law places an undue burden on the right to an abortion or it doesn’t. If it doesn’t, then any rational state interest is sufficient to make the law legitimate. If it does, then only a compelling state interest, narrowly tailored, makes the law legitimate. It is not a sliding scale, where a moderately compelling state interest can override a moderately undue burden, or a legitimate but not compelling state interest can only override an almost undue burden. Therefore, it seems that the reduced rights of privacy of minors in relation to their parents is never considered in relation to the full privacy rights of adult women. The undueness of the burden is measured (in the opinion of the entire appellate court) in relation to the right to an abortion, not in relation to the conflicting set of rights at play.
Actually, this point is confusing, because I believe that the majority implicitly recognizes this difference by choosing to highlight the passage from Eisenstadt v. Baird. Alito definitely ignores this distinction, and I think this is what readers other than Gengwall are correctly picking up on.
On the details of O’Connor’s undue burden test, I am unsure whether I feel that Alito’s description is reasonable based on her previous decisions. However, it is clear that O’Connor did not consider it to be a correct interpretation of her previous decisions. In fact, it appears that O’Connor also rejected the binary nature of the undue burden test. Confirming the lower court’s decision on husband notification and rejecting Alito’s dissent, she writes:
In its simplest reading, this merely remarks that it is the affected group (women who would not choose to tell their husbands) that must be considered for undue burden, not all women choosing to have abortions in PA. However, it goes further, making clear that undue burden must be considered by a comparison of rights, making it both a sliding scale in terms of how much burden is there, but also in terms of how much right is there, so the question of parental versus spousal rights to notice and involvement, as well as minor’s reduced rights to privacy in relation to there parents, become central. Finally, it finds a legal construct of marriage that would allow spousal notification to pass this test to be repugnant and repudiated.
Now, of course, when Alito wrote his opinion, O’Connor had not yet written this passage repudiating his opinion. However, the majority in the lower court seems to have correctly adduced the meaning of her previous opinions and of the nature of the marriage under the law, while Alito failed to do so.
The most generous opinion is that as a newly minted appellate judge, he simply became fascinated with ferreting out the nature of the undue burden test, ignoring the other issues involved (since there is that one recognition in the majority opinion that a legitimate interest might be involved). However, the concept of the undue burden test that he develops is troublingly narrow and excessively binary. His failure to consider that what is not an undue burden on a minor may be an undue burden on an adult woman is particularly troublesome.
It is exactly the issues that Nik focuses on in the original post that are recognized by both the Appellate majority, and by the Supreme Court majority, that are ignored by Alito. The implicit difference between the rights of children and the rights of married women is highlighted by both the Supreme Court decision and the Appellate decision, and is completely ignored by Alito. He never explicitly rejects the implicit concerns of his fellow judges, but he does not acknowledge them or (even implicitly) recognize them in his decision.
Oh, also,
Gengwall, about your claim that it is silly that we are all so upset about Alito’s opinion on spousal notification, when we seem to be fine with O’Connor’s opinon on waiting periods, parental notification, etc.
I don’t think you understand that most of the pro-choice posters here fall into at the very least Stevens camp, and most of us are closer to Blackmun (search for
JUSTICE BLACKMUN, concurring in part, concurring in the judgment in part, and dissenting in part.
in the SC decision).
We oppose 24 waiting periods and parental notification and “informed consent.” Vocally.
O’Connor is only well regarded in comparison to Scalia, Thomas, Rehnquist, Roberts and Alito. I don’t think she is the favorite justice of all that many of the pro-choice posters here.
However, since we accept that when conservatives control the country, they get to appoint the judges, we would be willing to live with another Souter-Kennedy-O’Connor conservative appointee, rather than a Scalia-Thomas-Rehnquist appointee.
Wow, 2/3 of the justices were appointed by conservative republican presidents and RonF still feels this is a left-wing court.
It’s actually a bit more than 2/3, isn’t it? That’s long been a bewilderment to me. Compared to the right wing justices, some of the justices are more to the left, but they hardly are what one could call a ‘liberal’. Only two of the justices were seated by a Democrat president.