Clearly, what everybody is going to be talking about regarding the Alito nomination is abortion. Specifically his dissent at the appeals court level in
Planned Parenthood v. Casey, the only significant abortion case since
Roe and essentially the compromise between abortion rights and the state's legitimate interest in regulating it. (You can read it
here in full--like I had to--or you can read a somewhat shorter summary
here, like a wuss).
Casey was a new way to look at the issue, it articulated new principles in balancing the competing interest, it is Justice O'Connors lasting legacy. The big point of contention here is that the bit that the Supreme Court overturned in the Pennsylvania law (which didn't forbid abortion, but restricted it) was the spousal notification provision. Alito (correctly) identified the proper standard as whether or not provisions of the law were an "undue burden" on the woman. But he dissented from the majority of his fellows on the Appeals Court (eventually, the Supreme Court also disagreed with him), saying that spousal notification did not present such a burden.
This will all seem extremely dry to most people without a particular interest in constitutional law and/or public policy--but let me break it down for you. Drop some knowledge, if you will. I think this gets to the sort of person Judge Alito is and the sort of person who tends to favor his particular judicial worldview. The following little bit isn't aimed at legal justifications or reasoning, just outlook, so none of my points are going to be particularly legally relevent.
The law would have required married women seeking an abortion to notify their husbands (I assure you that the authors of the law did not contemplate gay couples), if they did not notify their spouses then they would be denied access to an abortion. Let's think about this closely. First of all, this wasn't a requirement to tell the father of the child. So women who aren't married needn't notify their partner if they're seeking an abortion, and the regulation has nothing to do with paternity. So the marriage is clearly the object of regulation here, which is fine on its face. But the way the marriage is being regulated is troubling. The only other times husbands must approve a medical procedure for their wife is in cases where she's incapacitated and the husband's legal relationship with his wife entitles him to speak
on her behalf, not give his permission over hers. This provision would essentially have been nothing more than the assertion of the husband's control over his wife in the marriage. This is marriage conceived not as a loving partnership between equals, but as an arrangement of wife subordinated to her husband who she must consult in all matters.
Here's where we get deep and psychological and stuff. Why wouldn't a woman tell her husband she was getting an abortion, or even considering one? Wouldn't most women tell their husbands this sort of thing no matter what the law was? See, people like me think, first thing, that the sort of women who wouldn't tell their husbands this kind of thing are the sort of women who have a pretty good reason not to tell their husbands this kind of thing. For example, it's an abusive marriage and she want's out, the pregnancy would make it harder for her to leave. Or, maybe, it's a case of spousal rape. Really, there are a number of legitimate reasons that come to mind that essentially boil down to the fact that a woman's right to make this medical decision for her own body is constitutionally protected and she shouldn't be maliciously dissuaded from it by the threat that her husband will beat the shit out of her, or worse, if she tells him. It becomes, not a notification, but essentially a consent requirement in exactly the circumstances where that requirement is most burdensome, even dangerous.
See, people like Judge Alito don't hear that a woman refuses to tell her husband that she's seeking and abortion and think like I do, that she probably as a compelling purpose behind her decision to keep this private (and that privacy's what it's all about). No, they hear this and they think that they have another loose, lying woman on their hands who needs to be taught a lession about the duties of a wife. That's the truth of the matter, and that's the problem here too. This kind of creepy, masculinist world view is not only just stupid, it's dangerous. It leads to forcing women to stay in abusive situations, to be prevented from making what are already very hard decisions, and to leading lives of a quality significantly lower than their male counterparts based solely on the fact that they are not male. I can't beleive I have to say this because I though that this was 2005, but here goes: Being a woman is different from being a man and, hard though this may be for some to understand, part of the equal protection of the law and all that flows from that protection is understanding this difference, acknowledging it, and not penalizing women for the decisions that they have to make beacause of it. Not in the workplace, not in the voting booth, and--for god's sake--not at home or in her doctor's office.
I mean, come on, we're trying to have a civilization here. And that means being civilized.
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