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Criticisms of Judge Alito on Abortion and the Spousal Notification Decision:

I thought I'd pass along a few of the arguments (paraphrased from memory) that I'd heard during the radio program that I was just on; they were about Judge Alito's views on abortion, and specifically about his vote to uphold spousal notification laws in Casey. To the extent the arguments were factually mistaken (as the arguments noted in items 1 and 2 below were), I'm sure they were honest mistakes, but they're the sort of mistake that we're likely to see often:

  1. Judge Alito voted to uphold spousal consent laws. No, he voted to uphold a spousal notification law.
  2. Though public surveys may have revealed that most Americans supported spousal notification laws, that was only before or around the time of the Casey decision. No, the survey I quoted on the air was from 2003, and revealed a 72%-26% margin in favor of such provisions, much the same as the early 1992 data; a 2005 survey that I just found from 2005 reveals a 64%-34% margin, somewhat less than in 2003 but still a landslide in favor of the restrictions. (See here for data from both surveys.)
  3. This vote by Judge Alito shows that he's not sensitive to women's issues. The most recent spousal notification survey results that I could find that broke down men's views and women's votes showed a small gender gap — 71-26 total, 75-23 male, 67-29 female (Gallup, July 26, 1996). Even if one makes an 8% adjustment to reflect the difference between the overall 2005 data and the overall 2005 data (i.e., assuming that the 2005 changes from 2003, 1996, and 1992 will persist and weren't just a blip), and assumes the same gender gap, that's still 58-37 support among women. One can, of course, say that these women aren't sensitive to women's issues, either; but it's important to realize that the person who says it, and not Judge Alito, is the one who's out of step with most American women.
  4. Judge Alito's views on this are out of the mainstream. Maybe they're out of what some think the mainstream view ought to be; but the views (assuming that we're right to even talk about this as his "views," as opposed to his interpretation of the relevant Supreme Court precedents in 1991) are majority views, by a wide margin.
  5. Judge Alito's opinion was wrong because spousal notification laws put the woman at risk of physical abuse. The law that Judge Alito voted to uphold actually had a specific exemption whenever the woman "has reason to believe that [notification] is likely to result in the infliction of bodily injury upon her by her spouse or by another individual." A sincere belief was apparently sufficient under the law; there was no requirement that the woman prove this with evidence other than her own sincere belief. One can still argue that, as implemented, the law would nonetheless put women at risk (as the person I was talking to did argue). But one would have to acknowledge the seemingly quite broad exception, and explain just why it's inadequate.
  6. Judge Alito's opinion is undercut by his argument that the spousal notification law is in any event unenforceable — in our legal system, we shouldn't endorse bad laws just because they're unenforceable. Actually, Judge Alito's opinion specifically said, in the footnote that discussed enforceability, that "In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade" (emphasis by Judge Alito).

    Again, one could still fault him for even bringing this up, since one can say that his bringing it up suggests that he might rely on such reasoning in some future case, and that the closing point in his footnote, which is that "It seems likely, therefore, that Section 3209, if allowed to take effect, would be widely evaded and infrequently enforced and would consequently be less likely to produce either the good or bad effects that the opposing parties claim." But it seems important to recognize that he expressly rested his opinion on the law as it would operate if it were scrupulously followed, and expressly said that he was not relying on the law's being easy to evade.

None of this of course goes to what the constitutionally, morally, or pragmatically right view is on spousal notification; I'm speaking here only of the specific arguments that I'd heard deployed against Judge Alito's position.

Cal Lanier (mail) (www):
I fixed it! Whooohoo! Well, maybe Eugene helped.

I always wonder why opponents to spousal notification (and I count myself as one) focus on the polls. The SC already takes public opinion into account more than I like, for one thing. And if polls change, it screws up your whole argument.

But the question I've always had about notification laws(whether spousal or parental) is that they are clearly intended to reduce the likelihood of an abortion in an arbitrary manner. Is that a legitimate state interest?
1.5.2006 2:04pm
Observer (mail):
Prof. Volokh-Could you please clarify who made these mistakes? I'm hoping it was not Profs. Amar or Rhode, but rather the host or some call-in.
1.5.2006 2:04pm
just me (mail):
And in the category of misrepresenting law-versus-policy issues in the field of abortion, I also nominate the Wall Street Journal and the Harris polling firm for this classic blunder, in the Tuesday WSJ. The poll asks

"If you thought that Judge Alito, if confirmed, would vote to make abortions illegal, would you favor or oppose his confirmation?"

Yup, that's it -- the Court could vote to "make abortions illegal." Not just to reverse Roe and let STATE LEGISLATURES choose whether to restrict abortion. Nope, they'd just make it illegal.

This misfire has been corrected and explained more times than I can count -- is it too much to ask pollsters and makor papers to learn enough Schoolhouse Rock to learn what the issue is? Sigh.
1.5.2006 2:05pm
John Jenkins (mail):
Well, the Court COULD vote to make abortions illegal if it adopted a line of reasoning that concluded that (1) fetuses are persons within the meaning of the Fourteenth Amendment (2) Persons are entitled to equal protection of the laws (3) therefore so long as you criminalize murder, any abortion must be murder.

I don't think that's the right reading, but some people do, and Court could find that way. Given that the question is not phrased in terms of Roe v. Wade (though your objection is), there is nothing incorrect about it.

You want them to ask a *different* question, which is whether someone would oppose Alito's confirmation if he were to vote in favor of permitting states to restrict abortion entirely.
1.5.2006 2:18pm
Bob Loblaw (www):
Did the law at issue have an exception for when the wife was pregnant by a man other than the husband? (I seem to recall that it did, but I'm not sure).
1.5.2006 2:24pm
Michelle Dulak Thomson (mail):
John Jenkins,

I think the point is that a large fraction of the public already thinks "overturning Roe" = "banning abortion," and polls that encourage the public to believe that's so are irresponsible. I wish someone would poll Americans on "What would be the state of American abortion law were Roe overturned?" It would be, at minimum, interesting to see what people think would happen.
1.5.2006 2:31pm
corngrower:
The Abortion Debate

All of the above posts have missed the point. I will make it.

Abortion was legal before Roe. Just like gambling, prositution, and 6.0 beer. Just like being able to drive with out a speed limit, or buying a beer after 2:00 AM

Abortion was legal.

Absent a mention in the constitution, what got the federal Govt into the abortion debate? Before you answer, read my examples above and fit your square answer into the round question I formed.
1.5.2006 2:35pm
Master Shake:
Corngrower - uh, no. All of these things were legal some places, not others (regardless of whether there was a federal law on the matter). The supreme court agreed that it violated the constitution for states to have laws prohibiting abortion; they have not so ruled on the other issues.
1.5.2006 2:44pm
colt41 (mail):
Corngrower -- unless we're misunderstanding you, you're not correct that abortion was legal before Roe.

The Texas statutes at issue in Roe (and several other state statutes listed at n.2 in Roe) made abortion *illegal* except to save the mother's life. The statutes focused on the physician, not the mother, however. Does that matter?

Here's the Texas statutes quoted in Roe:

'Article 1191. Abortion

'If any person shall designedly administer to a pregnant woman or knowingly procure to be administered with her consent any drug or medicine, or shall use towards her any violence or means whatever externally or internally applied, and thereby procure an abortion, he shall be confined in the penitentiary not less than two nor more than five years; if it be done without her consent, the punishment shall be doubled. By 'abortion' is meant that the life of the fetus or embryo shall be destroyed in the woman's womb or that a premature birth thereof be caused.

'Art. 1192. Furnishing the means

'Whoever furnishes the means for procuring an abortion knowing the purpose intended is guilty as an accomplice.

'Art. 1193. Attempt at abortion

'If the means used shall fail to produce an abortion, the offender is nevertheless guilty of an attempt to produce abortion, provided it be shown that such means were calculated to produce that result, and shall be fined not less than one hundred nor more than one thousand dollars.

'Art. 1194. Murder in producing abortion

'If the death of the mother is occasioned by an abortion so produced or by an attempt to effect the same it is murder.'

'Art. 1196. By medical advice

'Nothing in this chapter applies to an abortion procured or attempted by medical advice for the purpose of saving the life of the mother.'

The foregoing Articles, together with Art. 1195, compose Chapter 9 of Title 15 of the Penal Code. Article 1195, not attacked here, reads:

'Art. 1195. Destroying unborn child

'Whoever shall during parturition of the mother destroy the vitality or life in a child in a state of being born and before actual birth, which child would otherwise have been born alive, shall be confined in the penitentiary for life or for not less than five years.'
1.5.2006 3:22pm
Dilan Esper (mail) (www):
I agree with much of what Professor Volokh wrote, but not as to points 3 and 5.

With respect to point 3 (insensitivity to women's issues), remember that the Supreme Court overturned Alito's analysis that the law would not be a an undue burden to most women seeking abortions, saying that what mattered was that it was an undue burden to those women who were in difficult marriages. Professor Volokh is making the same mistake Alito did. The fact that most American women may agree with Alito's position does not mean he wasn't being insensitive to women. He was, in fact, being insensitive to those very women who were in the difficult circumstance of needing an abortion and having good reasons for not tell their spouses. If many American women are also insensitive to women in that situation, that doesn't excuse Alito or make the position any less insensitive.

With respect to point 5 (the exception for women who fear spousal abuse), no matter how broad the exception is, it still left it in the hands of a judge to determine how sincere it was, and it further put pregnant women in bad marriages in the predicament of having to go before a judge and put details of their intimate lives before that judge during what is surely already a traumatic period in their lives. (As an aside, pro-lifers are always playing up the negative emotional consequences to women who get abortions, but they never seem to consider how the laws and restrictions they agitate for may make those consequences even worse.)

So, you will have some women who won't seek the exemption, tell their husbands, and suffer domestic violence. (They may not even realize how their husband is going to react or that they needed to seek the bypass.) Or they will be forced to tell their husbands because of an erroneous ruling on the bypass. Or they will choose to carry the baby to term and face domestic violence as a result of that decision. Or they may even commit suicide because they feel they have no good option.

Imposing any spousal notification restriction will therefore inevitably increase domestic violence, even if there is a broadly worded exception. (I might add that there have been suicides and domestic violence incidents that have been traced to parental notification and consent statutes for minors, and this is despite the fact that all such laws are required to have judicial bypasses under Supreme Court precedent.)
1.5.2006 3:23pm
Just an Observer:
Prof. Volokh,

Did the discussion touch on what seemed a lynchpin of Alito's reasoning in the Casey case -- that because spousal-notice would be found objectionable by a very small fraction of the women covered by the whole law, the parties opposed to the provision failed to meet a quantitative standard suitable for a facial challenge?

It was on that legal point that Alito, seemingly trying to anticipate what Justice O'Connor's view of "undue burden" would call for, guessed "wrong" and got zinged by O'Connor.

It also is a point not unrelated to the question of facial and as-applied challenges raised in the pending Ayotte case, which Alito likely will help decide.
1.5.2006 3:24pm
Bruce Wilder (www):
What are the virtues of an argument made on a talk show, regarding the characterization of someone's jurisprudence, other than the pragmatic ones of persuading the uninformed to like or dislike the nominee?

Any particular case, with relatively rare exceptions, poses narrow issues, and the role of judge is constrained in manifold and subtle ways. Inference from a judge's opinion in one case is going to present a lot of difficulties. Seeing a pattern in a lot of cases is not quite so difficult.

The pattern seen by an knowledgeable and well-trained lawyer is going to be a lot more subtle than any formed by John Q. Citizen, listening to a conversation on the radio. Summarizing for John Q. Citizen, Alito's jurisprudence, by a few abstract terms is hardly anymore satisfactory than a feckless prediction about how he would rule in a case, which might never happen.

If John Q. Citizen comes away with the impression, from whatever is said, that Alito would prohibit abortion if he could, is John Q. Citizen, so terribly misinformed?
1.5.2006 3:35pm
Bobbie:
Is there any doubt that if Roe were overturned, Congress would seek a federal solution that would make most abortions illegal? It's formalism run amok to claim that the result of a Roe reversal would be that the issue would return to the states. Republicans have already shown that they have no problem dealing with abortion on the federal level -- see partial birth abortion ban.

And is there any doubt that judges who are very pro-life will be much more willing to say that the women's belief isn't sincere? If you believe that abortion is the murder of an innocent human being, don't you think you'd err on the side of holding that the women's belief isn't sincere? How could it be any other way? If abortion is indeed the murder of innocent human beings, how could you be objective about the issue?
1.5.2006 3:51pm
corngrower:
Master Shake confirms my point. Abortion was legal before Roe. So what part of the constitution do I site as I sit in prison for playing Texas Hold'em at the senior center at noon tommorrow for a $10,000 pot? Its legal. Hell I've seen it done on TV! Quote that portion of the constitution that gave SCOTUS....LEGAL standing in Roe.

So.

Master Shake; I await that part of the Constitution SCOTUS used to overturned a law banning an activity??

Please hurry! I'm holding my breath.
1.5.2006 3:55pm
Master Shake:
Corngrower - I hope all is well at the senior center. I think it might be time for your nap. And please don't hold your breath, that can't be healthy in your state.
1.5.2006 4:01pm
John Jenkins (mail):
My suggestion, given that seniors have so much time on their hands, is that corngrower read Roe and read the cases cited therein for the justification. One can argue that those decisions were improper, and the basis for Roe is undermined thereby, but there is no question that Roe follows from Griswold, et al.
1.5.2006 4:07pm
corngrower:
Question to Bobbie:

I get you question. But. Congress has no stomach for this fight. If they did, one member would have introduced a bill to ban abortions. But, since the most powerful branch of our govt has already ruled on that, it seems doubtful. Of course, some other member could introduce a bill protecting an activity that is constitutionly protected, and protect that 'right' from judges review. But even offering up a bill to state what the courts have already said, is too dangerous.
1.5.2006 4:10pm
corngrower:
Hey guys!

That was close!

Still waiting for the Constitutional thingy. Got that yet? Or is law not your strong suit?

FWIW I Volenteer, Y'all should try it.
1.5.2006 4:15pm
Eugene Volokh (www):
Bob Loblaw: Yes, the law that Alito voted to uphold in Casey did have an exception for when the wife was pregnant by a man other than the husband.

Just an Observer: Oh, to live in a world in which radio air time would be taken up with the (very important, no joking) subject of the proper legal standards for facial challenges and undue burdens.
1.5.2006 4:16pm
John Jenkins (mail):
corngrower, I prefer indigent defense to old people, but to each his own. I know you're a troll, you know you're a troll, and anyone reading this site and commenting I would expect to have some semblence of legal knowledge. However, for my own edification, if not yours, the short version of the legal theory is this:

Given that the Bill of Rights has largely been incorporated against the states, in Griswold, SCOTUS determined that the thrust of the Third and Fourth Amendments, inter alia, protected the privacy of individuals and that extended to the sanctity of marriage because decisions about what went on in bedrooms should not be within the government's purview and therefore invalidated a law prohibiting the sale of contraceptives in Connecticut.

Relying on Griswold, SCOUTS in Roe determined that right to privacy articulated in Griswold extended to what we now call reproductive rights: if the state interfered with abortion in the first or second trimester, it violated the woman's right to privately choose which medical treatments to undergo in consultation with her doctor. Third trimester abortions were subject to regulation.

Subsequently the trimester framework was abandoned and now we point to viability (and that provokes an interesting question for bioethicists: if we get to the point where a single fertilized egg can be raised to infancy in some kind of machine, would current law require those seeking abortions to instead permit the removal of the fetus and placement thereof into some kind of embryo incubator?).

As I noted: you might disagree with some of the steps, but that doesn't mean they're not there. Being mindlessly obtuse doesn't help your argument, assuming you have one.
1.5.2006 4:33pm
lralston (mail):
Corngrower, Colt Master shake: Abortion was legal in Washington State BEFORE Roe
1.5.2006 4:41pm
Master Shake:
lralston - yes, it was legal in several states (to varying degrees) before Roe.
1.5.2006 4:57pm
strategichamlet (mail):
corngrower - I don't see where in the Constitution the government is delegated the power to illegalize any of the things you mention either. Sadly it seems as if the Constitution is not much more than window dressing because the majority will rule. Unpopular rights don't seem to enjoy much protection. From the sedition acts to Sobriety checkpoints society has always wanted the government to herd its wandering sheep and if on first inspection there isn't an appropriate clause in the Constitution one can always be found upon close inspection.
Or maybe I'm just a bit cynical today.
1.5.2006 5:16pm
Eugene Volokh (www):
Strategichamlet: The U.S. Constitution sets up the federal government as a government of enumerated powers, which can only exercise those powers that are specifically delegated. But it doesn't do that for state governments, and generally speaking neither do state constitutions. State governments have the power to do whatever is enacted through their political processes, subject to the constraints in the state constitution (for instance, in the state constitutions' bills of rights) and in the federal constitution.
1.5.2006 6:07pm
The NJ Annuitant (mail):
My general view is that Roe and Doe are wrong under the 14 th Amendment, and that the States can regulate, ban, limit or legalize abortion under their police power. Accordingly, a spousal notification law would be a reasonable exercise of the police power.

The thing that really baffles me is that the pro-abortion camp insists that it represents the majority, or the mainstream, but it is absolutley terrified of returning this issue to the body politic, where , in my opinion, it belongs. Further to that terror, expect them to pull out all the stops in demonizing Judge Alito.
1.5.2006 6:12pm
classmatewearingyarmulka (mail) (www):
NJ- I've heard that arguement before, but what the pro-abortion camp realizes that if Roe is struck down, that many states will continue to permit abortions, but there will be states that ban it. Even one state banning abortion is unacceptable to them.
1.6.2006 12:07am
Challenge:
"My suggestion, given that seniors have so much time on their hands, is that corngrower read Roe and read the cases cited therein for the justification. One can argue that those decisions were improper, and the basis for Roe is undermined thereby, but there is no question that Roe follows from Griswold, et al."

I don't think he was asking what shaky precedent Roe relied upon, or what sophistry the Court (poorly) constructed. I think Corngrower wants an explication of why the Constitution confers or recognizes a right to abortion; a question you seem quite uncomfortable with answering.
1.6.2006 12:07am
Challenge:
"The U.S. Constitution sets up the federal government as a government of enumerated powers, which can only exercise those powers that are specifically delegated."

If only the Constitution was interpreted that way.
1.6.2006 12:13am
Phil (mail):

Given that the Bill of Rights has largely been incorporated against the states, in Griswold, SCOTUS determined that the thrust of the Third and Fourth Amendments, inter alia, protected the privacy of individuals and that extended to the sanctity of marriage because decisions about what went on in bedrooms should not be within the government's purview and therefore invalidated a law prohibiting the sale of contraceptives in Connecticut.

Then in Eisenstadt v. Baird, 405 US 438 (1972) where the Court came back and said that only an idiot would think that Griswold turned on marital sanctity based on nothing more than the explicit language in the Court's opinion.
And these folks pretended to be doing law.
1.6.2006 5:22am
David M. Nieporent (www):
Dilan, you wrote:
With respect to point 5 (the exception for women who fear spousal abuse), no matter how broad the exception is, it still left it in the hands of a judge to determine how sincere it was, and it further put pregnant women in bad marriages in the predicament of having to go before a judge and put details of their intimate lives before that judge during what is surely already a traumatic period in their lives.
No, it didn't. There was no "hands of a judge" anywhere in the law. There was no "determining how sincere it was." There were no judges at all, nor were there "rulings." The law said simply that the woman had to state that she was afraid -- she did not need to prove it to anybody -- in order to make inapplicable the notification provision.

With respect to point 3:
The fact that most American women may agree with Alito's position does not mean he wasn't being insensitive to women.
I think it does. Being "sensitive" to someone does not mean giving him (or her, in this case) everything she wants. And certainly being sensitive to a group of people does not mean giving them something that most of them disagree with.

(In any case, the accusation is a red herring, because Alito was charged with interpreting the constitution in light of Supreme Court precedent, not being "sensitive" to anybody. The decision doesn't say anything about his views towards women. He was neither sensitive nor insensitive, based on his ruling.)
1.6.2006 6:33am
corngrower:
John Jenkins

So the most debated legal debate to date, and, John Jenkins is forced to quote ONE previous case decided by LAWYERS that had to change the meaning of the written words of the Constitution.

I am way impressed.

People have a low opinion of lawyers, I wonder why

There is no right to privacy.

Can I lay naked in the middle of the 640 acres I own and sunbathe? (Used to own until the city condemmed it to sell to a Mall developer)? Oh and I forgot if it is really hot and sunny I will seek shade under my cannibas plants that I use for my self, and I have the right to privacy to do with my body what I want?

So/

THE LEGAL proffession can not square up two legal opninions useing the same logic and comming to two different conclussions.

Right to privacy?

that must be that part of the constitution that is right after the seperation of church and state.

Guess what clodhopper? neither are there. I read it, it dont exist.

Oh and thanks for the very lawerly condesending tone. It validates my point
1.6.2006 9:15am
corngrower:
John Jenkins

GEE! I am so sorry for going off on you.

I missed a page of the Constitution and found the 'Right' to privacy and the 'Right' to abortion right there with Miranda rights and seperation of church and state. And the clause that sets the minimum age that convicted criminals can be executed.

My bad!

My bad
1.6.2006 9:25am
Wince and Nod (mail) (www):
John Jenkins,

Very nice summary of the key cases.

However, corngrower is not a troll. He had a valid point, which was the same valid point as others have made, to wit: Pre-Roe, it was up to the states to determine when abortion was legal. Read his first comment! It was cleverly written. Then read the rules below, and stop calling people trolls - a personal insult - when they are making valid points.

corngrower,

Now you read the rules below. Clever is appreciated, but lots of snark about lawyers and law on a law site would seem to violate at their spirit, if not their letter.

Yours,
Wince
1.6.2006 12:01pm
corngrower:
Wince

Thanks

My beef is that lawyers seem to wrap themselves in single word, or, a comma, of a extreemly small portion of a very large law, like a big cozy security blanket. Lawyers find comfort in a few selected words, then throw out the intent of the law. Like a famous person that utered that most famous legal opinion, 'well that depends of what your definition the word, is, is.

But it seems to me that quoting bad precedent to support a bad decission is bad 'law'.
1.6.2006 12:31pm
Master Shake:
Wince - yes, he's a troll. No, there was nothing clever in his post.
1.6.2006 1:25pm
corngrower:
Master Shake

Ahh. if I am a troll, so are you. I just cited cases that can not be supported by statute or the constitution. You agreed with me.

Fact, typing slowly now, abortion was legal before Roe.

Still typing slow, The judiciary without statute or constitutional guidence decide that a State cannot write a law to ban an activity.

I have seen obscure law and code reprinted and quoted and interpeted down to the last comma and hyphen. But for all of the name calling, somehow not a single word of law has yet to uttered here.

Master, your are a prime example. you got the time to read the board, You got time to call me names. somehoe you do not have the time to explain a legal decission. Do carry on!
1.6.2006 3:31pm
slw:
How old are you people?
1.6.2006 4:13pm
Dilan Esper (mail) (www):
David:

Point 5-- no, the judge had the power to determine whether the woman actually had "reason to believe" that she might face abuse. That leaves open the possibility that the judge might turn the woman down. Now, of course, Alito could have limited the statute and said that judges do not have the power to turn such a woman down, but he didn't say that.

Plus, you don't address my other reasons why any spousal notification statute, even with a very liberal bypass, will inevitably result in more domestic violence.

Point 3-- I agree that Alito's job required him to be "insensitive" to women if that is what the law required. However, the law required him to specifically determine if women were unduly burdened. So, if he says "this is no big deal because it only affects a few women", the charge of insensitivity towards the particular women it affects is fully justified.

And the issue isn't giving these women "everything they want". The issue is not taking their burden seriously, not finding it "undue". And whether the rest of the public is offended by women who don't tell their spouses about abortions or not, it is still tremendously insensitive to say that a woman in a bad marriage who is forced to tell her husband doesn't face any undue burden because other women, in better marriages, will freely tell their husbands.

It's insensitive in the same way that if someone said "I don't see why other people feel they need to get a divorce. I've been with my husband for 35 years!" is insensitive. Maybe someone else faces different circumstances than the person who says that is facing.
1.6.2006 4:40pm
Wince and Nod (mail) (www):
Master Shake,

I'm sorry you don't want to learn what I am teaching today. Maybe tomorrow. I will continue to comment as I have been, in hopes that someone will learn, even if you never wish to do so.

Yours,
Wince
1.6.2006 5:39pm
Master Shake:

Master Shake,

I'm sorry you don't want to learn what I am teaching today. Maybe tomorrow. I will continue to comment as I have been, in hopes that someone will learn, even if you never wish to do so.

Yours,
Wince
Ok, that's just creepy.
1.6.2006 7:42pm
The NJ Annuitant (mail):
classmatewearingyarmulka ---

The very idea of democracy working to come to a democratic result, some states going one way , others going another, others finding alternative solutions that differ still, is unacceptable to the pro-abortion fanatics. But I just don't want to hear that they are the majority or the mainstream. They act like they don't ruely believe it.

Ultimately, I want a valid and intellectually honest 14th Amendment jurisprudence.
1.6.2006 8:17pm
The NJ Annuitant (mail):
Oops, make "ruely" really.
1.6.2006 8:20pm
jgshapiro (mail):
Dilian:
it is still tremendously insensitive to say that a woman in a bad marriage who is forced to tell her husband doesn't face any undue burden because other women, in better marriages, will freely tell their husbands.
Your argument validates the most common criticism of the undue burden test -- that the word 'undue' has no independent meaning apart from what any given judge would find in any given case, given his or her personal views.

It seems from your statement (and those in your earlier post) as though there will always be a small subgroup as to which the burden of any regulation would be 'undue' in your eyes and that if a judge refused to invalidate the statute based solely on the burden to that group, he or she is insensitive, at least to that subgroup. The only ways out of this dilemma is either (A) if a regulation imposes exactly the same burden on every person regulated, which will never happen, or (B) if you always side with the subgroup, and can therefore be declared 'sensitive' to their concerns.

Remember, this was a facial challenge to the law, attempting to invalidate the entire law because of its burden on a small group of people. If the group is small enough, and if there are adequate procedures addressed toward that group allowing them to circumvent it, the challenge should fail. Sure, the subgroup will always complain that the bypass procedures themselves are an undue burden, but on that theory even one objecting person can kill a statute every time.
1.6.2006 9:13pm
Dilan Esper (mail) (www):
jgshapiro:

I don't defend the undue burden test. It strikes me as a typical piece of O'Connor jurisprudence-- an attempt to split the difference that cannot be defended either from a pro-Roe or anti-Roe theory of constitutional interpretation.

But the fact remains, directed by the Supreme Court to utilize that test, Judge Alito did so in a way that trivialized what are actually very real burdens on some women. If you are asked to determine whether a husband-notification statute constitutes an undue burden to a woman seeking an abortion, "it's not an undue burden because most married women will suffer no harm if they tell their husbands anyway" is not an answer that shows very much sensitivity towards the struggles of those women who CANNOT tell their husbands.

In any event, what you characterize as "my" view is actually the view that was upheld by the Supreme Court in the Casey case, which reversed Alito and which has now been settled law for almost 14 years. So it's not just me who thinks that Alito applied the undue burden test in a suspiciously callous manner.
1.8.2006 4:33am
Deoxy (mail):
Of course, lost in the whole "spousal notification/insensitive to owmen" debate is the fact that that SPOUSE will be on the hook for that child's welfare until they are 18 if they are indeed born (in almost every case). That is, even if the husband has PROOF that the child is not his, it is not uncommon for him to be forced to pay child support for it.

But hey, everyone's equal, right? Women are just more equal than men...

It's all the woman's decisions and the man can just life (and pay) with it.

I'm not aying that it should be all the MAN'S decision, either, mind you; nor am I saying I have a wonderful solution that solves everything, either, as this is indeed a difficult topic.
1.9.2006 4:25pm