SCOTUS nominee Samuel Alito’s dissent in Casey is becoming the major battleground upon which his nomination is being fought, at least among those vying for a rhetorical upperhand in the battle over defining his ideology and judicial philosophy. Which is why those of us who support the Alito nomination need to be vigilant and precise in our defense.
Two things this morning. First, Patterico catches the LA Times’ David Savage, in this piece on Alito, altering a quote from the Supreme Court’s opinion in order to show Alito in an bad light. From Patterico:
The David Savage article states in its fifth paragraph:
But when the Pennsylvania case reached the Supreme Court, O’Connor and the court majority rejected Alito’s view and characterized the “spousal notification†law as an insult to married women.
“Women do not lose their constitutionally protected liberty when they marry,†the court said in an opinion written in part by O’Connor. It is “repugnant to our present understanding of marriage†to permit the state “to enable the husband to wield an effective veto over his wife’s decision,†the high court said.
This is not how the quote reads in the actual Supreme Court decision. The quote in the article has been altered. The second part of the quote does not appear precisely as quoted anywhere in the opinion. The closest the Court comes to that language is this passage:
For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision.
In the quote in the L.A. Times, note how the word “to†has been added before the word “enables,†and how an “s†has been removed from that word.
A minor detail? Not really. Altering the quote this way allows the reporter, David Savage, to more easily combine the “repugnant to our present understanding of marriage†phrase with the doctored “enables the husband to wield an effective veto over his wife’s decision† language which appears two full paragraphs earlier in the decision.
The altered quote makes it sound like the law generally allows husbands an effective veto over an abortion. But in the actual opinion, the Court makes clear that the law is only “an effective veto†for most abused women.
By the time the law’s provisions are fully described further down in the story, readers have already been led to think of the law as a consent provision for all women, rather than for an unspecified percentage of abused women, as Judge Alito described it.
[all emphases in the original].
This is exactly the kind of dishonest representation of his views that Alito’s supporters must be on guard against—especially because such representations can be turned into memorable soundbites intent on robbing Alito’s precise legal reasoning of its nuance and reduce his decisions to cartoonish summaries that militate against proper understanding of the subtle thinking involved in reaching those decisions.
But even those not acting in bad faith (as I believe Savage is), are tenaciously maintaining their opposition to Alito’s thinking as “anti-woman,” and are basing their argument in large part on a misunderstanding of certain language Alito employs in the dissent. That is, these critics argue that “Alito drew a clear legal parallel between a minor child and an adult (major) woman” in order to conclude that spousal notification did not represent an undue burden as established by O’Connor as a benchmark for restrictions on abortion. In response to the assertion by supporters of Alito that in considering the constitutionality of the Pennsylvania statute, Alito was correct to turn to existing law on parental notification as the only available analogue, commenter Sally at Feministe sums up the “anti-woman” charge against Judge Alito this way:
That only has any bearing on this case if you assume that the relationship of a woman to her husband is the same as the relationship of a child to her parents. The law does not generally assume that, which is why wives can get bank accounts and drivers’ licenses and have their ears pierced without their husbands’ permission. Can you not see why it’s profoundly misogynistic to equate the position of a wife with the position of a child?
And later adds,
the position of a wife is analogous to the position of a child: the law pertaining to wives was ok because it was the same as the law pertaining to minors. And if that were true, then wives would need permission to do all the things that children need permission to do, such as get their ears pierced and go on field trips. Luckily, this is not the case, because the mere idea is horrifying to anyone who is not a nutjob.
The problem with this thinking, however, is that it misses the point entirely, and misrepresents the legal thrust of Alito’s (legally) necessary analogy.
In Alito’s dissent, he writes:
Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,†rather than simply inhibiting abortions “‘to some degree’†or inhibiting “some women.  Furthermore, Justice O’Connor’s opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson or the burden created by the regulations in Akron that appreciably increased costs. Since the laws at issue in those cases had inhibiting effects that almost certainly were substantial enough to dissuade some women from obtaining abortions, it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.
In this case, the plaintiffs, who made a facial attack on Section 3209, did not prove that this provision would impose an undue burden. Section 3209 does not create an “absolute obstacle†or give a husband “veto power.†Rather, this provision merely requires a married woman desiring an abortion to certify that she has notified her husband or to claim one of the statutory exceptions.
In the comments here, Paul Zrimsek notes, correctly:
[…] Alito mentioned parental notice only for the purpose of comparing the degree of burden imposed by the notification law (that being the grounds of his disagreement with the majority). In no way did he liken adult women and minor girls in terms of maturity, decision-making ability, etc. In fact, the difference between the two groups strengthens Alito’s argument: since a grown woman is nearly always better able to act against the wishes of her husband than a young girl is to act against the wishes of her parents, a spousal notification law imposes less of a burden than a parental notification law.
This is an essential distinction to make: the idea that Alito is drawing “a clear legal parallel between a minor child and an adult (major) woman” is technically correct, but what is not correct is that such a parallel suggests any kind of social judgment, or speaks at all to the social position of the woman in relation to her husband. Rather, it implies the properly elevated social position of the woman compared to a child, which in turn argues for a diminution of the burden of spousal notification as compared to parental notification laws, which were the only available legal analogues.
Allah puts it this way:
Alito had to use the Supreme Court’s rulings on parental notification laws as precedent here because there were no decisions that dealt with spousal notification laws. He took the most analogous cases he could find and reasoned from there. The point is, not only is he not comparing women to minor children, he’s pointing to the fact that they’re not minor childrenâ€â€that they’re mature and fully autonomousâ€â€to deduce that there’s less of a burden involved in spousal notification laws.
Think of those “you have to be this tall to ride†signs at amusement parks. Some kids will be too short and won’t make the cut. So will some midgets. What [those who are conflating the parent/spousal notification analogy with a social judgment are] saying here is tantamount to saying in that case, “THEY THINK MIDGETS ARE CHILDREN!â€Â
Combine this reasoning with the exemptions provided for in the Pennsylvania statute, and it is difficult to maintain the argument that Alito was out to place an undue burden on women seeking abortions out of some sort of dubious, religiously-tinged patriarchal motive disguised as a legal machination.
Reasonable people can certainly disagree with Alito—and the Supreme Court decision did—but it is important to remember that in doing so, Justice O’Connor was convinced to extend the scope of undue burden.
Finally, another argument I keep hearing against Alito’s thinking is that libertarians should consider spousal notification an undue government intrusion into a private, personal relationship—which manages to miss both the legal point and the libertarian message. First, as Alito notes, it is not the job of a judge to decide whether or not a law duly passed is “good” or “bad,” just whether it’s constitutionally permissable (this was the force behind Chief Justice Roberts’ upholding of the “”french fry” law, which in turn was impetus for having that “bad” law repealed); that Alito knows this and acts upon that principle is what shows him to be a legally conservative jurist. Second, libertarians recognize that part of individual liberty is that individuals can vote on—and legislatures pass—laws that they are bound by. When those laws prove Constitutional, citizens can work to change them, but they shouldn’t rely on the extralegislative fiat of philosopher kings to define those rights not found in the Constitution.
****
More here (via John Cole)
This, of course, is the real issue, and no surprise that it’s been ignored by those complaining about his spousal-notification dissent. Their grievances have nothing to do with Alito’s “undue burden” reasoning and everything to do with the fact that the state legislature passed the law in the first place.
Appreciating that distinction is essential to maintaining the separation of powers. Thankfully, most of us do. Not all, but most.
RIGHT-WING EXTREMIST!!!
I find it particularly fascinating that conservatives rejected Bush’s nomination of essentially a “one-topic” candidate when an assurance of her opposition to Roe was put front and center, a rejection that positively shocked the MSM.
Now, liberals are screeching at Alito’s nomination, citing his dissent in Casey as their “evidence” that he’ll work against Roe if he is confirmed.
Illustrates pretty well who’s obsessed with the Abortion issue, huh?
TW: “per”
Alito’s squeal-per-liberal rate is far better than Meiers’.
As far as i can tell from my reading of Casey (the S.Ct. one, not the 3rd Cir), the Supremes themselves implicitly say that Alito applied the then-existing standard correctly, because in Casey they created a new standard for what “undue burden” means in order to extend it to adult women for spousal consent purposes.
Of course, that kind of discussion is little too nuanced, I suppose, for those who see any regulation of abortion as objectively “anti-woman.”
Check this out, folks.
Possible definition of a liberal: Someone who believes Roe is a super-precedent but the Constitution itself is not.
Jeff–
Not to be a noodge, but could you paste the original text into SimpleText (or TextEdit if you’re a Mac user) before dropping it into HTML. (Set the text editor to Unicode.) That way all those funny characters will be eliminated.
Remember, criticism is just another way of saying thanks…or something like that.
I’m not seeing what you are seeing. And I compose right in the Expression Engine text field, so I’m not sure how to set it to unicode.
I consider spousal notification of any medical procedure an undue government intrusion into a private, personal relationship, FWIW, unless I have designated that person my next of kin and have authorized him to be notified of my condition.
Almost all married women would inform their husbands of pregnancy and a decision to stop being pregnant. Only a small percentage of women would not do so voluntarily, and wouldn’t you think in those cases, there is fear the husband will punish or retaliate? So what is this law for, anyway? A wife in a normal relationship is going to “tell”; so why is there a need for a law that orders them to do it?
I”m a little confused by Allah’s analogy. Obviouisly midgets are not children, but the rule for the restriction is the same reason for both. People too short are in danger of falling out of the restraints and plummeting to a gooey fate.
Spousal and parental notification laws are meant to do the same thing, notify someone else, presumably because they have a say in guiding your actions. Women are not children, they have all the wherwithal necesssary to make medicaL DECISIONS FOR THEMSELVES, and should not be subject to that kind of interference.
What is the notification FOR? Is it simply an assertion that a husband needs to be given an opportunity to hide the car keys? That a husband has a guiding, parental role? What ever Alito meant by juxatposing women and children, the law itself treats women as children.
Lets me just add, I can not stand it when pregnant couples cutely announce “We’re pregnant!” THE HELL!
Dunno. But Alito’s position is these are questions you need to take up with the legislature.
This misses the point, which is a legal one. To consider the legality (not the appropriateness) of the law, Alito had to draw on other notification law. The one he had at his disposal was parental notification. To decide undue burden, he compared this new law with those laws, concluded (reasonably) that women aren’t children, and so are less burdened, meaning that the new law didn’t meet the legal threshhold for undue burden.
Jeff–
I see umlauted-As and such in place of quotation marks. Maybe it’s a Safari problem?
SarahW–
What Jeff said. The issue isn’t whether you (or Alito) like the law; it’s whether the legislature has the right to make it. You are illustrating the fundamental flaw in the thinking of liberals (though I don’t think you are one)–a flaw that also illuminates how they think about the judiciary.
The conservative position must ALWAYS be it is the prerogative of the legislative branch, within the boundaries of the Constitution, to make the laws. Period. We retain the right to vote the bums out who made bad laws. But stare decisis is like landmarking a building; once made, rulings can rarely be torn down.
Nice haul back onto topic, Jeff.
And yet they are burdened, with the burden imposed *for the same reason* it is imposed on children, presumably. This wasn’t Alito’s point, but it’s mine. (There I go again)
I think Alito was wrong, obviously – but I’ll have to save comment on that for later.
I will tell you my worry, though; I think he may have an axe to grind, that colors his opinions.
What is the notification FOR? Is it simply an assertion that a husband needs to be given an opportunity to hide the car keys? That a husband has a guiding, parental role? What ever Alito meant by juxatposing women and children, the law itself treats women as children.
No, it acknowledges that the (potential) father has an interest in the outcome of the pregnancy and requires the other interested party to inform him of her intention to interfere with his interest. If anything, Casey treats men like children. As an aside, you might want to think about what your statement says about Pennsylvania voters and their duly elected representatives.
Like I said, I’m definitely not a legal scholar. However, I still find the implications of relying on said law more than problematic.
Lauren, had Alito’s argument carried the day in Casey and had Sandra Day O’Connor not broadened the undue burden “doctrine” (hey, I’m no legal scholar either) in the SC majority opinion, you might even today be banding together with likeminded Pennsylvanians to use the democratic process to soften or repeal the statute. Assuming you are a Pennsylvanian, that is. If not, you are still to be congratulated for enjoying the benefits of legislation you agree with while not having to expend the energy to have that legislation enacted through the legislative process.
I disagree.
Parental notification statutes are aimed at the relationship between a mother/father and their minor child (who’s carrying an unborn child). The parents have a right to know because they have legal custody of their daughter. Spousal notification statutes are aimed at the relationship between a father and his unborn child (who’s being carried by his adult wife). The father has a right to know because he has a biological interest in the child. Has nothing to do with custody or paternalism vis-a-vis his wife. That’s the difference.
For the record, my amusement-park analogy was aimed at showing that you can’t equate midgets and children for all purposes just because they both fail one particular test. Lauren was trying to extrapolate some sort of legal meta-paternalism from the fact that notification statutes for both female minors and adult women pass the “undue burden” test (according to Alito’s calculus).
It occurred to me afterwards that a better analogy would be to imagine anti-abortion statutes as physical weights. If a weight is so heavy that a woman can’t lift it, it represents an undue burden and is, therefore, unconstitutional. Alito’s point re: spousal notification is that it’s the same type of burden as parental notification—i.e., the two weigh the same amount. And if parental notification isn’t too heavy for female minors to lift, then surely spousal notification isn’t too heavy for an adult woman, who’s much stronger (i.e., who has full legal autonomy and is psychologically mature enough to make her own decisions).
Perhaps, Allah, but it still negates bodily autonomy for women. On it’s face, Alito undermines the core of Roe v. Wade by defending yet another top-down obstacle to the legal right to obtain an abortion. And in the end, that’s why I believe so many people defend his ruling.
How does it negate her autonomy, Lauren? All she has to do is tell him. There’s nothing he can do to stop her. On the flip side, if he wants her to abort the child and she decides to have it, he’s on the hook for child support.
Whose autonomy is subordinate to whose here?
Hey, I think it’s perfectly fine for people to opt out of child support so long as they also give up parental rights. When I’m president, man.
In that case, I just might vote for you.
Once we straighten you out re: that “judicial ends justify the means” thing, that is.
You two DO know that the president is part of the executive branch, right?