Rox Populi asked (see previous), “Would love to hear from Libertarian-types […] how it would be okay to have a law requiring women to inform their husbands before they get an abortion. Or is this just another head fake, designed to take everyone’s attention away from the Plame indictments?”
Actually, I think the White House would do well to keep talking about the Libby indictment, because it gives lie to Joe Wilson’s charges and exposes the craven way some on the left are willing to criminalize policy disputes—but that’s just me. As for libertarian response to the Alito nomination, I’ve answered that already (albeit without specific reference to libertarianism), but here are a few more examples:
[…] looking at the Pennsylvania statute I notice a lot of exceptions, one of which is this: “Her spouse is not the father of the child.”
I’m not sure about Pennsylvania, but in many states her spouse—even if he’s not the father of the child—would still be on the hook for child support. Likewise, if he didn’t want children, but she disagreed, lied to him about birth control, and got pregnant. And he certainly couldn’t force her to have an abortion if she did so, even if his desire not to have children was powerful, and explicitly expressed at the outset. (The usual response—“he made his choice when he had sex without a condom”—never comes up in discussions of women and abortion.)
So where’s the husband’s procreational autonomy? Did he give it up by getting married? And, if he did, is it unthinkable that when they get married women might give some of their autonomy up, too?
The problem here is that you can say “my body, my choice”—but when you say, “my body, my choice but our responsibility,” well, it loses some of its punch.
Glenn has more here.
And here’s Steve Green:
He’s got an impressive resume, decent judicial philosophy – Alita is the kind of pick Bush should have made the first time around. Who says Bush can’t learn?
Alita is a little too pro-life for my tastes, but as I’ve said time and time again, I don’t think abortion is an issue for the courts to decide. Alita does seem to understand the concept of federalism, which (along with his resume) is enough to get my seal of approval.
Jacob Sullum at Reason’s Hit and Run doesn’t address Casey, but he gives additional libertarian reaction to the Alito pick:
Although it’s supposed to be alarming, People for the American Way’s “preliminary review” of Supreme Court nominee Samuel Alito’s judicial record seems mostly reassuring to me after a quick read. Alito’s conclusion that a ban on possession of machine guns exceeds Congress’ authority under the Commerce Clause, which PFAW says “raises very troubling questions,” is especially encouraging. Of course, there’s always the danger, as with John Roberts, that Alito won’t live up to his bad press. But judging from the gun case, his inclination to impose limits on congressional power is clearer than Roberts’.
I’ll update this post as more reaction comes in.
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update: John Henke at QandO:
Libertarians (generally) would not support a law requiring women to inform their husband before getting an abortion. Butâ€â€and this is importantâ€â€that was not the question before Judge Alito. That question was asked and answered when the legislation was proposed and passed.
The question to which Judge Alito responded was whether such a law violated the Constitution. Alito dissented because the law did not violate the Constitutional standards established by precedent. Specifically, the law did not create what Justice O’Connor called an “undue burden”. In fact, Alito specifically listed the components of “undue burden” and explained why the law did not violate them.
The law may still be bad policy, but that’s a wholly different matter. States are constitutionally permitted to enact bad abortion policy, so long as it does notâ€â€as has repeatedly been held by the Supreme Courtâ€â€present an “unduly burdensome interference with her freedom to decide whether to terminate her pregnancy”.
(h/t John Cole)
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And here’s the Competitive Enterprise Institute:
Alito has issued landmark decisions upholding the free speech rights and freedom of association of business trade associations (Pfizer v. Giles (1995)) and commercial free-speech rights (Pitt News v. Pappert (2004)). His rulings have also shown a grasp of the regulatory and legal challenges facing business and an appreciation of the value of free markets.
(via Ronald Bailey)
More from “bullshit variety” libertarians as I find it.
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update 2: Sundries Shack:
Obviously, our laws recognize a man’s responsibility to a child, even if the child isn’t his (since in many states a man can be compelled to pay child support even if he isn’t the child’s father). The law makes a husband responsible for the child if the wife gets pregnant, even through intentional deceit, even if the husband clearly did not want a child.
It would sem incredibly unjust if, in only this case, the husband was not even afforded the courtesy of notification. Note that the law in question doens’t require the husband’s consent – he’s still helpless to prevent an abortion even if he’s willing to take complete responsibility for the child (and it seems strange to me that a husband could be compelled to care for a child he doesn’t want yet may be prevented from caring for a child he does want).
That assumes, of course, that you believe a fetus is a child. If you don’t – you believe it’s some nonspecific mass of tissue that could simply be regarded as property – then the man still has some interest in the welfare of that property considering that he contributed to it. Sure, that’s pretty flimsy reasoning, but that’s where you inevitably descend if you consider a fetus to be something that is “owned†instead of an semi-autonomous being with its own set of basic rights. If a fetus is a possession and not a person, then the man ought to at least be notified that his property is being disposed of.
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update 3: Bill Quick:
[…] I view Alito as a home run, slam dunk, bullseye appointment. If Roberts actually does turn out to be the new Rehnquist, then Bush – with two doddering super-libs and three years to go – still has a chance to steer the court to the right for a decade, at least – at which point Scalia will himself perhaps be looking for a chance to retire.
I doubt anybody will top that line.
Is Glenn saying there is something wrong with this argument?
I am about as libertarian as as lower-case “L” libertarian can be. Drug prohibition drives me batty, and I don’t read the Commerce Clause as meaning Congress gets to legislate about anything it can dream about. And I think the Alito nomination is great.
Women do not become pregnant by themselves. Regardless of the metaphysical status one might assign (or deny) to the entity in a pregnant woman’s uterus, it is alive, it is human, and it is not unreasonable to hold that those who sire such entities might have more than a casual interest in their disposition. One could argue that by having consensual sex, a woman knows she runs the risk of creating an entity with the male, and it is less than clear to me that the male half of this consensual behavior should lack even the right to know the entity came into existence.
Certainly, I see nothing nefarious about the State of Pennsylvania taking that position, where the sex partners are in the civil contract of marriage.
Not to change the topic, but did anybody else see Shannon Elizabeth on the World Series of Poker on ESPN2 yesterday?
Here’s my take as a “libertarian type”:
The power to regulate abortion is neither granted to the federal government, nor denied to the states. While I do believe that there is some right to privacy (the fourth and fifth amendments seem to imply such a thing, and the ninth amendment specifies that it doesn’t necessarily have to be enumerated to exist), I don’t think that a right to privacy can be invoked to deny a father the knowledge – if not any actual say in – the disposition of his potential offspring.
What’s really fascinating as the blogs are all digging for info on Alito is that he actually has at least one each of “pro-abortion” and “anti-abortion” decisions.
Maybe that’s what frightens Dems so: Alito may actually decide a case based not upon either political agenda, but upon the <gasp> CONSTITUTION!!!
Let’s see, this statute seems to require A to notify B before killing C.
My libertarian instincts tell me that this law misses the huge fucking elephant in the middle of the living room—the part where A kills C. In other words, this set of rules strikes me as largely irrelevant to the Main Event (i.e., the killing part).
In any event, the law violates no provision of the actual U.S. Constitution. I could read it again, but I think the result is probably going to be the same.
Patterico has some pithy comments on his opinions.
Well, if you want to be very libertarian about it, all three parties have positive and negative rights which must be considered: the mother, the father and the child.
Alito looks like the kind of judge who closely examines each case–and every nuance of each case–because he recognizes this. He has perspective and integrity.
Feminists, on the other hand, appear to believe that the only rights that count are the mother’s–a very un-libertarian idea.
My libertarian take is that the entire libertarian position is in Henke’s quote and the last paragraph of Glenn’s.
Practically, it doesn’t matter because the ruling was only that the statute is not unconstitutional which it clearly isn’t.
Philosophically, sorry sister, if you assign responsibilities to a guy, there are rights that he then gets as a logical consequence.
about comments from Glenn Reynolds:
“The problem here is that you can say “my body, my choice”—but when you say, “my body, my choice but our responsibility,” well, it loses some of its punch.”
The whole question of abortion and the father’s responsibility, as posed, is a false choice. It is another kind of “do you still beat your wife?” question.
If the fetus is brought to term, there is a person, for whom BOTH share responsibility. If not taken to term, it was the MOTHER’S body, and she chose. The fact that the father’s responsibility can be aborted along with the fetus is simply the way things are. He does not get to choose in this scenario.
Which is a hell of a good reason to use condoms or the big V. Otherwise, it is a gamble on his part. Sort of a logical shoe on the other foot, eh? Women up to now have always been on the short end of that stick. Pregnant meant no choice. Now it is men that have no choice. If you use that dick, be prepared to accept consequences – either way.
Yes; there’s no way to make it perfectly fair. But a man who wants to get married and start a family someday can surely be forgiven for having a fling with a woman who assures him she faithfully takes the pill, when she does not.
As things stand, the law takes no account of that. Nor–very often–of genetic testing that shows a man is NOT the father of the child/fetus in question. Very often, if he’s named he’s named–and that’s the end of it.
We cannot make this business fair. But we could certainly make it more fair.
[Without being mean about it.]
I’m uneasy with the new nominee, despite all the fine analysis of his legal reasoning, from Patterico and others, I fear it is an indication that he will bend whatever language he can, as pretext; that his actual goal may be to undermine Roe V. Wade. I’ll reserve judgement and wait and see on that.
I’m disturbed by some of the posts above.
Paying for a child and bearing a child are apples and oranges.
Men have responsibilities that begin when a child is born and not before, responsibilities that women share and cannot shirk.
To my mind notification statutes make no sense on their face unless the goal is simply to cause obstruction and delay and intimidate and humiliate women. What purpose can it serve to force a women to notify her husband of her intention to have, or completion of, an induced abortion? Wouldn’t most women is a marriage relationship choose to do so freely?
Does she have to tell him under the law when she has a spontaneous abortion? Why should she have to notify her husband when the choice is deliberate? What practical effect can it have?
Does she have to tell him before she gets her tubes tied? Has a hysterectomy, or surgery to ablate the uterine lining?
The physical burden and physical risk to a woman’s person is borne solely by a woman. This is where a woman gets a superior interest, one that , atleast for the present, trumps any developing life that cannot possibly survive without her continuing as a a flesh and blood life support system.
Until men get pregnant, they can not possibly have the same interest a woman has in the situation.I’d say her interest certainly trumps that any male not facing the the physical state of pregnancy and all the bad things that can come of that to a woman’s health.
Do I have to remind everyone that pregnancy can injure a woman. It can kill her. It’s a wild card, too, you can’t know in advance whether it will be *your* uterus that ruptures, whether you will be the woman that gets toxemia, or strokes, or an amniotic embolus, etc.
Even when things go relatively normally, (and no women can ever declare herself to be immune to injury from pregnancy) there are physical burdens and effects that may have a profound effect on her everday existence and her ability to meet the needs of herself and her family.
Which is why a free woman is able to make decisions about what to do and who to tell about it without government interference.
“Paying for a child and bearing a child are apples and oranges.
Men have responsibilities that begin when a child is born and not before, responsibilities that women share and cannot shirk. “
Well, yes in that the first is borne primarily by men and lasts 18 years and the latter is borne solely by women and lasts 9 months.
There is also the fauly assumption that men face no physical peril in providing for their children. They do – either in risks incurred by hazardous jobs or in shortened lifespans beause of the accumulated mental and physical stresses of working. The law compels man to work to provide support far, far more than it does women.
The “it’s only me who is at risk” here is a great short-term argument but beaks down seriously when you actually consider the whole life of the child.
But then again, that “life of the child” is kind of an uncomfortable concept, isn’t it?
My mom, God rest her soul, mother of eight, was asked by me about the whole abortion thing. I was a tender 17 years old when I asked her, and she gave the best reply I’ve ever heard: “a woman loses the ‘right’ to her body when she gives her body to someone else.”
Yeah, I know, it’s not real libertarian or legal, but it holds the entire gist of the procreation debacle within its simplicity. I immediately understood a world of complexities in that one simple statement. And it kept me from much harm, I might add.
after reading the various “recaps” of his decisions, it seems like he is supportive of the concept of States Rights. This, to me, seems a good thing. It does not tell me what he might think re: Kelo. That is where I would like some more info.
If the court wants to look at international law (ha!), I do believe that in Japan, where there are a LOT of abortions, the wife needs her husband’s permission to get an abortion.
Obviously, the balance between a woman’s right to choose and a man’s responsibility to accept the consequences of her choice can never be made fair. Obviously, the last point at which things are ‘equal’ between the genders is the mutual decision to have sex.
But I always wonder how a law like this would work:
A man gets to sign some sort of responsibility waiver, saying basically “I gave her permission to have an abortion or put the baby up for adoption and she refused. I will accept no further responsibility for the child she has decided to bring forth.”
Not that it would be written that poorly or anything.
It also appears that the First Lady may realise that it was her husband who won the election, unlike another First Lady.
Tom, are you saying that there is another First Lady? That Bush is a two-timing polygamist??
SOMEONE CALL OLIVER WILLIS. We need his mad research skillz.
Sortelli,
No, not THAT other first Lady, no one knows about her yet (well, sure, NOW!). That other one, the former one, way over there….
Yes! Eleanor Roosevelt!
NO… that other one. The one with the running shoes on.
How about the situation where someone changes their mind? Say a man gets his wife pregnant, both of them consent and agree, but later she starts to think it may not be a good idea to have a baby. Even if he still wants the child, does she get absolute power over whether the baby is born? Obviously if he changes his mind, he can’t force her to have an abortion, at least not in our society the way it is. Now let’s make it a surrogate birth, where another woman is involved. And why not go another step and consider the inevitable (soon?) situation where babies can be born in vitro, with no risk at all to the mother. Then who gets to change their minds when?