Planned Parenthood
called Alito's vote "callous disregard of battered women."
Karen Pearl, interim president of Planned Parenthood, said much
the same thing in a blog, and the criticism spread rapidly on
the left. A woman writing in The Philadelphia Daily News
said Alito's vote in the case proved he is "dangerously radical."
Yet this
attack is all wrong on the facts. There was no callous disregard
for women. Alito wrote in the 1991 decision that "the plight
of any women, no matter how few, who may suffer physical abuse
or other harm as a result of this provision is a matter of grave
concern." The law he was scrutinizing had an exception for
the danger of abuse by the husband. The law did not require spousal
notification if the abortion was a medical emergency, if the father
couldn't be located, if the spouse was not the father, if the
pregnancy was caused by sexual assault, or if the woman believed
bodily injury would result from telling her husband about the
coming abortion.
The spousal
notification provision passed the legislature with major support
from both parties and was signed into law by a Democratic governor,
Robert Casey. Alito wrote this: "The Pennsylvania legislature
presumably decided that the law on balance would be beneficial
... we have no authority to overrule that legislative judgment,
even if we deem it unwise or worse." He wrote that his job
was to determine whether Pennsylvania had created an "undue
burden," the benchmark established by Justice Sandra Day
O'Connor in a previous abortion case.
"Whether
the legislature's approach represents sound public policy is not
a question for us to decide," Alito wrote. "Our task
here is simply to decide whether (it) meets constitutional standards."
Alito thought it did. He wrestled with the issue in a long and
careful analysis of what O'Connor meant by an undue burden.
The analysis
was rejected by his own court, 2-1, and by O'Connor herself in
the Supreme Court's 5-4 decision striking down spousal notification.
The court ruled that notification constitutes an undue burden,
partly because it may trigger psychological abuse from husbands,
child abuse, withdrawal of financial support, or destruction of
a woman's possessions.
It is clear
from Alito's analysis that he was attempting to follow what O'Connor
and the Supreme Court had laid down. He was not trying to insert
his own opinion on abortion. Alito's reputation is that he is
scrupulous about not imposing his own beliefs. Richard Garnett,
who teaches constitutional law at Notre Dame, says: "Here
is what we can expect from Justice Alito: He will do his best,
in every case, to interpret and apply the law as it is, and not
to remake the law according to his own view of what it should
be." If Alito was guilty of anything here, it was deference
to the legislative arm of government and attempting to adhere
to law and precedent, as he understood them.
Besides,
many of us think he was right to defer to the legislature on this
issue. Spousal notification passed easily in Pennsylvania because
so many legislators concluded that men have an interest in their
unborn children and should at least know about the decision to
abort, and thus have the chance to talk their wives out of it.
Husbands should be allowed to express how losing a child would
affect them. Mainstream America clearly agrees with this view.
Support for spousal notification is overwhelming. It has hovered
between 63 percent and 72 percent for many years.
Last month
Pew Research reported that "large majorities favor such measures
as mandatory waiting periods, parental and spousal notification,
and a prohibition on late-term abortions." Gallup (1996)
reported that majorities back mandatory spousal notification in
nearly every subgroup surveyed, including Democrats (66 percent),
liberals (60 percent) and young people (75 percent of those 18
to 29). It is indeed peculiar that a campaign to depict Alito
as out of the mainstream should focus so sharply on a plausible
technical analysis of a law the mainstream clearly backs.
It may be
that the hard feminist left has no real ammunition to fire at
Alito and must make do by inflating the importance of a debatable
notification case. It isn't much, but it seems to be all they
have.
