November 4, 2005
Distorting Sam Alito
WASHINGTON -- Pop quiz: Which of the following abortion regulations
is more restrictive, more burdensome, more likely to lead more
women to forgo abortion?
a minor to get the informed consent of her parents, or to get
a judge to approve the abortion.
a married woman to sign a form saying that she notified her husband.
reasonable person have any doubt? A minor is intrinsically far
more subject to the whims, anger, punishment, economic control
and retribution of a parent. And the minor is required to get
both parents involved in the process and to get them to agree
to the abortion.
woman just has to inform her husband. Even less than that. She
just has to sign a form saying that she informed him. No one checks.
Moreover, under the Pennsylvania law I draw my example from, she
could even forgo notification if she claimed that (1) he was not
the father, (2) he could not be found, (3) he raped her, or (4)
she had reason to believe he might physically harm her. What prosecutor
on earth would subsequently dare try to prove to a jury that,
say, she actually had no such fear of harm?
The question is not whether (a) or (b) is the wiser restriction.
The only relevant question is which is more likely to discourage
the woman from getting an abortion.
Why is this
the relevant question? Because when in 1991 Judge Samuel Alito
was asked to rule in Planned Parenthood v. Casey on the constitutionality
of Pennsylvania's spousal notification requirement, Supreme Court
precedents on abortion had held that ``two-parent consent requirements''
for a juvenile with ``a judicial bypass option'' do not constitute
an ``undue burden'' and thus were constitutional. By any logic,
therefore, spousal notification, which is far less burdensome,
must also be constitutional -- based not on Alito's own preferences,
but on the Supreme Court's own precedents.
all seem arcane, but it requires slogging through arcana to see
just how dishonest, disreputable and disgraceful is the charge,
trumpeted by just about every liberal interest group, that Alito
is so extreme and insensitive to women's needs that he supports
spousal notification for abortion.
Casey opinion no more tells you whether he ``supports'' the policy
of spousal notification than whether he likes foie gras with his
pudding. The only thing it tells you is that based on scrupulous
parsing of Supreme Court precedents -- or more particularly, of
Sandra Day O'Connor's precedents on permissible restrictions on
abortion -- he concluded that spousal notification met the court's
own standard for constitutionality.
standard was that the law could not impose an ``undue burden.''
What did that mean? She spelled it out and set the bar pretty
high. A state regulation that ``may 'inhibit' abortions to some
degree'' was not enough to create an ``undue burden.'' It required
more. It required ``absolute obstacles or severe limitations on
the abortion decision.''
So how to
apply this test? Alito said: Let's see how the Supreme Court applied
it. The court had found in previous decisions that there was no
undue burden when you require a minor to notify or get consent
from both parents, or to get judicial authorization. So surely,
spousal notification, which is obviously less burdensome, was
the critics, but when Casey ultimately came up to the Supreme
Court, O'Connor disagreed with Alito and found that spousal notification
is indeed an undue burden.
I say: Such is Alito's reward for having tortuously tried to follow
O'Connor's logic. Brilliant Alito is, but alas not brilliant enough
to divine O'Connor's next zigzag -- after Alito had blown hundreds
of neurons trying to figure out the logic of her past
In the coming
days you will hear that Alito ``supports'' strip searches of 10-year-olds
and the private possession of machine guns. The Brady anti-gun
campaign has already called Alito ``Machine Gun Sammy." You
will also hear that he is hostile to minorities, immigrants, women,
workers, the disabled, the environment ... you name it. These
claims are based on the same distortion that we see in attacks
on Alito's abortion ruling in Casey -- the deliberate confusion
of a constitutional judgment (almost invariably based on the Supreme
Court's own precedents) with a personal policy preference.
It was disgraceful
when that same deliberate distortion was used in television ads
to accuse John Roberts of ``supporting'' people who blow up abortion
clinics. It remains disgraceful today.
2005, Washington Post Writers Group