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‘Dangerously Radical’

November 13, 2005

The feminist left is outraged that judge Samuel Alito voted in 1991 to uphold a Pennsylvania law that would have required married women to notify their husbands of a decision to abort. Alito stands accused of patriarchal overreach and making it possible for outraged and abusive husbands to attack their wives. 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 to 1, and by O’Connor herself in the Supreme Court’s 5-to-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.

Deference. 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 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.

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