Samuel Alito Troubles Me

By Justin Gardner | Related entries in Social Programs, Supreme Court

Knee jerk reaction coming up, but I think it’s significant to start talking about this right away.

As I go over Alito’s record, there’s one case in particular that really doesn’t sit well with me this morning. I’m sure most of you could guess what that is, but it’s Planned Parenthood v. Casey.

From SCOTUSblog:

A dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), arguing that a Pennsylvania that required women seeking abortions to inform their husbands should have been upheld. As Judge Alito reasoned, “[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems–such as economic constraints, future plans, or the husbands’ previously expressed opposition–that may be obviated by discussion prior to the abortion.” Chief Justice Rehnquist’s dissent from the Supreme Court’s 5-4 [corrected] decision striking down the spousal notification provision of the law quoted Judge Alito’s dissent and expressed support for Judge Alito’s reasoning.

Why is this troubling? Well, imagine that you’re a woman in an emotionally or physically abusive relationship and you’ve just found out you’re pregnant. You don’t want to carry the pregnancy to term because you don’t want to bring a child into this situation. Alito’s dissent seemingly ignores these types of situations. And what troubles me most, is that it appears he fails to understand that these laws are specifically made for the exceptions. These laws protect the weak and the wounded.

People, abortion rights aren’t about women just willy-nilly wanting to go have an abortion. Some would have you think as much, but that’s not the case. These are serious decisions with emotional reprecussions, and the women who get the procedure are fully aware of that. However, you can’t truly have equal rights unless you give a woman control over her own reproductive health. And you certainly can’t force a married woman in an abusive relationship to carry a preganancy to term just because her husband won’t sign off on the paperwork.

In short, to legally subjugate a women’s reproductive health to her husband, regardless of the health of the relationship, feels very wrong to me.

What do you think?

UPDATE
As Eric over at MyopicZeal points out, I overlooked the following exceptions to spousal notice:

(b) Exceptions. � The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:

(1) Her spouse is not the father of the child.

(2) Her spouse, after diligent effort, could not be located. [p909]

(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.

(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.

Thanks for the catch Eric, but the original assertion that this subjugates a woman’s reproductive health to her husband still holds in my view. Why? If a woman has to tell her husband, then how is that not seeking consent? Notification equals consent in this situation for me, especially if you’re married.

However, my assertion “And you certainly can’t force a married woman in an abusive relationship to carry a preganancy to term just because her husband won’t sign off on the paperwork” is misleading and I’ll retract it. Yet, if all a woman honestly needs is to say “Yes, my husband has been notified,” then what exactly is the point of the law?

[...] no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion.

Read that way, this is essentially a law with a massive loophole. Why would they create it in the first place then? Well, we only need look at the first part of the above paragraph to see:

In order to further the Commonwealth’s interest in promoting the integrity of the marital relationship and to protect a spouse’s interests in having children within marriage and in protecting the prenatal life of that spouse’s child,[...]

Sorry, but this appears to be a transparent and weak attempt to get in the way of a woman’s civil rights.

Lastly, do I think a woman should have to tell her husband she’s having an abortion? No. I say let individuals make this decision themselves, away from the gaze of the legislature and courts, especially legislatures that are trying to promote “the integrity of the martial relationship.”

We can do fine on our own.


This entry was posted on Monday, October 31st, 2005 and is filed under Social Programs, Supreme Court. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

36 Responses to “Samuel Alito Troubles Me”

  1. The Glittering Eye » Blog Archive » It’s Alito Says:

    [...] Justin Gardner of Donklephant is troubled by the nomination. [...]

  2. tommy Says:

    I think saying the father should not have a say in the matter because he might be abusive is too broad a statement. Why should the husband in a normal healthy marriage have to deal with a law that says he can be excluded from family planning decisions?

  3. Samuel Alito Says:

    Justin:

    Like Holmes said, we decide the case first, and the principle later. The Pennsylvania legislature (an elected body) passed a law putting a number of restrictions on abortion. My job was not to decide whether the law was good or whether the law was bad, but whether it violated the constitution. I don’t think that women “need their husbands permission” to do much of anything; certainly my wife doesn’t think so. But if the legislature passes a law (in which, by the way, the husband needed to be INFORMED — not in which his consent needed to be sought) I can’t sit there and decide based on whether I feel it’s a dumb law (which is what the Supreme Court did in reaffirming a decision with which I disagreed). Overturning the will of a legislature is an awesome power, and one that should be used very sparingly (incidentally, of all the restrictions the law placed on abortion, this is the only one I allowed to stand).

  4. TheSnakeGuy Says:

    His decision was about notification, not about forcing a woman to carry the pregnancy to term or any such thing. Disagree with him if you like, but at least get the facts straight.

  5. Justin Gardner Says:

    Samuel Alito, I appreciate your thoughts, but will you please quit pretending to be the actual Samuel Alito on this blog? Thanks.

    And TheSnakeGuy, what do you think will happen if an abusive husband is given “notification” that his wife is going to have an abortion? Think about where that leads. It is a defacto signing-off of an abortion. Back to my main point, a woman’s reproductive rights should be independent of any institution, even marriage. Otherwise, you’re taking her civil rights away.

  6. JWG Says:

    Here is what Alito had to say in part of his long dissent:

    “Needless to say, 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. It is apparent that the Pennsylvania legislature considered this problem and attempted to prevent Section 3209 from causing adverse effects by adopting the four exceptions noted above. Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards.”

    Doesn’t this address your concern?

  7. Project Nothing! » Blog Archive » Justice nominee Samuel Alito Says:

    [...] Read the rest. [...]

  8. john Says:

    “I think saying the father should not have a say in the matter because he might be abusive is too broad a statement. Why should the husband in a normal healthy marriage have to deal with a law that says he can be excluded from family planning decisions?”

    Would a wife in a “normal healthy marriage” feel the need to get an abortion without consulting her husband? It seems that if she feels the need to get an abortion on the sly, there are problems in the marriage that would make the abortion seem like a good idea. After all it takes a mother and a father to raise a “normal healthy” child.

  9. DosPeros Says:

    It should alleviate concerns JWG, but it won’t for my “living breathing growing” constitutionalist friends like the honorable Justin Gardner.

    Under this judicial philosphy (the “Tulip”), Supreme Court justices are suppose to consider policy issues already considered in state legislatures through a representative democracy and if those policies do not reach the “correct” (i.e. the personal policy preferrences of the Justices) then it is deemed unconstitutional in an amorphously defined penumbra of “privacy rights.” As Judge Posner has pointed out, this privacy right is actually a right of autonomy, but when you don’t really know what your giving away, it can be hard to name it.

    The Tulip philosophy makes rational good common horse sence, which is the last thing, as Ann Coultier (quit trying to throw things through the monitor of your computer, it doesn’t work) points out is the last thing needed in constiutional law. For instances, good common horse sence was used in Griswald to allow contraception — Griswald was used to establish the now infamous fundamental right to “stick a fork in a baby’s head.” Judicial activism was also used to return escaped slaves back to the South.

    Justin — I admire your compassion for abused women — this country is full of horrific situations which needs to be addressed…BY THE PEOPLE. Not by 9 judges. Is it a painful? yes. Does it take time? yes. We all know what Bismark said regarding the making of laws and sausage. We all know what Churchill said about democracy being a horrible form of government, but absolutely the best one we’ve got.

    I guarentee Alito has a gazillion opinions out there that if one were to read them they’d say “This guy is a brutal, bastard politician.” Until they realize that he is NOT a politician. He represents the will of NOONE. He has no constituency. Row v. Wade will ultimately be overturned, not because abortion is evil (which I personally believe it is most of the time) but because it is horrible Constiutional LAW. Freedom and democracy will ring for this great Republic when Alito is confirmed.

    Given the fact that we are trying to “spread” democracy through out the world right now (bad idea). I think we may want to consider bolstering the whole idea at home just a bit. Alito will do that.

    And then Justin, you and I can fight these issues out the old fashioned way — at the ballot box. By the way, Justin, if I have misinterpreted your constitutional leanings, I apologize.

    I truly beg my liberal friends — stop trying to litigate your policy preferences — I know that you haven’t had great success in recent years at the ballot box, but I believe we shall over-come.

    By the way, the first person on this blog to refer to Alito as “Scalito” will have the Sensitivity Squat Thought Team sent to their house late at night, hauled off to a re-education camp ran by the Daughters of Christopher Columbus and forced to listen to Sinatra from weeks on end.

  10. Meredith Says:

    In case no one has noticed, it seems like the “strict constrictionist” interpretation of the Constitution mostly applies when conservative-minded judges are trying to push their agendas. I don’t buy it.

    Another issue is that the conservative cry lately about “activist judges” “legislating from the bench” doesn’t seem to apply when it’s an issue that they’re all excited about (i.e. – Terry Schiavo).

    You see, conservatives use the “strict construction” argument when they want to limit, or even completely abrogate, personal, civil liberties. Then, they use the “activist judges” argument when we want them back.

  11. Myopic Zeal Says:

    Samuel Aliton on Planned Parenthood v. Casey

    There is bound to be lots of confusion regarding what Alito’s ruling in Planned Parenthood v. Casey really means, but only because of the deceptive or naive statements of those who would villify Mr. Alito.
    Here is the key portion of the law, fr…

  12. Jeff P Says:

    Patterico has a great explanation that should alleviate your concerns.

    http://patterico.com/2005/10/30/3872/alitos-dissent-in-casey

    As noted there and by JWG, there are wide exceptions to the notification requirement that were allowed in the statute. Specifically:

    (1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

    Finally, regarding your statement that “a woman’s reproductive rights should be independent of any institution, even marriage.”

    I am curious, what about a man’s reproductive rights? If for instance a husband does not want children but the wife does and lies about birth control, he cannot force her to have an abortion and must also provide child support in the case of divorce. I agree with these laws, by the way, but I don’t have much sympathy for requiring a wife to notify her husband under the exceptions provided in Casey. She certainly is not giving up more reproductive rights than the man is.

  13. Myopic Zeal :: Samuel Alito on Planned Parenthood v. Casey :: October :: 2005 Says:

    [...] Donklephant, too, misses the mark, apparently failing to read (b).(4) of the law. Why is this troubling? Well, imagine that you’re a woman in an emotionally or physically abusive realtionship [sic] and you’ve just found out you’re pregnant. You don’t want to carry the pregnancy to term because you don’t want to bring a child into this situation. Alito’s dissent seemingly ignores these types of situations. And what troubles me most, is that it appears he fails to understand that these laws are specifically made for the exceptions. These laws protect the weak and the wounded. [...]

  14. DosPeros Says:

    Meredith — You are completely correctly about the Shiavo stunt. It was disgraceful from a federalist prospective. Beyond that single example, do you have any others? I don’t ask rhetorically or as an “I gotcha” — I have heard that argument before, but I haven’t heard it supplied with a number of issues that I can see the hypocracy. A conservative policy pushing judge, legislating from the bench, is simply not a constitutional originalist or strict constructionist. It is beyond question though that the left has relied on fantasmic interpretations of the Constitution to push forward their agenda. They are quite simply proud of their ability to get around democracy to achieve their ends visa compadres on the bench. If a conservative does it — they should hold their head in shame.

  15. Justin Gardner Says:

    I’ve addressed Myopic Zeal’s thoughts above. Take a look at mine and see what you think.

  16. Andrew Case Says:

    Justin makes a very good point when he asks, what is the point of this law?

    It appears designed to protect the rights of men who would want to have a child, but who are not told by their pregnant wife that the wife is having a child. In this instance, one can argue that the husband does have some rights — he is a partner in the marriage at the very least, and the situation is therefore different than one where the couple is just dating.

    Alito does use odd logic to determine who exactly is covered by the law, and comes out with a very small group of people (it may be correct, it may be not — who knows) who would be restricted by the law. It appears there are provisions for spousal abuse, for women who are pregnant by a man not their husband (or who, for reasons unknown, would be willing to simply say at a clinic that “yes, I notified him.”)

    Given all this, the initial law is small minded, silly, and impossible to enforce. That does not make it unconstitutional.

    With conservative legislatures now making laws, a judge who is reluctant to overturn a legislature for merely being foolish will appear conservative. If liberal legislatures take over (sometime in this justices 30-year term) and their laws stand more frequently, he could be called ‘liberal.’ Look at Kennedy, who many conservatives now think of as liberal, when really what has happened is that the kind of laws he has been asked to evaluate have changed.

    As I stated in my other post Justin, I’m sorry for posting with a fake name and won’t do it again.

    ac

  17. John Says:

    “They are quite simply proud of their ability to get around democracy to achieve their ends visa compadres on the bench. If a conservative does it â€â€? they should hold their head in shame. ”

    Last I checked, the bench was mostly appointed by conservative Republicans. Why is it that somehow they are compadres… because they are not disagreeing with the precedent of prior courts and Overturning Roe? I have no doubt Alito will be confirmed even if the Dems fillibuster. Then the court will have 5 solidly conservative justices. Then you will have the legislation in the other direction, and I hope to hear all y’all Righties saying that they should not be Legislating from the Bench… Yeah, I doubt it.

  18. Justin Gardner Says:

    Thanks for the identity clarification Andrew. No harm done.

  19. Callimachus Says:

    Ought the Commonwealth of Pennsylvania to take no legal “interest in promoting the integrity of the marital relationship?” Is any such expressed interest “a transparent and weak attempt to get in the way of a woman’s civil rights”?

    Are you of the position that getting pregnant as often as you like, by any man who pleases you, then aborting them all or none of them as you please, is somehow comprehended by the Bill of Rights or the 13th and 14th Amendments?

    While I, like most Americans, feel some level of abortion is necessary — and nonetheless is always a tragedy — I find the discovery of a 19th century constitutional civil right to it an egregious case of judicial activism.

    Interesting, too, to note that the “Casey” in this lawsuit, in case you’ve forgotten, was the anti-abortion Catholic governor of Pennsylvania, whose background was similar to Alitos, except that he operated within the Democratic Party, which was not too fond of him.

  20. Justin Gardner Says:

    Ought the Commonwealth of Pennsylvania to take no legal “interest in promoting the integrity of the marital relationship?� Is any such expressed interest “a transparent and weak attempt to get in the way of a woman’s civil rights�?

    Listen, I’m of the mind to let the people who are married decide what the integrity of their relationship is for themselves. If the relationship is stable, their will be a talk about planning a family. If the relationship isn’t, then somebody might get hurt. But that should be between them, not legislated by anybody else.

    And protecting the integrity? Are you kidding me Cal? You’re cynical outlook is actually buying that?

    But imagine this situation. A woman is abandoned by her husband. She has to care for their three children by herself, AND she has one on the way. Imagine her having to leave the hospital because she needs to get notify her husband that she’s going to get an abortion. Unlikely? Well, that’s exactly what happened to a woman I heard on NPR today. That’s what types of exceptions this law brings to the fore. That woman was humiliated for no good reason.

    So no, I don’t think this should be up to the legislature.

    And concerning the 13th and 14th, it seems many in our country have comprehended it that way, including me. Is that egregious? Well, if scores of legal scholars can come down on both sides of this argument, both have valid points. But the reality is we have a majority of the population not wanting to overturn Roe v. Wade, so it seems to me that a majority of women would find that the 13th’s “involunatry servitude” and 14th’s “life and liberty” would encompass their reproductive rights. What do you think?

    Interesting, too, to note that the “Casey� in this lawsuit, in case you’ve forgotten, was the anti-abortion Catholic governor of Pennsylvania, whose background was similar to Alitos, except that he operated within the Democratic Party, which was not too fond of him.

    Haven’t forgotten, but it’s still interesting.

  21. Callimachus Says:

    Oh, I don’t say the Pennsylvania law does a good or bad job of promoting the integrity of marriage. But you seem to dismiss the very concept that the state has, or can take, any interest in marriage. Which has interesting consequences.

    I don’t have to listen to NPR to hear stories of Pennsylvania women under this law. I live among them. I’m sure NPR found the most hair-raising possible case Howard Dean could steer their way.

    However, the Pa. law on abortion seems to have the same provisions as the Pa. law on adoption. A friend recently adopted the daughter of a woman he had married. The daughter was fathered by the man in the woman’s previous relationship, who was abusive and then abandoned her. They had to go through the motions of looking for the father — placing legal ads in papers and so forth, all the while hoping he wouldn’t turn up. He didn’t.

    But I think it’s reasonable to ask that effort in an adoption case, and if so I think it’s reasonable to ask it in an abortion case, though arguing against it in such cases is that it consumes a lot of time, which isn’t good.

    Someone asked you whether you thought fathers had no rights — “reproductive” or other — in such situations. I haven’t seen an answer to that.

    If the American people want to legalize abortion, let the national legislature do so. To discover some right to abortion hidden all along in Thad Stevens’ amendments trying to squeeze slavery out of the South is logically laughably absurd.

  22. Callimachus Says:

    cf. the commentary at Sudries 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 “ownedâ€Â? 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.

  23. Justin Gardner Says:

    I don’t have to listen to NPR to hear stories of Pennsylvania women under this law. I live among them. I’m sure NPR found the most hair-raising possible case Howard Dean could steer their way.

    After her, Orrin Hatch talked about how great a candidate Alito was and no Democrat had any grounds to question anything about him. So please, for the conversation’s sake, don’t dismiss NPR out of hand. To do so looks bad on your part.

    Oh, I don’t say the Pennsylvania law does a good or bad job of promoting the integrity of marriage. But you seem to dismiss the very concept that the state has, or can take, any interest in marriage. Which has interesting consequences.

    I didn’t say I dismiss any interest in marriage, but to maintain the “integrity of marriage?” I think that’s trying to put lipstick on a pig, with the women who are affected by this ridiculous law having to go through the humiliating experience (per that NPR story) of kissing the pig.

    Concerning the adoption issue, I agree. I’m also glad you draw the distinction between somebody’s child v. a pregnancy that may or may not survive the 9 month process. The two things are different in my mind and they seem to be in yours too.

    To discover some right to abortion hidden all along in Thad Stevens’ amendments trying to squeeze slavery out of the South is logically laughably absurd.

    Oh really? Well, see my answer below.

    Someone asked you whether you thought fathers had no rights � “reproductive� or other � in such situations. I haven’t seen an answer to that.

    I think they have the right to give their opinion if asked. That’s it. That may sound cold, but men don’t have their bodies go through a 9 month transformation that could result in their death. I know the women in my life wouldn’t want that decision up to anybody but themsevles, as it would absolutely interfere with their rights to life and liberty due to the involuntary servitude of bringing a pregnancy to term. That’s logically laughable?

    If the American people want to legalize abortion, let the national legislature do so.

    This would open up so many problems. Most of the red states would outlaw it, and would probably push to pass additional laws saying you couldn’t travel across state lines to committ murder.

    In other words, that slope isn’t slippery. It’s vertical.

  24. Donklephant » Blog Archive » Samuel Alito’s “Official” Blog Says:

    [...] Samuel Alito Troubles Me [...]

  25. Donklephant » Blog Archive » What Would Samuel Alito’s America Look Like? Says:

    [...] Personally, I haven’t made up my mind yet on Alito. He troubles me and I said as much yesterday when I found out about the Planned Parenthood case. But I’m reserving final judgement until I go through his cases and determine exactly where this guy is going to lead our country. [...]

  26. DosPeros Says:

    Several items:

    First: I e-mailed Professor Robert Klonoff to get his take on the nominee. Klonoff is a nationally renowned appellate advocate. He has argued on many occassions (although I don’t have the exact number) in front of the Supreme Court. He worked for the Solicitor Generals Office. He is a senior partner with Jones Day in D.C. and professor of complex litigation and class action at UMKC School of Law. He is a non-ideological centrist, in my opinion, if there ever was one and he personally knows many of the players involved.

    His comment: Miers was a terrible pick, Alito is terrific. That really says nothing beyond Klonoff’s belief that Alito is very well qualified for the job.

    John — You are correct to an extent when you write, “Last I checked, the bench was mostly appointed by conservative Republicans. Why is it that somehow they are compadres… because they are not disagreeing with the precedent of prior courts and Overturning Roe?”

    The federal appeals docket has decreased, and the Supreme Court docket has decreased in recently years because of the growing number of originalist, strict constructionist jurist on the federal bench. Klonoff’s take on this is that it is direct result of having more strict constructionist on the bench. Strict statutory construction and originalist constiutional philosophy decreases the number of appeals cases.

    So when I refer to “comprades”, I am of course referring to the philosopher-king Tulip-constitutionalist appointed by Bill Clinton and other liberals and those judges, like Kennedy and Souter, which have been irretrievably sucked into the lime-light of the beltway social scene for their progressive opinions.

    I believe he more thoroughly comments in todays Kansas City Star.

  27. Jim Says:

    “Well, imagine that you’re a woman in an emotionally or physically abusive relationship and you’ve just found out you’re pregnant. You don’t want to carry the pregnancy to term because you don’t want to bring a child into this situation.”

    Please why this is her call to make. Why is it the prerogative of a woman to decide what situation the husband’s child is born into when you seem to be saying that it is not the husband’s prerogative.

    “Back to my main point, a woman’s reproductive rights should be independent of any institution, even marriage. Otherwise, you’re taking her civil rights away.”

    Yet by allowing her this latitude you are allowing her to take away her husband’s civil rights. Are women to be some kind of priveleged class? And even cases where the child is not the husband’s are no different, since in mosts states the husband can be compelled to support his wife’s bastards.

  28. debsay Says:

    “If a woman has to tell her husband, then how is that not seeking consent? Notification equals consent in this situation for me, especially if you’re married. ”

    I’m not sure that I agree with you on this…. just because you tell him that you are going to have an abortion because you don’t want a child… she can still do it even if he says ‘no’…. how is that the same as requiring his ‘consent’?

  29. Justin Gardner Says:

    Yet by allowing her this latitude you are allowing her to take away her husband’s civil rights. Are women to be some kind of priveleged class? And even cases where the child is not the husband’s are no different, since in mosts states the husband can be compelled to support his wife’s bastards.

    This is true, but it’s the burden you bear if you get into a relationship with somebody who has kids from a previous marriage.

    Also, and most importantly, men don’t have to carry a child for 9 months and give birth to them. Therefore, their rights are pretty close to null, otherwise you’d be giving them a say in a woman’s physical health. Do you really want a husband to have that kind of authority over his wife, when the wife can’t hold the same type of dominion over the husband?

  30. Jim Says:

    “I think they have the right to give their opinion if asked. That’s it. That may sound cold, but men don’t have their bodies go through a 9 month transformation that could result in their death. I know the women in my life wouldn’t want that decision up to anybody but themsevles, as it would absolutely interfere with their rights to life and liberty due to the involuntary servitude of bringing a pregnancy to term.”

    The reference to having to endure 9 months of pregnancy suggests that this argument is not about reproductive rights at all, but about the woman[‘s body. That is a whole different inequality. Why is a woman’s body as relates to pregnancy more inviolate than a man’s as relates to the draft?

    If the pregnancy may relate to their death, the law should have that as an escape clause. If it is not a case of danger to her health, the woman simply does not want children, then finr. That is a matter for the couple to discuss, and the man should be free to divorce her without any responsiblity to her, since she has opted out of the marriage as it was contracted (unless a prenup or some other agreement specified)

    As for what the women in anyone’s life may think of the matter – again, why are they a priveleged class? The law (in a range of states) does inded provide for involuntary servitude in matters of men’s liablity for child suport of their wive’s children from other men.

  31. Meredith Says:

    It’s obviously difficult to decide who has what rights in terms of a pregnant wife and her husband. I do believe that men should have a say in whether their wives are bringing children into the world. I also think that in a healthy relationship, that conversation is going to be had. I’m sure there are times when it isn’t, but I would be willing to bet that the dangers inherent in this notification requirement will occur much more frequently than a wife sneaking off to have an abortion without her husband knowing it.

    Has anyone wondered why this law was passed in the first place (the spousal notification part of it, and the other parts too)? Was it because lots of wives were obtaining secret abortions? Personally, I think that law, and all of it’s provisions, was enacted to make it more difficult for women to obtain abortions. The strategy of the far right is to make abortion hard or impossible to get unless/until Roe v. Wade can be overturned.

    On the issue of constitutional interpretation: Can someone actually explain to me why it is a good thing to interpret the Constitution literally? Because it seems to be me to be a lot like literal interpretation of the Bible (which I don’t agree with either: first, Adam and Eve, then Cain and Able, then . . .). It just doesn’t work out.

    The Constitution was written by people A LONG TIME AGO, when there were certain standards in society and certain “hot” issues. The Framers could not have put anything in the Constitution about certain issues such as stem cell researh, certain modern abortion techniques, etc. because they did not exist at the time of the drafting. Do we really want laws interpreted according to the societal and legal standards of A LONG TIME AGO?? FYI – Many/Most of the laws written back then (common law) have been totally abolished or changed. Guess why.

    I know that if the Supremes reject cases that don’t fit within the criteria (i.e. – not explicitly covered by the Constitution), the States will have to make their own laws. But, what happens when Congress enacts a law to preempt those state laws? Who will decide whether or not that is Constitutional (which will often lead to a decision on the substantive issues the Supremes would be seeking to avoid)? And, what if the conflict is over Federal law only? The states have no authority to decide those issues. Eventually, the Supremes will have to take these questions – it’s just a question of how long they could postpone the inevitable.

  32. Callimachus Says:

    Me:

    I don’t have to listen to NPR to hear stories of Pennsylvania women under this law. I live among them. I’m sure NPR found the most hair-raising possible case Howard Dean could steer their way.

    You:

    After her, Orrin Hatch talked about how great a candidate Alito was and no Democrat had any grounds to question anything about him.

    That’s not balance. That’s called a set up. You get a male conservative voice, abstractly and professionally pontificating on legal affairs and the intellectual qualities of the nomination. Then they pit it against one real woman, with a gut-wrenching tale of tragedy and trauma, which the subject of the story seems to hold in callous disregard. That’s why I fucking hate having to subsidize any part of NPR.

    So please, for the conversation’s sake, don’t dismiss NPR out of hand. To do so looks bad on your part.

    Looks bad to whom, pilgrim? To me it looks bad to airily dismiss all rights of a father as “lipstick on a pig” in the name of some sort of effete male feminism.

    I used to defer all abortion questions to women, using the same illogic you use (it’s their bodies …) when in fact it was an excuse to avoid the ethical gordian knot. My advice: Don’t go that route until you’ve had a few experiences. Some of them might include:

    A miscarriage or three. Having to look at a couple after they devoted themselves to making a space in their lives for a child who came dead from the womb in the doctor’s hands. Try telling them it was nothing, ir was a mistake, it was only a lump of fat.

    A divorce with a child, where the woman dangles a father’s contact with his son as a bargaining chip and the law takes her side, always, because it operates on the presumption that all men are inherently deadbeat dads, abusive spouses, or both. Put your family in the hands of your local equivalent of Children & Youth Services, then tell me fathers have no natural rights except to see their paychecks dunned.

    A woman you’re entangled with in an awful passionate mess of a relationship tell you in a furious argument one night she stopped taking the pill and now she’s pregnant and she’s going to get an abortion tomorrow because of the way you treat her. And maybe she’s telling the truth, but she’s beyond sane right now.

    Just for starters, you know.

    Solomon was a wise king. But the Solomon story everyone knows is the one of the dead and living baby. It teaches the limitations of the law. How did we forget that lesson? The law is a broad sword, not a surgical tool. Families, passions, marriages are messy, arcane, little universes. The doesn’t do messy. It makes a quick, clean, sharp distinction.

    I know the women in my life wouldn’t want that decision up to anybody but themsevles, as it would absolutely interfere with their rights to life and liberty due to the involuntary servitude of bringing a pregnancy to term. That’s logically laughable?

    Pregnancy = “involutary servitude” (the 19th century legal euphemism for negro slavery). Ha ha ha.

    Most of the red states would outlaw it, and would probably push to pass additional laws saying you couldn’t travel across state lines to committ murder.

    Somehow my statement that the national legislature (i.e. Congress, the appropriate body to make federal law) ought to set national abortion law, not the Supreme Court, set you off yapping about state legislatures. I don’t follow the logic there.

    P.S.: Pennsylvania, home of Planned Parenthood v. Casey and the law you seem to abhor, has been blue the last two presidential elections and, of course, Casey was a lifelong Democrat.

  33. Jim Says:

    “Yet by allowing her this latitude you are allowing her to take away her husband’s civil rights. Are women to be some kind of priveleged class? And even cases where the child is not the husband’s are no different, since in mosts states the husband can be compelled to support his wife’s bastards.”

    “This is true, but it’s the burden you bear if you get into a relationship with somebody who has kids from a previous marriage.

    Also, and most importantly, men don’t have to carry a child for 9 months and give birth to them. Therefore, their rights are pretty close to null, otherwise you’d be giving them a say in a woman’s physical health. Do you really want a husband to have that kind of authority over his wife, when the wife can’t hold the same type of dominion over the husband? ”

    Justin, these are valid points, so let’s take them one at a time.

    Health – where the pregnancy is a matter of health, there has to be an exception. Where it is a matter of just not wanting to have to care for another kid for 18 years, which is also a valid position, that is something for both parents, not just one, to decide. By the way, if the issue is the woman’s health, then this is not a question of reproductive rights, is it?

    I just do not see why anyone’s parental rights are nullified by concerns over some third person’s health.

    The central problem is in trying to apply a concept such as individual rights to a situation where people are not fully indivuated. How can you talk about reproduction separately from the health of the mother? If that is part of your point, then I absolutely agree. That still leaves the problem.

    And also, if someone is so weak as to be threatened by the process of reproduction, maybe they need to climb out of the gene pool, and abortion really is the responsible choice.

  34. john Says:

    Cal-

    NPR is not a leftwing conspiracy. You listen to it long enough, and you see they do try to balance it a bit more than you would think. But they are playing to an audience. They are far more balanced than Fox and Righties stand behind that network. Just because NPR is not kneeling in Praise and repetition of the Right Wing conspirator talking heads, doesn’t mean they are only playing to the Left Wing “Bomb Throwers and Kool Aid Drinkers” as Bill OReilly might call them. I watch Fox and I listen to NPR, I get balance.

    Cal- you also gave some examples of “what if’s” that were just as plausible or implausible as the others. But seriously how can you equate a man who is disappointed that his wife had an abortion with a man making a woman carry an unwanted or potentially life threatening child to term. That is a truly illogically. Not to say men don’t have feelings as sensitive as a womans, but brother please… Apples and Oranges.

    Here’s the thing. Lay off abortion restrictions. If you, your children or spouse are against abortion deal with it within the family, don’t legislate it at all. If it is the woman or adult teen, and they don’t want to discuss it, because of whatever reason, then you didn’t need to know. If the husband is anti-abortion or really wants kids and he is married to a rampant abortion having slut, then get a divorce and find someone that is drinking the Same KOOL AID you are.

  35. Callimachus Says:

    I ignore both Fox and NPR. That’s my form of balance. As John Prine advised, blow up your TV.

    No abortion restrictions at all, John? Up to full-term?

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