Judge Samuel Alito's Dissent

All I wanted to do was to educate myself about Judge Samuel Alito's dissent in the case of Planned Parenthood v. Casey. Big. Mistake. I have nerve cells exploding left and right after reading through some of the relevant legal cases and opinions.

Exploding neurons aside, here is what I found. Judge Alito wrote a dissent which argued for the validity of a provision in a Pennsylvania law requiring husband notification before an abortion. [I am using "husband notification", rather than "spousal notification" because I'm not aware of any instance where competent male patients are forced by law to notify their wives of their intention to undergo a medical procedure.]

So, the first thing I did was to read Judge Alito's dissenting opinion (via Pandagon and Whiskey Bar). What jumped out at me was this:

First, as the district court found, the “vast majority” of married women voluntarily inform their husbands before seeking an abortion. Planned Parenthood v. Casey, 744 F.Supp. 1323, 1360 (E.D.Pa.1990). Indeed, in the trial testimony on which the district court relied, the plaintiffs‚’ witness stated that in her experience 95% of married women notify their husbands. App. at 701.

Really, 95% of married women notify their husbands? I wanted to take a look at this study because something about it didn't sound right to me. It seems unlikely that the population of married, reproductive-age women in any one given state is that homogeneous. Just based on my clinical experience, I found that voluntary husband notification trends are heavily influenced by the type of patient population you treat.

I tried to track down the 95% study, but I only got as far as the oral arguments in Planned Parenthood v. Casey. All I could find is this mention from Mr. Preate, Pennsylvania's Attorney General:

...we submit that in this particular instance the record reflects that right now, in Pennsylvania, 50,000 abortions, 20 percent of those women are married and 95 percent of those women notify their husbands.

So I'll have to reserve judgmentment on the validity of the 95% finding until I read the study. [If you know how to find "the record" where this study is cited, please let me know.]

While I wasn't able to locate the study, I did come across an interesting morsel in the oral arguments. According to Mr. Preate, the reasons for the husband notification law are:

MR. PREATE: ...If you look at the State interests that are trying to be pursued here -- protecting the life of the unborn, protecting the marriage, ensuring the possibility of communication -- this statute rationally advances it.

The sate has an interest in protecting the "life of the unborn", but only if the "unborn" happens to be implanted in a married woman's internal organ. If said organ belongs to an unmarried woman, then what? The state no longer considers the "life" of that "unborn" worthy of protection and loses interest? [I'm using quotes for life/unborn because they're neither medical, nor defined terms.]

Personally, I'm not too keen on the second reason either. Is it the state's business to protect marriage? And, if yes, how intrusive should the state be allowed to be?

Finally, I must say that the third reason mentioned--ensuring the possibility of communication--takes the cake. As noted by one of the justices in the SCOTUS decision: The State is compelling a woman to say something to her
husband. Forget Web 2.0. The future of human interactions is the Government regulating communications between husbands and wives.

Anyway, back to Judge Alito's dissent. In Planned Parenthood v. Casey at issue were (emphasis mine):

...five provisions of the Pennsylvania Abortion Control Act of 1982: § 3205, which requires that a woman seeking an abortion give her informed consent prior to the procedure, and specifies that she be provided with certain information at least 24 hours before the abortion is performed; § 3206, which mandates the informed consent of one parent for a minor to obtain an abortion, but provides a judicial bypass procedure; § 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband; § 3203, which defines a "medical emergency" that will excuse compliance with the foregoing requirements; and §§ 3207(b), 3214(a), and 3214(f), which impose certain reporting requirements on facilities providing abortion services.

The provision under discussion is § 3209 which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband. [Ah, to be a woman, and to be commanded. What more could any one woman possibly ask for?] SCOTUS found that:

2. Section 3209's husband notification provision constitutes an undue burden, and is therefore invalid. A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that § 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry [505 U.S. 838] is the group for whom the law is a restriction, not the group for whom it is irrelevant. Furthermore, it cannot be claimed that the father's interest in the fetus' welfare is equal to the mother's protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman's bodily integrity than it will on the husband.

An aside. In the SCOTUS decision I also read this bit:

Because abortion involves the purposeful termination of potential life, the abortion decision must be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy.

Since male masturbation also involves the purposeful termination of potential life, I take it the decision to masturbate must also be recognized as sui generis, different in kind from the rights protected in the earlier cases under the rubric of personal or family privacy and autonomy. Coming soon to a police department near you, the Squad for Prohibition of, and Enforcement of Rules on, Masturbation, or SPERM.

Back on topic. SCOTUS finds that the husband notification provision constitutes an undue burden, and is therefore invalid. Judge Alito disagrees with this finding.

From my reading of Patterico's analysis of the dissent (via Instapundit), Judge Alito has two main problems with the majority opinion.

The first one is that, in his view, the husband notification had not been shown to be an undue burden because, according to Patterico, a) it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown, and b) the appellees challenging the statute had not met their burden of proof — which Justice O’Connor had said rested with those asserting an ‚“undue burden‚” ‚— to show that the law had the ‚“broader inhibiting effect‚”. Patterico continues:

Judge Alito concluded that, absent any evidence as to how many women would be adversely affected, the appellees had failed to meet their burden of showing that the spousal notification requirement imposed an “undue burden‚” on women.

But look at what the SCOTUS decision has to say about this:

A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely. The fact that § 3209 may affect fewer than one percent of women seeking abortions does not save it from facial invalidity, since the proper focus of constitutional inquiry [505 U.S. 838] is the group for whom the law is a restriction, not the group for whom it is irrelevant.

If you are wondering what this "facial invalidity" test is all about, I found the following exchange from the oral arguments somewhat helpful:

QUESTION: But in the facial context, I don't understand what you -- so there are two undue burden tests. There is one at the facial level in which we consider the statute engross and decide whether, all things considered in the generality of applications, the burden is undue. And then we have a second wave of application of the undue burden test case- by-case, so that even though the law facially may be okay, it may be invalid in its particular application because of -- is that what you are saying?
MR. PREATE: In the second instance, as applied it --
QUESTION: I am worried about the first one, not the second one. I thought the --
MR. PREATE: In a facial challenge, Justice Scalia, you are looking at not the worst scenario hypothesis, but whether this act could be applied constitutionally to anyone, and that is --
QUESTION: Any single case, not engross, to any single case. Isn't that the normal situation? To challenge a statute facially you have to show that it can never be constitutionally applied, isn't that right?
MR. PREATE: That's correct.
QUESTION: That is not looking at it engross. That is asking whether there is any single case where a woman would not be unduly burden.
MR. PREATE: In this particular instance, we find that there is no undue burden in our statute, anywhere in our statute, and if the undue burden test is, as applied or understood by this Court causes our statute to fall, then we ask this Court to adopt rational basis as the appropriate analysis. [In other words, if they can't win on the soundness of the undue burden test, they're asking the Court to just pick another test. Ah, if only do-overs worked in real life.]

The second disagreement Judge Alito has with the SCOTUS opinion concerns the legitimacy of the state's interest in requiring spousal notification.

According to Patterico:

Judge Alito then turned to a discussion of Justice O’Connor’s opinion in a previous case finding unconstitutional a two-parent notification requirement without a judicial bypass. Judge Alito argued that Justice O‚’Connor‚’s opinion (and Justice Stevens’s opinion, which Justice O’Connor joined) had applied a variant of the rational relationship test, which requires only that the restriction be reasonably related to the furtherance of a legitimate state interest. Again, this was a reasonable reading of the precedents at the time.

Judge Alito concluded with the uncontroversial proposition that the restriction in question furthered a legitimate state interest, ‚“namely, the state’s interest in furthering the husband’s interest in the fetus.” Even the majority didn‚’t dispute that “promoting the possibility of spousal participation is undoubtedly a legitimate state interest.‚” Judge Alito found that the restriction in question reasonably furthered that interest.

Except that the SCOTUS decisions has this to say about the state’s interest in the husband's interest:

Furthermore, it cannot be claimed that the father's interest in the fetus' welfare is equal to the mother's protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman's bodily integrity than it will on the husband.

Whiskey Bar has more on the issue of the state's legitimate interest in requiring husband notification (make sure to read the entire analysis):

[Judge Alito] tries to determine if the state of Pennsylvania has a "legitimate" state interest in requiring spousal notification.

He starts with Skinner v Oklahoma, in which the Supreme Court held that men have the right not to be forcibly sterilized.... From there, Scalito [Judge Alito] jumps to a string of cases establishing that a husband has an interest in the rearing of his children -- living, breathing-on-their-own-outside-the-womb children. From this, he concludes:

It follows that a husband has a “legitimate” interest in the welfare of a fetus he has conceived with his wife.

...

Scalito then turns to the Supremes' ruling in Planned Parenthood v Danforth, one of the early post-Roe state regulation cases, and notes approvingly the court's remark that "we are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying." Clearly, Scalito opines, "deep and proper . . . interest" is synonymous with "legitimate" interest. Case closed.

There's just one problem -- the court was ruling against the State of Missouri's legislative bid to give husbands a veto over abortion decisions. So if any inference is to be drawn, it should be that a husband's fetal interest is limited -- no matter how "deep and proper" it might be. That doesn't mean the PA law went too far (although the O'Connor court concluded exactly that) but it's hardly proof for the proposition that it didn't go too far.

In any case, the test is not whether the husband has a "legitimate" claim on a uterus, it's whether the state has a legitimate interest in regulating that claim. Here Scalita falls back on the exceedingly obvious constitutional principle that:

"Statutory regulation of domestic relations is an area that has long been regarded as a virtually exclusive province of the States."

...

States have the authority to regulate all kinds of "domestic relations" -- subject to the limitations imposed by the U.S. constitution and that pesky 14th Amendment. But what they do not have the power to do is meddle in the reproductive affairs of their citizens in an overly intrusive or "unduly burdensome" way. Not unless the Supreme Court is going to throw out Griswold and the line of cases stemming from it, including Roe.

In conclusion, what have I learned so far? Quite frankly, not as much as I had hoped. The claim that 95% of married women notify their husbands appears pivotal to Judge Alito's dissent, but I couldn't locate the study. Also, Judge Alito says that absent any evidence as to how many women would be adversely affected, you cannot show that the husband notification requirement imposes an undue burden on women. Yet, SCOTUS directly contradicts him--the fact that the husband notification provision may affect fewer than one percent of women seeking abortions does not save it from facial invalidity. So, which is it? And what is this magical number alluded to by Judge Alito? When it comes to women, how many would need to be adversely affected by a law, before sage lawyers, judges, and politicians magnanimously allow women not to suffer its undue burden?