There is a lot of buzz [UPDATE: now confirmed!] saying that Judge Samuel Alito may be President Bush’s nominee for the Supreme Court. If Judge Alito is nominated, the primary Democrat talking point is going to be his dissent in the case of Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991). In that case, Judge Alito wrote a cogent dissent which argued for the validity of a law requiring spousal notification before an abortion.
We need to be ready to counter this talking point if Judge Alito is nominated. Luckily, we are armed with the truth.
Democrats will, of course, distort Judge Alito’s dissent. They will say: “Judge Alito thinks that women should have to consult with their husbands before having an abortion. Evidently he views married women as nothing more than their husbands’ property. Also, he is insensitive to the fact that battered women aren’t going to get an abortion if they have to tell their husbands about it first. If Judge Alito is confirmed, the right of married women to obtain abortions will be severely restricted.”
This is nonsense. Judge Alito’s decision was well-reasoned, restrained, and respectful of precedent. He indicated no policy preference and wrote no memorable, fire-breathing lines in the dissent. He simply tried to apply the law as he understood it, with a proper respect for the difference between legislators (who make laws) and judges (who interpret and apply laws).
If we are going to counter the inevitable Democrat distortion, we have to be familiar with what Judge Alito actually said. I can’t find a copy of Alito’s dissent on the Web [UPDATE: you can read it here], so I will give you a summary of it here.
Alito began by noting the contemporaneous state of the law regarding abortion restrictions. He said that his major disagreement with the majority concerned the issue of whether spousal notification was an “undue burden.” Then, as now, deciding that issue required one to repair to the opaque writings of one Sandra Day O’Connor, and Alito did so, concluding:
Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions “‘to some degree'” or inhibiting “some women.”
Looking at previous restrictions that Justice O’Connor had approved, which “almost certainly were substantial enough to dissuade some women from obtaining abortions,” Judge Alito wrote that “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.”
I submit that this was a fair summary of Justice O’Connor’s explication of the term “undue burden” in writings that preceded Judge Alito’s dissent.
Judge Alito then noted that the spousal notification provision at issue did not give the husband a veto power. Rather, a married woman simply had to certify (through her own uncorroborated and unnotarized statement) either that she had notified her husband, or that her case fell within any one of several statutory exceptions, including:
(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.
Judge Alito then argued that 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” required by
the whim of Justice O’Connor the relevant precedents.
Alito noted that the evidence showed that 1) most abortions are sought by unmarried women, and 2) about 95% of married women seeking abortions tell their husbands in any event. Of the small number of women remaining, the record was devoid of evidence as to what percentage would be unable to assert at least one of the four exceptions enumerated above. Nor was evidence offered to show what percentage of women would suffer retaliation from their husbands in ways not covered by the four exceptions.
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. He specifically noted:
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.
That sounds like a guy who understands the limited role of the judiciary — wouldn’t you say?
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. Whether the courts agreed with the policy decision was irrelevant:
Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, 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. U.S. Railroad Retirement Board v. Fritz, 449 U.S. at 175, 101 S.Ct. at 459. “We should not forget that ‘legislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts.'” Akron v. Akron Center For Reproductive Health, 462 U.S. at 465, 103 S.Ct. at 2511 (O’Connor, J., dissenting), quoting Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904).
Nowhere did Judge Alito call for Roe v. Wade to be overruled. There is nothing inflammatory in his dissenting opinion, at all. It is simply a measured and well-written opinion that shows a careful analysis of precedent and a proper respect for the courts’ limited role in our constitutional structure.
Obviously, the Supreme Court reached a different view from that of Judge Alito, by a narrowly divided vote. This was the famous Casey decision which (among other things): 1) upheld the central holding of Roe on stare decisis grounds; 2) stripped the abortion right of its status as a “fundamental right” under the Constitution; and 3) replaced Roe‘s trimester framework with a rule tied to viability.
But this does not mean that Judge Alito misread the relevant precedents regarding the scope of what is an “undue burden.” In fact, as Justice Scalia noted in dissent, “the joint opinion finds it necessary expressly to repudiate the more narrow formulations used in JUSTICE O’CONNOR’s earlier opinions.” In other words, Judge Alito read her earlier opinions correctly, but the Court imposed a new, more restrictive standard in Casey. You can’t blame Judge Alito for that.
The bottom line is this: Judge Alito’s Casey dissent shows one thing, and one thing only: he is a careful judge and an adherent to the rule of law and a limited role for the courts. It is a dissent of which we can be proud.
If Judge Alito is nominated, Don’t let the Democrats turn it into anything else.
UPDATE x2: Thanks to Instapundit for the link, and welcome to Prof. Reynolds’ readers!
Judge Alito has now been nominated. I believe that the argument over this dissent will be central to the success of his nomination. Supporters of his nomination must be familiar with this dissent, and correct misinterpretations of it when they see them.
I will be watching this issue closely. To stay current with this issue, please bookmark/blogroll my main page and return often!
UPDATE x3: Thanks to Lucianne Goldberg for the link.
UPDATE x4: Ed Whelan puts it succinctly:
[A] fair summary of Alito’s opinion is that he read O’Connor’s opinions to indicate that a spousal-notice provision that had all sorts of exceptions did not constitute an undue burden.
He also warns not to let anyone get away with portraying this as an issue of spousal consent. It’s merely spousal notification — a concept with which 72% of the public agrees. (Thanks to Andrew again.)