Patterico's Pontifications


This Time, It’s Personal — So to Hell with the Facts!

Filed under: Abortion,Judiciary — Patterico @ 9:14 am

Kate Michelman has an op-ed in this morning’s Los Angeles Times titled This time, Alito, it’s personal. I guess the fact that it’s personal frees Michelman from any constraints of accuracy.

Her piece opens this way:

LOOKING BACK more than three decades to one of the most difficult times in my life, it’s hard to say what seems more insulting: being forced to obtain my husband’s permission to have an abortion after he had just abandoned my family or — many years later — Supreme Court nominee Samuel A. Alito Jr.’s ruling that a similar requirement was not, in constitutional parlance, an “undue burden.”

I consider it insulting to compare a spousal notification provision, such as Alito ruled on, to a spoual consent provision, such as Michelman faced. Michelman acknowledges the distinction further down in the op-ed, but saying so up front would have detracted from the power of her opening. She continues:

In 1969 — in those distant but suddenly closer days before Roe vs. Wade — my husband deserted me and our three small daughters. After learning I was pregnant, and making the wrenchingly personal decision to have an abortion, I was forced to submit to an invasive and humiliating interrogation before a hospital review board in Pennsylvania. It ultimately gave its permission. I was in the hospital preparing for the procedure when a nurse informed me I would need my husband’s permission too. I found him a few days later and he gave it.

In the 1992 case of Casey vs. Planned Parenthood, Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion. Such a requirement, he ruled, was not an “undue burden” on most women. The vast majority of women, he noted, voluntarily discuss an abortion with their husbands, while the law provided a nominal exception for women in the most extreme circumstances, such as abusive relationships.

The only women who would be burdened were all those left in the middle — women like me, women in extraordinary and individualized circumstances that neither laws nor legal standards could possibly anticipate.

Michelman’s only apparent “extraordinary and individualized circumstances” were that her husband had deserted her. She makes it sound as though the law made no provision for such a situation — and indeed, could not “possibly anticipate” it. Yet the law in question explicitly provided an exception in cases where the husband “cannot be found after diligent effort.” A woman needed only to sign an unnotarized statement to that effect, and did not need to provide evidence supporting her statement.

Big deal, Kate. Why didn’t you explain that to your readers? Again, because it’s “personal” — and what do the facts have to do with it, when it’s “personal”? But wait . . . I guess it’s not personal after all:

To be sure, Alito would likely say women such as me should not take his opinion personally. I don’t.

The headline writer thinks you do. And so do I.

Further evidence for my conclusion comes in Michelman’s scare tactics, making it sound as though Roe v. Wade hangs by Justice O’Connor’s vote:

But [Alito’s] potential elevation to the Supreme Court comes at a moment when privacy rights hang in the balance on an array of issues. A woman’s right to choose is the most immediately threatened among them. Many Supreme Court decisions on that topic have been decided by a single vote — Justice Sandra Day O’Connor’s. If Alito is even slightly more conservative than O’Connor — as is obviously the case — his vote would be enough to render the protections of Roe vs. Wade functionally meaningless for millions of women.

It’s hard to see how a woman’s right to choose can be “immediately” threatened when the Court currently has six solid votes in favor of that right: Ginsburg, Breyer, Stevens, Souter, Kennedy, and O’Connor. If O’Connor is replaced by Alito, and if Alito turns out to be a vote against Roe, and if Roberts is as well, that’s still 5-4 in favor of a woman’s right to choose. We would still have to replace one of the remaining five with yet another Justice opposing Roe, and then get a case to the Supreme Court that would allow that Justice to cast vote to reverse Roe.

None of this sounds very immediate, Kate.

And the fact that a distorted reading of Judge Alito’s vote in one case might offend you is not a compelling reason to filibuster a qualified candidate to the Supreme Court, as you suggest Senators should do with Alito. No matter how personally you might be offended.

UPDATE: Andrew at Confirm Them has more on Michelman’s piece.

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