THE NEXT JUSTICE
Judge Alito was right on spousal notification.
BY JAMES TARANTO
The Wall Street Journal, Saturday, November 5, 2005
When President Bush nominated Judge Sam Alito to the Supreme Court, it didn't take long for extremist groups to alight on his partial dissent in Planned Parenthood v. Casey, decided by the Third U.S. Circuit Court of Appeals in 1991, as a pretext to oppose him. Planned Parenthood's Karen Pearl called the opinion "outrageous" and said it proved Judge Alito is "far, far out of the mainstream."
Planned Parenthood mostly lost the Casey case, in which a three-judge panel unanimously upheld all but one of Pennsylvania's abortion restrictions. The next year, a 7-2 Supreme Court majority agreed. But by 5-4, the justices affirmed the decision of Judge Alito's two colleagues that struck down a provision designed to encourage a married woman to inform her husband before having an abortion.
This was a modest effort to balance a wife's "reproductive rights" against her husband's. The law did not provide for spousal consent, only notification. The wife's say-so, in the form of a signed statement delivered to the physician performing the abortion, was sufficient to establish that the husband knew. And a woman seeking an abortion had the alternative of affirming that her husband was not the father of her unborn child, that he could not be located, that the pregnancy was the result of marital rape, or that she feared physical abuse if she informed him. In any of these cases, no notification was required.
Arguably this was an unwise law because it was superfluous in most cases and ineffective in the rest. One must assume the vast majority of married couples make the decision to have or abort a child together; and the mere requirement of signing a statement was not a serious impediment to any woman who, for whatever reason, decided on her own to abort.
But deciding if a law is wise or unwise is the job of legislators, not judges. The Supreme Court is obliged to let even a foolish law stand unless the Constitution prohibits a state from enacting it. The five-justice majority, however, held that the Pennsylvania spousal-notification provision was an "undue burden" on the right to abortion established in Roe v. Wade in 1973.
Roe was the offspring of Griswold v. Connecticut, the 1965 case that established a "right to privacy"--and specifically, a right of married couples to obtain contraceptives. This right had no basis in the text of the Constitution, but it was grounded, as Justice William O. Douglas wrote for the majority, in "the notions of privacy surrounding the marriage relationship."
By 1992, when the high court decided Planned Parenthood v. Casey, the right to marital privacy had somehow morphed into a woman's right to abort her husband's child without telling him. The court's privacy jurisprudence has become simply a matter of five justices' policy preferences, unmoored from any limiting principle. You don't have to be a pro-life absolutist to object to this exercise in pro-wife extremism.
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