Thomas wrote:Debra_Law wrote:Alito applied (and I believe, misapplied) the rational basis test which simply asks whether the challenged statute (on its face or as applied) is rationally related to a LEGITIMATE state interest.
I don't have an opinion yet on whether Alito
misapplied the rational basis test in his dissent. But I would like to point out that this was not the issue on which he dissented with the majority. He dissented on something different, on whether the mandatory notification of her husband placed an 'undue burden' on the woman. Consequently, he also dissented with the majority on how to test its constitutionality. While the majority found an undue burden and accordingly tested with heightened scrutiny, Alito found no undue burden and merely applied a rational basis test.
On page 44 of the document Debra pointed to, judge Alito wrote:Although the majority and I apply different prongs of this two-part test, I see no indication that we disagree concerning the conclusion produced when either prong is applied to Section 3209. If the majority is correct that Section 3209 must satisfy heightened scrutiny, I agree that its constitutionality is doubtful. Similarly, I do not interpret the majority opinion to mean that Section 3209 cannot satisfy the rational relationship test. Indeed, the majority acknowledges that Section 3209 serves a "legitimate" interest. See majority slip op. typescript at 74, 77. Thus, my major disagreement with the majority concerns the question whether Section 3209 imposes an "undue burden", and I will therefore turn to that question.
... and sure enough, on crosschecking with the lower left corner of page 35, we find that the majority wrote:If the state's alleged interest in the integrity of the marriage refers to the state's interest in keeping married individuals together in wedlock, we agree that this is a legitimate state interest. It is not an interest that the Supreme Court has recognized as a compelling one, however.
For all I can say at this point, you may well be right and Alito may indeed have applied the rational basis test lamely. But it seems that on
this point, the majority of the appeals court agreed with Alito and disagreed with you.
No one can argue that the state has a legitimate interest in the welfare of its residents. Under the auspices of that broadly-stated legitimate interest, it is theoretically possible for the state legislature to enact any statute that it wants to enact that infringes on liberty interests (other than fundamental liberty interests) so long as the statute is somehow rationally related to serving the state's legitimate interest in the welfare of its citizens. But we know that's not true. The rational basis test is not a toothless test.
It is not sufficient to identify some broad, generalized state interest (e.g., legitimate interest in the economy, legitimate interest in crime-prevention, legitimate interest in marital integrity, etc.) and then determine whether the challenged statute is rationally related to that BROAD, GENERAL interest. We must avoid broad generalities and identify the specific interest that the statute was designed to address.
Acknowledging that the state has a legitimate interest in the "integrity of marriages" is merely making a broad general statement. You have to look at the facts and circumstances to identify the specific state interest that the statute seeks to serve. First, how do you define "marital integrity?" Is that when wives and husbands have the "integrity" to discuss the important issues that arise in their lives?
For at least 95 percent of the married women seeking an abortion, the husband notification provision of the statute was completely unnecessary. The vast majority of husbands and wives contemplating the termination of a pregnancy would discuss the issue and decide the matter privately between themselves whether the statute existed or not. It is possible that many husbands coerce their wives into having abortions that they don't want--but we're not concerned with the "integrity" of those marital decisions.
For the remaining 5 percent of married women seeking an abortion where husband notification was an issue, the state provided them with four exceptions to the notification requirement. The state was not concerned with the integrity of marriages wherein the wife believed someone other than her husband was the father, wherein the wife couldn't locate her husband, wherein the pregnancy was the result of marital rape if the rape was reported to the authorities, or wherein the wife believed that notifying her husband would be dangerous to her physical well-being. Those women could obtain abortions without notifying their husbands.
That probably left only 1 percent of all married women seeking abortions for whom the husband notification provision was even relevant. And think about it: The state is NOT concerned about the integrity of marriages wherein the wife honestly believes someone other than her husband is the father; but the state IS concerned about the integrity of marriages wherein the wife doesn't know for sure if her husband is the father? The state is NOT concerned about the integrity of marriages wherein the husband rapes the wife if the wife reports the rape to authorities; but the state IS concerned about the integrity of marriages wherein the husband rapes the wife but the wife does not report the rape to authorities? The state is NOT concerned about the integrity of marriages where the wife has reason to fear her husband will physically harm her; but the state IS concerned about the integrity of marriages where the wife has reason to fear her husband will emotionally harm her?
When looking at the facts and circumstances, the state's generalized interest in marital integrity (however you define "integrity") was just a pretext. The state's true interest in enacting the "husband notification" provision was to give the husband notice and an opportunity to express his opposition and to persuade or coerce (emotionally or financially) his wife into continuing a pregnancy that she would otherwise terminate. The state is NOT protecting the INTEGRITY of marriages; the state is protecting the husband's ostensible right to notice in a handful of cases and effectively veto the wife's decision.
The state has no LEGITIMATE interest in forcing wives to notify their husbands with respect to any issue--especially in a marital situation where there is no judge to act as mediator to ensure fairness and the husband can overreach and exert undue influence in an emotionally-charged situation--especially in a marital situation when the wife herself in the best position to evaluate the integrity or health of her own marriage and to determine whether discussing the issue with her husband would be beneficial.
See majority opinion at page 35:
Quote:We turn first to marital integrity. It is not entirely clear what the Commonwealth means when it speaks of the integrity of a marriage. If the interest is in honesty and full disclosure between married individuals, Hodgson indicates that this interest does not rise to the level of a legitimate state interest, much less a compelling one. In the course of striking down Minnesota's two--parent notice requirement without a judicial bypass, Justice Stevens there wrote for a majority of the court:
The State does not rely primarily on the
best interests of the minor in defending this
statute. Rather, it argues that, in the ideal
family, the minor should make her decision
only after consultation with both parents
who should naturally be concerned with the
child's welfare and that the State has an interest
in protecting the independent right of
the parents "to determine and strive for what
they believe to be best for their children."
Minn.Br. [**89] 26. Neither of these reasons
can justify the two--parent notification
requirement. The second parent may well
have an interest in the minor's abortion decision,
making full communication among all
members of a family desirable in some cases,
but such communication may not be decreed
by the State. The State has no more interest
in requiring all family members to talk with
one another than it has in requiring certain of
them to live together. . . . [A] state interest in
standardizing its children and adults, making
the "private realm of family life" conform to
some state--designed ideal, is not a legitimate
state interest at all.
Hodgson, 110 S. Ct. at 2946.
If the state's alleged interest in the integrity of the marriage refers to the state's interest in keeping married individuals together in wedlock, we agree that this is a legitimate state interest. It is not an interest that the
Supreme Court has recognized as a compelling one, however. Moreover, even if we were to assume that it does constitute a compelling state interest, we could not conclude conclude that the Commonwealth has carried its burden of demonstrating that § 3209 is narrowly tailored to promote [**90] that interest. As we have noted, the only effect of § 3209 is to require notice in those instances in which the wife would not otherwise share with her husband the fact of the pregnancy and her intention to abort. In such situations, an across--the--board requirement of coerced disclosure is an altogether arbitrary approach to a difficult and complex problem of human relations. Nothing in this record suggests that replacing the wife's judgment regarding disclosure with such an arbitrary rule will save more marriages than it destroys.
Claiming that the state has a broad, generalized legitimate interest in marital integrity is merely starting point, not the ending point. If you further define marital integrity to mean "keeping married persons together in wedlock," a completely ARBITRARY approach (as set forth in the husband notification provision) is NOT rationally related to a legitimate state interest the same as it is NOT narrowly-tailored to serve a compelling state interest. Ideally, a husband and wife will discuss the issue of abortion before the wife terminates her pregnancy (and most do), but it is not a LEGITIMATE state interest for the state to require husbands and wives to conform to the state ideal of marital integrity.
Alito wrote:
Quote:The 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. In addition, the legislature could have reasonably concluded that Section 3209 would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. 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.
Alito's analysis is circular and disingenuous: The state has a legitimate interest in marital integrity--keeping married persons together in wedlock (even though the state can't FORCE them to stay together in wedlock and can't FORCE them to talk to each other); the state has other legitimate interests; and the state's legitimate interests are served by the husband notification provision because the wife's desire to obtain an abortion without her husband's knowledge can be obviated if she discusses the matter with her husband. But, the Supreme Court has held that, "
The State has no more interest in requiring all family members to talk with one another than it has in requiring certain of them to live together." The entire purpose of the spousal notification provision, regardless of what generalized or broad state interest it serves, is to compel the spouses to talk to each other when the Supreme Court has ruled that the State has no LEGITIMATE interest in requiring family members to talk to one another.
Alito presented an unsophisticated (juvenile-like), superficial glance at the surface of the case based on generalities without reaching the true specifics and merits of the facial challenge--and even at that, his analysis was seriously flawed, circular, disingenuous, and contrary to Supreme Court precedent. Even if the state legislature determined it was beneficial for wives to notify their husbands when they intend to terminate a pregnancy so that the notification would lead to discussion, a state does not have a LEGITIMATE interest in compelling husbands and wives to discuss the abortion issue through the operation of laws and the statute was UNCONSTITUTIONAL. It was Alito's DUTY to declare the statute unconstitutional.
With respect to Judge Alito's "undue burden" disagreement with the majority, Alito essentially took the position that this was a challenge to the statute on its face rather than as applied--therefore, the fact that the notification provision might cause SOME married women to forego an abortion rather than notify their spouses was of no concern to the court. He relied on his erroneous interpretations of Justice O'Connor's previous decisions. He was set straight, (hopefully), when the Court wrote the following:
Quote:Respondents attempt to avoid the conclusion that 3209 is invalid by pointing out that it imposes almost no burden at all for the vast majority of women seeking abortions. They begin by noting that only about 20 percent of the women who obtain abortions are married. They then note that, of these women, about 95 percent notify their husbands of their own volition. Thus, respondents argue, the effects of 3209 are felt by only one percent of the women who obtain abortions. Respondents argue that, since some of these women will be able to notify their husbands without adverse consequences or will qualify for one of the exceptions, the statute affects fewer than one percent of women seeking abortions. For this reason, it is asserted, the statute cannot be invalid on its face. See Brief for Respondents 83-86. We disagree with respondents' basic method of analysis.
The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate's reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo, 418 U.S. 241 (1974). The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.
Respondents' argument itself gives implicit recognition to this principle at one of its critical points. Respondents speak of the one percent of women seeking abortions who are married and would choose not to notify their husbands of their plans. By selecting as the controlling class women [505 U.S. 833, 895] who wish to obtain abortions, rather than all women or all pregnant women, respondents, in effect, concede that 3209 must be judged by reference to those for whom it is an actual, rather than an irrelevant, restriction. Of course, as we have said, 3209's real target is narrower even than the class of women seeking abortions identified by the State: it is married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement. The unfortunate yet persisting conditions we document above will mean that, in a large fraction of the cases in which 3209 is relevant, it will operate as a substantial obstacle to a woman's choice to undergo an abortion. It is an undue burden, and therefore invalid.
This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. See, e.g., Akron II, 497 U.S., at 510 -519; Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II); Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 74 . Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.
We recognize that a husband has a deep and proper concern and interest . . . in his wife's pregnancy and in the growth and development of the fetus she is carrying. Danforth, supra, at 69. With regard to the children he has fathered and raised, the Court has recognized his "cognizable and substantial" interest in their custody. Stanley v. Illinois, 405 U.S. 645, 651 -652 (1972); see also Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); Lehr v. Robertson, 463 U.S. 248 (1983). If this case concerned a State's ability to require the mother to notify the father before taking some action with respect to a living [505 U.S. 833, 896] child raised by both, therefore, it would be reasonable to conclude, as a general matter, that the father's interest in the welfare of the child and the mother's interest are equal.
Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family, but upon the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of Health, 497 U.S., at 281 . The Court has held that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. Danforth, supra, at 71. This conclusion rests upon the basic nature of marriage and the nature of our Constitution: [T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, 405 U.S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.
There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. State, 16 Wall. 130 (1873), three Members of this [505 U.S. 833, 897] Court reaffirmed the common law principle that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. Id., at 141 (Bradley, J., joined by Swayne and Field, JJ., concurring in judgment). Only one generation has passed since this Court observed that "woman is still regarded as the center of home and family life," with attendant "special responsibilities" that precluded full and independent legal status under the Constitution. Hoyt v. Florida, 368 U.S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.
In keeping with our rejection of the common law understanding of a woman's role within the family, the Court held in Danforth that the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion. 428 U.S., at 69 . The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife's decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law - those who most reasonably fear the consequences of notifying their husbands that they are pregnant - are in the gravest danger. [505 U.S. 833, 898]
http://laws.findlaw.com/us/505/833.html
I believe that Judge Alito wrote a very bad opinion. I have no doubt that Judge Alito believed that he was right at the time, but that was fourteen years ago. Hopefully, he has gained a tremendous amount of experience and knowledge during his many years on the bench since he wrote his Casey dissent. Hopefully, we can chalk it up to inexperience and an underdeveloped knowledge of constitutional law and interpretation of applicable precedents. I haven't read all of his opinions yet, but I've read a couple of recent opinions that I thought were excellent. I am cautiously optimistic. I'm going to continue to read and share my thoughts.
Mortkat made a funny!
