Thomas wrote:. . . Anyway, the reason we are discussing Casey is to figure out if we think Alito is a good choice for the Supreme Court. You singled him out for stating that the provision furthers a legitimate state interest. But the majority agreed with him on this, so the intended thrust of my point was that singling Alito out was misleading and somewhat unfair.
Thomas:
I was NOT unfair to Alito nor did the majority agree with Alito.
Here's what I said:
Debra_Law wrote:At the time Alito issued his lone dissent in Casey (in 1991) with respect to the "husband notification" provision, his reasons were set forth as follows:
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," wrote Alito. "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.
http://www.cnn.com/2005/POLITICS/10/31/alito.record/index.html
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.
Is it truly a LEGITIMATE state interest to require wives to discuss matters concerning their own reproduction rights with their husbands? . . . .
The statute is the MEANS by which the legislature seeks to serve its interests. The particular statute at issue contained a mandatory spousal notification provision that required wives to notify their husbands of their intent to terminate a pregnancy BEFORE they obtained an abortion.
What LEGITIMATE state interest does the spousal notification provision serve?
Alito suggested that the spousal notification provision served the state interest in requiring the wife and husband to DISCUSS the wife's inclination to obtain an abortion PRIOR to obtaining an abortion in hopes that her inclination would be obviated by
discussion prior to the abortion.
Does the state have a legitimate interest in compelling the wife to discuss the matter with her husband prior to the abortion? NO.
The majority did NOT agree that the state has a legitimate interest in compelling discussion prior to the abortion. Although the "ideal couple" would likely discuss termination of a pregnancy before abortion, the majority was very clear that the state does not have a legitimate interest in compelling a married couple to conform to state-imposed ideals and requiring the couple to talk to each other before the wife acts upon her decision.
Additionally, a woman (whether she is a wife or a single woman) is an individual with rights of reproductive autonomy and privacy separate from her status as a married or single woman. A state does not have a legitimate interest in protecting a man's interest in a woman's pregnancy by legally requiring a discussion to take place between the man and the woman with respect to the pregnancy. Given the complicated emotional ramifications of human relationships, it is the woman herself (not the state) who is in the best position to determine whether it is beneficial to notify the man of the existence of a pregnancy and to allow him to participate in the decision to continue or to terminate the pregnancy.
The Constitution protects women from unjustified (oppressive) state interference into their reproductive decisions even when that interference is enacted into law for the benefit of the man who impregnated her. If a husband has a constitutionally-protected interest in his wife's pregnancy, then the equal protection clause would require the state to also protect an unmarried man's interest in his girlfriend's pregnancy. For some men, that interest might be served by coercing the pregnant woman to continue a pregnancy or coercing the pregnant woman to terminate a pregnancy. Again, the blades of oppression have the ability to swing both ways if the constitution does not secure the right of the woman to be free of the oppression in the first place.
Alito misapplied the undue burden test; Alito was mistaken in his analysis that the spousal notification provision did not constitute an undue burden; Alito was mistaken in resorting to a rational basis test; and finally, Alito erred in his application of the rational basis test.
I'm not being unfair to Alito at all. He made serious errors in an opinion that he wrote fourteen years ago. I hope, with the benefit of fourteen years of judicial experience that he has gained since he wrote the Casey dissent, that he would not make the same errors in judgment today.
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