The Grey Lady gives us this discussion of Planned Parenthood of Southeastern Pennsylvania v. Casey, a case where soon-to-be-Justice Samuel Alito, Jr. dissented in part in a case challenging various Pennsylvania state laws designed to reduce access to abortion.
The part at issue, which reads like an audition to be this President’s nominee at this time, would require married women to notify their husbands to obtain an abortion… not encourage it, or suggest it… but require it, even in the case of abusive or criminally abusive husbands. A 6-3 Supreme Court held the other way in a decision by Chief Justice Rehnquist, meaning… Sam Alito is to the right of Bill Rehnquist.
None of this should be surprising. Harriet Miers was a blank slate, but we had little reason to believe she was anything other than a moderate Republican. Yes, she was likely to be a monarchist– giving the President a blank check on executive power. OTOH, on social issues, it was unclear she was going to have a need to go out of her way to lead us forward… into the 19th century and beyond… No, I didn’t think much of her, myself, but then… who cares what I think?
Democrats just wasted a triple play so that assholes– and I mean ASSHOLES– like my state’s senior senator (yes, Chuck Schumer, I mean you) can have their press conferences about how THEY are “protecting women’s right to chose”. So, because Harry Reid had no abillity to impose discipline, or show any leadership at all, the right wing was allowed to eat Harriet Miers alive.
The triple play: (1) criticize the right wing for poisoning the process— spouting the inflammatory rhetoric without even the opportunity for hearings, and especially tying religious extremists to the Miers’ opposition; (2) criticize the President for rampant cronyism… mostly pointing to Mike Brown and officials other than Miers, though the message would be clear, and most importantly, (3) lining up 40, 41, 42, hell, maybe all 45 Democrats committed to support Miers, and pick off liberal and moderate Republicans, and then publicly say “hey wingnuts– trash her all you want– we have the votes for confirmation”.
The “careful” approach– watching the extreme right wing eat a moderate Republican– has led us right to Sam Alito. What do I think of our American opposition party? I think it would be an excellent idea.
tdog
Spousal notification requirements may be a bad idea on the merits, but that doesn’t mean they’re unconstitutional, which is what Alito argued in his dissent. Frankly, he makes a fair case.
“So, because Harry Reid had no abillity to impose discipline, or show any leadership at all, the right wing was allowed to eat Harriet Miers alive.”
I guess we see it differently, doggie. Reid was smart to let the right devour one of its own.
Now–if he can’t muster a disciplined opposition, I’ll say to hell with Reid. BTW I think he’s running for President (notice his website?), so this is what I’m basing my future vote on.
Regarding spousal notification and the constitution, Lawrence, if you can supply an example in which a man has comparable vulnerability to his wife, I’d appreciate it.
I don’t think this part is quite right:
“[The proposed law] would require married women to notify their husbands to obtain an abortion… not encourage it, or suggest it… but require it, even in the case of abusive or criminally abusive husbands.”
Unless I’m mistaken the law in question would have required notification (not consent) of spouses except for when “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.”
Again, this may be bad policy, but the question was whether it was unconstitutional.
I’m not sure I understand the question, Diana.
Well, I think Diana has come up with a brilliant trick question: the only possible analog would be, of course, if the treatment of a medical condition that only men could get (say, testicular cancer for example) were conditioned on the man giving notice to the wife that he was seeking treatment (because it might arguably interfere with her spousal conjugal rights, for example). This is because only a woman can beecome pregnant. It’s a great question– and it opens up a whole “equal protection” aspect that really hasn’t been considered, because the focus has been on the “privacy” aspect.
As to whether the spousal notification provision is or is not unconstitutional, the Supreme Court held that it was (albeit with vigorous dissent). Obviously, such a decision is subject to reconsideration by the Supreme Court itself at a future term, which is pretty much where we are. FWIW, it was unconstitutional because Justice O’Connor said it was unconstitutional.
This is obviously the political hot button issue; a “resolution” would seem unlikely, no matter what the High Court does. Ironically, total abortions performed were going down during the Clinton years, and seem to be going back up in the Bush years.
Go figure.
Thanks for clarifying that for me, TD. I think I understand now. Of course, there are a whole bunch of laws that some men find unjust (e.g. child support for children they did not actually father — truth is not a defense) but they’re deemed good public policy anyway. And you’re certainly right about the constitutionality of the law in Casey vis-a-vis Justice O’Connor.
But you’re not right here:
“Ironically, total abortions performed were going down during the Clinton years, and seem to be going back up in the Bush years.”
That’s not true: The Biography of a Bad Statistic. Abortions have actually decreased under Bush.
Hmmmm… actual evidence… A quick Google search seems to support the proposition enumerated by Lawrence. I guess if someone has contrary evidence… bring it on; until and unless, I stand corrected. (FWIW, these are actually my favorite kinds of comments– when I misstate something, and it can be shown so, as opposed to simple contradiction for the hell of it, although I do often enjoy that too. Anyway, thank you Lawrence, because I had heard that proposition enough times to believe it true, particularly as I’d never seen or heard it rebutted before.)
I suppose the immediate doctrinaire response is to point out that Bush Administration policies have made it harder for poor women to have access to abortions, and therefore, abortions are declining. The likelier reason, of course, is simply that there are broader social trends at work regardless of who resides in the White House, as unsatisfying as that is for those of us who’d rather blame Bush for everything!
Anyway, this comment thread strikes me as about as reasonable as the debate on Judge Alito is going to be; it won’t be long before invective and hyperbole take over completely.
I thought we were both being reasonable and respectful. We disagree on a lot of things, TD, but I don’t think either one of us have given in to invective or hyperbole in any of our discussions.
” This is because only a woman can beecome pregnant. It’s a great question– and it opens up a whole “equal protection” aspect that really hasn’t been considered, because the focus has been on the “privacy” aspect.”
Exactamundo!
“Brilliant”
Exactamundo!
” condition that only men could get (say, testicular cancer for example) were conditioned on the man giving notice to the wife that he was seeking treatment (because it might arguably interfere with her spousal conjugal rights, for example).”
We don’t even have to go that far (spousal conjugal rights).
As I understand Alito’s reasoning (ahem, I haven’t read the opinion so I’m really pulling this out of my blowhole) it’s based on the notion that the marital bond is unique, and creates a unique reciprocity between the two “contractors,” unlike any other contract.
OK, fine, that being the case, why not create a true equality and give women the right to veto a procedure that is unique to male biology, such as, for example, treatment for prostate or testicular cancer? Not because it violates her spousal rights. Just…because…she’s the wife, and she should have life and death power over her husband…just as he does over her life, in the event that she becomes pregnant…which is still a condition that entails risk.
Geez, Diana, didn’t you get the part where the spousal notification law was limited to *notification* and didn’t require consent? And when babies start coming from the male prostrate, you’ll have a good analogy.