There does some to be a genuine puzzle here: why should consent to sex mean consent to the responsibilities of fatherhood when consent to sex does not mean consent to the responsibilities of motherhood? On the other hand, the obvious biological inequality of burdens has to be factored in somehow, no?
Here's my hastily-thought-out answer: I think that the "obvious biological inequality" is the key point. The father's biological role in producing a child begins and ends with sex. The mother's biological role in producing a child similarly begins with sex but continues through nine months of pregnancy. Men understand (or at least they should) that by engaging in sex they may potentially become fathers. Women play a greater biological role, and therefore it is appropiate that they should have greater decision-making power after a fetus has been produced.
I don't know what to say just yet, but I'd really liek to see a discussion of this. I'd be particularly interested in LizardBreath's thoughts, since she's a smart lawyer.
Men may get married and say that they don't want kids, but they are also getting certain legal benefits from marriage (tax incentives and the like). Don't we give them those benefits, because we want to support families, and part of that support is coercive--making people responsible for the care of their children?
So, I hope that somebody smarter than I and a little less wired will say something more substantive than that. I'm in a frame of mind where I can tell you whether something is good or bad, but I can't really offer a coherent argument of my own.
LB is always so well reasoned, but others shoudl chime in too.
Briefly:
I agree with My Alter Ego. (I just wanted to say that.) The woman will, at a minimum, bear responsibility for the fetus for nine months; the father's biological role is of limited duration.
There's also serious societal implications to consider. Like it or not, most single parents are women; most babies borne out of wedlock end up being the mother's responsibility. It's easy for the biological father to force her to have the baby, but what if he disappears a few years later?
If, perhaps, we could force the man to sign a contract that guaranteed parental support and maybe, just maybe, enforce it perfectly, then we'd have a small argument for parental rights.
But even in Happy Parallel Universe World, he isn't going to have to bear the child for nine months; if we think that abortion derives from a right over one's own body and resources, no amount of social equality or child support is going to undermine that fact.
On the other hand, coerced financial support is not *so* different from control over one's body. It limits all sorts of choices about how to live, for example. While the "biological" role of the man ends with sex, the legal, financial, etc. obligations have just begun, and they're quite serious.
I think the argument really is that abortion is an undue physical burden right, not a reproductive right. If there were an easy process that allowed women to remove a fetus and place it in an incubator in the same way that one draws blood, I think the legal argument for anti-abortion legislation becomes much stronger.
This, as I understand it, is the base of the pro-abortion rights argument. Later cases have confused the justifications.
I think spousal notification laws are asking for trouble because of the position of powerlessness they put the man into. After all, this is notification, not consent if I understand the law correctly. Obviously, the point of the law is to notify the man so he can try to persuade the woman to have the child, but he has no legal recourse to override her decision, right? I would think that some men even without a history of domestic violence would snap and attack their partners if told that she was going to have an abortion and there was nothing he could do about it.
Re #4: The relevant circumstance to examine relative rights would be when a mother wants to put a recently born child up for adoption and the father wants custody. If the father gets custody based on parental rights and the mother is forced to pay child support, I think everything is copascetic.
I'm not that far from bostoniangirl, in that I can recognize things that dissatisfy me about any plan I can come up with, but I'm not too clear on what a good system of rights and responsibilities would be.
I have thought about it some, and a framework I've found helpful is to think that while there are only two people involved in the process, there are three roles -- a father, a mother, and a gestator. The inevitable biological inequality is that the gestator (gestatrix?) is always going to be the woman, and I think the woman has to have the absolute right to choose whether or not to gestate. If she chooses not to, by having an abortion, the problem is over. No baby, no parents.
If she does decide to gestate, and a baby is born, at that point I think the baby is now a human being with rights including a right to the support of two parents, whether or not they have chosen to participate in the process or have done so accidentally. This still ends up kind of inequitable, though, in that a woman who doesn't want to be a mother can solve her problem by refusing to gestate, but a man who doesn't want to be a father doesn't have a similar out. I am less bothered by this inequity in reality than I would be in the abstract, because as things turn out, there seem to be an awful lot more women raising children without financial support from their fathers than there are men who are supporting children than they demonstrably had no intention of fathering. (You could convince me otherwise with statistics, but this is the impression I'm coming in with.)
Some choices, certainly, but bodily self-determination seems to trump a lot of them, no? There certainly aren't health risks, which are pretty real. (No one's saying you'd have to be a *good* dad, just one that cut the check every month.)
I have a lot of pro-life sympathies, but I can't imagine getting pregnant, needing an abortion for (completely legal) reasons and having the father of the baby demand that I carry it to term, with the pain, risk of diabetes, blood clots, etc while promising to provide some monetary support later.
On Planned Parenthood's website, one of the criterion they suggest considering when deciding what to do with an unplanned pregnancy is more or less "Though the father is in the picture now, if you and he were to separate, would you be prepared to raise the child on your own?"
And total agreement to #7. If the laws aren't like that now (I simply don't know) they should be.
It'd be awesome if they'd release a male birth-control pill, since that would reportedly have a much greater level of effectiveness than any female version, and it would spare one the panic associated with broken condoms.
To veer off for a moment for a response to another part of Instapundit's post:
So where's the husband's procreational autonomy? Did he give it up by getting married? And, if he did, is it unthinkable that when they get married women might give some of their autonomy up, too?
It appears that "the husband's procreational autonomy" in this context means the right not to father a child. Well, there's this little procedure called a vasectomy which gives a man who does not want to have children all the procreational autonomy he could ever dream of. Now, would conservatives of any stripe support a spousal notification law with regard to vasectomies? No? I thought not.
The thing about a male bcp is that I can't imagine a woman relying on it, except possibly within a marriage or equivalently committed relationship. Wouldn't it always be backup birth-control, and if so, would men really spend the money and take the trouble to take it?
LB captures my views in 8. There may be some abstract unfairness in the fact that the mother has rights not to have parental responsibilities that the presumptive father does not also have. But, in real life, not so much.
In general, though, this seems like one of those issues where the Atrios approach is superior to the Ogged one. Sure, there are cogent arguments on both sides of the issue. But can't we all agree that white men who bitch about their lack of rights are huge wankers? And that they're even more so when they give their wankery the fancy label "libertarian"?
Let's just bracket the Alito question, which is whether the law compels a certain view of parental/spousal notification. I think -- and I think that everyone should think -- that this question is not *the same* as the moral /policy question. That is, it could be that the correct legal review permits policy/law we think misguided, or indeed even requires policy/law we think misguided. I hope you enjoyed legal formalism minute. On the specifics of ths case, I'll let the more knowledgeable lawyers speak. Alito's dissent in Casey can be found here
The specific policy case is, I think, a very hard call. There are several possible policies here -- ranging from spousal notification to spousal veto. Only the former was under consideration here.
There are a number of possible values served by notification -- not least the interest a spouse might have in the mere information that his child was being aborted, or that his spouse was pregnant with another man's child. The problems about notification policies stem (I think) largely from "worst case" scenarios -- where notification becomes the spur for violence or physical pressure.
And, just as an FYI for Adam -- male (chemical) birth control has lots of technical challenges: many sperm vs. one egg, for example.
Also, sure, I'll suport spousal notification for a vascetomy (or other sterilization). Seems like grounds for divorce.
Men and women both taking birth control bills is the best state of all. Though I fear that the MBP will disincentivize condom use.
Maybe we should cut out the middle man and simply ask the pharmacist to write out prescriptions for our bedrooms.
To 12: Yeah. Something that always seems off about these discussions is that the compelling arguments for men's reproductive autonomy (and they do get pretty compelling) are about the right to choose not to parent. The political reality of the laws, on the other hand, is that they're being pushed by people who want to make it more likely that women will be compelled to parent against their wills. That doesn't make the good arguments bad ones, but it makes it harder to take the arguments as anything more than academic.
There are a number of possible values served by notification -- not least the interest a spouse might have in the mere information that his child was being aborted, or that his spouse was pregnant with another man's child. The problems about notification policies stem (I think) largely from "worst case" scenarios -- where notification becomes the spur for violence or physical pressure.
Now that's weird. I think a state in which it is considered a man's legal right to know who his wife is sleeping with is a worst-case scenario in itself.
But can't we all agree that white men who bitch about their lack of rights are huge wankers?
No.
Once you start down the path of legal recognition of the biological differences between men and women, forever will it dominate your destiny!
There's a great line from someone or other (knowing me, and given that I can't remember, it's probably someone that I will have been embarrassed to have quoted approvingly) along the following lines:
We can all agree that a man whining that he hasn't been given his rights is an immensely unattractive sight; indeed, putting him in that position is one one of the worst things we do when we deny him those rights.
Re 20:
There's a certain class of white, middle-aged guys who bitch about their lack of rights who are real wankers. They're the kind of people who woudl spend hundreds on drinking and Red Sox gaems but complain if they were forced to buy health insurance.
Also, sure, I'll suport spousal notification for a vascetomy (or other sterilization). Seems like grounds for divorce.
I agree that medically rendering yourself infertile without telling your spouse could constitute grounds for divorce. But do we really need the state stepping in here and overseeing and micromanaging what spouses tell each other? Just to jump on the slippery slope for a minute, would we want spousal notification laws for men who attempt to have a vasectomy reversed? What about spousal notification for checking into a motel? The point I'm getting at is that there are lots of things that adults are legally free to do that might constitute grounds for divorce, especially when done without the knowledge and consent of the spouse, but it is not the role of the state to make sure the spouse finds out about those actions.
I almost can't comment on the main point of this post, as I am utterly filled with rage at GR's closing line "is it unthinkable that when they get married women might give some of their autonomy up, too?"
Even if he had a legitimate point in his post, the fact that he could close with this just dismisses his entire argument.
Is just this sort of snide, backhanded insult that, in my opinion, modern feminists are referring to when they talk about "backlash". Frankly, the translation of this comment is "fucking women, get everything on a silver platter, can't they even shoulder one little shred of responsibility and hardship."
It is almost funny that he would make this comment, when the historical (and sadly modern as well) outcome of marriage is the eviseration of a woman's autonomy. What Feminism has been doing for the last two hundred years is to earn women a little bit of autonomy back. And now fucking Glenn Reynolds is going to sit there and casually type out that the problem is that women refuse to give up any bit of autonomy when they are married ("those selfish bitches").
so to me it goes beyond White Guy Whines About Men's Rights, and into something much more hateful and pathological.
Even if he had a theoretical point, his true motiviations and biases come out loud and clear.
IIRC, Virginia has some weird waiting period/notification laws for men who want a vasectomy. I remember thinking it was an annoying intrusion into privacy but at least there was some consistency with the state butting into both genders' reproductive decisions.
Even if he had a theoretical point, his true motiviations and biases come out loud and clear.
I can't disagree with you. I'll discuss the issues he raises, because they're real issues worthy of discussion, but my goodness is the man an ass.
I support laws that impose onerous duties on spouses, basically without reservation.
So you're in favor of the "Post-Marital Ceremony Hauling Sandbags Meaninglessly Up And Down Stairs Act of 2003"? I thought that it was a terrible shame that the bill never made it out of committee.
Please, LB—didn't we already debate the Sisyphus Wed legislation to death? I fail to see the point in going through this over and over again.
I support laws that impose onerous duties on spouses, basically without reservation.
Scalito?
Re: 28
That must make a great pickup line. Mind if I borrow it?
baa, can you please qualify 28 such that it might be responded to? Otherwise, I'm tempted to snark away with things like, "What about the onerous duty to never, under any circumstances (including the death of one party), stop being a spouse?"
I support laws that impose onerous duties on spouses, basically without reservation.
We're just friends and we were just having lunch, baa. Jeebus. Let it go.
Wasn't 28 just a straight-out joke? I don't think there was a serious point there to be responded to.
I'm not a big fan of "fairness" over everything else and then arguing "what-ifs" to get to 100% fairness. Maybe that is one reason I'm not a lawyer.
So I think "pretty good" is good enough and I where errors exist I want them on the side of autonomy instead of control.
Male birth control exists - stick the female pill in the heel of your shoe and it will make you limp - ar ar.
Really, if there was a male pill I think some guys would use it - some guys are responsible and really don't want a child at the time and don't want to rely on somone else. And, as noted before, I've had the big V snip snip for exactly that reason. I've gotten more than my quota of sprog, thank you very much, and want to devote my resources to them and no more.
So the existing laws may not be perfectly fair to men, when viewed in the abstract, but in reality so what? Hey, I've been dumped and I know how badly I wanted, at the time, to control the dumper, even if it was just a tiny bit. If I had a law to do it with I might have used that law, and that would be a BAD thing, because it is much better for me to learn my boundaries. I control ME and no one else. Period.
So, again, I want to err on the side of personal autonomy instead of controlling people.
Probably, I guess it was baa stretching his previous positions to their logical extreme, but in my quick perusal of the thread it was so out of the blue that I wanted to follow up on it.
how badly I wanted [...] to control the dumper
Just go ahead and buy the Depends, dude.
Tim, if you won't be a father to little fontana, who will?
W-d: you realize I was just funin' right?
But more globally, yes, I think that in a post "no-fault" era, one could do more to make marriage a big, honking, legal dealio. As someone (Irving Kristol?) said about Catholicism: there's the idea that the way to attract the younger generation is to be more permissive, more "in touch" -- in fact the opposite is the case.
So too with marriage. We must reinvigorate the concept of marriage as a drastic, radical, life-altering commitment, one that changes you and you can't back out of. And if we have flog some adulterers, so be it.
While I can vaguely sympathize with the impulse that makes you take that position, I think the fact that you're doing so jocularly ("And if we have flog some adulterers...") telegraphs that it's really hard to think of legal ways to make marriage more binding that seem tolerable or sane. You're not going to actually advocate that adulterers be flogged, are you? Demand that couples who want to divorce stay married unless one can prove that the other committed some particular offense? If not, what are you going to seriously advocate in this regard?
40, that may be the case, I don't know. Marriage seems serious enough to me. But I don't understand one way or the other why the state must be involved—surely this is a job that families and churches and co-op pot lunches can all do more fairly than the state?
41 - Some states are doing just that - offering "covenant marriages" that can't be dissolved except in extreme circumstances, like adultery or abuse.
Perjury charges for people who violate their wedding vows. Put Patrick Fitzgerald on the case! Just add a little, "I, do solemnly swear, . . . " to the beginning of the whole vows part of the ceremony. Then we can have indictments on the grounds of insufficient cherishing, "having and holding," etc. It'll be a blast.
I'm in serious trouble if that becomes law. Due to a combination of not being terribly churched and poor planning, Mr. Breath and I were married by some NewAgey guy that we got from 1-800-DialAPriest, and there's some serious contemplating the meaning of the world-river that I've been slacking on. If that was a legal commitment, I'm sunk.
offering "covenant marriages" that can't be dissolved except in extreme circumstances, like adultery or abuse.
Do you, or anyone else, know if that's binding on other states? I don't think it can be, which leaves me thinking, "So they've reinvented the Nevada divorce. That was progress."
Our UU minister (that we found over the Internet and selected because she also did gay commitment ceremonies), decided that for her homily she would spend some time telling the audience about how our love fit in with my wife's parents' Quakerism, when she obviously didn't know anything about Quakerism. So that was nice.
Spent a lot of time talking about oatmeal, did she?
Yeah -- covenant marriages! Alas, we've lost the unified mainstream culture that makes ostracism a live possibility.
My anecdote is too identifying to share, but suffice it to say, everyone was astonished.
There's always mittelracism.
Re: 23. They're the same sort that complain that they coulda got inta one o'them Ivy Leagues, but that affirmative action kept them out with their 2.4 GPA, cuz that slot went to some chick.
('No, you're not being discriminated against. You're incompetent.')
re: baa's much earlier point. It would be nice for everyone to take marriage seriously, but I can't think of a way to do it that doesn't leave an awful lot of people in bad situations with no exit. (Abusive, but never leaves bruises. Adulterous, but no evidence.) Ideally, the man should have some say over his partner's pregnancy; ideally, she wants his input and values his involvement, and both will be joyful parents or will reluctantly chose abortion.
But isn't she in a better position to know than the law could be?
47, 50:
Did we just find out that SB is Chopper under a pseud? Or Mrs. Chopper?
Wait, Insty's a libertarian? Did I just fall asleep on a mountain with a bunch of bowling elves or something?
53: I read it as SB saying that SB took part in a wedding ceremony where things so odd happened that it was newsworthy. Someone check the veiled conceit archive.
Everything I knew or thought about covenant marriages as of February. Interestingly, haloscan appears to have deleted all comments from the first few months of my blog.
Insty may at one point have been able to credibly claim he was a liberterian (sometime before 9/11 and the GWOT). At this point he is as much of a liberterian as I am two common household appliances conjoined, just calling himself that doesn't cut it.
Totally OT, but does anyone know if Ogged is still the comment moderator? If so, that post that I just left explaining the Grad Student to Isle of Toads is in trouble.
(Also, fuck a whole bunch of Alito. Atrios calls it right. This has nothing in particular to do with child support, which LB got exactly right in 8.)
Weiner, you are so better than that. Atrios proves himself king of the knee-jerk lefty tools with that comment. Didja read the Alito dissent? It is fricking Solomonic, given that he had to apply a made-up O'Conner undue burden test. Remind me, are lower court judges supposed to follow the principles elaborated in supreme court cases, or should they too apply the result-orientograph to discern the Right Result.
Scott Lemiuex knows more about this than any of us, he says you're full of shit (Alito "not lawless" but "very strained"), and I believe him.
baa, is your point that if he conceded to applying the undue burden test at all, he must be a modest judicial nominee of the kind liberals who lost elections should be willing to live with, or is it the way he applied the test indicates this? Because I find Scott's criticisms of his application really persuasive.
My bad on the mis-read in 34, I thought you might have meant some far more limited version of what you had said, and was curious as to what it might be.
On preview, Weiner has linked to the same thing I did. I'm still posting this.
If you think that parental notification rules are closely analagous to spousal notification rules. I can think of a number of obvious distinctions, of which the most obvious is minor/adult.
While I disapprove of parental notification laws as well, I can see a defense of them on the basis that children are often irrationally afraid of their parents, and that at least some girls who would profit from the counsel of their parents would not seek it out unless compelled. The law compels the girl to go to her parents, she finds out that her fears were irrational, and is better off because she has their advice and support. (I don't find this argument persuasive, but I can follow it.)
Wives, on the other hand, are not generally irrationally afraid of their husbands. It can safely be assumed that a woman who wishes to conceal an abortion from her husband has what seems to her to be good and persuasive reasons for doing so, and that overriding those reasons imposes a significant, indeed an undue, burden upon her.
Really, try and come up with a story where a married woman is having an abortion that she does not wish to inform her husband of, in which informing her husband isn't going to be a huge, huge deal. I can't. Huge, huge deal = undue burden.
And Lemeiux is good -- that's all the points I wanted to make, in much greater detail.
But isn't there a subset of "huge, huge deal" that is the set of all reasons the husband should be informed? (She doesn't want kids, but lies to the husband, etc.)
I note that the main difference between Alito and the other people on his panel, and the Casey Sup. Ct. plurality, is (according to Lemieux) whether "undue burden" means an undue burden on abortion-seekers as a class or an undue burden on those abortion-seekers who would be affected by this requirement. I'm not a lawyer, so my guess that the latter is more appropriate counts for nothing. But the fact that the rest of the panel disagreed with Alito on this specific point I think is pretty strong prima facie evidence that he decided to err in favor of "That uterus belongs to your husband, woman," and that's enough for me to say fuck a bunch of him.
(And yes to 64--LGM is one of my favorite blogs these days.)
The things in parentheses in 65 are for the marriage counselor to deal with, not the fucking law.
I don't need no law lessons from some guy who plays the neutral zone trap.
Look, qualifying this with the "I'm no lawyer" I read the Alito dissent, it didn't seem strained to me. Nor does the Lemieux comment convince me otherwise.
Let's just blockquote Alito:
"Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions ” ‘to some degree’ ” or inhibiting “some women.” Thornburgh, 476 U.S. at 828, 829, 106 S.Ct. at 2213, 2214 (O’Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting). Furthermore, Justice O’Connor’s opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson or the burden created by the regulations in Akron that appreciably increased costs."
Ok, so that could be a "strained' interpretation of O'Conner, maybe. I dunno, I'm just a guy. If I wanted to show that Alito's interpretation was strained, I would go after his interpretaion of the O'Conner precedent.
Lemieux does not do this. Rather, he merely quotes the plurality opinion and notes that it's different. No kidding! Maybe that's why Alito dissented! The only Lemieux comment on what Alito actually wrote is a aside on some footnote that is, as far as I can tell (admittedly, not very) irrelevant to the thrust of Alito's argument. (viz, that spousal notification as defined by the proposed law does not constitute an undue burden as defined by O'Conner, and therefore does not require compelling state interest).
I think the uterus remains the property of its lawful owner.
She doesn't want kids, but lies to the husband, etc.
Where does this lead you? Probably not to the position that under those circumstances the husband should have veto power over her decision whether or not to abort -- if you do, I'm going to disagree with you vehemently. Without that, what purpose does the notification serve, even under those circumstances, that's worth overriding all the more sympathetic reasons a woman might want not to tell her husband about an abortion?
"The things in parentheses in 65 are for the marriage counselor to deal with, not the fucking law."
Great decision for the legislature to make, I think.
Re 68:
One thing that makes Alito's position strained is that he generalizes from O'Connor's position on what restrictions may be placed on minors to what restrictions may be placed on adults without dealing with any of the obvious differences in the situations.
The footnote, while not all that relevant to the legal argument, is damning in that Alito is trying to comfort the reader with the thought that the law Alito advocates is unenforceable in practice. That's a very frightening thing for a judge to be saying: "Don't worry that we're narrowing your rights. Nothing's going to change in practice, you'll never even notice."
"The things in parentheses in 65 are for the marriage counselor to deal with, not the fucking law."
Great decision for the legislature to make, I think.
They're not the kind of compelling state interest that justifies the imposition of an undue burden on the woman's right to decide whether she is going to bear a child. And that is, under our current legal precedent, for the courts to decide.
Rather, he merely quotes the plurality opinion and notes that it's different. No kidding! Maybe that's why Alito dissented!
The plurality opinion is from the Supreme Court, not the Appeals court. I think I started this misreading.
Lemieux, who knows a lot about this and says that this is a quick post on the way to a longer one, says that the core of Alito's argument is the construction of "undue burden" that I paraphrased in 66. Right now I don't have any reason to doubt him, especially since the S. Ct. including notorious abortion-rights freak Kennedy seems to have agreed. Lemieux didn't quote the relevant part of Alito's decision, and obviously I'm not going to be able to make sense of Hodgson and Matheson and Akron, but my current epistemic sense is to think that Lemieux has got this right unless I get real good proof otherwise.
1. I don't think the footnote is damning at all. I read it as an academic aside, but whatever.
2. Ok, now you (LB) have made a case for the analogy being strained which is more than Lemieux did. But did he have other undue burden evidence on which to rely? Perhaps he was merely working with what the case law gave him.
3. I think SCMT is exactly right that it is not the judge's place to determine -- based on what, exactly? -- that the only time spousal notification would be relevant is where the husband is "Leatherface" from the Texas Chainsaw Massacre. Where does any judge get off assuming that the aborting spouse will -- in every case! -- fail to notify only for the justified reasons? How can a judge assume this given that the law itself has special escape clauses to cover those cases? Only by putting him or herself in --say it with me! -- the place of the legislator considering the prudential merits of the law.
I think SCMT is exactly right that it is not the judge's place to determine -- based on what, exactly? -- that the only time spousal notification would be relevant is where the husband is "Leatherface" from the Texas Chainsaw Massacre.
But the judge doesn't have to determine that. Once he has determined that it places an undue burden on some reasonable portion of the women it affects (which appears to me to be obvious -- see my 63), the law becomes unconstitutional so long as there is not a compelling state interest in seeing that those sympathetic husbands are informed. It's not that there are no sympathetic husbands that won't be informed, just that there is no compelling state interest in seeing that they are.
I agree that undue burden is the issue. That's what Alito contests. So far the only argument that this is a "strained" reading is the argument that any analogy from a juvenile case to an adult case is suspect. That was not Lemieux's claim, and without knowing if there is any other relevant case law to cite, it seems to me a weak reed.
The "can't assume every husband a Leatherface" support of Alito is directly relevant to Lemiuex's claim:
"Indeed, precisely what makes these laws (whether spousal or parental notification) so odious is that for all intents and purposes they only apply to women in the worst familial situations; if you have a good relationship with your parent or spouse, you're almost always going to tell them anyway."
Great, so now parental notification is always an undue burden too. Good to know.
Also, I'm not lawyer enough to know if the correct reading of undue burden is yours: "It can safely be assumed that a woman who wishes to conceal an abortion from her husband has what seems to her to be good and persuasive reasons for doing so, and that overriding those reasons imposes a significant, indeed an undue, burden upon her." Why can we assume this, and why can we assume that this case effects a "reasonable number" of women after the law's specific carve outs have been accounted for? Why can we not assume instead Alito's definition derived, allegedly, from O'Conner's precedents: "has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions ” ‘to some degree’ ” or inhibiting “some women.”
have made a case for the analogy being strained which is more than Lemieux did
Look, Lemieux made a specific claim that Alito was misapplying the undue burden standard by arguing that the rarity of the application was relevant. It's in the paragraph beginning "The core of Alito's argument...." Do you have a case that Lemieux is wrong here? If not, then I have no reason whatsoever to think that Lemieux didn't make the case--and if you missed Lemieux's case, which was written in English I'm really not going to trust that you're reading the legalese in Alito's decision correctly.
As for the other bit, what LB said. The legislature does not get to decide that it's OK to put an undue burden on the exercise of a right because some people may abuse that right if they're not burdened. That's the difference between the right and a privilege.
I guess what I find odd, Matt, is that Lemieux is not responding to what Alito thinks is the core of his argument, referenced in the blockquote. Lemieux does not address that argument, but rather merely stipulates that "these laws [including parental notification, by the way] are terrible because they impose burdens only where the familial situation is already terrible." Maybe that's sufficient to consitute compelling evidence that Alito's interpretation is strained. I can't say that I know. But it certainly isn't sufficient to show that Alito's reading of the O'Conner precedent is strained. And that's what I would have thought was at issue.
And shouldn't you be watching the Steelers anyway?
[Checking back in] Heath Miller, baby.
Part of the question is to what degree previous precedents constrained Alito's interpretation of an "undue burden." I don't know the answer to that, Lemieux's post looks to me to be based on the idea that previous precedents weren't particularly constraining, so that the 3rd Circuit Judges had a lot of discretion in figuring out if spousal notification would unduly burden a woman's right to an abortion. Two of them (I assume this wasn't en banc, but didn't check that assumption) thought it would, and one thought it wouldn't. Given what have been provided in this thread as obvious reasons it would (only likely to come into effect when wife thinks it wouldn't be a good idea to tell spouse reallly is important here) burden it, it's strange that Alito didn't think so. Or maybe precedents was more binding than I'm reading Lemieux as reading it.
You've definitely got the best punting QB in the NFL.
The extra "l" just indicates how important.
The blockquote isn't much of an argument, standing by itself. The first prong, requiring "severe limitations" rather than merely inhibiting "some women", really doesn't tell us anything about how to apply the law to a specific case beyond what O'Connor calls it when she votes one way versus what she calls it when she votes the other way (I'm not an O'Connor fan either.) All the meat of the argument is in the second prong, that Alito thinks this law is no more burdensome than the ones the Court upheld. Here, he doesn't have precedent to follow -- the SC hadn't decided a case (I don't think) where this sort of notification requirement was imposed upon an adult.
The fact that Alito didn't have precedent to follow is what made Lemeiux credit him with not being actually lawless -- it's Alito's judgment that this burden was no more onerous than the ones the Court had permitted. While I and the Supreme Court disagree, when Alito wrote his dissent itwas an acceptable position to take.
What brings it into the realm of 'strained' are the non-central issues you've been dismissing. Rather than defending his position on its own terms,he bolstered it in a couple of unseemly ways. First, he attempted to artificially reduce the apparent impact of the law by claiming that very few women would want to exercise their right to an abortion without informing their husbands. All women having abortions aren't the relevant population, though -- it's the ones who's behavior would be affected by the law, the 'few' who would want not to inform their husbands. If he were confident in his position, he wouldn't need to put a thumb on the scales like that. Likewise with the footnote: claiming that the law isn't burdensome because the burden can be easily evaded by anyone willing to lie to a court is a creepy, weird, fucked-up argument for a judge to be making. That's not an argument that a judge who really believed that the law he defended was not burdensome would need to make. So: the core holding, that this law was no more burdensome thanothers that were permissible? Wrong, in my view, but a matter of judgment. The tools that he used to shore up his opinion? Indicate that he knew he was reaching.
LB, I'm the last guy to imagine I can provide a definitive statement the Alito's ruling was correct. You are saying since there's no case law on adults, Alito is stretching by citing the juvelnile precendents. But what else to do? As I said above, you've made a far better case for the reading being strained than Lemieux did.
According to Lemieux one should conclude that the reasonable majority of the women to whom the law will apply, not including the carve outs cases stipulated in the law, will be unduly burdened. That, as I (and I think Matt) read Lemiuex, was his central argument. And his reason for this was that it stands to reason that women will be good judges of what unduly burdens them. It seems that you agree that if Alito had merely objected to that claim he would not be straining, correct?
So what makes Alito's position strained is that he gilds the lilly with a couple of (poor) secondary arguments, one of which is a footnoted aside. That seems to me a strained finding of straining, and (to get back to where we started on this) nowhere near justifying the "Alito cedes uterus ownership to patriarchy" rhetoric that we've been hearing.
And his reason for this was that it stands to reason that women will be good judges of what unduly burdens them.
No, it's that it stands to reason that the women who judge that they don't want to tell their husbands about their abortions will be the ones who by and large would be unduly burdened by this requirement. See the difference?
Your argument about the judge playing the role of the legislature seems to suggest that the legislature ought to get to decide whether a class of women would be unduly burdened by a procedure, rather than the courts. But that's not how it works when "undue burden" is written into judicial precedent--and I'm not saying I'm fond of that, but that's the hand everyone was playing. This is why talk of "legislating from the bench" is practically a Godwin violation in legal discussions; it would be simple if judicial decisions were simply a matter of implementing clear legal rules, but that's not how it works, and it's pretty clearly not how the Founders wanted it.
As for the patriarchy owning the uterus, it seems as though Alito to get where he got had to decide that "the husband's interest in the fetus' safety is a sufficient predicate for state regulation." That's from the Supreme Court decision--Kennedy signed onto it, and as you know he isn't the crazed liberal that Wingnutistan thinks he is. If you're annoyed about it, send him a note.
Heath Miller!
As I see it, what's at issue is the claim that
1) the women who judge that they don't want to tell their husbands about their abortions will be the ones this law effects
2) Telling your husband when you don't want to tell him is an undue burden
Point #2 is what seems at issue. And it's hard for me to view it as anythiing other than the position that women are good judges of what unduly burdens them. Hey, could be. But rejecting it doesn't seem 'strained' on its face. I would want more engagement with Alito's use of precedent before any claims -- particualrly hyperbolic ones -- about Alito's jurisprudence come on the table. Also, Alito did acknowledged the husband's stake in notification/safety was not a compelling state interest.
How I got into a discussion of the actual law here, I don't know. (Oh yeah, by getting goaded by an Atrios citation ... that was smart). Fontana's original quesion is much more interesting: namely, what the moral claims are around parental responsibility/obligation given the biolgical differences between men and women.
I'd agree with you about Fontana's question. I'm interested in what he thinks himself on the subject.
And it's hard for me to view it as anythiing other than the position that women are good judges of what unduly burdens them.
The claim is not that anything that women don't want to do is an undue burden. The claim is that in this case, if a woman doesn't to do it, it's probably an undue burden, not because women are infallible judges of what unduly burdens them, but because there are independent reasons to think that a woman who doesn't want to do will be burdened by this. This is not a difficult point to grasp.
Alito gets around it by saying that we know that women who are beaten get beaten for notifying their husbands of pregnancy, but that doesn't mean that women who notify their husbands that they got an abortion against his will won't get beaten. Now, as an abstract intellectual exercise there's something to this--don't commit the base rate fallacy! If lots of abused women were abused because of pregnancy notification, that doesn't mean pregnancy notification usually leads to abuse.
Unfortunately for Alito, his argument about the rarity of these cases actually counts against this argument. Wife-beating isn't totally uncommon, and if pregnancy notification is a frequent trigger, and only a few women won't want to notify their husbands of pregnancy/abortion, then those are probably mostly ones who will get beaten.
Throughout Alito seems to do his best to dismiss the arguments that this law could cause problems by saying that the evidence from similar types of situations isn't good enough. (See the remarks on the expert testimony.) So, how would plaintiffs be able to prevail without showing that women had actually been beaten because of the law, which requires letting the law go into effect? It's a catch-22.
From LB's 85, it's pretty clear that Alito knew that precedent didn't constrain him to take this view; it's his other philosophical or policy positions [maybe he doesn't think courts should be judging undue burdens] that led him to it. Given the position he was going for, and his cavalier dismissal of the evidence that this would lead to harm, I think that choice makes him an asshole.
The other point is potentially more interesting, but LB got it exactly right in 8 so what else is there to discuss?
Given the position he was going for, and his cavalier dismissal of the evidence that this would lead to harm, I think that choice makes him an asshole.
baa-- To continue the logrolling, Matt's got this one right. While I think the weakness of the side points I discussed above is more significant than you do, you are right (as I, and Lemeiux, had both acknowledged already), Alito's opinion that compelling women to inform their husbands of their abortions against their will is not an undue burden isn't lawless -- it was neither mandated nor precluded by precedent. That's the range in which judges have to use their judgment. The fact that Alito's judgment led him to the conclusion it did doesn't make him an incompetent or lawless judge (you'd need to look at his Eleventh Amendment jurisprudence for lawlessness), but it does make him an asshole, or, more charitably, someone I differ from sharply and deeply over how to constitute a decent society. Given that as a SC Justice, he will have to use his judgment, uncompelled by precedent or by unambiguous written law, to decide an awful lot of cases, the fact that he's an asshole is a good enough reason for me to oppose him.
And it's hard for me to view it as anything other than the position that women are good judges of what unduly burdens them.
A couple quick points:
1) Is that really such a crazy view? No one is arguing that anything women don't want to do counts as an undue burden, but that in the context of a marriage, where a certain degree of openness is generally expected, and where children are generally something tolerated if not celebrated, a woman who doesn't want to tell her husband probably has a good reason.
The juvenile precedent makes no sense; I realize that all Alito had to go on, but what do you have to think of married women to equate their agency with that of a 14-year-old girl?
2) Do my other reproductive decisions have to be cleared with my husband? If I decide to go on the pill, should the doctor have to tell my husband that I'm avoiding getting pregnant before he writes the prescription? What if I'm infertile due to having contracted HPV years ago?
Cala,
No, it's not a crazy view. But it doesn't seem like one that is an obviously correct reading of the law. I am legally uninformed, but it seems like the extremely negative reading of Alito really does require that he be using the precendent in the wrong way. So far I have not heard that, nor do I think it fair to declare precendent from juvenile cases simply inapplicable. On your #2, "do I have to" is a policy question. Should husbands be forced to inform their wives of a vascectomy. Seems like a very bad law to me. Is it an unconstitutional law? I suspect it would obviously not have been judged so in 1920, or 1940. What do we do now? For certain judges, it's a easy call: it seems like it's about privacy, privacy is a right, ergo, unconstitutional. For other judges its a hard case of melding some kind of respect for formalist interpretation with respect of prior law, even if that prior law seems ill-decided.
LB and Matt; I feel personally underinformed as to how 'undue burden' should be legally construed, but I get the sense that you both view the fomral criterion differently from Alito, and that he, not you is the one trying to use it as previously instructed by case law. If the criterion really is as Alito suggests:
she [O'C] wrote that "an ‘undue burden' has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision." She noted that laws held unconstitutional in prior cases involved statutes that "criminalized all abortions except those necessary to save the life of the mother," inhibited " ‘the vast majority of abortions after the first 12 weeks,' " or gave the parents of a pregnant minor an absolute veto power over the abortion decision. Id. (emphasis in original; citations omitted). She suggested that an "undue burden" would not be created by "a state regulation [that] may ‘inhibit' abortions to some degree." Id. She also suggested that there is no undue burden unless a measure has the effect of "substantially limiting access."
If so, then absent evidence presented about how much of a burden it actually imposes notification does not seem an undue burden as so defined.
Here's Alito:
The plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by Section 3209. As previously noted, Section 3209 contains four significant exceptions. These exceptions apply if a woman certifies that she has not notified her husband because she believes [FN4] that (1) he 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) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her.
These carve outs certainly minimize burden. All the more so if (again, as cited by Alito) the presumption of evidence for showing undue burden rests on the plaintiff.
courts should exercise " ‘deliberate restraint' " before finding an undue burden " ‘in view of the respect that properly should be accorded legislative judgments' "); [again citing Alito].
Maybe being within the law (granted by you both), following previously stipulated principles for determining an undue burden, respecting previously stated directives to employ restraint in finding undue burden, and then looking to see if the actual law contains carve outs to minimize burden, is just the sign of a person with wrong ideas about a just society. I would suggest instead that it indicates a judge who when specifically directed to be restrained about overturning the legislature, is restrained about overturning the legislature.
If so, then absent evidence presented about how much of a burden it actually imposes notification does not seem an undue burden as so defined.
Here's where I feel like a bit of a jerk, because I'm going to pull the "I'm a lawyer, you're not, and I've read the relevant opinions" card. Here's the plurality opinion from the Supreme Court. If you read section V.C., you'll see that plenty of evidence was presented, which the District Court, the relevant finder of fact, found compelling, of the extent of the burden. Alito wasn't operating in the absence of evidence, he was rejecting the evidence before him. (I don't understand your point about "presumption of evidence".)
And I wouldn't rely on restraint in overturning the legislature as a likely quality for Alito to have. His ideological counterparts are much more overriding-the-legislature happy than their more liberal peers.
I'm not a legal scholar either, but:
1) Not all juvenile precedents would have to go, but it seems that the rationale for parental notification laws derives specifically from the immaturity of the minor -- that the minor isn't old enough or sufficiently experienced to make such an important decision without the guidance of her parents. That doesn't seem like a rationale that should apply to adult women; their husbands just aren't in a parenting relationship to them.
If they were, such a rationale would apply, and perhaps one can make that argument; but it doesn't seem to hold with a lot of the rest of our typical practices (my point about other medical procedures).
2) I don't know too much of Alito, and I don't have much of an opinion on him yet (although it seems that 'Scalito' is more cute than an accurate appellation). But this argument (section 3209) referenced above doesn't strike me as compelling.
If one of the criterion is 'creates an undue burden', it seems wrongheaded to ask for proof that it would affect a large number of women. 'Undue burden', as I understand it, isn't the same as 'burden on a large number of people'; it's just beside the point to argue that it won't affect a large number of women. The vast majority of women won't need a late-term, emergency abortion to save their lives, either, but that doesn't mean that restricting such an emergency procedure wouldn't create an undue burden.
I can understand judicial restraint, and a desire not to overturn the legislature to push a progressive agenda. But when there is a way to sign off on an exception (via privacy), and instead the argument is that women are like juveniles in all the relevant ways and that it won't affect a lot of women anyway, one wonders if the intent is really about judicial restraint.
I'm not a legal scholar either, but
Isn't IANAL a given ATM?
(I ban myself for that one.)
You can play all the cards in your hand, that's fine!
I am just looking at Alito's dissent, Lemieux's comments, and the arguments provided. As I understand it, you are saying that Alito's point here:
The plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by Section 3209
is simply false, and that quite the contrary it was proven as proven could be for Alito's puposes. I can't judge whether that's correct, but if it is, that reflects very poorly on Alito. [[Indeed, it reflects so poorly on him that it seems an awfully surprising error for Alito to make. And if indeed he is simply ignoring the relevant finding of fact when he does not like it, I am very surprised that was not item one in the claim against him from Lemieux, and I am surprised you do not find it 'lawless' to do so]]
What I guess I still do not understand is whether you think Alito was a) correctly describing the O'Connor requirements for an undue burden, b) correctly describing the many O'Connor recommendations to give deference to the legislature when determing what an undue burden is, and c) is correct to look at the cases where the carve-outs do not apply in order to assess undue burden.
Why does this matter? Because when I read Alito's O'Connor citations in that dissent, I think that were I a judge, I might be compelled deny that notification (absent the carve-out cases) is an undue burden. And for all I've said here, I do not personally support notification. It's not a law I would support or want; but unless these O'Connor citations misread the case law (I wouldn't know) or Alito misrepresents the actual facts presented (I wouldn't know), I could imagine believing that the law gives me no cause to overturn the legislature.
First, what I'm saying is that Alito had no basis, other than his own whimsy, for requiring evidence pinpointing the number of women who would be unduly burdened. He had evidence, which the district court and the other judges were convinced by, that the number of women affected was significant but difficult or impossible to specify due to the circumstances. The requirement of proof of a number of affected women is nowhere in the law outside of Alito's whim.
What I guess I still do not understand is whether you think Alito was a) correctly describing the O'Connor requirements for an undue burden, b) correctly describing the many O'Connor recommendations to give deference to the legislature when determing what an undue burden is, and c) is correct to look at the cases where the carve-outs do not apply in order to assess undue burden.
Here, it is terribly difficult to discuss this with non-lawyers, because you simply won't believe us about the amount of ambiguity and freedom that judges have to deal with. Let me use an analogy to describe the precedential situation: Burdens are on a scale of 1 to 100. The Supreme Court has permitted burdens of up to 15 as not 'undue', and has overridden burdens of 67 or more as 'undue'. We can therefore know that there's a line, somewhere between 15 and 67, where a burden that is not undue changes to one that is. The burden in this case is somewhere in the range of 45 to 55.
Neither decision, that the burden is 'undue' or that it isn't, flatly contradicts prior precedent. Neither decision is compelled by prior precedent. A judge in Alito's position had no choice but to decide where, in the range between 15 and 67, the SC would draw the line of what burdens were undue. He wasn't 'compelled' by prior precedent to go either way -- the only thing he was 'compelled' to do was to use his independent judgment. To make his decision, Alito had to look at a great deal of evidence that women would be harmed by this law, and decide that that harm was not an undue burden. While I can't call the decision lawless, I do disapprove of it heartily.
Are the O'Connor remarks suggesting deference to legislature at all relevant here? Do they push the "burden-o-meter" down at all?
Not really. Courts are always supposed to defer to the legislature, whenever possible. One of their roles, of course, is to determine when some other law, in this case the Constitution, overrides the legislature and that deference becomes no longer possible. Talking about deference to the legislature is simply acknowledging that structure, of deference until the Constitution requires otherwise, but doesn't say much substantively about where the line is to be drawn.
A day later, I should say that my previous comment is wildly oversimplified, although still true in the context of this conversation. There are certainly things that could be said about the degree of deference to be given to a legislature in a particular circumstance that would guide a court's actions, (i.e, instructions to apply 'strict scrutiny' or 'rational basis' scrutiny), but the language under discussion here doesn't offer that kind of guidance.