Scalito = Bad News

48 thoughts on Scalito = Bad News

1. Pingback: protein wisdom

2. Well, I suppose it was inevitable that Alito would get tarred by liberals as an “activist”. As a point of clarification, Jill, I’d note that Alito didn’t write the majority opinion in Casey. He joined parts of the majority opinion and then wrote a separate concurrence/dissent, which was actually quite narrow and restrained. In fact, the one thing that everyone who knows Alito seems to agree on is that his jurisprudence as a whole is quite restrained and generally free from the ideological fire-breathing you see in opinions like Scalia’s.

3. Here’s the dissent. And here’s the Pennsylvania statute.

   Rather than relying on press releases from Planned Parenthood, I’d recommend commenters read the primary documents.

   On a totally unrelated note, here’s a bit about SCOTUS nominee Samuel Alito, who joined the majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), which held

   […] that an Iranian woman seeking asylum could establish that she had a well founded fear of persecution in Iran if she could show that compliance with that country’s “gender specific laws and repressive social norms,” such as the requirement that women wear a veil in public, would be deeply abhorrent to her. Judge Alito also held that she could establish eligibility for asylum by showing that she would be persecuted because of gender, belief in feminism, or membership in a feminist group.

   Just thought I’d mention it.

4. Thanks Jon. I misread the Times article. Corrected.

   Just thought I’d mention it.

   …and I updated the post before you even had to. I do read your blog from time to time…

5. Jill,

   I don’t see that Alito was distancing himself from precedent with respect to the subjective “undue burden” test; rather, it seems that he was applying it (although the Supreme Court further outlined “undue burden” in their own subsequent Casey decision).

   See, for example, Akron v. Akron Center for Reproductive Health. The O’Connor/White/Rehnquist dissent outlines “undue burden”:

   The “unduly burdensome” standard is particularly appropriate in the abortion context because of the nature and scope of the right that is involved. The privacy right involved in the abortion context “cannot be said to be absolute.” Roe, [462 U.S. 416, 464] 410 U.S., at 154 . “Roe did not declare an unqualified `constitutional right to an abortion.'” Maher, 432 U.S., at 473 . Rather, the Roe right is intended to protect against state action “drastically limiting the availability and safety of the desired service,” id., at 472, against the imposition of an “absolute obstacle” on the abortion decision, Danforth, 428 U.S., at 70 -71, n. 11, or against “official interference” and “coercive restraint” imposed on the abortion decision, Harris, 448 U.S., at 328 (WHITE, J., concurring). That a state regulation may “inhibit” abortions to some degree does not require that we find that the regulation is invalid. See H. L. v. Matheson, 450 U.S. 398, 413 (1981).

   I’m really asking, I could be wrong: Can anyone outline how Alito’s position was a radical departure from precedent?

6. I’m really asking, I could be wrong: Can anyone outline how Alito’s position was a radical departure from precedent?

   I can answer this better when I’m not halfway through a bottle of Pinot Noir (yeah, SCOTUS-related depression). But, in his opinion, Alito wrote that it was not an undue burden to require women to get their husband’s permission to have an abortion. The Supreme Court ruled that this was clearly an undue burden on women. Requiring women to get their husband’s permission for a medical procedure goes further than simply inhibiting the right to abortion to some degree. It places major women (major as in “not minor”) in a position where they are treated as second-class citizens without full Constitutional rights. That’s a definite departure from previous law on privacy rights.

7. Maybe I’m confused, but how is a requirement that your husband be informed an undue burden? There are escape hatches for cases where your husband is not the father or when you fear physical violence from him or anyone else. This doesn’t apply to boyfriends anyone else. And no one has veto power over the woman’s choice. I know that where I live, can’t have a vasectomy without his wife’s permission. When you get married you get benefits and obligations to the other person.

8. Alito wrote that it was not an undue burden to require women to get their husband’s permission to have an abortion

   My understanding that it isn’t a matter of permission just informing him. There is a world of difference between the two!

9. Simply, a healthy marriage is one in which pregnancies are discussed. Even more simply, this is an issue that is not appropriate or fit for state involvement.

   Enforcability? Bad law. Fine interpretation based on precendence, perhaps, but bad law.

10. With respect to the partial birth case, it’s important to note that he added a concurrence emphasizing that he was “compelled” to strike the law. I don’t think there’s any question he’ll vote to uphold once he’s on the Court.

11. But, in his opinion, Alito wrote that it was not an undue burden to require women to get their husband’s permission to have an abortion.

    I think this is an overstatement. EricP has correctly pointed out that the statute at issue in Casey dealt with spousal notification, not spousal consent, and there were several exceptions even to the notification requirement, e.g. if the husband was an abuser. On parental consent generally, Alito wrote:

    In the portion of her opinion concluding that the two-parent notification requirement with judicial bypass was constitutional, Justice O’Connor wrote (110 S.Ct. at 2950 (emphasis added)): “In a series of cases, this Court has explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor’s limited right to obtain an abortion.” I interpret this statement to mean that a judicial bypass option prevents a consent requirement (which would otherwise amount to an absolute veto) from creating an undue burden. This statement is therefore fully consistent with my view that Justice O’Connor did not find that an undue burden was created by the two-parent notice requirement without judicial bypass.

    That seems a fairly reasonable interpretation of what the prevailing precedent was at the time.

12. Again, Jon, enforcability. How does a woman prove that she’s notified her husband? That he’s an abuser? Which kinds of abuse count and which don’t?

13. Again, Jon, enforcability. How does a woman prove that she’s notified her husband? That he’s an abuser? Which kinds of abuse count and which don’t?

    I wondered about the same thing in terms of proving that he was informed, I haven’t seen what proof is required. The abuse, requirement simply requires that the woman sign an affidavit that she fears any physical danger from anyone.

14. Again, Jon, enforcability.

    The enforcability would be in terms of the doctor. He/she would be required to make sure the the husband was informed before performing the procedure. I guess, he/she could simply call the husband and ask if he had been informed to satisfy the laws. Presumably it is the same with parental notification laws.

15. and I updated the post before you even had to. I do read your blog from time to time…

    The “Just thought I’d mention it” line wasn’t meant to sound flip. It just cut and pasted that from my site because I’m too lazy to retype.

16. Again, Jon, enforcability. How does a woman prove that she’s notified her husband? That he’s an abuser? Which kinds of abuse count and which don’t?

    Lauren, these are all policy arguments. I’m referring to, and Judge Alito was deciding, matters of law. I know liberals sometimes to fail to distinguish between the two, but there is a difference.

17. Anyone else notice that so far it has been men (mostly libertarian/conservative) defending the issue/judge discussing this with the two bloggers who are obviously feminists by definition (it is their darn site) who have problems with the law and judge. Hopefully some more people will join in soon. I don’t want Jill of Lauren to feel that we are ganging up on them on their own site.

18. Anyone else notice that so far it has been men

    I usually notice that it’s men who defend this sort of thing (men are overwhelmingly the ones who defend the “pharmacists for life” on some of the threads I’ve seen, not necessarily here) and I’m struck by the detachment they seem to have — arguing over details. I’m sure it’s easy to be detached and interested in details when you know these people aren’t really going to do shit to you….

    Not that I am bitter 😉

19. If by “this sort of thing” Anne, you’re referring to spousal notification, then it’s not just men who defend it- in fact, 72% of Americans, and clear majorities of practically all demographic groups (including both conservatives and liberals) are in favor of it.

    I’d note for the record that nowhere in this thread have I stated any opinion, positive or negative, on spousal notification statutes generally or the statute at issue in Casey speficially. What I’ve been defending is Alito’s 1992 interpretation of Supreme Court reasoning as articulated by Sandra Day O’Connor, which reasonable people may disagree with, but which was not radical or extreme given the context and precedent at the time.

    I think all of this just underscores the fundamental weakness that liberals are coming from in opposing the Alito nomination: N.B. that the lead tactic appears to be harping on a very measured, narrowly-written dissent from 13 some years ago, and that even Jill’s post which pronounces Alito to be “really, really, really bad” includes four Alito opinions which are “good” from her feminist perspective. Absent something major and unforeseen, Alito is going to be confirmed to SCOTUS.

20. I usually notice that it’s men who defend this sort of thing (men are overwhelmingly the ones who defend the “pharmacists for life” on some of the threads I’ve seen, not necessarily here) and I’m struck by the detachment they seem to have — arguing over details. I’m sure it’s easy to be detached and interested in details when you know these people aren’t really going to do shit to you….

    Not that I am bitter 😉

    How about this for attached. I’m not married but I have been with the same woman for 10 years. If she had an abortion without telling me I would rank it right up there with cheating on me. The fact that she wanted the abortion wouldn’t bother me at all, I really have no problem with abortion (I guess it is the detachment issue but I see no problem with getting rid of a glob of cells). It is the issue of not discussing it with me/letting me support her that would lose my trust. What other secrets is she keeping from me? When you have commited your life to someone, you deserve and dare I say have the right to be involved with these issues.

    This is an “attached” opinion that does affect me as a man.

21. FYI, the anti-Alito talking points that Jill and many others have been linking to are dissected here.

22. I expect my boyfriend to be honest with me. I know that he’s an adult. If he kept something secret from me, yes, my feelings would be hurt. But I don’t expect the law to force him to tell me if he’s getting, say, a vasectomy.

    He’d either have a good reason for not telling me, or he’d have misjudged me and thought he had a good reason to not tell me, or he’d be a lying jerk and I’d know to not trust him.

    None of those are good reasons for the law to keep him from doing what he wants with his own body.

23. In regards to Jill’s bad decisions:

    -Held that the Establishment Clause was not violated by a city holiday display which featured a menorah, a creche, Santa Claus, and other religious and secular holiday symbols.

    From SCOTUSblog:

    A majority opinion in ACLU v. Schundler, 168 F.3d 92 (3d Cir. 1999), holding that the Establishment Clause was not violated by a city hall holiday display that contained a creche, a menorah, secular symbols of the season, and a banner proclaiming the city’s dedication to diversity.

    Various seasonal icons plus “a banner proclaiming the city’s dedication to diversity” does put a different light on things. Personally I can’t think of a better way to “frame” Christmas celebrations (which is a national holiday) myself than to include everything possible and hang a banner that effect says that they are all equal. What would you different?

24. In regards to Jill’s bad decisions

    Whassat? Did she finally decide to date me, uh, I mean, Jeff?

25. Just to weigh in on the “spousal notification” issue, I have to ask this:

    Does it make a difference if your spouse tells you something important on his/her own, or if s/he is compelled to by law? How would you feel if the only reason you were informed is because the law gets into your family life and forces that kind of communication? Honestly, I’m not sure which would make me feel more shitty: the knowledge that my spouse went and did something as major as having an abortion without telling me, or ONLY telling me because the law said they had to.

    I firmly believe that you cannot *legislate* good spousal/family relationships. Yes, perhaps a man might feel he has the “right” to be informed that his wife is having an abortion, but forcing her to do so by law is unnecessarily intrusive into private lives. How many men would wonder if their wives told them because they wanted to discuss it or because they were compelled to do so? Not great for anyone with ANY sort of trust issues in their relationship.

    Last thought: it is a VERY small step from notification to pemission. I’m just sayin’….

26. He’d either have a good reason for not telling me, or he’d have misjudged me and thought he had a good reason to not tell me, or he’d be a lying jerk and I’d know to not trust him.

    None of those are good reasons for the law to keep him from doing what he wants with his own body.

    I wouldn’t support such a law myself, but then again I’m a libertarian and don’t support at least 60+% of laws which step in and regulate too many human to human interactions. The question is, is it an unreasonable (and unconstitutional) burden if required by a law enacted by a legislature elected in a democracy.

    At the end of the day, even under this law, my girlfriend would have no legal obligation to say a thing. Neither would your boyfriend before any surgical procedure. We are talking about married couples who have basically pledge their lives to each other. For every legal benefit involved with being married, the same benefits that homosexual couples are now fighting for, there may and are requirements as well.

27. Bah, my comment is awaiting moderation; this one might be too, but I’d like to add that if you don’t want to tell someone something, the difference between notification and permission is pretty meaningless.

28. Legally required notification and permission, that is. I really need to go to bed. Lemme copy the comment that’s awaiting moderation and see if it’ll take.

    But is that the government’s business, EricP? Is it the government’s business to be intimately involved in decisions like that? Where does it end?

    I should think that the notification/permission stuff doesn’t even apply to couples that trust each other — those wives would probably tell their husbands anyway. This is only punishing to women who are afraid to tell their husbands, as far as I can tell, and I can’t see a purpose for it other than to remind women that their bodies are subject to control from men. The parental consent stuff has the same dynamic — girls that have a good relationship with their parents are probably going to tell them, but girls who are victims of incest or abusive parents are put in danger by parental consent requirements.

    Jon C., I mean restrictive anti-choice stuff in general. And “not just men” doesn’t mean much to me — plenty of women are anti-choice/anti-feminist/misogynist. I’m just saying that men seem awfully interested in hashing out details of things that don’t directly affect them (men can’t become pregnant) in a way that seems detached to me. It’s a personal impression and it’s not exactly a great feeling.

29. Does it make a difference if your spouse tells you something important on his/her own, or if s/he is compelled to by law? How would you feel if the only reason you were informed is because the law gets into your family life and forces that kind of communication? Honestly, I’m not sure which would make me feel more shitty: the knowledge that my spouse went and did something as major as having an abortion without telling me, or ONLY telling me because the law said they had to.

    That is a tough question. Like I mentioned, I’m not a big supporter of this law or, truth be told, many laws that people on the left support. I think the government regulates way too many inter-personal issues.

    But for the sake of debating the nominee’s positions, it helps to look at Alito’s reasoning:

    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.

    This doesn’t exactly sound like a fire-breathing anti-abortion position. Scailia himself would never have written this.

    The position is that some women might feel compelled to have an abortion by their perceived position in life. That position might be different if she had the support of her husband but she might be afraid to burden her husband or assume his position without asking him. The law is probably an unreasonable interference with personal lives (the libertarian position) but judges need to obey the law. I see no reason why it is unconstitutional and it is certainly not on its face “bad”.

30. the difference between notification and permission is pretty meaningless.

    Huh?

31. This doesn’t exactly sound like a fire-breathing anti-abortion position.

    Either he’s an antiabortion zealot or he thinks that pregnant women are uniquely incapable of making choices about their own lives. If you were told that you had terminal cancer, you would not be compelled to tell your partner. Nor would you be compelled to tell your wife, if you had one. Hopefully, you would tell your partner, because you’re a decent person. But the law doesn’t intervene in that choice, and a doctor that took it upon his or herself to tell your spouse or partner without your permission would be in big trouble. I can’t see any justification for saying that a spouse is more entitled to know that his wife is going to have an abortion than he is to know that he’s going to be raising his small children alone after his wife’s imminent death.

32. Jill, you’ve rounded up a handful of decisions in which Alito has established one heck of a record for one type of decision: the type of decision which draws heavily and equally upon the most basic and direct interpretation of the constitution and prior judicial standards.

    If confirmed, he’ll author some opinions that will have conservatives livid, and others that will get all the liberals in a tizzy, but I predict he will perform his role as Supreme Court Justice with a very consistent originalist philosophy.

    He’s also expressed that he believes in the difference between “a bad law” and “bad law.” In other words, he realizes that not every law that is constitutional is good, but the duty of the court to establish a law’s constitutionality, not its “goodness.” And while the court can call attention to laws that must be addressed by the legislature, it must not get into the business of effectually altering the constitution to fix the problem.

    Now I really must go. I’ve just started The Exorcist on DVD in order to get down to the “good part” right about midnight…

33. Either he’s an antiabortion zealot or he thinks that pregnant women are uniquely incapable of making choices about their own lives.

    Let’s keep in mind, he didn’t write the law. People elected by US citizens did and the law only affected citizens in the state that had elected them. As a judge he is REQUIRED to apply the law as written. In considering the constitutionality of the law, he had to base it on the decisions of Supreme court which had already said that parental notification laws were legal as long as they only required notification and not authorization. His decisions were consistent with the law and jurisprudence as it stood at that time. When the case was reviewed by the SC, they changed found it unconstitutional. However when he made the decision he was basing it on what existed at the time.

    I’ve been pretty active in this thread and I’m pretty new here. I don’t want anyone assuming too much about me. I’m a libertarian from Quebec Canada. As far as I’m concerned abortion is just another medical procedure. In Quebec, it is paid for by the government unless you choose to have it in a private clinic, in which case it costs $150 (the government picks up most of the cost). Any person over the age of 14 is legally responsible for their own health care and it is illegal for a doctor to discuss your health with anyone including your parents without permission. That includes sexual issues like prevention, STDs and abortion. I support this situation completely.

    However, I think that judges have to obey the law of the land and shouldn’t be judged negatively for doing so.

    On the topic at hand, I would see having abortion of my “child” without consulting me as a slap in face and a betrayal of trust. I can’t foresee any situation where I wouldn’t support her decision but not to involve me at all as an act of distrust that would destroy a relationship. I’m not even married, just in a long term relationship.

    Do I like this kind of law? No, but it was enabled by the elected representatives of the people of the state and doesn’t prevent women from acting on their rights. The hand of government in this case is relatively light.

34. At the end of the day, even under this law, my girlfriend would have no legal obligation to say a thing. Neither would your boyfriend before any surgical procedure. We are talking about married couples who have basically pledge their lives to each other. For every legal benefit involved with being married, the same benefits that homosexual couples are now fighting for, there may and are requirements as well.

    I still see no reason to impose that kind of law on married people. The same reasons I mentioned for my boyfriend not wanting to tell me about a vasectomy would apply if he were my husband. I still should not be able to stand in the way of what he wants to do with his body.

    As for the difference between notification and permission being meaningless: if women have to notify their husbands before getting abortions, there will be women who end up not getting abortions or and perhaps some who will just avoid legal abortions. Yes, their husbands won’t legally be able to stop them in this case, but if these are women facing a genuine threat of abuse for getting pregnant/having an abortion/either, I somehow doubt they’ll be in any kind of better position. Perhaps a few will discover that their fears were unfounded, but I really don’t believe that most women would want to hide this kind of thing just because they’re silly or thoughtless.

    I just can’t wrap my head around this idea. Really, I love my boyfriend madly and I’d be devastated if he kept something so major secret from me, and if I found out about it, our relationship would probably be over – but I’d take a relationship with the potential for deceit rather than a relationship where I couldn’t tell the difference between sharing out of trust and sharing out of force any day.

35. I just can’t wrap my head around this idea. Really, I love my boyfriend madly and I’d be devastated if he kept something so major secret from me, and if I found out about it, our relationship would probably be over – but I’d take a relationship with the potential for deceit rather than a relationship where I couldn’t tell the difference between sharing out of trust and sharing out of force any day.

    Fine. But the point is, that’s something you should take up with the legislature. The court’s job is to decide if the legislation is constitutional.

    It’s funny, really, that many of the arguments ostensibly against Alito in this thread are really performative arguments about just how important it is he be confirmed, particularly if we’re interested in saving the judiciary from the creeping superlegislation that to many here is already second nature.

36. In considering the constitutionality of the law, he had to base it on the decisions of Supreme court which had already said that parental notification laws were legal as long as they only required notification and not authorization. His decisions were consistent with the law and jurisprudence as it stood at that time.

    That only has any bearing on this case if you assume that the relationship of a woman to her husband is the same as the relationship of a child to her parents. The law does not generally assume that, which is why wives can get bank accounts and drivers’ licenses and have their ears pierced without their husbands’ permission. Can you not see why it’s profoundly misogynistic to equate the position of a wife with the position of a child?

37. That only has any bearing on this case if you assume that the relationship of a woman to her husband is the same as the relationship of a child to her parents. The law does not generally assume that, which is why wives can get bank accounts and drivers’ licenses and have their ears pierced without their husbands’ permission. Can you not see why it’s profoundly misogynistic to equate the position of a wife with the position of a child?

    The Pennsylvania law he supported mandated spousal notification, not spousal consent. Notification and consent are not the same thing.

38. What does that have to do with anything? EricP said that Alito said the Pennsylvania law was Constitutional because it only required notification, and the Supreme Court had ruled that parental notification laws were constitutional as long as they didn’t require consent. So he’s claiming that the position of a wife is analogous to the position of a child: the law pertaining to wives was ok because it was the same as the law pertaining to minors. And if that were true, then wives would need permission to do all the things that children need permission to do, such as get their ears pierced and go on field trips. Luckily, this is not the case, because the mere idea is horrifying to anyone who is not a nutjob.

39. There was a story in Dear Abby a few weeks ago written by a worker at a Planned Parenthood clinic. A very young teen girl came to the clinic and the workers told her to tell her parents, although she claimed that her father would kill her if she found out (from what I can tell, this was of the workers’ discretion, not mandated by state law. I could be wrong), but they convinced her to tell. Her father beat her up so badly that she miscarried and was hospitalized for months.

    Here’s the link:
    http://deseretnews.com/dn/view/0,1249,615155817,00.html

    I tend to be moderate on abortion, but I oppose most of the current legal restrictions, because they hurt women who are the least likely to be able to have a healthy pregnancy and baby – poor women, young girls and victims of abuse. When I first heard about parental consent/notification, it troubled me that girls as young as 11/12 are pregnant and at that age it is likely that they have been molested. However, it also troubles me the story that I included above and another story about Spring Adams, a 13 year old impregnated by her father, who tried to get an abortion but the father shot her to death when he found out, because he opposed abortion. Any situation in which a child is sexually abused is an extremely tragic one and it’s difficult to see sound legal solutions.

    Anne – I agree. Also, I think it’s interesting that the law only mandates married women to tell their husbands and does not touch women who are pregnant out of wedlock. It reminds me of the way that marital rape was/is not considered rape. IMHO, the vast majority of Americans are fairly old-fashioned when it comes to sex roles: that after years of antirape activism, many people still believe that if a woman goes to a party or dresses sexy that she deserves to get raped and that only nuts and sluts allege sexual harrassment.

40. EricP @ 17 notes it’s just men defending Alito and spousal notification.

    Well, here’s one man attacking Alito and his defense of the PA law. Sally @ 35 does a good job of explaining the problems with defining a woman’s rights over her own body as subject to the influence of the husband. Besides, all the libertarians (EricP mentioned them) I know might consider spousal notification an undue government intrusion in a private, personal relationship.

41. What does that have to do with anything? EricP said that Alito said the Pennsylvania law was Constitutional because it only required notification, and the Supreme Court had ruled that parental notification laws were constitutional as long as they didn’t require consent.

    I don’t thing anyone is trying to equate women with children. When a judge is trying to decide whether a law is constitutional he/she has to look at precedence. Considering how little case law there is on abortion and that the Supreme Court decisions have tended to a little vague in order to get the 5 votes they needed, you end up examining rulings that are dissimilar in order try to guess what the SC would rule. In this case, his finding was that since the SC didn’t find an undue burden in requiring that a third party be informed in the other case, then this requirement wouldn’t cause an undue burden either.

42. the difference between notification and permission is pretty meaningless.

    Huh?

    EricP, I said if you don’t want to tell someone something before that. Meaning, if you are afraid you’ll be beaten up, killed, etc. if you tell someone something, it doesn’t really matter if you need their permission or if you just have to tell them per the law. Does that make sense? Either way, they are told what you don’t want them to know. (Now, it can be said that just notifying them (maybe by phone) might keep you out of danger, but law enforcement isn’t very good at keeping women out of danger from abusive partners/spouses.) So I’m trying to get across that it’s two different things, but they both can put people in danger. I haven’t had coffee yet.

43. EricP, I said if you don’t want to tell someone something before that. Meaning, if you are afraid you’ll be beaten up, killed, etc. if you tell someone something, it doesn’t really matter if you need their permission or if you just have to tell them per the law. Does that make sense? Either way, they are told what you don’t want them to know. (Now, it can be said that just notifying them (maybe by phone) might keep you out of danger, but law enforcement isn’t very good at keeping women out of danger from abusive partners/spouses.) So I’m trying to get across that it’s two different things, but they both can put people in danger.

    The law had an escape clause for that. If she feels any danger from anyone as result of the telling, she can sign a paper stating so and the abortion can proceed without notification.

    Anyway, the law was deemed unconstitutional. It is a non-issue except to discuss it in a hypothetical sense.

    I haven’t had coffee yet.

    Me neither, soon hopefully;).

44. Funny, I’ve never heard of a judge who didn’t legislate from the bench. Some of you act as if it’s a new concept or something.

45. In this case, his finding was that since the SC didn’t find an undue burden in requiring that a third party be informed in the other case, then this requirement wouldn’t cause an undue burden either.

    Oh, give me a break. The relationship of minors to parents isn’t just that of one party to another. It’s a special kind of relationship of dependency. It’s in fact one of the few relationships of dependency and formal inequality that our society recognizes as legitimate: in almost all other relationships, the state says that the parties are formally equal. You can’t draw analogies between the parent/child relationship and any other relationship, unless you are trying to say that the other relationship is unequal and that one party is dependent upon and subject to the discipline and supervision of the other. Unless you are assuming a formally unequal relationship, it’s an analogy that has no bearing on a situation and can’t legitimately be used as a precedent.

    In general, when a court or legislature tries to analogize your relationship with anyone to a child’s with her parents, you should run away as fast as you can. You’re about to be oppressed.

    The law had an escape clause for that. If she feels any danger from anyone as result of the telling, she can sign a paper stating so and the abortion can proceed without notification.

    No, actually. She could get a waiver only if she said she’d been the victim of physical abuse. The fact that she feared future physical abuse wouldn’t be enough, and presumably she could be prosecuted for lying about her history if she feared for her future safety. Nor would she be able to get out of it if she was separated but not yet divorced, and the baby wasn’t her husband’s. It wouldn’t matter if she and her soon-to-be-ex-husband were involved in a nasty custody battle, and notifying him about her sex life would give him ammunition against her. (And of course there’s no reciprocity, since he’s not required to tell her about his sex life.) It doesn’t matter if he’s a vindictive asshole who would call her pro-life boss and tell her she’s a baby-murdering slut. There are lots of good reasons for a woman not to tell her husband, and Alito thinks none of them are as important as his fantasy that the little ladies can’t live their lives without male supervision.

    Anyway, the law was deemed unconstitutional. It is a non-issue except to discuss it in a hypothetical sense.

    That’s exactly the point. Many of his worst rulings have been overturned by higher courts. That’s the whole reason that it’s so terrifying that he’s being appointed to the hightest court.

    I can’t for the life of me understand what your stake is in defending this guy, EricP. Has it occurred to you that he’ll have essentially no power over your life and massive power over mine?

46. No, actually. She could get a waiver only if she said she’d been the victim of physical abuse. The fact that she feared future physical abuse wouldn’t be enough,

    Nor would she be able to get out of it if she was separated but not yet divorced, and the baby wasn’t her husband’s.

    I suggest you you look up the actual wording of the law we are discussing. Neither of the above reflect the law we are talking about. There could have been similar laws in other states and maybe that is where the confusion comes from.

47. Laws are like raw sausage … judge’s boil ’em, fry ’em up, and serve them to you, the unsuspecting consumer. Marbury v. Madison – the courts must say what the law is. Alito will serve up law that is not designed to help individuals (pregnant or abused women, employees, etc.). Goodbye right of privacy, hello a less bitter Scalia (he’ll be in the majority a lot more). This sucks. He must be stopped.

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