Notification vs. Consent


As long as I'm in the awkward business of semi-defending Alito's ruling in Casey, which upheld a spousal notification requirement I don't personally approve of, I may as well make a note of Garance Franke-Ruta's post on the subject at TAPped. Franke-Ruta describes the "notification" requirement as in effect indistinguishable from a "spousal consent" requirement. Which, given the description she borrows from the National Abortion Federation, is certainly understandable:

Spousal notification—would require a married woman to present a statement signed by her husband, attesting that he knows about her intention to have an abortion, before she could undergo the procedure.

Now, what's key here is the requirement to present a statement signed by the husband that he's been informed. It would give the spouse an effective veto on the decision to abort—he could always refuse to sign. But if you follow Franke-Ruta's link to the Casey decision, that's not at all the same as the characterization of the relevant provision in O'Connor's opinion:

§ 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;

Now, that's a huge difference. Because, within the context of the relevant precedent, someone who tried to claim the first, de facto "consent" sort of provision, didn't constitute an "undue burden" would certainly be stretching it. Now, ultimately, the court ruled that the requirement that the woman make the notification certification was also an undue burden. But ruling the other way, as Alito did, strikes me as much less of a stretch in this case, when you consider the various exceptions (among them fear of abuse).

As I said, I wouldn't be in favor of the authentic-notification rule either. But upholding that rule says a lot less about a judge than upholding the kind of rule Franke-Ruta is talking about would.