Casey at the Bench

Samuel Alito's controversial abortion ruling


While new Supreme Court nominee Samuel Alito seems to enjoy a great deal of respect across the political spectrum, the effort to paint him as an ogre who would plunge us back into the Dark Ages has already begun. Much of this effort has focused on Alito's 1991 vote on the Third Circuit Court of Appeals in Planned Parenthood v. Casey: dissenting from the other two judges on the panel, Alito voted to uphold Pennsylvania's law requiring a married woman to notify her husband before having an abortion. That provision was later struck down by the Supreme Court. Let's clear something up: Just because Alito voted to uphold this law doesn't necessarily mean he agreed with it, only that he concluded it was constitutional. In his dissent, he based this conclusion on a meticulous analysis of the standard set down by Sandra Day O'Connor to determine whether an abortion regulation imposed an "undue burden" on the woman. He did not use his dissent as a platform to attack Roe v. Wade. Overall, Alito's record does not suggest that he is a zealot who would put ideology above the Constitution and judicial precedent. But what if Alito did personally approve of the Pennsylvania law? "The thought of elevating the judge who endorsed this patriarchal provision to the nation's top court is enough to drive me to drink," fulminatesPhiladelphia Daily News columnist Jill Porter. In Slate, William Saletan accuses Alito of treating women like girls who need permission from an authority figure to exercise a right. Yet the statute did not require a husband's consent to an abortion. It didn't even require the clinic to notify the husband. The woman simply had to sign a form attesting that she had told her husband about the abortion or that she qualified for an exemption for one of several reasons including domestic violence and rape. (This has not kept Porter and others from asserting that Alito's ruling would have imperiled battered women.) In theory, the woman could be prosecuted later for making a false statement. In practice, the law was essentially unenforceable, serving mainly as a symbolic reminder of the woman's moral obligation to inform her husband. Is this about a husband's "ownership" of his wife's body, or is there a more complex issue at stake? In this case, the woman is carrying a fetus to which the man contributed half of the DNA. If her husband is aware of the pregnancy, he may well regard the fetus as his unborn child, not just a lump of cells—much the way the mother does if she plans to carry it to term. Husband notification looks like an affirmation of patriarchal authority to some; to others, excluding the husband from the decision looks like glaring gender inequality. And yet, despite the man's contribution to the pregnancy, it's the woman who undergoes the medical procedure. All this makes notification a wrenching issue. (This is equally true for unmarried fathers; but the law's focus on husbands may have been partly pragmatic, since the partner of a pregnant single woman may not be easy to identify.) Despite claims that Alito's position places him "out of the mainstream," polls show that more than 70 percent of Americans believe a woman's husband or partner should be notified before she has an abortion. Now-retired Drexel University sociologist Arthur Shostak, who has written about men's experiences with abortion, told me in an interview several years ago that, while pro-choice, he felt that a man should have an opportunity to "plead his case" if he wants the woman to have his child. Am I advocating husband notification laws? No. If I were a legislator, I'm not sure how I'd vote on this. My point is that favoring a fairly toothless law which tells wives to notify their husbands before having an abortion does not make a man a Neanderthal or a patriarchal oppressor. When a man and a woman enter a potentially procreative relationship, they surrender part of their autonomy. Men certainly do: While a woman can choose abortion, a man has no choice to opt out of parenthood after conception. (It's also worth noting that while spousal consent for vasectomies is not mandated legally, it is required by many doctors). Women, at the very least, have the moral obligation to include their partner in any decision regarding pregnancy, barring special circumstances such as abuse. It will be unfortunate if the attacks on Alito's ruling send the opposite message by suggesting that making a unilateral decision on this issue is a matter of female autonomy.