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Tuesday, November 01, 2005

Alito and spousal notification
Posted by Jill | 7:05 AM

Yesterday I tried, without success, to find Samuel Alito's original dissent in Planned Parenthood of SE Pennsylvania vs. Casey. Today, the New York Times, in an article about the case, provides some excerpts which show just how cynical Alito's dissent was (emphases mine):

Judge Alito's two colleagues, Judges Walter K. Stapleton and Collins J. Seitz, surmised that Justice O'Connor, casting the controlling vote on the Supreme Court, would find this provision unconstitutional.

They noted that most women seeking abortions were unmarried, and thus unaffected by the provision, and that among married women, most chose to involve their husbands in the abortion decision. But for those married women who feared the consequences of telling their husbands, the two judges said, the burden was indeed severe and failed to meet the test.

Judge Alito disagreed. The number of women who would be adversely affected by the provision, admittedly small, was unknown, he said, and the evidence of likely impact was insufficient to provide for striking down a new law on its face, before its impact could be tested and demonstrated. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.

Judge Alito's dissenting opinion went on to note that "needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern." But the Pennsylvania legislature took that concern into account, he said, in writing into the law an exception for a woman who "has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Further, he said, the law would be "difficult to enforce and easy to evade," because it required no proof beyond a woman's word that she had notified her husband.


This is astounding. On the one hand, he claims that a law cannot be held unconstitutional because the number of women harmed is unknown; but yet he supports a law the benefits of which are also unknown. If he wants quantitative proof, then let him trot out guys who wanted their wives to be incubators for them against their will and show how they were damaged.

Then it gets worse, because he essentially says "Ah, fuck it -- the law is difficult to enforce, so what's the harm in having it?"

And this is a brilliant legal mind?

Alito's dissent all but admits that the purpose of the statute -- and his support for it -- is based solely on the idea that it's perfectly OK to fuck with women's heads if it gets them to think twice about having an abortion.

Now, I've never had an abortion, but I have had those months in which I've bargained with God to please send my period and I'll never do X again...even though I've been a scrupulous user of contraception. The idea that abortion is a decision women make lightly is just utter bullshit. Yes, there are a few women who have had multiple abortions who ought to take better control over their own efforts to prevent conception. But if Alito and the other members of the Christofascist Zombie Brigade are going to say that a law such as the spousal notification law in Pennsylvania isn't a big deal because it only affects a few women, then why is it so important to include in the first place?
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