So Samuel A. Alito, Jr. will be the new Supreme Court dude. Emphasis on “dude”. Or emphasis on “fascist”. Whatever. Anyway, I’ve been reading his infamous dissent on Planned Parenthood v. Casey, the one in which he upheld a spousal notification law for abortions, and it’s important to hash this out. The conservative defense of Alito will be that it wasn’t his job to decide whether the law was good public policy or not, merely to decide whether it was constitutional; and on the latter, he was upholding what he thought were the precedents on abortion at the time. That’s not implausible; see this passage:
Taken together, Justice O’Connor’s [earlier] 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.”
In Alito’s defense, it’s sometimes hard to figure out exactly what Sandra Day O’Connor intends in her opinions—often only she knows for sure—and prior to Planned Parenthood, the Supreme Court had placed restrictions on abortion that, while not “severe,” probably did prevent some women from getting abortions. So Alito’s ruling partially stems from previous Supreme Court sloppiness, it seems. Meanwhile, the plaintiffs who opposed the spousal notification law had not shown that the 5 percent of women who don’t notify their husbands would in fact be harmed by the new law. (The law leaves an out for women who have “reason to believe that notification is likely to result in the infliction of bodily injury upon her.”) On one level, then, Alito’s opinion is sort of reasonable.
But on another level, it’s not. It’s ridiculous. It’s dangerous. It’s wrong. According to Alito, because only a small number of women might face an “undue burden” in theory, but that’s not known for sure, the law is just fine and dandy? What kind of legal principle is that? The Supreme Court obviously disagreed with Alito, noting that regardless of whether 95 percent of women would be unharmed by the law, “[l]egislation is measured for consistency with the Constitution by its impact on those whose conduct it affects.” And that includes women potentially affected.
This all matters very, very much because in an upcoming abortion case, Ayotte v. Planned Parenthood, the Supreme Court will decide just this sort of dry procedural issue: on whether litigants need to show that an abortion restriction places an “undue burden” on women in the abstract—and is therefore unconstitutional—or must show that it places an “undue burden” in a particular case. Alito would appear to side with the latter view, and a ruling this way would make it very hard for women to challenge abortion restrictions (litigants would have to show that parts of the law affect them personally), and the net effect would be that Roe v. Wade, for all practical purposes, would be crippled—states could leave restrictions on the book for many years before ever being challenged.
The political issue here is that over 70 percent of Americans support spousal notification laws, and if Democrats try to fight on that terrain, they’ll face an uphill battle (but one very much worth fighting). But there’s so much more at stake here.