Alito’s Casey Dissent

I’m working on a longer piece about it, but let me make a couple quick points about Alito’s lone dissent in Casey, in which he upheld a law that required women to sign a statement notifying their husbands unless they meant a fairly narrow set of exceptions. This judgment was, of course, subsequently rejected by the Supreme Court, which also voted to nullify the notification requirement. While Alito’s argument was not a lawless application of the “undue burden” standard (which, at the time had been set out in a couple of O’Connor concurrencies that the 3rd Circuit assumed for complex reasons was at the time the law of the land), it was very strained, and certainly suggests that (at the very least) he would permit a significantly greater power for states to regulate abortion than is currently the case.

The core of Alito’s argument that the provision does not constitute an “undue burden” is his acceptance of the state’s argument that the spousal notification provision would only affect a small percentage of women seeking abortions. This is, first of all, a strange argument on its face. Indeed, precisely what makes these laws (whether spousal or parental notification) so odious is that for all intents and purposes they only apply to women in the worst familial situations; if you have a good relationship with your parent or spouse, you’re almost always going to tell them anyway. More importantly, in addition to being illogical it is also wrong as a matter of law. As the plurality opinion noted in Casey:

The analysis does not end with the one percent of women upon whom the statute operates; it begins there. Legislation is measured for consistency with the Constitution by its impact on those whose conduct it affects. For example, we would not say that a law which requires a newspaper to print a candidate’s reply to an unfavorable editorial is valid on its face because most newspapers would adopt the policy even absent the law. See Miami Herald Publishing Co. v. Tornillo. The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.

Yes. And as the plurality opinion demonstrates in exhaustive detail, “[t]he spousal notification requirement is thus likely to prevent a significant number of women from obtaining an abortion. It does not merely make abortions a little more difficult or expensive to obtain; for many women, it will impose a substantial obstacle.” In addition, the plurality also notes that the state’s purported interest in the spousal notification provision is based on anachronistic and patriarchal conceptions of marriage:

The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.

Again, this is absolutely correct, and Alito’s acceptance of this state interest as legitimate is troubling to say the least. There’s another puzzling part of Alito’s dissent. For the most part–a perception confirmed by LG&M’s crack unpaid legal research team–is that Alito, while very conservative, is not a careless or unprincipled justice. My arguments against him are philosophical, not based on a claim that he’s incompetent or unfit. But this footnote is extremely odd:

In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private (the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so.

Uh, excuse me? Admittedly, he says he’s not “taking it into account,” although this is disingenuous–why make the argument in a lenghty footnote (and the argument goes on past this excerpt) if you don’t think it’s relevant? Anyway, this doesn’t make a lick of sense–the law’s constitutionality should be looked at more generously because women can just get around it of they’re willing willfully file illegal false statements? Apparently, Alito likes the fact that the law would only burden women who are honest enough to follow the law; this is just bizarre. But this is the kind of oddity that often crops up when discussing laws regulating sexual behavior and reproduction; the fact that the state isn’t serious about applying the laws (even when the purported state interest is serious indeed) is sometimes asserted to be a factor in favor of the constitutionality of these laws. Of course, it’s quite the opposite.

What this opinion means in projecting the future is, of course, uncertain. There’s currently a kabuki dance going on among conservative blogs who support Alito largely because they want Roe overturned, but on the other hand (knowing how unpopular this would be) note that this dissent is not definitive evidence that we would vote to overturn. And the latter point is strictly accurate; since overturning Roe is not an option he had as a Circuit judge, we don’t know for sure. But evaulating how a justice will rule, short of the kind of paper trail that would prevent someone from being nominated in the current context, requires making probabalistic judgments based on the evidene we have. And as his strained, extremely broad reading of the “undue burden” test makes clear, the question is not whether he’ll expand the discretion of the states and Congress to regulate abortion; the question is how much. (And given his analysis in the dissent it is virtually certain that with respect to a case on the Court’s docket that he will vote to make facial challenges to abortion laws much more difficult.) And it certainly provides troubling evidence that he would be willing to go along with overturning Roe, particularly if the Court uses the death-by-a-thousand cuts method advocated by Rehnquist in Webster.