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  • RE: Abort Stupid Laws

       November 01, 2005

    This was going to be a reply to Kris' latest post, but it started to outgrow the relatively brief confines of the comment field and so I thought it should be a post in its own right.

    Kris has an issue with Alito's dissent in Casey and she starts by quoting from Alito's reasoning as to why the spousal notification piece wasn't an undue burden and was therefore constitutional. Kris then goes on to argue that it's a stupid thing for the legislature to be wasting time on.

    I have a couple of thoughts about this.

    First, I think this case neatly illustrates the kind of judicial temperament we as conservatives should be looking for. See, the question before the Court was not whether this was a good law. The question was whether it was a constitutional law. The law itself was duly enacted by the Pennsylvania state legislature, answerable to the good people of that state. The exact wrong thing for a judge would be to look at the law and decide that it's stupid, and strike it down on that basis. This is the danger of activist judges, ones who twist the law to suit a predetermined (or desireable) outcome.

    What I'm trying to say is that we can have laws that we'd consider "good" (for instance, making it illegal for Ted Kennedy to ever open his mouth again), but those laws would be unconstitutional...and we can have laws that we'd consider "bad" (my nominee for this is legal abortion) but they'd be constitutional. The danger we run into is equating bad with unconstitutional. For instance, I think abortion is bad. But absent a new and major finding of fact, it's constitutional. I think that allowing a judge to overturn laws he thinks are stupid turns the idea of representative democracy on its head. If the people want to make stupid laws, they should have that right. I mean, are we going to trust in the idea of We The People or aren't we?

    So I think based on the law, the established precedent, and an understanding of the proper role of the judiciary, Alito made a good decision.

    Second, let's examine this spousal notification issue. Kris wonders:

    The legislature wasted their time on drafting a law that applies to virtually no one and has no teeth for the few people it does apply to. What was the point? Was it just a legislative attempt to put a chink into abortion rights? That's what I think. But is that the job of the Pennsylvania legislature? Should they be working for the people of Pennsylvania or working for the pro-life or pro-choice lobby?

    To put the law in context, in Pennsylvania (as in many if not most other states) a husband can be responsible for child support for any children his wife has while they're married even if they are not his. Put more simply, the law recognizes (or creates, if you prefer) a responsibility of the husband for such children. Now put that fact aside for a minute.

    As the law sat before the spousal notification bit was passed, you could have a situation where the husband really really really wanted children but the wife did not. Since such a formula is guaranteed to result in the wife getting pregnant (through the application of Murphy's Law), there's a bit of a pickle. For all the talk about "reproductive rights" and so forth, the rights of the father in this situation are being swept aside. The mother could abort (or kill the baby, if you prefer) and the father wouldn't even have the minor courtesy of knowing about it. In other words, in the law you have a situation where a father would be compelled to care for a baby he didn't want yet be barred from caring for a baby he would want.

    Now, there's an argument that a father gives up a certain amount of individual freedom in such matters when he gets married. But then, why doesn't the mother? I think it tilts the playing field a little unfairly when one person in the situation can compel action from another. Plus, it's not even as if the spouse had any real course of action under the Pennsylvania law. He couldn't keep the abortion from happening, even if he's willing to take 100% of the responsibility of raising the child.

    Based on that, a spousal notification requirement, even one as filled with exceptions as the one in question in Casey, is not an attempt to do away with abortion "rights" (indeed, by Kris' own argument it isn't an undue burden as it "[applied] to virtually no one."). I think instead it's an attempt to bring the husband/father into the equation, as a partner and not a dupe. The representatives (accountable to the people) apparently felt that way too and so they enacted the law. I don't think you have to be pro-choice or pro-life to think a husband should at least know if his wife is aborting his baby.

    Posted by John Tant at November 1, 2005 08:21 AM

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    #  November 1st, 2005 8:26 AM      kris
    I understand Alito's argument and I don't disagree with him. I just think the law, as written, is pointless. I agree that husbands should know if their wife is having an abortion, but this law does absolutely nothing to make that happen. The wife is required to merely give her word. The law has no teeth. It's a huge waste of time to write laws that have no way to be enforced.  
    #  November 1st, 2005 8:38 AM      JohnTant
    Well, the statement the wife would sign attests to the notification under threat of legal penalty, so I don't know that I'd say it wouldn't have "teeth." And at the margin, you'd have wives look at that and decide the marginal utility of sneaking an abortion doesn't outweigh the possibility of her husband finding out about it and wondering why he wasn't notified.

    Based on the legal theory and precedent of the time, passing a law that would have had more "teeth" (for instance, requiring spousal agreement and not just notification) would have been struck down. I don't see this as the legislature wasting time with a dumb law, but rather trying to work within the confines of a law that a fickle Sandra Day O'Connor passed down.  
    #  November 1st, 2005 8:41 AM      kris
    The wife should have to a) provide a witness to the notification or b) have the husband sign a statement saying he was notified.

    it's just foolish to think that a women who would sneak around an have an abortion behind her husbands back would suddenly be honest enough to not lie about notifying him.

    i'm not debating the goal of the law, but the way it was enacted does nothing for society  
    #  November 1st, 2005 9:16 AM      JohnTant
    Well, if the wife has to either provide a witness to the notification or get the husband's signature, than that amounts to the de facto requirement that the spouse agree to the abortion, and not just know about it...which would create an undue burden under O'Connor's rules. For instance, a spouse could refuse to sign the statement. Or he could refuse to meet with any witnesses (or the potential witnesses could refuse to witness the notification out of a moral objection to the planned abortion). Etc etc. So while you're correct that such measures would in fact imbue the law with "teeth," such teeth would be held to be unconstitutional as an undue burden. Now if the statement the wife signed were mailed to the house or the husband's work, that might be worth considering. And true, while there's a way around that, there's actually a way around most every law...a point which brings us to:

    In re your second point (love getting into that legal jargon!), I don't think that saying because a law won't garner 100% compliance makes it a stupid law is an argument. No one is saying all women who would be predisposed to sneak an abortion would be magically inclined to tell their husbands about it. But what it does do is address problems at the margin by putting some allowable legal penalties into the situation. Plus it allows some redress for a husband if/when he finds out the wife aborted his kid.  
    #  November 1st, 2005 1:10 PM      BVBigBro
    What if a married man fathers a child with another woman? If that woman agrees to give up the child to the father, can the man compel support for the child from his wife?  
    #  November 1st, 2005 1:15 PM      james
    If that woman agrees to give up the child to the father, can the man compel support for the child from his wife?

    nope. it's a one way street.
    #  November 1st, 2005 1:17 PM      BVBigBro
    Well then, I would argue that the original law fails equal protection.  



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