Alito and Abortion

Seems like all I have time for these days is to link to interesting or informative articles. A lot of talk is flying around Alito and whether or not he would overturn Roe v. Wade. Paul Kemp (a lawyer and author) read the particular case in question (Casey v. Planned Parenthood) and offers his legal perspective.

"Abortion is a hot-button issue for many folks. So when the President nominated Alito to replace Sandra Day O'Conner on the Supreme Court, his written opinions relating to abortion naturally came under scrutiny. Since then, most of the left-leaning blogs/commentators I've heard/read, have prophesied in dire tones about how Alito would overturn Roe v. Wade (for those of you not in the U.S. -- Roe is the seminal case in abortion rights law) and thereby allow states to outlaw abortions altogether. To support this claim, they point to Alito's written dissent in Casey v. Planned Parenthood. I've read Alito's opinion in Casey and it doesn't support that claim. In fact, I find Alito's dissent persuasive, moreso than the majority opinion. I'll explain why.

At issue in Casey was a Pennsylvania statute that regulated access to abortion. The statute required that, before undergoing the procedure, a woman receive certain information relating to the procedure and its effects, that she not receive the abortion until 24 hours after receiving that information, that minors obtain parental consent before undergoing the procedure (with provision for a judicial bypass), and that a married woman sign a statement that she has informed her husband of her intent to proceed with the abortion (or meeet one of the statutory exemptions from this requirement, such as, a reasonable fear of physical abuse, husband is not the father, etc.).

In analyzing this issue, the Third Circuit Court of Appeals applied the standard applicable to abortion regulations as set down by the Supreme Court (Justice O'Conner, in fact)-- namely, whether the regulation at issue imposes an "undue burden" on a woman's freedom to decide whether to receive an abortion. The Third Circuit majority applied the undue burden test to each of the regulations set forth above and found that all of them were constitutional (i.e., they did NOT impose an undue burden) except the spousal notification requirement. Why? The majority reasoned that some subset of women who would otherwise obtain an abortion would not do so out of fear of various forms of retaliation (financial, physical, psychological, etc.) by their husbands if they, in fact, were forced to inform their husbands. Thus, the regulation imposed an undue burden on that subset of women. This focus on a subset of women was intentional by the court (in fact it was necessary if they were to reach their conclusion). In the majority's view, "where it is clear that a governmental regulation will restrict the ability of some women to choose an abortion, we believe that the issue of whether there is an undue burden turns on the degree of restriction that the affected women will experience."

Alito filed a dissent in the case. He agreed with the majority's holding on the rest of the regulations (namely, that each was constitutional) but disagreed with the majority's holding that the spousal notification requirement was unconstitutional. Why? His opinion gets at the problem with the undue burden test as applied by the majority -- namely, the unit of analysis. Alito pointed to evidence introduced at trial that tended to show that of all abortions performed, married women account for only about thirty-percent. And that of that thirty percent, about ninety-five percent do, in fact, inform their husbands. And that of the five percent remaining, some percentage would qualify for one of the statutory exemptions to the spousal notice provision. That means that of all married women who want abortions, some percentage less than five percent will be deterred from getting an abortion they otherwise would get but for the spousal notification requirement.

You see the unit of analysis problem here? The majority is applying the undue burden test not to all the women regulated by the statute (i.e., married women) but to a subset of those women, namely, those whose circumstances would make them want to avoid notifying their husbands. Alito, on the other hand, is analyzing the issue by looking at the universe of women regulated by the statute. In this case, I find Alito's reasoning much more persuasive. Why? Because if the analysis of undue burden focuses not on ALL those regulated by the statute (as Alito did in his opinion) but instead on a subset of those regulated by the statute (as the majority did), the outcome of the test is determined by the definition of the subset. Essentially, any judge that wanted a regulation to fail the undue burden test could say this: "Let's find a subset of the regulated persons for whom the regulation creates an undue burden, and then ask if the regulation creates an undue burden."

The problem with that kind of analysis is obvious: the logic has no limit. It will always be true that some subset of regulated persons is unduly burdened by a given regulation. In fact, that kind of analysis leaves LOTS of room for judges to predetermine results by carefully selecting the subset the judge will use as his or her unit of analysis. Alito's analysis has the virtue of taking that choice out of the judges' hands -- ALL of those regulated by the statute are to be the unit of analysis.

Anyway, this is not and is not meant to be an endorsement of Alito. I don't yet know enough about him. Nor is it an argument that Pennsylvania's law was good public policy. I merely wanted to vent a bit about the partisan misrepresentation that goes on all too frequently. I also wanted to point out that there was nothing in Alito's dissent in Casey that suggested to me an intent to overturn Roe or that otherwise indicated a judge run amok. Finally, I also wanted all of us to think about the appropriate role for a federal judge in a democracy.

A postscript: I've seen similar misrepresentations on Alito's views of the Family Leave Act. Democratic partisans shout that Alito is "against the FMLA." But I believe Alito's opinion on FMLA was limited to the question of whether or not the federal government, through Congress, could impose the requirements of FMLA on state employees (i.e., those workers who are direct employees of a state). If true, this does not show hostility to FMLA. It simply suggests a great deference for state's rights and federalism(whether rightly or wrongly). Even in Alito's world, the FMLA would continue to apply to all private employers."

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