Tuesday, November 01, 2005

The Trouble with Casey

There are good reasons for liberals to be concerned about the nomination of Samuel Alito to replace O'Connor on the Supreme Court; I recommend Dahlia Lithwick for a crash course on Alito's significant decisions, but this New York Times Op-Ed is an exceptionally objective supplement.

As always, the nominee's position on abortion is going to play a central role in the confirmation process. However, it would be irresponsible -- for both liberals and conservatives -- to conclude that Alito will vote to overturn Roe v. Wade based on his dissent in 1991's Planned Parenthood v. Casey.

"Casey challenged a Pennsylvania law that required a woman to receive extensive information about the fetus and the abortion procedure, to wait 24 hours, to sign a statement of informed consent, and—most controversially—to tell her husband about her intention to have an abortion. A panel of three appeals judges on the Third Circuit upheld all the regulations except for the spousal notification. Alito, who was on the panel, dissented from the part of the ruling that struck down the requirement that women tell their husbands before obtaining an abortion," summarized Emily Bazelon in Slate.

Bazelon claims "Alito's opinion in that case would have limited the right to abortion more severely than Sandra Day O'Connor, whom he will replace if confirmed, has ever been willing to do." That is a categorically incorrect conclusion.

The requirement would not restrict abortion in the slightest. It is essential to note that the husband's consent was not required, merely a notification. (Additionally, there was no requirement for proof of notification aside from the woman's statement that she had complied. If you're asking yourself, "Then what's the point?" you have already discovered the toothlessness of both the law and the dissent.) I disagree with the Supreme Court's eventual ruling that this somehow meets O'Connor's standard of an "undue burden." (There should be a judicial bypass option, however.)

Furthermore, I would argue that the law does not go far enough, restricted as it is to married women. Since a woman must endure the hardship of pregnancy, the final decision ought to be hers. However, does the father have no right whatsoever to know that his partner is carrying his unborn child? Does he have no right to an opportunity to discuss the situation with the mother and attempt to dissuade her if he wishes?

If a father has no right to know that he has impregnated a woman and that she has decided to terminate the pregnancy, then I would also suggest that a father has no responsibility, financial or otherwise, if the woman should unilaterally decide to carry to term a child that the father does not want.

Abortion rights should not include the option to leave fathers out of the discussion. That's not feminism, that's monstrous.

16 comments:

little-cicero said...

"then I would also suggest that a father has no responsibility, financial or otherwise, if the woman should unilaterally decide to carry to term a child that the father does not want."

I believe abortion is wrong and should be against the law unless if there is harm to the mother, but ethically I would challenge this statement in that the father should have a say if he has made the commitment to take care of and stay for the child. Obviously marriage would be a good litmus test of commitment, so it would make sense that, if abortions must exist, the husband aggrees to the practice. Only those to be responsible for the child should be able to end its life. One then cannot impregnate any woman, leave her, and come back to oppose her abortion. If the father is out of the picture, unreliable or uncommitted, he should not have the same say as the woman who must raise the child.

I won't say anything about my moral objections unless if you give me permission. The ensuing debate could get ugly!

Andy said...

I think you will find if you delve into this discussion further that banning abortions and criminalizing women not only won't eliminate abortions but will create a host of new crises. You do not have the right to legislate your morality over the wombs of women you don't even know. If you want to reduce abortions, you should work to reduce the kinds of situations where women find themselves compelled to terminate pregnancies. For example, you should support universal health care coverage, FMLA (with additional pay requirements) and other initiatives so that the decision to have an abortion is never one of financial necessity. You should also advocate for honest sex education in the public schools, including birth control options. Research shows that the old conservative canard that teaching kids about sex makes them have sex is nonsense. Everyone has sex, whether they're educated about it or not. Educated people make smarter decisions, and the research shows that "abstinence-only" educated kids have sex and unwanted pregnancies at rates equal to or higher than their colleauges. This is just a drop in the comprehensive ocean of reasons why conservative opposition to abortion is counter-productive to its goals.

Matthew said...

"If a father has no right to know that he has impregnated a woman and that she has decided to terminate the pregnancy, then I would also suggest that a father has no responsibility, financial or otherwise, if the woman should unilaterally decide to carry to term a child that the father does not want."

I agree. 100%

Nathan said...

Just as a what if...

What if the father is the father of the mother? Is it "monstrous" to not notify the abusive father? Nothing is ever black and white. Judicial bypass is there for a reason.

To little Cicero: What about IVF babies? Must the mother track down the anonymous donor if she decides to terminate the pregnancy for health reasons?

In the end, I'd be more convinced of Alito's ethical durability if he had also come out against capital punishment in his record (perhaps he has and I haven't seen it?). This is one of my pet peaves with regard to conservative philosophy (and I have PPeaves with the left, too): right to life unless you're being executed.

I propose a judicial truce. Legal abortion, a strong second amendment (Lots and lots of guns! Afterall, if we're responsible enough to terminate a pregnancy, we're responsible enough to handle firearms), the banning of capital punishment, and what else? Let's get all of these hot button issues off the table. In the grand scheme of things (malaria, poverty, global warming, crime), they're trivial (there I've said it!) and shouldn't subsume all other debates, or determine the outcome of those debates indirectly.

Andy said...

I think I did stipulate that a judicial bypass option was a necessity. And Little Cicero, your comment about whether a father who is not married to the mother or not a commitment sort of guy "should not have the same say" is actually irrelevant in this circumstance. The law, which both Alito and I would support, does not grant the father any "say" regardless of his status; it merely gives him the right to be notified of the situation. I fail utterly to see how that is a burden on the woman other than fulfilling a necessary, if admittedly potentially difficult, responsibility.

p.p. said...

Andy, there are so many things I disgree with in your post, that if I try to address them, my head may explode. So, I will not delve into it. I'm just drained from thinking about it.

And, Matthew, I disagree 100%.

Andy said...

Well, I would be curious to hear a lawyer's explanation for why a law that extends to a biological father the most minimal courtesy yet does not require his consent nor proof of his notification is either an "undue burden" or a restriction on abortion. Far from taking away a woman's right, it protects fathers from deception.

Andy said...

Okay. I will accept this argument from Richard Schragger in Slate today:

The 3rd Circuit majority in Casey accepted expert testimony that this provision—even with its exceptions—would impose an undue burden on a woman's right to choose to undergo an abortion. The majority observed that most married women would voluntarily tell their husbands of their plans, but that in circumstances where they would not, requiring notification could result in spousal coercion. The exception for bodily harm, reasoned the majority, did not take into account the myriad forms of psychological coercion a husband could apply to a wife, including withdrawal of financial support or threats to dissolve the marriage. Moreover, the exception for spousal sexual abuse required that women report their abuser to the police, an action experts testified was likely to lead to further abuse and one a battered woman was unlikely to take. The majority of the Casey judges, taking account of the "real world consequences of forced notification," concluded that "because of the nature of the marriage relationship and the emotional character of the human response to pregnancy and abortion, the number of different situations in which women may reasonably fear dire consequences from notifying their husbands is potentially limitless."

My concern is lessened by my agreement that a married woman probably IS likely to notify, if not consult, her husband about an abortion unless there was a special circumstance. Still, I'm bothered in principle that the Court felt a woman has a right to terminate a pregnancy and zero responsibility to notify her husband.

p.p. said...

Andy, in very, very basic terms, what's in my body is mine. When "it" is expelled, it is ours.

little-cicero said...

THIS is why abstinence before marriage is the best policy. You currently carry on the debate over "what's in my body is mine" while ignoring that when two people are married, they become one, in a sense. Thus if a married couple is discussing whether or not a "fetus" should be allowed to live, they have an equal say because they have an equal stake. I'm speaking of what may be ideal, not what may be possible. It is when out of wedlock pregnancies occur that the woman, being a seperate entity, argues that the "fetus" is a part of her body, and in her own juristiction. A child should be in the juristiction of a mother and a father, but if the father is absent, he should have no such juristiction.

p.p. said...

"Thus if a married couple is discussing whether or not a "fetus" should be allowed to live, they have an equal say because they have an equal stake."

Thankfully, the S.Crt. has more sense than that. They believe in the privacy right of the individual.

Andy said...

Okay, I think William Saletan in Slate helped me understand where I went wrong. Yes, the principle that a father should be notified if his wife intends to have an abortion is a good one, but there's a litany of good reasons why making that a requirement is not only unnecessary but an insult to women. Sometimes idealism must bow to reality. Like, daily.

Esther said...

What about the insult to all the women who die because they were aborted. I mean, they're going to be women someday.

I know, I'm the ultra conservative on this issue and I'm sticking my neck out in a place where it probably is not a good idea to do that. But since the only other conservative in here is not making arguments concerning the bottom line, I'm going to.

Bottom line: I believe that all humans are created equal. "Created" defines to the moment when everything necessary to make a person is there: i.e. conception (not necessarily a Christian doctrine in this sense). Equal means (in the Lockian sense) that we are all reasoning, thinking beings (not the egalitarian sense that we should have equal outcomes). Put the two things together and you get the Lockian idea that since we are all equal not one of us has the right to take the life of another, even if that life is not yet born. And that leads to my ideas of government.

However, before you get really mad at me for being a woman who stands against abortion, and assume that I am all for overturning Roe and bringing on "Bork's America," let me point out something else. I also believe that consent of the governed is a requirement in government. Consent of the governed is derived from equality, and it places a tension upon equality. The only way to change these laws is to persuade people that they are wrong and then they will want to change them. That's why I haven't moved to Ireland yet.

Agh, and I thought my brain was fried today . . .

little-cicero said...

Thanks Esther, I had the same thoughts but was reluctant to share my moral argument (I wasn't up to the ensuing debate. This post seemed to have more of a legalist approach to the question, so I stayed away from the moral question Now why aren't these liberals taking shots at you! This is unfair!
Let me just summarize the debate: Abortion advocates believe that the "fetus" is a bodily appendix of sorts without which they can live, and often times live much more happily in life. Opponents believe that the "unborn baby" is a being only separated from status of living child by less than nine months, and that life begins at the child's conception, when two become one. Abortion, then, is either the removal of an unwanted appendix, or the destruction of innocent human life.

Andy said...

Little Cicero, you have not summarized the debate in the slightest. I am always amazed that conservatives, who decry government overreach at every turn, find it horrifying that the government might want to control the sale of machine guns but have no problem determining once and for all, for every woman in every situation, what she can and can't do with her uterus. This has nothing AT ALL to do with whether abortion is right or wrong; the question is, is it wrong for the federal government to take that decision away from women? The answer is a resounding yes. If you want to eliminate abortions -- which I would support -- don't ban them. Work to eliminate the reasons why women find themselves needing to get one. Give them real choices, instead of taking them away.

little-cicero said...

We should make all efforts to reduce abortions in this manner, but, to use an old clique, women don't have the right to kill their abusive husbands, so why should they have the right to kill an unborn fetus. The reason my summary is accurate is that, if you believe that a fetus is a human life, you should be willing to prevent the destruction of that life as you would prevent the destruction of a murderers life. I can never comprehend how it is permissable to kill a fetus, but it's appalling to kill a murderer. This is about the value of life, and the definition of life.