New York Diary

Rant, With Apologies

William Saletan has written a well-informed and disturbing article that picks apart Alito's opinion in Planned Parenthood v. Casey. I urge everybody to read it.

The truth is, a lot of the debate about Alito (or any Supreme Court nominee these days, it seems) is about the single issue of abortion. The Planned Parenthood dissent, too, is being read in this way. Social conservatives are pleased to discover that Alito wants to make abortions more difficult to obtain; liberals are infuriated by his understanding of state interest over private rights.

The truth is, though, that Planned Parenthood is not about abortion per se. It isn't about the legality of abortion, or about protecting a developing fetus, or about the definitions of viable life. The case, and Alito's dissent, is plain and simple a case about women and their decision-making powers. What Alito does in Casey is to argue in favor of a law requiring women to inform their husbands if they are going to have an abortion. Other laws might deal with when, legally, such an abortion may be obtained; the law in question (18 Pa. Cons. Stat. Ann. § 3209 (Supp.1991), which is, for reasons that escape me, "not available online from any official site") deals only with whether the woman has to implicitly ask permission if the abortion is already legal.

Note those words: ask permission. This is a case about whether or not women are thoughtful, reasonable, considering adults, or whether, like 10-year-olds, they cannot be trusted to look after their own good and must therefore confess to their husbands when they choose to do a completely legal thing. Importantly, Casey is not, for example, a case about murder or crime against some unborn child. The legislature has already decided the circumstances under which an abortion is legal, and the circumstances under which it legally constitutes murder or some other crime. Having decided as a society that something is not wrong, can we trust a grown woman to make a rational decision within that preexisting legal framework? The implication of Alito's dissent is that we cannot. (To be sure, abortion is a hot-button issue and where society--and legislatures, as representatives of society--stands may be up for grabs. Nonetheless, Casey is simply about whether or not, insofar as abortion is legal, a woman can be trusted to get one on her own.)

Now, surely it is true that we should want to curb the number of abortions out there. But why we should suggest that a woman's husband is more likely than the woman herself to make the "right" decision in the difficult case in which abortion is considered, or that he is more likely to protect either the woman or the fetus or both, is beyond me. We do not require grown adults (of any variety) to consult with others on any of their other legal actions--for the very good reason that we recognize that adults can make their own decisions (and face the consequences) themselves. If Alito is trying to protect women from some decision that they may regret in the future, then he is contravening this fundamental American principle of self-responsibility under a small, liberal (in the classic sense), and not overly protective government--and in the process he is saying that women can't be trusted in their decisions as much as men should be. This is patronizing, wrong, and indeed anti-American.

If, on the other hand, Alito's decision stems not from a desire to "protect" women but rather from a desire to limit the ease with which abortions can be had (which is, after all, the reading that all the pols and interest groups are giving it), then he has far o'erstepped the bounds of reasonable judicial restraint. After all, what is at issue in Casey is not whether or not abortion is a good thing, or whether or not it should be legal (or under which circumstances it might be limited). Casey is, remember, about a notification law. If the premise of Alito's dissent stemmed from his simply deciding that abortion is wrong in some or all circumstances, then, this most certainly constitutes an instance of a judge treading on the toes of the legislature (which has allowed for legal abortion) and thereby legislating from the bench. (We should note here that in some cases, it is entirely appropriate for a judge to question the legality of abortion; those are cases, like Roe v. Wade, in which the Constitutionality of abortion is explicitly at issue. Here it is not at issue, however, and for Alito to assume something that is in contradiction with the laws on the books is simply bad law.) In this case, Americans of all political stripes should be wary of Alito's self-professed hatred for "activist judges."

The fact is, I find Saletan's analysis compelling and Alito's decision both un-American and morally wrong. But even more strongly, I find myself annoyed by the weight that this single issue holds in American politics today. I simply can't understand why this issue alone is enough to persuade or dissuade such an enormous portion of the population that a nominee is suitable to sit in judgment on the Supreme Court. Don't get me wrong: I am no fan of Alito, as must be obvious by now. But I am at least as disturbed by his dissents that "eviscerate" Title VII of the Civil Rights Act, that allow people (not named on a warrant) to be strip searched by police who are looking for somebody else, and that make it harder to bring claims of sexual discrimination in court, as I am of his opinions on abortion. How come we're not hearing about any of that stuff?

posted by Skay @ 11:12 PM