‘Outrageous’

This article is from the archive of The New York Sun before the launch of its new website in 2022. The Sun has neither altered nor updated such articles but will seek to correct any errors, mis-categorizations or other problems introduced during transfer.

The New York Sun

President Bush’s nomination of Judge Samuel Alito to the Supreme Court had barely hit the wires when the New York Times worked itself into a lather over what it characterizes as the judge’s “extreme position that all of Pennsylvania’s limitations on abortion were constitutional,” including the “outrageous requirement that a woman show that she had notified her spouse” that she planned to have an abortion. It will be illuminating, when the Senate gets into the case, to see whether a majority of the upper house is equally outraged.


The case involved a Pennsylvania statute called the Abortion Control Act of 1989. It first passed the Democrat-controlled House, 143 to 58, then the Republican-controlled Senate, 33 to 17, and then was signed by the Democratic Governor Robert Casey. One of the things it required was that a woman sign a statement that she had notified her husband before a doctor could perform an abortion.


It was not giving the husband a veto. The law exempted women from having to notify their husbands if the abortion was a medical emergency, if her spouse wasn’t the father, if the father couldn’t be located after diligent effort, if the pregnancy was caused by a sexual assault by the husband and had been reported to a law enforcement agency, or if the woman had reason to believe that bodily injury was likely to result from notifying her spouse.


“Whether the legislature’s approach represents sound public policy is not a question for us to decide,” Judge Alito wrote writing his dissent from a ruling striking down the law. “Our task here is simply to decide whether” the Pennsylvania law “meets constitutional standards.” The governing jurisprudence of the time was the opinion of Justice O’Connor – the swing vote in post-Roe abortion decisions – who decided abortion questions on whether there was an “undue burden” on the woman. The majority ruled that the spousal notification requirement constituted an “undue burden” according to Justice O’Connor’s standards, while Judge Alito dissented.


When the case reached the Supreme Court Justice O’Connor voted as the majority of the appeals court had predicted. Though Judge Alito was overruled, was he outrageous? The view that he was comes from a newspaper that believes, as we do, that fathers are responsible for the welfare of their children after they emerge from the womb. It has editorialized against “deadbeat fathers” who don’t pay child support and has urged the federal government to crack down on them.


The Pennsylvania law was not giving fathers a right to stop an abortion, merely the right to be warned that the child they would have had to support while it was in the womb and after it had been born was being terminated. The spousal notification issue was close in the Supreme Court. While the majority ruled it unconstitutional, four justices dissented – Chief Justice Rehnquist, Justices Thomas and White and TGS (The Great Scalia). So to suggest that one side of this debate is “outrageous” no doubt says less about the judges than about the institution feeling outraged.


The New York Sun

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