Jewish World Review Nov. 4, 2005/ 2 Mar-Cheshvan 5766

Charles Krauthammer

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Distorting Sam Alito | Pop quiz: Which of the following abortion regulations is more restrictive, more burdensome, more likely to lead more women to forgo abortion?

(a) Requiring a minor to get the informed consent of her parents, or to get a judge to approve the abortion.

(b) Requiring a married woman to sign a form saying that she notified her husband.

Can any reasonable person have any doubt? A minor is intrinsically far more subject to the whims, anger, punishment, economic control and retribution of a parent. And the minor is required to get both parents involved in the process and to get them to agree to the abortion.

The married woman just has to inform her husband. Even less than that. She just has to sign a form saying that she informed him. No one checks. Moreover, under the Pennsylvania law I draw my example from, she could even forgo notification if she claimed that (1) he was not the father, (2) he could not be found, (3) he raped her or (4) she had reason to believe he might physically harm her. What prosecutor would subsequently dare try to prove to a jury that, say, she actually had no such fear of harm?

Remember: The question is not whether (a) or (b) is the wiser restriction. The only relevant question is which is more likely to discourage the woman from getting an abortion.

The answer is obvious.

Why is this the relevant question? Because when, in 1991, Judge Samuel Alito was asked to rule in Planned Parenthood v. Casey on the constitutionality of Pennsylvania's spousal notification requirement, Supreme Court precedents on abortion had held that "two-parent consent requirements" for a juvenile with "a judicial bypass option" do not constitute an "undue burden" and thus were constitutional. By any logic, therefore, spousal notification, which is far less burdensome, must also be constitutional — based not on Alito's own preferences but on the Supreme Court's own precedents.

This may all seem arcane, but it requires slogging through arcana to see just how dishonest, disreputable and disgraceful is the charge, trumpeted by just about every liberal interest group, that Alito is so extreme and insensitive to women's needs that he supports spousal notification for abortion.

Alito's Casey opinion no more tells you whether he "supports" the policy of spousal notification than whether he likes foie gras with his pudding. The only thing it tells you is that based on scrupulous parsing of Supreme Court precedents — or more particularly, of Sandra Day O'Connor's precedents on permissible restrictions on abortion — he concluded that spousal notification met the court's own standard for constitutionality.

The O'Connor standard was that the law could not impose an "undue burden." What did that mean? She spelled it out and set the bar pretty high. A state regulation that "may 'inhibit' abortions to some degree" was not enough to create an "undue burden." It required more. It required "absolute obstacles or severe limitations on the abortion decision."

So how to apply this test? Alito said: Let's see how the Supreme Court applied it. The court had found in previous decisions that there was no undue burden when you require a minor to notify or get consent from both parents, or to get judicial authorization. So surely, spousal notification, which is obviously less burdensome, was also constitutional.

Ah, say the critics, but when Casey ultimately came up to the Supreme Court, O'Connor disagreed with Alito and found that spousal notification is indeed an undue burden.

To which I say: Such is Alito's reward for having tortuously tried to follow O'Connor's logic. Brilliant Alito is, but alas not brilliant enough to divine O'Connor's next zigzag — after Alito had blown hundreds of neurons trying to figure out the logic of her past (pre- Casey ) rulings.

In the coming days you will hear that Alito "supports" strip searches of 10-year-olds and the private possession of machine guns. The Brady anti-gun campaign has already called Alito "Machine Gun Sammy." You will also hear that he is hostile to minorities, immigrants, women, workers, the disabled, the environment . . . you name it.

These claims are based on the same distortion that we see in attacks on Alito's abortion ruling in Casey — the deliberate confusion of a constitutional judgment (almost invariably based on the Supreme Court's own precedents) with a personal policy preference.

It was disgraceful when that same deliberate distortion was used in television ads to accuse John Roberts of "supporting" people who blow up abortion clinics. It remains disgraceful today.

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