Just in Casey?

The site didn't launch, and during my moping period I had the opportunity to read Alito's dissent in PP v Casey. I do feel I learned a lot about the process of how decisions are arrived at and written up just from reading the opinion. It's no surprise that reading these things is a good part of law school. I also learned much more about the conditions that need to be met in a legal state abortion law than I knew before. I quote from the dissent:

"Under that test, as the majority explains, a law that imposes an “undue burden” must serve a “compelling” state interest. By contrast, a law that does not impose an “undue burden” must simply be “rationally” or “reasonably” related to a “legitimate” state interest."

I had heard of "undue burden" before, but I didn't know much about this "compelling" and "legitimate" state interest part. Great language guys...I guess passing the legal buck is all part of the process.

But onto determining whether Alito was, indeed, just in Casey. The first part of the decision I take issue with has nothing to do with Alito: it's the precedent O'Connor sets...or at least the precedent Alito interprets her as setting:

"Justice O’Connor has explained the meaning of the term “undue burden” in several abortion opinions. In Akron v. Akron Center for Reproductive Health, 462 U.S. at 464, 103 S.Ct. at 2510 (O’Connor, J., dissenting), she wrote that “an ‘undue burden’ has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision.” She noted that laws held unconstitutional in prior cases involved statutes that “criminalized all abortions except those necessary to save the life of the mother,” inhibited ” ‘the vast majority of abortions after the first 12 weeks,’ ” or gave the parents of a pregnant minor an absolute veto power over the abortion decision. Id. (emphasis in original; citations omitted). She suggested that an “undue burden” would not be created by “a state regulation [that] may ‘inhibit’ abortions to some degree.” Id. She also suggested that there is no undue burden unless a measure has the effect of “substantially limiting access.”"

I'm not sure what he means that she "suggested" undue burden would not be created by a regulation that just inhibits abortions and doesn't "substantially" limit them. I would guess from his quote that she was somewhat explicit about it, but if she didn't explicitly state these conditions must be met, I think a justice has some leeway with them. Clearly, Alito doesn't think he does (and wouldn't care if he did). "Substantially" is an interesting word. Does substantially mean "greatly, in some cases" or "at all, in many cases?" I would like to say that it's the former. If even one, even hypothetical, person is greatly inhibited, I believe the inhibiting was substantial. Alito seems to put more stake in numbers, which I think is kind of heinous. This is the part of the dissent I disagree with most:

"Second, the plaintiffs offered testimony that the exceptions in Section 3209 [the spousal notification part] would not cover a case in which a woman did not want to notify her husband for fear that he would retaliate in some way other than the infliction of bodily injury upon her, such as by subjecting her to psychological abuse or abusing their children (see 744 F.Supp. at 1360- 62). The plaintiffs, however, do not appear to have offered any evidence showing how many (or indeed that any actual women) would be affected by this asserted imperfection in the statute."

Admittedly the burden of proof is on the plaintiffs here—Alito makes that painfully clear—but I think that by simply pointing out this imperfection, they've proven a substantial limitation of access inherent in the regulation. Whether or not this substantial limitation would affect zero, one, or tens of thousands of abortions each year does not affect that the limitation is imposed.

Maybe he covered why this point-that few women would be affected-is relevant, but, at least from my first reading, all I see is his earlier comment on O'Connor's definitions of undue burden:

"Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations,” rather than simply inhibiting abortions ” ‘to some degree’ ” or inhibiting “some women.”"

Is he taking these phrases a little out of context? Most restrictions will only inhibit abortions "to some degree" or inhibit "some women." They have the clause in this spousal notification regulation that a woman can get around it if she believes her husband will physically harm her. If it did no have this clause, would he still not strike it down because it only inhibits some women (those with abusive husbands) to some degree (a little slapping around here and there...no death...that would be a severe limitation, but a black eye never REALLY stopped anyone from doing anything). I exaggerate for effect, but the "some women" and "some degree" clauses seem pretty bizarre, in the way he takes them.

So who decides when "some women" becomes "all women?" And the restriction here is imposed on all women, even if many are not affected by it. If he's really right in saying that all women must be inhibited to a great degree, I suppose I'm defeated. But that seems like a ridiculous requirement. Perhaps that's what O'Connor meant. As Alito points out, she struck down the two-parent notification not on undue burden, but because it served to legitimate state interest. If he had the ability to determine that "severe limitation" did not necessarily mean all women inhibited to a great degree, as I believe he probably did, there I disagree with him.

Then there's the "rationally relates to a legitimate state purpose" part of the thing, which I'll touch on briefly. The interest at hand is the father's investment in the fetus. Apparently, "The Supreme Court has held that a man has a fundamental interest in preserving his ability to father a child." OK. Then, "The Court’s opinions also seem to establish that a husband who is willing to participate in raising a child has a fundamental interest in the child’s welfare...It follows that a husband has a “legitimate” interest in the welfare of a fetus he has conceived with his wife."

Why this is a state purpose is apparently too obvious to mention. I don't say this sarcastically...it doesn't seem intuitive to me, but for those familiar with law, perhaps it does. Alito quotes, "“[S]tatutory regulation of domestic relations [is] an area *726 that has long been regarded as a virtually exclusive province of the States."...Accordingly, Pennsylvania has a legitimate interest in furthering the husband’s interest in the fate of the fetus, as the majority in this case acknowledges." Yeah, I don't really get it...why the state's ability to regulate it necessarily implies an interest in every aspect of it.

So that brings Alito to the "rationally related" part:

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems–such as economic constraints, future plans, or the husbands’ previously expressed opposition– that may be obviated by discussion prior to the abortion. In addition, the legislature could have reasonably concluded that Section 3209 would lead to such discussion and thereby properly further a husband’s interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure."

This was around the time I got tired reading the opinion and writing this entry. So I'm a little off. But I just don't like the assumption that encouraging women to talk to their husbands, husbands gaining an interest in their child (and then women having or not having abortions) serves a legitimate state interest. Alito (I believe) concedes that it's not a "compelling" state interest; therefore if it placed undue burden on women, it would not be constitutional. Even though I don't see where the legitimate state interest really comes in (anyone's welcome to tell me...although maybe I'll wake up tomorrow and it'll be clear as day), I don't think it's relevant, because I think the law does substantially inhibit women, even if it, in practice, may not inhibit many, and it therefore creates undue burden and does not serve a compelling state interest.

Well, that's my first analysis of a judicial opinion ever. I'm sure law school professors would fail me so hard and fast I wouldn't sit down for a week. But I'd love your lay and/or law-school-informed reactions.

(Also note: I'm not reading this over before I post, so there may be some serious flaws in sentence structure/logic.)