Judge Alito in Casey

[Jonathan Miller]

I just read Judge Alito's decision in Casey and I find it very 
troubling.   He dissents on spousal notification because most women will 
not have a problem notifying their spouses, so there is not an undue 
burden on abortion for most women, and this is a facial attack on the 
statute, so it would be inappropriate to declare the spousal 
notification requirement unconstitutional for all purposes.  Justice 
O'Connor's response in Casey is that the spousal notification 
requirement is only relevant for those women who ordinarily would not 
tell their husbands -- hence in effect the statute is being held 
unconstitutional for all situations in which it has relevance -- and  
women are not under the tutelage of their husbands in any case.  Justice 
O'Connor's response might be attacked by the right as ignoring any 
interest that the husband might have and as contrary to the general rule 
that absent overbreadth doctrine and vagueness arguments, attacks on the 
face of a statute must show that the statute is always invalid.  
However, Justice O'Connor's position implicitly recognizes a basic 
problem that Justice Alito ignores.  It is unlikely that the woman who 
will be severely prejudiced by the spousal notification provision would 
ever bring a law suit.  Rather, given problems of timing and privacy, 
she will effectively lose her constitutional right to an abortion.  
Judge Alito specifically interprets the pre-Casey caselaw as providing 
that "an undue burden may not be established simply by showing that a 
law will have a heavy impact on a few women but that instead a broader 
inhibiting effect must be shown" -- admitting that some woman will 
effectively be denied their right to obtain an abortion, but insisting 
that it does not matter, because abortion as a whole is not unduly 
burdened.  Perhaps it is unfair to evaluate Judge Alito on the basis of 
a single decision, and perhaps the pre-Casey caselaw was unclear, but 
Judge Alito shows himself willing to effectively deny an individual an 
individual liberty simply because for many other individuals there is no 
issue.  That is a very troubling way to approach an individual liberty.

Jonathan Miller

-- 
Jonathan Miller
Professor of Law
Southwestern University School of Law
675 S. Westmoreland Ave.
Los Angeles, CA 90005-3992
Tel. 213-738-6784