Telling husband and Alito

Fri Nov 4 22:08:34 PST 2005

Isn't thinking of this case as a simple matter of the state protecting the father's interest in knowing the status of the unborn child oversimplifying the analysis here? Isn't the state really intruding into areas into which it ordinarily doesn't go, outside of the context of abortion. For example, in your view, could the state similarly require the wife to tell her husband that she is using birth control? Or to inform her husband of health care issues that could affect her fertility? Or to require the husband to tell the wife of health care issues that could affect his fertility - such as whether he has a vasectomy - or takes certain medications, etc.?    Or to that could affect how long he or she lives - which certainly is of the interest to the spouse? 

Generally, although these matters are certainly of interest to the spouse - they are inevertheless still considered private matters for the individual spouse. And whether the individual spouse tells the other spouse is also a private matter for the married couple, not for the state. Ordinarily - the state is not considered to have any interest in intruding into these private marital communications (except in cases of domestic violence and abuse),  This is so even when the communications don't involve the individual spouses exercise of her constitutional right. Wouldn't the state have even less of an interest when the individual's constitutional right is at stake? 

So, why is this abortion notification issue any different  these other private matters  between spouses - except that  a disclosure rule would make it more difficult for women to have abortions. Certainly, one can take the position that the state's interest in preventing abortions is always a compelling one - and thus any way of achieving that is a compelling state interest -  but that just brings us full circle to the Roe/not Roe debate - that is the view that the state has a compelling interest in preventing abortions that overrides what otherwise would be maternal  reproductive rights. But  that doesn't mean the state has an additional state interest in policing intermarital communications - just because the topic is abortion - which the state happens to want to disfavor. 

Moreover, didn't O'Connor's opinion in Planned Parenethood characterize the undue burden test as essentially a factual analysis  of whether the regulation would or would not prevent some critical mass of women from having abortions.  And is there any doubt that certainly some significant number of women would face (or fear)  sufficiently adverse consequences from spousal notification that they would not have the abortion? Okay, outlawing such abortions may be a wonderful goal.  But the question of whether the state can constitutionally do so  is still Roe/not Roe redux,   

yb

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of J. Noble
Sent: Fri 11/4/2005 10:13 PM
To: Don Crowley; 'Volokh, Eugene'; conlawprof at lists.ucla.edu
Subject: RE: Telling husband and Alito

It seems easier to start fresh, without the baggage of Roe and its
progeny. I have more difficulty defending the SDP right to an
abortion, or characterizing spousal notification as an undue burden,
than I have making the argument that my client cannot be compelled to
reveal anything in particular to anyone in particular unless you
brought a subpoena.

John Noble

At 1:50 PM -0800 11/4/05, Don Crowley wrote:
>Eugene's suggestion that he doesn't know if "women have a constitutional
>right to conceal evidence of their infidelity from their husband," seems
>like an odd analogy. Women do have a constitutional right not to be forced
>by the state to reveal an abortion to their husbands unless they choose to
>do so.  It is very hard to see what the state interest is here. Stable
>marriages? Sure women should tell their spouse but that normative claim is a
>long way from saying that the state has a legitimate interest in forcing
>them to do so.  I'm not a great fan of O'Connor undue burden approach but it
>is hard to see what the goal of the state here is if it isn't to place a
>burden on the ability to exercise an abortion.
>
>Don
>
>-----Original Message-----
>From: conlawprof-bounces at lists.ucla.edu
>[mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
>Sent: Friday, November 04, 2005 11:55 AM
>To: conlawprof at lists.ucla.edu
>Subject: RE: Telling husband and Alito
>
>       (1)  If it's the milkman's child, then wouldn't the woman have
>been *exempted* from Pennsylvania's spousal notification law?
>
>       (2)  I very much sympathize with women who fear that telling the
>husband about an abortion will lead to violence against them -- which is
>why, as I understand it, the Pennsylvania law exempted them, too.  But
>do women have a constitutional right to conceal evidence of their
>infidelity from their husband, when the risk (as Calvin hypothesizes) is
>that the husband would demand a divorce?  That seems like a much less
>sympathetic scenario (though, as I mentioned, not one implicated by the
>Pennsylvania law, which I believe exempted this situation).
>
>       Eugene
>
>>  -----Original Message-----
>>  From: conlawprof-bounces at lists.ucla.edu
>>  [mailto:conlawprof-bounces at lists.ucla.edu] On Behalf Of Calvin Johnson
>>  Sent: Friday, November 04, 2005 11:46 AM
>>  To: Jonathan Miller; CONLAWPROF at lists.ucla.edu
>>  Subject: Telling husband and Alito
>>
>>
>>      A Wife who does not tell her husband that she is having
>>  an abortion is indeed taking an important step.  She would do
>>  that only for very very good reasons.  Maybe the child is the
>>  milkman's child, and H could figure that out, and yet she
>>  would like to stay within the marriage relatioinship and
>>  raise H And W's 5 kids together with H.
>>  Telling H would end it.   In Godfather,  Kay ultimately told
>>  Michael she
>>  had had an abortion  (not a miscarriage) because she could
>>  not stand the thought of having his child.  She was very very
>>  lucky to get out of that announcement alive.
>>
>>
>>  Calvin H. Johnson
>>  Andrews & Kurth Centennial Professor of Law
>>  The University of Texas School of Law
>>  727 E. Dean Keeton (26th)  St.
>>  Austin, TX  78705
>>  (512) 232-1306  (voice)
>>  FAX: (512) 232-2399
>>  Website: http://www.utexas.edu/law/faculty/cvs/chj7107_cv.pdf
>>  For reviews, chapters, discounts and news on Johnson,
>>  Righteous Anger at the Wicked States: The Meaning of the
>>  Founders Constitution (Cambridge University Press 2005) see
>>  http://www.utexas.edu/law/faculty/calvinjohnson/RighteousAnger/
>>
>>  -
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