Telling husband and Alito

Volokh, Eugene VOLOKH at law.ucla.edu
Fri Nov 4 23:08:10 PST 2005


	It is true that the state rarely orders spouses to reveal things
to each other about their medical procedures.  But then again spouses
rarely do things that the other spouse may well perceive as killing his
children.  Even those of us who are pro-choice may find the prospect of
a fetus that we helped conceive being aborted to be quite different from
steps taken to prevent the conception altogether.  It seems to me quite
reasonable for the state to treat the two quite differently.

	This doesn't, of course, dispose of whether the restriction --
reasonable as it might be -- is nonetheless unconstitutional, perhaps
because it's an undue burden on the right to an abortion.  But, as Frank
Cross suggested, it seems to me that the matter is far less simple than
some in the pro-choice camp would suggest.  The husband-father's
interests are substantial, perhaps not substantial enough to give him a
veto (given the greater magnitude of the wife-mother's interests), but
perhaps substantial enough to entitle him to at least some notification,
at least absent special circumstances such as the ones that led to the
exceptions in the Pennsylvania law.  I'm not sure I'd vote for such
notification, or even conclude that such a notification requirement was
constitutional under the pre-Casey undue burden test; I just think the
question is quite close, and analogies to behaviors that are quite
different aren't that helpful..

	Eugene

> -----Original Message-----
> From: Barksdale, Yvette [mailto:7barksda at jmls.edu] 
> Sent: Friday, November 04, 2005 10:09 PM
> To: J. Noble; Don Crowley; Volokh, Eugene; conlawprof at lists.ucla.edu
> Subject: RE: Telling husband and Alito
> 
> 
> 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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