Fourteen years ago, Judge Samuel Alito voted to uphold a Pennsylvania law that required married women to certify, prior to an abortion, that they had told their husbands they were having the procedure. A year later, the Supreme Court struck down the law. "A husband has no enforceable right to require a wife to advise him before she exercises her personal choices," Justice Sandra Day O'Connor and her colleagues wrote in the court's controlling opinion. They concluded, "A State may not give to a man the kind of dominion over his wife that parents exercise over their children."
Who represents the mainstream on this issue? Alito or O'Connor?
Alito's defenders have good evidence on their side. In a 2003 Gallup poll, 72 percent of Americans endorsed a spousal notice requirement. Last week, the Washington Post and ABC News released a survey indicating that Alito's opinion made as many Americans more likely to support him (27 percent) as to oppose him (26). What do other polls show? Do most Americans support spousal notice laws? Do women? If so, why? Is it about men's rights, women's untrustworthiness, or abortion's gravity?
Since 1989, when abortion polling exploded, the lowest level of support for mandatory spousal notice has been 63; the high is 73 to 76, depending on which polls you trust. The only two national polls taken since 1992—both by Gallup—show more than 70 percent supporting the idea.
Is the trend heading upward? I doubt it. Look at the wording of the questions. Gallup gets the industry's highest support levels for spousal notice—73, 71, and 72 percent in its last three surveys—by telling respondents that a notice law requires the woman to inform her husband "if she decides" to have an abortion. This language emphasizes that the decision is up to the woman, and it seems to leave open the possibility that she could tell him after the abortion rather than before it.
Only once was Gallup forced to change its wording, in a 1992 poll for Life magazine. The Life questionnaire said a notice law required the woman to tell her husband "before she is allowed" to have the abortion. That language took power away from the woman and emphasized that notification had to come first. With those changes, support dipped to 67. Likewise, the University of Michigan's 1992 questionnaire told respondents that a notice law required the woman to tell her husband "before she can have" the abortion. In that poll, support fell to 63 percent.
In short, some people who support spousal notice seem uneasy about taking power away from the woman. Last week's Post/ABC survey, which indicated that the issue was a wash for Alito, framed spousal notice in the most palatable way: requiring the woman to tell her husband "if she decides" to have the abortion. I'd like to see how Alito fares if the public is told that he upheld mandatory notification by the woman "before she can have" the abortion.
Do men and women differ about this? Yes. In a March 1992 Post survey, 70 percent of men agreed that "a pregnant married woman should be required by law to obtain the permission of her husband before she could obtain a legal abortion." Only 58 percent of women agreed. In a 1992 New Jersey poll, 73 percent of men favored a spousal-notice law; only 67 percent of women did. In a 1989 Pennsylvania poll, 78 percent of men supported mandatory notification; only 53 percent of women did. In each case, the difference between men and women on spousal consultation dwarfed their differences on other restrictions.
Is spousal notice just an outgrowth of paternalism or opposition to abortion? No. It routinely scores lower in polls than informed consent and 24-hour waiting periods do. That means some folks who think women don't initially know enough to make an abortion decision—or won't think it through diligently without a waiting period—aren't sure a husband is the right person to supply the diligence or knowledge. On the other hand, opponents of Roe consistently account for less than half the pool of respondents supporting spousal notice. The rest, evidently, are people who don't oppose Roe but still think women should at least have to talk to their husbands.
Do supporters of spousal notice think women need guidance from their husbands in the same way teenage girls need guidance from their parents? The simplest way to answer that question is to compare support levels for mandatory spousal involvement with support levels for mandatory parental involvement. Parental consent scores consistently in the 70-to-75 percent range. Parental notice scores around 80. Spousal notice scores in the low 60s to low 70s.
I've tracked down five surveys that asked about both parental and spousal notice. Parental notice scored higher in every case, but not by much. In a 1992 Parade magazine poll, the gap was four points. In a 1992 Wirthlin poll (for the National Right to Life Committee), it was six. In two 1989 polls by Gordon Black, it was 14 and 12. In a 1992 New Jersey survey, it was eight. The average gap in this group of surveys was eight to nine points. It's easy to conclude that fewer than 10 percent of Americans think (or thought, since these polls are old) women deserve more autonomy than girls do.
But the more telling comparison is between the girl-woman gap on mandatory notice and the girl-woman gap on mandatory consent. I found only two surveys that asked about both spousal and parental consent. Both were taken in Florida: one (statewide) for the Miami Herald in 1989, the other (regionally) for the St. Petersburg Times in 1992. The Times poll found a 30- to 34-point gap between spousal and parental consent, with parental scoring higher. The Herald poll found a 14-point gap between spousal consent and two-parent consent. Since one-parent consent tends to score 18 to 20 points higher than two-parent consent, the second poll lends support to the first poll's gap of at least 30 points between spousal consent and one-parent consent.
In other words, the Florida polls suggest (contrary to the 1992 Post poll, which allowed no such comparison) that when veto power rather than mere notification is at stake, the percentage of people who would grant women more autonomy than girls triples. If that's true, any blurring of the line between spousal notice and consent—like, say, the blurring in O'Connor's reply to Alito 13 years ago—could put him, not her, on the wrong side of public opinion.