Now, I'm seeing two arguments there. One is that the woman has some kind of misperception about her marriage or her situation, and her husband can set her straight. And the other argument is that the husband has such a profound interest in keeping the fetus alive—and his wife has such a small interest in controlling what happens to her body—that the government can force her to consult him even if she's so afraid of him, or so certain she can't have this baby, that she won't talk to him unless we threaten her with criminal charges. And you implied that Justice O'Connor, the justice you're planning to replace on this court, would agree with you.
In point of fact, you were wrong about that, weren't you, Judge? I mean, we have the actual answer to that question, because Justice O'Connor, along with Justices Kennedy and Souter, wrote the Supreme Court's controlling opinion in Casey a year after you issued your dissent. And she pretty flatly rebuked you, didn't she? She says the spousal notice provision "is an undue burden, and therefore invalid." Couldn't be any plainer. And in the very next sentence, she addresses those parental notification cases you cited, and here's what she says:
Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.
And here she is a bit later, talking specifically about the provision you voted to uphold:
The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. … A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. … A State may not give to a man the kind of dominion over his wife that parents exercise over their children.
That's kind of a slap there, isn't it, Judge? All that stuff you wrote about the woman not being sufficiently informed to make the decision without her husband's help—not being competent, evidently, to decide whether consulting him was a good idea—Justice O'Connor pretty much whacked that one out of the park, didn't she? And the same for your point about the husband's interest in the fetus—"Does not permit the State to empower him with this troubling degree of authority," she says. That's pretty clear, isn't it?
Now, Judge, I'm sure you're going to tell me the same thing Chief Justice Roberts told us when he was here, about respecting precedent and all that. And now that we have Justice O'Connor's verdict on this provision, which came a year after you wrote your opinion on this, you're not going to mess with it, and women don't need to worry that you're going to take us back to the 19th century. And I'd like to believe that. But I can't. And the reason I can't is that you already did mess with the precedents set by this court, and by Justice O'Connor specifically.
When you wrote your dissent in Casey, that was a year after Hodgson. And of course you cited Hodgson in your opinion, so obviously you read it carefully. And as you'll recall, Hodgson concerned a Minnesota law that required a minor to notify two parents, not just one, if she was planning to get an abortion. So, even if she told the mom, the mom would have to tell the dad, or the girl would have to tell the dad. The mom wasn't enough. And Justice O'Connor concurred with all but two parts of the main opinion by Justice Stevens, which held that the central part of this law was unconstitutional. And the part she concurred with says this:
In the ideal family setting, of course, notice to either parent would normally constitute notice to both. A statute requiring two-parent notification would not further any state interest in those instances. In many families, however, the parent notified by the child would not notify the other parent. In those cases, the State has no legitimate interest in questioning one parent's judgment that notice to the other parent would not assist the minor or in presuming that the parent who has assumed parental duties is incompetent to make decisions regarding the health and welfare of the child.
And in a footnote, they add: "What the State may not do is legislate on the generalized assumptions that a parent in an intact family will not act in his or her child's best interests and will fail to involve the other parent in the child's upbringing when that involvement is appropriate."
So that's what Hodgson says. The state has no legitimate interest in second-guessing the mom about whether to tell the dad. The mom's decision is good enough, because she's not a kid, she's an adult. And you know what the funny thing is, Judge? Your colleagues on the appeals court, the ones you disagreed with in Casey, took their logic and a lot of their language straight out of that part of Hodgson. They figured, if the Supreme Court says you can't second-guess a woman about her daughter's abortion, you can't second-guess her about her own abortion, either.
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