Right to Wife
Why does Judge Alito treat women like girls?
But not you, Judge. You didn't go along with what Justice O'Connor said, even when your colleagues flagged it in neon orange for you. You looked the other way. You went on a cherry-picking expedition through her opinions, taking just the parts you wanted and ignoring the parts you didn't, to the point where she had to step in a year later and set you straight.
And then, having bent over backward to interpret a woman's abortion right as narrowly as possible, you bent as far as you could the other way to give men the widest possible right to interfere. Do you mind if I read from one more paragraph of your opinion? Here's what it says: "The Supreme Court has held that a man has a fundamental interest in preserving his ability to father a child." Next sentence: "The Court's opinions also seem to establish that a husband who is willing to participate in raising a child has a fundamental interest in the child's welfare." Then you conclude: "It follows that a husband has a 'legitimate' interest in the welfare of a fetus he has conceived with his wife." And you use that to justify the spousal notification law.
Now, Judge, you and I both know that the cases you cited with regard to previous Supreme Court holdings, one was about sterilizing felons, and the other was about establishing the paternity of an already-born child. How you get from there to giving a man a state-guaranteed say in a woman's abortion decision—well, I don't know what to call it, but it sure as hell isn't judicial restraint. Why does the man get all the breaks in your legal reasoning, Judge? Why does only the woman get treated like a child?
I see the chairman motioning for me to wrap this up, so I'll end with a question. Actually, I'll let Justice O'Connor ask the question. Here's what she wrote 13 years ago, replying to your opinion in Casey:
If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs.
What do you think, Judge? Is she right? If we put you on this court—if we give you her seat—would you strike down any of those laws she's talking about? Or is it open season on pregnant women?
Will Saletan covers science, technology, and politics for Slate and says a lot of things that get him in trouble.
Photograph of Bush and Alito by Luke Frazza/Agence France-Presse.