Judge Alito, it's a pleasure to have you before our committee this morning. You're obviously an accomplished jurist, and my colleagues on the other side of the aisle speak very highly of you. I really have only one question for you, and it's my hope that you'll be able to put my mind, and the public's mind, at ease about it. What I'd like to know is, why do you think it's constitutional to treat a pregnant woman like a child?
I'm referring, of course, to your dissent in Planned Parenthood v. Casey 14 years ago. As you know, that case involved a Pennsylvania statute that required women to notify their husbands before having abortions, on pain of criminal sanctions. You voted to uphold the statute.
First of all, Judge, I notice that in your concluding footnote to that case, you mentioned that the plaintiffs had asked your court to hold the statute unconstitutional because it "violates the rights to marital and informational privacy and equal protection." You wrote that you wouldn't address those arguments because your colleagues had relied on a different argument, the right to abortion. Since you rejected the abortion argument and didn't bother addressing the other arguments, I guess we can infer that they wouldn't have changed your vote. So, you don't think privacy or equality entitles a woman, constitutionally, to make the decision without consulting her husband.
Now, about the abortion argument. The trial record in Casey, as you recall, included testimony that mandatory spousal notification might inhibit some women from having abortions because they'd be afraid to tell their husbands for fear of physical abuse or other kinds of retaliation. You concluded that this inhibition effect, to the extent it was substantiated in the record, did not rise to the level of an "undue burden" as defined by Justice O'Connor and was therefore not severe enough to make the statute unconstitutional. And to prove that this fear and inhibition didn't meet the undue burden standard, you cited two previous Supreme Court decisions: Hodgson v. Minnesota and H.L. v. Matheson. With regard to Hodgson, you wrote,
Justice O'Connor found that no undue burden was imposed by a law requiring notice to both parents or judicial authorization before a minor could obtain an abortion. Justice O'Connor reached this conclusion despite statistics adduced by Justice Marshall to show that mandatory parental notice may inhibit a significant percentage of minors from obtaining abortions … and despite the district court's finding, noted in Justice Marshall's dissent, that the judicial bypass option "so daunted" some minors that they felt compelled to carry to term.
Then you went on to say that Justice O'Connor didn't think the statute in Matheson presented an undue burden, even though Justice Marshall, in that case, wrote that a girl who's required to tell her parents about an abortion "may confront physical or emotional abuse, withdrawal of financial support or actual obstruction of the abortion decision."
Now, in your opinion in Casey, right after that quote from Justice Marshall, you write this: "These harms are almost identical to those that the majority in this case attributes to Section 3209." Section 3209 is Pennsylvania's spousal-notice provision. Then you conclude, "Justice O'Connor's opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson." And you uphold the spousal notice law because its burden doesn't exceed the burdens in those other cases.
Now, here's my question, Judge. Do you really think an undue burden for a grown woman is the same as an undue burden for a teenager? Do you think a woman deserves no more deference than a girl?
That seems to be the gist of your opinion here. Let me quote from your explanation—well, actually, this is the entirety of your explanation for what you call the rational basis of the spousal notice provision:
The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems—such as economic constraints, future plans, or the husbands' previously expressed opposition—that may be obviated by discussion prior to the abortion. In addition, the legislature could have reasonably concluded that Section 3209 would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure.
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