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.
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.
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?