Charles Krauthamer has an extraordinarily good piece on Judge Alito's opinion in Planned Parenthood v. Casey. This case is being used by liberal critics to show that Alito is far to the right of Justice O'Connor on abortion restrictions. What it in fact shows is the he was more like O'Connor than O'Connor ever was.
Pop quiz: Which of the following abortion regulations is more restrictive, more burdensome, more likely to lead more women to forgo abortion?
(a) Requiring a minor to get the informed consent of her parents, or to get a judge to approve the abortion.
(b) Requiring a married woman to sign a form saying that she notified her husband.
Can any reasonable person have any doubt? A minor is intrinsically far more subject to the whims, anger, punishment, economic control and retribution of a parent. And the minor is required to get both parents involved in the process and to get them to agree to the abortion.
In other words, the marital notification requirement is less restrictive than the parental consent requirement. If the latter is constitutionally permissible, by logic the former ought to be.
Why is this the relevant question? Because when in 1991 Judge Samuel Alito was asked to rule in Planned Parenthood v. Casey on the constitutionality of Pennsylvania's spousal notification requirement, Supreme Court precedents on abortion had held that ``two-parent consent requirements'' for a juvenile with ``a judicial bypass option'' do not constitute an ``undue burden'' and thus were constitutional. By any logic, therefore, spousal notification, which is far less burdensome, must also be constitutional -- based not on Alito's own preferences, but on the Supreme Court's own precedents.
Alito, in affirming the spousal notification restriction, was simply following the precedent that O'Connor herself had laid down.
Ah, say the critics, but when Casey ultimately came up to the Supreme Court, O'Connor disagreed with Alito and found that spousal notification is indeed an undue burden.
To which I say: Such is Alito's reward for having tortuously tried to follow O'Connor's logic. Brilliant Alito is, but alas not brilliant enough to divine O'Connor's next zigzag -- after Alito had blown hundreds of neurons trying to figure out the logic of her past (pre-Casey) rulings.
What this shows, I think, is that Alito is committed to the rule of law. That is what we should look for in a Supreme Court judge.
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