Bush Tacks Right
After the right wing interest groups, bloggers, professors and journalists succeeded in tanking the Miers nomination, I thought that the nominee re-do was likely to be demonstrably more right-wing, more entrenched in various positions over a longer period of time, and more grounded in theories that would lead to predictably right-wing rulings. Miers' corporate counsel, managing partner, political hurly-burly background clearly admitted of more play in the joints than Bush's base could tolerate. Still, over the weekend I held out a smidgen of hope that the President would get his dander up at the disloyalty of his erstwhile backers, that he would be goaded into picking someone moderate, just to show he cannot be pushed around. That glimmer of hope was dashed Monday with his choice of Samuel Alito, Jr. to replace Justice O'Connor.
Taking a look at Alito's abortion-related cases doesn't tell the whole picture, but it tells us something about a key concern. One's thinking on abortion rights can be a window into that person's beliefs about individual rights, privacy, the role of courts, the role of legislatures, human foibles and fallibility, the ability of legislation to address social issues, and gender relations to name just a few combustible topics.
Of concern to me was Judge Alito's opinion as a Court of Appeals judge on the panel that heard the challenge to Pennsylvania's abortion control law, enacted in the wake of the Court's decision in Webster v. Reproductive Health Services in 1989. That case demonstrated that there were no longer five votes for Roe v. Wade, but it reached no consensus on what the applicable standards should be. Many saw it as offering states the opportunity to try once again to enact abortion bans, or restrictions much more onerous than had been allowed under Roe since 1973. Utah, Louisiana and Guam enacted bans on abortion.
Pennsylvania enacted an array of restrictions, which were challenged in Planned Parenthood of Southeastern Pennsylvania v. Casey. The Third Circuit and later, the Supreme Court, upheld most of those restrictions under the "undue burden" standard that Justice O'Connor had been developing over the course of several cases. But both the Third Circuit, and, later, the Supreme Court, found that "undue burden" was not just a toothless rubber stamp of state restrictions. It had sufficient bite to require striking Pennsylvania's husband notice provision. The District Court had heard testimony about the destabilizing and even dangerous situations that sometimes ensue in a marriage upon the discovery of a pregnancy. The Court of Appeals reviewed this evidence and found that, in a small but significant number of cases, government-coerced notification would trigger physical, psychological or economic coercion. It, and the Supreme Court later, decided that the Court should not measure whether a statute is burdensome based on the statute's effect on everyone, but rather, its effect on those specific persons upon whom the requirement has bite. That is, the question wasn't whether requiring husband notification posed an undue burden on the majority of women seeking abortions who were unmarried, or the majority of married women who told their husbands without the compulsion of the law. What mattered was the law's effect on those women who would not, absent legal compulsion, tell their husbands they were pregnant. For those women, Pennsylvania's law imposed an unconstitutional burden, according to the District Court, the Court of Appeals and the Supreme Court.
Alito dissented. For him, the small number of persons affected was pertinent. He found no undue burden and thus checked only to see whether the law could rationally serve a legitimate state purpose. He found that compelling these marital discussions might dispel whatever thoughts were impelling the woman towards abortion, and thus were justified.
Just this one opinion demonstrates a frightening fact: the Court could overturn much of reproductive rights law without ever saying it was abandoning Roe. The governing standard is "undue burden" and the Court's most recent decision interpreting a statute challenged under this standard found it to be an undue burden by a 5-4 majority, with O'Connor in the majority. Alito apparently could uphold onerous restrictions under the undue burden standard.
Yet Alito may want to go even further and stiffen the standard for challenging abortion regulations, so that the Court would not invalidate a statute unless it is unconstitutional in all applications. Judge Alito referenced another case, not from the reproductive rights area, in his opinion in Casey, to that effect, a citation singled out for approval from the White House in their talking points in favor of Alito. A case is now pending before the Court, revisiting whether the Casey "undue burden" standard should be abandoned in favor of the Salerno standard (invalidate only if statute admits of no constitutional applications). If Alito taks part in the decision in that case, Planned Parenthood of Northern New England v. Ayotte, we may lose the rights won in Roe v. Wade because the rules of the game could be changed.
Word has it that Alito is not coming to the position with an agenda though, so perhaps "it could be worse."
November 2, 2005 10:39 AM | Reply | Permalink
I suspect that the most likely fate for Roe is to be gradually whittled down by increments rather than overturned in a sweeping reversal. That would of course be good for the fortunes of the GOP since it would avoid antagonizing those voters who do not want to see abortion rights eliminated wholesale. On the other hand it would not please the base, which (as we saw in the Harriet Miers fiasco) is not willing to accept partial loaves and future hopes, but wants the whole agenda giftwrapped in time for Christmas.
November 2, 2005 10:43 AM | Reply | Permalink
<He found no undue burden and thus checked only to see whether the law could rationally serve a legitimate state purpose. He found that compelling these marital discussions might dispel whatever thoughts were impelling the woman towards abortion, and thus were justified. >
What is the state purpose is creating more babies? Is it in the constitution that the state should promote population growth? Does current abortion law presume a state interest against abortion?
November 2, 2005 11:09 AM | Reply | Permalink
<. It, and the Supreme Court later, decided that the Court should not measure whether a statute is burdensome based on the statute's effect on everyone, but rather, its effect on those specific persons upon whom the requirement has bite.>
I just had an IM exchange with my very right wing cousin who hides behind a supposed pro-choice position to cover his guilt. The point I made to him on husband notificaiton was exactly this. The beauty of US style democracy is protection of minority rights. Something Bush convenientely forgot in Iraq as an aside.
November 2, 2005 11:13 AM | Reply | Permalink
Next question: will Alito be confirmed. More to follow on that.
November 2, 2005 12:03 PM | Reply | Permalink
I think the issue of "viability" presents a major avenue for the conservative justices to undermine abortion without overturning Roe.
Although the "undue burden" doctrine outlined by O'Connor in Casey gets a lot of attention, one part of the Casey decision that hasn't gotten much attention is the issue of viability. In Roe, Justice Blackmun broke pregnancies down by trimester, giving women the right to abort in the first two trimesters while allowing the government to regulate abortions in the third trimester. In Casey, the standard changed, with a woman's right to choose preserved at any time before the fetus is "viable" and the state's right to regulate kicking in after viability has occurred. The only problem? Casey didn't define what "viability" meant.
Defining viability as only the early stages of a pregnancy would be a novel way for conservative states to limit abortion. After all, with medical technology improving all the time, babies are able to survive outside the womb at increasingly young ages. What if the Supreme Court decided that the "viability" line should be drawn at the place where medical science allows a fetus to survive outside a woman's body. See the paradox? The more medical science advances, the earlier and ealier "viability" becomes.
What's interesting about a guy like Alito is that his much vaunted "intellectual honesty" might prevent him from undermining abortion in this way. If he's as conservative as they say...and is as straight a shooter as they say...you'd think he would attack the Right of Privacy directly. Why beat around the bush?
November 2, 2005 12:07 PM | Reply | Permalink
The traditional state interest in birth had to do with national defense. If you read history relating to the 19th century in Europe you will see a lot of hand wringing over birth rates and the ability to field a larger army. The French were very worried about declining birth rates vis-a-vis the Germans after unification.
Of course, that is not what was presented in Casey, and not what Alito hung his hat on. Alito finds that the State has a legitimate interest in protecting the father's right to have a child and then pulls a little sleight of hand. Here is the text of Alito's dissent relvant to your question:
Since Section 3209 has not been proven to impose an undue burden, it must serve a "legitimate" (but not necessarily a "compelling") state interest. The majority acknowledges that this provision serves a "legitimate" interest, namely, the state's interest in furthering the husband's interest in the fetus. See majority opin. at 715, 716. I agree with this conclusion, and I do not think that this point requires extended discussion.
The Supreme Court has held that a man has a fundamental interest in preserving his ability to father a child. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). 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. Michael H. v. Gerald D., 491 U.S. 110, 123, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91 (1989); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1969); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). It follows that a husband has a "legitimate" interest in the welfare of a fetus he has conceived with his wife.
To be sure, the Supreme Court held in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 67-72, 96 S.Ct. 2831, 2840-43, 49 L.Ed.2d 788 (1976), that a potential father may not be given the legal authority to veto an abortion, and thus the Court apparently held that the potential father's interest was not "compelling." But the Court did not question the legitimacy of this interest.
*** end quote ***
The standard applied to legislation is usually outcome determinative when determining its constitutionality. The majority found that the undue burden cause a heightened level of scrutiny -- essentially scuttling the section upon the determination of heightened scrutiny. Alito, finding no undue burden, only needed to find a legitimate interest which is far less imposing than a compelling interest. As such, he used the standard of review to determine the outcome.
November 2, 2005 12:15 PM | Reply | Permalink
Will Alito be confirmed? On a straight up-or-down vote, Alito will be confirmed. Though there are possibly five or more pro-choice Republicans who might be inclined to vote against Alito, there will be enough support among them, plus several red-state Democrats, to confirm Alito. No Republican (or red-state Democrat) is likely to cast the 51st vote embarrassing the President.
If the Democrats, however, are able to sustain the 40+ votes needed for a filibuster, then the calculus changes. Frist didn't have the votes in hand when the "nuclear option" arose last time and he may not this time. There are two constituencies within the Senate Republicans that are uncomfortable about eliminating the filibuster. First are the pro-choice Republicans. It's one thing to accept party discipline and allow Alito through; it's anotther thing for a pro-choice Republican to vote to change long-standing Senate rules for the sole purpose of putting a Justice on the Court who will likely turn the tide against Roe (see previous post on that). Some pro-choice Republicans may be unwilling to go that far in the name of party discipline to a party that hasn't always welcomed their views. Secondly, there are at least several Senate Republicans that take Senate tradition seriously and have spent enough time in the minority to think twice and three times about jettisoning the filibuster just for Alito. Warner of Virginia comes to mind. Specter may fall in both camps.
Yes, this would be a huge battle with hype off the scale. And the Democrats might lose. But votes have consequences. Most Democrats were afraid to rock the boat on Iraq so they signed onto a war that, despite Administration predictions at the time, is still going strong two years later. If Senate Democrats think a constitutional right to choice on abortion is, well, important, they can't stick their heads in the sand on this one. This vote really counts.
November 2, 2005 12:25 PM | Reply | Permalink
Yes, this would be a huge battle with hype off the scale. And the Democrats might lose. But votes have consequences. Most Democrats were afraid to rock the boat on Iraq so they signed onto a war that, despite Administration predictions at the time, is still going strong two years later. If Senate Democrats think a constitutional right to choice on abortion is, well, important, they can't stick their heads in the sand on this one. This vote really counts.
I agree. And taking it a step further, I think the Democrats should dare the Republicans to exercise the nuclear option. After all, there's not much use in preserving the fillibuster if it can't be used on nominees like Alito.
If Senate Republicans want to overturn Roe with Alito, then they should own Alito. And if they exercise the nuclear option to get him on the court, Senate Republicans should shoulder the full load of America's displeasure when unpopular decisions start coming down.
November 2, 2005 12:48 PM | Reply | Permalink
If Senate Republicans want to overturn Roe with Alito, then they should own Alito. And if they exercise the nuclear option to get him on the court, Senate Republicans should shoulder the full load of America's displeasure when unpopular decisions start coming down.
I agree with the premise that the GOP should have to shoulder the burden of bad decisions. But by filibustering Alito and having it go "Nuclear" we ar eplaying into their hands. They want to distract from the Libby and DeLay indictments. The more they can have the news dominated by the "fight over Alito" the less the people think about how ethically challenged they are. Yes, I am making the case that we should approve Alito unless his testimony shows he is somewhere to the right of Scalia and Thomas. Do we think we will be able to "Bork" the Alito nomination? Even if we do block Alito like Bork was blocked do we forget who was put up after Bork? Scalia...how much to the good was that?
Bush is going to put someone conservative on the SCOTUS and there is nothing we can do to stop that. We should concentrate our efforts on the corruption of the GOP so we can regain power and make sure we are the ones doing the nominating...then we wouldn't have to worry about Alito types.
November 2, 2005 1:19 PM | Reply | Permalink
Let's not get caught up in fighting about spousal notification. It's a wedge issue, and an obvious one at that. Quite obviously, Casey is the debate George Bush wants to have, which is why he picked Alito!
I for one would really not like to be saying, "it's my right as a free and independent person to not tell my husband," while the right screams, "liberals think Medea is a role model to whom all women should aspire." I just don't see the upside for us in that.
If we decide to take down Alito, I'd much rather be talking about his position on the strip searches of 10 year olds, and his position on parents' rights to demand schools protect their children from sexual predators. I'd like to see conservatives defending how it's family values for the police to come into your home while you're at work and decide to strip search your wife and fourth grader daughter on the off chance you might have hidden drugs on her.
I think it's a hell of a lot better for our reputation to just say, "well, of course it's morally right for wives and husbands to decide together on abortion. Duh. But, as our friends on the right don't seem to understand, you can't let politicians dictate morality. And you certainly can't let Alito dictate morality--he's a whackjob who wants the police to come into your home and strip search your 10 year old daughter!"
November 2, 2005 1:32 PM | Reply | Permalink
I would like get your feedback on an idea <a href="http://wetzell.blogspot.com/2005/03/how-to-depoliticiz
e-abortion.html">to depoliticize abortion</a> that I have at my blog.
thankyou,
dlw
November 2, 2005 2:40 PM | Reply | Permalink
sorry here is the link.
November 2, 2005 2:42 PM | Reply | Permalink
Within a year of such decision, most abortions will be illegal in many, probably most, states in America
There is absolutely no evidence that this would be the case if Roe were overruled. We have to remember that support for abortion rights remains above 60% in this country and that is after 30 years of relentless assault. A reversal by the SCOTUS would galvanize efforts to fight restrictions at the state level. It would turn the fight from a national one to 50 state-level ones.
It is fair to say that there would be a wide variety of restrictions in place on a state by state basis. Some states would place heavy restrictions, some light ones, some none at all. But I think a fair reading of the politics of this issue would say that the number of states that would ban abortion outright would be relatively small.
There is, I believe, an analogy with the death penalty. Currently support for the death penalty nationally runs at about 70% I believe. Nevertheless, about 12 states have no death penalty law and there isn't likely to be one. Many states that have a death penalty law don't use it and there are varying degrees of restrictions on it state by state.
This is not an argument in favor of overturning Roe, although I do think that Democrats would gain if that did happen. Rather, I simply don't believe that if Roe is overturned most abortions would all of a sudden become illegal.
November 2, 2005 2:54 PM | Reply | Permalink
*Alito is an extremist because he thinks the Family and Medical Leave Act is unconstitutional.
*Alito is an extremist because he favors warrantless strip searches of children.
*Alito is an extremist because he opposes the Constitutional right to privacy.
These are arguments we can win because they put all reasonable people on one side and the lunatic fringe on the other. The FMLA is very popular with the American public. And no one - not even the conservatives - wants cops strip-searching their 10-year-old daughters. Abortion, in contrast, is a genuinely divisive hot-button issue: exactly the kind of issue the Republicans use to win elections. We need to fight this battle on our grounds, not theirs.
November 2, 2005 3:21 PM | Reply | Permalink
What if the Supreme Court decided that the "viability" line should be drawn at the place where medical science allows a fetus to survive outside a woman's body.
What place? Norway? Finland? Mississippi? Louisiana? Since we've got about the highest infant mortality rate in the first world, maybe we ought to make them enact universal health care first. If they really gave a damn about the actual lives of these unwanted children, I'd be a lot more inclined to move the bar.
November 2, 2005 4:01 PM | Reply | Permalink
Let's not overreach on the strip search issue. Reading the decision at
http://caselaw.lp.findlaw.com/data2/circs/3rd/024532p.pdf
the issue was whether an affidavit supporting the warrant should be considered part of the warrant.
November 2, 2005 4:26 PM | Reply | Permalink
There is absolutely no evidence that this would be the case if Roe were overruled. We have to remember that support for abortion rights remains above 60% in this country and that is after 30 years of relentless assault. A reversal by the SCOTUS would galvanize efforts to fight restrictions at the state level. It would turn the fight from a national one to 50 state-level ones.
This is wrong. Several states already have laws on the books that would automatically ban abortion if Roe is overturned:
I would also be concerned with the GOP House and Senate. Although these jokers pretend to care about "states rights" when it suits them, you can bet they'd be pushing for federal abortion regulation far more restrictive than the bill limiting "partial birth" abortion the second Roe fell.
In other news, this was predictable:
I think some of Graham and Dewine's reaction should be read in terms of self-preservation. These guys don't want to be forced to make the final decision on Alito. Really, could there be anything worse, for them, then to stuck square in the middle of the culture war? Of course not.
If Dems can persuade a few non-Gang of 14 Republicans to join in a fillibuster, things could get pretty interesting.
November 3, 2005 6:00 AM | Reply | Permalink
What had bothered me most about Alito was his apparrent traditional tribal patriarachil Judeo-Christian attitude toward women as evidenced by his ruling on the spousal notification issue.
If all goes well, the following is a link to an article by William Saleten in Slate that seems to confirm my worst fears. ://www.slate.com/id/2129321/.
Saletan provides chapter and verse.
Sam Taylor
November 3, 2005 7:45 AM | Reply | Permalink
I'm undecided on Alito at this point, but much as I agree with you on the abortion points, I think they should be subsidiary. Perhaps as a political matter I'm wrong, though I don't think so, but my real concern is at a constitutional law level - I just don't think abortion rights should be anywhere near the top of the list, even though I support them quite strongly.
Here are the real concerns: does he embrace unlimited executive power (vis-a-vis Congress and the judiciary), at a time when the executive wants a blank check to use torture and eliminate judicial review (and blame low-ranking soldiers when it is caught out)? And was that machine gun case just a matter of, 10 years ago, overreading the SCt precedent re guns near schools (Lopez), or a real measure of his own sense of how limited the authority of the federal government ought to be to respond to threats the elected branches think are real?
I don't put much stock in the statements about precedent and Roe, because it frankly is not the kind of precedent that creates deeply embedded reliance - individuals' reliance can quickly change, whereas undermining our reliance on the assumption that the federal government can regulate clean air and water, public safety, discrimination, and other matters under the commerce clause would be utterly wrenching.
Roberts won me over (well, relieved me) in his hearings primarily with his discussion of Lochner. I don't know that Alito can, not just because I don't yet know enough about who he is, but because he is replacing O'Connor, not Rehnquist. But I'm waiting to decide, and support for the Magna Carta will matter a lot more to me than support for Roe, which was a poorly reasoned (doctor's rights?) (though probably rightly decided) case to begin with.
And of course there's the matter of who he might appoint instead. Winning now and losing three months from now doesn't interest me. The Republicans may have stalled nominees for three years in committee when Clinton was in office - but you can't do that with a Supreme Court vacancy. Alito may or may not be better than McConnell or Mahoney, either of whom I'd have been inclined to support, even though they wouldn't have been my choices; he's certainly better than Edith Jones or Janice Rogers Brown or Alberto Gonzales (who I think is deeply suspect on the blank-check-to-the-executive point).
To the extent the abortion points really are serious, they aren't ones that will sell in an attack: parental notification, late-term or partial-birth bans, etc - when you really look at it, most of the people who need these protections really need them - but it's damn near impossible to get people to look past their own comfortable lives to recognize this, and at some point you have to be a little realistic about what the judicial branch can achieve, and start to actually make these arguments in the political sphere so that people understand what is actually at stake. Right now there are already so many obstacles to abortion, mostly driven by social pressures, that I am skeptical that judicial changes would be all that significant. Meanwhile, endorsing torture is damaging our most fundamental values, and our national security.
November 14, 2005 3:10 AM | Reply | Permalink
On the matter of the likely action by states following a posible reversal of Roe v.Wade, it coud be worthwhile for Democratic senators to ask Alito this question:
Supposing the SCOTUS reversed Roe v. Wade, would there remain any constitutional limitations on the powers of the states to legislate on abortion in either a liberal or restrictive direction?
Now real anti-abortion zealots would not be content to let Masachusetts or Wisconsin legislate liberally. Their aim is to move the bar federally - for them, the fetus has a constitutionally, i.e. federally, protected right to life. At the very least, the question would reveal whether Alito is a "states' rights" conservative or a "Christian family values" one, a political or a social reactionary.
January 12, 2006 4:34 AM | Reply | Permalink