Alito and Spousal Notification

Much has been made about Supreme Court nominee Samuel Alito’s opinion in which he believed it to be Constitutional to require a married woman to inform her husband before she had an abortion. Glenn Sacks writes an op/ed in today’s LA Times lambasting all us “hysterical” women who kinda like our reproductive rights, and claiming that Alito stands up for the reproductive rights of men. Now, I would love it if Alito stood up for reproductive rights, male and female alike. But that’s not what he’s doing. What’s particularly interesting about the spousal notification issue is that those on the MRA side seem to completely ignore the grounds on which Roe was decided — that is, the Constitutional right to privacy.

Now, we can split hairs over whether a right to privacy actually exists in the Constitution — I believe it does, some of you probably believe it doesn’t, and that’s all fine and good. For the purposes of this conversation, though, it stands that the highest court in this country believes that such a right exists, and that right is now recognized and utilized. Let’s not derail things by arguing over the basics.

But those who would argue that a wife should be legally required to notify her husband before she has an abortion do so because, as Glenn writes, “Feminists base their support for Roe vs. Wade in large part on the idea of “My Body, My Choice.” Yet men also help create children. Why should they have no say?”

Well… I think he kind of answers his own question, doesn’t he? “My Body, My Choice” isn’t about children. After all, children by definition are born, autonomous beings, and I don’t think that feminists are arguing that women should have an exclusive right to their children’s bodies. We just want the right to our own, including our reproductive systems. Yes, men help create children. There’s a general social agreement that parents both have a responsibility to the children they create. And while the argument can be made that men have an interest in any egg they fertilize, that interest cannot trump a woman’s basic right to privacy. In Roe, the court recognizes that the state has an interest in fetal life. But it also recognizes that the right to privacy is a more compelling interest, and that this right trumps the state’s interest in fetal life before the point of viability. If the standard is that the right to privacy trumps the right to fetal life, it would seem to logically follow that it would also trump a husband’s desire to know whether or not his wife has an abortion.

That’s why the conversation is going in circles: the MRA’s are talking patriarchial ideology, and the court is supposed to be evaluating law based on the Constitution. Men have just as much a right to privacy as women do. They have the right to control their own bodies, to decide to use contraception, and to decide when and how and with who to have sex. They day there’s a law requiring my husband to inform me whenever he ejaculates, I’ll be on the front lines protesting it. If there are laws requing spousal consent/notification for vasectomies, I’m against ’em and would argue that they’re patently unconstitutional.

The difference, of course, is that men can’t get pregnant — and so people like Glenn Sacks are, in fact, asking for special rights when they demand the right to know what particular women in their lives are choosing to do with their own reproductive organs.

Because that’s the deal with privacy rights for adults: They only extend to your own body. My desire to know what you do is not a reproductive right, even if what you do involves reproduction.

We go down a dangerous path with spousal notification laws for abortion. Where should they end? If men have a right to know what’s going on in your uterus, do they have the right to be notified if you go on birth control? After all, there’s a possibility that one of your eggs could be fertilized and it could not implant because of your birth control method, and that fertilized egg was half his, damn it! It’s worth noting, too, that Roe was decided along the same lines as Griswold, which gave married couples the right to obtain contraception (a few years later single women were afforded the same right). The right to privacy covers abortion and contraception. If it can be violated in the name of a man’s “right to know” about abortion, why not contraception?

The MRA’s also make the argument that “the fetus is half mine!” and so they should have equal say (or at least be notified) about their wife’s abortion. Again, though, the issue isn’t a game of cellular what-came-from-who. If that was the case, we’d be setting a fairly dangerous standard. Is it just to allow anyone who contributes to the modification of another’s body, or even the creation of something else on or within it, to then have partial ownership over that body? This isn’t the greatest example and of course few things are comparable to pregnancy, but if a plastic surgeon gives a women breast implants for free, can he then claim that those breasts are half his and demand her notification for, say, removing them? He paid for them. He created them. He put them in her. Doesn’t he then have a right to them? What if he’s her husband?

The MRA’s and right-wingers also point to the “bodily harm” exception to the spousal notification requirement that Alito wanted upheld — basically, if your husband is going to kill you or beat you senseless, you don’t have to tell him that you’re having an abortion. Good enough, right? The court answers, no (via a must-read post at Thoughts from Kansas):

273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy.

279. The `bodily injury’ exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or herchildren.

282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband’s illness, concern about her own health, the imminent failure of the marriage, or the husband’s absolute opposition to the abortion.

285. Wife battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous.

287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation.
288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife.
289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. . . . The battering husband may deny parentage and use the pregnancy as an excuse for abuse.

294. A woman in a shelter or a safe house unknown to her husband is not `reasonably likely’ to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under the circumstances.

297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident.
298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of whether the section applies to them.

Spousal notification is also fundamentally different from parental consent/notification. While I’m also opposed to parental notification laws, it’s an established legal principle that minors are in some circumstances not afforded the same rights as adults; it’s also an established principle that their rights are occassionally subject to review by their parent/guardian. As O’Connor writes:

This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. 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.

Why? Because adult women are adults. Certainly people of all ages benefit from consulting others. But mandating that consultation is infantilizing, plain and simple, and legally takes us back to the days when women couldn’t do much of anything without their husband’s permission or notification. The law, rightfully, puts great emphasis on the individual and on personal liberty. Again from O’Connor, “It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s.” Obviously. When a woman is pregnant, it is her body that is affected, not her husband’s.

Spousal notification laws are further logically inconsistent — they literally give married women fewer rights than those who aren’t married. Unmarried women have the right to abortion without getting permission, or telling anyone else about it. Married women lose that right. Reproductive rights are inherently individual and personal, and should not be subject to change based on one’s marital status.

It should go without saying (but yet somehow it doesn’t) that the vast, vast, vast majority of married women do talk to their husbands before they have abortions. In an ideal world, a law like this wouldn’t be necessary because everyone would be in healthy relationships and no one would ever get hit. But when the #1 cause of death for pregnant women is murder, and the majority of those murders are at the hands of their husbands or intimate partners, we can’t assume that we live in such a world. And we certainly can’t make laws which depend on the assumption that all marriages and families are functional. Pointing that out isn’t degrading or hateful to men in general; it’s saying that the majority of people are good and functional, but a handful of both sexes just aren’t.

These laws are about control, plain and simple. While one can make the argument that Alito was simply trying to base his opinion on what he believed was the next logical step according to precedent, the same cannot be said for all the MRAs and wingers who are coming out of the woodwork now to support spousal notification. For them it isn’t about the right to privacy, but their own personal entitlement to their wives’ bodies.


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69 comments for “Alito and Spousal Notification

  1. November 1, 2005 at 6:03 pm

    Reproductive rights are inherently individual and personal, and should not be subject to change based on one’s marital status.

    Bingo, Jill. And that’s where we’ve got to cope with the MRAs, who use the rhetoric of rights to claim not only the “right” to have a say in their wives’ decisions, but also to be able to opt out of child support if they didn’t want to have a kid to begin with.

  2. November 1, 2005 at 6:09 pm

    Of course, their other goal is simply to put up as many roadblocks in the way of abortion as possible.

    Excellent post.

  3. November 1, 2005 at 6:16 pm

    their other goal is simply to put up as many roadblocks in the way of abortion as possible.

    I think this is the primary reason why so many are bending over backwards to defend Alito’s decision.

  4. November 1, 2005 at 6:26 pm

    This is a really great post, Jill. It articulates more clearly something I was trying to argue with someone earlier today, in fact. Thanks.

  5. Jon C.
    November 1, 2005 at 6:30 pm

    While one can make the argument that Alito was simply trying to base his opinion on what he believed was the next logical step according to precedent, the same cannot be said for all the MRAs and wingers who are coming out of the woodwork now to support spousal notification.

    Well, I’m glad you at least recognized that Alito wasn’t passing judgment on whether the law was good or bad. The legislature and the Democratic governor who signed it clearly thought it was good: Alito’s role was simply to determine its constitutionality.

    And what the heck is an MRA?

  6. November 1, 2005 at 6:30 pm

    Is it just to allow anyone who contributes to the modification of another’s body, or even the creation of something else on or within it, to then have partial ownership over that body? This isn’t the greatest example and of course few things are comparable to pregnancy, but if a plastic surgeon gives a women breast implants for free, can he then claim that those breasts are half his and demand her notification for, say, removing them? He paid for them. He created them. He put them in her. Doesn’t he then have a right to them?

    OT: Interestingly, there are tattoo artists who have tried to sue celebrities for displaying their ink for published photo shoots. They argue that they have the rights to some of the revenue made off of celebrity displays of the tattoo artists’ “intellectual property.”

    I believe these cases, to date, have always been dismissed.

  7. November 1, 2005 at 6:32 pm

    MRA: short for Men’s Rights Activists, most of whom are dedicated to rolling back women’s rights as though gender equality were a zero-sum game. Most often they concentrate on family policy in order to reinstate the father as a legal patriarch, even after the dissolution of marriage.

  8. November 1, 2005 at 6:32 pm

    MRA = Men’s Rights Activist. Sorry for the confusion.

  9. EricP
    November 1, 2005 at 6:54 pm

    Jill, for what it is worth, you’ve convinced me that my support of spousal notification was wrong. I’m not a big fan of allowing edge cases (in this case, cases where the husband is a monster) to trump legislation that in most situations will do more good than harm. You can always think, if you try hard enough, of some situations where any policy will have negative consequences. Your point that really changed my mind was the fact that this law will only affect the edge cases since in most normal situations, the wife/woman will tell the father anyway. In short the only time this law will have any effect is when women have a good reason not to tell their husbands.

  10. Jon C.
    November 1, 2005 at 7:03 pm

    Your point that really changed my mind was the fact that this law will only affect the edge cases since in most normal situations, the wife/woman will tell the father anyway.

    Interestingly enough, this is part of why Alito thought that the spousal notification requirement passed the “undue burden” test: because it would only affect maybe 5% of married women seeking abortions, and even part of that 5% would fall under the various exceptions built into the law.

  11. EricP
    November 1, 2005 at 7:11 pm

    BTW, I don’t think you should tar all MRA with the same brush. While I wouldn’t consider myself an activist for any cause, I certainly believe that there are areas of law, policy and social mores where the pendulum has swung too far in the opposite direction. Just as I believe that there are areas where women’s positions in society require addressing. There are radical feminists that I personally disagree with but I certainly don’t think all feminists are cut from the same cloth. Every group has their radicals, but by definition radicals are at the extreme edge of any group.

    As a matter of biology, until they create a sperm-recall button, men aren’t going to be able choose whether or not to be a father after the deed is done. Men get one time to choose, when they pull it out of their pants, women get two. Any attempt to claim otherwise is just denying reality. Now as a man, I might wish it could be different but what I can I do? I’m just a man.

  12. EricP
    November 1, 2005 at 7:22 pm

    Interestingly enough, this is part of why Alito thought that the spousal notification requirement passed the “undue burden” test: because it would only affect maybe 5% of married women seeking abortions, and even part of that 5% would fall under the various exceptions built into the law.

    I thought of that too, I’m just very tired and didn’t want to try to defend him while giving away that point;-).

  13. November 1, 2005 at 7:30 pm

    Men get one time to choose, when they pull it out of their pants, women get two.

    Only because women get pregnant. Pregnancy is inherently unequal and should thusly favor the one whose body does the work during gestation.

    Regarding the MRA thing: I agree. I’ve been in contact with a few MRAs I genuinely like and, though I disagree with much of their rhetoric, understand why it is that they feel so disempowered. What I disagree with is their violently anti-feminist crap. Many of them are working to achieve perfectly reasonable ends. But what you’ll see of them on this site is a mess of misogynist commentary that often stems from being on the bitterest end of a divorce or custody case. Some of their rhetoric is fine, much of it is vile. If you want an example of some of their arguments, hang out on Hugo’s blog and look through his archives. He’s the first commenter on this thread.

  14. November 1, 2005 at 7:31 pm

    Interestingly enough, this is part of why Alito thought that the spousal notification requirement passed the “undue burden” test: because it would only affect maybe 5% of married women seeking abortions, and even part of that 5% would fall under the various exceptions built into the law.

    Again, who decides what is valid abuse? How do we verify it?

    Is that five percent worth sacrificing?

  15. Michael
    November 1, 2005 at 7:52 pm

    “As a matter of biology, until they create a sperm-recall button, men aren’t going to be able choose whether or not to be a father after the deed is done. Men get one time to choose, when they pull it out of their pants, women get two.” EricP, I hear what you’re saying, but you must admit that the woman’s physical investment in child-bearing is far greater than the man’s. It is not simply a choice of being a mother/father, but also the effects of the pregnancy itself on the mother’s body.

    And ignoring that, you must also admit that the responsibility for the child after birth more often than not resides with the mother. Yes, a mother can get child support payments from the father to help out, but she must still do the work of raising the child. How many times have you heard the phrase “deadbeat mom?”

    Since the physical, emotional, financial, etc., investments in having the child are nearly universally greater for the woman than the man, I have absolutely no problem with women having more choices than men. Of course, I also prefer to have healthy relationships with women where important decisions like this would be discussed.

  16. November 1, 2005 at 7:57 pm

    Excellent post.

  17. November 1, 2005 at 8:07 pm

    a mess of misogynist commentary that often stems from being on the bitterest end of a divorce or custody case.

    It makes you (the general sense) want to say: we are not all your ex!

  18. November 1, 2005 at 8:14 pm

    we are all not? not all? er, the grammar enforcer is coming for me, i just know it.

  19. Leslie
    November 1, 2005 at 8:18 pm

    well stated Jill

  20. EricP
    November 1, 2005 at 8:26 pm

    Lauren and Michael, I acknowlege and accept the fact woment get the second choice. I don’t like that they have it but I as a man don’t, but I don’t like it when it rains either. It is a matter of nature. I figured that the sperm-recall button comment would make it clear that I wasn’t being too serious. Women get pregnant, they deal with the normal consequences and face the risks of complications and even death (birth may be much safer than in the past but it still has risks). Even under the best of circumstances, the pregnancy will affect them for 1.5% of their entire time on earth. It is their bodies and they can decide what happens therein.

    I can lament the situation without thinking that it should change. Once the child is born, the man’s obligation is to the child not the woman. For most men I know, even without legal obligations, they would do the best they could by their children. Obviously some men aren’t like the men I know.

    On a silly side-note… Can you even imagine if a sperm-recall button actually existed when the the sperm could actually be pulled out of the fertalized egg/fetus. I can’t even imagine the legal/ethical consequences of that!

  21. November 1, 2005 at 8:27 pm

    Great post Jill and thank you Michael for your eloquent rebuttal to EricP’s comment. I do admit I understand EricP’s point, but like Lauren said, we get 2 choices because pregnancy is inherently unequal to begin with.

    I agree that not every MRA should be lumped into the same category, but they do come out with a lot of anti-feminist misogynistic baloney that really is tough to take. There are better ways of gaining empowerment than through slandering all women simply because they were on the losing end.

    And I have to reiterate Lauren’s comment: are the 5% of women who might be adversely affected by spousal notification laws really worth it? 5% wouldn’t equal only 5 women so why are the 95% of women who might not be affected seen more important? it may have passed the undue burden test, but what about all the other tests out there to determine outcomes of cases?

  22. Kyra
    November 1, 2005 at 8:45 pm

    Alito said earlier that husband-notification laws are all right because some women whom such a law would affect don’t get beaten, threatened, intimidated, etc.

    Why, then, is it not acceptable to him that only some women tell their husbands before having an abortion?

    I agree with Ampersand. “No one who thinks husband-notification laws are constitutional is fit for the Supreme Court.” Not to mention the practice of law in this country. Methinks he should be given a sex-change operation and deported to Saudi Arabia or Iran.

  23. Tanooki Joe
    November 1, 2005 at 9:00 pm

    Excellent post.

    BTW, is anyone else irked with the euphamism “privacy rights”? They should be called what they are: the right to control one’s own body.

  24. Kyra
    November 1, 2005 at 9:06 pm

    As a matter of biology, until they create a sperm-recall button, men aren’t going to be able choose whether or not to be a father after the deed is done.

    A recall button is hardly the equivalent of an abortion. Getting your genetic material BACK is not the issue here; getting genetic material OUT is. If men lack choices pregnancy offers, it is a direct result of the fact that they also lack the burden. Abortion is a woman choosing what men have as the status quo: non-pregnancy. Any man who gets pregnant is just as entitled to an abortion as any woman who gets pregnant is.

    I acknowlege and accept the fact woment get the second choice. I don’t like that they have it but I as a man don’t . . .”

    Do you equally dislike that they can get pregnant and you can’t? Because they go hand in hand like matter has mass.

  25. Jon C.
    November 1, 2005 at 9:08 pm

    Alito said earlier that husband-notification laws are all right because some women whom such a law would affect don’t get beaten, threatened, intimidated, etc.

    Er, not really. He said spousal notification requirements would be constitutional (not the same thing as “all right”) because, in his opinion, Planned Parenthood failed to prove that the very small percentage of married woman who would be affected would be harmed by such requirements. He wasn’t saying it was okay for some women to be “beaten, threatened, [and] intimidated”- in fact, he felt that the law sufficiently protected women from those kinds of consequences. Reasonable people can disagree about this, but you should actually read Alito’s opinion in Casey before you go off about deporting people to Iran.

  26. Harrison
    November 1, 2005 at 9:09 pm

    May I complement the very civil tone maintained in this discussion? At a time when partisanship seems to rule public discourse, it’s nice to read people being civil to each other, even as they disagree. You folks could teach our elected officials a lot…

  27. November 1, 2005 at 9:18 pm

    I think this is the primary reason why so many are bending over backwards to defend Alito’s decision.

    I can only speak for myself, but I’m pro-choice as a matter of public policy. Not just “leave it to the states”; rather, I think it should be resolved through the amendment process.

    I “defend” (in a way) Alito’s Casey decision simply because it made sense within the “undue burden” precedent he was given to work with.

  28. EricP
    November 1, 2005 at 9:24 pm

    A recall button is hardly the equivalent of an abortion. Getting your genetic material BACK is not the issue here; getting genetic material OUT is. If men lack choices pregnancy offers, it is a direct result of the fact that they also lack the burden. Abortion is a woman choosing what men have as the status quo: non-pregnancy. Any man who gets pregnant is just as entitled to an abortion as any woman who gets pregnant is.

    Obviously you missed my next post on the subject. The recall button is obviously a fantasy. I have no problem with abortion at all. I can regret that a man doesn’t have second choice without advocating that he should be able to force a woman in either direction.

  29. November 1, 2005 at 9:25 pm

    Resolution via amendment is a pie in the sky philosophy. As much as I’d love to see it happen, it won’t in my lifetime.

  30. Earl
    November 1, 2005 at 9:34 pm

    Jill,

    This is why the conversation is going in circles:

    And while the argument can be made that men have an interest in any egg they fertilize, that interest cannot trump a woman’s basic right to privacy.

    There is an inherent tension between all “rights” granted to people and none are absolute: the right to free speech vs the many restrictions on speech that exist; the right to privacy vs the states’ interest in controlling illegal drug usage, etc. The point here, however, is when you say that a man’s interest in any egg he fertilizes is trumped by a woman’s right to privacy. That’s not a settled fact; that *is* the debate. Whether that clump of cells is merely a clump of cells or a pre-human, while obviously a matter of viewpoint, matters a lot. For example, my ex had a miscarriage 4 years ago; the fallout from the miscarriage is a large part of the reason she is an ex. Had we viewed the foetus as merely a clump of cells the miscarriage wouldn’t have had any emotional fallout.

    In any case, it would be different if women didn’t want to have it two ways: (1) complete, exclusive control over the abortion decision, and (2) men are still on the hook for child support if women decide, at their sole discretion, not to have an abortion and not to give the baby up for adoption. If men could divorce their children for the price of an abortion, leaving the decision to have an abortion or not in the woman’s hands, I’d be more sympathetic to your complaints. If that makes me an MRA — whatever that is — then fine. But from my viewpoint as a man that has sex with women, it’s a matter of fairness.

    In any case, while I come down on the side of disagreeing with forced notification, I am sympathetic to the idea of forcing a woman to at least notify a man and attempt to let him talk her out of the abortion before she commits to the decision. After all, this is against his purely economic interests. Hell, maybe it would be worth it to her to let him pay her to have the baby then give him custody.

    Just so you all know, I’m in favor of legal abortions at any time until the baby’s head crests. However, let’s not kid ourselves; it’s not as if a foetus is just some random clump of cells — it’s a random clump of cells that will most likely turn into a baby unless this process is interfered with. So even if you believe that the privacy right trumps a man’s interest in his pre-child, you should be able to see why others believe differently.

    earl

  31. November 1, 2005 at 9:55 pm

    I would be really, really nice to resolve all the issues the framers couldn’t have fortold when they wrote the Constitution with the Amendment process (I’m still waiting for the ERA.)

    Or …the Justices could use their considerable brainpower to devine that the state of pregnancy and the right to make decisions about one’s own body goes to the heart of “life, liberty and the pursuit of property.”

  32. November 1, 2005 at 9:56 pm

    “It” would be …

  33. November 1, 2005 at 10:08 pm

    Silly rabbit, women weren’t in the Constitution! Activist!

  34. November 1, 2005 at 10:09 pm

    As a matter of public policy, I’m pro-choice as well, though reluctantly so. I think many of us “wingers” have been defending Alito because we don’t like to see the nuanced legal arguments he made reduced to caricaturish slogans like “all your uterus are belong to us.”

    Alito never said the law was good or bad. Instead, he argued that in his estimation, and using contemporaneous law and O’Connor’s undue burden standard, the legislature — who represent the people of Pennsylvania — have a legal right, under the Constitution, to pass that law.

    The final Supreme Court ruling was 5-4 against — hardly indicative of a fringe dissent.

    Personal, I think the law is like much law passed nowadays by state legislatures: largely symbolic, practicably unenforceable, and so toothless as to be a waste of everyone’s time but the legislatures’. But what I like about Alito is that he didn’t play philosopher king. Instead, he applied precedent and examined the law, then came to a conclusion based on clearly articulated legal reasoning.

    There is a difference between a bad law and bad law. Judges should be concerned with the latter and not the former.

  35. Jon C.
    November 1, 2005 at 10:53 pm

    Well put, Jeff. And as to the law being basically symbolic and unenforceable, Alito also said as much in his dissent.

  36. November 1, 2005 at 11:06 pm

    Symbolically what, then?

  37. November 1, 2005 at 11:10 pm

    Resolution via amendment is a pie in the sky philosophy. As much as I’d love to see it happen, it won’t in my lifetime.

    I’m not so sure. Actually, though, this might show where our philosophies diverge a bit: I’m just accepting where the ends I desire don’t necessarily (hey, it’s an open question) meet the means that are readily available.

  38. November 1, 2005 at 11:29 pm

    As we have seen in many facets of our lives, technology often changes perspectives before the law knows how to deal with the situation. Work on ectogenesis is being conducted in labs around the world. It’s likely, that at some time in the future, we may be addressing the ethics and legal questions surrounding fetal extraction, rather than extinction. What then?

    Roe v. Wade, after all, is predicated on two basic ideas: a woman’s right to privacy (including the right not to be pregnant) and the viability of the fetus–defined as the ability to survive outside the mother’s womb, currently placed at 24 weeks of gestation. Complete ectogenesis could dismantle both of these premises. First, it could make Roe’s viability issue moot, since with ectogenesis a fetus could be technically viable outside the mother’s womb from the moment of conception.

    Which would surely impact the other idea underpinning Roe: a woman’s right to privacy. With ectogenesis, an unwanted fetus, rather than being aborted, could be removed from a woman and placed in an ectogenetic chamber to be adopted later; the woman’s right to privacy would arguably not be invaded, since removal of the fetus for implantation in an artificial womb need not be any more invasive than the abortion she was originally seeking. As bioethicists Peter Singer and Deane Wells write of ectogenesis in their book Making Babies: The New Science and Ethics of Conception, “Freedom to choose what is to happen to one’s body is one thing; freedom to insist on the death of a being that is capable of living outside of one’s body is another.”

    Although many right-to-lifers are skeptical of reproductive technology in general and view ectogenesis as an unnatural and dehumanizing possibility, others recognize that it could radically alter the abortion debate. “Roe v. Wade should be repealed anyway,” says Dr. W. David Hager, an obstetrician-gynecologist and professor at the University of Kentucky School of Medicine who currently serves as head of the Bush administration’s Reproductive Health Drugs Advisory Committee. “But, if we had the technology to be able to placentize or incubate in a placental environment, then I would say that would be an argument in favor of repeal.”

    I can see the the MRA reacting with glee, especially when the prospective fathers decide they want to keep the fetus, raise the child and slap the mother with a court ordered child support obligation. What I have trouble imagining is how a spousal support notification law wouldn’t make sense in such a case.

    I realize that this whole line of reasoning is quite speculative at this juncture but I also think that an examination of points like this serves to focus the argument on fundamental principles, which is what I assume is Jill’s intent for this post.

  39. November 2, 2005 at 12:01 am

    I haven’t read all these comments (sorry, it’s late) but I already went through this argument in another venue earlier this week. No one I heard from could articulate a theoretical situation to justify spousal notification unless the woman was a) an absolute moron (like she forgot to tell her husband, or flippantly changed her mind about a planned pregnancy and didn’t want to tell her husband) or b) is a demonic man hating bitch.

    Until I read a theoretical situation that doesn’t include these premises, I’ll continue to rank spousal notification among the most purely sexists laws. It’s just so… indefensible.

  40. November 2, 2005 at 12:14 am

    I suggest you read the comments.

  41. Kyra
    November 2, 2005 at 12:39 am

    Er, not really. He said spousal notification requirements would be constitutional (not the same thing as “all right”)

    I meant “all right” in the context of “acceptable under the Constitution.” That is, it is all right (constitutional) for a law to require it—it’s all right = they can do it. What else did you think it meant?

  42. November 2, 2005 at 1:00 am

    I am not adding too much to the above discussion, but I just had to say thank you for reminding us that “adult women are adults.” Alito’s decision treats women as nothing more than possessions. All those who want to overturn Roe want to do is make up our minds for us.

  43. Kyra
    November 2, 2005 at 1:26 am

    He wasn’t saying it was okay for some women to be “beaten, threatened, [and] intimidated”- in fact, he felt that the law sufficiently protected women from those kinds of consequences. Reasonable people can disagree about this, but you should actually read Alito’s opinion in Casey before you go off about deporting people to Iran.

    The deportment to Iran idea was an attempt at poetic justice, no more realistic than the sperm recall button. My basis for disliking Alito, however, goes beyond the dissent and to the mindset he has to have in order to rule in this fashion. I can’t prove that he thinks it’s OK for women to be beaten or threatened, but he apparently thought it was a minor thing to make them risk it (knowing, I’m sure, that the law’s protection doesn’t always work in practice), and he didn’t give a thought to (or didn’t care about) various other things a husband could do to interfere or punish her, which the laws in question don’t protect her from (such as telling her (potentially anti-choice) family or other people about her abortion against her wishes, manipulating finances to prevent her from accessing enough money to pay for the abortion, etc). Most of all, he sees nothing unduly burdensome OR unconstitutional about making one adult human being answerable to another human being that she’s supposed to be in an equal partnership with, as a consequence of making a certain choice, without him EVER being answerable to her in the same manner. Which is (part of) my basis for being of the opinion that he’s apathetic, sexist, thoughtless, and unfit to serve on the Supreme Court due to a demonstrated bias and a poor understanding of both burdens and state interests, which could have disastrous consequences for many people’s lives, happiness, and personal liberties.

    Does anyone know what precisely the hell this “compelling state interest” is? I don’t see how there’s ANY compelling state interest in putting roadblocks between women and abortion. (Nobody pop up and say fetal viability, please—I’m talking about the termination of a pregnancy, not the termination of the fetus, and after fetal viability the two are no longer essentially synonymous. This is where TangoMan’s ectogenesis idea comes in—the idea that “you can’t remove it from the womb because it can now live outside the womb” is the most spectacularly illogical argument ever coined.)

  44. Kyra
    November 2, 2005 at 1:32 am

    Complete ectogenesis could dismantle both of these premises. First, it could make Roe’s viability issue moot, since with ectogenesis a fetus could be technically viable outside the mother’s womb from the moment of conception.

    Which would surely impact the other idea underpinning Roe: a woman’s right to privacy. With ectogenesis, an unwanted fetus, rather than being aborted, could be removed from a woman and placed in an ectogenetic chamber to be adopted later; the woman’s right to privacy would arguably not be invaded, since removal of the fetus for implantation in an artificial womb need not be any more invasive than the abortion she was originally seeking.

    I think that, should this come to pass, that a woman’s right to an abortion would have to be REPLACED with a woman’s right to ectogenesis before Roe v. Wade could legitimately be overturned. That is, a woman could not be forced to continue an unwanted pregnancy when ectogenesis was not available to her specifically.

  45. November 2, 2005 at 1:42 am

    Does anyone know what precisely the hell this “compelling state interest” is? I don’t see how there’s ANY compelling state interest in putting roadblocks between women and abortion.

    Sorry to be pedantic, but I don’t think it’s a question of a “compelling” state interest. A law that is rationally/reasonably related to a “legitimate” (not “compelling”) state interest must pass the “undue burden” test under the compromise the framework outlined by O’Connor.

    Roe itself recognizes the State’s interest in potential life, so you’re looking in the wrong direction if you’re questioning the State’s interest, as opposed to the “undue burden” test (unless we’re gonna toss out Roe).

  46. November 2, 2005 at 2:00 am

    Kyra,

    I think that, should this come to pass, that a woman’s right to an abortion would have to be REPLACED with a woman’s right to ectogenesis before Roe v. Wade could legitimately be overturned

    Do you think that the Pro-Choice movement, of which I’m a male sympathizer, would be on-board with that? The result would be to make objecting women just as culpable in the future as objecting men are today. The decision to become a parent is then removed from the women’s control. Is that an outcome that will have to be defeated or submittedd to?

  47. November 2, 2005 at 2:16 am

    Alito’s decision treats women as nothing more than possessions.

    See what I mean? Cartoons. Here’s a different take, for those of you who believe that a Princeton / Yale / Yale Law Review grad might be a bit less of a jesushumping reactionary than some seem intent on making him out to be.

  48. November 2, 2005 at 4:59 am

    I’ve known people of political and moral and social opinions strongly, even profoundly, alien to my own – and some of these people, despite the inexplicable character flaw their opinions reflected, were quite decent folk with good sense and basic honesty. Wrong or misguided on some topics, no doubt, but underneath, good people. I wouldn’t describe everyone on the other side of the barricades in those terms, but there are some.

    I can readily conceive one of those people becoming a judge, and ruling in some fashion which I find odious; and I can further conceive of that person having done so with honesty of motive and sound reason. As Mark Twain said of infant baptism, “Believe in it? Wny, I’ve seen it done!”

    I’ve known a fair number of folk, on both political right and political left, atheists and agnostics and Christians and Jews and no doubt eleven varieties of everything else. Friends and lovers, buddies and partners and clients and helpers, wives and children and kin of all flavors. And pretty much every grouping and division and faction has its members who are decent and honest people. And so I often can’t get too worked up about divisions and labels, these days.

    With scattered exceptions – probably due to my own lack of experience, rather than any demographic truths – every group I’ve ever seen represented has presented folk who, if made a judge, I would trust and in whose honesty I would be able to believe.

    So my question to the Alito-burn-devil-spawn contingent – whoever its members may be – is this: is it so inconceivable that this Alito fellow is just a decent Joe with a keen legal mind, and a philosophy which, while not the same as yours, is part of a long and largely honorable tradition?

  49. Jenny K
    November 2, 2005 at 5:34 am

    Unless you are arguing the father’s rights angle, then requiring any adult to notify any person other than a health care provider* of a medical condition, especially one that is non-communicable or fatal to others, is completely antithetical to how we commonly treat every other medical condition. There are cases where not informing others endangers their health, and so the patient may be later found at fault for not doing so, but even in these extreme situations the patient is not denied the treatment of their choosing because they have not already informed a third party.

    If one is arguing the fathers’ rights angle, one must therefore greatly expand who has the right to be told and what they have the right to be told – the majority opinion included the latter point in their decision as an example of how radical this view of fathers’ rights really is.

    Either way, the law is diminishing someone’s rights. Wives, first for requiring that they inform husbands when single pregnant women do not need to inform their sexual partners, and secondly for taking the stance that their “husband’s interest in the potential life of the child outweighs [their] liberty.” Unmarried potential fathers, for not having the same parental rights as husbands. Married pregnant women, for being the only adults legally required to disclose personal medical information on a non-communicable condition to others. Husbands even, for giving them rights on paper that are nearly impossible to enforce.

    The fact that most women already notify their husbands, and most of those who don’t would fit under the exemptions is part of what makes this a potentially bad law. The fact that the burden of proof on the wife is so low as to make beating the system ridiculous, and that it must be in order for the law to not create an undue burden for a large number of women, makes this definitely a bad law.

    Certainly not all bad laws are unconstitutional as well, but if affording people different basic rights based on marital status, gender, or medical condition is not a violation of civil rights, what is? Or are parental rights, medical privacy, and personal liberty not considered basic rights?

    Feminists are not the only one’s saying that “Alito’s decision treats women as nothing more than possessions.” – the majority opinion said so too, although it qualified it as “[the law] embodies a view of marriage…repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry.” See, it’s not all women, just married ones. And yes, it was technically the law they were calling pre-historic, not Alito, but they were aware of his dissent right? It’s not like anything he said changed their minds about their decision.

    *by this I mean Insurance companies, pharmacists, and state health officials as well as doctors and nurses

  50. AB
    November 2, 2005 at 10:19 am

    Alito never said the law was good or bad. Instead, he argued that in his estimation, and using contemporaneous law and O’Connor’s undue burden standard, the legislature — who represent the people of Pennsylvania — have a legal right, under the Constitution, to pass that law…There is a difference between a bad law and bad law. Judges should be concerned with the latter and not the former.

    Okay, I’ve seen this argument in a few places. And the thing that really, really bothers me about it is that it fails to acknowledge that the very heart of the matter for those of us that are reacting so strenuously to this issue is that we see it as matter of civil rights–that is, it’s not that we just don’t like the law, but we see it as fundamentally unconstitutional. So, point in fact, we believe Alito was wrong to find that the people of Pennsylvania have the right to legislate here, just as the people of any state wouldn’t have the right to legislate segregation of schools or ending suffrage for people under 21. I don’t really care whether Alito thinks it’s a good or bad law; I care whether his legal reasoning is biased against women in a way that would lead him to fail to protect women’s civil rights–which is pretty much the point of the Supreme Court. (Protecting every group’s civil rights, not just women’s, of course.)

    You can disagree (and probably do) that abortion and birth control are matters that rise to the level of civil rights. But please don’t act like the problem is that we’re just too dense to understand the difference between disagreement with a particular outcome and broad principles about the place of judiciary in relation to the legislature. We’re both talking about the latter.

  51. November 2, 2005 at 12:49 pm

    Right on. This ruling is infantilizing.

    The day men get pregnant will be the day they should be able to decide if they will carry their pregnancies to term or not. Pregnant women should be able to make the choice to abort or carry because they are the ones who will have to endure the physical effects of pregnancy, and who will be exposed to the risks and complications of pregnancy.

  52. Hestia
    November 2, 2005 at 2:01 pm

    Spousal notification laws are further logically inconsistent — they literally give married women fewer rights than those who aren’t married. Unmarried women have the right to abortion without getting permission, or telling anyone else about it. Married women lose that right.

    One might therefore argue that spousal notification laws would harm the institution of marriage…

  53. Linnaeus
    November 2, 2005 at 2:15 pm

    As Ampersand pointed out, this isn’t spousal notification. It’s husband notification. Let’s be clear on that one.

  54. zuzu
    November 2, 2005 at 3:22 pm

    He said spousal notification requirements would be constitutional (not the same thing as “all right”) because, in his opinion, Planned Parenthood failed to prove that the very small percentage of married woman who would be affected would be harmed by such requirements.

    That analysis, though, shows why he’s wrong. It’s not that only a small percentage of married women are “affected” by the law — ALL married women are affected by it. The law created an additional burden for married women that was not placed on single women. That most married women did not find the notification requirement to be an obstacle to getting an abortion does not change the fact that they were still required by the state to jump through one more hoop to assert their reproductive rights than single women were. And, as the Supreme Court found in Eisenstadt v. Baird, making distinctions in privacy and reproductive rights based on marital status is unconstitutional.

  55. zuzu
    November 2, 2005 at 3:36 pm

    As JennyK pointed out, too, the law as written also gave additional rights to married men versus unmarried prospective fathers, based not on any sort of “ownership interest” in the fertilized egg, but based on their legal relationship with the mother. You’d think the MRAs would be all over it for that reason alone.

  56. B. Barton
    November 2, 2005 at 5:05 pm

    You say on your blog what I have been SCREAMING since Alito was nominated!!

    Now let’s have a law saying that husbands need their wives’ consent NOT to have vasectomies (or total castration).

    Alito lives near me.
    He has 1 kid.
    He was 40 when he had the 1 kid.
    Someone practices reproductive rights in that family.

  57. Thomas
    November 2, 2005 at 5:35 pm

    He has two children. He has a son and a daughter.

  58. November 2, 2005 at 5:47 pm

    Yeah, his son is a real piece of work, too.

  59. November 2, 2005 at 6:12 pm

    Some praise of Alito from sources that might surprise you (via Patterico).

  60. November 3, 2005 at 11:16 am

    In one sense, it’s admirable to attempt to argue either way upon spousal notification as if it’s its own issue, but it’s nigh unto impossible to continue that argument for any duration. It inevitably hinges upon two major questions:

    “What is Abortion?” and “What is Marriage?”

    Abortion is, of course the removal of fetal tissue from a woman’s uterus. That’s the “sterilized” definition. That tissue must be viewed as one of two things, either a life or a piece of property. One demands preservation, the other is an object to be either kept or disposed of at its owner’s discretion.

    Marriage is an agreement in which two people join together under a bond of partnership that includes (among several other facets) shared benefits, responsibilities, and control over assets. It is an agreement entered into voluntarily (at least in this nation), and it’s a legally binding agreement (as evidenced by the complexity of divorce proceedings).

    When the question of spousal notification arises, it strikes at the framework of those two points, in that it presupposes the fetus to be “property” (as established in Roe, otherwise abortion could be deemed illegal by any of the several states), and it limits its scope of influence to couples who have entered into an agreement that involves joint possession of property (especially that which is acquired through joint effort).

    One may argue that because the woman is in possession (quite intimate possession, at that) of the fetus, it is considered “more” her property than her husband’s. That would be akin to arguing that interest in the couple’s domicile or vehicles shouldn’t be divided in the event of divorce because only her husband’s name is on the titles or deeds to the property. Legally, it’s shaky ground.

    I would also caution that to argue that the fetus is more than property leaves a void which must be filled with an alternative definition of the fetus. The logical progression must be that it’s to be seen as a part of the woman’s body. As such, she would be free to remove that part without notification or consent from any other party. You wouldn’t, for example, be bound to any form of “notification” for an appendectomy. There’s one glaring problem with that analogy, however, Though nonremoval of body parts may have dire consequences, nonremoval of the fetus leads to the birth of a human being, for which the father, by law, must assume some responsibility, if only financial (a situation which extends beyond the presence or absence of a marriage agreement).

    Of course, if the fetus is viewed as a life, the argument regarding spousal notification is moot.

    I offer, therefore, that the case for spousal notification (and perhaps even consent) is far from “indefensible” to anyone who isn’t content to relegate the complexities of this debate to a thinly veiled attack on abortion rights.

  61. ripley
    November 4, 2005 at 2:15 am

    One may argue that because the woman is in possession (quite intimate possession, at that) of the fetus, it is considered “more” her property than her husband’s. That would be akin to arguing that interest in the couple’s domicile or vehicles shouldn’t be divided in the event of divorce because only her husband’s name is on the titles or deeds to the property. Legally, it’s shaky ground.

    The fetus being actually inside the woman’s physical body grants her quite a different relation than a house having a particular person’s name on the title. I don’t think it’s difficult to see that.

    In fact, the analogy might concievably go the other way – given the existence of Palimony and alimony settlements. The law allows physical reality to trump the legal formality in many cases.

  62. November 4, 2005 at 10:44 am

    Ripley, that’s why I didn’t stop writing after the paragraph you quoted. It’s not hard to see that the fetus is more than the “property” level relfects, either.

    The law allows physical reality to trump the legal formality in many cases.

    I’m not sure I follow you. Can you elaborate, or provide an example to illustrate your point? I’m really not trying to be contrary, I truly don’t understand the point you’re making here.

  63. November 4, 2005 at 11:15 am

    If you break down the situations in which the law applies (a married woman wishes an abortion) and compares it to those in which it does not (a married woman is pregnant but doesn’t wish to have an abortion, anything involving unmarried women) it is easy to see that the law imposes a significant and disproportionate burden on married pregnant women who seek abortions, and no penalty on women in other situations.

    Moreover, if you look at the possible outcomes for husbands and fathers (not necessarily the same thing) it is clear that the law produces no particular benefit for fathers, and only a slight one for husbands.

    Looking at the breakdown (which I posted in the comments thread HERE) it’s pretty clear that the main effect of spousal notification laws of this type is to penalize married women who choose abortion over pregnancy, with the implication that the expectation is that any married woman who becomes pregnant is expected under law to carry the fetus to term.

  64. November 4, 2005 at 5:49 pm

    Rana,

    To consider a woman who does not want an abortion as one of the “other situations” to consider accomplishes nothing. It’s a law regarding abortion.

    As has already been mentioned, repeated, and is now nearing the “dead horse” category, married people have entered into an agreement, unmarried people have not.

    …the implication that the expectation is that any married woman who becomes pregnant is expected under law to carry the fetus to term.

    Isn’t that reading a whole lot into a law that simply attempted to establish a husband’s right to know about his wife’s choice to eradicate his progeny?

  65. November 4, 2005 at 9:43 pm

    No. I looked at the possible effects on husbands, fathers, and mothers across the spectrum from married to unmarried, faithful to unfaithful, comparing the outcomes for these groups when affected by the law to the outcomes for these groups when not affected by the law.

    The results for fathers affected by the law were the same for fathers not affected by the law. The results for husbands affected by the law were only slightly better than the results for husbands not affected by the law.

    On the other hand, women who were not affected by the law had positive outcomes in every case, while women who were affected by the law had outcomes that were purely positive (I considered having to go through the legal hoops to achieve a desired outcome as as a mixed result rather than positive or negative) only 20% of the time.

    In other words, if you were a pregnant woman and not affected by this law, you’d get a positive outcome 100% of the time. If you were a pregnant woman who was affected by the law, you only had a 1 in 5 chance of a positive outcome, 1 in 5 negative, and 3 of 5 mixed.

    Husbands do not see significant benefits from this law. Fathers do not see significant benefits from this law. Pregnant women who are not married are not affected by this law.

    Pregnant women who are affected by this law experience negative outcomes way out of proportion compared to those other groups.

    I don’t know how to read that other than that the primary effect of this law, if enacted, would be to impose state sanctions on married pregnant women who desire abortions that no other group of pregnant women, married or not, would experience.

    I further point out that the effect of the law is not to increase the control of the husband over the wife, but OF THE STATE over the wife.

    If the goal is to discourage abortions per se, the law doesn’t work, because of the exception for unmarried women.

    If the goal is to protect husbands’ rights, the law doesn’t work, because husbands are no less legally or financially or biologically liable if informed than they are if they are not. Nor do they have any legal means through which to bar an abortion of which they do not approve, and the law does not provide for such.

    If the goal is to protect fathers’ rights, the law doesn’t work, because unmarried fathers are not notified, and because married fathers are no less liable than they are when they are not informed, and the law, again, offers them no legal means by which to prevent a woman from getting an abortion.

    If the goal is regulate married women’s pregnancies per se, the law doesn’t work, because it does not apply to women who choose to give birth.

    The ONLY thing that the law succeeds in doing is penalizing married women who seek to abort a pregnancy, by requiring them to take legal actions that are of no benefit to them, of no benefit to fathers, and of no benefit to husbands.

    The implication’s clear: if the only result of this law is that married women seeking abortions are legally burdened with obligations facing no other members of society (and keep in mind we’re talking about a group that is already more greatly obligated, financially, biologically, and legally, than any other group in relation to this matter), it is hard to escape the conclusion that the ultimate purpose of the law is to discourage married women from seeking abortions.

    Thus, married women who become pregnant must carry fetuses to term if they do not wish to incur these special, additional penalties. Ergo, the implication of the law is that women, if married, have an obligation to carry their pregnancies to term, should they become pregnant.

    (btw, if it were a law “regarding abortion” it would not include an exception for unmarried women. That only married women are targeted, makes this about marriage, and about the expectations for women who enter that legal state.)

  66. November 4, 2005 at 11:53 pm

    Thus, married women who become pregnant must carry fetuses to term if they do not wish to incur these special, additional penalties. Ergo, the implication of the law is that women, if married, have an obligation to carry their pregnancies to term, should they become pregnant.

    Your analysis is excellent, up until this point, where it collapses into a complete non sequitur. I believe this error flows from the abrupt switch from a transactional language of costs and benefits to an outcomes-based language of obligations and requirements.

    A penalty for an action does not create an obligation to perform a different action. It merely increases the cost of performing the action, and (generally) makes other options comparatively more attractive. This shift in cost-benefit may alter the decision of folk whose decisions were already in the marginal range, but it does not create any new obligations on anyone. We are not obliged to select the best cost-benefit solution from the range of choices we are presented.

    The conclusion I reach from your analysis, properly completed, is that notification laws end up creating a relatively small, but real, general pressure on married women to bear pregancies to full term. Since the state has a legitimate interest in propagating the next generation, this is not an inappropriate forum for state action, and the question before a court asked to overturn such a measure is (as has been discussed exhaustively) whether the burden the measure places on women’s right to choose abortion is unduly high.

  67. November 5, 2005 at 12:04 am

    But Rana, it’s constitutional, which makes it totally okay! Duh.

  68. EricP
    November 5, 2005 at 9:52 am

    the question before a court asked to overturn such a measure is (as has been discussed exhaustively) whether the burden the measure places on women’s right to choose abortion is unduly high.

    The Supreme Court said it was so we have the answer to that question don’t we. It does place an undue burden.

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