This column from the Weekly Standard was written by David M. Wagner.
Inevitably, liberal angst over the nomination of Judge Samuel Alito has focused on his vote to uphold the entire abortion statute at issue in Planned Parenthood v. Casey, including the spousal notification provision, which was the only part struck down by the rest of the Third Circuit and, later, by the Supreme Court itself. How did Judge Alito reach his contrary conclusion and what does it tell us about him?
First, here's what's not the question: whether you or I think it's a good idea for a state to require, subject to certain exceptions, that a married woman notify her husband before she has an abortion. (Not "get the consent of" — just notify. And "require" may not be the mot juste, since the "requirement" at issue here was unenforceable and was satisfied by the unverified say-so of the one seeking the abortion.)
Here's what is the question: could a legislature rationally have thought this "requirement" was a good idea? Or, on the contrary, could this law have been passed only by a legislature that had gone insane or had gone far down the road to Iago-esque irrational villainy?
That was the question that faced Judge Samuel Alito when he was called upon to give an opinion on whether the spousal notification provision of Pennsylvania's Abortion Control Act was constitutional. The three-judge panel on which Judge Alito served in Casey held that the statute was constitutional except for the spousal notification provision. Partly concurring and partly dissenting, Judge Alito argued for upholding the entire statute. Here, in brief, was his reasoning:
For an appeals court judge, bound by Supreme Court precedent, the first step in judging an abortion statute is the question: does it pose an "undue burden" on the abortion liberty, as "undue burden" was understood at that time, i.e., after Webster v. Reproductive Health Services (1989) and Hodgson v. Minnesota (1990), but, obviously, before the Supreme Court had gotten its bite at the Casey apple. The answer to this question involved reading the tea-leaves of Justice O'Connor's various pre-Casey opinions: these constituted, at that time, the "narrowest grounds" on which a majority of the Supreme Court could agree, and were therefore looked to by lower federal courts for such guidance as they could provide.
Predictably, given Justice O'Connor's preference for what Prof. Cass Sunstein admiringly calls "minimalism" — deciding cases on the narrowest, least precedent-setting ground — there was disagreement within the Third Circuit panel in Casey as to whether the Supreme Court (meaning, realistically, Justice O'Connor) would consider the spousal notification to be an "undue burden" — or not. (In the event, she did consider it to be so, but her holding on that issue was in review of the panel's holding in Casey and therefore was not yet available for consultation by that panel.)
Once a judge concludes that a given abortion regulation is not an "undue burden," the only question left is whether it passes the most lenient standard of review known to constitutional law, the "rational basis test." The action, therefore, lies in the meaning of that test — and for the past 60 years or more, that meaning has centered on the question with which we began: Could a non-insane legislature have passed this law?
Judge Alito held that, yes, a legislature could pass this law without being barking mad. Consider the balance sheet: in some cases this law could exacerbate marital tensions and even place women in danger; on the other hand, it could protect a father's interest in a relationship with his child (which is a constitutionally protected interest, as several Supreme Court decisions have held); what's more, the exceptions in the statute cover the most dire situations in which this law would do harm to women. So, on the whole, whether it's really good policy or not, a rational legislature could have passed it.
One must admit that the rational basis test, as Judge Alito deployed it in Casey, is not the only form that test has taken. A critique of the test, articulated for instance by Mickey Kaus, objects that any statute is rationally related to what it actually does, so the test tells us nothing. However, the full articulation of the test runs: Is the statute "rationally related to a legitimate state interest?" So some evaluation of the end sought to be achieved is built into the test.
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