h2g2 The Hitchhiker's Guide to the Galaxy: Earth Edition

A lot of the debate about Judge Samuel Alito will focus on his role in Planned Parenthood v. Casey, an important abortion case from Pennsylvania.Abortion proponents will say it makes him out to be an anti-abortion radical. Not that I can tell.

But, wasn't he was the only judge on the appellate court who voted to uphold a spousal-notification requirement in Pennsylvania law, and didn't the Supreme Court overrule him? Yes. But four Supreme Court justices agreed with Alito on a matter that didn't have to do with a woman's right to obtain an abortion but rather her husband's right to know about it. The provision required a married woman seeking an abortion to present a written statement (in other words, to sign a form) to the effect that her husband was aware of her decision. This was NOT a requirement that she obtain his consent. The decision was hers.

Furthermore, the law allowed several exceptions to the requirement of notification, as follows:

"that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her."

Frankly, I think this is a close call. I certainly don't know what the Constitution says about it. I guess that's up to judicial interpretation -- or imagination.

But I'm inclined to consider the matter from the father's point of view. He obviously incurs certain legal responsibilities as a result of his wife's pregnancy, i.e., he must provide for at least a portion of the child's support. He has no legal right to say to his wife, "I'd rather you have an abortion, and if you don't I absolve myself of any financial liability for the baby." I don't think that would impress the judge in any child-support court in the country. The judge would say, "You should have thought of that before you got her pregnant. Now pay up or I'll throw you in jail for contempt, you scoundrel!"

So, why can't the husband say: "You know, honey, I'd really like to be a father. If you want to terminate this pregnancy, I guess that's your decision, but can you at least let me know? And, by the way, if you didn't want to get pregnant you might have suggested we take some precaution to avoid this problem in the first place."

You can read the entire Supreme Court decision if you have a few hours to spare. Please note that the majority agreed with Alito in upholding some parts of the Pennsylvania law. But this statement from then-Chief Justice William Rehnquist's dissent, joined by three other justices, about Alito's stance really cuts to the heart of the matter:

"The Pennsylvania Legislature was in a position to weigh the likely benefits of the provision against its likely adverse effects, and presumably concluded, on balance, that the provision would be beneficial. Whether this was a wise decision or not, we cannot say that it was irrational. We therefore conclude that the spousal notice provision comports with the Constitution."

Does not sound like an ideologue to me.