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President Bush has nominated Samuel Alito to replace Justice Sandra Day O’Connor on the U. S. Supreme Court. Can we divine what he will do when faced with a challenge to a state law enacting a restriction on abortion or criminalizing abortion in whole or in part?

The most compelling evidence is in Judge Alito’s dissent in Planned Parenthood of Southeastern Pennsylvania v. Casey, (“Casey”) a 1991 decision of the United States Court of Appeals, Third Circuit, the court on which Judge Alito has sat for the last 15 years.

The first thing that must be said is that Judges in the District and Circuit Courts are bound to follow Supreme Court precedent. They do not overrule Supreme Court precedent—that is for the Supreme Court to do. The case presented, if not novel legal questions, then novel applications of a new Supreme Court method of analysis of the constitutionality of state abortion laws.

In 1991, the Roe majority had disappeared. In the Webster and Hodgson cases in 1989 and 1990, no method of approaching how to review a state abortion law commanded a majority of the court. The swing vote, then as now, was Sandra Day O’Connor. O’Connor had developed a middle ground approach to abortion cases.

As the majority opinion in Casey said:

“The majority in Roe concluded that abortion was a fundamental right and, therefore, applied strict scrutiny review, the standard of review generally applied in fundamental rights cases… The dissenters in Roe contended that abortion was not a fundamental right and thus judicial review of abortion regulations under the Due Process Clause should be no different from review of any social or economic legislation implicating a liberty interest. Therefore, they urged that the Court apply the deferential rational basis test traditionally used to review social and economic legislation… Justice O’Connor has referred to the right to abortion as a “limited” fundamental right and adopted a middle ground between these two positions. She uses the strict scrutiny standard if the regulation at issue causes an “undue burden” on a woman’s abortion decision and the rational basis standard if it does not.”

As for how Justice O’Connor defined “undue burden”, the Casey majority said:

“With respect to the concept of ‘undue burden,’ Justice O’Connor explained in Akron that an undue burden occurs when a regulation imposes an ‘absolute obstacle or severe limitation on the abortion decision,’ not merely when a regulation ‘may “inhibit” abortions to some degree.’”

One key question is how many women need to be unduly burdened before a law is declared unconstitutional. The majority interpreted Justice O’Connor’s view:

“As we read Justice O’Connor’s explications of the concept of ‘undue burden,’ they are all consistent with the view that the right to elect not to carry to term is a constitutional right of each individual woman. Where it is clear that a governmental regulation will restrict the ability of some women to choose an abortion, we believe the issue of whether there is an undue burden turns on the degree of restriction that the affected women will experience. Accordingly, whether the adversely affected group is but a small fraction of the universe of pregnant women desiring an abortion seems to us irrelevant to that issue.”

The majority then explained how abortion laws could cause an undue burden:

“An abortion regulation can infringe upon the abortion right in at least seven ways: (1) causing a delay before the abortion is performed; (2) raising the monetary cost of an abortion; (3) reducing the availability of an abortion by directly or indirectly causing a decrease in the number of legal abortion providers; (4) causing or forcing the woman to receive information she has not sought; (5) causing the woman to find the person or persons whom the state has required that she notify or obtain consent from; (6) causing the woman to endure any negative or hostile response from a person whom the state has required the woman to notify or obtain consent from; and (7) taking away the power to decide whether to have an abortion by giving another person, usually a parent or spouse, a veto power on the abortion decision. Almost all abortion regulations implicate the first three of these; informed consent requirements also involve the fourth; and notice and consent statutes also implicate the fifth, sixth, and seventh.”

The court reviewed the provisions of the Pennsylvania Abortion Control Act which had an informed consent requirement, which included a state script and a 24-hour waiting period, a parental consent requirement, which had a judicial by-pass, and a husband notification requirement. All three members of the court agreed that the informed consent and parental consent provisions were constitutional. The U.S. Supreme Court agreed next year when it reviewed the Third Circuit case on appeal.

The court’s three members divided on the husband consent requirement. The law stated:

“Section 2309 (a) SPOUSAL NOTICE REQUIRED.—In order to further the Commonwealth’s interest in promoting the integrity of the marital relationship and to protect a spouse’s interests in having children within marriage and in protecting the prenatal life of that spouse’s child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law.”

We will get to the alleged state’s interests it thinks it is protecting, but note that the law applies only to a “spouse”, i.e. husband. It does not apply to the putative father/inseminator of the fetus if the woman is not married. Second, there is no requirement that the statement be notarized, though there is a penalty (a class three misdemeanor) if the women makes a false statement. Third, there were five exceptions to the reporting requirement. The Pennsylvania Legislature was not totally detached from reality:

“(b) EXCEPTIONS.—The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:
(1) Her spouse is not the father of the child.
(2) Her spouse, after diligent effort, could not be located.
(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.
(4) The woman has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual.
Such statements need not be notarized, but shall bear a notice that any false statements made therein are punishable by law.
(c) MEDICAL EMERGENCY.—The requirements of subsection (a) shall not apply in the case of a medical emergency.”

The majority found that the husband notification constituted an undue burden on the woman. The relevant class that the burden falls upon is not all women seeking abortions, but rather the class of “women who would choose not to notify their husbands in the absence of state compulsion to do so.”

The District Court found after hearing expert testimony that the notification requirement created a substantial risk that the woman would be prevented from having an abortion. A husband would be likely, in the circumstances where the woman did not want to talk to him about the abortion, to oppose her effort to have the abortion. The majority noted dryly: “That testimony showed that the husband’s response will frequently take a variety of forms other than persuasive discourse.”

The husband’s power falls outside the five exceptions to the notification requirement: economic power, psychological abuse, threat of divorce, threat to tell her family and friends and church, threats against the children. The list is “potentially limitless”. The court analogized the husband’s power to a sword of Damocles, where the power is the threat it poses by just hanging there. The “fear of bodily injury” exception is not broad enough to protect these women and women who may have been battered in the past but aren’t sure they will be again in this instance. The other exceptions to the notification requirement were also found to be lacking of protection in the real world. For instance, not many women report coerced sex to the authorities.

The court thus found the husband notification to be an undue burden on the class of women who did not want to notify their husbands. It then examined the state interests that the Pennsylvania Legislature thought it was protecting. First, marital integrity. The court was not sure what the Legislature meant:

“If the interest is in honesty and full disclosure between married individuals, Hodgson indicates that this interest does not rise to the level of a legitimate state interest, much less a compelling one.”

Quoting the Hodgson case, the majority said:

“The State has no more interest in requiring all family members to talk with one another than it has in requiring certain of them to live together… [A] state interest in standardizing its children and adults, making the ‘private realm of family life’ conform to some state-designed ideal, is not a legitimate state interest at all.”

The other state marital interest is in preserving marriage. The majority said this was a legitimate one, but not a compelling one. The state had furthermore not carried its burden of demonstrating that its law was narrowly tailored to promote that interest:

“As we have noted, the only effect of 3209 is to require notice in those instances in which the wife would not otherwise share with her husband the fact of the pregnancy and her intention to abort. In such situations, an across-the-board requirement of coerced disclosure is an altogether arbitrary approach to a difficult and complex problem of human relations. Nothing in this record suggests that replacing the wife’s judgment regarding disclosure with such an arbitrary rule will save more marriages than it destroys.”

The majority turned to the second state interest: furthering the husband’s interest in having children within the marriage and his interest in the fetus. The court cited a previous Supreme Court ruling that the state could not legitimately protect that interest: “we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right.”

The court went on to state that what the Legislature was trying to promote was the ability of the husband to participate in the abortion decision that the woman is entitled constitutionally to make on her own. The court ruled that the husband’s interest here was not a compelling one to justify the undue burden on the wife.

Judge Alito concurred with the majority on everything except for the husband notification provision, which he would have held on this facial challenge to be constitutional.

Judge Alito disagreed that the husband notification requirement imposed an undue burden. Alito presented his analysis of Justice O’Connor’s past rulings where she had discussed the undue burden standard and he concluded that what she meant was different from what the majority had concluded:

“Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing ‘severe limitations,’ rather than simply inhibiting abortions ‘to some degree’ or inhibiting ‘some women.’ …it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.”

Alito thus stated that the O’Connor undue burden rule required a “severe limitation” on the access to an abortion, and required a broad class of affected women. Lest he appear too draconian, Judge Alito added:

“Needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern. It is apparent that the Pennsylvania legislature considered this problem and attempted to prevent Section 3209 from causing adverse effects by adopting the four exceptions noted above. Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards. The first step in this analysis is to determine whether Section 3209 has been shown to create an undue burden under Supreme Court precedent, and for the reasons just explained it seems clear that an undue burden has not been established.”

Alito stated that the evidence presented on this facial challenge to the law did not prove that it imposed an undue burden, nor who exactly would be affected by the notification requirement. Alito then went on to discuss the validity of the husband’s interest in the fetus and stated that the law was rationally related to promoting that interest:

“The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems—such as economic constraints, future plans, or the husbands’ previously expressed opposition—that may be obviated by discussion prior to the abortion. In addition, the legislature could have reasonably concluded that Section 3209 would lead to such discussion and thereby properly further a husband’s interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it ‘unwise’ or worse.”

Justice O’Connor had the chance to review Judge Alito’s opinion the next year when the Supreme Court reviewed the Casey case. The Supreme Court in a 5-4 decision affirmed the opinion of the Third Circuit that held the husband notification unconstitutional. She disagreed with every assertion in the Alito opinion: about the meaning of “undue burden”, about the affected class, about the burden of proof presented, about the role of the legislature in marital matters, about the status of women and thus the constitutional conclusions to be drawn.

Justice O’Connor stated the controlling legal standard:

“A finding of an undue burden is a shorthand for the conclusion that a state regulation has the purpose or effect of placing a substantial obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with this purpose is invalid because the means chosen by the State to further the interest in potential life must be calculated to inform the woman’s free choice, not hinder it. And a statute which, while furthering the interest in potential life or some other valid state interest, has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be considered a permissible means of serving its legitimate ends.”

Thus the legal standard for a burden to be undue was if it were a “substantial obstacle” not a “severe limitation”, as Judge Alito proposed.

Justice O’Connor in her opinion found that the District Court had heard the testimony of numerous witnesses and had made detailed findings of fact that the husband notification was an undue burden on women who feared domestic violence, on those who didn’t want to reveal family secrets relating to family health or the status of the marriage. O’Connor also cited additional research showing the devastating effect of domestic violence on women and the fears women have about telling an abusive husband about an abortion. O’Connor stated that the husband notification provision would “prevent a significant number of women from obtaining an abortion”. Thus Justice O’Connor disagreed with Judge Alito that the burden of proof had been met.

In response to Judge Alito’s conclusion that the proper class was all women seeking abortion, O’Connor responded that: “The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.” The affected class is “the married women seeking abortions who do not wish to notify their husbands of their intentions and who do not qualify for one of the statutory exceptions to the notice requirement.” In a large fraction of the case where the law is relevant, “it will operate as a substantial obstacle to a woman’s choice to undergo an abortion. It is an undue burden, and therefore invalid.”

O’Connor distinguished the result from parental notification cases where she said these laws were based on “the quite reasonable conclusion 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.”

Justice O’Connor then talked about marriage and pregnancy and bodily integrity.

“Before birth, however, the issue takes on a very different cast. 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. The effect of state regulation on a woman’s protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman… The Court has held that ‘when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor.’…This conclusion rests upon the basic nature of marriage and the nature of our Constitution: ‘[T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child’… The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.

There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. Illinois, 16 Wall. 130 (1873), three Members of this Court reaffirmed the common law principle that ‘a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States.’ Id., at 141 (Bradley J., joined by Swayne and Field, JJ., concurring in judgment). Only one generation has passed since this Court observed that ‘woman is still regarded as the center of home and family life,’ with attendant ‘special responsibilities’ that precluded full and independent legal status under the Constitution. Hoyt v. Florida, 368 U.S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.

In keeping with our rejection of the common law understanding of a woman’s role within the family, the Court held in Danforth that the Constitution does not permit a State to require a married woman to obtain her husband’s consent before undergoing an abortion. 428 U.S., at 69. The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law—those who most reasonably fear the consequences of notifying their husbands that they are pregnant—are in the gravest danger.

The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a postfertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify—a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

Section 3209 embodies a view of marriage consonant with the common law status of married women but 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. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual’s family. These considerations confirm our conclusion that 3209 is invalid.”

Chief Justice Rehnquist dissented, joined by three other Justices. Like Judge Alito, he asserted that the challengers had not met the burden of proof in a facial challenge to a state law:

“Furthermore, because this is a facial challenge to the Act, it is insufficient for petitioners to show that the notification provision ‘might operate unconstitutionally under some conceivable set of circumstances.’ …Thus, it is not enough for petitioners to show that, in some ‘worst case’ circumstances, the notice provision will operate as a grant of veto power to husbands. Because they are making a facial challenge to the provision, they must ‘show that no set of circumstances exists under which the [provision] would be valid.’ This they have failed to do.”

The Chief Justice then stated that a husband’s interests in procreation within marriage and in the potential life of his unborn child are substantial.

“The State itself has legitimate interests both in protecting these interests of the father and in protecting the potential life of the fetus, and the spousal notification requirement is reasonably related to advancing those state interests. By providing that a husband will usually know of his spouse’s intent to have an abortion, the provision makes it more likely that the husband will participate in deciding the fate of his unborn child, a possibility that might otherwise have been denied him. This participation might in some cases result in a decision to proceed with the pregnancy. As Judge Alito observed in his dissent below, ‘[t]he Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems—such as economic constraints, future plans, or the husbands’ previously expressed opposition—that may be obviated by discussion prior to the abortion.’”

As to the argument that the law will cause more harm than good, the Chief Justice stated:

“In our view, the spousal notice requirement is a rational attempt by the State to improve truthful communication between spouses and encourage collaborative decisionmaking, and thereby fosters marital integrity. (‘[T]he power to make rules to establish, protect, and strengthen family life” is committed to the state legislatures’). Petitioners argue that the notification requirement does not further any such interest; they assert that the majority of wives already notify their husbands of their abortion decisions, and the remainder have excellent reasons for keeping their decisions a secret. In the first case, they argue, the law is unnecessary, and in the second case it will only serve to foster marital discord and threats of harm. Thus, petitioners see the law as a totally irrational means of furthering whatever legitimate interest the State might have. But, in our view, it is unrealistic to assume that every husband wife relationship is either (1) so perfect that this type of truthful and important communication will take place as a matter of course, or (2) so imperfect that, upon notice, the husband will react selfishly, violently, or contrary to the best interests of his wife… The spousal notice provision will admittedly be unnecessary in some circumstances, and possibly harmful in others, but ‘the existence of particular cases in which a feature of a statute performs no function (or is even counterproductive) ordinarily does not render the statute unconstitutional or even constitutionally suspect.’ …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. …(“It is not the mission of this Court or any other to decide whether the balance of competing interests . . . is wise social policy”).”

Justice Rehnquist at the outset of his opinion stated: “We believe that Roe was wrongly decided, and that it can and should be overruled…” Judge Alito made no such statement, because he was a Circuit Court Judge and it is not the province of lower court judges to call for the overruling of a Supreme Court precedent. So, there is no smoking gun in the Alito opinion, but there is still plenty of smoke thrown out by Judge Alito disguising his true views.

I will grant that in 1991 Supreme Court jurisprudence on abortion was confusing. There were multiple opinions in each case with majorities on each issue cobbled together from various Justice’s opinions. No one Justice’s opinion prevailed, except perhaps Justice O’Connor’s. That said, Judge Alito went out of his way to reinterpret Justice O’Connor’s opinions in as restrictive a way as possible and to denigrate the testimony presented at the trial and the findings of fact by the District Judge. It is hard to imagine what factual case would be convincing to Judge Alito to find that the law was a “substantial obstacle” or even a “severe limitation”. It is hard to see how misguided a state law must be before he would find it not rationally related to some state purpose. And it is hard to see what paternalistic law he would not find as a legitimate state purpose. This is not a judge who gives the benefit of the doubt to the citizenry; he gives it to the state legislature (and not to Congress by the way). What will be left of the 14th Amendment after Judge Alito gets through parsing it? Are there any fundamental rights deserving of strict scrutiny? I suspect not many. Certainly not the right to terminate a pregnancy. Alas, it was Justice O’Connor who ruled that this right was not fundamental. To her it was just a liberty interest, yet she protected it. Alito is even worse than she is.

There are plenty of questions to be asked of Judge Alito at his confirmation hearings. The one question that will not be asked is, what’s more important in deciding a case, the Constitution or your mother’s views?

But how about, what constitutes a legitimate state interest? Is the power of the state legislature unlimited? What are the limits on “rationally related”? How does a plaintiff present a constitutional challenge? What state law would you overturn? Is it the prerogative of the states to enforce a version of morality? What does the Ninth Amendment mean? What does a 5-4 decision mean in terms of precedential value? There is lots to ask this Judge. Let’s hope the Senate has learned something from the last two nominations.