We Don’t Need No Steenkin’ Paternalism

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There was much arguing yesterday about the Casey decision, which struck down a provision requiring husbands to be informed of their wives’ plan to abort. SCOTUS nominee Alito didn’t have a problem with this. Several righties yesterday claimed we lefties were being hysterical when we said such a provision amounted to giving husbands a veto.

Here is an explanation of Casey by Ed Whelan of the very rightie National Review Online:

Subject to several exceptions, that provision required that a physician performing an abortion on a married woman obtain from her a signed statement that she had notified her spouse that she was about to undergo an abortion. Such notice was not required where the woman states that (a) her spouse is not the father of the child; (b) her spouse cannot be located; (c) the pregnancy resulted from spousal sexual assault that had been reported; or (d) that she has reason to believe that furnishing notice would likely result in the infliction of bodily injury on her (by her spouse or by any other person). Notice was also not required in the event of a medical emergency.

As I’ve written earlier, one of the most common qualities of rightiness is an inability to make a distinction between rhetoric and reality. In this situation, righties take the rhetoric at face value (See? She doesn’t have to get permission; she doesn’t have to provide a document if the husband might hurt her) and fail to comprehend how these little requirements might actually function in the real world, in real lives, in real marriages.

It’s not crystal clear to me whose signature would have been required. If she has to get her husband’s signature then we’re essentially looking at a permission slip; a husband who disagrees with the decision is likely not going to sign it. If the wife merely has to sign an affadavit stating that she informed her husband, then most wives who are afraid to speak to their husbands are simply going to lie and say they informed him when they didn’t. And that fear may not be that he will break her teeth; it’s just as likely she fears he will hate her if he found out, and the marriage would be damaged. And an emotionally abusive husband may not strike her but would find other creative ways to make her life hell.

Whelan continues,

All members of the panel agreed that the relevant question was whether the spousal-notice provision constituted an “undue burden” under the analysis that had been set forth in O’Connor’s opinions (which all agreed provided the governing legal standard). … Alito explained at length why the analysis that O’Connor had offered in her opinions established that the spousal-notice provision did not constitue an “undue burden”. … It is of course true that, in the subsequent Supreme Court appeal, O’Connor ruled that the spousal-notice provision did constitute an undue burden. But Alito’s opinion compellingly demonstrates that the body of O’Connor’s writings that was then available to him supported the opposite conclusion.

So a fair summary of Alito’s opinion is that he read O’Connor’s opinions to indicate that a spousal-notice provision that had all sorts of exceptions did not constitute an undue burden. No one should present the case as having anything to do with spousal consent rather than notice, no one should misrepresent the scope of the exceptions, and no one should read the case as expressing Alito’s own constitutional or policy views (as opposed to his reading of Supreme Court precedent) on any aspect of abortion.

Let it not be forgot that O’Connor is more conservative than anything else; just because she expressed a more liberal view in some opinions doesn’t erase the fact that her worldview is more rightie than leftie. In essence O’Connor tends to veer left in those cases in which she might have had some personal experience (such as sex discrimination) and therefore “gets it.” But like most righties, when she wanders outside the realm of her personal experiences the real world becomes a foreign place for her, a place she can’t even imagine. And the fact that Alito couldn’t see the burden is prima facie evidence that he can’t think outside a rightie box.

The only way the notification provision wouldn’t be burdensome to many women is if it wasn’t enforced. If the women could simply swear they spoke to their husband even if they didn’t, without fear of repurcussion, then perhaps it wouldn’t be all that burdensome. But the only purpose of such a law would be to cause the woman seeking an abortion more stress and grief. In other words, the essential point of such legislation is to be burdensome.

Righties tend to fall into the argument that the provision wasn’t burdensome because it was toothless, which ought to be a clue to them that the intent of the law was burdensome, indeed.

And if the lie was something that could come back to bite the wife someday, then it would be very burdensome. And it’s not clear to me if the wife or the medical facility that performed the abortion could face litigation from an angry husband who found out. Can of worms, people?

The provision represents another rightie tendency, which is that righties essentially distrust human beings to make their own decisions. We saw that during the Terri Schiavo flap, when all manner of legislation was proposed that would have allowed government to intrude in a family’s end-of-life decisions. To a rightie, human beings are mindless beasts who need to be controlled by Big Brother so they don’t make “bad” decisions; i.e., decisions with which the rightie disagrees. And righties always assume that people who make these “bad” decisions have done so because they don’t think. Notice all the legislation imposed by states intended to make women reflect on a decision to abort, as if women can’t think for themselves. It’s beyond their comprehension that most women who decide to abort do understand exactly what a pregnancy is and realize that abortion is a serious matter.

Their whole attitude is insulting to women and reeks of the vilest kind of paternalism. Which, frankly, pushes a lot of buttons. So some of us do find righties and their twisted idea that they should have the power to control the rest of us more than infuriating. This is not “hysteria.” This is anger. Righteous anger.

I suspect that most married couples discuss a decision to abort without having the law tell them to do so. I also believe that any woman who fears her husband needs to either get over her fear or get a divorce; that’s not the way any human being should go through her life. But these are matters people need to work out for themselves. Big Gubmint need not be involved.

Update: Emily Bazelon has an excellent explanation of the Casey decision at Slate.

…the [Supreme] court rejected Alito’s narrow reading of what sort of regulation constitutes an undue burden. O’Connor, Kennedy, and Souter wrote: “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.” The definition of an undue burden on the right to abortion as a “substantial obstacle” wasn’t exactly what the pro-choice crowd wanted to hear. But it was a lot better than the “severe limitation” prohibition, or veto, that Alito had propose–definitions that would have allowed much more extreme restrictions.

The triumvirate also parted company with Alito entirely over his vision of the rights of husbands. The Constitution did not permit states to require wives to tell their husbands before getting an abortion, the Supreme Court majority found. The O’Connor-Souter-Kennedy opinion cited a lot of trial testimony about the prevalence and danger of domestic violence. Pennsylvania’s law exempted wives who’d been raped by their husbands, but not those who’d been coerced into “sexual behavior other than penetration,” the three justices noted. They continued:

In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child. But there are millions of women in this country who are the victims of regular physical and psychological abuse at the hands of their husbands. Should these women become pregnant, they may have very good reasons for not wishing to inform their husbands of their decision to obtain an abortion. Many may have justifiable fears of physical abuse, but may be no less fearful of the consequences of reporting prior abuse to the Commonwealth of Pennsylvania. Many may have a reasonable fear that notifying their husbands will provoke further instances of child abuse; these women are not exempt from [Pennsylvania’s] notification requirement. Many may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends.The dissenters, by contrast, adopted Alito’s sunnier, husband-centered version of marriage. Then Chief Justice William Rehnquist (joined by Antonin Scalia, Clarence Thomas, and Byron White), emphasized “a husband’s interests in procreation within marriage and in the potential life of his unborn child.” Rehnquist paid Alito the high compliment of directly quoting his words about the good that could come from requiring women to talk to their husbands. “This participation might in some cases result in a decision to proceed with the pregnancy,” Rehnquist concluded.

Righties keep claiming that we who oppose the notification requirement are hopelessly ignorant when we say it might cause women to suffer harm. I guess three members of the Supreme Court are hopelessly ignorant. The justices, of course, assumed that women who fear their husbands would have complied with the law.

22 thoughts on “We Don’t Need No Steenkin’ Paternalism”

  1. Perhaps a provision like this should have a sister clause. Such as a husband needs signed permision from his wife before purchasing a firearm or, say, beer…

  2. So, like, we should oppose his nomination? I already know more than enough to oppose him completely. He’s an exemplar for activist extremist judges.

    Sigh….just call me cranky ’cause – though a Supreme is, ahem, supremely important – this is a red flag waving in our faces.

    Berlusconi met with Bush yesterday. Libby gets arraigned Thursday. The Niger forgery is gaining traction. Aspen trees turn in the Fall…

    Alito is a horrible nomination and we CAN multitask, and we DO need to document why he’s so bad, so maybe it’s best you’re covering him so well.

  3. Michael–I tend to write about whatever’s pissing me off most at the moment. But, you’re right; there’s lots of other stuff to be pissed off about.

  4. He’s an exemplar for activist extremist judges.

    What laws or new rights has he created from the bench? How do you define “activist”?

  5. It’s not crystal clear to me whose signature would have been required.

    Even though the answer has been provided to you repeatedly, even by Alito himself.

    You need to separate the roles of the legislative branch from those of the judicial branch. Bad laws can be constitutional. Good laws can be unconstitutional. Agreeing or disagreeing with constitutionality has nothing to do with one’s opinion on the usefulness of a particular law.

  6. What laws or new rights has he created from the bench? How do you define “activist”?

    I’d say any judge who imposes personal views or ideologies on an unwitting public is “activist.” I understand, of course, that the rightie definition of “activist judge” is someone who favors individual rights over special interests.

  8. I’m sorry, I agree with maha. Who the hell’s signature must be on the permission slip? And how does a woman prove any one of those exceptions to getting her husband’s permission? WTF does separating the branches of government have to do with the paternalistic BS of the anti-abortion movement, which is the topic at hand?

    Dan Quayle was responsible for reviving the term “illegitimate” for a child born out of wedlock, after the term had fallen into blessed disuse. Oh, sure, every embryo has a right to life, but if a child is born without some man holding ownership papers, that child is somehow “illegitimate.” Paternalistic BS.

    And as for “activist” justices, Dkos posted a scorecard yesterday showing that Clarence Thomas most often voted to overturn Congressional legislation, Steven Breyer least often. The righties on the Court had the highest percentages. We’re not the ones who coined the term “activist judges,” either. That came from the same boneheads who selectively consider children to be “illegitimate.” I have nothing against the overturning of bad laws. But the righties are the ones who deem it a sin.

  9. As crappie as this is, it is all a change the subject move. Friday they were praising Libby’s service to his country( no mention of Valerie Plame’s service or the service of 2000 dead soldiers). This morning the lead stories are Scalito and Birdflu- fear fear fear fear.
    Scalito will be confirmed- they want him in quick to overturn the cases coming up. And there are not enough votes to stop it. plain and simple- we’re screwed and the media is totally in cahoots with them- all sunday- was how can poor georgie get his groove back? as if the public good is equal to his political rear..

  11. I don’t think the polls would be in favor of requiring a Permission Slip. But it isn’t permission, and her husband didn’t have to sign anything. The wife had to sign something saying she had notified him. Big difference.

  12. Nony, are you paying any attention at all? Do you actually bother to read what I post? Or do you just like being annoying?

    Here’s a link for you: Alito will legislate from the bench. If you want to argue with someone, argue with Dahlia Lithwick. She may have more patience than I do.

    Be advised that I get very irritated with people who assume to know what I think or what I’ve written without actually bothering to read my posts. Try it again, and you’re banned.

  13. Oh, sure, every embryo has a right to life, but if a child is born without some man holding ownership papers, that child is somehow “illegitimate.” Paternalistic BS.

    Nicely expressed point, Joanr16

  14. Wingers get more lathered up by the abortion issue than anything else. They don’t like communism, fags, negros, taxes, and you damn well better keep your hands off their guns, but nothing gets them into a frenzy like abortion.

    Baby killers. That’s what liberals are. Baby killers.

    It’s not hard to despise baby killers.

  16. Maybe what is missing here is when a mother demands that her daughter get an abortion for her twins. Daughter is 30 years old and has a full functioning kid. This is a threat from a person who will vote Repulican every day. Now what?
    KB

  17. Yet another reason why after 22 years with the same man I will never marry him.Marriage does 2 things , in my view.It makes women property… normally a father GIVING away his daughter to another MAN…why in modern society do we still allow men to “GIVE women AWAY”?????By making it the standard we (women) allow ourselves to be considered property rather then HUMANS…..
    Second when you get married it is a contract between yourself, your partner,,and the STATE,,,,what the hell??I , for one, do not want any state involved in my relationship and I cannot not imagine why people ASK for it.
    On the abortion issue..I guess my views will seem even more radical, but given my circumstances I feel I have more right to speak on this issue then most Because I have lived it.
    I was born before Roe v.Wade and I was left in a trash can to die.I have lived my life thankful for Roe v Wade because no more kids like me would have to suffer.Pro lifers say they are glad I am here and Roe did not affect my being, but I ask them why they don’t have the faith in God to believe I would be here anyhow no matter how many times I may have been aborted
    I don’t look forward to seeing a whole new generation of abused , neglected, resented, abandon children fighting to survive on their own like I did.I don’t want to see women have no other option but to dump her newborn infant in a trash can to die. After LIVING it myself , abortion seems so humane, and no choice seems so cruel.
    What next when there is no abortion? adoption? These same people of faith think they can re- assign children to parents better then their own God?I do not see how their agenda pays off for them at all.?? Why are they doing this?

  19. I don’t think I’ve ever voted in their little awards. I could be wrong about that, but, like Steve said, it always struck me unfair, and, more annoyingly, just a ploy for traffic by people who don’t produce enough quality to generate enough readers.

    Not that I have a problem with mediocre blogging that doesn’t bring in traffic. That’s my bread and butter.

  20. I guess my views will seem even more radical, but given my circumstances I feel I have more right to speak on this issue then most Because I have lived it.
    I was born before Roe v.Wade and I was left in a trash can to die.I have lived my life thankful for Roe v Wade because no more kids like me would have to suffer.

  21. The drug war is a costly and selective form of government paternalism that has done far more harm than good.
    When Ann Coulter comes out and says something like this, then I’ll make room for her on Michelle’s pedestal. Until then, hell remains unfrozen.

  22. If you keep your diet the same and have 30minutes increased activity a day of course you will lose weight. I guess depending on how much effort you put into that 30mins would vary the amount. WBR LeoP

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