Bench Memos

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James Taranto on Kate Michelman’s Testimony


Somehow I missed Kate Michelman’s testimony today. James Taranto didn’t:

With the Alito hearings in garbage time this morning, we suppose we were one of about six people still watching. But we did catch a moment we thought was worth highlighting, from the anti-Alito testimony of Kate Michelman, who had this to say about Alito’s partial dissent in Casey v. Planned Parenthood: “When he ruled that a Pennsylvania law requiring women to notify their husbands before obtaining an abortion was not, quote, an undue burden, there was no sense that a woman like me ever existed or even mattered.”Earlier, Michelman had told of her own brush with abortion regulation in the dark days before Roe v. Wade. She discovered she was pregnant after her husband left her, and decided to abort the child. She did not have to resort to coat alleys and back hangers, but the law did require the approval of a panel of physicians, who first subjected her to an intrusive interrogation. Nor was that the end of it:”I was awaiting the procedure when a nurse arrived to tell me that state law imposed yet another humiliating burden. The government required me to obtain my husband’s consent. I was forced to leave the hospital, find where he was living, and ask him to give me his permission.”Michelman’s linking this tale to Alito’s opinion in Casey is highly misleading. The regulation that Alito voted to uphold did not require a husband’s consent, only notification. Further, as we noted in November, as a practical matter it didn’t even require notification. It mandated only that the wife sign a statement asserting that she had notified her husband–or, in the alternative, that she could not locate him. Unlike the regulation that actually applied in Michelman’s case, this one would have imposed no burden whatever on her.Michelman’s assertion that Alito’s opinion reflected “no sense that a woman like me ever existed or even mattered” is false as well. In fact, Alito expressly distinguished a situation such as Michelman’s from that faced by a woman whose abortion was governed by the Pennsylvania law in question:

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.” . . . In this case, the plaintiffs . . . did not prove that this provision would impose an undue burden. Section 3209 does not create an “absolute obstacle” or give a husband “veto power.”


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