Politics & Policy

The Right to Know

Judge Alito and spousal notification.

While supporting the nomination of Sam Alito to the U.S. Supreme Court I must join the chorus of those who object to his 1991 decision (Planned Parenthood v. Casey) to uphold a spousal-notification law for women seeking abortions. And not just because the New York Times referred to it as “outrageous,” although most of the restrictions on abortion rights the New York Times has taken a dim view of in recent years have sounded fairly reasonable to me. In my case it’s because I believe the law Judge Alito upheld is too lax.

#ad#Let’s clear something up right off the bat: The law Judge Alito upheld required only that the husband of a woman seeking an abortion be notified; there was no requirement that he give his permission. Plus there were several conditions under which even that minimal requirement could be waived, including if the woman was fearful of physical abuse, if the husband was not the father of, uh, whatever it was the woman happened to be carrying (I know you’re not supposed to say “baby” in this context), and several other conditions including, I believe, if there were even a chance that Danny Bonaduce might be involved.

This distinction between notification and permission couldn’t be clearer: It’s the difference between saying, “Hey, my friends and I are going to Vegas,” and saying, “Honey, is it O.K. if I accompany some important business associates to a conference in Nevada?” Yet it’s invariably overlooked by pro-abortion zealots who object to any restrictions whatsoever on ideological grounds. They feign this same ignorance when it comes to parental notification of minors–that is, children–seeking abortions. In most cases a 13-year-old girl seeking an abortion who was impregnated by her father, or by some other family member, or who was molested by either parent, or who was fearful of physical abuse by either parent, or who met a host of other mitigating criteria can have the requirement (that at least one of her parents simply be notified) waived by a judge. Like the rule for spouses there’s no requirement that a parent give permission, just that they be notified. By way of contrast, when I was a kid we had stricter parental-notification rules just for going over to a friend’s house for dinner.

What’s more, the law Judge Alito upheld didn’t actually require that the would-be abortionee notify her husband, it only required her to tell the doctor that she had done so. Like the “Have you ever been committed against your will to a mental hospital?” question on a handgun-purchase application, it was pretty much done on the honor system. No proof was required. No signature, no permission slip, nothing. Which is where the problem lies.

As abortion-rights activists are wont to remind us, a (slowly declining) majority of Americans believe that abortion should be legal under certain circumstances. What they rarely add is that most Americans also believe that there should be certain restrictions on abortion. And a very clear majority of Americans–over 70 percent–believe a man has the right to be informed if a pregnancy he had a role in is going to be terminated.

The news of potential, impending fatherhood would seem to fall within the realm of things sexual partners might reasonably be expected to share with one another, along with (an at least remotely accurate version of) their sexual history, their current, uh…health and contraceptive status, and miscellaneous questions including, but not limited to, “Hey, where’d you learn that?” The statement, “You’re about to become a father” is not a random conversational ice breaker, it’s a life-changing piece of information that most men likely to hear it would undoubtedly feel entitled to.

In terms of its need-to-know status it’s right up there (for guys) with factoids like “I’m not on anything right now,” “I’m married, but we’re, like, totally separated!” and “I get off parole in two weeks.” Conversely, if the whole impending fatherhood thing is about to become, well, inoperative most men would feel entitled to be informed of that as well. For the same reason a woman would feel entitled to know if a man who claimed to have had a vasectomy had actually had one. Or if he’d ever been married. Or if he still lived with his mother at 38 and was really, really looking forward to seeing Brokeback Mountain. If nothing else it’s a question of informed consent.

So here’s a thought for women seeking abortions who consider a spousal-notification requirement too onerous: It doesn’t necessarily imply getting anyone’s permission, or even asking for their approval. It could be more along the lines of a friendly “heads-up.” A routine courtesy, like one of those “Haven’t Heard From You In A While!” postcards you still occasionally get from that dentist you stopped going to three years ago.

Here’s another: The announcement of your impending un-pregnancy doesn’t have to be anything formal; nothing he’d have to get a notary public involved in, or sign for, or even pick up at the post office. A brightly colored flyer from Kinko’s (on goldenrod paper, maybe, or neon salmon) under his windshield wiper (“Hey, Guess Who’s Having A Procedure?”) will generally suffice. For that matter, so would a Post-It note on the ‘fridge. “Honey, I’m either at the market, the dry cleaners, or I’m getting rid of our baby– not a real good time for me, career-wise. Thai O.K. for dinner? See you 7-ish. Kisses!”

With all the talk of women’s reproductive rights these days it’s easy to overlook the question of whether or not men have any. Including the right to be informed as to whether or not one is about to reproduce–and if not, why not. The belief in that fundamental right to know is positioned squarely in the middle of the American mainstream Judge Alito’s detractors claim to know so well. So here’s some free advice for those who insist that any attempt to even modestly regulate abortion is an efforts to “chip away” at the supposed right to it: Making it against the law to simply inform parents that their children are having abortions, or to inform husbands that their wives are, will not bring you closer to your oft-stated goal of keeping abortion safe, legal, and rare. In fact, it is more likely to accomplish quite the opposite.

Ned Rice is a staff writer on the new and improved CBS talk show The Late Late Show with Craig Ferguson. Rice is also an NRO contributor.

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