Bench Memos

Alito on Spousal Notice

As noted here and in The Corner, the media appear already to be engaged in rampant misrepresentation of Judge Alito’s 1991 opinion concurring in part and dissenting in part in the panel majority’s ruling in Planned Parenthood v. Casey, 947 F.2d 682 (3rd Cir. 1991). Let me highlight the following salient features:

1. Of the five provisions of Pennsylvania abortion law that Planned Parenthood challenged, the entire panel agreed that, under applicable Supreme Court precedent, four — relating to informed consent, parental consent, reporting requirements, and public disclosure of clinic reports—were constitutional. The pro-abortion groups, of course, maintain that all such provisions are somehow unconstitutional.

2. The narrow divide between the majority and Alito concerned how recent Supreme Court precedent applied to the spousal-notice provision. 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.

3. 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).

4. 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.

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