Some tiny creature, mad with wrath,

Is coming nearer on the path.

--Edward Gorey

Location: Pittsburgh, Pennsylvania, U.S. Outlying Islands

Writer, lawyer, cyclist, rock climber, wanderer of dark residential streets, friend.

Thursday, November 03, 2005

Three Cheers for the Post-Gazette

Notwithstanding the deficiencies identified in the post immediately preceding this, some mainstream outlets have been getting it right, or are catching up. Michael McGough, of the P-G's National Bureau (yes, a local paper that still has one), makes an insightful and at least somewhat persuasive argument that Judge Alito's views on abortion may not differ radically from Justice O'Connor's. What's more, he makes his argument based on -- gasp! -- his detailed reading not only of the relevant Alito opinion, but of the relevant opinions authored by Justice O'Connor.

As I did in another case, McGough emphasizes that no one has a crystal ball:

It is possible that, once on the court, Judge Alito would be more willing than Justice O'Connor to uphold restrictions on abortion, particularly those designed to protect the interests of husbands of women contemplating the procedure.

But the evidence offered for that proposition -- Judge Alito's dissenting opinion in a 1991 Pennsylvania case -- isn't the smoking gun his critics say it is.

He then proceeds to the legal crux of the test at issue in Casey, as the law was when that case came before the Third Circuit court of appeals, and then as the Supreme Court later ruled.

In a 1983 dissent from the majority's holding that it was unconstitutional for the city of Akron, Ohio, to require that abortions after the first trimester be performed in hospitals, Justice O'Connor proposed a different legal standard for deciding whether a restriction on abortion violated the Constitution -- one that worried abortion-rights supporters at the time.

First, Justice O'Connor wrote, the court should determine whether a particular restriction was an "undue burden" on the right to abortion. Only if the answer was yes would the court go on to subject the regulation or law to "strict scrutiny," which means that a regulation is upheld only if it serves a "compelling government interest" and does so by the "least restrictive means."

This was essentially the test that Judge Alito and his colleagues used in 1991 when they considered the constitutionality of the Pennsylvania Abortion Control Act. The majority found that the spousal notification requirement was an undue burden; Judge Alito came to the opposite conclusion.

At Step One of Justice O'Connor's two-step process, he determined that there was no undue burden because the spousal notification provision did not give the husband veto power. Judge Alito quoted Justice O'Connor as saying that an undue burden would not be created by "a state regulation [that] may 'inhibit' abortions to some degree."

Then having determined that the requirement wasn't an undue burden, Judge Alito moved to Step Two -- identifying a "compelling interest" -- and found it in a married man's "interest in the welfare of a fetus he has conceived with his wife."

But surely Judge Alito must have misread Justice O'Connor's test, if Justice O'Connor came to the opposite conclusion when the Pennsylvania law reached the Supreme Court? Not necessarily.

He then quotes Kathryn Kolbert, the attorney for Planned Parenthood in Casey, as suggesting that it was Justice O'Connor's position that evolved. "O'Connor's view of what was an 'undue burden' changed significantly," Ms. Kolbert said yesterday. "The Casey opinion was one of the most feminist decisions in history."

Like McGough, I'm not interested in taking sides or prognosticating. But this is the sort commentary Americans need to inform their decision whether to avidly implore their senators to work to sink Alito's nomination, not the slipshod see-what-sticks approach I criticized below.

ON THE OTHER HAND UPDATE: Armand at Bloodless notes that two of the four former justices Alito yesterday identified as his favorites (Rehnquist, White, Harlan II, Brennan (Brennan? Yes, Brennan)), White and Rehnquist, were the only two justices in dissent to the Court's decision in Roe v. Wade, and that White is not typically named as one of the more extraordinary justices, which only adds a layer of curiosity. (A propos Justice Harlan, recall my reference last week to his dissenting opinion in Poe v. Ullman, as considered by Michael).


Post a Comment

<< Home

eXTReMe Tracker