This time, Alito, it’s personal
LOOKING BACK more than three decades to one of the most difficult times in my life, it’s hard to say what seems more insulting: being forced to obtain my husband’s permission to have an abortion after he had just abandoned my family or -- many years later -- Supreme Court nominee Samuel A. Alito Jr.'s ruling that a similar requirement was not, in constitutional parlance, an “undue burden.”
In 1969 -- in those distant but suddenly closer days before Roe vs. Wade -- my husband deserted me and our three small daughters. After learning I was pregnant, and making the wrenchingly personal decision to have an abortion, I was forced to submit to an invasive and humiliating interrogation before a hospital review board in Pennsylvania. It ultimately gave its permission. I was in the hospital preparing for the procedure when a nurse informed me I would need my husband’s permission too. I found him a few days later and he gave it.
In the 1992 case of Casey vs. Planned Parenthood, Alito voted to uphold a Pennsylvania law requiring women to notify their husbands before having an abortion. Such a requirement, he ruled, was not an “undue burden” on most women. The vast majority of women, he noted, voluntarily discuss an abortion with their husbands, while the law provided a nominal exception for women in the most extreme circumstances, such as abusive relationships.
The only women who would be burdened were all those left in the middle -- women like me, women in extraordinary and individualized circumstances that neither laws nor legal standards could possibly anticipate.
Alito’s opinion in essence said the only women the law would burden were those for whom it was burdensome; his standard appeared to be that individual rights could be restricted provided that not too many individuals were at stake.
That is precisely the problem with government regulating private lives. Politicians do not know how laws will affect each individualized case. Courtrooms are a citizen’s last refuge from unjust laws. When judges do not see those in their courtrooms as whole people and diverse individuals, that final constitutional safeguard is eviscerated.
To be sure, Alito would likely say women such as me should not take his opinion personally. I don’t. But his potential elevation to the Supreme Court comes at a moment when privacy rights hang in the balance on an array of issues. A woman’s right to choose is the most immediately threatened among them. Many Supreme Court decisions on that topic have been decided by a single vote -- Justice Sandra Day O’Connor’s. If Alito is even slightly more conservative than O’Connor -- as is obviously the case -- his vote would be enough to render the protections of Roe vs. Wade functionally meaningless for millions of women.
That is disturbing enough. But far more is at risk. From the Terri Schiavo case to the Patriot Act, politicians at all levels of government show an increasing willingness to invade the most sacred areas of private life -- from decisions about the beginning and end of life to the books we check out of the library.
Politicians are inclined to do that sort of thing; they rarely respect limits on their own power. That is why we have judges -- but if judges such as Alito are willing to give politicians such unthinking deference that they do not even attempt to ascertain how real laws affect real people, it is difficult to see how privacy can possibly be protected.
That is why it is so disappointing that President Bush has chosen to be intimidated by the most extreme element of his political base rather than acting as what he so often purports to be: a leader. Because he has chosen to follow, it is up to senators to lead. This nomination will rise or fall on the courage of moderates of both parties. Neither Democrats nor Republicans should expect their claims of moderation to be believed if they support a nominee whose views are so extreme.
Bush’s political strategy is already clear: to portray anyone who opposes Alito as obstructionist. That is a label senators should not fear. If their power to advise and consent -- as well as the privacy of individual American citizens -- means anything, this is a nomination that must be obstructed.