Krauthammer: Distorting Sam Alito

WASHINGTON -- Pop quiz: Which of the following abortion regulations is more restrictive, more burdensome, more likely to lead more women to forgo abortion?

(a) Requiring a minor to get the informed consent of her parents, or to get a judge to approve the abortion.

(b) Requiring a married woman to sign a form saying that she notified her husband.

Can any reasonable person have any doubt? A minor is intrinsically far more subject to the whims, anger, punishment, economic control and retribution of a parent. And the minor is required to get both parents involved in the process and to get them to agree to the abortion.

The married woman just has to inform her husband. Even less than that. She just has to sign a form saying that she informed him. No one checks. Moreover, under the Pennsylvania law I draw my example from, she could even forgo notification if she claimed that (1) he was not the father, (2) he could not be found, (3) he raped her, or (4) she had reason to believe he might physically harm her. What prosecutor on earth would subsequently dare try to prove to a jury that, say, she actually had no such fear of harm?

Remember. The question is not whether (a) or (b) is the wiser restriction. The only relevant question is which is more likely to discourage the woman from getting an abortion.

Which of the following abortion regulations is more restrictive, more burdensome, more likely to lead more women to forgo abortion?

(a) Requiring a minor to get the informed consent of her parents, or to get a judge to approve the abortion.

(b) Requiring a married woman to sign a form saying that she notified her husband.

Actually, it's the other way around.

If you stipulate what Charlie Kraut seems to imply, that these are to be changes to some status quo in which abortions are legal, and in which minors are, nevertheless, minors, (b) is the more burdensome because it affects many more persons than (a), because (b) represents a net imposition on persons otherwise perfectly free to seek abortions, and because (a), in a world in which children as minors require adult supervision and permission for major medical procedures anyway, would actually constitute a loosening of parental authority in favor of the child's wishes, because the child is now allowed to oppose the opinion of a judge to that of her parents, in order for the child to have her way.

That is not Mr. Krauthammer's point. When all a woman has to do is sign a document stating that her husband has been notified (nobody checks), or that she has reason to believe that such notification may cause her physical harm (nobody doubts her), or that the husband can't be found (nobody looks) and on top of all that has no power to forestall the abortion even if he is notified - it (the spousal notification) is barely a burden, and in prior rulings O'Connor had set the bar much higher than that.

The point of the article, as I see it, is that Alito's ruling will be twisted out of context [indeed, I saw an MSNBC crawler stating the Alito had ruled to "restrict abortions"], when all he was trying to do was follow the O'Connor guidelines on what constituted a "burden".

From the article:

The O'Connor standard was that the law could not impose an ``undue burden.'' What did that mean? She spelled it out and set the bar pretty high. A state regulation that ``may 'inhibit' abortions to some degree'' was not enough to create an ``undue burden.'' It required more. It required ``absolute obstacles or severe limitations on the abortion decision.''

So how to apply this test? Alito said: Let's see how the Supreme Court applied it. The court had found in previous decisions that there was no undue burden when you require a minor to notify or get consent from both parents, or to get judicial authorization. So surely, spousal notification, which is obviously less burdensome, was also constitutional.

Ah, say the critics, but when Casey ultimately came up to the Supreme Court, O'Connor disagreed with Alito and found that spousal notification is indeed an undue burden.

To which I say: Such is Alito's reward for having tortuously tried to follow O'Connor's logic. Brilliant Alito is, but alas not brilliant enough to divine O'Connor's next zigzag -- after Alito had blown hundreds of neurons trying to figure out the logic of her past (pre-Casey) rulings.

Seldom does Krauthammer miss from providing the shortest, clearest, most accurate discussion of his subject, than any other writer. That's true here, in his explanation of the difference between a judge applying his personal opinions to a case, versus applying the Constitution and the lesser laws, and following those to a logical conclusion.

This column would be an antidote to the lies that many people have told, are telling, and will tell in the future about nominees to the Supreme Court. But the kind of people who tell such lies wouldn't read Krauthammer, and couldn't understand him if they did. Logic is their short suit.

Congressman Billybob

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