Is opposing spousal notification "out of the mainstream" in America?
Those of us who oppose a law requiring spousal notification of a woman's intention to have an abortion must recognize that ours is the minority view — and has been for nearly two decades. I don't think that this would put us "out of the mainstream" (because about a quarter to a third of the population agrees with us), but we should recognize that a majority of Americans from almost all backgrounds favors notification.
I just examined the Roper Poll database to see what percentage of the US public favors (and favored) a law requiring a woman to notify her husband of an abortion.
The data suggest that a pretty solid majority of Americans favors notification — young and old; black and white; Republican and Democrat; liberal and conservative; North and South; and Protestant, Catholic, and nonreligious (but not Jewish).
2003
Gallup
N=1,002
January 10-12, 2003
QUESTION:
Do you favor or oppose ... A law requiring that the husband of a married woman be notified if she decides to have an abortion?
RESULTS:
72% Favor
26% Oppose
2% Don't know/Refused
1996
Gallup
N=1,008
July 26-28, 1996
QUESTION:
Do you favor or oppose ... A law requiring that the husband of a married woman be notified if she decides to have an abortion?
RESULTS:
71 % Favor
26% Oppose
4 % Don't know/Refused
DEMOGRAPHICS, % favoring notification
70% White
71% Black
78% Hispanic
78% Republican
66% Democrat
70% Independent
60% Liberal
68% Moderate
79% Conservative
75% 18-29 years old
71% 30-39
64% 40-49
66% 50-59
69% 60-69
79% 70 and over
1992
American National Election Study
N=2,487
September 1 - November 2, 1992
QUESTION:
Would you favor or oppose a law in your state that would require a married woman to notify her husband before she can have an abortion?
RESULTS:
63% Favor
34% Oppose
4% Don't know
1992
Princeton Survey Research Associates
N=1,301
SPONSOR: Times Mirror
April 30 – May 3, 1992
QUESTION:
As I read some restrictions on abortion that are being debated please tell me if you favor or oppose each:... requiring that married women in most cases notify their husbands before they have an abortion.
RESULTS:
69% Favor
27% Oppose
4% Don't know
DEMOGRAPHICS, favoring notification:
68% White
73% Black
76% Hispanic
71% Republican
67% Democrat
69% Independent
1992
Gallup
N=1,001
January 16-19, 1992
QUESTION:
Do you favor or oppose ... A law requiring that the husband of a married woman be notified if she decides to have an abortion
RESULTS:
73% Favor
25% Oppose
2% Don't know
DEMOGRAPHICS:
72% White
76% Black
86% Asian
73% Republican
69% Democrat
75% Independent
57% Liberal
75% Moderate
76% Conservative
RESULTS OF OTHER SURVEYS:
1992, Life Magazine:
67% Favor notification of husband
1991, Gallup
63% Favor notification of husband
December 1989, USA TODAY
57% Favor notification of husband or partner
July 1989, USA TODAY
63% Favor notification of husband or partner
UPDATE: Some have asked about where to get these polls. As I indicated, these summaries are from the Roper Poll database. If you have a subscription, they can be accessed here. Otherwise, both LEXIS and WESTLAW have them, if your institution has a subscription to either of these. To access the Roper Poll database in LEXIS, switch to "command searching" and enter: "News;rpoll". For those with subscriptions, the Gallup Polls are available at the Gallup Brain, and the data for the 1992 American National Election Study is downloadable at ICPSR and perhaps elsewhere.
In addition, three 2005 polls show that 74-78% of Americans favor parental notification for minors having abortions, which pretty closely matches the 71-80% favoring parental notification in studies going back to the late 1980s, so there doesn't appear to be much of a trend in the last two decades in the proportion that favors notification statutes.
Which was when Alito was ruling on it. In other words, when Alito ruled the way he did, he was in fact in the mainstream.
Moreover, recent polls have echoed that notification and every other restriction (waiting period, parental notification, etc.) gets a majority.
The only abortion question that gets upheld over and over is "Do you want Roe overturned" which is clearly answered as a NO by 55-60% of Americans.
But when they are asked do you want to require the spouse or parent be notified, the answer is just as solidly YES.
Thanks
Worth noting among others are two factors:
Over 54% of people self-identify as pro-choice (CNN/USA Today/Gallup Poll. Aug. 28-30, 2005)
BUT
63% favor additional restrictions that are currently in place, limiting it to only rape/incest/threat to mother's life or just mother's life (CBS News Poll. July 29-Aug. 2, 2005) Another 5% would never allow abortion ever.
That's why this notion of "60% of Americans are pro-Roe" or "pro-Choice" is a myth (one recently repeated by the TV show the West Wing last night). 50-55% are "pro-choice". Where 55-65% are in favor of restrictions, some almost to the point of banning.
CBS News Poll. July 13-14, 2005 where 80% of those polled "favor requiring that at least one parent be told before a girl under 18 years of age could have an abortion".
The sample size was only 632, so I'm not sure how happy I am with that. But let's even treble the margin MofE (i.e. 12 percent MofE). That drops it to "only" 68% of Americans favoring girls under 18 giving parental notification (note, not parental consent) before the procedure.
Keep all this in mind when discussions of "mainstream" views on abortion are tossed about in the next few weeks.
1) Should your wife be required to notify you if she chose to have an abortion? (Or the "Should you be required to inform your husband before you have an abortion?")
2) Should the wife of an abusive husband be required to notify him if she chose to have an abortion?
In the interest of marital and familial harmony, most husbands and wives would answer affirmatively to the first question. After all, this is a big decision, and the nature of marriage is that such decisions be made jointly. But there's an exception to that, which is clear, and would be demonstrated by question 2.
This is not to say that opponents of notification do not believe in marital harmony, nor that proponents of notification believe that women should bear the risk of a beating. I am simply suggesting that the polls are skewed by respondants who personalize the question.
And does the majority favor or oppose their daughters' marrying a man of another race?
I mean, since the majority runs the country now, these are important things to know.
It matters very little what the will of the people is in regard to cases such as the one in which Alito dissented.
It also doesn't matter whether he personally supported or opposed the law in question.
All that matters is whether the U.S. Constitution allowed the duly elected PA state legislature to pass the law that it did.
Alito (correctly, in my view) found that the Constitution did not bar that political body from enacting this particular law.
This is all that we should be asking of any member of the federal appellate judiciary. The fact that we're not, shows how far afield we've gotten from the actual mission of our federal bench.
*I* am clearly out of the mainstream.
I'm very sympathetic to your position that spousal notification is within both the legal and general American mainstream. However, I'm not sure that one has anything to do with the other. For instance, I'm pretty sure that a majority of Americans think flag-burning should be a criminal offense, but such a position is firmly rejected by the legal left, right, and center.
Nonetheless when Congressional Democrats and PFAW argue that a person would be "out of the judicial mainstream" they're really making a political argument as much as a legal one, so it's amusing to point out that the very public that is supposed to be horrified by such a person would probably enjoy the results of his jurisprudence.
Absolutely! Presumeably, the decision is based on the husband having some interest in the fetus, not the uterus. Husbands don't recieve notification if their wife catches a cold from someone else...
Maybe an escape clause? "...unless accompanied by proof of non-paternity"
I haven't even been able to dig that up for PA's law referenced in Casey ...
b) the law Alito upheld had an exception for spousal rape
c) the law Alito upheld only required notification, not consent.
Context, people... please.
Did the law have an exception for spousal abuse?
What about a couple going through a divorce?
Just spitballing ideas off the top of my head.
Other exercises of constitutional rights that should require spousal notification:
1. voting--a woman should not be allowed to vote unless her husband has been notified.
2. free exercise of religion--a woman shall not go to church unless and until her husband has been notified.
3. jury trial--a woman shall not be permitted to demand a trial by jury without first notifying her husband.
Etc, etc.
In Alito's world, these are all constitutional.
The fact that its provisions were never ratified by the voters, and can't be derived by implication from provisions that were, is irrelevant. "Majorities can be wrong" is trite. "Therefore a minority can override the minority, as long as it's a minority *I* personally agree with" is no solution to that triteness.
Majority rule has a presumptive claim to legitimacy -- firstly because it counts everyone equally (your redneck in a trailer park gets the same say about abortion as Justice Souter gets), and secondly because it allows one clear answer (as opposed to "Therefore a minority can override the minority, as long as it's a minority *I* personally agree with", which means anarchy if you extend to the KKK or al-Qaeda or the homeschooling Montana survivalists the same rights that you claim for yourself).
A super-majority can trump a 50%+1 majority -- by ratifying a constitutional amendment -- and may do so by guaranteeing legal rights to minorities. A minority, however, can't simply unilaterally claim a right to trump a majority. In many cases, 50% + 1 should not be sufficient to change a law. But it should always be necessary. And the Roe v Wade "judgment" changed the law, make no mistake about that. (Please, don't re-run the "But Brown was a controversial decision where the SC overruled the States, and Brown was right, so therefore if Roe was also a controversial decision where the SC overruled the States, therefore logically Roe must be right also." Brown was enforcing a constitutional commitment previously enacted into law. That its Framers had their fingers crossed when they chose the words "equal protection" doesn't mean their thoughts override their words. Where is the comparable Constitutional article that justifies Roe?)
No wonder the left can't win elections in America any more. If I were a swing voter, I'd be insulted by this attitude.
1) Alito would allow women to lose their constitutionally protected liberty when they marry.
In the 19th century feminists fought a very long battle to get coverture out of the law. Married women should not have less constituitonal liberty then single women.
2) why did O'Conner et. all reject spousal notification? ...because there are big legal implications in restricting married women's liberties that do not stop at abortion.
For example, in Casey the majority opinion warns that:
"If a husband's interest in the potential life of the child outweighs a wife's liberty, the state could require a married woman to notify her husband before she uses a post-fertalization contraceptive..."
Where does the Constitution strike the balance between the right of the father and the right of the mother respecting a child jointly produced by them?
How about a law requiring teacher-led Christian prayers in public schools? That would get a lot of public support in opinion polls too.
No, seriously, you become legally responsible for another human being. You essentially sign a blank-slate contract to become legally responsible for any new human beings you create. In a man's case, this can be true even if the husband wasn't involved in the creation. Marriage is a strong infringement upon economic liberty (joint responsibility for debts), upon sexual liberty (prohibition against any extra-marital sexual liasons), and upon a host of "rights" that single people might have, construed broadly. Marriage by its very nature blurs the line between the individual and the joined pair. Referencing the singular rights of one without any reference or lip service to the other seems to me a bit tragic.
At any rate, I'm still awaiting an answer to my question. What is the consequence for non-compliance to a notification law like this? If a wife signs the paper saying that she told her husband about her abortion but didn't ... then what? Surely the "or else" portion of the debate speaks to whether compliance is an "undue burden", but I haven't seen it referenced much.
I belive the law then allowed the women's doctor to be sued. It's on line in the Casey decision. (I read the decision quickly this morning, so please check the accuracy of this info.)
I guess what really bothers me is the precedent of coverture applying to birth control and reproduction. It seems to me that this decision, if accepted by SCOTUS, applies an old common law principle that "a woman had no legal existence separate from her husband".
In other words, this sets up a new precedent for analyzing "privacy". A wife's reproductive rights could not be separated from her husband. Alito applies a different standard of constitutional analysis to unmarried and married women. This weaves coverature back into constitutional legal rights formerly reserved for individuals.
Oh, the horror. A woman's 'reproductive rights' are already entangled with her husband -- that's why he's automatically the (legal) father unless he produces very prompt evidence to the contrary, and that's why sterility is grounds for divorce in some places. Unless you find these far more significant restrictions just as unconstitutional, you'll have to admit that your objections are facetious at best.
Not to mention I don't see you agitating for the end to entangled other rights, like spousal privilege.
Casey, majority opinion:
"The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices."
"If a husband's intnerest in the potential life of the child outweighs a wife's liberty, the state could require a married woman to notify her husband before she uses a post-fertalization contraceptive. Perhaps next in line would be a statue requiring pregnant married women to notify their husbands before engaging in conduct causing risk to the fetus. Perhaps married women should notify their husband before using contraceptives or before undergoing any type of surgery that may have complications affecting a husband's interest in his wife's reproductive organs."
I mean, I suspect the poll numbers to the question: "Would you favor or oppose a law in your state that would require a married man to notify his wife before he can have an ejaculation?" might have similar gross results but a huge difference from the abortion version divided on gender lines.
""§ 3209. Spousal Notice.
"(a) Spousal notice required. -- In order to further the Commonwealth's interest in promoting the integrity of the marital relationship and to protect a spouse's interests in having children within marriage and in protecting the prenatal life of that spouse's child, no physician shall perform an abortion on a married woman, except as provided in subsections (b) and (c), unless he or she has received a signed statement, which need not be notarized, from the woman upon whom the abortion is to be performed, that she has notified her spouse that she is about to undergo an abortion. The statement shall bear a notice that any false statement made therein is punishable by law. "
I'm not a lawyer. What *exactly* does this last sentence mean? Could she be prosecuted for perjury? Could the false statement be used as grounds for divorce?
Incidentally, is this framework wise? I mean, a husband desiring divorce could lie about whether she told him ... what a tangled web we weave.
If this was not the case, why would it not be a requirement that the father, whether married to the woman or not, be notified?
The logical extention of this "camel's nose" is that spousal consent be required.
The reason it is not a requirement for the father, whether married or not, be notified is that this regulation is substantially about the definition marriage and its tie to the procreative nature of that relationship, perhaps moreso than your claim that it is about putting barriers between a woman and her ability to have abortions.
The extension you propose is only logical if you presuppose that both partners must have an equal claim to preventing an abortion. That presupposition clearly goes well beyond any claim made in this statute. Indeed, the statute as written by expressly NOT requiring consent seems to imply that this required additional presupposition is not widely held. Therefore it is not a necessary and logical extension of the facts at hand.
Talk about positions outside the mainstream...or are you writing from Saudi Arabia?
You misread. It's patently silly to assert that a husband has AT LEAST an equal interest in his fetuses. That means NO husband has LESS an interest as the wife.
There are certainly husbands who have equal interest (most, I suspect) in their fetuses, I'm certain many choose and/or deserve by any measure to have less of an interest.
In return, a man can avoid paying child support for the next 18 years by signing an affidavit that "She told me she was on the pill!"
After all, it's solely a woman's decision.
Come on .... why do you think it is necessary to cloak anti-abortion measures in the garb of marriage protection? If a wife does not feel she can share with her husband her need to seek an abortion, then maybe the marriage isn't all that strong in the first place. And, then, just how will this measure strengthen it?
In return, a man can avoid paying child support for the next 18 years by signing an affidavit that "She told me she was on the pill!"
After all, it's solely a woman's decision.
Deal. I'm not big on the idea of child support in any case; I'd much rather it be replaced by additional welfare payments to single moms and a social service system that makes it easier for a single mom to raise a child.