The Volokh Conspiracy - Criticisms of Judge Alito on Abortion and the Spousal Notification Decision:

I thought I'd pass along a few of the arguments (paraphrased from memory) that I'd heard during the radio program that I was just on; they were about Judge Alito's views on abortion, and specifically about his vote to uphold spousal notification laws in Casey. To the extent the arguments were factually mistaken (as the arguments noted in items 1 and 2 below were), I'm sure they were honest mistakes, but they're the sort of mistake that we're likely to see often:

Judge Alito voted to uphold spousal consent laws. No, he voted to uphold a spousal notification law.

Though public surveys may have revealed that most Americans supported spousal notification laws, that was only before or around the time of the Casey decision. No, the survey I quoted on the air was from 2003, and revealed a 72%-26% margin in favor of such provisions, much the same as the early 1992 data; a 2005 survey that I just found from 2005 reveals a 64%-34% margin, somewhat less than in 2003 but still a landslide in favor of the restrictions. (See here for data from both surveys.)

This vote by Judge Alito shows that he's not sensitive to women's issues. The most recent spousal notification survey results that I could find that broke down men's views and women's votes showed a small gender gap — 71-26 total, 75-23 male, 67-29 female (Gallup, July 26, 1996). Even if one makes an 8% adjustment to reflect the difference between the overall 2005 data and the overall 2005 data (i.e., assuming that the 2005 changes from 2003, 1996, and 1992 will persist and weren't just a blip), and assumes the same gender gap, that's still 58-37 support among women. One can, of course, say that these women aren't sensitive to women's issues, either; but it's important to realize that the person who says it, and not Judge Alito, is the one who's out of step with most American women.

Judge Alito's views on this are out of the mainstream. Maybe they're out of what some think the mainstream view ought to be; but the views (assuming that we're right to even talk about this as his "views," as opposed to his interpretation of the relevant Supreme Court precedents in 1991) are majority views, by a wide margin.

Judge Alito's opinion was wrong because spousal notification laws put the woman at risk of physical abuse. The law that Judge Alito voted to uphold actually had a specific exemption whenever the woman "has reason to believe that [notification] is likely to result in the infliction of bodily injury upon her by her spouse or by another individual." A sincere belief was apparently sufficient under the law; there was no requirement that the woman prove this with evidence other than her own sincere belief. One can still argue that, as implemented, the law would nonetheless put women at risk (as the person I was talking to did argue). But one would have to acknowledge the seemingly quite broad exception, and explain just why it's inadequate.

Judge Alito's opinion is undercut by his argument that the spousal notification law is in any event unenforceable — in our legal system, we shouldn't endorse bad laws just because they're unenforceable. Actually, Judge Alito's opinion specifically said, in the footnote that discussed enforceability, that "In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade" (emphasis by Judge Alito).

Again, one could still fault him for even bringing this up, since one can say that his bringing it up suggests that he might rely on such reasoning in some future case, and that the closing point in his footnote, which is that "It seems likely, therefore, that Section 3209, if allowed to take effect, would be widely evaded and infrequently enforced and would consequently be less likely to produce either the good or bad effects that the opposing parties claim." But it seems important to recognize that he expressly rested his opinion on the law as it would operate if it were scrupulously followed, and expressly said that he was not relying on the law's being easy to evade.

None of this of course goes to what the constitutionally, morally, or pragmatically right view is on spousal notification; I'm speaking here only of the specific arguments that I'd heard deployed against Judge Alito's position.

	[Eugene Volokh, January 5, 2006 at 12:24pm] Trackbacks Criticisms of Judge Alito on Abortion and the Spousal Notification Decision: I thought I'd pass along a few of the arguments (paraphrased from memory) that I'd heard during the radio program that I was just on; they were about Judge Alito's views on abortion, and specifically about his vote to uphold spousal notification laws in Casey. To the extent the arguments were factually mistaken (as the arguments noted in items 1 and 2 below were), I'm sure they were honest mistakes, but they're the sort of mistake that we're likely to see often: Judge Alito voted to uphold spousal consent laws. No, he voted to uphold a spousal notification law. Though public surveys may have revealed that most Americans supported spousal notification laws, that was only before or around the time of the Casey decision. No, the survey I quoted on the air was from 2003, and revealed a 72%-26% margin in favor of such provisions, much the same as the early 1992 data; a 2005 survey that I just found from 2005 reveals a 64%-34% margin, somewhat less than in 2003 but still a landslide in favor of the restrictions. (See here for data from both surveys.) This vote by Judge Alito shows that he's not sensitive to women's issues. The most recent spousal notification survey results that I could find that broke down men's views and women's votes showed a small gender gap — 71-26 total, 75-23 male, 67-29 female (Gallup, July 26, 1996). Even if one makes an 8% adjustment to reflect the difference between the overall 2005 data and the overall 2005 data (i.e., assuming that the 2005 changes from 2003, 1996, and 1992 will persist and weren't just a blip), and assumes the same gender gap, that's still 58-37 support among women. One can, of course, say that these women aren't sensitive to women's issues, either; but it's important to realize that the person who says it, and not Judge Alito, is the one who's out of step with most American women. Judge Alito's views on this are out of the mainstream. Maybe they're out of what some think the mainstream view ought to be; but the views (assuming that we're right to even talk about this as his "views," as opposed to his interpretation of the relevant Supreme Court precedents in 1991) are majority views, by a wide margin. Judge Alito's opinion was wrong because spousal notification laws put the woman at risk of physical abuse. The law that Judge Alito voted to uphold actually had a specific exemption whenever the woman "has reason to believe that [notification] is likely to result in the infliction of bodily injury upon her by her spouse or by another individual." A sincere belief was apparently sufficient under the law; there was no requirement that the woman prove this with evidence other than her own sincere belief. One can still argue that, as implemented, the law would nonetheless put women at risk (as the person I was talking to did argue). But one would have to acknowledge the seemingly quite broad exception, and explain just why it's inadequate. Judge Alito's opinion is undercut by his argument that the spousal notification law is in any event unenforceable — in our legal system, we shouldn't endorse bad laws just because they're unenforceable. Actually, Judge Alito's opinion specifically said, in the footnote that discussed enforceability, that "In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade" (emphasis by Judge Alito). Again, one could still fault him for even bringing this up, since one can say that his bringing it up suggests that he might rely on such reasoning in some future case, and that the closing point in his footnote, which is that "It seems likely, therefore, that Section 3209, if allowed to take effect, would be widely evaded and infrequently enforced and would consequently be less likely to produce either the good or bad effects that the opposing parties claim." But it seems important to recognize that he expressly rested his opinion on the law as it would operate if it were scrupulously followed, and expressly said that he was not relying on the law's being easy to evade. None of this of course goes to what the constitutionally, morally, or pragmatically right view is on spousal notification; I'm speaking here only of the specific arguments that I'd heard deployed against Judge Alito's position.