Monday, October 31, 2005

Samuel Alito and Casey: Preliminary Thoughts

There's a big buzz around the 'net about the nomination of Judge Alito for the Supreme Court. Daily Kos claims:
Samuel Alito would:
  • Overturn Roe v. Wade. About 2/3rds of Americans would oppose overturning Roe.

  • Allow race-based discrimination and discrimination based on disabilities.

  • Opposes {sic} the Family and Medical Leave Act. In fact, he doesn't just opppose it, he struck down the law in 2000. The Supreme Court reversed his decision. For Alito, workers shouldn't be able to take 12 weeks of unpaid leave to take care of newborns or loved ones.

  • Has no problem with unauthorized strip searches.
ThinkProgress adds that he's hostile towards immigrants.

I'm no conservative, but from what I've seen this is not exactly true. SCOTUSBlog links to his decisions. Some excerpts:
A majority opinion in Fatin v. INS, 12 F.3d 1233 (3d Cir. 1993), holding that an Iranian woman seeking asylum could establish that she had a well founded fear of persecution in Iran if she could show that compliance with that country's "gender specific laws and repressive social norms," such as the requirement that women wear a veil in public, would be deeply abhorrent to her. Judge Alito also held that she could establish eligibility for asylum by showing that she would be persecuted because of gender, belief in feminism, or membership in a feminist group.

A majority opinion in Saxe v. State College Area School District, 240 F.3d 200 (3d Cir. 2001), striking down as contrary to the First Amendment a public school district anti-harassment policy that extended to nonvulgar, non-school-sponsored speech that posed no realistic threat of substantial disruption of school work.

A majority opinion in Shore Regional High School Board of Education v. P.S., 381 F.3d 194 (3d Cir. 2004), holding that a school district did not provide a high school student with a free and appropriate public education, as required by the Individuals with Disabilities Education Act, when it failed to protect the student from bullying by fellow students who taunted the student based on his lack of athleticism and his perceived sexual orientation.

A majority opinion in Williams v. Price, 343 F.3d 223 (3d Cir. 2003), granting a writ of habeas corpus to an African-American state prisoner after state courts had refused to consider the testimony of a witness who stated that a juror had uttered derogatory remarks about African Americans during an encounter in the courthouse after the conclusion of the trial.

Go to the site and follow the links to read for yourself. I simply don't see the support for the claims that he would allow race-based discrimination, for example, when he decided to grant the writ in Price. And the Fatin v. INS decision is far more liberal than most I've seen in granting asylum.

From what I've seen, the most noise is centering around his dissenting opinion in the 3rd Circuit opinion in Casey v. Planned Parenthood (a seminal abortion case that went up to the Supreme Court) and a majority opinion in ACLU v. Schundler (a religious display case).

(NOTE: Since I can't seem to find the full text of the Casey dissent elsewhere on the net, I copied it here.)

To take these one at a time:

In ACLU v. Schundler, there was a tiff about a holiday display in front of the courthouse:

The modified display contained not only a creche, a menorah, and Christmas tree, but also large plastic figures of Santa Claus and Frosty the Snowman, a red sled, and Kwanzaa symbols on the tree. In addition, the display contained two signs stating that the display was one of a series of displays put up by the City throughout the year to celebrate its residents' cultural and ethnic diversity. We find this modified display to be indistinguishable in any constitutionally significant respect from the displays upheld by the Supreme Court in Lynch v. Donnelly, 465 U.S. 668 (1984), and County of Allegheny v. Greater Pittsburgh ACLU, 492 U.S. 573 (1989) (hereinafter "Allegheny County"), and we therefore hold that Jersey City's modified display is likewise constitutional.

Okay, I'm not going to go into the whole analysis on religious displays here, because it would be long, dull, and make my brain bleed. A bit of a summary from some old notes:
Lemon v. Kurtzman: At issue were two statutes. One gave private schools money for teaching public school subjects: textbook reimbursements, salary reimbursements, and so forth. The other gave to teachers in private elementary schools a 15% bonus, if the teacher taught in the same manner and the same subjects as in public schools, but capped the bonus at public school salaries. Content-neutral, sure. But it had the effect of subsidizing religious education because over 90% of the recipients were parochial schools. Basically, the states had gotten smarter in trying to work around the Amendments to fund religious education with taxpayer money. Taxpayers who disagreed with parochial schools filed suit to stop it. The Court articulated the following test in holding the statutes unconstitutional:
“First, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion, Board of Education v. Allen, 392 U.S. 236, 243 (1968); finally, the statute must not foster "an excessive government entanglement with religion." Walz, supra, at 674.”

So now they have a test. It’s a three-pronged balancing act. But those stupid facts keep getting in the way. The case most often noted as not fitting the test is Marsh v. Chambers, a 1983 Nebraska case involving a challenge to having the State government fund a chaplain to open its legislative sessions in prayer. The problem: there’s no real secular purpose that can be found in that. It’s a state exercise of religion that’s taxpayer funded. So it goes back to the Madison/Jefferson “can’t make people fund religion” line of thinking, and is unconstitutional, right? Okay, so explain how the founding fathers requisitioned the money to pay for a federal chaplain to open the federal legislature in prayer – the same Founding Fathers that wrote the Second Amendment. The Court decided the “unique history” of the practice took it out of the framework of the test and made it constitutional.

In Lynch v. Donnelly, the Lemon test is applied to a display of a nativity scene on a public square. Again, the Court starts the analysis with a long history of religious activity in and by the US. It notes that the same week that the Amendment was voted into existence, the same people ratified the payment of a chaplain to open congressional sessions with a prayer. It notes the whole “paying for religion” and school prayer debates, quoting extensively from both history and caselaw. The Court found that the city had conferred at best a coincidental or indirect benefit on religion by inclusion of the crèche in an otherwise secular display, not one sufficient to call “entanglement.” The stated purpose of the display was to celebrate the Holiday and to depict the origins of that Holiday, which was called a non-secular purpose. In examining effect, the Court compared it to past things that had been held constitutional, such as property tax breaks, and said it had to be more beneficial to religion than those in order for it to be unconstitutional. Since having a crèche obviously doesn’t help a religious institution more than a property tax break, etc., they found it passed.

Now, that doesn't even get into this year's McCreary and Van Orden v. Perry, which in my opinion made everything just that much less clear. An earlier post I had on the divisiveness analysis in those cases (a sub issue) is here.

The upshot: there is a potential a Christmas display is actually constitutional if it doesn't outright prosthelytize, it wasn't erected for a religious purpose, and it follows what my con law professor called the "two teddy bear" rule (when you throw a creche in with a couple of teddy bears, a dancing Santa, a menorah and such). To hold Alito out as some sort of right wing nut because he fell on the side of constitutionality in this case is unfair.

As far as the Casey decision goes, however, I am far more concerned. Unlike the 3rd Circuit majority, he would have upheld as constitutional a Pennsylvania law requiring a woman to notify her spouse prior to obtaining an abortion. The law at issue:
Section 3209 of the Act requires that, before a physician may perform an abortion on a married woman, the woman must sign a statement that she has notified her husband of her intended abortion. The Commonwealth is to provide the forms for these statements, and each form must bear a notice that false statements are punishable by law. Besides the standard medical emergency exception, § 3209 contains four other important exceptions. A woman is not required to notify her husband if: (1) her husband is not the father; (2) her husband, after diligent effort, cannot be located; (3) the pregnancy is a result of spousal sexual assault which has been reported to a law enforcement agency; or (4) the woman has reason to believe that notifying her husband is likely to result in the infliction of bodily injury by her spouse or by another individual. If the woman provides a false statement on the form, she may be liable for a misdemeanor of the third degree. Any physician who performs an abortion without complying with this section may be subject to civil penalties.

Alito found that this statute didn't present an undue burden on abortion:
My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 & Supp.1991), results from disagreement about the portion of Justice O'Connor's two-part test that must be applied to this provision. Under that test, as the majority explains, a law that imposes an "undue burden" must serve a "compelling" state interest. By contrast, a law that does not impose an "undue burden" must simply be "rationally" or "reasonably" related to a "legitimate" state interest. The majority holds that Section 3209 constitutes an undue burden. The majority therefore applies the first prong of the two-part test and strikes down Section 3209 on the ground that it does not serve a "compelling" interest. I do not believe that Section 3209 has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that Section 3209 is constitutional because it is "rationally related" to a "legitimate" state interest.

He went on to note that parental notificaiton laws had not been held to be an undue burden, so why should spousal notifications be otherwise?

The majority found that because the risk of domestic abuse, physical or otherwise, is so great, the statute is inherently too burdensome:
The Pennsylvania legislature has not been unmindful of the burdens imposed on pregnant wives by § 3209 and has attempted to ease or avoid a number of them by including exceptions. Section 3209, for example, speaks to the dilemma of a woman who "has reason to believe that the furnishing of notice to her spouse is likely to result in the infliction of bodily injury upon her by her spouse or by another individual." A woman with such a fear may avoid notification by certifying her fear to her physician on a form provided by the Commonwealth. *713 While ameliorative, this exception does not save § 3209 from being unduly burdensome in the constitutional sense. The district court found, with appropriate record support, that battered spouses are psychologically incapacitated from making the assertion required by the statute even when there is ample objective basis for the required fear. Many other women who have never before been the victims of "bodily injury" at the hands of their husband, may subjectively fear that notice may occasion "the first time," but conclude that they lack the requisite "reason to believe." Moreover, it is not clear to us that the "fear of bodily injury" exception was intended to aid those women whose access to an abortion is blocked by physical constraints or who reasonably fear physical abuse and the attendant suffering, but cannot conscientiously represent that injury to their bodies is likely to occur.

If physical violence were the only burden reasonably predictable from coerced spousal notification we might be inclined in this facial challenge to hold that the fear of bodily injury exception was sufficient to avoid an undue burden, at least until the effects of the Act in practice are known. But as we have previously stressed, physical violence is not the only burden reasonably predictable. The record reveals and the district court found that if § 3209 is allowed to go into effect, abortions can and will be prevented by economic and psychological duress and wives can and will be penalized by such duress for electing abortions.

One other of § 3209's exceptions warrants comment in our assessment of the burdens imposed by that section. The record demonstrates and the district court found that many women consent to sexual intercourse with their husbands solely to avoid greater physical or psychological abuse. Section 3209 provides that when a child is conceived in the course of coerced sex, notification need not be given, if, but only if, the wife reports her husband to law enforcement authorities having jurisdiction over the matter. While this limitation on the exception is understandably imposed to discourage misrepresentations at the time an abortion is sought, its motivation does not ease the impact of the notification requirement on a woman who finds herself pregnant as a result of a sexual assault by her spouse. Given the devastating effect that a report to law enforcement authorities is likely to have on the marital relationship and the economic support provided the wife by the marriage, we believe it would be unrealistic to find that such a woman's right to choose an abortion is not severely burdened by § 3209.

In looking at the decision, and trying to be fair, I can't exactly fault Alito's reasoning here. If the parental notificiation rules are legal as not imposing an undue burden, why should a spousal rule be otherwise? Surely the level of intimidation is not all that different between an abused spouse and an abused child?The Supreme Court's decision in Casey discusses just that issue at great length:
This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. See, e.g., Akron II, 497 U.S., at 510 -519; Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II); Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 74 . Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.

We recognize that a husband has a deep and proper concern and interest . . . in his wife's pregnancy and in the growth and development of the fetus she is carrying. Danforth, supra, at 69. With regard to the children he has fathered and raised, the Court has recognized his "cognizable and substantial" interest in their custody. Stanley v. Illinois, 405 U.S. 645, 651 -652 (1972); see also Quilloin v. Walcott, 434 U.S. 246 (1978); Caban v. Mohammed, 441 U.S. 380 (1979); Lehr v. Robertson, 463 U.S. 248 (1983). If this case concerned a State's ability to require the mother to notify the father before taking some action with respect to a living [505 U.S. 833, 896] child raised by both, therefore, it would be reasonable to conclude, as a general matter, that the father's interest in the welfare of the child and the mother's interest are equal.

Before birth, however, the issue takes on a very different cast. It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother's liberty than on the father's. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family, but upon the very bodily integrity of the pregnant woman. Cf. Cruzan v. Director, Mo. Dept. of Health, 497 U.S., at 281 . The Court has held that, when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor. Danforth, supra, at 71. This conclusion rests upon the basic nature of marriage and the nature of our Constitution: [T]he marital couple is not an independent entity with a mind and heart of its own, but an association of two individuals, each with a separate intellectual and emotional makeup. If the right of privacy means anything, it is the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, 405 U.S., at 453 (emphasis in original). The Constitution protects individuals, men and women alike, from unjustified state interference, even when that interference is enacted into law for the benefit of their spouses.

There was a time, not so long ago, when a different understanding of the family and of the Constitution prevailed. In Bradwell v. State, 16 Wall. 130 (1873), three Members of this [505 U.S. 833, 897] Court reaffirmed the common law principle that a woman had no legal existence separate from her husband, who was regarded as her head and representative in the social state; and, notwithstanding some recent modifications of this civil status, many of the special rules of law flowing from and dependent upon this cardinal principle still exist in full force in most States. Id., at 141 (Bradley, J., joined by Swayne and Field, JJ., concurring in judgment). Only one generation has passed since this Court observed that "woman is still regarded as the center of home and family life," with attendant "special responsibilities" that precluded full and independent legal status under the Constitution. Hoyt v. Florida, 368 U.S. 57, 62 (1961). These views, of course, are no longer consistent with our understanding of the family, the individual, or the Constitution.

In keeping with our rejection of the common law understanding of a woman's role within the family, the Court held in Danforth that the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion. 428 U.S., at 69 . The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife's decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law - those who most reasonably fear the consequences of notifying their husbands that they are pregnant - are in the gravest danger. [505 U.S. 833, 898]

The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. 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 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-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs. And if a husband's interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify - a requirement of the husband's consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.

Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. The Constitution protects all individuals, male or female, married or unmarried, from the abuse of governmental power, even where that power is employed for the supposed benefit of a member of the individual's family. These considerations confirm our conclusion that 3209 is invalid. [505 U.S. 833, 899]

MY TWO CENTS: I'm wondering if the whole "equal protection" thing mentioned in the last paragraph might actually hold additional issues to analyze. When you consider the distinction being drawn by the provision between married and unmarried women, in requiring one to notify her sex partner of an impending abortion and not requiring the other to do so, I'm wondering if it fails even the most basic rational basis test. What would be the purpose in requiring one to notify and the other not? The father's rights in the child are the same. The risks to the women's health are the same. What's the rational basis the government would have for drawing the distinctions between the two (unprotected) classes?

(NOTE: if you're in a protected class, such as race, you get a higher level of scrutiny than an unprotected class, and the government needs to show more than a rational basis to draw a distinction. So if a law distinguishes between whites and blacks, it's harder to have it upheld than if it distinguishes between people who have piercings and those who do not, for example. I'm suggesting that this law doesn't even pass rational basis if you define the classes as married vs. unmarried women).

I do agree that there's a big difference between requiring a minor to notify parents of an impending medical procedure and requiring a grown adult to to the same. Minor notification of parents which is the norm, and an unnotified abortion would be an exception to the rule, since the minor is presumed incompetent to contract or make decisions for herself. Adult women, on the other hand, are not required to tell our husbands or significant others about any other medical procedure, including getting our tubes tied, which would also presumably affect the man's "rights" in any unborn children we could potentially carry. So why carve out this exception?

There are so many ways in which this law should have failed constitutional scrutiny, that I am troubled at someone who would not find it a problem. That said, I also take issue with anyone who would extrapolate from this ruling that Alito would overturn Roe. He simply didn't say that. He very well could try to do so, given the tenor of his opinion. But it can't be made a flat accusation, as if he'd come out in the dicta and said "And for the record, Roe bites."


There's already a blog. Ooookaaay.

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