Wednesday, November 02, 2005

Rekha Basu's Alito Column Inaccurate

Rekha Basu has an editorial up on the Alito nomination.

State 29 tries to distill the editorial into: "Rekha Basu is upset that President Bush's latest nominee to the Supreme Court has a penis."

That's simplistic. She's upset Meiers was put forth as a candidate when she was clearly unqualified, just as a token female, which she suspects was done to clear the way for the qualified-but-conservative Alito. She is upset with Alito's stand on the issues, as most liberal bloggers are.

That said, I take serious issue with her characterization of the Casey decision:
He was the only judge in the federal third circuit Court of Appeals who voted in favor of a Pennsylvania requirement that women notify their husbands before getting an abortion, even if they were battered. The Supreme Court later overruled him, saying, "Women do not lose their constitutionally protected liberty when they marry."

I'm sorry, but that's a little biased.

He did vote in favor of the notification, and he had some logical points supporting him, though it is a decision I strenuously disagree with.

("Oh, well if you strenuously object, let me take a moment to reconsider. . ." Okay, nevermind.)

But the idea that the law at issue required "even battered women" to notify is false, in that it clearly implies women in fear of physical abuse must notify their husbands under the law.

From the Supreme Court's published opinion on the case, here is the exact text of the statute at issue, with the relevant language highlighted by me:
" 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.

"(b) Exceptions. - The statement certifying that the notice required by subsection (a) has been given need not be furnished where the woman provides the physician a signed statement certifying at least one of the following:

"(1) Her spouse is not the father of the child.

"(2) Her spouse, after diligent effort, could not be located. [505 U.S. 833, 909]

"(3) The pregnancy is a result of spousal sexual assault as described in section 3128 (relating to spousal sexual assault), which has been reported to a law enforcement agency having the requisite jurisdiction.

"(4) The woman 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.

(NOTE: the Alito dissent in the third circuit opinion itsef I've posted here, because it's apparently only available on Westlaw or Lexis.)

The statute clearly exempts women who are in fear of being battered.

How are Alito's detractors portraying it otherwise?

It was a damn poorly drafted law - another reason I disagreed with Alito's decision upholding it.

Basically, if you look at it, marital rape victims are only exempt if they reported it. What if it wasn't reported out of fear? The battering exemption exists for fear of physical harm to herself, yet it doesn't extend to other types of abuse: Locking her in a room for weeks or months without outside contact. Destroying all her personal property, irreplaceable photos and such. Abusing - or simply murdering - her kids as retaliation. Etc., etc., etc. All three could be done and still not fit the law's exemption. So the law did require women who had no fear of physical harm to themselves to follow the notification rules, even if they had a real fear of either physical harm to others or non-physical harm to themselves. (None of which directly references past abuse, just fear of future abuse, so technically the rules would apply whether a woman had already been battered or not).

In many ways the law was deeply flawed and deserved to be stricken. But to portray Alito as having 'voted to require battered women to notify their husbands prior to an abortion' is a gross mischaracterization.

Why can't they do an unbiased picking apart of the man, issue by issue? Seriously, there's enough fodder without the spin.

State calls me out on the whole snarky issue, and has a good point: different blogs serve different functions. I happen to prefer the boring even-handed analysis stuff, but that doesn't mean the snarky poli-blog doesn't have it's place.

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