Banishing Commonsense

A quick reminder. Tonight, PBS broadcasts, "The Last Abortion Clinic." We talked about this program last week. (See www.nrlc.org/News_and_Views/November05/nv110105.html)

As I indicated then, there is no way to tell in advance how slanted/one-sided this program might be. It could be refreshingly balanced.  We do know that the program will address the impact of pro-life legislation has had in reducing the number of abortions. So, I'd recommend you at least take a look. It's scheduled to air 9:00 pm Eastern Standard Time.

As we've  also mentioned, the Senate Judiciary Committee will begin hearings on Supreme Court nominee Samuel Alito January 9, with a committee vote and a full vote in the Senate scheduled to be completed in January. Retiring Justice Sandra Day O'Connor, who has agreed to stay on the Court until a successor is confirmed, has already heard Gonzales v. Oregon. This case asks the justices to decide whether legalized assisted suicide in Oregon must be facilitated by allowing federally controlled drugs to be used to kill people if such killing is not prohibited by state law.

O'Connor will also be on the bench November 30 when the justices hear Ayotte v. Planned Parenthood of Northern New England. At issue in this case is New Hampshire's parental notification law. The Court's own rules provide that if O'Connor is no longer a member of the Court when a decision is actually announced--and her departure means a 4-4 vote--the justices have the option of rehearing oral arguments.

In the past couple of months we've seen one Supreme Court nominee confirmed--John Roberts, as Chief Justice-- another withdraw her nomination--Harriet Miers--and a third nominated--Samuel Alito. One of the issues that has surfaced in all of this is a topic that has long been ignored and which raises hugely important issues: spousal notification when a married woman is contemplating an abortion.

There are many intriguing dimensions to this question. To begin with, although the question is rarely asked anymore, the American public by large majorities firmly believes that a husband ought to be at least told if his wife is about to abort their child. This is so commonsensical and such a non-threat to Roe v. Wade that it could not be otherwise.

But the pro-abortion response--even by abortion supporters who are ordinarily more level-headed--runs from scorn through panic ending in utter hysteria. Why?

There's the obvious: anything that suggests that the  "right" to abortion might potentially be even ever-so-slightly reduced--that instead of 100% "right,"  it's 99.5%--is enough to set the usual crowd off. These are not the "moderates" the media likes to portray pro-abortionists as.

But why the scorn, the language dripping in venom and sarcasm? Why the over-the-top insistence that even if there are protections galore (so that a woman need never notify her husband if she has even the slightest notion that it would be bad for her), such a law treats women like "girls" and is a hangover from the Middle Ages? Remember, by the way, that this is NOT spousal consent, only notification.

Having talked with several people this morning and having thought about this many times in the past, I think there are two inter-related reasons.

To the fanatical opponents of spousal notification (and I use the term deliberately), not only is the unborn child irrelevant, husbands are at best a nuisance, at worse a constant looming physical threat to their wives. That some husbands do fit that bill is why the Pennsylvania law that included a spousal notification included four exceptions to give women a wide berth in deciding whether to tell their husbands. (That portion of the 1989 Abortion Control Act was shot down by the High Court in the 1992 Planned Parenthood v. Casey decision.)

At the time lower courts were trying to figure out exactly what O'Connor meant when she conjured up her "undue burden" standard. In striking down spousal notification, O'Connor fleshed out what a law had to do to pass muster with her. (Kathryn Kolbert, who argued Casey for the pro-abortionists, said recently, "O'Connor's view of what was an 'undue burden' changed significantly." She added, "The Casey opinion was one of the most feminist decisions in history.")

But prior to Casey, any judge, regardless of perspective on the basic question of Roe v. Wade, could have pondered what O'Connor had written previously and easily have come to the conclusion that spousal notification did not unduly burden a woman's right to abortion. (It's difficult to parse but the gist, prior to Casey, was that a state law flunked the undue burden test if it created "absolute obstacles or severe limitations on the abortion decision.")

I suspect that even those who hold O'Connor aloft as the model "moderate" know  in their heart of hearts that O'Connor often simply winged it. Consistency (not "foolish consistency") was, for O'Connor, the hobgoblin of little minds. Thus lower court judges, not to mention state legislators, were forever trying to anticipate where her next ruling would land.

My point in bringing this up is a simple one. There are dimensions to the abortion debate that have either been almost completely ignored (fetal pain) or prematurely exiled from discussion (spousal notification). As the public thinks and rethinks about these powerfully important questions, it can only further unsettle the already shaky grounds on which the "right" to abortion rests.

Please send any comments to me at dandrusko@nrlc.org.