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Filibustering choice

Posted 02 Nov 2005 in abortion, SCOTUS

I was disappointed to hear the Democrat leadership already talking filibuster. For Pete’s sake, we’ve hardly begun to discuss President Bush’s nomination. Much less debate his judicial philosophy and record. Why threaten to shut down discussion already?

What are they so afraid of?

Yesterday’s Dallas Morning News front page sports the headline “Bush’s second attempt is stalwart conservative”, which is fine. But it also carries a subhead “Justice nominee Alito has voted to uphold abortion limits”. Now wait a minute. I believe Justice Alito has issued opinion on a wide variety of issues. Why single this one out? It’s a rhetorical question, of course; what are the editors of the DMN trying to say? It appears to me that they’re trotting out a fear among the Left that Alito will single-handedly make the SCOTUS outlaw abortion.

Look out! Coathangers for everyone!!

Let’s take a look at the “abortion limits” referenced in that headline. I think the abortion issue will be the biggest bugbear put out by the Left (par for the course). And the case that will probably be bludgeoned the most is Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), where Alito wrote a dissent which argued for the validity of a law requiring spousal notification before an abortion. Patterico does a much better job than I could at making sense of these important details, so check out this shortened summary of his excellent analysis of Alito’s dissent in Casey:

Alito began by noting the contemporaneous state of the law regarding abortion restrictions. He said that his major disagreement with the majority concerned the issue of whether spousal notification was an “undue burden.” Then, as now, deciding that issue required one to repair to the opaque writings of one Sandra Day O’Connor, and Alito did so, concluding:

Taken together, Justice O’Connor’s opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing “severe limitations”; rather than simply inhibiting abortions “to some degree” or inhibiting “some women.”

Judge Alito then noted that the spousal notification provision at issue did not give the husband a veto power. Rather, a married woman simply had to certify (through her own uncorroborated and unnotarized statement) either that she had notified her husband, or that her case fell within any one of several statutory exceptions, including:

(1) [The husband] is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) [the woman seeking an abortion] has reason to believe that notification is likely to result in the infliction of bodily injury upon her.

Judge Alito then argued that the appellees challenging the statute had not met their burden of proof which Justice O’Connor had said rested with those asserting an “undue burden” to show that the law had the “broader inhibiting effect” required by the whim of Justice O’Connor the relevant precedents.

Judge Alito concluded that, absent any evidence as to how many women would be adversely affected, the appellees had failed to meet their burden of showing that the spousal notification requirement imposed an “undue burden” on women. He specifically noted:

Whether the legislature’s approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards.

That sounds like a guy who understands the limited role of the judiciary wouldn’t you say?

Nowhere did Judge Alito call for Roe v. Wade to be overruled. There is nothing inflammatory in his dissenting opinion, at all. It is simply a measured and well-written opinion that shows a careful analysis of precedent and a proper respect for the courts’ limited role in our constitutional structure.

The bottom line is this: Judge Alito’s Casey dissent shows one thing, and one thing only: he is a careful judge and an adherent to the rule of law and a limited role for the courts. It is a dissent of which we can be proud. If Judge Alito is nominated, Don’t let the Democrats turn it into anything else.

See? This was a brilliant analysis of a very complicated series of judicial opinions and the related evidence. My proverbial hat’s off (to him, and to you if you’ve read all the way through this).

That was the legal side of things. I’m glad Alito judged the way he did. I think if a man is to be held legally and financially accountable for the creation of a life, he should at least be told about the baby before it is summarily snuffed out by the woman. The law doesn’t say anything beyond that, nor should it. At least let the guy know. That’s all.

So now, with all the conflict sure to erupt in the Senate, here’s something that might come in handy among the embattled Senators (and actually be more productive than their rhetoric).

Posted by FullMetalPatriot
12th gen. American, Constitutionalist, Harley-riding Texan, gun owner & NRA member, blogger, illustrator, Florida Gator alumnus. #TCOT

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