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Today's Cultural Warfare Update
Oct. 31st, 2005 09:25 amWell, it's Alito, surprising very few. The social right has already picked up on the biggest scary thing, Planned Parenthood v. Casey, where he supported the right of the state to mandate that women notify their husbands before getting an abortion. There were exceptions, but the mandate was there.
The offensive from the social right is going to be that the pro-choice side is lying about PP v. Casey and that they're saying he mandated they get permission. They're also proclaiming that the law Judge Alito supported and voted to uphold only required in in "some cases." A more accurate description is that it required notification as a base position, and provided a few opportunities to get out of it.
More specifically, though, what Alito upheld - in more or less these words, tho' this is not an exact quote - is the concept that a husband has a specific interest in the foetus that the state can act to support. A specific interest, in this kind of context, implies a kind of ownership right. It implies that the foetus, which is part of his wife's body, is in some way his property.
Legal requirement for notification does not happen in a vacuum. It's not instantiated as a frivolous whim; there's always a motivating reason. Indeed, the core of the "notification" question relies on the same arguments and theories that a "permission" question would similarly raise; is there a specific interest (as with, say, property); if there is, can the state act to support or protect those interests? In both cases, if you support one, you can support the other.
Note that both these arguments imply that the woman's position in the matter - you know, the person actually carrying the foetus - is at best a peer interest to that of her husband, and arguably, since in all of these cases the woman's position is already implied, that her position is secondary.
So no, he didn't support a law that required the permission of the husband. But he did vote to uphold a law that has the exact same legal and philosophical requirement set as one that would, and I reject that legal argument on bases of equality under the law, right of property, and right of privacy. If you consider women to be true legal peers of men, I do not see how you can decide otherwise.
He, clearly, did not have this problem.
The only question remaining, if do you accept that line of reasoning, would be the matter of whether the legal interest of the husband presents an undue burden on the wife, and what she does with her body. In this case, he felt it did not. Indeed, this was the basis he used to decide that the notification requirement was Constitutional; that the burden was not undue.
What would happen, following this line of reasoning, with a challenge to a law that explicitly required permission? Would this similarly be an undue burden?
In general, in the case of anyone with a legal interest in an object, the right to object to things being done with that object is typically implied. That objection often includes the right to reject a dispersion, a disposal, or a destructive use.
This happens all the time with regard to personal property; at very least, the law often invokes notification attempts including mandatory waiting periods for the notified party to respond. In the case of found property in abandoned and non-paying rental units, for example, that required waiting/storage period in Washington State is up to one year; you have to try to notify the person who abandoned the property, then you must store it for as many as 12 months before you can dispose of it.
So while we don't know how he'd rule on such a permissions matter until he actually does, I think I have a pretty good idea.
And now, today's news.
White House consults Concerned Women for America on Supreme Court pick, helping confirm that they're on the social shortlist;
Southern Baptist Convention relief workers refuse to hand out water to hurricane victims because the water was donated by a beer company; SBC stands behind workers, Red Cross has to step in to distribute the donated supplies;
New Zealand National Party's "PC eradicator" attacks the transgendered;
SCOTUSblog has lots of background on Supreme Court judicial nominee Alito;
Concerned Women for America (predictably) endorse Alito;
CWA audio report on Alito, asking listeners to call in to support his nomination;
"Exwitch Ministries" warns against Halloween;
Traditional Values Coalition endorses Alito for Supreme Court;
National Academy of Science and National Science Teachers Association pull rights for Kansas public school teachers to use their curriculum material; at issue is the push to teach Creationism as a science; FotF compares them to a brat taking their ball and going home;
Today's Family News in Focus touches upon the previous article, but has other issues as well, particularly the anti-gay "Love Won Out" event in Boston, and the protest against it.
( Articles, transcriptions, excerpts )
The offensive from the social right is going to be that the pro-choice side is lying about PP v. Casey and that they're saying he mandated they get permission. They're also proclaiming that the law Judge Alito supported and voted to uphold only required in in "some cases." A more accurate description is that it required notification as a base position, and provided a few opportunities to get out of it.
More specifically, though, what Alito upheld - in more or less these words, tho' this is not an exact quote - is the concept that a husband has a specific interest in the foetus that the state can act to support. A specific interest, in this kind of context, implies a kind of ownership right. It implies that the foetus, which is part of his wife's body, is in some way his property.
Legal requirement for notification does not happen in a vacuum. It's not instantiated as a frivolous whim; there's always a motivating reason. Indeed, the core of the "notification" question relies on the same arguments and theories that a "permission" question would similarly raise; is there a specific interest (as with, say, property); if there is, can the state act to support or protect those interests? In both cases, if you support one, you can support the other.
Note that both these arguments imply that the woman's position in the matter - you know, the person actually carrying the foetus - is at best a peer interest to that of her husband, and arguably, since in all of these cases the woman's position is already implied, that her position is secondary.
So no, he didn't support a law that required the permission of the husband. But he did vote to uphold a law that has the exact same legal and philosophical requirement set as one that would, and I reject that legal argument on bases of equality under the law, right of property, and right of privacy. If you consider women to be true legal peers of men, I do not see how you can decide otherwise.
He, clearly, did not have this problem.
The only question remaining, if do you accept that line of reasoning, would be the matter of whether the legal interest of the husband presents an undue burden on the wife, and what she does with her body. In this case, he felt it did not. Indeed, this was the basis he used to decide that the notification requirement was Constitutional; that the burden was not undue.
What would happen, following this line of reasoning, with a challenge to a law that explicitly required permission? Would this similarly be an undue burden?
In general, in the case of anyone with a legal interest in an object, the right to object to things being done with that object is typically implied. That objection often includes the right to reject a dispersion, a disposal, or a destructive use.
This happens all the time with regard to personal property; at very least, the law often invokes notification attempts including mandatory waiting periods for the notified party to respond. In the case of found property in abandoned and non-paying rental units, for example, that required waiting/storage period in Washington State is up to one year; you have to try to notify the person who abandoned the property, then you must store it for as many as 12 months before you can dispose of it.
So while we don't know how he'd rule on such a permissions matter until he actually does, I think I have a pretty good idea.
And now, today's news.
White House consults Concerned Women for America on Supreme Court pick, helping confirm that they're on the social shortlist;
Southern Baptist Convention relief workers refuse to hand out water to hurricane victims because the water was donated by a beer company; SBC stands behind workers, Red Cross has to step in to distribute the donated supplies;
New Zealand National Party's "PC eradicator" attacks the transgendered;
SCOTUSblog has lots of background on Supreme Court judicial nominee Alito;
Concerned Women for America (predictably) endorse Alito;
CWA audio report on Alito, asking listeners to call in to support his nomination;
"Exwitch Ministries" warns against Halloween;
Traditional Values Coalition endorses Alito for Supreme Court;
National Academy of Science and National Science Teachers Association pull rights for Kansas public school teachers to use their curriculum material; at issue is the push to teach Creationism as a science; FotF compares them to a brat taking their ball and going home;
Today's Family News in Focus touches upon the previous article, but has other issues as well, particularly the anti-gay "Love Won Out" event in Boston, and the protest against it.
( Articles, transcriptions, excerpts )
