Friday, January 13, 2006

ALITO: o'connor's undue burden on woman's choice standard

KOHL: Very good.

Judge Alito, in Casey you argued that the requirement that a woman notify her husband did not impose an undue burden upon a woman. You reasoned, in part, that the number of married woman who would seek an abortion without notifying their husbands would be rather small; in other words, only some women who would be affected.

KOHL: The majority in that case disagreed with you and stated, quote, "Whether the adversely affected group is but a small fraction of the universe, a pregnant woman desiring an abortion seems to us irrelevant to the issue," unquote.

This disagreement begs the question: Is a constitutional right any less of a right if only one person suffers a violation? Or should greater value be placed on that right if a larger number of people have that right violated?

ALITO: Trying to apply the undue burden test at that time to the provisions of the Pennsylvania statute that were before the court in Casey was extremely difficult. I can really remember wrestling with the problem. I took it very seriously, and I mentioned that in my opinion. It presented some really difficult issues.

Part of the problem was that the law just was not very clear at that time. The undue burden standard had been articulated by Justice O'Connor in several of her own opinions, and there were just a few hints in those opinions about what she meant by it.

What she said was that an undue burden consisted of an absolute obstacle or an extreme burden. Those may not be exact quotes, but they are pretty close. She did say that it was insufficient to show simply that a regulation of abortion would inhibit some women from going forward and having an abortion. That was the information that was available in her opinions to try to understand what this test meant.

Then the question became: How do you apply that to the numerous provisions of the Pennsylvania statute that were before us? It was a difficult task.

The plaintiffs argued that all of the provisions constituted an undue burden. When the case went to the Supreme Court, Justice Stevens agreed with that.

ALITO: He said they all were an undue burden, things like a 24- hour Waiting time. That was an undue burden because it would inhibit some women from having an abortion.

An informed consent provision -- Justice Stevens thought and the plaintiffs argued that would be an undue burden.

The majority on my panel and the joint opinion on the Supreme Court found that most of the provisions of the statute did not amount to an undue burden -- the 24-hour waiting period, the informed consent provision, and all of them.

We disagreed on only one and that was the provision regarding spousal notification, with a safety valve provision there that no sort of notification was needed if the woman thought that providing the notification would present a threat of physical injury to her.

And it was -- I wrestled with that issue, but based on the information that I had from Justice O'Connor's opinions, it seemed to me that this was not what she had in mind. Now, that turned out not to be a correct prediction about how she herself would apply the undue burden standard to that statutory provision, but that was the best I could do under the circumstances.

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