Jeff Goldstein has an interesting analysis on the Casey/Alito bit that we have been talking about for the past few days.
This Matt Welch piece about Tony Pierce is also tangentially related.
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Come for the politics, stay for the snark.
Just because you believe it, that doesn’t make it true.
You cannot shame the shameless.
How can republicans represent us when they don’t trust women?
It’s a good piece. click on over. but then come back!!
Schmidt just says fuck it, opens a tea shop.
Even though I know this is a bad idea, I’m off to do it anyway!
Consistently wrong since 2002
The party of Reagan has become the party of Putin.
Many life forms that would benefit from greater intelligence, sadly, do not have it.
Do not shrug your shoulders and accept the normalization of untruths.
Fuck the extremist election deniers. What’s money for if not for keeping them out of office?
FFS people, this was a good thing. take the win.
The gop is a fucking disgrace.
They’re not red states to be hated; they are voter suppression states to be fixed.
Another missed opportunity for Jamie Dimon to just shut the fuck up.
“Just close your eyes and kiss the girl and go where the tilt-a-whirl takes you.” ~OzarkHillbilly
Not so fun when the rabbit gets the gun, is it?
Their freedom requires your slavery.
Let’s delete this post and never speak of this again.
They are lying in pursuit of an agenda.
‘Museums aren’t America’s attic for its racist shit.’
Republican also-rans: four mules fighting over a turnip.
If you are in line to indict donald trump, stay in line.
Fani Willis claps back at Trump chihuahua, Jim Jordan.
demimondian
I agree that Goldstein’s analysis is interesting, but I also point out that it’s totally off the mark, because it ignores the key question: why did the Pennsylvania legislature see fit to add the requirement in the first place? It’s only when you stop and ask yourself that question that the whole “it’s not about the patriarchy” argument falls down.
Let’s consider the hypothetical case of a wife who finds herself pregnant and gets an abortion without her husband knowing about it. Has he “lost” anything? For instance, has he lost a child? No, obviously not — the fetus is not a child. Trust in his wife? If she’s so estranged from him that his emotional support isn’t useful, then I don’t think that’s an operable argument.
The only argument that covers all the facts is that the goal of the law was to threaten married women with having to tell their husbands when they didn’t want to do so — that is, when they feel threatened by their husbands. Goldstein is being beyond bizarre if he can find a credible motive for the state to do so.
rilkefan
I started reading that piece, but it’s so drenched in Karnak sauce that I gave up.
rilkefan
p.s. Dumb question about spousal notification proponents – do they want to legislate contraceptive use too? Should it be against the law for a man to get a vasectomy without telling his wife? Or for a wife to take or stop taking the pill without telling her husband?
Zifnab
Correct me if I’m mistaken but:
Alito asserts that the state of Pennsylvania has the constitutional right to mandate a woman inform her spouse of an abortion before she has an abortion. Goldstein asserts that Alito’s constitutional rationale is in fact… um… rational. He then goes forward with a critique of arguements against Alito’s decision based on the grounds of woman’s rights. The ‘liberal’ perspective argues that notification is an undue burden on the woman (and that no self-respecting old rich white male legislature would ever enforce this burden on a man). Goldstein argues that the burden on women is not in any way undue, and that the fetus is in fact no less valuable than a piece of property produced by both parties – man and woman – giving the man equal right to knowing the state of the child.
This is an interesting arguement, I’ll admit. Pregancy is rather unique to women. It’s hard to find a parallel on the male half of the spectrum that could be identified as prone to legislation or legislatively immune. And Goldstein’s views have some merit. However, he fails on two counts:
Firstly, he never really defends Alito’s arguement – namely that the legislation passes O’Conner’s undue burden test. He simply says Alito used the rule, but there’s no critique on how he used it or whether his evaluation of the ruling was very valid.
Secondly, Alito tosses out the HIV arguement as a parallel against the pregnancy, but never really argues an alternative test. By saying that HIV against pregnancy is a bad comparison, you never really resolve the issue of what you can compare to pregnancy to dispell the illusion of a bunch of men deciding a woman’s fate.
Honestly, I don’t see Goldstein’s arguements really strengthening a defense against Alito’s decision. Clearly, the notification rule puts some degree of burden on the woman. Clearly, notifying one’s spouse of an abortion can lead to numerous reprecusions especially if the baby was conceived out of wedlock, unintentionally, or through rape/incest/etc. I’ve seen no arguement by either Alito or Goldstein as to how this law intends to prevent an undue burden from developing.
Steve
The point remains valid that there is no situation under the law where a husband is legally required to notify his wife of anything. That’s why this law should more properly be termed “husband notification.”
I think it is silly to suggest that a father has no interest in whether his unborn child is aborted, but I think it is equally silly to argue, as Jeff does, that his interest is “coequal.” He’s not the one who has to carry and deliver the child. He’s not the one whose health or life may be at risk. It’s pure male vanity to insist that the woman’s interest is no greater.
I think we would all agree that in normal cases, we would certainly hope that a couple would discuss the issue of abortion in advance; and in 95% of the cases, I’m sure they do exactly that. The question is, in the other 5% of the cases, is it really a good idea for the government to get involved in mandating marital communications.
tzs
To all you conservatives out there–do you really want to get the gov’t involved in micromanaging family communications to this extent? Sheesh, next thing you know they’ll be trying to monitor wedding celebrations and What Our Shirl Said to Your Jason.
I do agree they ought to get the right guy for the father. Part of the mess (aside from absolute pighead stupidity from the bureaucrats) is that “fatherhood” really covers two things: a) contribution of DNA, and b) relationship with the woman/child. You only need one to really “be a father” IMHO–oh, and the 500 years of so we have of common law assumptions.
And the “we tag you unless you say otherwise” is just….bizarre. Haven’t they ever heard of people….MOVING?
John S.
Wow. Trying to read this circumspect diatribe by Jiffy G. is like watching my dog chase its own tail. Around and around he goes, and where he stops…
Anyway, I think Jiffy’s analysis is more “evil” than “interesting”.
=P
Defense Guy
In the actual decision in Casey, the term undue burdon actually comes with a definition.
According to the USSC the spousal notification law met this definition. I’m not sure I agree with the ruling, but limited to the actual decision of the court, it fits.
Source
I’m curious how the court decided that the spousal notification part of the law constituted undue burdon, but the other parts (ie 24 hour waiting period, parental notification, and informed consent) did not.
p.lukasiak
I was particularly convinced by Jeffy-poos assertion that Alito’s opponents are power crazed, and are willing to destroy America in pursuit of that power.
Defense Guy
Once again we see the likes of Lines and John S unable to make a post that does not include an attack on the author. Real clever guys, you shuld be proud that you never outgrew the name calling of grade school.
Defense Guy
Hmm. The incredible disappearing posts kind of detract from my last one.
Someone is paying attention at least. Kudos.
John Cole
His name is Jeff Goldstein, and not one of you can even accurately figure out the argument and why Drum is wrong.
Furthermore, Jeff’s writing is not circuitous, nor is it difficult to understand.
So, I conclude you are either anti-semites or just don’t like Jeff for some other reason.*
*What I just did in that sentence is precisely what Kevin Drum and his cohort are doing to Alito’s Casey stance. And, btw, since you couldn’t figure it out over there, I am pretty sure you will not figure it out over here.
And Lines, I deleted your rants. His name is Goldstein. If you don’t like that, call him Jeff.
Lines
A waiting period has never been considered an undue burden. You still get the abortion, but just 24 hours later. Not a huge deal for such a huge decision.
Parental Notification CAN be an undue burden, and thats why there is a judicial loop hole, it kinda avoids the undue burden issue. I disagree, but I’m willing to compromise on this. A teen that is in the situation might like to smack the shit out of me for agreeing with that particular legislation, but I won’t hold my breath on them finding me.
Informed Consent, if I’m not mistaken, is just a technical term for a bunch of videos and moral gobblygook about the physical and psychological downsides of the abortion. Someone that has already made the decision can sit and learn, or just sit and zone out while going through it. I think this is possibly the best deterant to an abortion that has already been decided prior to seeking the physician to perform the abortion. Its a last chance, last appeal sort of method. Its also the best opportunity to prepare a female for the ramnifications of her decisions and may help her seek appropriate assistance after the proceedure has been completed.
Zifnab
I thought my evaluation was fairly respectable. :'(
Lines
Oh wait, John, it must be just us liberals and our anti-semite leanings! Give me a break.
I don’t care, nor did I even know Jeff is Jewish. Assuming the name Goldstein is Jewish is racist in and of itself. I don’t turn that way.
Delete my posts, ass. It doesn’t change the fact that Jeff’s argument is vacuous and moronical and trending towards a tedium that makes him impossible to read. You agree with his bottom line, that much is clear from his comments section. Maybe agreeing with him before you read it makes it legible and going into it with an expectation that its just another Jeff post attacking a liberal for, well, for being liberal and not “getting it”.
Oh well, such begins the fall of a once good blog. Congrats on your over-sensitivity, John, it takes a lot to be so sensitive and republican.
joshua
I understand the point of saying the HIV comparison doesn’t match up, since the failure to require notification runs both ways, but the argument there is that it is a civil rights issue, so the PA legistlature won’t touch it. Problem is, so is this abortion notification law. If they’re going to be fair, then both men and women should be required to notify their spouses in the event of testing HIV positive. Also, with the loophole for women in bad situations I have no real problem with the abortion notification as well.
Aside from that, Drum’s post was about the point of notification laws in general (whether you agree with him or not), but not the constitutionality. Goldstein’s post was about Alito’s ruling. There’s no right/wrong to decide between them.
Rick
Hey, that’s not very “cordial,” the hallmark of thoughtful, “progressive” commentary. If I understand some mewlings several threads down correctly.
Cordially…
Lines
joshua: I think you touched on why Goldstein’s post made little to no sense. Thanks.
John S.
Defense Guy: Get a sense of humor.
John Cole: As a Jew, I am certainly not an anti-semite. Perhaps you don’t find Jeff’s logic circular, but I did. I suppose it is merely a matter of writing style, but of course you didn’t leave that as a possible option.
Mr Furious
If your quote is accurate, the definition only regards undue burden on nonviable fetuses. That seems to be slicing rather thinly. How many abortions are of nonviable fetuses and for everyone else it’s “burden away!”…?
Steve S
Watching Mickey Mouse cartoons is also interesting. Doesn’t mean I agree with Mickey’s world view, or his intellectual abilities.
Regardless, I seriously have to question the purpose of a “spousal notification law”. I mean seriously, what the FUCK is the point?
If your wife is going to go off and get an abortion without telling you… You know what, there’s something fucked up about your marriage. This isn’t the disease, it’s a symptom. Forcing her to tell ya isn’t going to cure anything.
Yeah, maybe it’s full disclosure, and now the man knows that his wife has been sleeping around and he can file for divorce. Oh boy! There we go, protecting the sanctity of marriage. Or better yet, maybe the wife is afraid if she tells hubby he’s going to beat the crap out of her again. Yessir! That’s protecting the sanctity of the family right there.
Whatever the reasons, it’s none of the state’s fucking business.
I don’t give a fucking shit about the constitutionality of such a law, since it’s just fucking dumbass moronic to begin with and I’m pretty sure the Constitution says “If Congress passes a law while they’re all in the backroom high on meth, you really don’t have to abide by it.”
If the Constitution doesn’t say that, it should. I’m starting my petition for an amendment now.
Good grief.
p.lukasiak
Its one thing to delete a post for using the “c-bomb”
Its an entirely different thing to delete it because of the nature of the criticism of a blogger who is not participating in this discussion. Unfortunately, one cannot describe the nature of that “thing” without being threatened with banishment or having one’s post deleted.
It would, of course, be something else entirely if our esteemed host promised to never again go into slash-and-burn mode against Kos, Duncan Black or any other prominent progressive blogger. But I haven’t seen that promise made, and he has only grudgingly acknowledged that his own actions have contributed to the lack of civility that one frequently finds here.
Can I say “petulant”? Just asking….
metalgrid
Bypassing the bickering, this really resonated with me, considering that I do think that I would like to be notified before my wife decided to go abort a feotus that both of us had a hand in creating.
However, going about it by law is the wrong way to do it – I’d like to think I have enough of a meaningful relationship that she would tell me of her own volition rather than being required by law to do so. Morality enforced by law, ceases to be morality to me, so I actually have come to agree that forcing a woman to notify her spouse by law is for those who can’t even trust their wife. It says more about the relationships of the writers and supporters of such laws than it says about the woman getting an abortion.
Legally though, it’s a gray area, as long as government can dictate to any adult that they must notify another adult of some of their actions, throwing abortion into that mix doesn’t seem too much of a streach. Here’s an idea – get the government completely out of relationships and work towards stopping government dictated notification of anything between adults.
Defense Guy
Mr Furious
I find the ‘substantial burdon’ language interesting as well, as the definition of that is likely to be flexible depending on the person.
John Cole
P. Lukasiak- He was using derivatives of jeff’s name, which I will not reproduce, that Jeff himself told me he found offensive. I deleted them. I would not delete his comments simply because I disagreed with them.
If I were to do that, I would simply have to shut down the comments section- and what fun would that be?
John S.
Well then I can presume that calling him “Jiffy” should leave him feeling rather non-plussed. I had a friend in high school named Jeff Goldfarb who didn’t seem to mind at all (nor did it stop him from winning a ton of money on Jeopardy!).
Rick
John,
And just where would we turn then for the latest Bushitler outrage? Huh? Huh?
Cordially…
jg
Interesting question from Saletan:
http://www.slate.com/id/2129321/
rilkefan
Re Saletan (and I’ve seen that argument in other places as well), does that mean Alito favors strip-searching women too?
Actually, come to think of it, the police did so search a woman in that extra-warrant case.
Lines
Well I’m glad calling you an ass didn’t make you more petulant, John. I’d hate to get banned, it would just ruin my day.
Look, if Jeff is so damned sensitive, he needs to just shut his blog down. He is going to catch flak, and the stuff I’m throwing is pretty watery stuff. If you don’t like it, don’t link to him. I’m surprised you do, considering that a large part of your readership finds him boorish and largely ignorant of any sort of impartiality. I’m not the last person to want to use derivatives of his name, it just happens when someone writes such horrible crap.
Defense Guy
rilkfan
From your link:
Why bother reading any more when the author can’t even be bothered to be honest about the argument. Notification is NOT the same thing as consulting. He could make this argument about this informed consent provision which stayed law, and it would fit, but instead decides to go for emotional pleadings and dishonest rhetoric to try to make his case.
Lines
DG:
Kind of like “Saddam poses a grave danger to the United States!” or “they can have drones loaded with biological weapons over New York in 45 minutes”?
How about “if we don’t fight them there, we’ll be fighting them in the streets here”.
Oh, wait, thats not empty rhetoric, thats a way of life!
John S.
Are you talking about Jeff G.’s piece? Because that’s pretty much how it read to me. That is of course unless you don’t mind someone using an individual analysis to paint a caricature of everyone on the left.
Which of course as we all know is fine by you, DG.
rilkefan
DG, not my link; and sure, “consulting” isn’t the best word there, but I don’t think it’s a dishonest one.
Another question for the debate – what if the notification is post-abortion? That would be I think less burdensome.
Defense Guy
Rather than deal with the my issue with the article, both Lines & John S. decide it is better to change the subject. You 2 are on a roll today. Why not save time and jump right into a personal attack on me?
jg
You wear funny clothes.
Defense Guy
rilkefan
Wrong attribution, my apologies, shoulda said jg. The words are not interchangable as they each have different meaning. Substituting consulting for notification is dishonest.
Defense Guy
Goes with the territory here at Clown College.
Tim F.
I agree with John about playing stupid name games. Lead by example, guys.
rilkefan
DG, I don’t think I can notify _my_ wife about something without consulting with her. YMMV.
Zifnab
You can’t require notification without giving a wink and a nod to concent. When dealing with the abortion debate, you either side with a right to privacy or you do not. Notification is a blatant violation one’s right to privacy. By very defination, being required to provide information into your medical state or your baring of children strips you of the right to have other people – even your spouse – not know.
At the end of the day, that’s what the debate comes down to. Does Alito support a right to privacy. From this ruling, he clearly does not.
Lines
DG, I was basically pointing out that trying to state that Drum’s use of emotional tactics is no different than the White House and its propaganda around 9/11 and Iraq. If you are going to only get upset when people use emotional terms on the left, then you are hypocritical.
And how does one notify without consulting? “hey honey, I’m getting an abortion. Now shut up and go to work and make me some money so I can buy things after this month’s abortion”.
jg
Why bother reading anymore when you found a way to ignore whatever his point would be. You’ve labelled him and shielded yourself. Well done.
Zifnab
Oh shit. Sorry. I think I went back on topic again. But please, continue.
Lines
Zifnab, unfortunately I’m going to have to refer to Defense Guy’s earlier post from yesterday that corrected me on the privacy issue as well. According to Roe v. Wade, its only about undue burden, not about privacy. So far no one has really addressed the privacy issue around Casey, but I think its applicable as well.
But hey, I’m no Goldstein, so I probably don’t know what I’m talking about again.
Mr Furious
Zifnab nails it. you either have a right to privacy or you don’t. What part of getting married should surrender that? It is not the state’s business to start dictating topics of conversation or consent within marriages.
Does the husband have to notify the wife he’s going to the strip club?
Does the husband’s mistriss have to notify the wife if SHE is going to have an abortion?
Making parallels with HIV and other topics is spurious at best. Only one half of a couple (married or otherwise) is able to become pregnant, and placing obstacles in her path is undue burden and an invasion of privacy. Period.
Ancient Purple
To what end? What is the purpose of the notification if not to give the husband the ability to prevent his wife from getting an abortion? And if that is the case, then you have a situation where husbands could easily force their wives to become incubators to carry the pregnancy to term.
Additionally, what if the wife violates the law? What would you suggest the penalty be? Jail time? Fines? Obligation to be impregnanted by the husband and carry to term?
If there is no penalty, then the law is nothing more than a “feel good” law passed by a legislature but has no teeth. Then, it becomes the co-habitation law of the 21st Century.
It really does come down to what power should the husband have to prevent his wife from seeking and obtaining an abortion.
Zifnab
And it was O’Connor’s undue burden Alito was using. However, the undue burden arguement stems from the privacy claim. Having to watch a promotional video about the horrors of abortion is not an undue burden against your right to privacy. Wearing a scarlet letter, however, would be.
The ‘undue’ part of the burden stems from the fact that your husband does not always have your best interests at heart. Therefore, being forced to reveal that you are pregnant and having an abortion potentially exposes you to a physical, mental, and social undue burden when your husband slaps you, screams at you, and tells all your friends. Obviously a bit of worst-case senario, but this is the reason right to privacy exists.
Zifnab
The target of this law isn’t the secrative wife, but the cooperative clinic. If a woman fails to notify her husband, the DA doesn’t go after the woman, he goes after the clinic that provided her with the treatment. Now you’ve got a back door to sue abortion clinics for providing abortions, which is the real end of the legislation. Implimentation of the law could concievably entail having the woman provide an affidavit signed by the husband showing that he has been informed. And when you can start adding affidavits into the mix, you really get to have a fun time drawing the lines between inform and consent.
Steve
Analytically, the way it works is that the right to an abortion stems from the constitutional right to privacy. And because the right to an abortion is grounded in the constitution, the state can’t place an undue burden on it. I don’t care if anyone agrees or disagrees, but that’s the analytical framework. It’s not a question of whether your “privacy” is burdened.
jg
Spousal Notification is about stopping abortion. If the husband is notified there’s a chance he’ll stop the abortion. Thats all these people want. Less abortion. Simple. The trampling of the womans rights are outweighed by the saving of a life to these folks.
Ancient Purple
Thanks for the follow-up, Zin. This is just exceptionally chilling.
I would love to hear the rationale that getting an affidavit isn’t an undo burden.
Krista
Yeah, that’d go over well.
I think you’re on to something Zifnab. There’s something really disturbing going on in regards to women having control over their own reproductive health. There’s very little legislative support towards accessible birth control (including emergency contraception) for all. And yet, how much time has been spent on the idiotic idea of legislating what a woman can or cannot keep from her partner? Does her having an abortion endanger his life, or health, or livelihood? No? Then government has no right to interfere.
ppGaz
Pro-Choice Guy here. Pardon me for being off the track here, but I don’t understand why spousal notification is such a big deal. It isn’t Spousal Approval.
I’m sure I’ll be beaten up by all the women on the channel, okay, let ‘er rip. But I just don’t see the big concern.
This is not to be taken as my vote to confirm Alito, it’s just an observation.
Geek, Esq.
I agree that, from a moral/ethical point of view, a woman SHOULD tell her husband if she has an abortion.
However, the state has absolutely zero business regulating intra-marital communications.
What next–the Anti-Orgasm Faking Act?
Now, whether the Husband Notification law was driven by patriarchal motives or just stupidity, I can’t say.
scs
See, this is what happens when you ridicule qualified women nominees to the Court. You end up with a bunch of (mostly) white Ivy League dudes handing down decrees to women. Oh well, I guess it just reflects soceity as it is.
t. jasper parnell
A quick point, what about a woman who was abandoned by her husband but has not yet recieved a divorce? This situation, from the years before Roe, was the subject of personal narrative of NPR. Granted it may be a vanishingly small segement of the overall population, but that does not preclude its possibility and it would seem to be an undue burden, no?
John S.
Sorry, DG, I have no desire to channel you.
Geek, Esq.
And Goldstein should really try to keep his sentences under 500 words long.
scs
I can understand that in theory it wouldn’t be sooo horrible to make a woman notify her husband. However, I think it’s more relevant that we don’t want the state to get involved. You don’t have the state regulating all kinds of aspect of marriage- emotional satifaction, adultery, whether a man can even require a wife to bare his child, any of it. Marriage is mostly a “buyer beware” situation. If someone can not abide by the reproductive attitudes of their spouse, their main remedy is to divorce and to find someone who IS interested in being honest with them and bearing their children. To ask the state to get involved would open up a can of worms.
tzs
Geek, naah, I think the next is You Forgot Our Anniversary Act. Mandates at least a dozen roses and a box of chocolates.
John S.
Now you’ve done it! Colie is gonna jump all over your ass like he did on someone over at Jeff’s blog who made the same complaint:
And if that fails to put you into your place, he’ll just accuse you of being anti-semitic or just hating Jeff for some other reason.
Geek, Esq.
I didn’t accuse him of having run-on sentences, just poor style.
“Brevity is the soul of wit.”
John Cole
Um, John- Jeff was an English professor, and the guy was accusing him of having run-on sentences, which is the equivalent of accusing a surgeon of leaving a scalpel in a person during surgery.
I merely pointed out that he does not have any run-on sentences, just a writing style that the poor fellow finds confusing.
Personally, as I read dreadful prose every day, jeff’s writing is cogent and a refreshing change. Geek’s qaccusation of poor style is wrong- it is not poor style, it is just a style Geek and some others dont like. Fine. But stylistic tastes do not a run-on sentence make.
Furthermore, you have completely distorted (almost dowdified, in fact) my comments. Rusty was the one who snidely stated Jeff had violated writing rules that his ‘old school teachers’ had taught him, meaning Jeff had committed rudimentary writing errors that a grade schooler would recognize. He hadn’t, and I noted that.
Are you just trying to start flame wars with people? Things have been pretty peaceful today, and there is no need for you to stir things up.
John Cole
Another thing- while all of you are free to debate Casey and Alito all you want, not one of you has even come close to the actual argument Jeff was making, which focussed more on the role of judges and the legislature and Kevin Drum’s rush to attribute the Alito position to evil motives based on a long-standing conservative desire to contol a woman’s utuerus, rather than, as Jeff clearly outlined (although, apparently, clearer to some more than others), a desire by the legislature to seek a middle ground and Alito’s determination that the middle ground was not an undue burden as laid out in previous O’Connor decisions.
scs
John C. I think it’s funny how you treat us like your students in a class discussion. Makes me feel like a co-ed again.
John Cole
In particular, spousal notfication which has exceptions for virtually every bad situation in which a woman would not want to notify her husband AND in which the woman does not actually have to prove she notified her husband, but just say she did.
While I do not think the legislation was particularly useful or something I would support, it is hardly an attempt to control a woman’s uterus, and definitely not based upon the motivations Kevin attributes the legislation and Alito position to, which WAS THE POINT OF JEFF’s POST.
John Cole
Did you raise your hand before you spoke?
Geek, Esq.
It goes beyond a matter of taste.
Like long words, complexity and length should be used only where necessary. They are a barrier to communication and make writing less accessible.
As a general rule, readers shouldn’t be distracted by the writing style. They shouldn’t notice it at all, imo.
scs
In a cyber way.
John S.
Surgeons have been known to do so, but I digress.
Seemed a bit snide to me, but I guess that’s your style.
True enough. I myself noted earlier I don’t care much for Jeff’s writing style.
Not really, just a little peeved at your ludicrous statement that if you had issues with Jeff’s piece that it was because a) you’re anti-semitic or b) you dislike him.
Listen, I haven’t had power at home for ten fucking days thanks to Hurricane Wilma (it just came on today), and my commute is taking 5 times as long as normal due to the lack of traffic signals. So I admit, I’m just a little pissy. Cut me some fucking slack, though. I’m no Darrell.
Geek, Esq.
The best argument for the notion that this is based in patriarchy goes something like this:
The right to notice is generally reserved to those who have a say in the matter, i.e., those who have a right to play a part in the decision.
Geek, Esq.
By the way, we should distinguish between aesthetic critiques of writing style and functional critiques. My comments are the latter.
Defense Guy
Griswold v Connecticut established the ‘Right to Privacy’ leaving those who have actually read the Constitution scratching their heads a bit; Roe v Wade said the states did not have a right to ban abortion and based the decision on the further enumeration of penumbras previously discovered in, with no sense of irony, the ‘Constitution State’. In addition an actual timeline based on human gestation was laid forth as to which was verboten and which was good to scrape; Later, when O’Conner joined the court, she essentially changed the test from one of time to that which boils down ‘undue burdon’. I’ll let you figure out which case that was.
demimondian
Really? At least here in Washington, I’ve gotten zoning notices even when I wasn’t an abutter, but merely an affected party.
John Cole
Umm. I didn’t really state that. I said:
I stated that to demonstrate what Kevin Drum was doing (and that Jeff was refuting), chiefly in attributing the Alito position to a desire to control a woman’s uterus. Drum was attributing malicious motives to a decision in which Alito determined a piece of legislation he did not author was in fact constitutional.
I simply did the same thing Kevin did- I attributed your opposition to Jeff’s peice to malicious motives to demonstrate again why what Drum is doing is wrong.
Apparently you still didn’t get it. I hope this clear it up.
And, oh, unlike Drum- I don’t believe the malicious motives I facetiously assigned to you and others. I thought that was clear.
demimondian
Hint: it wasn’t _Casey_.
Zifnab
But that’s the weird thing. They build up this legislation and leave it littered with loopholes? I mean, why create a law and leave it with no real teeth?
It seems like the reason is lawsuit bait. Pass a law that seems unenforcable on the surface, and then make the citizens responsible for enforcing it themselves or have them subjected to legal action. Legislation like this seems to almost beg for judical activism.
The most immediate senario that comes to mind is a husband sueing an abortion clinic for performing an abortion on his wife when he was not informed. Even if the law does not require a woman to prove she notified her husband, it does lay some burden on SOMEONE to show that the husband was informed. Inevitably, a pro-life judge is going to stick that burden on the clinics.
It’s either deliberately intrusive or deliberately vague. Either way it’s a bad piece of legislation, and I don’t regret seeing it off the books.
John S.
Back on topic (with a cooler head prevailing) I think that if a writer has to start off a paragraph with:
After a prolonged rant, then the functionality of their style leaves a little something to be desired. I liken it to when people say “bottom line”, because usually that indicates they’ve been droning on, and there is no end in sight.
If you’re staying on point, you shouldn’t have to remind people of it.
scs
I suppose it comes down to this, a man cannot force a wife to have his child. She has the right to refuse sex, to use birth control, etc, to prevent a pregnancy. Just as a woman cannot force a husband to have a child with her, as he can do the same thing. A planned pregnancy is the decision that EITHER party can veto. Why then should the husband have control of the veto power of the woman after an embryo is formed?
Defense Guy
No, but if you guessed that one you would still be playing the same sport.
John S.
Oh, I got it. It still doesn’t mean that I appreciated it.
But thanks for the clarification anyway.
demimondian
They build up this legislation and leave it littered with loopholes? I mean, why create a law and leave it with no real teeth?The purpose of the law was to test the limits of the Court. O’Connor told them pretty clearly what those limits are.
The more I think about it, the more I think that BushCo really didn’t think about how blatant it would be to put Alito in to replace O’Connor, given their roles in the _Casey_ decision.
scs
I forgot to add on the last line. To give a husband this veto power would give a man more rights than a woman in this situation, and this imbalance could be seen as patriarchal.
John Cole
Good thing Casey did no such thing or ever attempted to.
demimondian
Hunh? Now you’ve stumped me, DG — I thought the relevant cite was O’Connor’s dissent in _Webster_?
scs
Ok fine, “notification”. What good is this notification if the man has no legal power to do anything about it? It will just have the effect of creating personal problems for a woman who has the right to make her own decision.
ppGaz
Without addressing your question’s validity …. How does the statute give the husband this “control?” It seems to me that unless I don’t understand the law, the husband has no more or less control …. but he gets information.
So again, I don’t see the beef.
scs
Well see my post above yours for what I feel about that. Again in an ideal world, this would be a joint decision between and man and a woman. But an ideal world does not always exist. The state just shouldn’t get involved. (Isn’t that what you all said about Terri anyway?)
Krista
The problem with that particular statute is not that it necessarily grants the father control. The problem is for those women whose partners already insist on taking control. For women in that situation, their right to privacy is their only protection against what could turn into an extremely ugly situation.
.
I’m not all that familiar with the American Constitution, or with U.S. law, so forgive any errors that I may make. But it just seems odd that this law could be considered constitutional. Spouses are not required to disclose private medical information to each other, unless it is something that may adversely affect the health of the other, no? Maybe I’m wrong. But if I’m not wrong, then why make an exception in the case of reproductive matters?
demimondian
Yes and no. For most things, no, but for some things, functionally, yes. Goldstein uses the example of AIDS. It is a felony in every state to knowingly transmit HIV to another person, and so if one if HIV-positive, it is effectively certain that one will need to disclose ones serostatus to a spouse. The law doesn’t come out and say that, but it really does pretty clearly follow.
If you can slog through the sniping upthread, there’s a fair amount of disagreement about whether that’s a suitable parallel. For instance, it’s not illegal to lie to a woman about whether you’ve had a vasectomy, so “transmissability” isn’t a key factor, etc.
Richard Bennett
Women in this situation have a right to divorce which is a bit more relevant.
The PA law mandates more communication between husband and wife, a position that the vast majority of actual married women would agree with. This isn’t patriarchy, it’s the egalitarian ideal of relationships.
It’s no wonder that the critics of it are pseudo-feminist men and unmarried women.
Krista
Well yes, like I said…as long as it won’t adversely affect the health of the other. (It’s pretty much the same here.) So how on earth could non-disease-related reproductive health even be considered under the category of “must tell”?
ppGaz
Well, I am not out to defend the statute, just trying to cough up a rational answer: Because the father has an interest in the child. That’s the only answer I can think of.
scs
Did you take a survey to determine this?
Krista
So where would it stop? Having an abortion does not affect the actual physical health of the father, so how can you legislate communication? Would you say that spouses have to tell each other anything that, if withheld and then discovered, would affect mental health due to extreme emotional distress?
Defense Guy
Webster is also an abortion decision, hence the same sport remark. I think you are right regarding the undue burdon cite.
O’Connor:
ppGaz
Is “survey” the new code word for “pulled from ass?” I missed the memo.
It’s just a classic Bennettism. Don’t yell at him, it’s like yelling at a pigeon. He’ll just drop a crap on your patio and walk away.
scs
So then what’s the point of the law then? If they don’t want the husband to have say, they will just divorce him anyway. It’s just unnecesary intrusion.
Krista
And you’re not wrong. It’s a damnable situation. There’s no way to win when it comes to this topic. You’re either going to have a group of men who, if they knew the woman was unwillingly pregnant, would be willing to raise the child themselves, and will be robbed of that opportunity. Or, you’ll have a group of women, who if required by law to notify their partners of their intent to get an abortion, could wind up in a very, very nasty situation. Sadly enough, in today’s world, there are not enough of the former group, and way too many of the latter.
scs
That was pretty funny. You must be from Texas, they like imaginative language over there.
rilkefan
demimonidian: “The law doesn’t come out and say that, but it really does pretty clearly follow.”
I don’t see this. What if one partner is positive but practices safe sex while not telling the other his status? No intent to pass the virus, but the other partner is not allowed the right to avoid a risky situation.
Though perhaps I don’t understand how broad the law in question is.
Richard Bennett
Krista, I think you’re missing the central issue by re-framing abortion as simply an issue of “woman’s health.” It’s primarily an issue about whether there’s going to be a child, and in the context of marriage that really should engender a discussion one way or another. Everything about children is a partnership decision in a healthy marriage.
Some of you are confused about the abortion right and where it comes from, which is kinda funny in the context of Casey. Roe found the abortion right in privacy, but Casey changed all that and found it in liberty and equality. Here’s Wikipedia:
Please update your scorecards. Also worth noting is that O’Connor revised the notion of “undue burden” in her opinion on Casey. Alito used her previous definition, and decided the case correctly under that standard. O’Connor was just smart enought to realize that his reasoning was correct, so she changed the law to make it incorrect.
These dynamics are really fascinating, but alas, folks as dumb as Kevin Drum miss all the fun parts.
ppGaz
The Battle of the Sexes. I don’t know what effect this will have on the thread, but there’s nothing in the world like being lied to by a woman who tells you she’s pregnant, so as to manipulate you. I know this from personal experience. So, you know, people do crappy things to each other.
To the question, does the state belong in this business? I don’t think that notification rises to the level of Schiavo interference, where clearly the state should butt out. Here? Honestly, I’m not sure. It seems to me that compromise is ideal, and that spousal notification is in the realm of reasonable, if not perfect, compromise.
However, the whole abortion issue has departed the compromise station a long time ago. Too bad. It could be an example of how a diverse country governs itself, instead of a tool for maniplation and division.
ppGaz
Drum is one of the best, brightest and most reasonable bloggers out there. There’s a word for what you are, but we’re trying to be a little more verbally moderate around here.
Tulkinghorn
For an outsider, it might help to learn that aside from a few state constitutions (e.g. Florida) there is no written guarantee of privacy. The concept was so fundamental to the framers (see, eg, John Wilkes) 18th century whig sensibilities that they apparantly thought it unnecessary to explicitly put it in the constitution.
So we end up with a constitutional right to privacy that has been judicially cobbled together over the course of 100 years. The heart of this is an otherwise discredited doctrine of “substantive due process.” If the substance of a given law is so private and personal that no procedure can adequately protect your interests from government intrusion, this magical “substantive due process” makes the governemnt but out.
This doctrine was widely used to support reactionary forces in the early 20th century and was discredited after FDR’s court-packing brouhaha in the 30s. The doctrine survived in one area, though: family privacy. The right to teach your children unpopular languages, to enroll them in private schools, for a grandmother to live with her grandchildren when zoning codes would not allow that, etc.
Eventually this doctrine was extended birth control for married couples. Then extended ot birth control to unmarried couples. That was the first crack in what had previously a doctrine that was truly committed to maintaining patriarchal privileges–note that married couples (read husbands) had a right to sexual privacy that individuals did not have.
The doctrine was extended to unmarried couples, and then and only then extended to women in 1973.
Medical privacy, as a matter of federal law, did not exist until quite recently (HIPAA, passed in 1996).
To sum up a very long long-winded answer to a simple question, abortion rights in the US are historically enmeshed in issues of patriarchal privaledge. These issues run very strongly under the surface to this day.
Krista
I agree that in most cases, compromise is ideal. And like Richard said, making decisions together is part of a healthy marriage. A relationship cannot flourish without trust.
However, unfortunately, there exist a lot of women right now in the U.S. who are living with violent, distrustful men. Divorce is an option, but many are too frightened to leave, or have been mentally manipulated to the point where they feel that they have no choice but to stay. I know that they’re blessedly in the minority, but they do exist. Why make life even more precarious for them by requiring this? I’m sorry you got screwed over, ppGaz. It’s a scummy as hell thing for any woman to do to a man. And frankly, I think that in most cases, it’s a scummy thing for a woman to get an abortion without the father’s knowledge. But…I’m looking at worst-case scenarios here, and there are some cases, where this law could be partly responsible for some women being killed.
Defense Guy
Hell, the entire idea of the Constitution was supposed to be to limit the powers of the government and so some thought that the inclusion of any rights of the people would be redundant. Given the nature of governments, it turns out they were wise to insist on the Bill of Rights.
Defense Guy
Krista
If you are here, I ran accross something regarding spousal notification laws in Canada having to do with firearms while reading up on this subject. Can you explain what that is about?
ppGaz
That seems like a reasonable concern. I guess I’d have to know more about the law and how it is applied in practice. At the moment, I am at the mercy of y’all, fellow blogophiles.
Richard Bennett
Please.
The law made an exception for women who were screwing around and for women who feared violence. All in required in any case was for the woman to sign a form, she didn’t have to bring her husband to the abortion mill and make him help hook up the vacuum pump.
Those who argued against the converstation requirement used your argument, that despite the exceptions for battered women there were some women who were in danger of fatal battering but didn’t know it who would still somehow know not to talk to their husbands about the abortion. So to satisfy your concerns these women both knew and didn’t know that their husbands were looking for an excuse to kill them, presumably because we live amidst a vast, invisible epidemic of domestic violence which we willfully choose to ignore, or some such shit.
And let’s continue not talking about the babies being killed, of course, because that would be rude.
rilkefan
“it’s a scummy thing for a woman to get an abortion without the father’s knowledge.”
Note that the law concerns notifying the husband. I’ve seen estimates of the rate of children not being related to their mother’s husband (for reportedly stable marriages) at over 10%.
ppGaz
Amazing.
I thought I’d seen everything in here.
ppGaz
Cite?
Krista
Defense Guy – here’s what I could find:
I actually didn’t know that. But then again, I don’t own guns, so I suppose it’s a law to which I paid little attention.
Richard Bennett
Some go as high as 25%, but there’s been very little published in this area due to some squeamishness from the political class.
ppGaz
Reference?
demimondian
Hmm. I don’t know about you, but fertility in a male partner in a heterosexual relationship certainly seems to be one of those features which could “adversely affect the health of the other” partner, at least if she didn’t want to be pregnant.
Tulkinghorn
This comes up a lot in families undergoing genetic counseling. I would like to hear how doctors handle these issues: “The good news is that your son will not get the dread cancer that has run through your family, Mr. Cuckold. The bad news is… “
demimondian
ppg — yeah, the numbers I’ve read for misattributed paternity do run 10+%. No, I don’t have a cite to hand — I’ll ask FDDD later this evening, if you want.
rilkefan
Totally random off the web:
Ok, this is slightly less random:
Note that this question is of great interest to father’s rights groups and is thus politicized and hence hard to google.
Defense Guy
The fact that we are instructed to revisit the issue as scientific understanding advances should keep us quiet as well. Remember it’s not about life or even potential life, but about Choice.
Krista
Thanks. Interesting. I am completely adverse to the idea of firearms liscencing, given it’s history, and would think mandatory arming and training of the potential homicide victims might serve society better. But then I’m not Canadian.
demimondian
What do you think of battered wife defenses, then?
demimondian
Umm, Richard? There aren’t any babies being killed. There are half-formed creatures with less “humanity” than a rat.
Richard Bennett
Not unlike many lefties I could name.
demimondian
Really? That’s interesting. I was thinking about the self-organization of the thalamo-cortical relay circuits during the third trimester of fetal development. What did you have in mind?
Sam Hutcheson
I don’t know if it’s been mentioned in the comments (and I’m not digging through all of the petulant sniping to find out), but Goldstein’s defense of Alito’s opinion, i.e. that it was well-founded and solidly reasoned re: the undue burden exception of Sandra Day O’Conner’s opinion is flawed. Will Saletan eviscerates Alito on this point over at Slate.com. Alito intentionally misread (cherrypicked) O’Conner’s opinion re: undue burden to support his opinion. That’s why O’Conner lowered the hammer so viciously with her opinion from the SCOTUS review of Casey.
Alito read for what he wanted to see, ignored the parts of established law that he didn’t like, and wrote his opinion accordingly. That’s what we generally call “judicial activism” where I’m from.
ppGaz
Somebody’s link led me to this. Sorry, this is not reliable information.
demimondian
ppg — here’s a pretty reliable source.
ppGaz
demi — No matter how I read that article, it does not support the assertions.
First of all, it cites 54 years of information … as if a social trend were or could be consistent across that span.
Then it implies that the paternity testing is selected … by a social agency, or a, let’s say, “curious” putative father. In other words, selected for situations where there is reason to believe that testing would be a good idea. Certainly not applicable to the population at large.
Nowhere have I seen data that came from random and general testing carried out in pairings that met some tests of outward monogamy and stability.
I’ve seen nothing that supports the “10-25%” and higher “estimates” of extramarital paternity. Which doesn’t mean the data aren’t there, but so far it does mean that I have no partiular reason to believe those earlier numbers.
rilkefan
ppGaz, no one’s forcing you to believe those numbers. Saying you’ll only trust a sort of test that won’t be performed until aliens take over the planet suggests you have a strong aversion to any sort of data on this question pointing to a non-zero rate, but here’s one text on the 10% claim.
Defense Guy
Depends, each case deserves to be heard on it’s own merits no? I can say in broad terms that if she is being used as a punching bag, provably, I have no problem with her shooting him if she is in fear for her life. In fact, it should be understood that this will occur.
ppGaz
Uh, did you read the linked material that I described?
There’s nothing there to “believe.” There is nothing there to support the earlier claim. Basically, the story states that in cases where, for reasons not explained, somebody has determined that a paternity test is indicated, there is a certain percentage of extramarital paternity. You see, the thing is selected for situations where there’s already a problem, otherwise the GODDAM TEST WOULDN’T HAVE BEEN ASKED FOR.
You’d think that somebody pimping Rilke wouldn’t have to get this explained to him like a schoolkid.
But you know, that would be in some parallel universe.
p.lukasiak
it is hardly an attempt to control a woman’s uterus,
of course it is. The purpose of the legislation was to control women’s uteruses. Alito argued that there was a legitimate state interest in doing so.
Now one can parse this, and claim that just because Alito thinks that the state has a legitimate interest in controlling a woman’s uterus that it doesn’t mean he personally want to control their uteruses, but in terms of a woman’s right to control her own body there is no distinction.
rilkefan
ppGaz, I can point you to terrible studies claiming that electromagnetism exists.
As far as educational accomplishment is concerned, I suspect you are a schoolkid relative to me, but amuse yourself. The way reality-based people object to claims they suspect are unscientific is to say, “Point me to peer-reviewed publication.” Maybe the book I referred you to above is in your local college library – I think it’s got citations and fun stuff like that in the back.
As far as R. M. Rilke is concerned, I think you’re sadly mistaken if you believe he or his work is informed by empiricism.
Zifnab
On the surface, informing the spouse of plans to abort does not in any way physically stop the act of abortion. And it is a valid arguement that the life in the woman’s belly is not entirely her own, even if she does take the lion’s share of the burden.
This legislation does not, in fact, somehow throw handcuffs on a woman’s uterus. In fact, of the four laws passed – 24-hour waiting period, informed concent misinformation drives, child-parent consent, and spousal notification – the notification presents the smallest of barriers on the surface.
What’s more, it is not surprising that many Americans across the ideological spectrum would believe that given a healthy, happy, normal husband-wife relationship, the father should be at least informed that the mother plans on making such a dramatic step. In a perfect world there would be nothing truly wrong with this law. In a perfect world it wouldn’t be necessary.
:-p If only life were that simple.
ppGaz
Give it up, asshole. What I said was, I’ve seen no data to support the claim. Period.
I didn’t say it wasn’t there. I didn’t use the word “scientific” because it’s not apropos here. I said it hasn’t been seen here.
Present the data, and I’ll change my mind. All you need is some reliable source that 10-30% of pregnancies in outwardly “stable” marriages are of extramarital paternity, in some general population relevant to this thread. Point to that, and I’ll take a look.
Back to you.
rilkefan
“Give it up, asshole.”
What’s your problem, ppGaz? You’ve always been rather an excitable commenter here, but lately you’re lashing out at people wildly. It was adult of you to apologize to John in the other thread, but why get yourself in a position to have to do so?
The book I referred you to is by a biologist from the University of Manchester. The quote I cited above relating SES to false paternity rates is from his work. I happen to find his sort of interest in the Dawkins side of evolutionary theory compelling, but I don’t have the least attachment to any false paternity rate. I suggest you take a Slartibartfastian pause and either look up the text or wait for more information.
Mr Furious
omebody upthread mentioned on Alito, Casey and O’Connor… go read it, it’s excellent, and ties in the related cases…
Mr Furious
Oops, I chopped off half my comment, including the link. I was referring to Saletan’s piece at slate.
ppGaz
Fuck off, rilkeman.
You want me to believe that 10-30% of pregnancies in the general population, in apparently stable marriages, are from extramarital paternity? Is that your claim?
Fine, good for you. Tell it to somebody else. I am not buying it, it’s fucking ludicrous. You haven’t even addressed the obvious selection flaw in the crap you pointed me to.
Fuck off, man. Really. Peddle your bullshit to somebody else.
ppGaz
And don’t fucking lecture me, asshole. I don’t need lessons from the likes of you in anything, ever. If you piss on my leg and try to browbeat me into saying it’s raining, you are going to get the same reaction from me every time, you can count on it. It’s as reliable as tomorrow’s sunrise.
Fuck off. Like I said, peddle your crap to somebody else. Maybe Darrell is still up, give him a call.
rilkefan
Zornige sahst du flackern, sahst zwei Knaben
zu einem etwas sich zusammenballen,
das Hass war und sich auf der Erde waelzte
wie ein von Bienen ueberfallnes Tier…
from Rilke’s “The Bowl of Roses” – about as helpful as anything else I can say at this point. Oh yeah, I can shut up.
Richard Bennett
Saletan’s piece in Slate is silly, definitely not worth the time it takes to read it. One example: he claims the conservation provision is mandatory in all cases, ignoring two vital facts: 1) the battered woman exception; and 2) the fact that it was strictly an honor system with no verification.
Will Saletan is an extremely dishonest little boy.
John S.
Gee, Richard, I fail to see how Saletan is being dishonest when he poses the same concerns that O’Connor had on the Casey opinion. Chiefly, where does the interference of the state stop when Alito’s views are seen through to the most extreme end:
It would matter little if the exception to the above were in the case of 1) the woman being battered (and therefore the husband indicating he had no vested interest in her reproductive system) and 2) the fact that it was strictly an honor system with no verification – in which case what is really the point of such a law?
I mean, why don’t we make income tax on the honor system with no verification? I’m sure that would still warrant the existence of the IRS to monitor voluntarily paid tax revenues that could never really be enforced. While we’re at it, let’s just make everything on the honor system if it will prove to be such an effective method.
I think Saletan covered Alito and you with this statement:
Richard Bennett is an extremely dishonest little boy.
John S.
On another topic about the honorable Judge Alito:
Source
Mr Furious
Um, I’m with John. I didn’t see anything dishonest in Saletan’s piece. Richard is full of it.
In addition, unless it is covered somewhere I am not seeing, why is the assumption that the fetus is the child of the husband? I can see generally making that assumption, but legally? The law has no business in here…
Mr Furious
Even if you decide to disagree with everythign ahead of time (as Richard clearly does) Saletan’s piece is interesting on an anecdotal level. I found it a good, quick update on related cases like Hodgeson (notification of both parents—struck down) and how both sides go about this battle.
DougJ
Richard, why are you sometimes The Irascible Richard Bennet and sometimes just Richard Bennett? I like Irascible better.
Sam Hutcheson
I think the Hodgeson ruling, and Alito’s tap dance around the implications of the SCOTUS striking down of the dual-notification requirement, is the most important thing to draw out of Saletan’s piece. It all boils down to the question “If a mother doesn’t have notifiy her spouse of her daughter’s abortion, why would she have to notify him of her abortion?” I think more vehement often feminists play the patriarchy card too much, to the detriment of the actual argument behind that card, but in this case, I really would like to see Alito answer the questions Saletan is raising. Why does he assume that a grown woman is incapable of making the decision to abort on her own? That does smack of patriarchy to me.
DougJ
I read through these comments and I can’t believe the hate and smearing I’m seeing. Lefties are calling Alito a “goomba”, “the godfather”, every Italian smear in the book. I hope you’re all ashamed of yourselves.
demimondian
DougJ, why are you Elinor or Com Con sometimes?
DougJ
Because that way I can say ridiculous things without people knowing whether or not I’m serious. If put Irascible in front of my name, it wouldn’t accomplish anything. If I could call myself “The Irascible DougJ” and have people think I was someone else, believe me, I’d do it.
John S.
LOL. Classic, DougJ.
Defense Guy
Once again, the only way to even come to this conclusion is to change the meaning of the word notify to mean consent or get approval. So it’s a strawman.
Mr Furious
Hey, DG. Say the wife “notifies” her husband she plans to get an abortion. What then? Even assuming the husband does not beat, threaten or otherwise harm his wife, what is his recourse if he wants the baby? A restraining order on the wife? A court battle lasting the duration of the gestation, ensuring the wife cannot get the abortion?
What happens? And what do you, and others on the right, WANT to have happen then?
Isn’t that “notification suddenly “consent”?
t. jasper parnell
Mr. Cole suggests that Mr. Goldstein’s argument has been largely unanswered in this thred. There is a reason for this. Mr. Goldstein’s point, that those who dislike legal attempts to limit any woman’s freedom of action relative to a medical procedure engage in “bad faith” representations of others’ motivations, is bland and uninteresting.
In addition, his argument, that there is a “legal” justification for the attempt to force women to contact their husband should they desire a legal medical procedure does not disprove Mr. Drum’s inistance that a desire to control women’s ability to chose when, where, and why they wish to abort is driven by a desire to increase the state’s or men’s control over women’s choice. I would argue that Mr. Goldstein’s position does not persuade for a variety of reasons.
Mr. Goldstein needs to show that those jurists who disagree with Ailito’s ruling engage in bad law and sloppy reasoning. Absent this kind of evidence, the question of why Judge Ailito decided to rule the way he did requires speculation about his motivations. Confronted with two options, Judge Ailito selected the more restrictive, inquiring minds want to know why. Surely it cannot be that the American constitution, in its intent or articles, seeks to place greater restraint on freedom of action in the abstact.
Mr. Goldstein does not account for the built in legal bias against women’s ability to make competent decision in in the legal history of the “West,” broadly understood, that predates the Constitution. This tradition did, in fact, seek to limit women’s freedom to act. It requires no bad faith representation of anyone’s motivation to claim that implicitly or explicitly attempts to limit or constrain freedom of action, if it that constraint is not “undue,’ rest on this tradition. One could be wrong, but being wrong does not require being mean spirited.
It is simply the fact of the matter that until surprisingly recently women were not granted the same legal status as men. This unhappy fact arose, in larger measure, from the long-standing conviction that women simply did not have the necessary mental equipment, that is the capacity to reason, necessary to make intelligent decisions. Thus fathers, husbands, brothers, uncles and whomevers acted in the interests of women, with and without a woman’s acceptance. For many individuals aware of this inescapable fact and the horrid assumption that provided its justification, attempts to places limits on women’s freedom always already sound like a recurrence of an old and tedious injustice.
Certainly it makes sense to consider attitude toward women’s sexuality and women’s freedom to choose when considering legal decisions that limit the latter freedom. And in a situation where a less onorous conclusion is available and justifiably (women are no longer require to inform or consult with their husband about nearly anything)
it is licit, if not necessarily “true,” to speculate that a politically conservative devout Catholic is allowing his steadfast, deeply-held and entirely honorable in intent beliefs to influence his judgement. Granted, Mr Drum and other often adopt a shrill tone when tracking down and “exposing” the return of patriarchical logic, but this does not in and of itself render their conclusion null.
It is not clear that Mr. Goldstein fully understands “classic liberalism,” in part because it is not clear what he means when he deploys the phrase. In most cases, one thinks of Ferguson, Smith, and Hume and the rest of the Scots as providing the key to classic liberalism, although Mr. Goldstein may have in mind some other group. The connection between these thinkers and contemporary conservativism is tenuous. It is true that Smith’s Wealth deals, at least in part, with the advategous society reaps from “free markets” but this is only one component of an very complicated text, made more so by the necessity of reading it in concert with Smith’s Theory of Moral Sentiments.
In the case of Ferguson, whose status as a key figure in the development of Smith’s thought and Scottish thought generally is beyond dispute, casts further doubt on the notion that there is a connection between modern conservatives and classical liberals. Freguson, in the History of Civil Society, argued that the economization of human relationships and interactions degraded human nature and destroyed society. This suggest that without further explanation, classical liberalism undermines modern conservitism and, for that matter, neo-liberalism with its deification of the market as the solution to all or nearly all problems. Outside these quibbles, it is difficult to enlist liberalism, whose main argument was that mankind (most would not – alas – have included women) not only deserved but was able to use properly its reason to make proper choices without, as Kant put it, the tutelage of the church, the state, or stale traditions. In other words, placing restrictions on human freedom of action runs against the grain of liberal thought.
Additionally, Mr Goldstein may be, as Mr. Cole points out, a good or nice guy, who — because of his status as a former professor of English — is entitled to respect. However, neither of these facts of the matter provides Mr. Goldstein with a warrant to assert that Ailito’s argument is legally sound. Last time I checked, neither nice guys nor English professors were, in the normal course of event, ajudged competent to cast judgement on the criteria of other professions. This point matters. Much of Mr. Goldstein’s argument rests on his judgement, he provides no evidence, of the quality of Ailito’s argument. On what basis, does Mr. Goldstein make this claim? and why does he provide no evidence to back it up. Alas, much of Mr. Goldstein’s positive argument rests on assertions without evidence, while his destructive argument rests on exposing what he sees as the empty concerns about patriarchy. The latter point, as suggested above, requires avoiding or ignoring unfortunate historical facts.
Mr Cole’s assertion that Mr. Goldstein’s text is coherent and competently written rests, at least in part, on Mr. Goldstein’s one-time occupation as a professor of English. This claim is neither logical nor experientially sound. It is no secret that professors in many disciplines, English included, write with an agressive lack of interest in coherence, limited competence, and stunning avoidance logic. The proof of a pudding is in its eating and thus the quality of the cook arises not from his training but on his execution. From my perspective, Mr. Goldstein’s prose suffers from an almost Teutonic adoration of convoluted (what a German academic once descibed as shaped like a tapeworm) sentences. To say nothing of the unneccessary and confusing asides.
Richard Bennett
The point of the law was to make a statement about marriage. It provided no verification mechanism, hence it was simply a symbolic measure and nothing more. An honest application of the “undue burden” concept has to admit that a symbolic measure isn’t ever an “undue burden”, hence Alito was right and those who disagreed with him – including the idiot Saletan – were wrong.
Mr Furious
Which part of the Constitution recommends passing of “symbolic” laws to make people feel good about their marriage, heterosexuality, gender, whatever…?
I’m not so sure Alito is right or that Saletan is the idiot here.
Defense Guy
How exactly would that work? Is there a legal precedent for allowing this sort of order? If not, it’s a non-starter.
Sam Hutcheson
Once again, the only way to even come to this conclusion is to change the meaning of the word notify to mean consent or get approval. So it’s a strawman.
What do you suggest “notification” actually is intended to do in this case? (Hint: Alito spells it out in his opinions, should you care to read them.)
Defense Guy
Once again, you are using the term notify to mean something larger than that which is intended. I’m starting to think it’s a disease amongst those who disagree with the law.
Defense Guy
Since I have read it, perhaps you will save us both time and just provide what you think is the evidence of greater intent than notification here?
John S.
Heh, you took the words out of my mouth.
I say all our laws should be empty symbolic gestures!
demimondian
Congratulations, Richard! That’s a brilliant rhetorical stroke.
Perhaps you’d feel empowered to symbolically point to where in the legislative debate on the measure that point was raised?
ppGaz
Yeah, and hold the sauerkraut.
Mr Furious
What I meant was the husband, once notified, should have some recourse, shouldn’t he? I mean, if you are going to have a law on the books that he be notified is it really going to be so empty as to just taunt him? If he wants the baby, what can he do? Some husband will sue. The wife will be court-ordered not to have an abortion while the case winds through the system.
Otherwise, don’t waste everybody’s time with a bullshit law. This is hypothetical, but serious. What is the point of a notification law without consent?
Defense Guy
Perhaps, but that is not the subject of the provision in the law we are discussing. So you are taking it an extra step not called for.
You may think that using language like ‘taunt’ helps your case, but it really doesn’t. It just shows that the merits of your argument are not substantial enough, at least to you, to simply use the word already provided. Which is notify by the way.
As to the first, you are unwilling to concede that the husband/father has any right to his offspring until the point of birth, which is a shame. The second point you make is a guess, and a bad one, considering that husbands cannot legally stop their wives from having an abortion.
Another empty argument. It simply doesn’t matter if there is a point or not because the law doesn’t say consent, it says notify.
Mr Furious
Then I ask again, WHAT IS THE POINT OF THE FUCKING NOTIFICATION LAW?
Sam Hutcheson
Then I ask again, WHAT IS THE POINT OF THE FUCKING NOTIFICATION LAW?
Let it go. The guy you’re arguing with is making his shit up as he goes. It’s a crafty little semantic end-around for him, granted, but it has nothing to do with the logical or legal reasoning Samuel Alito used in his opinions and dissents in the Casey decision. And that’s the point, not “Defense Guy’s” specious semantic game playing in the comments of Balloon Juice, but Sam Alito’s specious and highly cherrypicked legal reasoning in his dissent of Casey.
The case law was right there in front of him, thanks to Hodgeson. The distinction between “undue burden” for a woman as opposed to “undue burden” for a child was pretty clear in Hodgeson. Alito chose to ignore those aspects of Hodgeson (even though is fellow judges used them in their opinions, so they were clearly discussed in session), pick only the narrowest of excerpts from Hodgeson to symbolically support the way he thought the law should be read, and wrote his dissent accordingly.
This is the very definition of activist judging. O’Connor and the SCOTUS ruled in a manner Alito didn’t approve of in Hodgeson, so he edited that ruling in a manner he did approve and then used it to “support” his dissent in Casey, to which O’Connor and the SCOTUS expiditiously responded with a unqualified rebuke.
The problem is, if Alito is on the SCOTUS, there won’t be anyone to correct his biased and patriarchal interpretive activism. This is a problem.
“Defense Guy” trolling you on a poli-blog isn’t.
ppGaz
Such behavior is the basis for somewhere between 50% and 80% of the page views on any given day.
You’ve even got guys here who troll their own blogs (not BJ) to get traffic.
It’s not NICE to fool mother nature ;-)
Defense Guy
You have such a problem with cherry picking, but no problem with using weighted words in place of the actual one in the discussion about the law. A bit selective in your willingness to decry dishonest rhetorical tactics aren’t you ‘Sam’?
Mr Furious
Don’t worry, Sam, I’m not expecting an answer from DG. Just pointing out that he never really gives one, just circles around with the same old stuff.
Nice comment, though, some very good points. Be careful though, you almost sound like “that idiot Saletan”…
Defense Guy
It’s implied in your very question. To notify a rightfully interested party.
Sam Hutcheson
Be careful though, you almost sound like “that idiot Saletan”…
Well, I am the guy that brought Saletan up in the first place…
Sam Hutcheson
You have such a problem with cherry picking, but no problem with using weighted words in place of the actual one in the discussion about the law. A bit selective in your willingness to decry dishonest rhetorical tactics aren’t you ‘Sam’?
Suffice it to say, I am not nominated for a seat on the Supreme Court.
scs
To require someone to notify someone else over an action without the other person having any legal rights over that action seems strange to me. You are legislating speech basically. And part of our rights is freedom of speech (or lack of speech in this case). If the courts want to declare a fetus joint property of the parents and give the fathers the rights to ALL aspects of the fetuses development, such as the food the mother can eat, whether she can smoke, etc, and if she can have an abortion, and have the mother give up all privacy rights related to gestation, this is an empty law. And an intrusion on the privacy of the mother and her freedom of speech.
Mr Furious
What scs said.
Richard Bennett
You guys aren’t very familiar with the work of state legislatures, and that’s understandable because I’m sure most of you don’t haven’t read a state bill (or more than a couple, in the most extraordinary instance.) Congress does all the interesting stuff, and state legislatures spend their time passing a budget and then drafting all manner of bills designed to get some media attention in the home district.
By the time these attention-getter bills get passed, they’re frequently so watered down that they do next to nothing. When I lobbied the California Legislature, I had to read about a hundred bills a year that were little more than a “Findings and Declarations” section that was nothing more than opinions about the state of the world.
Symbolic measures are totally commonplace in state legislatures. In many cases, they’re intended to simply put an issue on the table so that more stringent amendments can be passed in the future if the public responds to it.
The law that Casey dealt with contained 5 major provisions on abortion, dealing with both parental notification and and spousal notification. The parental part was fairly substantial and the spousal part less so.
I’m sorry that those of you who aren’t familiar with the legislative process – Mr. Furious for example – don’t understand these dynamics, but this is the way things work in America.
Mr Furious
That’s right. I wasn’t a lobbyist, and I never read a bill. Federal or state. Neither have 99.9% of the people in this country. THAT’S also the way things are in America.
You might have offered a good explanation why such stupid legislation is passed (and thank you for that, seriously), but that doesn’t meanit’s right or the way things should work. I might be coming from a naive perspective and looking for a hopelessly idealistic fantasy, but I still think hollow “fell-good” laws are a waste of time and a crock of shit.
You may just be correct, Richard, and that’s unfortunate.
Richard Bennett
Perhaps, but perhaps these symbolic measures have a role in communicating values, just as “bully pulpit” pronouncements from the executive branch do.
rilkefan
Check out the bit from Nova Scotia. Stupid web design – you’ll have to grep on “Nova Scotia”.
Mike
“ppGaz Says:
There’s a word for what you are, but we’re trying to be a little more verbally moderate around here”
Yes there is a word: “Someone with an opinion”.
Same as you, and just as valid.
Mike
“Mr Furious Says:
Then I ask again, WHAT IS THE POINT OF THE FUCKING NOTIFICATION LAW?”
Coming from someone on the “Right”, I would say so he’d know the type of woman he’s married to. So he can decide that okay, she had her good valid reasons and I can live with it. Or he can say, “you know, I don’t agree with abortion so I don’t want to be married to this person any longer, or he can say, hmmm, how’d she get pregnant and why is she so eager to end it?” I don’t think he should be able to force her to have it, nor do I think most of the men on the “right” or the “left” would want to be married to someone that they felt they had to make do such a thing. There’s a very long way from making sure someone that may have a vested interest (in that it may be his) knows what’s going on, to forcing a woman to have a child she doesn’t want. I think the truth is that you’ll find very few on the “right” that would agree with the latter.
t. jasper parnell
A last point, it is not necessary to redefine inform as consult in order for the requirement of informing to be a check on freedom of action. It is a simply a matter of fact. If I tell a kid to tell me before he goes outside, I have interfered with his freedom of action by refusing him the ability to go outside absent my obtaining knowledge of his going. Ditto a woman having to inform her husband. Before she can abort, that is obtain a legal and safe medical procedure, she must inform her husband. This means, again as a matter of fact, that her freedom of action is limited by the requirement that she fulfill a state mandate, concerning in this case interpersonal communication, before she acts. In what use of the word limitation is this not a limitation? What the husband does with this information and the intention of the state in requiring it are beside the point. As a matter of law, it would seem to establish that a requirement to inform is not a “meaningful” or “burdensome” limitation. Fine. Before you move, inform the police. Before you get a hair cut, contact Helena Gurley Brown. This particular decision offers men a legal and state sponsored right of knowledge over their wives’ actions and this makes it, I would argue, an illiberal limitation of women’s free action based on a conviction that husbands have a right to know what their wives are up to and the state has the constitutional right to legislate for men’s knowlege over and against women’s freedom of action. From where I sit, this is just plain wrong and evidence of an illiberal use of state power to limit personal freedom.