I’ve stayed out of Supreme Court discussions because the system here in the UK is completely different and my ignorance of the whole subject is so profound I have nothing useful to contribute. But this quote from Alito about husband notification stood out so much that I had to say something.
The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands’ knowledge because of perceived problems”“such as economic constraints, future plans, or the husbands’ previously expressed opposition”“ that may be obviated by discussion prior to the abortion.
Every time I read it, my mind supplies a translation that runs something like this: “Those silly women think they need an abortion, but they don’t really. If they would only do the sensible, rational thing and discuss it with their husbands, they’d realise that.” And I know that, technically, Alito isn’t saying he thinks that – just that the Pennsylvania legislature could have thought it in good faith – but he seems to think it’s a perfectly reasonable way of looking at things.
The “perceived problems” Alito cites – which seem like genuine problems independant of perception to me – are reasons women might have an abortion, not reasons they might do so without their husbands’ knowledge. Whether a married woman discusses her decision with her husband depends less on her reasons for not wanting to continue the pregnancy as on the nature of the relationship between them.
It’s likely that in many cases, a woman will want to avoid telling her husband for the same reason the Pennsylvania legislature might theoretically find it desirable: a belief that he will try to talk her out of it. A fear that he will brush aside her reasons for not wanting to continue the pregnancy or even insist that he is better qualified than she to make this decision. The kind of rational arguments my ex-boyfriend used on my decision to continue with my pregnancy would be no more pleasant for a woman who made a different decision but faced similar opposition.
Trying to enforce “rational” behaviour by law doesn’t work because a decision looks different depending whether it’s viewed from the inside or the outside. When I rejected my ex-boyfriend’s suggestion that I should have an abortion, my fear that I would never have such an opportunity to become a parent and the fact that I already imagined my baby as the person it might become were both factors that influenced me. For me, these were more important than the economic factors that pointed to the conclusion that an abortion was the better choice. For him, the economic factors were all; my reasons for refusing had no place in his analysis. Neither of us could be said in an absolute way to be correct, but I was better able to weigh the factors that made a difference to me and therefore make the decision that was right for me.
As with abortion, so with husband notification. The worry that your husband will dismiss your reasons for wanting an abortion and try to manipulate you into continuing with the pregnancy may sound trivial to an outsider, but only the woman facing it can judge how far it could go or how badly it could affect her. Forcing a woman to convince outsiders that she has good reason to fear her husband’s reaction, when they know nothing about her or the relationship she has with him, undermines her ability to make her own choices based on what she knows. It replaces her judgement with the judgement of a court or panel. I don’t know the precise legal meaning of “undue burden”, but it certainly fits my layman’s understanding of the term.