01 November 2005

alito and ppsp v. casey

something smells here. it strikes me as more than worrisome that conservative federal judges, and according to the article the bush administration as well, are engaged in a project that involves allowing potentially over-burdensome laws to go into effect before they are declared unconstitutional, because the actual burdens of the law have yet to be demonstrated.

leaving aside for a moment the issue of whether a parental notification law is unconstitutional on its face, this seems like a highly inconsistent use of "social facts" to me. it seems to me that conservative jurists usually get the most mileage out of claims that social facts, no matter their magnitude, are inconsequential where laws are facially neutral. you know, the old "it's not the law's fault that only women get pregnant" argument. or, hey, separate but equal. if the number of women who face an undue burden because of an abortion restriction might be small, then alito would uphold?

this is a poor articulation of my worry. perhaps it's more direct to say that alito's position in casey is both stone-age and dishonest. if you don't believe there is a constitutionally protected right to choose abortion, then for heaven's sake write opinions that say so. don't try to pretend that some me-tarzan you-jane tarzan-own-jane's-uterus provision doesn't pose an undue burden.