Bricker, old pal, I’m sory to say that your illustration is both irrelevant and wrong.
It’s irrelevant because your actions don’t disprove Gadarene’s thesis that some people’s personal values can influence their jurisprudence.
I recognize that I was making a different claim when I asked what else any of us have. But you’re wrong there too – you’re not illustrating that your personal values step aside for your jurispredence. You’re merely illustrating that your jurisprudential values trump your religious ones. They’re still all your own motives, and they’re all still pushing on you. Some win, some lose, but that don’t that the winners aren’t of the same class as the losers, and it don’t mean the losers never made you sweat.
Well, Alito agreed that it was a burden, the question was whether or not that burden was 'unreasonable". Five SCOTUS justices disagreed with him, but 4 agreed. You might as well flip a coin.
Do the courts ever look at the burdens in aggregate? Taken individually one might say any single one is no great burden. But what happens when you start adding them all up? Can or do the courts ever think that the pile of roadblocks adds up to too much?
E.G.: You want an abortion? Fine. Tell the father and prove to us you did that. If you do not want to do that hire an attorney and go to court. Your 16? Tell your parents and prove it to us. If you cannot do that hire an attorney and go to court and have a judge sign off on it. When that is done wait three days. After that seek counseling on alternatives to abortion. Want to know more about abortion itself? Try Google as our doctors are under a gag order. Oh yeah, sorry we are a public hospital and prohibited from performing abortions. Go find somewhere else (and no we cannot tell you where to go…gag order).
I don’t know. In this case, IIRC, Alito argued that the vast majority of women (something like 95%) tell their spouses anyway. Given that there was any easy “out” to the notification process, he reasoned that he shouldn’t interfere with the legislative process.
It’s also impoprtant to note that the SCOTUS ruling in *Casey *is what created the “undue burden” test-- previoiusly it had been a “heightened scrutiny” test (less tringent). Whatever one might think of Alito, I don’t see how you can hold against him the fact that he didn’t use a SCOTUS precedent that didn’t exist at the time of his ruling.
*Casey *also overturned the trimester system used in Roe, and instituted one based on viability, which I think is more easy to defend on objective grounds-- “trimesters” being nothing more than arbitrary dividing points.
Moral of the story-- abortion jurisprudence is a moving target, and not one that can readily be comared to cut and dry issues like Slavery.
Yes, that " reasonableness" standard that pops up every time jurisprudence wrestless with the boundary between the objective and the subjeciive is always the sticking point.
I think that alito was disingenuous in ignoring the fact that the law as structured provides really no positive outcome from forcing an otherwise unwilling woman to share with another the information that she was pregnant (since a pregnancy announced but not culminated can only have been terminated…) That is really the practical effect if the law were permitted to stand.(there is, of course, the Corleone Manuever (where Diane Keaton tells Pacino that the baby he thought they lost via miscarriage had in fact been intentionally aborted.–this is generally not a recommended course of action for women married to high ranking mob figures, but I digress…)
Maybe he didn’t think it was up to him to determine whether something had “no postive outcome”. Maybe he thought that the courts should allow the people to govern themselves unless the laws were demostrated to have negative outcomes and that those negative outcomes were not allowed by the consitution or SCOTUS precedent. Call me crazy, but I don’t want some judge telling my legislature that a law has “no positive outcome” and therefore is going to be struck down. Guess I missed the part in the constitution where it says “Congress shall pass no law that has ‘no positive outcome’”.
It’s also impoprtant to note that the SCOTUS ruling in Casey is what created the “undue burden” test-- previoiusly it had been a “heightened scrutiny” test (less tringent). Whatever one might think of Alito, I don’t see how you can hold against him the fact that he didn’t use a SCOTUS precedent that didn’t exist at the time of his ruling.
you misconstrue the thrust of the two phrases.
“Heightened Scrutiny” is the scrutiny applied to the balancing test once you have decioded that the individual interest (right to choose abortion) is of the nature of a 1st amendment interest. In that case, we “scrutinize” the governmental interest asserted and the means of enforcing it, demanding the governemental interest rise to a sufficient level, and the means be as minimally intrusive upon the protected rigvht as possible.
Considering that the interest here asserted is to guarantee that a father deprived of his child for the reminder of his life have to bear tha burden of that information, with whatever ramifications for him and gte mother that might have, one might wonder exactly how importantan iterest that wzs for the legislature. Alito himself, by acknowledging the rare application of the law, is hoist by choice on this petard.
“undue burden” per contra, is a standard that arises only after “stcitc scrutiny” has been triggered as a threshold issue. It is then, the outcome of the balancing test that the scrutiny has mandated the judge apply in sorting out the rights of the individual vs. the rights of the government.
by closing your eyes (and permitting alito to close his) to the real world outcome of the law you ( pretend to advance one interest (fathetrs should be able to be heard in defense of the survival of their child) when we really wish to advance another (as Alito is on record as stating) we want to end choice, by nibbling away as much as we can.
btw, for clarity, “undue burden” did not just appear in Casey ab initio. It is the old standard for permissible limitation of first amendment type rights, for example when a rally permit is sought for the KKK (limitataions of time/ place/ manner ok,limitations of content, not ok.)
Alito is really not smart enough to be as dangerous as Roberts.
But Roberts is so smart that he’s going to do a Blackmun on G-dub. I hope the chimp has enough minimal understanding to feel the burn when it happens.
At the risk of drawing yet another visit to the pit, the spirits of Holmes, Douglas and Marshall are in play, and they will have their way with Roberts. Alito may be too stupid to reach, but Roberts is too smart to be immune.
Good point, and I should explicitly said “in the context of laws placing limits on abortion”. Was I wrong, though, in saying that prior to the SCOUTS’s decision in Casey, the precedent they had set was “heightened scrutiny”? So, Alito could have chosen to use an “undue burden” test, but there wasn’t any reason that he should have felt compelled to do so. Right?
not exactly. The heightened scrutiny standard is not an analytical tool so much as a threshold. A governmental intrusion is subject to heightened scrutiny once it is deemed to be the sort of intrusion that infringes upon some protected right…
Thus, for instance, laws criminalizing assault are not subject to heightened scrutiny because there is no protected interest in attempting to batter your neighbor.
The “height” of the scrutiny may vary, with the importance of the protected right.
Thus, “strict scrutiny”, which applies to governmental intrusions on first amendment(or first amendment like rights" ) is the highest standard of balancing.
Any balancing test implicates the concept of undue burden, as opposed to a blanket prohibition of government intrusion where [t]aany** burden is prohibited, as opposed to those burdens found to be “undue” that is, excessive to the minimal amount required to vindicate the governmental interest asserted (but limited to those governmental interests that are legitimately in play). So it embraces both the concept of means, as well as the ends towards which those means are directed.
That is why an analysis of the law in Casey involves a deconstruction of the goals of the legislation–the judge is required to second-guess the legislature because some goals are permissible and some are not. Once you have (in a strict scrutiny setting) pared away the illegitimate goals, you are obliged to limit the scope of the intrusion by fashioning means as minimally invasive as possible.
Turning to Casey, since the spouse doesn’t have a veto, fashioning a remedy that requires proof of notice is clearly serving some interest other than protecting the fetus–in this case the only real interest served by mandating spousal notification is to require the woman to inform her spouse that she is pregnant.
(we will not, here, venture into the swamp of mis-identified paternity, because we are a family board…)
My god. A coherent Alaric post. I’m amazed, impressed, and a pig just catapulted past my window. Admittedly, I have a 7 year old neighbor with a catapult…
Iwill have you to know that an independent auditing agency (who refuse to be identified for reasons of state security) has awarded me a coherence index of .035. Applying this to my 1,888 posts yields a projected coherence expectation of nearly 50.
This means that I have at least 40 more coherent posts shortly to arrive in the future…
You lost me. Why are you paring away the goals “in a strict scrutiny setting”?
that is the deference to legislative authority part–the judge is obliged to uphold part of the law if it has ANY legitimate goal, even if as applied it trespasses impermissably on a protected right. It’s the difference between being “facially unconstitutional” and"uncnstrituional as applied" For “partial birth abortion” generally turn on the “as applied” a question because the anti-choice argument always goes to the particular instance with the rejoinder : “if the doctor was right and the woman’s life was in danger, he is acquitted…” Ie, not uncnstituional as applied.
The pro-choice rejoinder is that putting a doctor to that choice is unconstituional on its face.
I cannot claim to have gone to the pa. legislative history, but I surmise that the policy underlying the notification requirement is , like the waiting periods, enforced viewieng of sonograms, and other interventions mandated here and there, are intended to dissuade the mother from her intended abortion.
Certainly as a man I would want the opportunity to “reason” with a woman who was embarked on aborting my child, wouldn’t you?
But if the only benefit contemplated by the legislature is that I will now be able to hold my beloved’s hand while they suction out our kid, I’m not so sure that’s a goal we want to advance. The more so as she is free, after all, to invite me to the murder on her own, and forcing her to do so is sort of ghoulish, i think…
i wish to make it clear, moreover, that I do not know this kid, I have not encouraged him to cause pigs to fly, I deplore cruelty to animals, and if the pig failed to land successfully, I believe I am entitled to pork chops as an unwitting accomplice…