Alito and the rights of fathers

It appears that the dissent Alito wrote in Casey is going to play very heavily in the discussion on his confirmation. So here’s a link to it and a bit of the essence: My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 … Continue reading “Alito and the rights of fathers”

It appears that the dissent Alito wrote in Casey is going to play very heavily in the discussion on his confirmation. So here’s a link to it and a bit of the essence:

My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 & Supp.1991), results from disagreement about the portion of Justice O’Connor’s two-part test that must be applied to this provision. Under that test, as the majority explains, a law that imposes an “undue burden” must serve a “compelling” state interest. By contrast, a law that does not impose an “undue burden” must simply be “rationally” or “reasonably” related to a “legitimate” state interest. The majority holds that Section 3209 constitutes an undue burden. The majority therefore applies the first prong of the two-part test and strikes down Section 3209 on the ground that it does not serve a “compelling” interest. I do not believe that Section 3209 has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that Section 3209 is constitutional because it is “rationally related” to a “legitimate” state interest.

Although the majority and I apply different prongs of this two-part test, I see no indication that we disagree concerning the conclusion produced when either prong is applied to Section 3209. If the majority is correct that Section 3209 must satisfy heightened scrutiny, I agree that its constitutionality is doubtful. Similarly, I do not interpret the majority opinion to mean that Section 3209 cannot satisfy the rational relationship test. Indeed, the majority acknowledges that Section 3209 serves a “legitimate” interest. See majority opin. at 715, 716. Thus, my major disagreement with the majority concerns the question whether Section 3209 imposes an “undue burden,” and I will therefore turn to that question.

It strikes me as well-researched and well-reasoned, and if there’s a problem behind it at all it’s in the vagueness of O’Connor’s concept of “undue burden.”