Yet this attack is all wrong on the facts. There was no callous disregard for women. Alito wrote in the 1991 decision that “the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of this provision is a matter of grave concern.” The law he was scrutinizing had an exception for the danger of abuse by the husband. The law did not require spousal notification if the abortion was a medical emergency, if the father couldn’t be located, if the spouse was not the father, if the pregnancy was caused by sexual assault, or if the woman believed bodily injury would result from telling her husband about the coming abortion.
The spousal notification provision passed the legislature with major support from both parties and was signed into law by a Democratic governor, Robert Casey. Alito wrote this: “The Pennsylvania legislature presumably decided that the law on balance would be beneficial . . . we have no authority to overrule that legislative judgment, even if we deem it unwise or worse.” He wrote that his job was to determine whether Pennsylvania had created an “undue burden,” the benchmark established by Justice Sandra Day O’Connor in a previous abortion case.
“Whether the legislature’s approach represents sound public policy is not a question for us to decide,” Alito wrote. “Our task here is simply to decide whether [it] meets constitutional standards.” Alito thought it did. He wrestled with the issue in a long and careful analysis of what O’Connor meant by an undue burden. The analysis was rejected by his own court, 2 to 1, and by O’Connor herself in the Supreme Court’s 5-to-4 decision striking down spousal notification. The court ruled that notification constitutes an undue burden, partly because it may trigger psychological abuse from husbands, child abuse, withdrawal of financial support, or destruction of a woman’s possessions.