Deference. It is clear from Alito’s analysis that he was attempting to follow what O’Connor and the Supreme Court had laid down. He was not trying to insert his own opinion on abortion. Alito’s reputation is that he is scrupulous aboutnot imposing his own beliefs. Richard Garnett, who teaches constitutional law at Notre Dame, says, “Here is what we can expect from Justice Alito: He will do his best, in every case, to interpret and apply the law as it is, and not to remake the law according to his own view of what it should be.” If Alito was guilty of anything here, it was deference to the legislative arm of government and attempting to adhere to law and precedent, as he understood them.
Besides, many of us think he was right to defer to the legislature on this issue. Spousal notification passed easily in Pennsylvania because so many legislators concluded that men have an interest in their unborn children and should at least know about the decision to abort, and thus have the chance to talk their wives out of it. Husbands should be allowed to express how losing a child would affect them. Mainstream America clearly agrees with this view. Support for spousal notification is overwhelming. It has hovered between 63 and 72 percent for many years. Last month Pew Research reported that “large majorities favor such measures as mandatory waiting periods, parental and spousal notification, and a prohibition on late term abortions.” Gallup (1996) reported that majorities back mandatory spousal notification in nearly every subgroup surveyed, including Democrats (66 percent), liberals (60 percent), and young people (75 percent of those 18 to 29). It is indeed peculiar that a campaign to depict Alito as out of the mainstream should focus so sharply on a plausible technical analysis of a law the mainstream clearly backs.
It may be that the hard feminist left has no real ammunition to fire at Alito and must make do by inflating the importance of a debatable notification case. It isn’t much, but it seems to be all they have. l