November 06, 2005

Charles Krauthammer makes Kant cry, too

Expanding on this post, we have another example of the same spectacularly misogynist "reasoning", this time in the form of a column by Charles Krauthammer, defending Alito's Casey decision. (More below the fold!)

(In the fisking that follows, emphasis is mine.)

Actually, Krauthammer isn't defending the decision, at least the way philosophers tend to use that word, meaning just the conclusion of the argument (in particular, that husband notification is constitutional). No, he's defending Alito's reasoning.

Pop quiz: Which of the following abortion regulations is more restrictive, more burdensome, more likely to lead more women to forgo abortion?

(a) Requiring a minor to get the informed consent of her parents, or to get a judge to approve the abortion.

(b) Requiring a married woman to sign a form saying that she notified her husband.

Can any reasonable person have any doubt? A minor is intrinsically far more subject to the whims, anger, punishment, economic control and retribution of a parent. And the minor is required to get both parents involved in the process and to get them to agree to the abortion.

You see, children have legal guardians, and adult women don't. Therefore, if women are placed back under the legal guardianship of their husbands, no-one (no fully fledge person, ie, no man) will be facing an additional hurdle when he wants to get an abortion, so things are a-okay!

The married woman just has to inform her husband. Even less than that. She just has to sign a form saying that she informed him. No one checks. Moreover, under the Pennsylvania law I draw my example from, she could even forgo notification if she claimed that (1) he was not the father, (2) he could not be found, (3) he raped her or (4) she had reason to believe he might physically harm her. What prosecutor would subsequently dare try to prove to a jury that, say, she actually had no such fear of harm?

Husband notification isn't a big deal, because she can just commit perjury! (May I just say, what the fuck?)

Even here, at the very beginning, Krauthammer has made the same appalling assumption Alito did. Can you pick it out? Here's a clue:

Remember: The question is not whether (a) or (b) is the wiser restriction. The only relevant question is which is more likely to discourage the woman from getting an abortion.

The answer is obvious.

Why is this the relevant question? Because when, in 1991, Judge Samuel Alito was asked to rule in Planned Parenthood v. Cas ey on the constitutionality of Pennsylvania's spousal notification requirement, Supreme Court precedents on abortion had held that "two-parent consent requirements" for a juvenile with "a judicial bypass option" do not constitute an "undue burden" and thus were constitutional. By any logic, therefore, spousal notification, which is far less burdensome, must also be constitutional -- based not on Alito's own preferences but on the Supreme Court's own precedents.

It doesn't matter whether this robs married women of fundamental rights to bodily autonomy, whether the State can "empower [her husband] with this troubling degree of authority over his wife", whether a man can be given "the kind of dominion over his wife that parents exercise over children", in the words of Justice Day O'Connor overturning Alito's opinion. All that matters is whether or not it will be more difficult for adult women to procure an abortion than a teenager under a similar notification law.

Have I mentioned that I have some deep, deep problems with Utilitarianism?

This may all seem arcane, but it requires slogging through arcana to see just how dishonest, disreputable and disgraceful is the charge, trumpeted by just about every liberal interest group, that Alito is so extreme and insensitive to women's needs that he supports spousal notification for abortion.

Alito's Casey opinion no more tells you whether he "supports" the policy of spousal notification than whether he likes foie gras with his pudding. The only thing it tells you is that based on scrupulous parsing of Supreme Court precedents -- or more particularly, of Sandra Day O'Connor's precedents on permissible restrictions on abortion -- he concluded that spousal notification met the court's own standard for constitutionality.

Well, based on a scupulous parsing of Supreme Court precedents and the notion that wife is to husband as child is to parent.

Let me make this very clear, so even you can understand it, Mr. Krauthammer. The problem with Alito's Casey decision was NOT whether he misapplied the undue burden standard laid out by the Supreme Court previously. The problem was that he was even applying this standard in the first place. The reason the Supreme Court smacked him down as fast as they did is that Alito skipped over the important test of "does this violate fundamental principles of legal equality?" Not only is undue burden not the only relevant question, it's actually completely irrelevant to the unconstitutionality of husband notification. That Krauthammer, a hack and talking head, doesn't get it (or pretends not to get it) is one thing; that a fucking Federal judge and Supreme Court nominee doesn't understand the foundations of our legal system is absolutely terrifying.

The grounds on which the Democrats (and sane Republicans) ought to challenge Alito are, thus, not ideological: even staunch yet intellectually honest opponents of abortion should question Alito's competence as a jurist if he passes by fundamental issues such as legal equality to give highly technical arguments supporting his predetermined conclusion. In a word, Alito is a sophist. In two words, Alito is intellectually corrupt.

You can finish off the Krauthammer column, but as he just continues ranting about the undue burden standard, I'm not going to bother copying and pasting here.

Via Amanda, who argues that this is clearly part of a nefarious plot to destroy heterosexual marriage.

Update: I'm sure you will all be shocked, SHOCKED, to learn that John Leo is also an idiot/evil.


MosBen said...

While I agree with your opposition to Alito, I don't think anyone is going to believe that the man isn't smart. Scalia writes some pretty horrifying opinions but no one doubts that he is very intelligent and a very sharp jurist. Nicknames aside, everything I've read and heard points to Alito being very ideologically conservative, but hardly so intellectually bankrupt that he doesn't understand the job. I have a professor this semester (a very partisan Dem that was involved in Clinton's appointments) that knows Alito "a little" and said that Alito is an extremely bright guy.

Alito was a good pick for the Right. I don't think there's any way to attack his qualifications. The objections people have, seen in his opinions, are ideological. The Right wants this fight and I don't think the Left should run from it. Alito on the Court is going to substantively change the rights of millions of Americans both now and in the future, not because he's dumb or inexperience but because there's a part of the electorate that doesn't like the rights that Americans have. They want the country to be less free and that's exactly what Alito will make it.

Noumena said...

That's true, there are two possibilities here, and I didn't do a good job of separating them. It could "just" be that Alito is incompetent. Or, he could have used his legal knowledge to construct a clever yet ideologically motivated argument that deliberately ignores fundamental principles. An objection based on the second possibility wouldn't exactly be based on his qualifications, but wouldn't be ideological either.