Bedroom v. Courtroom

Samuel Alito has heard hundreds of cases during his long tenure on the court of appeals, but the interested members of the American public are now likely familiar with a single one. It is the dissent in which Judge Alito ruled that it was not an undue burden for a married woman to be obliged to notify her husband that she was having an abortion.

The rights of the accused, the separation of church and state, gun control: so many public-policy matters, and yet it always comes down to this. Within hours of the nomination of Alito to the Supreme Court, his long career had been transmuted into a single issue. And it was hard not to wonder: wouldn't this confirmation process be more illuminating if abortion were taken out of the public realm and put back where it belongs, in the private one?

A mistake has been made in how this deeply divisive political issue is treated. The mistake is that it became a political issue at all. Once, abortion was not discussed in public, although it was certainly whispered about plenty in private. But even when it was illegal, it was widespread. As Cynthia Gorney noted in her definitive history, "Articles of Faith," reliable statistics were hard to come by. One national conference held in 1955 put the number of illegal abortions each year at somewhere between 200,000 and 1.2 million. The list of methods was long and various: quinine and Lysol, pencils and garden hoses, slippery elm and castor oil, and on and on and on.

With the rebirth of feminism and the determination to free women from the ties that bound them, both political and social, a movement emerged to change attitudes toward abortion. It became a movement with a schism at its center. One group wanted to reform existing laws. The other wanted to repeal them entirely, arguing that ending a pregnancy was a medical and moral decision, not a legislative one.

In 1973, the landscape changed in a way that seemed, at first blush, to be satisfactory for both. The Supreme Court ruled, 7 to 2, that there existed a right to privacy encompassing the right by a woman to have an abortion. But Roe v. Wade had a curious long-term effect. Instead of fostering an atmosphere in which government was agnostic on the issue, it fomented one in which it became activist.

The result has been a weirdly distasteful amalgam of gynecology and nuts-and-bolts legislation, most notable when members of Congress took to the floor with anatomical diagrams to illustrate the evil of so-called partial-birth abortion. In the Pennsylvania matter on which Alito dissented, Planned Parenthood v. Casey , the appellate panel considered how many married women have abortions, whether they would be likely to confide in their husbands, whether the regulations protected them against men who might beat them bloody. It all sounded a bit as though the judges had wandered off the bench and into someone's bedroom.

Alito argued that spousal notification was no undue burden and noted that under the terms of the Pennsylvania statute it was "difficult to enforce and easy to evade." In other words, it was merely a symbolic roadblock. To what purpose? To pay lip service to the marital bond? To lump spousal and parental notification together, so that women become children and husbands guardians? To play some cynical game with complex decisions of conscience for the sake of the folks back home?

It's the kind of wink and nod that has become commonplace. For instance, model laws to make abortion illegal assume penalties for doctors but not for their patients. This either reflects the old belief that women are scarcely sentient enough to be punished, or the new reality that throwing desperate women in jail would provoke a public uproar. Or it reflects the inherent problem with crafting legislation on matters unsuitable for resolution by legislative fiat.

We're in a real mess here, trying to fit a profound and intimate matter into a system more suited to tax codes and property issues, like trying to solve the mysteries of literature using formulas in math class. That's because abortion is unlike any other matter and pregnancy is different from any other state of being. The situation in which an embryo is permitted to grow over time into an independent human in the body of another is just not comparable to anything else. Yet analogy is the lifeblood of both lawmakers and jurists.

Imagine how it could transform the landscape if somehow abortion were absent from government intervention or interference. Those who believe it is a moral wrong could fight through hearts and minds, not laws that would resurrect the Lysol and the garden hose. Those who believe it is a woman's personal decision could choose either to end a pregnancy or to continue it and have a child. How much money could be raised for safe abortions for poor women and for prenatal care, too, if it didn't need to be poured into the incessant pinball game of partisan politics. And judges could return to those issues that lend themselves to jurisprudence instead of puzzling out the singular fact patterns of the womb.