The right to remain silent

By Lisa Bloom

"The Pennsylvania legislature could have rationally believed that some married women are initially inclined to obtain an abortion without their husbands' knowledge because of perceived problems — such as economic constraints, future plans, or the husbands' previously expressed opposition — that may be obviated by discussion prior to the abortion."

— Judge Samuel Alito in Planned Parenthood v. Casey, dissenting from the majority's decision to strike down a provision of Pennsylvania law requiring married women to notify their husbands before obtaining abortions. Judge Alito's position was subsequently rejected by the U.S. Supreme Court, which also struck down as unconstitutional the provision for creating an undue burden on a woman's right to choose an abortion.

I just read Supreme Court nominee Samuel Alito's entire dissent in Casey, trying to follow his reasoning that women who don't tell their husbands about a planned abortion are probably just confused or misinformed. He acknowledges that we are talking about a very small group, because at least 70% of women seeking abortions are single, and at least 95% of married women seeking abortions do discuss the matter with their husbands. The question is, why don't some married women tell? As long as the Constitution gives them the right to choose an abortion, should they have the right to keep it secret, or should the law require notification?

Judge Alito's world is one of language and meaning, where the only problems between spouses are verbal confusion and honest misunderstanding. "Perceived problems" that are so nicely "obviated by discussion." "Economic constraints"? "Future plans"? "Previously expressed opposition"? Judge Alito's colleagues in the majority, ultimately affirmed by the Supreme Court, saw the grittier reality that very practical fears of psychological abuse, child abuse or other retribution not listed as a statutory exemption for notification could drive a woman to keep quiet about a pregnancy and abortion. The majority trusted grown women to make the right decision for a medical procedure on their own bodies, given their own circumstances.

Certainly pregnant women sometimes have something to fear. Scott Peterson and Ray Carruth killed or conspired to kill the pregnant mothers of their unborn children; Robert Blake threatened to kill his baby's mama, according to his dead wife's sister. Homicide is a leading cause of death among pregnant women. These are victims whose problems could not be "obviated by discussion."

Then there is the issue of sexism. Men are not required to notify their wives of any medical procedures they might choose, even those affecting their reproductive health, which might have an impact on their marriage and families. The idea is laughable, unthinkable.

Disagree? My new favorite TV show, "Commander in Chief," encourages wild feminist fantasy, which in my case, may be dangerous. (My dad used to say I needed consciousness lowering.)

Consider this scenario.

Geena Davis is the 43^rd consecutive female president. The Supreme Court is populated by seven women and two men. One of the male justices retires to care for his ailing wife, and despite some mild suggestions from men's rights organizations that it would be nice to see more testosterone on the court, President Geena nominates Samantha Alita, who is Ivy-League educated, smart and whose judicial philosophy clearly favors the existing power structure. The men-ists, not wanting to appear too forward or pushy, raise little fuss, because, as they acknowledge, there were just not that many qualified male nominees, given the high rates at which young fathers tend to drop out of the labor pool to raise children. (This is the natural order of things, just as male penguins care for the young chicks and the females go out to get food. And after nine months of pregnancy and labor, women are tired! So of course most dads take over at birth, and care for babies, rendering them later unsuitable for Supreme Court appointments.) Plus, the shabby performance of under-qualified rejected candidate Harry Miers (who, quite unnaturally, never cared for a baby) just proves how dicey it is to try to get a male candidate confirmed.

During the confirmation process, the overwhelmingly female Senate reviews Judge Alita's writings. In one of her more colorful cases, Samantha reviewed a state law requiring husbands to notify their wives when they obtain Viagra prescriptions, schedule a vasectomy, or pay for their mistresses' abortions. Reasoning that men are so often painfully ignorant of simple household finances, and that they often tune out when wives discuss future plans or their views on sexual matters ("They're not known for being great listeners, are they?" winks the judge), the nominee writes:

"Certainly wives should be notified when men get these crazy ideas into their heads. Economic considerations may be at play, since wives are usually the primary breadwinners in the family, and, let's be honest, men are notoriously bubbleheaded when it comes to budgeting. It would be just like a man to spend her hard-earned money on male enhancement products when frankly, after a hard day's work, she's not even in the mood! And what of her future plans? Suppose he goes out and gets his tubes tied, and she was considering having his sperm frozen or used to impregnate her lesbian friends? He's got some nerve making that decision on his own. And though a wife's previously expressed opposition to having children may have convinced him, our case law has already enshrined a woman's constitutional right to change her mind."

The all-female Senate Judiciary Committee, the members of which look exactly like the nominee, pay a little lip service to men's rights during the hearings ("My husband and sons have taught me that men can do anything they set their minds to!") The candidate is confirmed after minimal debate. After all, there are far more important issues facing the high court — zoning laws and whatnot.