Tuesday, November 01, 2005
America is in trouble--and our elites are merely resigned.
America is in trouble--and our elites are merely resigned.
[Noonan was the central speechwriter for the “Reagan Revolution” that pulled the bottom out from under the U.S. balance of payments. That shoved the country’s collective head far below the surface of a sea of cheap credit and unpayable debt. Reading this piece, it’s hard not to suspect that Noonan and her ilk knew exactly what they were doing; that the 1980’s were an addict’s last high, selling off the manufacturing base (and selling out the working class that drove it) to buy one more fix of cheap Chinese goods and international finance capital.
What I doubt she understood was that this also broke the only chance for timely mitigation of Peak Oil. The Hirsh Report essentially says that Carter was right, in his methods and his timing; that his program was the country’s last chance to avoid a Tainter-type collapse; and that the Reagan period is the fourth in a five-act Shakespearean tragedy. –JAH]
A Separate Peace
America is in trouble--and our elites are merely resigned.
Peggy Noonan Thursday, October 27, 2005 http://www.opinionjournal.com/forms/printThis.html?id=110007460
In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
It is not so hard and can be a pleasure to tell people what you see. It's harder to speak of what you think you see, what you think is going on and can't prove or defend with data or numbers. That can get tricky. It involves hunches. But here goes.
I think there is an unspoken subtext in our national political culture right now. In fact I think it's a subtext to our society. I think that a lot of people are carrying around in their heads, unarticulated and even in some cases unnoticed, a sense that the wheels are coming off the trolley and the trolley off the tracks. That in some deep and fundamental way things have broken down and can't be fixed, or won't be fixed any time soon. That our pollsters are preoccupied with "right track" and "wrong track" but missing the number of people who think the answer to "How are things going in America?" is "Off the tracks and hurtling forward, toward an unknown destination."
I'm not talking about "Plamegate." As I write no indictments have come up. I'm not talking about "Miers." I mean . . . the whole ball of wax. Everything. Cloning, nuts with nukes, epidemics; the growing knowledge that there's no such thing as homeland security; the fact that we're leaving our kids with a bill no one can pay. A sense of unreality in our courts so deep that they think they can seize grandma's house to build a strip mall; our media institutions imploding--the spectacle of a great American newspaper, the New York Times, hurtling off its own tracks, as did CBS. The fear of parents that their children will wind up disturbed, and their souls actually imperiled, by the popular culture in which we are raising them. Senators who seem owned by someone, actually owned, by an interest group or a financial entity. Great churches that have lost all sense of mission, and all authority. Do you have confidence in the CIA? The FBI? I didn't think so.
But this recounting doesn't quite get me to what I mean. I mean I believe there's a general and amorphous sense that things are broken and tough history is coming.
Let me focus for a minute on the presidency, another institution in trouble. In the past I have been impatient with the idea that it's impossible now to be president, that it is impossible to run the government of the United States successfully or even competently. I always thought that was an excuse of losers. I'd seen a successful presidency up close. It can be done.
But since 9/11, in the four years after that catastrophe, I have wondered if it hasn't all gotten too big, too complicated, too crucial, too many-fronted, too . . . impossible.
I refer to the sheer scope, speed and urgency of the issues that go to a president's desk, to the impossibility of bureaucracy, to the array of impeding and antagonistic forces (the 50-50 nation, the mass media, the senators owned by the groups), to the need to have a fully informed understanding of and stand on the most exotic issues, from Avian flu to the domestic realities of Zimbabwe.
The special prosecutors, the scandals, the spin for the scandals, nuclear proliferation, wars and natural disasters, Iraq, stem cells, earthquakes, the background of the Supreme Court backup pick, how best to handle the security problems at the port of Newark, how to increase production of vaccines, tort reform, did Justice bungle the anthrax case, how is Cipro production going, did you see this morning's Raw Threat File? Our public schools don't work, and there's little refuge to be had in private schools, however pricey, in part because teachers there are embarrassed not to be working in the slums and make up for it by putting pictures of Frida Kalho where Abe Lincoln used to be. Where is Osama? What's up with trademark infringement and intellectual capital? We need an answer on an amendment on homosexual marriage! We face a revolt on immigration.
The range, depth, and complexity of these problems, the crucial nature of each of them, the speed with which they bombard the Oval Office, and the psychic and practical impossibility of meeting and answering even the most urgent of them, is overwhelming. And that doesn't even get us to Korea. And Russia. And China, and the Mideast. You say we don't understand Africa? We don't even understand Canada!
Roiling history, daily dangers, big demands; a government that is itself too big and rolling in too much money and ever needing more to do the latest important, necessary, crucial thing.
It's beyond, "The president is overwhelmed." The presidency is overwhelmed. The whole government is. And people sense when an institution is overwhelmed. Citizens know. If we had a major terrorist event tomorrow half the country--more than half--would not trust the federal government to do what it has to do, would not trust it to tell the truth, would not trust it, period.
It should be noted that all modern presidents face a slew of issues, and none of them have felt in control of events but have instead felt controlled by them. JFK in one week faced the Soviets, civil rights, the Berlin Wall, the southern Democratic mandarins of the U.S. Senate. He had to face Cuba, only 90 miles away, importing Russian missiles. But the difference now, 45 years later, is that there are a million little Cubas, a new Cuba every week. It's all so much more so. And all increasingly crucial. And it will be for the next president, too.
A few weeks ago I was chatting with friends about the sheer number of things parents now buy for teenage girls--bags and earrings and shoes. When I was young we didn't wear earrings, but if we had, everyone would have had a pair or two. I know a 12-year-old with dozens of pairs. They're thrown all over her desk and bureau. She's not rich, and they're inexpensive, but her parents buy her more when she wants them. Someone said, "It's affluence," and someone else nodded, but I said, "Yeah, but it's also the fear parents have that we're at the end of something, and they want their kids to have good memories. They're buying them good memories, in this case the joy a kid feels right down to her stomach when the earrings are taken out of the case."
This, as you can imagine, stopped the flow of conversation for a moment. Then it resumed, as delightful and free flowing as ever. Human beings are resilient. Or at least my friends are, and have to be.
Let me veer back to the president. One of the reasons some of us have felt discomfort regarding President Bush's leadership the past year or so is that he makes more than the usual number of decisions that seem to be looking for trouble. He makes startling choices, as in the Miers case. But you don't have to look for trouble in life, it will find you, especially when you're president. It knows your address. A White House is a castle surrounded by a moat, and the moat is called trouble, and the rain will come and the moat will rise. You should buy some boots, do your work, hope for the best.
Do people fear the wheels are coming off the trolley? Is this fear widespread? A few weeks ago I was reading Christopher Lawford's lovely, candid and affectionate remembrance of growing up in a particular time and place with a particular family, the Kennedys, circa roughly 1950-2000. It's called "Symptoms of Withdrawal." At the end he quotes his Uncle Teddy. Christopher, Ted Kennedy and a few family members had gathered one night and were having a drink in Mr. Lawford's mother's apartment in Manhattan. Teddy was expansive. If he hadn't gone into politics he would have been an opera singer, he told them, and visited small Italian villages and had pasta every day for lunch. "Singing at la Scala in front of three thousand people throwing flowers at you. Then going out for dinner and having more pasta." Everyone was laughing. Then, writes Mr. Lawford, Teddy "took a long, slow gulp of his vodka and tonic, thought for a moment, and changed tack. 'I'm glad I'm not going to be around when you guys are my age.' I asked him why, and he said, 'Because when you guys are my age, the whole thing is going to fall apart.' "
Mr. Lawford continued, "The statement hung there, suspended in the realm of 'maybe we shouldn't go there.' Nobody wanted to touch it. After a few moments of heavy silence, my uncle moved on."
Lawford thought his uncle might be referring to their family--that it might "fall apart." But reading, one gets the strong impression Teddy Kennedy was not talking about his family but about . . . the whole ball of wax, the impossible nature of everything, the realities so daunting it seems the very system is off the tracks.
And--forgive me--I thought: If even Teddy knows . . .
If I am right that trolley thoughts are out there, and even prevalent, how are people dealing with it on a daily basis?
I think those who haven't noticed we're living in a troubling time continue to operate each day with classic and constitutional American optimism intact. I think some of those who have a sense we're in trouble are going through the motions, dealing with their own daily challenges.
And some--well, I will mention and end with America's elites. Our recent debate about elites has had to do with whether opposition to Harriet Miers is elitist, but I don't think that's our elites' problem.
This is. Our elites, our educated and successful professionals, are the ones who are supposed to dig us out and lead us. I refer specifically to the elites of journalism and politics, the elites of the Hill and at Foggy Bottom and the agencies, the elites of our state capitals, the rich and accomplished and successful of Washington, and elsewhere. I have a nagging sense, and think I have accurately observed, that many of these people have made a separate peace. That they're living their lives and taking their pleasures and pursuing their agendas; that they're going forward each day with the knowledge, which they hold more securely and with greater reason than nonelites, that the wheels are off the trolley and the trolley's off the tracks, and with a conviction, a certainty, that there is nothing they can do about it.
I suspect that history, including great historical novelists of the future, will look back and see that many of our elites simply decided to enjoy their lives while they waited for the next chapter of trouble. And that they consciously, or unconsciously, took grim comfort in this thought: I got mine. Which is what the separate peace comes down to, "I got mine, you get yours."
You're a lobbyist or a senator or a cabinet chief, you're an editor at a paper or a green-room schmoozer, you're a doctor or lawyer or Indian chief, and you're making your life a little fortress. That's what I think a lot of the elites are up to.
Not all of course. There are a lot of people--I know them and so do you--trying to do work that helps, that will turn it around, that can make it better, that can save lives. They're trying to keep the boat afloat. Or, I should say, get the trolley back on the tracks.
That's what I think is going on with our elites. There are two groups. One has made a separate peace, and one is trying to keep the boat afloat. I suspect those in the latter group privately, in a place so private they don't even express it to themselves, wonder if they'll go down with the ship. Or into bad territory with the trolley.
Ms. Noonan is a contributing editor of The Wall Street Journal and author of "John Paul the Great: Remembering a Spiritual Father," forthcoming in November from Penguin, which you can preorder from the OpinionJournal bookstore. Her column appears Thursdays.
[Noonan was the central speechwriter for the “Reagan Revolution” that pulled the bottom out from under the U.S. balance of payments. That shoved the country’s collective head far below the surface of a sea of cheap credit and unpayable debt. Reading this piece, it’s hard not to suspect that Noonan and her ilk knew exactly what they were doing; that the 1980’s were an addict’s last high, selling off the manufacturing base (and selling out the working class that drove it) to buy one more fix of cheap Chinese goods and international finance capital.
What I doubt she understood was that this also broke the only chance for timely mitigation of Peak Oil. The Hirsh Report essentially says that Carter was right, in his methods and his timing; that his program was the country’s last chance to avoid a Tainter-type collapse; and that the Reagan period is the fourth in a five-act Shakespearean tragedy. –JAH]
A Separate Peace
America is in trouble--and our elites are merely resigned.
Peggy Noonan Thursday, October 27, 2005 http://www.opinionjournal.com/forms/printThis.html?id=110007460
In accordance with Title 17 U.S.C. Section 107, this material is distributed without profit to those who have expressed a prior interest in receiving the included information for research and educational purposes.
It is not so hard and can be a pleasure to tell people what you see. It's harder to speak of what you think you see, what you think is going on and can't prove or defend with data or numbers. That can get tricky. It involves hunches. But here goes.
I think there is an unspoken subtext in our national political culture right now. In fact I think it's a subtext to our society. I think that a lot of people are carrying around in their heads, unarticulated and even in some cases unnoticed, a sense that the wheels are coming off the trolley and the trolley off the tracks. That in some deep and fundamental way things have broken down and can't be fixed, or won't be fixed any time soon. That our pollsters are preoccupied with "right track" and "wrong track" but missing the number of people who think the answer to "How are things going in America?" is "Off the tracks and hurtling forward, toward an unknown destination."
I'm not talking about "Plamegate." As I write no indictments have come up. I'm not talking about "Miers." I mean . . . the whole ball of wax. Everything. Cloning, nuts with nukes, epidemics; the growing knowledge that there's no such thing as homeland security; the fact that we're leaving our kids with a bill no one can pay. A sense of unreality in our courts so deep that they think they can seize grandma's house to build a strip mall; our media institutions imploding--the spectacle of a great American newspaper, the New York Times, hurtling off its own tracks, as did CBS. The fear of parents that their children will wind up disturbed, and their souls actually imperiled, by the popular culture in which we are raising them. Senators who seem owned by someone, actually owned, by an interest group or a financial entity. Great churches that have lost all sense of mission, and all authority. Do you have confidence in the CIA? The FBI? I didn't think so.
But this recounting doesn't quite get me to what I mean. I mean I believe there's a general and amorphous sense that things are broken and tough history is coming.
Let me focus for a minute on the presidency, another institution in trouble. In the past I have been impatient with the idea that it's impossible now to be president, that it is impossible to run the government of the United States successfully or even competently. I always thought that was an excuse of losers. I'd seen a successful presidency up close. It can be done.
But since 9/11, in the four years after that catastrophe, I have wondered if it hasn't all gotten too big, too complicated, too crucial, too many-fronted, too . . . impossible.
I refer to the sheer scope, speed and urgency of the issues that go to a president's desk, to the impossibility of bureaucracy, to the array of impeding and antagonistic forces (the 50-50 nation, the mass media, the senators owned by the groups), to the need to have a fully informed understanding of and stand on the most exotic issues, from Avian flu to the domestic realities of Zimbabwe.
The special prosecutors, the scandals, the spin for the scandals, nuclear proliferation, wars and natural disasters, Iraq, stem cells, earthquakes, the background of the Supreme Court backup pick, how best to handle the security problems at the port of Newark, how to increase production of vaccines, tort reform, did Justice bungle the anthrax case, how is Cipro production going, did you see this morning's Raw Threat File? Our public schools don't work, and there's little refuge to be had in private schools, however pricey, in part because teachers there are embarrassed not to be working in the slums and make up for it by putting pictures of Frida Kalho where Abe Lincoln used to be. Where is Osama? What's up with trademark infringement and intellectual capital? We need an answer on an amendment on homosexual marriage! We face a revolt on immigration.
The range, depth, and complexity of these problems, the crucial nature of each of them, the speed with which they bombard the Oval Office, and the psychic and practical impossibility of meeting and answering even the most urgent of them, is overwhelming. And that doesn't even get us to Korea. And Russia. And China, and the Mideast. You say we don't understand Africa? We don't even understand Canada!
Roiling history, daily dangers, big demands; a government that is itself too big and rolling in too much money and ever needing more to do the latest important, necessary, crucial thing.
It's beyond, "The president is overwhelmed." The presidency is overwhelmed. The whole government is. And people sense when an institution is overwhelmed. Citizens know. If we had a major terrorist event tomorrow half the country--more than half--would not trust the federal government to do what it has to do, would not trust it to tell the truth, would not trust it, period.
It should be noted that all modern presidents face a slew of issues, and none of them have felt in control of events but have instead felt controlled by them. JFK in one week faced the Soviets, civil rights, the Berlin Wall, the southern Democratic mandarins of the U.S. Senate. He had to face Cuba, only 90 miles away, importing Russian missiles. But the difference now, 45 years later, is that there are a million little Cubas, a new Cuba every week. It's all so much more so. And all increasingly crucial. And it will be for the next president, too.
A few weeks ago I was chatting with friends about the sheer number of things parents now buy for teenage girls--bags and earrings and shoes. When I was young we didn't wear earrings, but if we had, everyone would have had a pair or two. I know a 12-year-old with dozens of pairs. They're thrown all over her desk and bureau. She's not rich, and they're inexpensive, but her parents buy her more when she wants them. Someone said, "It's affluence," and someone else nodded, but I said, "Yeah, but it's also the fear parents have that we're at the end of something, and they want their kids to have good memories. They're buying them good memories, in this case the joy a kid feels right down to her stomach when the earrings are taken out of the case."
This, as you can imagine, stopped the flow of conversation for a moment. Then it resumed, as delightful and free flowing as ever. Human beings are resilient. Or at least my friends are, and have to be.
Let me veer back to the president. One of the reasons some of us have felt discomfort regarding President Bush's leadership the past year or so is that he makes more than the usual number of decisions that seem to be looking for trouble. He makes startling choices, as in the Miers case. But you don't have to look for trouble in life, it will find you, especially when you're president. It knows your address. A White House is a castle surrounded by a moat, and the moat is called trouble, and the rain will come and the moat will rise. You should buy some boots, do your work, hope for the best.
Do people fear the wheels are coming off the trolley? Is this fear widespread? A few weeks ago I was reading Christopher Lawford's lovely, candid and affectionate remembrance of growing up in a particular time and place with a particular family, the Kennedys, circa roughly 1950-2000. It's called "Symptoms of Withdrawal." At the end he quotes his Uncle Teddy. Christopher, Ted Kennedy and a few family members had gathered one night and were having a drink in Mr. Lawford's mother's apartment in Manhattan. Teddy was expansive. If he hadn't gone into politics he would have been an opera singer, he told them, and visited small Italian villages and had pasta every day for lunch. "Singing at la Scala in front of three thousand people throwing flowers at you. Then going out for dinner and having more pasta." Everyone was laughing. Then, writes Mr. Lawford, Teddy "took a long, slow gulp of his vodka and tonic, thought for a moment, and changed tack. 'I'm glad I'm not going to be around when you guys are my age.' I asked him why, and he said, 'Because when you guys are my age, the whole thing is going to fall apart.' "
Mr. Lawford continued, "The statement hung there, suspended in the realm of 'maybe we shouldn't go there.' Nobody wanted to touch it. After a few moments of heavy silence, my uncle moved on."
Lawford thought his uncle might be referring to their family--that it might "fall apart." But reading, one gets the strong impression Teddy Kennedy was not talking about his family but about . . . the whole ball of wax, the impossible nature of everything, the realities so daunting it seems the very system is off the tracks.
And--forgive me--I thought: If even Teddy knows . . .
If I am right that trolley thoughts are out there, and even prevalent, how are people dealing with it on a daily basis?
I think those who haven't noticed we're living in a troubling time continue to operate each day with classic and constitutional American optimism intact. I think some of those who have a sense we're in trouble are going through the motions, dealing with their own daily challenges.
And some--well, I will mention and end with America's elites. Our recent debate about elites has had to do with whether opposition to Harriet Miers is elitist, but I don't think that's our elites' problem.
This is. Our elites, our educated and successful professionals, are the ones who are supposed to dig us out and lead us. I refer specifically to the elites of journalism and politics, the elites of the Hill and at Foggy Bottom and the agencies, the elites of our state capitals, the rich and accomplished and successful of Washington, and elsewhere. I have a nagging sense, and think I have accurately observed, that many of these people have made a separate peace. That they're living their lives and taking their pleasures and pursuing their agendas; that they're going forward each day with the knowledge, which they hold more securely and with greater reason than nonelites, that the wheels are off the trolley and the trolley's off the tracks, and with a conviction, a certainty, that there is nothing they can do about it.
I suspect that history, including great historical novelists of the future, will look back and see that many of our elites simply decided to enjoy their lives while they waited for the next chapter of trouble. And that they consciously, or unconsciously, took grim comfort in this thought: I got mine. Which is what the separate peace comes down to, "I got mine, you get yours."
You're a lobbyist or a senator or a cabinet chief, you're an editor at a paper or a green-room schmoozer, you're a doctor or lawyer or Indian chief, and you're making your life a little fortress. That's what I think a lot of the elites are up to.
Not all of course. There are a lot of people--I know them and so do you--trying to do work that helps, that will turn it around, that can make it better, that can save lives. They're trying to keep the boat afloat. Or, I should say, get the trolley back on the tracks.
That's what I think is going on with our elites. There are two groups. One has made a separate peace, and one is trying to keep the boat afloat. I suspect those in the latter group privately, in a place so private they don't even express it to themselves, wonder if they'll go down with the ship. Or into bad territory with the trolley.
Ms. Noonan is a contributing editor of The Wall Street Journal and author of "John Paul the Great: Remembering a Spiritual Father," forthcoming in November from Penguin, which you can preorder from the OpinionJournal bookstore. Her column appears Thursdays.
Poudrin*
n.*poudrin:
small crystals of ice
Frozen wild blueberry leaves, near Réservoir Taureau, Québec, Canada.
Note: This was captured north of St-Michel-des-Saints, which is 220 kilometers north of Montréal. This is why, there was frost and snow already.
Uploaded by imapix
small crystals of ice
Frozen wild blueberry leaves, near Réservoir Taureau, Québec, Canada.
Note: This was captured north of St-Michel-des-Saints, which is 220 kilometers north of Montréal. This is why, there was frost and snow already.
Uploaded by imapix
Moraine Lake
Taken in Banff National Park, Alberta, Canada.
Highly recommended if you have never been there. The lake is really this color. One of my favorite pictures.
This shot is for Baby Dove (for showing me pictures of Maroon Bells) and Shortcake26 (for her cool pictures).
Highly recommended if you have never been there. The lake is really this color. One of my favorite pictures.
This shot is for Baby Dove (for showing me pictures of Maroon Bells) and Shortcake26 (for her cool pictures).
Abortion Case May Be Central in Confirmation - New York Times
Abortion Case May Be Central in Confirmation - New York Times
November 1, 2005
A Major Decision
Abortion Case May Be Central in Confirmation
By LINDA GREENHOUSE
WASHINGTON, Oct. 31 - The 1991 abortion case on which the confirmation of Judge Samuel A. Alito Jr. to the Supreme Court may hinge arrived at his Philadelphia-based federal appeals court at a moment of great ferment in the development of abortion law.
The Supreme Court's 7-to-2 majority for abortion rights, as expressed in the 1973 Roe v. Wade opinion, had eroded to the vanishing point. The center of gravity was held by Justice Sandra Day O'Connor, whose position was difficult to parse and appeared to be evolving toward an uncertain destination.
The question facing Judge Alito and his colleagues on a three-judge appellate panel was the validity of a 1989 Pennsylvania law that placed various obstacles in the path of women seeking abortions.
All three judges agreed that most of the provisions were constitutional, as the Supreme Court itself eventually did. But on one important point, a requirement that a married woman notify her husband before obtaining an abortion, Judge Alito found himself at odds with his two colleagues, and ultimately with the Supreme Court's ruling, which sparked a debate on the high court that remains unresolved today.
The appeals court judges anticipated the Supreme Court's imminent adoption of Justice O'Connor's test for whether a regulation placed an "undue burden" on a woman seeking to exercise her constitutional right to terminate a pregnancy.
That was not as strict a test as the Supreme Court had adopted in Roe v. Wade, but it was still a test with teeth. Just the previous year, Justice O'Connor had joined the court's four most liberal members to rule that a law that required teenagers seeking abortions to notify both parents, and that did not provide the alternative of seeking permission from a judge, was unconstitutional.
The only dispute on the United States Court of Appeals for the Third Circuit was how to apply Justice O'Connor's "undue burden" test to the spousal notification provision of the Pennsylvania's Abortion Control Act.
Judge Alito's two colleagues, Judges Walter K. Stapleton and Collins J. Seitz, surmised that Justice O'Connor, casting the controlling vote on the Supreme Court, would find this provision unconstitutional.
They noted that most women seeking abortions were unmarried, and thus unaffected by the provision, and that among married women, most chose to involve their husbands in the abortion decision. But for those married women who feared the consequences of telling their husbands, the two judges said, the burden was indeed severe and failed to meet the test.
Judge Alito disagreed. The number of women who would be adversely affected by the provision, admittedly small, was unknown, he said, and the evidence of likely impact was insufficient to provide for striking down a new law on its face, before its impact could be tested and demonstrated. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.
Judge Alito's dissenting opinion went on to note that "needless to say, 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." But the Pennsylvania legislature took that concern into account, he said, in writing into the law an exception for a woman who "has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Further, he said, the law would be "difficult to enforce and easy to evade," because it required no proof beyond a woman's word that she had notified her husband.
The provision survived his understanding of the undue burden test, Judge Alito said, adding that "the Pennsylvania legislature presumably decided that the law on balance would be beneficial" and "we have no authority to overrule that legislative judgment even if we deem it 'unwise' or worse."
The Supreme Court's decision the next year, in Planned Parenthood of Southeastern Pennsylvania v. Casey, proved him wrong. The 5-to-4 majority, which included Justice O'Connor, struck down the notice requirement as an undue burden on those few women whom it would place at risk.
A new abortion case to be argued on Nov. 30, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, poses a variant of the same question. The federal appeals court in Boston extrapolated from the Casey decision and struck down a New Hampshire parental-notification requirement for minors seeking abortions on the ground that because its lack of a provision for a health emergency would place a severe burden on some fraction of teenagers, the burden was "undue" for all.
Backed by the Bush administration, the state is arguing that the lower courts overreached in striking down the law, which was passed in 2003, before it had a chance to go into effect. In fact, the administration is arguing that the likelihood of an unconstitutional application of the law is so remote that it should survive scrutiny at this stage even with the approach the Supreme Court took in the Casey decision.
While the New Hampshire law lacks the explicit health exception that the Supreme Court's abortion precedents have required, the state argues that doctors and judges would apply the parental notice requirement sensibly and that "minors face no risk that doctors will not do what is best for their patients."
If Judge Alito is confirmed, he will vote in this case only if Justice O'Connor has cast the deciding vote, and then only if the court decides after she leaves the bench to break the tie by rearguing the case.
November 1, 2005
A Major Decision
Abortion Case May Be Central in Confirmation
By LINDA GREENHOUSE
WASHINGTON, Oct. 31 - The 1991 abortion case on which the confirmation of Judge Samuel A. Alito Jr. to the Supreme Court may hinge arrived at his Philadelphia-based federal appeals court at a moment of great ferment in the development of abortion law.
The Supreme Court's 7-to-2 majority for abortion rights, as expressed in the 1973 Roe v. Wade opinion, had eroded to the vanishing point. The center of gravity was held by Justice Sandra Day O'Connor, whose position was difficult to parse and appeared to be evolving toward an uncertain destination.
The question facing Judge Alito and his colleagues on a three-judge appellate panel was the validity of a 1989 Pennsylvania law that placed various obstacles in the path of women seeking abortions.
All three judges agreed that most of the provisions were constitutional, as the Supreme Court itself eventually did. But on one important point, a requirement that a married woman notify her husband before obtaining an abortion, Judge Alito found himself at odds with his two colleagues, and ultimately with the Supreme Court's ruling, which sparked a debate on the high court that remains unresolved today.
The appeals court judges anticipated the Supreme Court's imminent adoption of Justice O'Connor's test for whether a regulation placed an "undue burden" on a woman seeking to exercise her constitutional right to terminate a pregnancy.
That was not as strict a test as the Supreme Court had adopted in Roe v. Wade, but it was still a test with teeth. Just the previous year, Justice O'Connor had joined the court's four most liberal members to rule that a law that required teenagers seeking abortions to notify both parents, and that did not provide the alternative of seeking permission from a judge, was unconstitutional.
The only dispute on the United States Court of Appeals for the Third Circuit was how to apply Justice O'Connor's "undue burden" test to the spousal notification provision of the Pennsylvania's Abortion Control Act.
Judge Alito's two colleagues, Judges Walter K. Stapleton and Collins J. Seitz, surmised that Justice O'Connor, casting the controlling vote on the Supreme Court, would find this provision unconstitutional.
They noted that most women seeking abortions were unmarried, and thus unaffected by the provision, and that among married women, most chose to involve their husbands in the abortion decision. But for those married women who feared the consequences of telling their husbands, the two judges said, the burden was indeed severe and failed to meet the test.
Judge Alito disagreed. The number of women who would be adversely affected by the provision, admittedly small, was unknown, he said, and the evidence of likely impact was insufficient to provide for striking down a new law on its face, before its impact could be tested and demonstrated. "I cannot believe that a state statute may be held facially unconstitutional simply because one expert testifies that in her opinion the provision would harm a completely unknown number of women," he wrote.
Judge Alito's dissenting opinion went on to note that "needless to say, 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." But the Pennsylvania legislature took that concern into account, he said, in writing into the law an exception for a woman who "has reason to believe that notification is likely to result in the infliction of bodily injury upon her." Further, he said, the law would be "difficult to enforce and easy to evade," because it required no proof beyond a woman's word that she had notified her husband.
The provision survived his understanding of the undue burden test, Judge Alito said, adding that "the Pennsylvania legislature presumably decided that the law on balance would be beneficial" and "we have no authority to overrule that legislative judgment even if we deem it 'unwise' or worse."
The Supreme Court's decision the next year, in Planned Parenthood of Southeastern Pennsylvania v. Casey, proved him wrong. The 5-to-4 majority, which included Justice O'Connor, struck down the notice requirement as an undue burden on those few women whom it would place at risk.
A new abortion case to be argued on Nov. 30, Ayotte v. Planned Parenthood of Northern New England, No. 04-1144, poses a variant of the same question. The federal appeals court in Boston extrapolated from the Casey decision and struck down a New Hampshire parental-notification requirement for minors seeking abortions on the ground that because its lack of a provision for a health emergency would place a severe burden on some fraction of teenagers, the burden was "undue" for all.
Backed by the Bush administration, the state is arguing that the lower courts overreached in striking down the law, which was passed in 2003, before it had a chance to go into effect. In fact, the administration is arguing that the likelihood of an unconstitutional application of the law is so remote that it should survive scrutiny at this stage even with the approach the Supreme Court took in the Casey decision.
While the New Hampshire law lacks the explicit health exception that the Supreme Court's abortion precedents have required, the state argues that doctors and judges would apply the parental notice requirement sensibly and that "minors face no risk that doctors will not do what is best for their patients."
If Judge Alito is confirmed, he will vote in this case only if Justice O'Connor has cast the deciding vote, and then only if the court decides after she leaves the bench to break the tie by rearguing the case.
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