Why Not “Wife Notification” Laws?

January 19, 2006

Politicians and reporters have been discussing Judge Alito’s vote in Casey, upholding a husband notification requirement when a wife seeks an abortion, in terms his views on Roe. In the hearings, Judge Alito finessed the worries of Roe supporters by stating that it was reasonable at the time of his vote to interpret the “undue burden” standard, formulated by Justice O’Connor, as permitting a policy that posed a barrier only to a small number of women. He also claimed that the exception the law granted to women who feared physical injury from their husbands seemed to him then to be adequate.

But Judge Alito’s vote in Casey raises issues other than the correct interpretation of the “undue burden” standard or his views on abortion. One of the main issues it raises is whether the government can intrude upon the marital relationship with respect to decisions involving consensual sexual acts and their procreative consequences. Griswold v. Connecticut (1965) established that such intrusion was a violation of our constitutionally protected right to privacy in such matters. It may be that most Americans think that a woman should notify her husband before she gets an abortion, as John Tierney claims (NY Times, 1/10/06). But what Griswold established (and Lawrence v. Texas re-established) is that the decisions adults make regarding consensual sexual acts and their procreative consequences are beyond societal and governmental interference.

One thing I find upsetting about “husband notification” requirements is that they presume that a husband has an interest in any fetus his wife may have conceived. Yet, consider the case of a woman who has conceived a fetus with someone other than her husband. I can imagine a number of circumstances under which this might happen, some of which I would find abhorrent and some of which I would find acceptable. The moral issues in such cases are complex, and so we leave it for the individuals involved to navigate them. I can also imagine cases in which a husband conceives a fetus with a woman not his wife. Should the government require that he inform his wife of this fetus’s existence and his plans for it? Would those who support husband notification requirements for women seeking abortions support wife notification requirements for husbands who seek abortions for their mistresses? Would Judge Alito support such requirements? I somehow doubt it.

If we are not willing to support wife notification requirements of the sort I’ve suggested, then we should ask ourselves why. Are we more tolerant of adultery when men commit it than when women do? Do we grant a wife the same right to know about her husband’s acts of conception as we grant him about hers? Are we willing to give husbands the exclusive right to their wife’s reproductive capacities, but not willing to give wives the same right? It’s hard to imagine reasons for rejecting wife notification requirements while supporting husband notification that are not sexist in some way. But if we reject wife notification requirements because they allow the government to interfere with decisions that we think citizens are best suited to make for themselves, then we should reject husband notification for the same reasons.

It bothers me that Judge Alito would not see the perniciousness of husband notification policies for the way they give men and women asymmetrical rights and privileges in marriage. His failure to see this makes me think that he is not outside of the mainstream only with respect to abortion, but also with respect to women’s fundamental equality.