Samuel Alito’s America(contradicted “well-recognized rules of stat constru

[papau]

http://thinkprogress.org/2005/10/31/samuel-alitos-america/

Samuel Alito’s America

ALITO WOULD OVERTURN ROE V. WADE: In his dissenting opinion in Planned Parenthood v. Casey, Alito concurred with the majority in supporting the restrictive abortion-related measures passed by the Pennsylvania legislature in the late 1980’s. Alito went further, however, saying the majority was wrong to strike down a requirement that women notify their spouses before having an abortion. The Supreme Court later rejected Alito’s view, voting to reaffirm Roe v. Wade.

ALITO WOULD ALLOW RACE-BASED DISCRIMINATION: Alito dissented from a decision in favor of a Marriott Hotel manager who said she had been discriminated against on the basis of race. The majority explained that Alito would have protected racist employers by “immuniz an employer from the reach of Title VII if the employer’s belief that it had selected the ‘best’ candidate was the result of conscious racial bias.”

ALITO WOULD ALLOW DISABILITY-BASED DISCRIMINATION: In Nathanson v. Medical College of Pennsylvania, the majority said the standard for proving disability-based discrimination articulated in Alito’s dissent was so restrictive that “few if any…cases would survive summary judgment.”

ALITO WOULD STRIKE DOWN THE FAMILY AND MEDICAL LEAVE ACT: The Family and Medical Leave Act (FMLA) “guarantees most workers up to 12 weeks of unpaid leave to care for a loved one.” The 2003 Supreme Court ruling upholding FMLA essentially reversed a 2000 decision by Alito which found that Congress exceeded its power in passing the law.

ALITO SUPPORTS UNAUTHORIZED STRIP SEARCHES: In Doe v. Groody, Alito agued that police officers had not violated constitutional rights when they strip searched a mother and her ten-year-old daughter while carrying out a search warrant that authorized only the search of a man and his home.

ALITO HOSTILE TOWARD IMMIGRANTS: In two cases involving the deportation of immigrants, the majority twice noted Alito’s disregard of settled law. In Dia v. Ashcroft, the majority opinion states that Alito’s dissent “guts the statutory standard” and “ignores our precedent.” In Ki Se Lee v. Ashcroft, the majority stated Alito’s opinion contradicted “well-recognized rules of statutory construction.”

[izzie]

1. Not sure about the husband thing.

I come from an age when husbands did have power in what you could do even when a doctor said you should do this. I waited over 4 years for a husband to sign a paper when a doctor told me to do some thing. I was also some mad about it. It was not an abortion. I just could not believe this man had this right over my body and either did the doctor but there I was waiting.

[papau]

2. Quebec Family Law and Louisiana French based common law give

males control over females - wife and kids.

I do not believe that this concept exists in the rest of Canada or in the other 49 states.

[stevebreeze]

5. My wife had her tubes tied, Dr tried to insist I ok it.

Somehow it didn't fly with my wife. She did have the procedure done, without my okey dokey to the Dr.

[Name removed]

3. Deleted message

Message removed by moderator. Click here to review the message board rules.

[ManiacJoe]

4. Having read some of the mentioned rulings,

those summaries leave a lot to be desired in accuracy.

[Czolgosz]

8. I've read those rulings. Do you think this is more fair?

Judge Sam Alito is unqualified to serve on the Supreme Court for several reasons.

First, Alito has a history of ethical violations and misleading Congress. In 1990, when Alito was seeking US Senate approval for his nomination to be an appeals court judge, he was asked to answer the same questions that other judicial nominees are asked in written questionnaire. Specifically, Alito was asked how he would resolve potential conflicts of interest, and he responded: "I do not believe that conflicts of interest relating to my financial interests are likely to arise. I would, however, disqualify myself from any cases involving the Vanguard companies." When a Vanguard case later came before Alito he did not disqualify himself as he promised Congress he would; instead, he broke the promise to Congress and ruled in favor of Vanguard without ever disclosing his ownership of approximately a half million to a million dollars in Vanguard.

Alito's failure to disclose this obvious conflict of interest and his failure to disqualify himself puts Alito in an extreme fringe of judges who take an out-of-the-mainstream lax view of the judicial ethics rules. However, Alito's failure to disqualify himself in violation of his express contrary promise to Congress puts Alito in an ethics category all by himself: before Alito there was no prior history of judges failing to disclose such conflicts and then failing to disqualify themselves after they had specifically acknowledged the conflict and then promised Congress to disqualify themselves. Alito's ethical breach is an extreme one-of-a-kind breach of judicial ethics.

Second, Alito's views are very extreme and far outside the judicial mainstream, and his legal history demonstrates a pattern of judicial activism where Alito has repeatedly chosen to ignore decades of prior court decisions to reach his own politically-favored result. For example, the scope of congressional authority to regulate nationwide solutions for nationwide problems is an issue that was decided about 70 years ago. But Judge Alito would ignore these past 70 years and thousands of well-decided legal precedents to re-open this settled legal matter because it does not suit his personal philosophy.

In Alito's dissenting opinion in United States v. Rybar, 103 F.3d 273 (3d Cir. 1996), he ignored these past 70 years of judicial precedents to reach the extremist ruling that Congress does not have the authority to regulate the ownership of submachine guns. Fortunately, even Alito's Republican colleagues on the court of appeals disagreed with this type of judicial activism and the Republican-dominated Supreme Court also rejected Alito's extreme view.

The same out-of-the-mainstream pre-1937 view of congressional authority was at the heart of Alito's poor decision to rule that Congress did not have the authority to require state employers to comply with the Family Medical Leave Act in Chittister v. Department of Community and Economic Development. Again, the Supreme Court was there to keep Alito's judicial activism in check by overruling his extreme views against the congressional power to enforce the Family Medical Leave Act across the nation, but there would be no higher court to check his extremism if Alito was promoted to the Supreme Court.

The same judicial arrogance lies at the heart of Alito's dissenting opinion in Planned Parenthood v. Casey, 947 F.2d 682 (3d Cir. 1991), where he once again demonstrated his willingness to ignore well-established judicial precedents to re-write the accepted view of the Constitution simply because his personal philosophy runs contrary to the established rule of law. Again, Alito's Republican colleagues on the court of appeals disagreed with his judicial activism and the Republican-dominated Supreme Court rejected his extreme view.

Judge Alito has also demonstrated equally extremist views on gender and racial discrimination where he would make it nearly impossible to police corporate discrimination if the law followed his dissenting views in Sheridan v. Dupont, 74 F.3d 1439 (3d Cir. 1996), and Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997). Here are two more cases where even the Republicans on Alito's own court of appeals disagreed with his extreme views.

If anyone was left to wonder whether Alito's out-of-the-mainstream decisions are the result of his personal views, this issue was resolved by the uncovering of Alito's application to work for Ed Meese, where Alito said he was "particularly proud" of his "contributions in recent cases in which the government has argued in the Supreme Court that racial and ethnic quotas should not be allowed and that the Constitution does not protect a right to an abortion."

Finally, do not believe the Republican effort to rewrite congressional history regarding the filibuster of judicial nominees and the Supreme Court. In 1965, the Senate easily confirmed Judge Abe Fortas to the Supreme Court. Just three years later, when President Lyndon Johnson nominated Fortas to serve as Chief Justice, there was obviously no question about his qualifications because Fortas was already serving on the Supreme Court. Based only on Fortas's judicial views, however, the Senate Republicans launched a successful four-day filibuster of Fortas's nomination in September of 1968. Whenever you hear some Senator saying that there is no history of filibustering a Supreme Court nomination based on his out-of-the-mainstream judicial views, ask them to look up the front page of the Washington Post from September 26, 1968: "A full-dress Republican-led filibuster broke out in the Senate yesterday against a motion to call up the nomination of Justice Abe Fortas for Chief Justice." The New York Times ran as similar story that day, and many news outlets around ran the story that week.

Alito should not be confirmed, and if necessary, his nomination should be filibustered.

[happyslug]

9. US vs Rybar (His dissent):

Whole Decision:
http://www.cs.cmu.edu/afs/cs.cmu.edu/user/wbardwel/public/nfalist/us_v_rybar.txt

My comments on Alito's dissent. I would be happier if Alito had dissented on the Second Amendment grounds, but while the MAJORITY opinion dismisses The Second Amendment claim Alito does not even address the Second Amendment. Now the Third Circuit has taken a hard view of the Supreme Court Miller Case saying Miller upholds COMPLETELY the right of the Federal Government to regulate and ban firearms despite the Second Amendment, a position I do NOT think is supported by Miller, the text of the Second, or the history behind the Second and thus I disagree with the third Circuit but the Second is NOT THE ISSUE IN ALITO's DISSENT not the issue in my comments here.

Alito's opinion is strictly on the issue of Interstate Commerce and that under the Interstate Commerce clause of the US Constitution the Federal Government can not regulate Firearms or any other item sold locally. While I believed the Second Amendment prohibits the Federal Government from regulating firearms (with restrictions for people who are felons, insane or otherwise a danger to themselves or Others AND that restriction of pistols are permitted under the Second). Alito does NOT even address the Second, instead Alito is using this Machine Gun Case to restrict Congress's power to restrict sales within a state, a position the Supreme Court rejected in the late 1930s and except for Lopez (Which Alito cites) has rejected ever since. Under Alito's interpretation of the Commerce Clause he would take Lopez from its very limited exception to the power of Congress to a situation we had from 1900 till the late 1930s, with the Court setting economic policy for the US instead of Congress. This is frightening and has NOTHING to do with firearms or Machine gun per se, they are just the object of Interstate Commerce NOT a protected item under Second Amendment.

Here is Alito's Dissent:

ALITO, Circuit Judge, dissenting:

Was United States v. Lopez, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995), a constitutional freak? Or did it signify that the Commerce Clause still imposes some meaningful
limits on congressional power?

The statutory provision challenged in this case, the portion of 18 U.S.C. section 922(o) that generally prohibits the purely intrastate possession of a machine gun, is the
closest extant relative of the statute struck down in Lopez, 18 U.S.C. section 922(q)(1)(A), which made it a federal offense knowingly to possess a firearm in a school zone. Both are criminal statutes that regulate the purely intrastate possession of firearms. Both statutes, departing from the mold of prior federal criminal statutes governing firearms possession, lack a jurisdictional element, that is, they do not require federal prosecutors to prove that the firearms were possessed in or affecting interstate commerce. Compare, e.g., 18 U.S.C. section 922(d). And in passing both statutes, Congress made no findings regarding the link between the intrastate activity regulated by these laws and interstate commerce. If Lopez does not govern this case, then it may well be a precedent that is strictly limited to its own peculiar circumstances. That may be
what the majority here would like, see Maj. Op. at ---- (citation omitted) ("challenges based on Lopez 'lmost invariably' fail"), but our responsibility is to apply Supreme Court precedent. That responsibility, it seems to me, requires us to invalidate the statutory provision at issue here in its present form.

This would not preclude adequate regulation of the private possession of machine guns. Needless to say, the Commerce Clause does not prevent the states from regulating machine gun possession, as all of the jurisdictions within our circuit have done. See Del.Code Ann. tit. 11, section 1444 (1995); N.J.Stat.Ann. section 2C:39-5a (West 1995); 18 Pa.Cons.Stat.Ann. section 908 (1996); V.I.Code Ann. tit. 14, section 2253 (1994). Moreover, the statute challenged here would satisfy the demands of the Commerce Clause if Congress simply added a jurisdictional element--a common feature of federal laws in this field and one that has not posed any noticeable problems for federal law enforcement. In addition, as I explain below, 18 U.S.C. section 922(o) might be sustainable in its current form if Congress made findings that the purely intrastate possession of machine guns has a substantial effect on interstate commerce or if Congress or the Executive assembled empirical evidence documenting such a link. If, as the government and the majority baldly insist, the purely intrastate possession of machine guns has such an effect, these steps are not too much to demand to protect our system of constitutional federalism.

I.

In Lopez, the Supreme Court identified "three broad categories" of legislation permitted under the Commerce Clause:
(1) regulation of "the use of the channels of interstate commerce, (2) regulation and protection of "the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities," and (3) regulation of "activities that substantially affect interstate commerce." --- U.S. at ---- -----, 115 S.Ct. at 1629-30.

The majority in this case quite properly focuses itsanalysis primarily on the third of these categories--Congress's power to regulate those "activities that substantially affect interstate commerce"--because this is plainly the category under which 18 U.S.C. section 922(o) must be analyzed. But panels in the Fifth, Sixth, Ninth, and Tenth Circuits have tried to shoehorn 18 U.S.C section 922(o) into the first or second categories, and the majority cannot bring itself to acknowledge these courts' errors. Therefore, without embracing or repudiating the reasoning of these other courts, the majority writes:

Whatever the category relied on, it is telling that each of our sister circuits has found that the regulation of machine gun transfer and possession comes within Congress' power to legislate under the Commerce Clause. That uniform result confirms the observation made in United States v. Bell, 70 F.3d 495, 497 (7th Cir.1995), that, for criminal defendants, "t appears that United States v. Lopez has raised many false hopes," and that challenges based on Lopez "lmost invariably" fail.

Maj. Op. at ---- - ----. This approach requires me to discuss the first two categories and explain why I believe they areclearly inapplicable here.

II.

Regulation of the channels of commerce. As the majority notes (Maj. Op. at ----), panels in the Fifth, Sixth, and Ninth Circuits have upheld 18 U.S.C. section 922(o) as a regulation of
"the use of the channels of interstate commerce." Lopez, --- U.S. at ----, 115 S.Ct. at 1629. See United States v. Beuckelaere, 91 F.3d 781, 783 (6th Cir.1996); United States v. Rambo, 74 F.3d 948, 951-52 (9th Cir.), cert. denied, --- U.S. ----, 117 S.Ct. 72, 136 L.Ed.2d 32 (1996); United States v. Kirk, 70 F.3d 791, 796 (5th Cir.1995), reh'g en banc granted, 78 F.3d 160 (5th Cir.1996). However, these courts seem to me to have fundamentally misunderstood the first category set out in
Lopez.

To illustrate the meaning of this category, Lopez quoted a sentence from Caminetti v. United States, 242 U.S. 470, 37 S.Ct. 192, 61 L.Ed. 442 (1917), in which the Court upheld the constitutionality of the so-called White Slave Traffic Act, which prohibited the interstate transportation of women for prostitution or other immoral purposes. The sentence from Caminetti that was partially quoted in Lopez was as follows:

The transportation of passengers in interstate commerce, it has long been settled, is within the regulatory power of Congress, under the commerce clause of the Constitution, and the authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.

Lopez, --- U.S. at ----, 115 S.Ct. at 1629, citing Caminetti, 242 U.S. at 491, 37 S.Ct. at 196-97. Lopez also cited United States v. Darby, 312 U.S. 100, 114, 61 S.Ct. 451, 457, 85 L.Ed. 609
(1941), where the Court wrote:

Congress, following its own conception of public policy concerning the restrictions which may appropriately be imposed on interstate commerce, is free to exclude from the commerce articles whose use in the states for which they are destined it may conceive to be injurious to the public health, morals, or welfare, even though the state has not sought to regulate their use.

In support of this statement, the Darby Court cited (id.), among other cases, Champion v. Ames, 188 U.S. 321, 23 S.Ct. 321, 47 L.Ed. 492 (1903) (the "Lottery Case"), which upheld a law prohibiting the interstate shipment of lottery tickets, and Hipolite Egg Co. v. United States, 220 U.S. 45, 31 S.Ct. 364, 55 L.Ed. 364 (1911), which sustained a law banning the interstate shipment of adulterated food. Thus, it seems clear that the first category of Commerce Clause authority outlined in Lopez concerns Congress's power to regulate, for economic or social purposes, the passage in interstate commerce of either people or goods.

The statute at issue in this case, 18 U.S.C. section 922(o), would fall within this category if it barred the interstate shipment of machine guns, but of course that is not what it does. Instead, it goes much farther and reaches the wholly intrastate possession of machine guns. I therefore agree with the Seventh Circuit, which, while sustaining 18 U.S.C. section 922(o) under the third Lopez category, candidly acknowledged that it did not fall within the first. United States v. Kenney, 91 F.3d 884, 889 (7th Cir.1996); see also Beuckelaere, 91 F.3d at 787-88 (Suhrheinrich, J., dissenting); Kirk, 70 F.3d at 799 (Jones, J., dissenting).

In holding that 18 U.S.C. section 922(o) falls within the first category, the Fifth, Sixth, and Ninth Circuits reasoned chiefly as follows. This statute, while generally banning the private possession of machine guns, does not apply to machine guns lawfully possessed prior to its enactment in 1986. See 18 U.S.C. section 922(o)(2)(B). Therefore, "there could be no unlawful possession under section 922(o) without an unlawful transfer." Kirk, 70 F.3d at 796. Accordingly, "the limited ban on possession of machineguns must be seen as a necessary and proper measure meant to allow law enforcement to detect illegal transfers where the banned commodity has come to rest: in the
receiver's possession. In effect, the ban on such possession is an attempt to control the interstate market for machineguns by creating criminal liability for those who would constitute the
demand-side of the market, i.e., those who would facilitate illegal transfer out of desire to acquire mere possession." Id.; see also Beuckelaere, 91 F.3d at 783; Rambo, 74 F.3d at 951-52.

There are numerous flaws in this analysis. First (but least important), it is not true that every possession criminalized by 18 U.S.C. section 922(o) must be preceded by an "unlawful transfer." A lawfully possessed semiautomatic weapon could be converted by its owner into an automatic. See Kenney, 91 F.3d at 889. The statute may also reach a person who initially possesses a machine gun lawfully pursuant to 18 U.S.C. section 922(o)(2)(A), which permits possession under governmental authority, but who exceeds the scope of that authority or retains possession after it has terminated. Second and more important, this reasoning seems to confuse an unlawful transfer with an interstate transfer. Even if it were true that every possession made illegal by 18 U.S.C. section 922(o) were preceded by an unlawful transfer, it would not follow that every such possession
is preceded by an interstate transfer, and Congress's authority under the first Lopez category concerns the passage of people and goods in the channels of interstate commerce. Third, insofar as
the Fifth, Sixth, and Ninth Circuits justified 18 U.S.C section 922(o) as an attempt to suppress an interstate market by banning purely intrastate possession, their arguments fall within the
third Lopez category, i.e., Congress's authority to regulate an intrastate activity (intrastate possession) that has a substantial effect on interstate commerce (the interstate market). The Seventh Circuit recognized this point when it wrote:

lthough it may be true that Congress must regulate intrastate transfers and even mere possessions of machine guns in aid of its prerogative of preventing the misuse of the channels of interstate commerce, the regulation still regulates much more than the channels of commerce. This rationale is therefore an aspect of Congress's broader power to regulate things "affecting" interstate commerce; we must look further, in light of Lopez, to confirm the existence of a rational and substantial basis underlying its power to do so.

Kenney, 91 F.3d at 889.

III.

Regulation of activities that threaten the instrumentalities of interstate commerce or persons or things in interstate commerce. In Lopez, the Court wrote that "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." --- U.S. at ----, 115 S.Ct at 1629. The Court cited two cases involving the exercise of this power. The first, Houston, E. & W. Tex. Ry. v. United States, 234 U.S. 342, 34 S.Ct. 833, 58 L.Ed. 1341 (1914), (the "Shreveport Rate Cases") in which the Court upheld the regulation of intrastate railroad rates on the theory that this regulation was needed to protect "the security of traffic," "the efficiency of the interstate service," and "the maintenance of conditions under which interstate commerce may be conducted upon fair terms and without molestation or hindrance." Id. at 351, 34 S.Ct. at 836. The second Southern Ry. v. United States, 222 U.S. 20, 32 S.Ct. 2, 56 L.Ed. 72 (1911), upheld federal safety regulations as applied to trains and railroad cars travelling intrastate on a railroad line that was a highway of interstate commerce. The Court reasoned that the "absence of appropriate safety appliances" from the intrastate trains and cars was "a menace," not only to those trains and cars, but also to those moving in interstate commerce. Id. at 27, 32 S.Ct. at 4. See United States v. Bishop, 66 F.3d 569, 597-98 (3d Cir.1995)(Becker, J., concurring in part and dissenting in part).

In addition to these two cases, the Lopez Court cited two statutes that had been listed in Perez v. United States, 402 U.S. 146, 150, 91 S.Ct. 1357, 1359-60, 28 L.Ed.2d 686 (1971), as falling within this category of congressional authority. See Lopez, --- U.S. at ----, 115 S.Ct. at 1629. The statutes were 18 U.S.C section 32, which, at the time of Perez, made it a crime to damage or destroy an aircraft that was used in interstate commerce, and 18 U.S.C. section 659, which criminalizes thefts from interstate shipments.

Based on the Lopez Court's description of this second category of congressional authority and on the examples that it provided, it is apparent that this authority reaches threats to "the instrumentalities" of interstate commerce, i.e., the means of conveying people and goods across state lines, such as airplanes and trains. This power also reaches threats to people and goods travelling in interstate commerce, such the theft of goods moving interstate and the setting of rates that could affect interstate trade.

Title 18 U.S.C. section 922(o) would fall within this second Lopez category if Congress had banned the intrastate possession of machine guns in order to prevent them from being used to damage vehicles travelling interstate, to carry out robberies of goods moving in interstate commerce, or to threaten or harm interstate travellers. However, there is no indication that Congress passed 18 U.S.C. section 922(o) for any of these reasons; and neither the government, the majority in this case, nor any of the other courts of appeals have adduced any evidence that this statute is needed for any of these purposes. Thus, I agree with the Seventh Circuit that 18 U.S.C section 922(o) "appears to be an ill fit in the second" Lopez category. Kenney, 91 F.3d at 889.

Although the Sixth and Tenth Circuits upheld 18 U.S.C. section 922(o) under this second category, I find their reasoning elusive. Both courts stressed that machine guns travel in interstate commerce. See Beuckelaere, 91 F.3d at 784 ("Machineguns travel in interstate commerce, posing a threat to local law enforcement, which has a disruptive effect on interstate commerce."); United States v. Wilks, 58 F.3d 1518, 1521 (10th Cir.1995) ("machineguns ... by their nature are 'a commodity ... transferred across state lines for profit by business entities' ")("he interstate flow of machineguns ... is interstate commerce"). But how these assertions show that 18 U.S.C section 922(o) can be sustained under the second Lopez category, I am at a loss to understand. Those machine guns that are actually travelling in interstate commerce may be regulated under the first Lopez category, i.e., Congress may ban them from the channels of interstate commerce altogether or restrict their admission. However, machine guns that are simply possessed intrastate and are not travelling in interstate commerce may not be regulated under the first Lopez category, and as previously explained, unless they are menacing interstate commerce, they do not fall within the second category either.

Accordingly, I think it is clear that "if <18 U.S.C. section 922(o)> is to be sustained," it cannot be under the first or second Lopez categories, but "must be under the third category as a regulation of an activity that substantially affects interstate commerce." Lopez, --- U.S. at ----, 115 S.Ct at 1630.

IV.

Regulation of activities that substantially affect interstate commerce. I come now to the crux of this case, viz., whether 18 U.S.C. section 922(o) can be upheld in its present form and on the present record on the ground that the purely intrastate possession of machine guns substantially affects interstate commerce. As I understand its opinion, the majority advances two separate theories, and I will address each separately.

A. The majority writes:

Just as the Court in Wickard sustained the regulation of wheat intended wholly for home consumption because it was connected to an overall interstate market which it could depress, 317 U.S. at 128-29 <63 S.Ct. at 90-91>, and the Court in Perez sustained the regulation of purely intrastate loansharking because in the aggregate such local loansharking substantially affected interstate commerce, 402 U.S. at 155-57 <91 S.Ct. at 1362-63>, so also section 922(o) can be sustained because it targets the possession of machine guns as a demand-side measure to lessen the stimulus that prospective acquisition would have on the commerce in machine guns.

Maj. Op. at ----. In other words, the majority argues in effect that the private, purely intrastate possession of machine guns has a substantial effect on the interstate machine gun market.

This theory, if accepted, would go far toward converting Congress's authority to regulate interstate commerce into "a plenary police power." Lopez, --- U.S. at ----, 115 S.Ct. at 1633. If there is any sort of interstate market for a commodity--and I think that it is safe to assume that there is some sort of interstate market for practically everything--then the purely intrastate possession of that item will have an effect on that market, and outlawing private possession of the item will presumably have a substantial effect. Consequently, the majority's theory leads to the conclusion that Congress may ban the purely intrastate possession of just about anything. But if Lopez means anything, it is that Congress's power under the Commerce Clause must have some limits. Cf. Charles Fried, Foreword: Revolutions?, 109 HARV.L.REV. 13, 36-37 (1995).

The Lopez Court of course recognized the potential sweep of Wickard, on which the majority's theory is chiefly based, and the Lopez Court sought to place reasonable limits on that theory. Observing that Wickard represents "perhaps the most far reaching example of Commerce Clause authority over interstate activity," the Court noted that Wickard "involved economic activity in a way that the possession of a gun in a school zone does not." --- U.S. at ----, 115 S.Ct. at 1630. The Court then added:

Section 922(q) is a criminal statute that by its terms has nothing to do with 'commerce' or any sort of economic enterprise, however broadly one might define those terms. Section 922(q) is not an essential part of a larger regulation of economic activity, in which the regulatory scheme could be undercut unless the intrastate activity were regulated. It cannot, therefore, be sustained under our cases upholding regulations of activities that arise out of or are connected with a commercial transaction, which viewed in the aggregate, substantially affects interstate commerce.

--- U.S. at ---- - ----, 115 S.Ct. at 1630-31 (footnote omitted).

The activity that the Lopez Court found was not "economic" or "connected with a commercial transaction" was a type of intrastate firearm possession, i.e., the possession of a firearm (including a machine gun) within a school zone. At issue here is another type of purely intrastate firearm possession, i.e., the purely intrastate possession of a machine gun. If the former must be regarded as non-economic and non-commercial, why isn't the same true of the latter? Is possession of a machine gun inherently more "economic" or more "commercial" than possessio nof other firearms? Is the possession of a firearm within a school zone somehow less "economic" and "commercial" than possession elsewhere--say, on one's own property? If there are distinctions of constitutional dimension here, they are too subtle for me to grasp. It seems to me that the most natural reading of Lopez is that the simple possession of a firearm, without more, is not "economic" or "commercial" activity in the same sense as the production of wheat in Wickard and that therefore such possession cannot be regulated under the Wickard theory. Cf. United States v. Bishop, 66 F.3d at 601-02 (Becker, J., concurring in part and dissenting in part).

B. The majority's second theory appears to be that Congress could have rationally concluded that the purely intrastate possession of machine guns increases the incidence of certain crimes--the majority specifically mentions violent crime, racketeering, and drug trafficking--that are of "national concern." See Maj. Op. at ---- - ----. In order to bring this case within the third Lopez category, it is not enough to observe that violent criminals, racketeers, and drug traffickers occasionally use machine guns in committing their crimes and that these crimes have interstate effects. Rather, there must be a reasonable basis for concluding that the regulated activity (the purely intrastate possession of machine guns) facilitates the commission of these crimes to such a degree as to have a substantial effect on interstate commerce.

I take this theory very seriously, but my problem with it is that it rests on an empirical proposition for which neither Congress, the Executive (in the form of the government lawyers who briefed and argued this case), nor the majority has adduced any appreciable empirical proof.

I would view this case differently if Congress as a whole or even one of the responsible congressional committees had made a finding that intrastate machine gun possession, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce. But despite the resources at their command to investigate questions such as this, neither Congress nor any of its committees did so, and indeed Congress never even identified the source of constitutional authority under which 18 U.S.C. section 922(o) was enacted. Of course, Congress is not obligated to make findings. "But to the extent that congressional findings would enable us to evaluate the legislative judgment that the activity in question substantially affected interstate commerce, even though no such substantial effect was visible to the naked eye, they are lacking here." Lopez, --- U.S. at ----, 115 S.Ct. at 1632.

Likewise, the Justice Department, which has been litigating the constitutionality of 18 U.S.C. section 922(o) in courts across the country, has not brought to our attention any studies or reports by federal law enforcement agencies or others that establish that the purely intrastate possession of machine guns has a substantial effect on interstate commerce.

Without assistance from Congress or the Executive, the majority has combed the legislative history of federal firearms legislation going back more than a half century, but in my view the majority has not found anything of significant value for present purposes. The majority cites congressional findings made in connection with prior firearms legislation concerning the problems resulting from the interstate movement of firearms. See Maj. Op. at ---- (emphasis added) (findings that "link both the flow of firearms across state lines and their consequential indiscriminate availability with the resulting violent criminal acts that are beyond the effective control of the states"); Maj. Op. at ---- (emphasis added) ("findings of an extensive interstate commerce in firearms and the need for adequate federal control over such traffic"); Maj. Op. at ---- (emphasis added)(findings emphasizing "the connection between the increasing rate of crime, the growing use of firearms, and interstate firearms traffic )"; Maj. Op. at ---- - ---- (connection between "the interstate flow of firearms the increasing serious crime in this country"). However, the question here is not whether the interstate flow of firearms substantially affects interstate commerce; rather, the question is whether the entirely intrastate possession of machine guns has such an effect, and none of the findings noted above speak to that question. Indeed, Congress had no occasion to consider that question when it made those findings, since none of the laws in connection with which those findings were made reached purely intrastate possession without requiring proof in court of ajurisdictional link.

The remaining underpinnings of the majority's analysis are three snippets from a committee report and one comment made on the floor of the Senate. The committee report, H.R.Rep. No. 495, 99th Cong., 2d Sess. (1986), reprinted in 1986 U.S.C.C.A.N. 1327, concerned a bill, H.R. 4332, 99th Cong., 2d Sess. (1986), that lacked any provision similar to 18 U.S.C. section 922(o). Instead, H.R. 4332 dealt with machine guns by providing (sec. 11) for enhanced penalties for defendants who used or carried a machine gun during and in relation to a federal drug trafficking offense or a federal crime of violence. See 18 U.S.C. section 924(c). This provision did not raise any new Commerce Clause problems, because the statutes creating the underlying federal drug trafficking offenses or crimes of violence had presumably been enacted pursuant to one of the federal government's delegated powers (whether the Commerce Clause or some other provision). Accordingly, the committee had no need to consider the general question of the relationship between machine guns and interstate commerce, much less the specific question of the relationship between intrastate machine gun possession and interstate commerce, and there is no indication that the committee explored either of these topics.

Not surprisingly, however, since H.R. 4332 provided for enhanced penalties in certain cases involving machine gun use, the committee did mention machine guns, and it is upon these fleeting references that the majority relies. The first reference, which appears in a portion of the report captioned "BENEFITS FOR LAW ENFORCEMENT" simply summarizes the enhanced penalty provision. H.R. Rep. 495, supra, at 2, 1986 U.S.C.C.A.N. at 1328. This statement obviously has nothing to do with interstate commerce.

The next reference concerns another bill, H.R. 3155, 99th Cong., 1st Sess.(1985), entitled the "Racketeer Weapons and Violent Crime Control Act of 1985," that contained a provision (sec. 3(b)) very much like 18 U.S.C. section 922(o). The report states that this bill would have "prohibited the transfer and possession of machine guns used by racketeers and drug traffickers for intimidation, murder and protection of drugs and the proceeds of crime." H.R. Rep. 495, supra at 4, 1986 U.S.C.C.A.N. 1330. I do not think that it is reasonable to conclude based on this brief statement that the committee looked into the question and found that there was a substantial link between the conduct prohibited by that bill (the intrastate possession of machine guns) and interstate commerce. After all, the committee did not recommend adoption of the prohibition on intrastate possession contained in H.R. 3155.

The final reference in the committee report concerns "the need for more effective protection of law enforcement officers from the proliferation of machine guns and high-powered 'assault-type' weapons that are increasingly being used by criminals." H.R. Rep. 495, supra at 7, 1986 U.S.C.C.A.N. at 1333. This statement, which lumps together machine guns and assault weapons, says nothing about interstate commerce or particular types of crimes that have substantial interstate effects; and since the committee did not recommend banning the private, intrastate possession of machine guns, the committee presumably felt that the needs of law enforcement would be met by the more limited machine gun provision that it favored. Viewing all three of the statements in the committee report together, I do not think that it is reasonable to conclude that the committee considered or drew any conclusions concerning the relationship between intrastate machine gun possession and interstate commerce.

Nor do I see any value for present purposes in the last bit of congressional material unearthed by the majority, a statement made by Senator Kennedy in a colloquy concerning 18 U.S.C. section 922(o). Voicing opposition to a proposal to "grant amnesty to people who now possess machineguns outside the law," Senator Kennedy stated: "The only thing that has changed about the machine gun situation since the 1968 act, and the limited amnesty granted then, is that machine guns have become a far more serious law enforcement problem." 132 Cong. Rec. 9,602 (1986). This observation by a single member of Congress says nothing about interstate commerce or crimes having substantial interstate effects.

In sum, we are left with no congressional findings and no appreciable empirical support for the proposition that the purely intrastate possession of machine guns, by facilitating the commission of certain crimes, has a substantial effect on interstate commerce, and without such support I do not see how the statutory provision at issue here can be sustained--unless, contrary to the lesson that I take from Lopez, the "substantial effects" test is to be drained of all practical significance. As Lopez reminded us, the "constitutionally mandated division of authority 'was adopted by the Framers to ensure protection of our fundamental liberties.' " Lopez, --- U.S. at ----, 115 S.Ct. at 1626, quoting Gregory v. Ashcroft, 501 U.S. 452, 458, 111 S.Ct. 2395, 2400, 115 L.Ed.2d 410 (1991). See also Lopez, --- U.S. at ---- - ----, 115 S.Ct. at 1638-39 (Kennedy, J., concurring). And even today, the normative case for federalism remains strong. See Steven G. Calabresi, "A Government of Limited and Enumerated Powers": In Defense of United States v. Lopez, 94 Mich.L.Rev. 752, 756-790 (1995). Out of respect for this vital element, we should require at least some empirical support before we sustain a novel law that effects "a significant change in the sensitive relation between federal and state criminal jurisdiction." United States v. Bass, 404 U.S. 336,349, 92 S.Ct. 515, 523, 30 L.Ed.2d 488 (1971).

FOOTNOTES

1. Title 18 U.S.C. section 922(o) also applies to transfers of machine guns. However, the defendant in this case pled guilty to two counts of the indictment charging only possession, and thus the constitutionality of the transfer provision is not before us here.

2. See United States v. Lopez, 2 F.3d 1342, 1347 (5th Cir.1993), aff'd, --- U.S. ----, 115 S.Ct. 1624, 131 L.Ed.2d 626 (1995).

3. The court wrote:
e have identified three broad categories of activity that Congress may regulate under its commerce power.... First, Congress may regulate the use of the channels of interstate commerce See, e.g., ('he authority of Congress to keep the channels of interstate commerce free from immoral and injurious uses has been frequently sustained, and is no longer open to question.' " (quoting ("or example, the destruction of an aircraft (18 U.S.C. section 32), or ... thefts from interstate shipments (18 U.S.C. section 659)"). Finally, Congress' commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce, , i.e., those activities that substantially affect interstate commerce.

4. See United States v. Bishop, 66 F.3d at 587 n. 27 ("The dangerousness of the object is not the source of Congressional power; the connection to interstate commerce is.").

5. The majority does not explain why possession of a firearm within a school zone is less "commercial" or "economic" than possession elsewhere-- because it plainly is not. (If someone drives through a school zone with a firearm in his possession, does that person quickly cease to engage in a "commercial" activity on entering the zone and then quickly begin on leaving?) Instead, the majority argues that a general ban on the possession of machine guns may reasonably be viewed as having a greater effect on interstate commerce than a ban on the possession of all firearms within certain limited areas (school zones). See Maj. Op. ----. But this argument says nothing about the "commercial" or "noncommercial" character of firearms possession.

6. The majority's suggestion (Maj. Op. ----) that my analysis "requires either Congress or the Executive to play Show and Tell with the federal courts" is simply wrong. The Supreme Court has recognized the importance of congressional findings. See, e.g., Lopez, --- U.S. -- at ----, 115 S.Ct. at 1632. Indeed, in United States v. Bass, 404 U.S. 336, 92 S.Ct. 515, 30 L.Ed.2d 48(1971), where the Court construed ambiguous language in a felon-in-possession statute to require proof that the possession was connected with interstate commerce, the Court wrote: "In light of our disposition of the case, we do not reach the question whether, upon appropriate findings, Congress can constitutionally punish the 'mere possession' of firearms." Id.at 339 n. 4, 92 S.Ct. at 517 n. 4.
With respect to the Executive, it is a litigant seeking to persuade us that there is a reasonable case to be made for the proposition that the intrastate possession of machine guns substantially affects interstate commerce. There is nothing improper or unusual about asking a litigant to point to support for its position, whether in the form of evidence in the record or legislative facts that can be judicially noticed. Such assistance would have been particularly valuable here, since the Executive is in a far better position than we are to determine whether there is a reasonable empirical case to be made for the proposition it is advancing. Without congressional findings or empirical support, it is not possible for appellate judges, who are not experts on firearms, machine guns, racketeering, drug trafficking, or crime in general, to verify in any intellectually respectable way that there is a reasonable case to be made for the proposition that the intrastate possession of firearms substantially affects interstate commerce.

[happyslug]

10. CHITTISTER vs Department of Community and Economic Development

Full Opinion:
http://laws.lp.findlaw.com/3rd/003140.html

[happyslug]

11. Third Circuit Planned Parenthood vs Casey

http://news.findlaw.com/nytimes/docs/alito/ppcasey102191opn.html

ALITO, Circuit Judge, concurring in part and dissenting in part.

I concur in the court's judgment except insofar as it holds that 18 Pa.Cons.Stat.Ann. § 3209 (Supp.1991) (spousal notice) is unconstitutional. I also join all of the court's opinion except for the portions concerning Section 3209 and those interpreting Justice O'Connor's opinion in Hodgson v. Minnesota, 497 U.S. 417, 110 S.Ct. 2926, 2949-51, 111 L.Ed.2d 344 (1990), to mean that the two-parent notification requirement without judicial bypass imposed an "undue burden" and was thus required to satisfy strict scrutiny.


I.
As the court suggests, the crux of this case concerns the identification of the constitutional standard that the lower courts must now apply in cases involving laws regulating abortion. For the reasons carefully explained in the court's opinion, I agree that Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989), and Hodgson changed the law that we are bound to apply and that the test set out in Justice O'Connor's opinions now represents the governing legal standard.

My disagreement with the majority regarding a single provision of the Pennsylvania Abortion Control Act, 18 Pa.Cons.Stat.Ann. § 3201 et seq. (1983 & Supp.1991), results from disagreement about the portion of Justice O'Connor's two-part test that must be applied to this provision. Under that test, as the majority explains, a law that imposes an "undue burden" must serve a "compelling" state interest. By contrast, a law that does not impose an "undue burden" must simply be "rationally" or "reasonably" related to a "legitimate" state interest. The majority holds that Section 3209 constitutes an undue burden. The majority therefore applies the first prong of the two-part test and strikes down Section 3209 on the ground that it does not serve a "compelling" interest. I do not believe that Section 3209 has been shown to impose an undue burden as that term is used in the relevant Supreme Court opinions; I therefore apply the second prong of the two-part test; and I conclude that Section 3209 is constitutional because it is "rationally related" to a "legitimate" state interest.

Although the majority and I apply different prongs of this two-part test, I see no indication that we disagree concerning the conclusion produced when either prong is applied to Section 3209. If the majority is correct that Section 3209 must satisfy heightened scrutiny, I agree that its constitutionality is doubtful. Similarly, I do not interpret the majority opinion to mean that Section 3209 cannot satisfy the rational relationship test. Indeed, the majority acknowledges that Section 3209 serves a "legitimate" interest. See majority opin. at 715, 716. Thus, my major disagreement with the majority concerns the question whether Section 3209 imposes an "undue burden," and I will therefore turn to that question.



II.
A. Justice O'Connor has explained the meaning of the term "undue burden" in several abortion opinions. In Akron v. Akron Center for Reproductive Health, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting), she wrote that "an 'undue burden' has been found for the most part in situations involving absolute obstacles or severe limitations on the abortion decision." She noted that laws held unconstitutional in prior cases involved statutes that "criminalized all abortions except those necessary to save the life of the mother," inhibited " 'the vast majority of abortions after the first 12 weeks,' " or gave the parents of a pregnant minor an absolute veto power over the abortion decision. Id. (emphasis in original; citations omitted). She suggested that an "undue burden" would not be created by "a state regulation may 'inhibit' abortions to some degree." Id. She also suggested that there is no undue burden unless a measure has the effect of "substantially limiting access." Id. at 463, 103 S.Ct. at 2509, quoting Carey v. Population Services International, 431 U.S. 678, 688, 97 S.Ct. 2010, 2017, 52 L.Ed.2d 675 (1977) (emphasis added in Justice O'Connor's opinion).

Justice O'Connor reiterated the same analysis in Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 106 S.Ct. 2169 (1986). She wrote (id. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting)):
An undue burden would generally be found "in situations involving absolute obstacles or severe limitations on the abortion decision," not wherever a state regulation "may 'inhibit' abortions to some degree."

*721 She also criticized the majority for taking an approach under which "the mere possibility that some women will be less likely to choose to have an abortion by virtue of the presence of a particular state regulation suffices to invalidate it." Id. 476 U.S. at 829, 106 S.Ct. at 2214 (emphasis added).

Justice O'Connor's application of the undue burden test in several cases further illustrates the meaning of this test. In Hodgson, 110 S.Ct. at 2950-51, Justice O'Connor found that no undue burden was imposed by a law requiring notice to both parents or judicial authorization before a minor could obtain an abortion. Justice O'Connor reached this conclusion despite statistics adduced by Justice Marshall to show that mandatory parental notice may inhibit a significant percentage of minors from obtaining abortions (id. at 2953-54) (Marshall, J., dissenting) and despite the district court's finding, noted in Justice Marshall's dissent, that the judicial bypass option "so daunted" some minors that they felt compelled to carry to term (id. at 2959, quoting 648 F.Supp. at 763).

Justice O'Connor has also suggested on more than one occasion that no undue burden was created by the statute upheld in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981), which required parental notice prior to any abortion on an unemancipated minor. Instead, she has stated that this statute merely inhibited abortions to "some degree." Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting); Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). In dissent in Matheson, Justice Marshall argued that the statute would result in substantial interference with abortions sought by minors. He wrote (450 U.S. at 398, 101 S.Ct. at 1164) (Marshall, J., dissenting) that "the minor may confront physical or emotional abuse, withdrawal of financial support or actual obstruction of the abortion decision." These harms are almost identical to those that the majority in this case attributes to Section 3209. See majority opin. at 711-12. See also Planned Parenthood Association v. Ashcroft, 462 U.S. 476, 505, 103 S.Ct. 2517, 2532, 76 L.Ed.2d 733 (1983) (O'Connor concurring and dissenting) (statute requiring parental consent or judicial authorization "imposes no undue burden").

Finally, Justice O'Connor has concluded that regulations that simply increase the cost of abortions, including regulations that may double the cost, do not create an "undue burden." See Akron, 462 U.S. at 434-35, 103 S.Ct. at 2494-95 (maj. op.); at 466-67, 103 S.Ct. at 2511-12 (O'Connor, J., dissenting). Justice O'Connor reached this conclusion even though it seems clear that such increased costs may well deter some women.

Taken together, Justice O'Connor's opinions reveal that an undue burden does not exist unless a law (a) prohibits abortion or gives another person the authority to veto an abortion or (b) has the practical effect of imposing "severe limitations," rather than simply inhibiting abortions " 'to some degree' " or inhibiting "some women." Thornburgh, 476 U.S. at 828, 829, 106 S.Ct. at 2213, 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). Furthermore, Justice O'Connor's opinions disclose that the practical effect of a law will not amount to an undue burden unless the effect is greater than the burden imposed on minors seeking abortions in Hodgson or Matheson or the burden created by the regulations in Akron that appreciably increased costs. Since the laws at issue in those cases had inhibiting effects that almost certainly were substantial enough to dissuade some women from obtaining abortions, it appears clear that an undue burden may not be established simply by showing that a law will have a heavy impact on a few women but that instead a broader inhibiting effect must be shown.

In this case, the plaintiffs, who made a facial attack on Section 3209, did not *722 prove that this provision would impose an undue burden. Section 3209 does not create an "absolute obstacle" or give a husband "veto power." Rather, this provision merely requires a married woman desiring an abortion to certify that she has notified her husband or to claim one of the statutory exceptions.


FN1. Because the plaintiffs made a facial attack on Section 3209, they could not rely on a "worst-case analysis" (Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 110 S.Ct. 2972, 2981, 111 L.Ed.2d 405 (1990)) or on proof showing only that the provision would impose an undue burden "under some conceivable set of circumstances" (United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)). Thus, proof that the provision would adversely affect an unknown number of women with a particular combination of characteristics could not suffice.
The plaintiffs also failed to carry their burden of proving that Section 3209 if enforced would have the kind of broad practical impact needed to establish an "undue burden" under the opinions discussed above. Clearly the plaintiffs did not substantiate the impact of Section 3209 with the degree of analytical rigor that should be demanded before striking down a state statute. Cf. Akron, 462 U.S. at 463, 103 S.Ct. at 2510 (O'Connor, J., dissenting) (citation omitted) (courts should exercise " 'deliberate restraint' " before finding an undue burden " 'in view of the respect that properly should be accorded legislative judgments' "); id. at 465, 103 S.Ct. at 2511.
FN2. In Thornburgh, Justice O'Connor made clear that a party challenging the constitutionality of a statute must bear the burden of proving that the law imposes an undue burden. After arguing strenuously that the case should be sent back to the district court for "additional factual development" (476 U.S. at 827, 106 S.Ct. at 2213 (O'Connor, J.,
dissenting), Justice O'Connor repeatedly stated that the appellees, who were challenging the statute, had the burden of proving that individual statutory provisions would impose an undue burden. She discussed whether "appellees could succeed in making the threshold showing of undue burden" (id. at 831, 106 S.Ct. at 2215), whether "appellees establish that the abortion decision unduly burdened" (id.), and whether the appellees "could succeed in establishing an undue burden" (id. at 832, 106 S.Ct. at 2216).
At the outset, it is apparent that two factors imposed a low ceiling on any showing that the plaintiffs could have made. First, as the district court found, the "vast majority" of married women voluntarily inform their husbands before seeking an abortion. Planned Parenthood v. Casey, 744 F.Supp. 1323, 1360 (E.D.Pa.1990). Indeed, in the trial testimony on which the district court relied, the plaintiffs' witness stated that in her experience 95% of married women notify their husbands. App. at 701. Second, the overwhelming majority of abortions are sought by unmarried women. Thus, it is immediately apparent that Section 3209 cannot affect more than about 5% of married women seeking abortions or an even smaller percentage of all women desiring abortions.
FN3. Since 1973, abortions on unmarried women have consistently exceeded 70% of the national total and at times have surpassed 80%. United States Department of Commerce, Statistical Abstract of the United States 1990 at 71.
The plaintiffs failed to show even roughly how many of the women in this small group would actually be adversely affected by Section 3209. As previously noted, Section 3209 contains four significant exceptions. These exceptions apply if a woman certifies that she has not notified her husband because she believes that (1) he is not the father of the child, (2) he cannot be found after diligent effort, (3) the pregnancy is the result of a spousal sexual assault that has been reported to the authorities, or (4) she has reason to believe that notification is likely to result in the infliction of bodily injury upon her. If Section 3209 were allowed to take effect, it seems safe to assume that some percentage of the married women seeking abortions without notifying their husbands would qualify for and invoke these exceptions. The record, however, is devoid of evidence showing how many women could or could not invoke an exception.
FN4. The form prepared by the Pennsylvania Department of Health for use in implementing Section 3209 requires a woman to certify that she has not notified her husband "for the following reason(s)...." (744 F.Supp. at 1359). Moreover, a false statement is punishable (as a third degree misdemeanor) only if the woman did not "believe to be true" (18 Pa.Cons.Stat.Ann. § 4904(b) (1983)).
Of the potentially affected women who could not invoke an exception, it seems safe to assume that some percentage, despite an initial inclination not to tell their husbands, would notify their husbands without suffering *723 substantial ill effects. Again, however, the record lacks evidence showing how many women would or would not fall into this category. Thus, the plaintiffs did not even roughly substantiate how many women might be inhibited from obtaining an abortion or otherwise harmed by Section 3209. At best, the record shows that Section 3209 would inhibit abortions " 'to some degree' " or that "some women be less likely to choose to have an abortion by virtue of the presence" of Section 3209. Thornburgh, 476 U.S. at 828, 106 S.Ct. at 2214 (O'Connor, J., dissenting), quoting Akron, 462 U.S. at 464, 103 S.Ct. at 2510 (O'Connor, J., dissenting). And even with respect to these women, the plaintiffs did not show that the impact of Section 3209 would be any greater or any different from the impact of the notice requirement upheld in Matheson. Consequently, the plaintiffs failed to prove that Section 3209 would impose an undue burden.
FN5. In considering whether Section 3209 would impose an undue burden, I do not take into account a fact that seems glaringly apparent, i.e., that Section 3209 would be difficult to enforce and easy to evade. Section 3209 does not require a woman to provide any proof of notification other than her own unnotarized statement. Thus, if a woman claimed that she had orally notified her husband in private (the mode and place of notification to be expected in most cases), it would be exceedingly difficult in most cases for the Commonwealth to prove beyond a reasonable doubt that she had not done so.

Proving that a woman violated the law due to a false statement concerning one of the exceptions would also be hard. As noted (see footnote 4, supra ), the Commonwealth would have to prove that the woman did not "believe to be true" (18 Pa.Cons.Stat.Ann. § 4904(b) (1983)). Consequently, if a woman certified that she did not notify her husband because he was not the father, the Commonwealth would have to prove that she subjectively believed that the husband was the father. Or, if a woman certified that she did not notify her husband because she had reason to believe that this would lead to the infliction of bodily injury upon her, the Commonwealth would have to prove that the woman subjectively believed that she would not be harmed. It seems likely, therefore, that Section 3209, if allowed to take effect, would be widely evaded and infrequently enforced and would consequently be less likely to produce either the good or bad effects that the opposing parties claim.


FN6. The plaintiffs' proof may be separated into five categories. First, they offered testimony that a spousal notification requirement would sometimes delay an abortion or necessitate an extra trip to the abortion provider (see 744 F.Supp. at 1360). But as the majority properly concludes in rejecting identical objections to the 24-hour waiting period required by Section 3205(a) (see majority opin. at 706-07), these potential effects do not amount to an undue burden. See Akron, 462 U.S. at 472-74, 103 S.Ct. at 2515-16 (O'Connor, J., dissenting).

Second, the plaintiffs offered testimony that the exceptions in Section 3209 would not cover a case in which a woman did not want to notify her husband for fear that he would retaliate in some way other than the infliction of bodily injury upon her, such as by subjecting her to
psychological abuse or abusing their children (see 744 F.Supp. at 1360- 62). The plaintiffs, however, do not appear to have offered any evidence showing how many (or indeed that any actual women) would be affected by this asserted imperfection in the statute.

Third, the plaintiffs introduced general evidence about the problem of spouse abuse (see 744 F.Supp. at 1361). They offered widely varying statistics concerning the dimensions of the problem, as well as evidence that battering occurs in all socioeconomic groups and is sometimes fatal. This proof, while documenting the existence of a broad national problem, provides no basis for any estimate of what is relevant here--the impact of Section 3209.

Fourth, the plaintiffs offered evidence that "mere notification of pregnancy is frequently a flashpoint for battering" (see 744 F.Supp. at 1361). This proof indicates when violence is likely to occur in an abusive marriage but provides no basis for determining how many women would be adversely affected by Section 3209.

Finally, the plaintiffs offered the opinion of one of their witnesses that most battered women would be psychologically incapable of taking advantage of Section 3209's fourth exception, i.e., the exception for cases in which the woman has reason to fear that notification will lead to the infliction of bodily harm upon her (see 744 F.Supp. at 1363). However, the plaintiffs failed to show how many of the women potentially affected by Section 3209 (married women seeking abortions without notifying their husbands) are victims of battering. Thus, the opinion offered by their expert, even if taken at face value, merely describes the likely behavior of most of the women in a group of unknown size. Clearly, then, this evidence does not show how many women would be inhibited or otherwise harmed by Section 3209. 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.
Needless to say, the plight of any women, no matter how few, who may suffer physical abuse or other harm as a result of *724 this provision is a matter of grave concern. It is apparent that the Pennsylvania legislature considered this problem and attempted to prevent Section 3209 from causing adverse effects by adopting the four exceptions noted above. Whether the legislature's approach represents sound public policy is not a question for us to decide. Our task here is simply to decide whether Section 3209 meets constitutional standards. The first step in this analysis is to determine whether Section 3209 has been shown to create an undue burden under Supreme Court precedent, and for the reasons just explained it seems clear that an undue burden has not been established.

B. This conclusion is not undermined (and may indeed be supported) by the portion of Justice O'Connor's opinion in Hodgson regarding the constitutionality of the two-parent notice requirement without judicial bypass. The majority in this case interprets Justice O'Connor's opinion to mean that this requirement imposed an undue burden and did not serve a "compelling" interest. Majority opin. at 696. I interpret Justice O'Connor's opinion differently. I do not read her opinion to mean that the two-parent notice requirement without judicial bypass constituted an undue burden. Rather, I interpret her opinion to mean that this requirement was unconstitutional because it was not reasonably related to a legitimate state interest. Thus, I do not believe that her opinion (or the Court's holding) supports the majority's conclusion in the present case that the spousal notification requirement in Section 3209 imposes an undue burden.

In Hodgson, Justice Stevens wrote the lead opinion discussing the unconstitutionality of the two-parent notification requirement without judicial bypass, and Justice O'Connor joined most of Justice Stevens' opinion (see 110 S.Ct. at 2949 (O'Connor, J., concurring). Thus, in interpreting Justice O'Connor's position, it is helpful to begin with the relevant portions of Justice Stevens' opinion.

Two portions of Justice Stevens' opinion, Parts III and VII, are most important for present purposes. In Part III, Justice Stevens discussed the applicable constitutional standard. Nowhere in this portion of his opinion (or indeed in any portion of his opinion) did Justice Stevens make reference to "strict," "exacting," or "heightened" scrutiny or any of the terminology associated with that level of review. Instead, he concluded that the statute failed to satisfy even the least demanding standard of review. He wrote (110 S.Ct. at 2937): "Under any analysis, the ... statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests."

In Part VII of his opinion, Justice Stevens explained (id. at 2945) why the two-parent notice requirement did not "reasonably further any legitimate state interest." Thus it seems clear that Justice Stevens' opinion concluded that the two-parent notice requirement without judicial bypass was unconstitutional because it failed some variant of the rational relationship test.

In my view, Justice O'Connor's opinion in Hodgson did not subject this requirement to a more exacting level of scrutiny. Although Justice O'Connor did not join Part III of Justice Stevens' opinion (in which he discussed the general constitutional standard that he applied), Justice O'Connor wrote as follows (110 S.Ct. at 2949-50 emphasis added)):

It has been my understanding in this area that "f the particular regulation does not 'unduly burde' the fundamental right, ... then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose." .... It is with that understanding that I agree with Justice Stevens' statement "that the statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests."

I interpret this to mean that Justice O'Connor agreed with Justice Stevens that the challenged statute should be judged under the rational relationship test. I do not think that she would have expressed general agreement with Justice Stevens' statement of the governing legal standard if she believed that the statute imposed an *725 undue burden and was thus required to satisfy an entirely different legal standard. I also do not think that she would have concluded that the statute created an undue burden without explaining the basis for that conclusion. Moreover, Justice O'Connor joined Part VII of Justice Stevens' opinion, in which, as previously noted, Justice Stevens concluded that the two-parent notice requirement without judicial bypass was not "reasonably" related to any "legitimate interest." I do not think that Justice O'Connor would have joined this portion of Justice Stevens' opinion if her position regarding the constitutionality of the provision was based on a fundamentally different analysis. Thus, I conclude that Justice O'Connor found the two-parent notice statute unconstitutional under the rational relationship test. This must mean either (a) that she did not believe that this requirement constituted an undue burden or (b) that she did not find it necessary to reach that question because she believed that the requirement could not even pass the rational relationship test. In either event, her position in no way undermines my conclusion that Section 3209 has not been shown to create an undue burden.

FN7. In the portion of her opinion concluding that the two-parent notification requirement with judicial bypass was constitutional, Justice O'Connor wrote (110 S.Ct. at 2950 (emphasis added)): "In a series of cases, this Court has explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion." I interpret this statement to mean that a judicial bypass option prevents a consent requirement (which would otherwise amount to an absolute veto) from creating an undue burden. This statement is therefore fully consistent with my view that Justice O'Connor did not find that an undue burden was created by the two-parent notice requirement without judicial bypass.


III.
Since Section 3209 has not been proven to impose an undue burden, it must serve a "legitimate" (but not necessarily a "compelling") state interest. The majority acknowledges that this provision serves a "legitimate" interest, namely, the state's interest in furthering the husband's interest in the fetus. See majority opin. at 715, 716. I agree with this conclusion, and I do not think that this point requires extended discussion.

The Supreme Court has held that a man has a fundamental interest in preserving his ability to father a child. Skinner v. Oklahoma, 316 U.S. 535, 541, 62 S.Ct. 1110, 1113, 86 L.Ed. 1655 (1942). The Court's opinions also seem to establish that a husband who is willing to participate in raising a child has a fundamental interest in the child's welfare. Michael H. v. Gerald D., 491 U.S. 110, 123, 109 S.Ct. 2333, 2342, 105 L.Ed.2d 91 (1989); Quilloin v. Walcott, 434 U.S. 246, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978); Caban v. Mohammed, 441 U.S. 380, 99 S.Ct. 1760, 60 L.Ed.2d 297 (1969); Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). It follows that a husband has a "legitimate" interest in the welfare of a fetus he has conceived with his wife.

To be sure, the Supreme Court held in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 67-72, 96 S.Ct. 2831, 2840-43, 49 L.Ed.2d 788 (1976), that a potential father may not be given the legal authority to veto an abortion, and thus the Court apparently held that the potential father's interest was not "compelling." But the Court did not question the legitimacy of this interest. On the contrary, the Court wrote (id. at 69, 96 S.Ct. at 2841 (emphasis added)): "We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying." See also id. at 93, 96 S.Ct. at 2852 (White, J., dissenting) ("A father's interest in having a child--perhaps his only child--may be unmatched by any other interest in his life"). Since a "deep and proper ... interest" appears indistinguishable from a "legitimate" interest, it seems clear that a husband has a "legitimate" interest in the fate of the fetus.

This interest may be legitimately furthered by state legislation. "< S>tatutory regulation of domestic relations an area *726 that has long been regarded as a virtually exclusive province of the States." Sosna v. Iowa, 419 U.S. 393, 404, 95 S.Ct. 553, 560, 42 L.Ed.2d 532 (1975). See also Moore v. East Cleveland, 431 U.S. 494, 499, 97 S.Ct. 1932, 1935, 52 L.Ed.2d 531 (1977); Scheinberg v. Smith, 659 F.2d 476, 483-94 (5th Cir.1981). Accordingly, Pennsylvania has a legitimate interest in furthering the husband's interest in the fate of the fetus, as the majority in this case acknowledges.



IV.
The remaining question is whether Section 3209 is "rationally" or "reasonably" related to this interest. Under the rational relationship test, which developed in equal protection cases, "legislation carries with it a presumption of rationality that can only be overcome by a clear showing of arbitrariness and irrationality." Hodel v. Indiana, 452 U.S. 314, 331-32, 101 S.Ct. 2376, 2386-87, 69 L.Ed.2d 40 (1981). This test does not permit the invalidation of legislation simply because it is "deemed unwise or unartfully drawn." U.S. Railroad Retirement Board v. Fritz, 449 U.S. 166, 175, 101 S.Ct. 453, 459, 66 L.Ed.2d 368 (1981). Legislation does not violate this test simply because it produces some adverse effects. Id.; Lindsley v. Natural Carbonic Gas Co., 220 U.S. 61, 78, 31 S.Ct. 337, 340, 55 L.Ed. 369 (1911). As the Court wrote in Dandridge v. Williams, 397 U.S. 471, 485-86, 90 S.Ct. 1153, 1161-62, 25 L.Ed.2d 491 (1970):

"The problems of government are practical ones and may justify, if they do not require, rough accommodations--illogical, it may be, and unscientific." Metropolis Theatre Co. v. City of Chicago, 228 U.S. 61, 68- 70 <33 S.Ct. 441, 443, 57 L.Ed. 730 (1913) >....
... is true to the principle that the Fourteenth Amendment gives the federal courts no power to impose upon the States their views of what constitutes wise economic or social policy.

See also Dallas v. Stanglin, 490 U.S. 19, 25-27, 109 S.Ct. 1591, 1595-96, 104 L.Ed.2d 18 (1989); Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439-40, 105 S.Ct. 3249, 3253-54, 87 L.Ed.2d 313 (1985). Rather, "those challenging the legislative judgment must convince the Court that the legislative facts on which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." Vance v. Bradley, 440 U.S. 93, 111, 99 S.Ct. 939, 949, 59 L.Ed.2d 171 (1979). See also Hancock Industries v. Schaeffer, 811 F.2d 225, 238 (3d Cir.1987).

Even assuming that the rational relationship test is more demanding in the present context than in most equal protection cases, that test is satisfied here. 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. In addition, the legislature could have reasonably concluded that Section 3209 would lead to such discussion and thereby properly further a husband's interests in the fetus in a sufficient percentage of the affected cases to justify enactment of this measure. Although the plaintiffs and supporting amici argue that Section 3209 will do little if any good and will produce appreciable adverse effects, the Pennsylvania legislature presumably decided that the law on balance would be beneficial. We have no authority to overrule that legislative judgment even if we deem it "unwise" or worse. U.S. Railroad Retirement Board v. Fritz, 449 U.S. at 175, 101 S.Ct. at 459. "We should not forget that 'legislatures are ultimate guardians of the liberty and welfare of the people in quite as great a degree as the courts.' " Akron v. Akron Center For Reproductive Health, 462 U.S. at 465, 103 S.Ct. at 2511 (O'Connor, J., dissenting), quoting Missouri, K. & T.R. Co. v. May, 194 U.S. 267, 270, 24 S.Ct. 638, 639, 48 L.Ed. 971 (1904). Clearly, the plaintiffs have not shown that "the legislative facts on which is apparently based could not reasonably be conceived to be true by the governmental decisionmaker." *727 Vance v. Bradley, 440 U.S. at 111, 99 S.Ct. at 949. Thus, Section 3209 is rationally related to a legitimate state interest and may not be invalidated under the Supreme Court's abortion precedents.

FN8. The plaintiffs argue that the district court's decision may be affirmed on alternative constitutional grounds not adopted by that court, i.e., that Section 3209 violates the rights to marital and informational privacy and equal protection. Because the majority has relied solely on the abortion right in affirming the district court, I do not address these alternative grounds.
C.A.3 (Pa.),1991.
Planned Parenthood of Southeastern Pennsylvania v. Casey
947 F.2d 682, 60 USLW 2276R

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12. Find law on Alito with his major decision and dissents:

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7. I'm even worse than that

I get into even greater detail over on my blog.

The Right Honorable Samuel A. Alito, Jr.
(the A stands for Awesome)