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The New (Old) Paternalism In Ohio


Legislation has been introduced in the Ohio legislature requiring women to not merely inform fathers before obtaining an abortion but to obtain written permission. And why not? Given that a majority of the United States Supreme Court has argued that anachronistic assumptions about the inferior decision-making capacity of women are sufficiently legitimate state interests that they can save the constitutionality of legislation that is otherwise wholly arbitrary and capricious, it seems like a logical next step. Oddly, I didn’t see any provision in the legislation requiring men to submit a list of potential sexual partners to the state so that they can be coerced into obtaining their written permission before purchasing Viagra or a box of Trojans; must be an oversight.

Assuming — which is probably not entirely wise — that Kennedy will stand by his vote, such a provision would be ruled unconstitutional under Planned Parenthood v. Casey, which struck down a spousal notification requirement. It’s worth noting, however, that the newest justice while sitting on the 3rd Circuit dissented from the same holding made by his colleagues. In that opinion, Alito simply assumed that the state had the same interest in regulating children and adult women, and that the only question was the burden imposed by the regulation (while ignoring whether the burden was “due”), and did so despite the fact that the most relevant opinion — O’Connor’s concurrence in Hodgson — began with a discussion of the special interest states have in regulating the conduct of minors. One more Republican appointment, and we’re back to the future of 19th-century sexism in the Supreme Court. And in some cases, like Carhart II, we’re already there. Some legislators seem to be getting the message.

…see also Melissa.

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