In His Own Words

Planned Parenthood v. Casey, 947 F.2d 682

Facts / Issue:

Five abortion clinics and one physician (the "clinics") raise a facial constitutional challenge to certain 1988 and 1989 amendments to the Pennsylvania Abortion Control Act of 1982 (the "Act"). See 18 Pa. Cons. Stat. Ann. §§ 3201-3220 (1983 & Supp. 1991). The United States District Court for the Eastern District of Pennsylvania held that §§ 3205 (informed consent), 3206 (parental consent), 3209 (spousal notice), 3214(a) (reporting requirements), and 3207(b) and 3214(f) (public disclosure of clinics' reports) violate the Due Process Clause of the Fourteenth Amendment to the United States Constitution. The Commonwealth defendants (the "Commonwealth") appeal. Because we find unconstitutional only § 3209, which requires notice to a spouse of a planned abortion, we will affirm in part and reverse in part.

Alito's Comments in Dissent:

In this case, the plaintiffs, who made a facial attack n1 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. [snip]

The [**116] 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 n4 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.

Pudentilla Notes:

That Judge Alito's argument rests on a case which rejected the right of a state to require a minor to get the permission of two parents before getting an abortion. Inherent in this argument is the equation of adult women with minor children. A tad disingenuous and more than a little offensive to adult women, you ask, Gentle Reader. Well, remember, this is exactly what the Reds have been fighting for, for 30 years.

Doe v. Groody, 361 F.3d 232

Facts:

On March 6, 1998, as the result of a long-term investigation of John Doe for suspected narcotics dealing, officers of the Schuylkill County Drug Task Force ("Task Force") sought a search warrant for Doe and his residence. n1 The typed affidavit in support of the warrant application stated, in pertinent part, that a reliable confidential informant had purchased methamphetamine on several occasions from John Doe, at Doe's "residence/office," or from a Volkswagen automobile parked in front. In addition, the affidavit noted that individuals with histories of prior narcotics use or with drug gang affiliations had been observed by Task Force members entering or leaving John Doe's residence. Finally, the affidavit indicated [**3] that the most recent methamphetamine purchase by the informant had occurred within the preceding 48 hours. [snip]

Armed with the warrant, Task Force police went to the John Doe house to carry out the search. Evidently, they anticipated [**6] encountering females because they enlisted a female traffic meter patrol officer to be available if necessary to assist in the search. As the officers approached the house, they met John Doe, and brought him into the house. Once inside, however, the officers found no visitors, but only John Doe's wife, Jane, and their ten year old daughter, Mary.

The officers decided to search Jane and Mary Doe for contraband, and sent for the meter patrol officer. When she arrived, [*237] the female officer removed both Jane and Mary Doe to an upstairs bathroom. They were instructed to empty their pockets and lift their shirts. The female officer patted their pockets. She then told Jane and Mary Doe to drop their pants and turn around. No contraband was found. With the search completed, both Jane and Mary Doe were returned to the ground floor to await the end of the search.

Issue:

Do police officers have a qualified immunity against lawsuits claiming that their decision to strip search persons (including minor children) not named in a valid search warrant?

Alito's Dissent:

[*249] In sum, the District Court erred in denying the defendants' motion for summary judgment. I share the majority's visceral dislike of the intrusive search of John Doe's young daughter, but it is a sad fact that drug dealers sometimes use children to carry out [**43] their business and to avoid prosecution. I know of no legal principle that bars an officer from searching a child (in a proper manner) if a warrant has been issued and the warrant is not illegal on its face. Because the warrant in this case authorized the searches that are challenged - and because a reasonable officer, in any event, certainly could have thought that the warrant conferred such authority - I would reverse.

Pudentilla's Comment:

Even if Alito's argument that drug dealers exploit their kids to hide drugs, should cops re-exploit those kids? Would it be such a bad thing in this world if cops felt compelled to get a specific warrant before strip-searching 10 year olds unexpectedly found on the premises when they were executing search warrants? If cops know that drug dealers so exploit kids, can't they identify these kids in the warrant in advance, or if they don't realize the kids exist until they get to the scene - would a phone call to the magistrate's chambers be such a burden.

In some cultures, apparently not Alito's, the prospect of strangers in the costume and cloak of authority having control over minor and naked children is a cause for great concern.