A Man’s Right To Choose-Alito & Men’s Reproductive Rights

March 3, 2009 at 10:17 pm Leave a comment

By Joe Englert

President Bush’s appointment of conservative judge Sam Alito to the Supreme Court has prompted outrage from the Left and praise on the Right.

During the months leading up to his confirmation, much of the opposition focused on one controversial case – Planned Parenthood v. Casey. In this case, Alito was the sole dissenter on the Third Circuit, which struck a Pennsylvania law that required women seeking abortions to consult their husbands. He argued that many of the potential reasons for an abortion, such as “economic constraints, future plans, or the husbands’ previously expressed opposition . . . may be obviated by discussion prior to abortion.” The case went on to the Supreme Court, which upheld the lower court’s decision 6 to 3.

Liberals highlighted this decision to demonstrate how far Alito is “out of the mainstream” and how his appointment to the Supreme Court could lead to Roe v. Wade being overturned.

But Alito’s opinion in Casey is really less about limiting abortions than about fairness and equal protection under the law. The public debate over the Casey opinion has brought to light a question that for too long has been pushed aside and ignored: what control do men have over the fate of their unborn children?

The answer, unfortunately, is that they have none.

Legalized abortion is commonly understood to promote equality between the sexes by giving women the same freedom to enjoy sex without consequences that men supposedly enjoy. However, in reality, when sex results in conception, the rights of men and woman in determining their reproductive fates are far from equal.

If a woman does not want to be a mother she can terminate a pregnancy, with or without the father’s consent. But if she wants to have the child, the father is still on the hook for as much as 21 years of child support. The father has no legal right to prevent the abortion of his unborn child nor can he “terminate” his parental responsibilities (at least financially). Unlike women, men do not have the luxury of deciding whether or not they are ready to be parents after conception.

Some argue that this apparent inequality stems from the biological fact that a woman must bear the child for nine months and endure the rigors of child birth. As the pro-choice mantra goes: a woman’s body, a woman’s choice. However, fundamentally, the child is a product of both a man’s and a woman’s genetic material and is in that sense a part of both parties’ bodies. While certainly women have the sole biological responsibility of bearing the child, is this fact enough to completely eliminate men from the equation?

Imagine a hypothetical situation – one that some day could become a reality – in which reproductive technology will have advanced to the point where a fetus can be removed from the womb early in the pregnancy and incubated until it becomes viable. Would men then be allowed to seek custody of the unborn child if the woman would seek an abortion? Would the mother be liable for child support afterward? In this scenario how many feminists would agree that a woman’s child should be brought into the world without her consent and then she should also have to pay child support?

But many people will argue that these examples of mothers terminating a pregnancy against the fathers wishes are so rare as if to be statistically irrelevant and therefore should not be used to justify policy that would in any way restrict a woman’s access to an abortion. Unfortunately, there is not much reliable data on the subject. However, one study conducted by Drexel University sociologist Arthur Shostak and journalist Gary McLouth (based on a survey of 1,000 men in abortion-clinic waiting rooms and some in-depth interviews) this situation may be more common than many people expect. While most men in the survey reported that ending the pregnancy was a mutual decision, 5 percent said they didn’t want the abortion and nearly half of the single and divorced men said that they had suggested getting married and having the baby. As for the roughly 50 percent of men who don’t show up at the clinics, various estimates cited by Shostak and McLouth suggest that a significant percentage oppose the abortion or are too upset about it to come along. As many as one in six men are never told about the pregnancy or the abortion.

And yet in the eyes of the law, there appears to be no set of circumstances, however unusual or extreme, that can excuse the biological father of his responsibility for child support.

For example, last year an Illinois Appellate Court decided a case in which a Chicago family physician alleged that his former girlfriend had secretly kept his semen after the two had had oral sex, and then impregnated herself with it. The court stated that if the doctor’s story is true, his former girlfriend “deceitfully engaged in sexual acts, which no reasonable person would expect could result in pregnancy.” Nevertheles, the court ruled the doctor was responsible for the child anyway, stating that “when plaintiff ‘delivered’ his sperm, it was a gift…There was no agreement that the original deposit would be returned upon request.”

Right now in Washington, liberals and conservatives are gearing up for the Alito confirmation battle, which they believe will determine the future of reproductive rights in America. Many people on both sides of the aisle believe the outcome will make or break Roe. But now is also the chance to balance the rights of the father with those of the mother, putting the focus on the child, and creating the most equitable law possible.

Depriving fathers of a meaningful voice in abortion decisions (especially between man and wife) denies men equal protection and due process, leaving many children beyond the protective reach of their fathers who want to be included in such a pivotal decision.

Under the Supreme Court rulings made over the course of the last three decades, fathers have been denied a voice in the issue, whether they were married to the mother or not.

The fact that Alito’s dissent on Casey has been held up by critics as “radical” demonstrates that men lack reproductive rights in America and that reform in this area will not come easy. The Pennsylvania law only required the wife to inform her husband of her decision prior to getting an abortion and did not require him to consent to that decision. And the truth is that the statute contained many protections for women, which Alito cited and supported. Section 3209 of the law specifically stated that a woman’s obligation to inform her husband did not apply if she had reason to believe it was likely to result in the infliction of bodily injury.

The ongoing debate over Alito’s appointment will continue to be defined by the limiting or expanding of a woman’s right to choose. But this is also a perfect time to consider whether a man has a right to choose whether or not the child he helped create should be brought into the world.

Entry filed under: Child Custody, Fathers' Rights, Reproductive Rights.

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