Document from CQ Researcher
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Although many courts have thought a 1976 Supreme Court case, Planned Parenthood of Central Missouri v. Danforth, precluded any consideration of paternal rights in the abortion context, the high court's July 3 ruling in Webster v. Reproductive Health Services makes such thoughts moot. With Webster the court signaled a new mode of analysis and a new willingness to uphold state regulation of abortion, and states may now confidently consider the claims of fathers.
This is entirely appropriate. As the biological contributor of half of an unborn child's genetic material, a father has a powerful, biological tie to his unborn child. This biological bond creates profound psychological and emotional bonds, and society has a powerful interest in promoting these bonds.
The interests that fathers have in their children have been legally recognized as fundamental, constitutional rights, so that a state may not deprive a father of his children without powerfully compelling, countervailing, state interests. The Supreme Court has recognized that fathers have a right to the care, custody, control, companionship and loving protection of their offspring. There is no logical reason why fathers should not have these interests in their unborn children, as well.
Furthermore, there are situations where a father may have an even more powerful interest in his unborn child than usual. As Justice White mentioned in his dissent to Danforth, the unborn child might be the only child the father could ever have. By contrast, the mother's interest in aborting the child might be comparatively weak, such as the ones given in recent cases in Indiana.
In one of those cases, Conn v. Conn, the mother was willing to carry the Conns' child to term if she could be certain the father, with whom she was getting a divorce, would not gain custody of the child upon birth. Ironically, she agreed to give him custody of their toddler daughter. Such vindictive reasons should not he given much weight.
In Smith v. Doe, the reasons the mother wanted an abortion included her desire not to be pregnant in the summertime (she didn't want to disrupt her social life and she didn't want to look pregnant in her bathing suit) and she didn't want to share the father of her child with a baby. The trial court determined that her reasons were the result of an immature reasoning process.
In both of these cases, the Indiana appellate courts dissolved injunctions issued by the trial courts. They did so on the bases of Roe v. Wade, the 1973 Supreme Court decision that legalized abortion, and Danforth. But with abortion jurisprudence now substantially altered, it is appropriate for states—either through their courts or through their legislatures—to consider the rights and interests of fathers in their unborn children.
In every other area of life, when competing rights and interests collide, as they do in the abortion context when the father wants the child, the law balances the rights and interests of both parties. Fathers deserve nothing less.
The National Right to Life Committee's new strategy of promoting what it misleadingly calls “fathers' rights” is a thinly veiled attempt to conceal its extremism, an interim step to achieve its ultimate goal—the criminalization of all abortions. Opponents of choice no more respect the wishes of men concerning fatherhood than they do the right of women to make their own decisions about whether and when to have children.
Anti-choice activists attempt to appear moderate by claiming that they seek only a judicial “balancing” of the interests of the woman and man involved. But a court cannot “balance” the burdens of pregnancy; it cannot require a man to carry the fetus himself for all or part of the pregnancy. As the Supreme Court stated in 1976 in invalidating an abortion spousal consent requirement, “The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail.”
The truly devastating effects on women of attempting such “balancing” were seen in two recent cases in which the NRLC's James Bopp Jr. and I were on opposing sides.
In Smith v. Doe, Mr. Bopp represented a man who claimed to have dated an 18-year-old woman for several months, but who the woman contended was not responsible for her pregnancy. The man and three other people testified at a hearing about the most intimate details of the woman's life, ranging from the frequency and precise nature of their sexual relationship to the degree to which they allegedly loved each other. The woman refused to testify—refused to he subjected to further public humiliation. The judge's order prohibiting the woman from having an abortion was lifted on appeal.
In a second case, Myers v. Lewis—this time Mr. Bopp represented the fetus—a man obtained a similar court order after his wife sought a divorce because he physically abused her, repeatedly abandoned her and their infant and refused to help support their household. Throughout their separation, the man tried to assault her, broke into her house, and threatened to kidnap their infant son. He used the court order only as an additional weapon of harassment. The nightmare finally ended when an appellate court lifted the court order and the man was arrested.
Certainly every man has the right to express his views on childbearing and to seek a partner who shares his views. In fact, men are already involved in making decisions concerning abortion. The vast majority of women who have abortions (90 percent, according to one study) choose to make the decision jointly with their husband or partner.
But neither partner has the right to have the government compel the other to procreate with him or her. The very rationale that would justify permitting a man to force a woman to bear a child against her will would also justify allowing a man to compel a woman to have an abortion. The NRLC's new strategy is not aimed at promoting the wishes of individual men; it is only one step in a campaign designed to deprive all women and men of their ability to make their own reproductive choices.