Wednesday, March 01, 2017

The Man's Role in Abortion and Paternity

by Sherry F. Colb

In my column for this week, I discuss a bill under consideration in the Oklahoma legislature requiring, among other things, that the father of a pregnancy give written consent to an abortion before a pregnant woman is able to obtain an abortion.  In the column, I discuss some of the misogyny that is evident if one looks to both the bill at issue and the rhetoric of the legislator who introduced the bill, Rep. Justin Humphrey.  In this post, I want to focus on the man's role in determining his own paternity more generally.

There is plainly an asymmetry in the availability of options for a man and for a woman when a woman becomes pregnant.  If she wants to terminate the pregnancy, then -- at least under existing constitutional precedents -- she has the right to do so, prior to fetal viability, and she need not consult with anyone about that decision (assuming she is of the age of majority).  Meanwhile, the father of the pregnancy -- despite the Oklahoma bill that, under existing precedents, is plainly unconstitutional -- does not get to object to the abortion, even if he would like to become a father to the baby that would result if the woman were to take the pregnancy to term.  At the same time, if the woman decides that she wants to take her pregnancy to term and keep her baby, the father of the pregnancy is stuck with that decision in two respects.  First, he does not get to decide that he wants the pregnancy terminated, even if he desperately wants to avoid becoming a father.  And second, he does not get to decide to avoid all responsibilities associated with fatherhood; he is ordinarily going to be responsible to pay child support for his son or daughter for eighteen years.

This asymmetry may seem quite unfair.  One the one side, the woman has all of the decision-making power and on the other side, the man must simply live with whatever the woman decides.  One way to deal with the inequity is to relieve the father of child support obligations if he does not want the child to be born and he wishes not to be a father.  To be sure, having financial obligations to care for the child is in no way comparable to the immense bodily integrity intrusion of an unwanted pregnancy, so it is not the case that a "financial abortion" (whereby the man might legally have no paternal connection to the child) is just as necessary for his autonomy as an actual abortion is to the woman's.  Still, we might wish to consider letting the man off the hook for child support, if we take seriously one of the ideas that grounds the abortion right:  having sex does not commit a person to becoming a parent against her will.

The reason not to allow men a right to "financial abortion" is that the child in question would suffer for not having two parents taking responsibility for him or her.  Whatever money the father could afford to pay in child support would be lost to the child, despite the fact that he or she had no say at all in whether to be born into the world.  To the extent that we believe that the father of the pregnancy had more choices in the matter (i.e., the choice not to have sex) than the child of the pregnancy (i.e., no choices), we might impose the financial burden on the father rather than the child.  The contest, then, is between them rather than between the woman and the man.

On the contest between the woman and the man, it is the fact of pregnancy--a fact that differentially burdens the woman to such an extent that we ought not to force it upon her against her will--that creates the asymmetry.  Once the woman decides to have the baby and gives birth to that child, she is responsible to the child, just as the father is.  She, in other words, has no right to a "financial abortion," only to an actual one, and the reason she has the latter right is not that she gets to decide whether or not to be a parent (a decision that the man might like to be able to make as well) but rather that she gets to decide whether to be physically occupied for nine months by a being that will grossly alter her body and create a great deal of discomfort and a not-insignificant level of medical risk.

One could, of course, say that the mother has more options than the fetus that she carries, in that she could have refrained from having sex and thereby avoided pregnancy, while the fetus never had any choice in the matter.  In the case of the unwanted pregnancy, however, the fetus--before he or she reaches sentience--has no interests and is therefore not yet "someone" but still "something" with the potential to become someone.  As the fetus is a potential person, it makes sense that we give preference to the woman, an actual sentient being already, over the fetus, at least prior to sentience. And then once the fetus reaches sentience, where the issue of abortion becomes far more fraught (as outlined more fully in my book with Michael Dorf, Beating Hearts: Abortion and Animal Rights), it is still the case that imposing the burdens of pregnancy on a woman singles out pregnant women for bodily intrusions the likes of which we impose on men only in the rare context of military conscription.  So long as we do not require kidney donations from unwilling male donors, we should not be demanding the sacrifices of pregnancy from unwilling females.

The one option we have not discussed yet is that we preference the wishes of whoever wishes to terminate the pregnancy, thereby favoring the right not to procreate over the right to procreate.  The reason we have not discussed this yet is that it would allow for a man to force a pregnant woman to have an abortion against her will.  Though I recall reading of at least one "father's rights movement" advocate making an argument along these lines, the very notion of it does a good job of uniting people who are pro-choice and pro-life to oppose the idea:  forced abortions are an unadulterated intrusion on a woman's bodily integrity and violate her interests as well as those of the fetus (to the extent that the fetus is sentient) and should not be permitted.