A peculiarity of American abortion law, and of the Roe v. Wade decision on which it rests, is that husbands are not part of a married woman’s abortion decision. Doctors are, but husbands aren’t. This shows who has a more powerful PAC in Washington. Our abortion laws are very unusual in the world even compared with other countries with very liberal abortion laws. Husbands have a stake in practically every legal decision a wife makes, as a wife has a stake in practically every legal decision a husband makes. The law no longer gives one spouse a veto over the decisions of the other (and a good thing, too), but it does normally make provision to protect the interest of husband and wife in their spouse’s decisions -- except when it comes to abortion.
The question of whether a husband deserves to even be notified when his wife is considering an abortion is back in the news because of the most famous judicial opinion, thus far, of Supreme Court nominee Samuel Alito. Judge Alito, who sits on the federal appeals court in Philadelphia, was on the panel that heard Planned Parenthood v. Casey. Pennsylvania law had enacted several limitations on abortion, including a provision that husbands needed to be notified. The panel voted 2 – 1 to strike down this part of the law. Judge Alito, in dissent, defended that part of the law. Ultimately, the Supreme Court upheld the appellate court’s decision, and with it, the basic holding of Roe v. Wade.
Adam Liptak, writing in today’s New York Times, has detected a traditional theory of marriage in this and several other decisions of Judge Alito. Marriage, Judge Alito argues in a number of cases, creates a bright line recognized in the law in dozens of ways. In other cases, for example, he argued that when women are granted asylum in this country to escape persecution and forced abortions, their husbands are included in the asylum protection, but their boyfriends are not.
In Western tradition husband and wife become one flesh. Their relation is unique. They are not just partners, and they are certainly not just parties to a business contract. Husbands and wives are uniquely affected by one another’s actions. This applies in every area of life, especially in a decision that goes to the core of what family life is about, as abortion does. Note that the Pennsylvania law did not give husbands a veto over a wife’s abortion decision. It just required that he be notified. The court struck down that part of the law, but if any state considered something like it, they might include a judicial bypass provision in the case of abuse, as there is for the requirement that the parents of minors be notified when their daughter is considering abortion. I think husband notification is not dead as an issue in the abortion discussion.
I think Judge Alito is right, A husband is not just another guy when it comes to his wife’s decisions.