Wednesday, November 02, 2005

When It Comes to Abortion, the Husband is Not Just Another Guy

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.


Tom Strong said...

Uh, sure. But why should the government be involved in said notification? There is an equally bright line between saying that women ought to discuss an abortion with their partner, and actually requiring them to sign an affidavit that they did so.

Gruntled said...

I think the analogy with parental notification in the case of a minor is a strong one: the law recognizes a special, mutually interprenetrating relation between, on the one hand, parents and children, and, on the other, husbands and wives. In both cases, the state has an interest in the relationship, and thus in protecting it.

In Planned Parenthood v. Casey, they estimated that wives and husbands discuss a possible abortion in 95% of cases, anyway. This is for the other 5%, minus abuse cases, where there should be a judicial workaround.

Tom Strong said...

Yes, but the relationship between a grown woman and a teenager is significant. Minors cannot have any major medical procedure without parental notification; in that case, abortion is the outlier. It's the opposite scenario with grownups.

Sorry, but Alito's reading strikes me as blatantly sexist. Husbands are not made to sign an affidavit that they notify their wife before receiving vasectomies or heart transplants. It's just clear in this case that the law was meant to restrict women's choices.

Gruntled said...

I think it relevant that the child is also his, at least in the law's presumption. That makes abortion different from every other action that she might take, as far as it affects her husband.

Marty said...

Thanks for noticing something that i've been harping on for a couple of years now -- that "reproductive rights" are unequally distributed between men and women. This is just the sort of "gender inequality" you would expect the Left to fight against, and yet, they inexplicably continue to fight for it.

If a man makes a woman pregnant, and she aborts, he is off the hook as a parent. If she keeps the child, he has 18 years of child support to look forward to -- at best. The woman holds all the cards, regardless of who lied to who about birth control, or who planned what, that may have gone awry.

Does any man have any such right, any such power over the life or death of his own child? No, he has none.


Interstingly, since we have enshrined this particular gender inequality into law -- reproductive rights -- no one can really say with a straight face that same-sex marriages would ever be "equal" to opposite-sex marriages. With respect to reproductive rights, two women have more rights than a man and a woman, who have more rights than two men.

I'm a conservative who favors gender equality. Either give men the right to abort their own children, or give women the same rights that men have (none) to do it. Maybe then we can talk about "marriage equality". But certainly not before.

Gruntled said...

Marriage is the best protection that civilization has yet developed for the interests of mothers, fathers, and children. The husband notification provision in the Pennsylvania law was designed to fix a relatively small imbalance that the developed reproductive rights law had created. Trying to create a balance among the rights of boyfriends and girlfriends is a quantum level more difficult. They would be better off not having any possibility of creating babies if they are not married.