Reproductive Rights

I’ve been arguing this point for years, but today a group made it in Federal court: laws imposing child support on fathers who didn’t want a child violate the father’s “reproductive freedom.” The group calls their cause Roe v. Wade for Men. According to their attorney, “The public is still dealing with the pre-Roe ethic when it comes to men, that if a man fathers a child, he should accept responsibility,” and they hope to change that. The article’s most striking jaw-droppingly unbelievable quote was from Kim Gandy, abortion advocate and President of the National Organization for Women, in explaining why courts don’t protect men’s reproductive rights: “But most courts say it’s not about what he did or didn’t do or what she did or didn’t do. It’s about the rights of the child.” (“The rights of the child take precedence over the parent’s right to have sex sans parenthood?! Kim Gandy?!)

As the group explains the suit on their website, “More than three decades ago Roe vs. Wade gave women control of their reproductive lives but nothing in the law changed for men. Women can now have sexual intimacy without sacrificing reproductive choice. Women now have the freedom and security to enjoy lovemaking without the fear of forced procreation. Women now have control of their lives after an unplanned conception. But men are routinely forced to give up control, forced to be financially responsible for choices only women are permitted to make, forced to relinquish reproductive choice as the price of intimacy.

“We will ask a United States district court judge to apply the principles of reproductive choice, as articulated in Roe vs. Wade, to men. We will ask that men be granted equal protection of the laws which safeguard the right of women to make family planning decisions after sex. We will argue that, at a time of reproductive freedom for women, fatherhood must be more than a matter of DNA: A man must choose to be a father in the same way that a woman chooses to be a mother.”

As our regular readers know, I think that both mothers and fathers have affirmative duties to their children regardless of their desire to be a parent, and even if they used eight dozen forms of birth control to reduce the likelihood that they’d create a son or daughter, so long as they consented to the act and it’s residual risk of parenthood.

35 comments for “Reproductive Rights

  1. Um, Matt, the argument that those silly folks are making is, to use your adjective, jaw-droppingly weak. The case law is a mess, yes. But even with the mess of case law, it’s clear that the right is based on the bodily integrity of the woman, not on any “freedom to have sex” nonsense. The group is making a silly argument, and I’m frankly disappointed to hear that you seem to agree with them.

  2. “The article’s most striking…”

    What article? The only link is see is to the organization’s website.

  3. Sorry anon, the article is here. I’ll update the article.


    I agree that their complaint is based more on abortion rhetoric than abortion case law (though I’d be stunned if Blackmun didn’t mention the intimate nature of reproductive decisions placing them beyond state oversight). But this is worth highlighting only to disabuse the public of the disengenuous “reproductive freedom” and “reproductive rights” garbage. When Alito was nominated to the Supreme Court, for example, I saw an interview with Lawrence Tribe where in a couple minutes he entioned “reproductive rights” three times. So the concept may be weak legally but it’s still salient (or rhetorically useful) to a Constitutional scholar and advocate like Tribe. For that reason it’s important to educate people that Tribe doesn’t believe in reproductive freedom because he doesn’t think men should be able to decide, apart from the decision to have sex, whether or not they reproduce. If “reproductive freedom” means the freedom to abstain from sex, no one opposes it, and if “reproductive freedom” means the freedom to choose not to reproduce apart from consenting to sex, no one supports it.

  4. Kaimi,

    I just went back and looked at Roe and Casey. Reproductive freedom is more foundational than we had remembered — it’s the second prong in the right to privacy. Here’s the relevant section from Casey:

    “State restrictions on abortion violate a woman’s right of privacy in two ways. First, compelled continuation of a pregnancy infringes upon a woman’s right to bodily integrity by imposing substantial physical intrusions and significant risks of physical harm . . . ***

    “Further, when the State restricts a woman’s right to terminate her pregnancy, it deprives a woman of the right to make her own decision about reproduction and family planning – critical life choices that this Court long has deemed central to the right to privacy. The decision to terminate or continue a pregnancy has no less an impact on a woman’s life than decisions about contraception or marriage. 410 U.S., [505 U.S. 833, 928] at 153. Because motherhood has a dramatic impact on a woman’s educational prospects, employment opportunities, and self-determination, restrictive abortion laws deprive her of basic control over her life. For these reasons, “the decision whether or not to beget or bear a child” lies at “the very heart of this cluster of constitutionally protected choices.” Carey v. Population Services International, 431 U.S. 678, 685 (1977).” (emphasis mine)

    Those bolded statements are the basis for Roe v. Wade for Men.

    Here are a few other related statements.

    “This has been and, by the Court’s holding today, remains, a fundamental premise of our constitutional law governing reproductive autonomy.”

    “. . . liberty relating to intimate relationships, the family, and decisions about whether or not to beget or bear a child.”

    “In well-functioning marriages, spouses discuss important intimate decisions such as whether to bear a child.”

    “The ability of women to participate equally in the economic and social life of the Nation has been facilitated by their ability to control their reproductive lives.”

  5. Right now women are not responsible when it comes to getting pregnant because they know they can always force a guy to support her once she has a baby. Its just not fair. If she wants to have a baby without his blessing, then she should pay for the baby herself. Its her body and her right, but its his wallet and she should keep her hands off of it.

  6. derek,
    You’re right that the situation as it currently stands isn’t fair to men. But to me the answer isn’t to let men off the hook, it’s to put women back on the hook.

    As much as I hate the sentiment behind this “Roe v. Wade for men,” I’m glad they’re doing this because, if nothing else, like Matt Evans points out, it will shed light on the stupidity of the “reproductive rights” argument for abortion.

    A quick question to the lawyerly among us: this case has no chance, right?

  7. Sorry, I shouldn’t call the reproductive rights argument “stupid.” I should’ve found another way to express my opinion that the argument is entirely without merit.

  8. As an objective observer to the conversation:

    In the case of Wenger v. Evans, score 1 for Evans. Point very well taken.

  9. “A quick question to the lawyerly among us: this case has no chance, right?”

    This case isn’t actually novel; men have tried to use the rationales for abortion in child support cases before. The case is likely to fail, as courts aren’t committed to reproductive freedom. What is new is the PR dimension — trying to make it a movement instead of an isolated legal case. The group is smart to begin forcing people like Tribe to ante up or go home.

    I think they have a decent legal argument. Because they’re not claiming that their reproductive right is so strong as to require a dead baby, they can argue that only a woman’s “bodily integrity” allows a dead baby, but the right to “reproductive autonomy” is sufficient to allow them to refuse non-body parental duties.

    It also seems that a father’s right to place a child for adoption, whereby he severs all rights and responsibilities to the child, shouldn’t be contingent on the mother’s doing the same thing. It doesn’t make sense to allow the mom to force the father to pay, by keeping the child, but not let the child force the father to pay if the mom doesn’t want the baby either. (An adopted child has no legal claim on the father’s income).

  10. hey can always force a guy to support her once she has a baby.

    Well, assuming they are able to keep the baby and the guy doesn’t get it instead. In which case, she has to pay support.

    Sorry, I shouldn’t call the reproductive rights argument “stupid.� I should’ve found another way to express my opinion that the argument is entirely without merit.

    Reminds me of my favorite mention of Fed.R.Civ.P. Rule 11 — by the loser in the Supreme Court who insisted that the prevailing party’s case was so weak it should have been dismissed under Rule 11. I’d say that winning at the Supreme Court level is an indicator that your argument might prevail. … ;)

    But yes, judges have traditionally not responded well to this type of argument.

  11. This hearkens back to my earliest exposure to the idea of abortion, reading some Hemingway short story in junior high. The teaching that I took away was that abortion is something men force on women so they may go on with their unfettered, writerly, bull-fighting lives. That combined with the high school English class essays against abortion, always written and recited by girls, who apparently were horrified at thought of their nacent reproductive potential being abused, inoculated me from ever taking seriously the notion of abortion as a women’s rights issue.

  12. Matt, are they claiming the right to refuse fatherhood at arbitary times, even after the child’s birth? Or only during the limited time frame in which an abortion would be legal? Only the latter would seem to make “sense,” but it would seem to require that the woman notify the father of the pregnancy in order that he may avail himself of this “right.” But if I understand correctly, the Supreme Court has declared such notification an “undue burden,” so I think they’re screwed. Unless, I suppose, the Court also held that a woman’s right to future child support would be waived by failure to notify the father during the legal abortion period.

    It is ridiculous that any of this is taken up by the federal government. It should all be a matter for the states.

  13. They won’t convince Kennedy on this, and if they don’t get Kennedy, they lose. I can’t see Kennedy weakening his rationale from Casey. He’s still trying to defend it in the public sphere when he gets the opportunity.

    In a lecture he delivered a couple of years ago, he indicated he did not believe that the issue was constitutional “privacy” (penumbras be damned!). Instead, he carefully structured his opinion to defend a woman’s freedom from bodily intrusion, or to protect her bodily integrity.

    In the portion you cite, Matt, the right to make decisions about reproduction and family planning are ancillary to a woman’s right to bodily integrity. If the state compels a father to pay child support, they may be overriding his decision about “reproduction,” but they do nothing to injure his bodily integrity.

    I also agree that the issues raised are healthy discussion fodder to parse the rhetoric of both sides.

  14. Of all the utter silliness that feminism has spawned, this men’s-right-to-have-irresponsible-sex reaction to it is among the silliest.

  15. In the 18th century, this whole Roe v. Wade for Men could have been contained in a satirical essay. Call it, say, A Modest Proposal. Now you have to go to court to make the same point?? Why are we so anxious to cede political decision making to an unelected bevy (and a grossly bloated bevy it is) of Platonic guardians?

    Christian is right. This should never have become a matter of federal law.

  16. I sincerely hope this case fails. If you actually father a child its your responsibility to support said child. Not the state and not the mother alone.

    Is Hugh Hefner behind all of this?

  17. In addition, there is a long-standing recognition that public policy favors declarations of paternity. If the Supreme Court were to favor the men in this controversy, it would create generations of bastards dependent upon the state to provide for their needs.

    Further, if the Court declares that men have a right to make reproductive decisions on an equal basis with women, it could likely interfere with a woman’s right to be free from bodily intrusion. For example, a man can declare that he does not want to be the “father” for child support purposes, does he also get the right to choose to be the “father”? If yes, what result when the woman chooses to terminate the pregnancy, but the man wants the child?

    In short, this case won’t survive.

  18. Christian, the group is arguing that fathers should have a limited time, comparable to a mother’s with abortion, to exercise their “reproductive freedom.”

  19. I see the major problem being that people think we have a right to have sex and not have kids. Kid-less sexual relations are now the default. People are forgetting that to prevent having children you are responsible for doing something to halt nature. Having sex without repercussions isn’t a basic human right. It is a luxury (for which I am grateful) that too many are taking for granted.

  20. People are forgetting that to prevent having children you are responsible for doing something to halt nature.

    This argument is completely bogus, since being human has always been about technology. Homo sapiens was born gripping a stone hand-ax. Everything from health care to haircuts are “doing something to halt nature.”

  21. Christian, I think you misread Starfoxy’s post. She wasn’t arguing against technology, only pointing out that no matter our efforts to harness nature, we are still responsible for the consequences.

  22. Well said Matt.

    Christian, did you think that I am aruging that use of BC is not natural and thereby wrong? That sentence you quoted was very poorly constructed on my part, and I can see how you could get that arguement. I don’t think that the use of technology to prevent conception is wrong. Let me try writing that sentence over again: “We forget that in order to prevent conception (and thereby the birth of a child) some technology must be used to alter the natural course. ”

    I’m mostly trying to get at the idea that these men who accuse women of “getting pregnant just to get in my wallet” forget that they, too, took part in the conception of the child. If they didn’t want that child then they should have done something to prevent conception. There are birth control options available to them that they could have implemented. And if they feel those BC options are insufficient then they should lobby for more. I don’t think that they can be absolved of responsibility for children that they fathered when they made no effort to curtail their own fertility.

  23. Matt and Starfoxy, thanks for clarifying (and sorry for being inappropriately and unpolitely dissmissive in my response). I did find the initial overall comment confusing, and latched onto that one sentence more strongly than was warranted. I agree that if men want to have sex while avoiding reproduction they should take responsibility for their own fertility.

  24. It is my understanding that men don’t have to pay child support if they give up parental rights. Also, men don’t have to pay to support the mother, the money is a percentage of the incomes and divided out.

    But you are all missing the bigger point here. If a man doesn’t want to pay child support for a child, he shouldn’t have sex.

  25. Re: 24. Nope. Not right. Give up all the parental rights you want, but if the child isn’t adopted by someone else, you are responsible.

    As Maury would say, “You ARE the father!”

  26. I’m with Kaimi. There is nothing inconsistent let alone shocking about the NOW position. There are at least four “rights” in question here. I’m guessing that Kim Gandy would rank their importance in this order:

    1. A woman’s right to control what happens within her body.
    2. A (post-birth) child’s right to support from its biological parents.
    3. A man’s or woman’s right to live a life unencumbered by the emotional/financial responsibilities of caring for a child conceived by accident.
    4. A fetus’s right to live.

    This Roe vs. Wade for Men is an argument about the relative importance of 2 and 3. It has nothing to do with reordering their importance relative to 1 and 4.

    To summarize, my guess as to how they would rank these “rights” (which often cannot all be mutually satisfied):

    Kim Grandy: 1, 2, 3, 4
    Roe v. Wade for Men Guy: 1, 3, 2, 4 (or possibly even 3, 1, 2, 4: in any event, 3 trumps 2).
    Matt Evans: 4, 2, 1, 3

    So… did I at least get Matt Evans correct?

    Matt’s point seems to be “Grandy says 2 trumps 3. This proves that all these people who have been using 3 as a pro-choice argument are no good hypocrites.” (Do I oversimplify?)

    But it seems clear that most pro-choicers still think 3 is extremely important—but that 2 is even more so.


  27. I’m gonna sue someone so that I have can complete control of what goes on (and comes out of) my attorney escrow account. It’s got my name on it, after all.

  28. S.,

    Thanks for your comment. I don’t believe Kim Gandy, or most people, believe 2 trumps 3, because that would lead them to oppose child adoptions (which they don’t oppose), as child adoptions “unencumber” the parents from their child’s claim without the child’s consent.

    For similar reasons I don’t think the other rank-heirarchies you’ve created are particularly useful, either. For example, it’s hard to argue that a child’s right to financial support is greater than their right to life, since their right to support is meaningless if they’re dead.

  29. Matt,

    Perhaps I should have spelled these out more explicitly. 2. should be “right to support by biological parents IF nobody else agrees to take on the responsibility of support in their stead.”

    It’s true that having 2 and 4 in direct conflict requires some imagination. But you’re a reasonably creative guy. I’ve no doubt you could pose the question “Which is the greater evil, the loss of a (5 week, 10 week, 20 week) fetus or the abandonment/neglect of a newborn child by its parents” in a way that was meaningful to you if you had the energy to do it.

  30. S.,

    Because I see no moral distinction between persons of different ages, the question turns on whether it is more evil to abandon a child of 5, 10, 20, 40, or 60 weeks. The harm caused by their abandonment, it appears to me, turns solely on their dependency. I oppose abortion because parents have affirmative duties to support their children, especially when the child’s life depends on their support, as their physical safety does in the early stages of development, given current technology. If a parent refuses to financially support their child it is unlikely that the child will die as a result, and usually just means that someone else has to provide for the child. The two harms (death vs. being supported by a non-parent) can’t be compared because they’re magnitudes apart.

  31. Matt,

    Yes, this is what I assumed your position would be.

    Of course you are well aware that many (probably most) pro-lifers believe that the life of an early stage fetus—while important and deeply sacred—is still less significant than the life/welfare of a newborn child or of an adult. (The church admits abortion in some circumstances, many church leaders support stem cell research, reducing infant mortality and curing adult diseases are almost universally considered more urgent than decreasing the miscarriage rate, let alone the rate at which fertilized eggs naturally fail to implant, etc., etc., etc.)

    But all of this has been discussed at very, very great length on other posts. I certainly grant you that your position is simple and consistent, and while I don’t share your views, I agree that 4 should be a higher priority than 2.

  32. “[many] pro-lifers believe that the life of an early stage fetus—while important and deeply sacred—is still less significant than the life/welfare of a newborn child or of an adult.”

    I agree. I think that most pro-lifers are like most 19th century abolitionists: slavery is evil, all men are created equal, but hell no, no negro can marry my daughter. (Stephen Douglas worked that contradiction to great effect.)

    On the other hand, people have different emotional reactions to age despite their belief that moral value doesn’t turn on age. Accidental deaths of 8-day-olds provoke less grief than those of 8-month-olds, which elicit less grief than those of 8-year-olds, but their accidental deaths elicit more grief than those of 88-year-olds. None of this, however, contradicts our belief that each of them is a complete human being with full — and equal — moral worth.

    We also react worse to harms to people we know, or identify with, than we do to strangers from unfamiliar cultures. But that fact doesn’t mean we believe that a girl in my ward has greater moral worth than a Hindi girl in the Himalayas.

    For these reasons I think that the discrepancy you perceive in pro-lifers is not due to their being inconsistent, but to the fact that the persons they are fighting for are persons that are young (even less than 8-days-old) and unknown to them.

  33. “Of course you are well aware that many (probably most) pro-lifers believe that the life of an early stage fetus—while important and deeply sacred—is still less significant than the life/welfare of a newborn child or of an adult.”

    Matt Evans is right and his analogy to the Hindi girl in the Himalayas is particularly instructive. Its OK for us to care more about the health of our own children than about the girl in the Himalayas, because we have formed a relationship with the one and not with the other, but it wouldn’t be ok for us to sanction the intentional killing of that girl. That, I think, is where most pro-lifers are at when it comes to unborn children–they may not occupy us as objects of moral concern the same way that the children we hold and kiss do, but we can’t tolerate their slaughter. Modern technology will change this equation somewhat but not completely.

  34. For me, at least, the exciting point of this lawsuit is to get people to say (as D Ion did):

    “But you are all missing the bigger point here. If a man doesn’t want to pay child support for a child, he shouldn’t have sex.”

    Because once you have said that, the obvious question becomes “If we’re so comfortable forcing men to be responsible for their actions, then why are we so intent on ensuring that women are NOT responsible for their actions?”

    I don’t really care that much what the lawyer types like Kaimi want to say about the merits of this case. (Sorry Kaimi). It’s too late for the law to make any sense of the issue of abortion. What’s important in my mind is what people think about abortion. And right now the rhetoric is very powerful. No one is “pro-abortion”; people are “pro-choice”. How Orwellian is that? And what this case does, more than anything else, is to devastate the rhetorical appeal of the “pro-choice” moniker. Nothing is more intellectually repugnant to me than the banal claim (among Mormons) that we need to leave abortion legal because we must respect “free agency”. On a larger scale (meaning including non-Mormons as well as Mormons) the rhetoric works in much the same way: women should be free to make their own choices. What this case does is point out that sometimes there are issues more important than the legal right to make choices. That’s the reason I was so happy to read of this lawsuit.

    Pro-choice pundits will happily tell you that polls routinely show that Americans are staunchly “pro-choice”. That’s because if you call an American up and say “do you support a woman’s right to choose?” who’d honestly going to say “no”? Only those few pro-lifers who know what the real question is. But if you ask the same sample of Americans “do you think women should have a Constitutionally protected right to end a pregancy by abortion for any reason through the full 9-months of pregancy?” then suddenly the “pro-choice” majority evaporates.

    What this demonstrates is how important rhetoric is in this debate, and how much of the pro-choice success rests on a desperate reliance on the fact that most Americans don’t think seriously or clearly about abortion. There’s simply no other explanation for the continued opposition among Democrats (and some Republicans) to the ban on Partial Birth Abortions (just as an example). That’s not the kind of think you can oppose unless you can depend that people have no idea what you’re actually doing.

    Once Americans realize that there’s nothing wrong with being “anti-choice” (just like we’re all anti-choice on the issues of murder, child molestation, embezzlement, grand theft auto, etc.) the hypnotic power of the “pro-choice” rhetoric begins to fade. And once Americans are past that I think you will see that last vestiges of popular support for abortion on-demand beging to crumble. I’m not trying to get abortion banned entirely – very few pro-lifers are. I, like the majority of the pro-lifers out there, just want abortion to cease to be a valid method of birth control.

    If we can say to men: “If you don’t want to get pregnant, don’t have sex” it will be easier to say to women: “if you don’t want to get pregnant, don’t have sex”. We hold men responsible for the consequences of their actions. To do fail to do so for women is, in my opinion, a genuine example of (benevolent) sexism.


    Final note: It should be obvious from this that I consider the basis for legalized abortion in a women’s right to her own body pretty shoddy stuff. A fetus may be geographically located within her body, but the fetus – as a distinct human life – has it’s own claim to its own body that a woman can not morally override for the sake of convenience. A woman can do whatever she wants to her own body, but an unborn baby is IN her body, it is not a part OF her body.

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