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November 01, 2005

A writing exercise for my readers

This is for everyone, male or female, regardless of your opinion on the subject at hand. Think of it as a rhetorical exercise. Or a group gedankenexperiment.

In comments below, make an argument in favor of spousal notification laws with regard to abortion. Remember, pro-choicers can play too. Your only rule is that the argument cannot in any way rely on the presumption of ownership of one person (or potential person) by another.

Ready?
Go.

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Comments

*crickets*

Posted by: KathyR at November 1, 2005 06:53 PM
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Nope. Can't do it. Point well-taken.

(Though I find the pro-choice assertion that people own their own bodies, so that anti-abortion legislation violates their property rights, to be equally spooky. People aren't property. Period.)

Posted by: dale at November 1, 2005 07:01 PM
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Thank you for making a point that desperately needs to be made. Let's hope the right folks are listening...

Posted by: Space Kitty at November 1, 2005 07:28 PM
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Women who have abortions without notifying their husbands first will spontaneously undergo a biological process that subjects them to severe, rapid thermal expansion.

You didn't say it had to make sense.

Posted by: Allison at November 1, 2005 07:48 PM
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um...
well, maybe...
no, that's nonsense...
uh...
Nope.

I'll be really fascinated to see if anyone can make anything of it.

Posted by: Stephanie at November 1, 2005 07:48 PM
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Women are stupid and can't make rational decisions for themselves, thus the consultation by a man-friend is necessary. This has nothing to do with ownership and everything to do with the patent fact that women are barely cognizant. I mean, Jesus, if they didn't have their looks what would they do?

Posted by: Lauren at November 1, 2005 08:18 PM
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I could go at it from a 'friend trying to give someone good advice about their relationship' angle where, perhaps, it would be a good idea for the wife to discuss such things with her husband in the same way that discussing any personally significant event with one's partner would be, especially when the event involves him(as the father). For the sake of being honest and open with one another.

I find it very difficult, if not impossible, however, to imagine what medical/legal/financial neccesity such a law would be fulfilling by trying to legislate what personal information spouses should share with one another. If someone wants to keep secrets (assuming they didn't commit a crime), it's legally okay for them to do so. I'm not sure how that would work out if there was something specifically mentioned in the prenup about such an instance...I don't know enough about marraige laws.

If I really grasped at some straws, I'd argue something about the potential father's parental rights extending to the right to be notified of his wife's abortion, considering he is 50% responsible for that pregnancy occuring. I dislike this argument for at least two reasons: One being that it opens up a whole can of worms over when a man is officially granted 'parental rights', and whether such rights should trump the medical privacy rights of the woman undergoing the procedure. The other being that it cuts very close to the issue of 'ownership' over the embryo/fetus and of the woman's body.

There, I tried.

Posted by: Shannon at November 1, 2005 11:01 PM
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All I could come up with is the converse: assuming spousal notification is justified under the conditions, what other types of notification would proceed from the same argument? Notice of intent to ovulate? Agreement on timing and frequency of male masturbation? Letter of understanding re: thinking of someone else during sex?

Posted by: doghouse riley at November 1, 2005 11:47 PM
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Actually, Chris, I think you've set this up to be impossible to answer. Can we try it again without the clause in parentheses? (Which, apart from anything else, would make it difficult to argue for abortion rights in the first place.)

Posted by: Phil at November 1, 2005 11:54 PM
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The state has a legitimate interest in strengthening the institution of marriage. [Insert standard anti-no-fault-divorce, anti-SSM rhetoric here]. In fact, the state has such a compelling interest in promoting marital harmony that it can override virtually any individual right with nothing but a hand waved vaguely in marriage's direction. "Reproductive decisions are important and should be shared by the couple" is sufficient hand-waving; one's individual right to privacy does not extend to one's spouse.

Also, if your spouse is a cop, you are eligible for unlimited searching and seizing; if your spouse is in the military his/her battalion can be quartered in your home.

Posted by: yami at November 2, 2005 01:05 AM
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Notice of intent to ovulate?

Ha! Only thing is, Doghouse, it's practically true.

Let's not forget that only about 7-8 months ago, some freakshow wingnut state legislator in Virginia wanted to pass a bill requiring women to report miscarriages to the police.

Posted by: SneakySnu at November 2, 2005 06:28 AM
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That's easy! The woman has to tell the man cuz men don't like surprises!

Seriously, these laws are disgusting. And even if an argument could be made for the notification, then what? What, exactly, is the man supposed to do with this information? Has there ever been a case of a man using legal means (as in the courts) to successfully block an abortion?

Posted by: JeffL at November 2, 2005 06:32 AM
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(this is my second attempt to comment. I hope the first doesn't strangely show up out of the blue.)

Notice of intent to ovulate?

That's funny, Doghouse! But here in Gilead, also possible. Let us not forget that a mere 7-8 months ago, some freakshow wingnut Virginia state legislator wanted to pass a bill requiring women to report miscarriages to the police.

Posted by: SneakySnu at November 2, 2005 06:40 AM
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Wow, what a failure of imagination here. While I oppose this law pretty strongly, it's not impossible to construct an argument for it.
After all, we might all think its reasonable to require a father to at least tell the mother before, say, committing their child to a mental institution, having the child circumcized (especially if it's a baby girl), or other situations.
It comes down to the question of when does the potential child become a person. And this is a person to which both parents rightly have guardianship responsibilities, responsibilities that we as a society should be strongly encouraging.

Look, if you're going to argue with the people who think this is a good idea, you should be able to understand them. Personally, I think that society should be focused more on the next 10-20 years of parenthood, rather than the minus 9 months of it, and that the real motivation of this law for many people is to punish and repress women and sexuality, but there likely are people who have a at least somewhat defensible view of it.

(and I love the journal, by the way)

Posted by: Quercus at November 2, 2005 06:53 AM
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It's not all that difficult if you start from the premise marriage is a kind of corporation with the purpose of procreation.

Offspring are product of the union without being 'owned' by any single individual composing the corporation.

Anything that affects the ability of the corporation to perform its function could require the individual to disclose it.

I guess this would also mean spousal notifications in the case of any kind of birth control, vasectomies included. So the shoe so to speak could theoretically be on the other foot. And knowledge of medical conditions affecting procreation prior to marriage would be interesting.

So, what's everyone's take on child support obligations in the case of paternity?

Posted by: Andrew Warinner at November 2, 2005 06:57 AM
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So, what's everyone's take on child support obligations in the case of paternity?

I never even touched her. I swear.

You can construct a straight liability justification for child support, based on participation in behavior and failure to take appropriate precautions. (Though precautions do fail. I have bought holiday presents for at least one child born after a failed vasectomy.)

And thanks for the good words, Quercus. It's my contention that I do understand many of the people in favor of spousal notification, and that understanding can be boiled down into the phrase "my kid." I also don't think this sense of ownership is restricted to men, nor that it is entirely a bad thing in all of its facets.

Posted by: Chris Clarke at November 2, 2005 07:18 AM
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Hmm. I'll bite. (I'm totally opposed to spousal notification, parental notification, and most any restriction on abortion, by the way. Not in the "man, you have a point about sovereignity over your own body" sort of way, but in the sucker-punch-to-the-gut feeling way.)

In the event of adverse side effects, or possible death, the surviving spouse would legally be responsible for his wife's medical bills. To undergo any medical treatment without informing a spouse should thus be illegal, on the grounds that they are the ultimate bearer of financial responsibility in the case of the death of the patient.

Of course, you'd have to legally require all spouses to tell each other about *all* medical procedures for this reasoning to work.

Do I win? Do I win?

Posted by: AB at November 2, 2005 08:12 AM
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Is it just me or is anyone else reminded of "21 Grams"?

Posted by: Andrew Warinner at November 2, 2005 08:18 AM
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No. That still isn't good enough. In the event of such a scenario, the spouse would be notified of any existing pregnancy and would be required/allowed to choose a course of action at that point based on available alternatives.

You don't own your kid, but you do own your sperm -- until you give it away. Yet if once given away it combines with an egg and turns into a viable fetus and eventually a child, you may be held legally responsible for what happens to it or for what it eventually does in the world. But that's something we are all expected to consider before voluntarily engaging in activities which might lead to conception.

If you want to keep control over your sperm and its future, and if you wish to avoid any surprise responsibilities, don't go giving it away, dudes, or at least be very careful where you put it. Otherwise, tough luck. Not a whole lot of life is about things you can control.

Posted by: Sara at November 2, 2005 08:26 AM
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If you want to keep control over your sperm and its future, and if you wish to avoid any surprise responsibilities, don't go giving it away, dudes, or at least be very careful where you put it.

So in one case where a dude gives the gift of sperm, resulting in offspring, and thus shoulders a responsibility and legal liability.

In another case, a dude gives the gift of sperm and the recipient decides to terminate the result of the gift but there is no reciprocal responsibility?

What is the difference between the two situations?

Posted by: Andrew Warinner at November 2, 2005 08:49 AM
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OK, well I'm a lawyer and have been trained to make arguments for a position whether or not I personally agree with it, so I'll bite (puts on devil's advocate hat):

Eseentially, my argument is based on the notion that both parents have a fundamental right to participate in the upbringing of a child, just as both parents have the responsibility to contribute to their care.

A biological father bears legal and financial responsibility for a child. For example, a woman who bears a man's child can file a paternity suit, forcing the father to contribute financially to the child's care.

Conversely, the father also has legal rights with respect to the child. For example, the father has the right to spend time with the child and participate in its upbringing (unless he has done something to forfeit those rights, e.g. abuse).

This is as it should be; to the extent fathers care for and contribute to te welfare of a child, they should have the right to establish a father/child relationship, just as the mother has such a right.

Now, if you consider a fetus to be as morally important as a child, the argument is complete. Granted, that's a big premise to adopt, but it isn't an argument based on legal ownership or property rights. And I doubt very many of you want to deny that parents should have the right to participate in the upbringing of their children.

BTW. I don't know whether the father has a legal responsibility to provide/contribute to prenatal care, but I doubt few of you would disagree that from a moral standpoint, the father shoud do so. With that moral responsibility comes some say in how the pregnancy should or should not continue.

Finally, consider the situation from a purely emotional standpoint: Imagine that you're a father who knows the mother is pregnant with your child. Suppose that you intensely want that child to be born, and you look forward to it with all your heart. Perhaps the mother has told you she also wants the baby, making it quite reasonably for you to make that emotional investment (indeed, most people would say it would wrong to remain indifferent). Hence you expect it, and you contribute a great deal of time, energy, and financial resources towards it.

Now imagine that the mother aborts the child without telling you. Imagine the emotional devastation that would inflict on you. Is that right?

Bottom line, we expect fathers to take responsibility for their offspring, and we would prefer that they have an emotional investment in them. Why then, should the father have no say in how or whether the pregnancy proceeds?

(Note that this doesn't imply the father gets to trump; just that they should have a voice in it.)

Now obviously there are many counterarguments to the above argument, but it isn't based on ownership or property rights.

Posted by: Mike Anderson at November 2, 2005 08:59 AM
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Many of the arguments regarding (for or against) spousal notification rely upon what I think is a mistaken equivalency. That is, the debaters start from a premise along the lines of "well, if the baby is born, then . . ." But that "if" is the whole point.

I would definitely want to know if my female spouse were getting ready to have an abortion. But I cannot think of any legitimate interest the government has in ensuring communication between my spouse and me. And even if someone were to assert such an interest, it would be impossible to draft a law to advance that interest in all circumstances without doing far more harm than good.

I cannot let the premise articulated above, that "marriage is a kind of corporation with the purpose of procreation", go without a comment. Was this a serious suggestion? I hope not, becaue if it is then the writer has a pretty narrow view of human relationships. Should the State force childless couples to divorce and try again with someone else? Should the State prevent post-menopausal women, or male survivors of testicular cancer (to take just two examples) from marrying? I could go on but I won't.

Posted by: Charles at November 2, 2005 09:00 AM
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I'm assuming that it was a statement for purposes of the discussion, rather than a statement of personal belief.

Posted by: Chris Clarke at November 2, 2005 09:06 AM
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Sorry for the somewhat emotional reaction. I've heard that advanced seriously before and it hits a nerve, I guess.

Posted by: Charles at November 2, 2005 09:10 AM
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"I cannot let the premise articulated above, that "marriage is a kind of corporation with the purpose of procreation", go without a comment. Was this a serious suggestion?"

I don't think that's an accurate summary of the argument.

Let's see if we can agree on the premises: Do you think fathers should have a legal responsibility to contribute to the upbringing of their offstrping? Do you think they have a moral responsbility to do so?

And conversely, do you think a father (assuming they act responsibly, e.g. they aren't abusers) should have the legal right to participate in the upbringing of their children, and to spend time with them?

I understand that you say that the "state has no interest" in laws that governing notification of abortion; but do you think the state has an interest in enforcing the rights I just mentioned?

If so, what's the crucial distinction?

Posted by: Mike Anderson at November 2, 2005 09:19 AM
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Mike's argument is a winner. If, as he mentions, we accept that a foetus is a baby, which I don't. This is also a good point that will work against people oppposed to the law:

(Note that this doesn't imply the father gets to trump; just that they should have a voice in it.)

Pro-notification people can say that all they want is for the father to know, not to give him the right to stop the mother from getting an abortion. Of course they're asking that the woman go through a possibly dangerous act of confronting the father with her decision but they won't want to talk about that.

Posted by: eRobin at November 2, 2005 09:24 AM
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Mike,

I am quite sure I accurately summarized the premise to which I referred; after all, I quoted it verbatim. The points you go on to make do not seem to me to flow from that premise. Also, I do not think your arguments respond to mine.

My point is simple: Simply pointing out that a father may have responsibilities -- and may even have rights -- after the birth does not have much to do with what happens before the birth. The birth (or not) itself is the crucial distinction. Once there is a live baby I think the State does have an interest in making sure that human being is supported.

Posted by: Charles at November 2, 2005 09:30 AM
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"Mike's argument is a winner. If, as he mentions, we accept that a foetus is a baby, which I don't."

Well let's take the semantics out of it then:

Do you think the father has a moral obligation to contribute to the prenatal care of a fetus? Do you think this should be a legal obligation as well?

If so, is it fair to force the father to bear these responsibilities, while giving them no say in whether the fetus is brought to term?

Posted by: Mike Anderson at November 2, 2005 09:31 AM
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"I am quite sure I accurately summarized the premise to which I referred; after all, I quoted it verbatim."

Ah, OK, I see it now -- sorry, I thought you were responding to me.

Posted by: Mike Anderson at November 2, 2005 09:33 AM
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"If so, is it fair to force the father to bear these responsibilities, while giving them no say in whether the fetus is brought to term?"

That accurately poses a big part of the question, I think. In my view the answer is "yes, it is fair."

Posted by: Charles at November 2, 2005 09:37 AM
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" Simply pointing out that a father may have responsibilities -- and may even have rights -- after the birth does not have much to do with what happens before the birth. The birth (or not) itself is the crucial distinction. Once there is a live baby I think the State does have an interest in making sure that human being is supported."

I take it you would say the father has no moral responsibility for the unborn fetus, and that he should have no legal responsibility for it?

I don't know if you'd agree with that, but I wouldn't. Prenatal care is enormously important. It's the single biggest factor affecting the infant mortality rate (indirectly through birth weight). If we expect a father to contribute to the care of an infant at day one, I can't imagine any logical reason why we wouldn't expect him to contribute at the prenatal stage.

BTW, what's so magic about the point of birth? Do you think a woman should be allowed to abort the fetus one day before its expected birth?

Posted by: Mike Anderson at November 2, 2005 09:37 AM
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"That accurately poses a big part of the question, I think. In my view the answer is "yes, it is fair." "

Well I suppose fairness is sometimes in the eye of the beholder, but I'm not sure I agree.

I would concede that nature itself is unfair in that the mother is forced to bear most of the burden; but I don't know that this would justify cutting the father out of the process altogether.

And from a purely utilitarian standpoint, doesn't it make sense to encourage fathers to make an emotional investment in their children? Is it wise to use the law to require them to do so, without rewarding them for it as well, e.g. all stick and no carrot?

Posted by: mike Anderson at November 2, 2005 09:41 AM
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One last comment from me then I'll stop hijacking the blog.

I respectfully think Mike is mixing up pre- and post-natal obligations. I am trying to decide whether eRobin's point -- that the issue depends upon whether we accept that a foetus is a baby -- is correct. That argument brings into play the viability logic employed by Roe with which I have never been sure I agreed.

I will retreat into the following point: Merely because we think a father should have obligations to ensure prenatal care, and merely because that father may later have post-natal responsibilities and rights, does not justify the State passing a law that requires all mothers to notify all fathers about abortions.

Posted by: Charles at November 2, 2005 09:51 AM
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"Merely because we think a father should have obligations to ensure prenatal care, and merely because that father may later have post-natal responsibilities and rights, does not justify the State passing a law that requires all mothers to notify all fathers about abortions."

Speaking personally (i.e. no longer as a devil's advocate), I think that statement is true, so far as it goes. But I do think it's a little too conclusory to be a good argument; there are some intervening steps in the logic that you need to get there.

By the way, I think it's always important to keep separate the question of what is morally right as compared with what should be legally required. There are many moral wrongs (i.e. lying) that we do not legally prohibit, and for good reason.

There is the question of whether the "state has an interest" in enforcing a given right or responsibility. Unfortunately that phrase often substitutes for the hard part of the analysis: What do we mean when we say the "state has an interest", and why is that so?

These are enormously complicated questions. I could take either side of this argument and tie the other side in knots all day long -- not because a good lawyer, but because these are very, very hard questions when you get down to it.

I would only ask others to appreciate how difficult these questions are, and to avoid knee-jerk reactions based on our politics. Instead, go through the hard work of taking them seriously. For one thing, it's a lot more interesting that way!

Posted by: Mike Anderson at November 2, 2005 10:00 AM
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" Do you think a woman should be allowed to abort the fetus one day before its expected birth?"

Happens all the time. It's called "inducing labor".

Posted by: donna at November 2, 2005 10:19 AM
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"Happens all the time. It's called "inducing labor"."

1) I don't know how often that's done with the intent of killing the fetus, but I have the impression it isn't often;

2) The mere sobservation that something happens all the time isn't an argument for the morality of the act, or that it should be legal.

Posted by: Mike Anderson at November 2, 2005 10:23 AM
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A brief point: "letting the father know" is not necessarily the same thing as "letting the husband know."

Indeed, I would guess that in most cases where the woman wants to get an abortion without telling her husband, father =/= husband.

So reproductive rights and ownership of the fetus are not really what's at issue here: it's the husband's right to decide what goes on in his wife's womb.

Otherwise the law would be written to have _all_ women need to obtain permission from their sperm donors before an abortion, not just married ones.

Posted by: Rana at November 2, 2005 10:32 AM
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"Otherwise the law would be written to have _all_ women need to obtain permission from their sperm donors before an abortion, not just married ones."

I'm pretty sure that in the sperm donor process, the donor and the donee give up all rights to enforce otherwise-legally-enforceable rights against the other.

Generally speaking, In the usual situation, a man who is the father of a child - regardless of whether he's married to the mother - can be legally forced to contribute to the upbringing of a child, and likewise he may have rights to participate in the child's upbringing. (This is a simplification, there are many other factors that come into play in any given situation.)

Posted by: Mike Anderson at November 2, 2005 10:52 AM
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Now, if you consider a fetus to be as morally important as a child, the argument is complete. Granted, that's a big premise to adopt, but it isn't an argument based on legal ownership or property rights.

Actually, your argument strikes me as incomplete, Mike. OK, you've made a sound argument that the law doesn't treat the fetus as property, but what about the mother? The only possible purpose of the notification is to give the father a chance to intervene and force the mother against her will to carry the child to term. This forcing is clearly treating another as property -- the mother becomes nothing more than a "machine" for delivering the child only the father wants!

Posted by: JeffL at November 2, 2005 01:01 PM
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"The only possible purpose of the notification is to give the father a chance to intervene and force the mother against her will to carry the child to term."

I'm not sure that's true though. Granted, I haven't read the text of the law in question, but it's not hard to imagine other possible purposes. If I were a father in that situation, I would want to know about it even if I didn't have the ability to change anything.

In any case:

" This forcing is clearly treating another as property -- the mother becomes nothing more than a "machine" for delivering the child only the father wants!"

This is clearly wrong, even if I agree with you about the purpose of the law. Laws force people to do things all the time, but that doesn't imply property or ownership.

For example, a father may be forced to provide child support to the mother. Does that make the father into the property of the mother, or a "machine" for delivering money?

Posted by: Mike Anderson at November 2, 2005 03:40 PM
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marriage is a kind of corporation with the purpose of procreation", go without a comment. Was this a serious suggestion? I hope not, becaue if it is then the writer has a pretty narrow view of human relationships. Should the State force childless couples to divorce and try again with someone else? Should the State prevent post-menopausal women, or male survivors of testicular cancer (to take just two examples) from marrying?

Off-topic, but that is why a lot of wingnuts oppose same-sex marriage, premarital sex, and contraception -- because marriage is specifically supposed to be a union for the purpose of creating children. They think only married people should have sex, and that married women must always be "open to conception." Unmarried people can't have sex; since gay people can't marry, they also can't have sex. But of course, it's a ludicrous position that, were it to become government-prescribed law, would be incredibly unwieldy to put into action.

Posted by: Anne at November 2, 2005 03:45 PM
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Perhaps I was being too subtle when I used the phrase "sperm donors."

If a man's reproductive rights are the basis for requiring a wife to obtain his permission before obtaining an abortion, then there are two potential problems with the law as proposed.

First, it assumes that the man with the legal right of fatherhood is the _husband_. In the case of a woman conceiving a child while having an affair with another man, it is the adulterous man's rights that are at stake, not the husband's -- at least if we're talking fatherhood and not control of the woman.

In this case, informing the husband does nothing to protect the husband's reproductive rights, because the fetus is not a product of his sperm. Informing the husband also does nothing to protect the reproductive rights of the actual father of the child, because the child was conceived outside of the marriage with a woman not his own wife.

Basically, if a woman conceives a child this way, it is none of the husband's business what happens to said fetus, UNLESS he is considered to have some legal rights with regards to the disposition of her womb.

Again, if the reproductive rights of men are the legal basis for restricting women's rights to abortions without the consent of the male producers of sperm (whether they get the sperm to the egg the old-fashioned way or not), then pregant women seeking abortions should be required to ask permission of potential fathers regardless of the marital state of either person.

But that's not the case.

Women must inform husbands, even if they are not the ones who fertilized the egg. Women are not required to inform men who aren't husbands, even if they are the ones who fertilized the eggs.

Ergo, this law is NOT about protecting the reproductive rights of men -- it is about husbands having a right to know what happens to their wives' uteri, even at the expense of their wives' wishes for privacy.

(And why would they need to know this in the absence of reproductive rights, if there were not concurrent implied rights to control over said uteri?)

Otherwise there would be no reason to limit the law only to married women and their male partners, because the more general term "father" would apply to women across the board, married or not, adulterous or not.

Unless you're arguing that a man who has sex out of wedlock has no legal interest in any potential offspring?

Posted by: Rana at November 2, 2005 04:55 PM
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... because the more general term "father" would apply to women's reproductive partners across the board...

Posted by: Rana at November 2, 2005 04:57 PM
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Rana,

OK, I see what you're saying now, that makes sense.

However, I looked at the text of the law in question (I assume we're all thinking of the Pennsylvania law what was struck down by the Supreme Court, but that Alito would have upheld). It contains an exception for cases where the husband is not the biological father.

From the Casey opinion, describing the law:

"Section 3209 of Pennsylvania's abortion law provides, except in cases of medical emergency, that no physician shall perform an abortion on a married woman without receiving a signed statement from the woman that she has notified her spouse that she is about to undergo an abortion. The woman has the option of providing an alternative signed statement certifying that her husband is not the man who impregnated her; that her husband could not be located; that the pregnancy is the result of spousal sexual assault which she has reported; or that the woman believes that notifying her husband will cause him or someone else to inflict bodily injury upon her. A physician who performs an abortion on a married woman without receiving the appropriate signed statement will have his or her license revoked, and is liable to the husband for damages."

Here's the opinion:

http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=505&invol=833

What's more bizarre to me is that under this law, the doctor is "liable to the husband for damages"! That sounds to me like something more reminiscent of property rights.

Note, by the way, that in many (most?) states, the husband can become the child's legal father even if he isn't the biological father. That is, he can incur all the responsibilities for child support, etc., as well acquiring as the legal rights that come with fatherhood -- for example if he supports the mother and "holds the child out" as his own.

In fact, in California for example, if a child is born into wedlock, there's a legal presumption that the husband is the father, and he has to go to court with evidence to the contrary if he doesn't want to be the legal father.

Posted by: Mike Anderson at November 2, 2005 05:54 PM
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Well, that explains why a husband might wish to be notified, but, again, if this was primarily about _fatherhood_, the law should apply across the board to all pregnant women, irrespective of marital state.

Note that the husband's legal fatherhood depends on an assumption of biological fatherhood, in the case you cite, so, again, requiring women to notify the fathers of their fetuses -- irregardless of marital status -- should be the focus of the law, IF fatherhood rights are the main point.

The fact that there is a special case for married women only, not pregnant women generally, says that this is about marriage, not about fatherhood. That this is about the rights of the _husband_, not about the rights of the _father_.

The only thing legally that distinguishes a husband from a father under such a law is that the former has the right to know what goes on in a woman's womb, while the latter does not.

The only reason I can see for privileging the marital right of the former over (and even to the extent of negating) the reproductive right of the latter (setting aside the marital, privacy, and reproductive rights of the woman for the moment) is that this is about control of the womb, not of the child.

A husband cannot claim a child that is not his, nor become liable for its upkeep, even legally, until it has been born. Ergo, he has no legal or reproductive stake in its welfare before birth, and his wife should be able to do with it as she will without telling him.

The failure of the proposed law to protect her privacy rights in such a matter argues that a husband's interest in the disposition of his wife's womb is a paramount right, ranking in greater importance than her privacy, and her reproductive rights, and the reproductive rights of the actual father.


(In this case the question of the husband becoming a legal father of a child not biologically his is a moot point; if the goal of the law is to protect men's reproductive rights, there is no injury to the husband; an abortion of a non-biological child would in fact protect the husband from legal injury, in that by doing so his wife would not be forcing him to take care of a child he did not conceive, and therefore there is no need for her to notify him of this, because no legal injury has yet occurred.)

The clause with exceptions you cited doesn't change my perspective, either, because, again, NON-married women are NOT included here.

The law is assuming that something profound happens to a woman legally when she becomes married, something that diminishes her rights to privacy and reproductive freedom, and something that doesn't happen to other pregnant women.

Therefore the proposed law is NOT about reproduction (because if it were it would address ALL pregnancies) but about what rights a woman gives up and what rights a man gains, when they get married.


(I would imagine, in fact, that putting a law like this on the books would discourage couples from getting married.)

Posted by: Rana at November 3, 2005 08:31 AM
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"Well, that explains why a husband might wish to be notified, but, again, if this was primarily about _fatherhood_, the law should apply across the board to all pregnant women, irrespective of marital state."

Hmmm. I think you're getting a number of things mixed up here; let's see if we can sort them out.

"Note that the husband's legal fatherhood depends on an assumption of biological fatherhood, in the case you cite, so, again, requiring women to notify the fathers of their fetuses -- irregardless of marital status -- should be the focus of the law, IF fatherhood rights are the main point."

No, the point of the presumption under California law is that it does NOT involve an assumption of biological fatherhood. The biology of the situation is irrelevant. As long as the child is born into the marriage (i.e. the woman becomes pregnant while their married, regardless of who the biological father is), the husband is deemed the legal father, with all the rights and responsibilities thereto.

Similarly, even if a man is NOT married to the woman and is NOT the biological father, he can also be the legal father by "holding the child out" as his own, contributing to its upbringing (including during the prenatal period), and so on.

The policy behind the law is to make it easier to pin the label "father" on somebody, regardless of biology, under the theory that it's good for children to have fathers. Also, by including unmarried men in this system, we want to remove the stigma of bastardy.

Now, let's keep going:

"The fact that there is a special case for married women only, not pregnant women generally, says that this is about marriage, not about fatherhood. That this is about the rights of the _husband_, not about the rights of the _father_."

Well that's only partly right. A biological father who 1) is not married; and 2) who does not contribute to the child's upbringing; or 3) does not hold the child out as his own does NOT have all the other rights of fatherhood, and therefore the notification law is consistent with that.

The kind of man for whom your argument is correct is the man who is not married, but who contributes to the child's upbringing and holds the child out as his own, and who would therefore normally have all the rights and obligations of legal fatherhood, yet he is not required to be notified under the law.

"The only thing legally that distinguishes a husband from a father under such a law is that the former has the right to know what goes on in a woman's womb, while the latter does not."

Again, this is incorrect. Under the notification law, a husband has no right to be notified if he is not the biological father, so he is exactly like any other man who is not the biological father (even a legal father who is not married but who is still the legal father by virtue of having assumed that role as described above).

"The only reason I can see for privileging the marital right of the former over (and even to the extent of negating) the reproductive right of the latter (setting aside the marital, privacy, and reproductive rights of the woman for the moment) is that this is about control of the womb, not of the child."

I can see other reasons. The lawmakers may have thought that if a woman is not married to the biological father, it may be more difficult for her to track him down. The lawmakers may have equated "unmarried husband" with "absentee father" in their minds. As a generalization, that may actually be statistically accurate, for all I know. And keep in mind that absentee (biological) fathers have none of the other legal rights of fatherhood, so that would be consistent.

"A husband cannot claim a child that is not his, nor become liable for its upkeep, even legally, until it has been born."

I'm not sure that's accurate, but note that at the very least, the putative legal father can begin the process of establishing his legal rights during the prenatal period, and even before the woman is pregnant! The court will look to whether the father contributed to supporting the woman during pregnancy and before. If he sets up a household and assumes all the normal responsibilities of fatherhood -- including the period before birth -- that is tremendously important for the court, because it shows the man is a responsible provider, and that man is much more likely to be awarded the rights of fatherhood.

"The failure of the proposed law to protect her privacy rights in such a matter argues that a husband's interest in the disposition of his wife's womb is a paramount right…"

No, because if the husband isn't the biological father, he has no right to notification.

"… ranking in greater importance than her privacy, and her reproductive rights… and the reproductive rights of the actual father."

But as I pointed out, the biological father may not have any rights at all, even apart from the notification law, if he doesn't assume the responsibilities of fatherhood. The only one who's left out of the scheme is the unmarried biological father who takes responsibility for the child.

" (In this case the question of the husband becoming a legal father of a child not biologically his is a moot point; if the goal of the law is to protect men's reproductive rights, there is no injury to the husband; an abortion of a non-biological child would in fact protect the husband from legal injury, in that by doing so his wife would not be forcing him to take care of a child he did not conceive, and therefore there is no need for her to notify him of this, because no legal injury has yet occurred.)"

This is incorrect. The husband who is not the biological father can still expend resources supporting the woman's pregnancy. If she then aborts, those resources were wasted. Wasted money is a legal injury; emotional pain and suffering may be too, in some cases.

"The clause with exceptions you cited doesn't change my perspective, either, because, again, NON-married women are NOT included here."

It sounds like you think the law should be even more expansive than it already is! I would argue that if you're going to have a notification law, there are good policy reasons why you'd exempt unmarried women.

"The law is assuming that something profound happens to a woman legally when she becomes married, something that diminishes her rights to privacy and reproductive freedom, and something that doesn't happen to other pregnant women."

Well generally speaking, something profound does happen when you get married, whether you're a man or woman. Your rights and responsibilities are changed in all kinds of ways.

But again, if you think this is all about enforcing the rights of the husband, you have to explain why the husband has no right to notification when he isn't the biological father.

Posted by: Mike Anderson at November 3, 2005 09:37 AM
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But again, if you think this is all about enforcing the rights of the husband, you have to explain why the husband has no right to notification when he isn't the biological father.

Isn't that the easiest part of the whole question? Not the biological father = no right to know anything. Otherwise will a man be forced to notify his wife of his vasectomy or any other medical procedure? What if he switches cholesterol meds? What if he goes off them completely?

Posted by: eRobin at November 3, 2005 05:08 PM
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Mike, all of that data is moot.

The law DOES NOT MAKE SENSE on the grounds you cite, being the interests of husbands or fathers. It ONLY makes sense in terms of penalizing married women if they do not carry their pregnancies to term.

----

Let's look at the possible scenarios:

1) A wife becomes pregnant with her husband's child. He wants it, she doesn't. The law comes into play. She notifies him as required. Now what?

(a) She changes her mind as a result of pressure from her husband. Positive result for him, negative result for her.

(b) She does not change her mind. She has an abortion. Husband is displeased with her decision. Negative result for him, mixed result for her.

2) A wife becomes pregnant with her husband's child. Both want it. She gives birth. The law does not come into play.

3) A wife becomes pregnant with her husband's child. She wants it, he does not. The law does not come into play. She gives birth. Laws determining his obligation to the child come into play. Positive result for her, negative result for him.

4) A wife becomes pregnant with her husband's child. Neither wants it. The law comes into play. She has an abortion. Positive result for both.

5) A wife becomes pregnant with another man's child. He wants it, she does not. The law comes into play. She goes to court to avoid telling her husband about either the pregnancy or the abortion. She has an abortion. Negative result for him, neutral for husband, mixed result for her (positive regarding the abortion, negative about having to take the extra legal step).

6) A wife becomes pregnant with another man's child. Both want it. The law does not come into play. She gives birth. Positive result for her, positive result for him, potentially negative result for husband.

7) A wife becomes pregnant with another man's child. She wants it, he does not. The law does not come into play. She gives birth. Positive result for her, negative result for him, potentially negative result for husband.

8) A wife becomes pregnant with another man's child. Neither wants it. Law comes into play. Wife uses exception clause to avoid telling husband. Positive result for him; neutral for husband, mixed result for her -- she has the abortion, but has to take an additional step to avoid telling her husband about the pregnancy and abortion.

9) An unmarried woman becomes pregnant. Both want it. The law doesn't come into play. She gives birth. Positive results for both.

10) An unmarried woman becomes pregnant. She wants it, he doesn't. The law doesn't come into play. She gives birth. Positive result for her, negative result for him if she sues for support.

11) An unmarried woman becomes pregnant. She does not want it, he does. The law doesn't come into play. She has an abortion. Postive result for her, negative result for him.

12) An unmarried woman becomes pregnant. Neither wants it. The law does not come into play. She has an abortion. Positive for both.

-----

So, the breakdown of results for scenarios in which the law comes into play (5 out of 13 total):

1a) Positive father, positive husband, negative woman.
1b) Negative father, negative husband, mixed woman.
4) Positive father, positive husband, positive woman.
5) Negative father, neutral husband, mixed woman.
8) Positive father, neutral husband, mixed woman.


In the 5 scenarios where the law comes into play,

The father has a positive result 60% of the time and a negative result 40% of the time;

The husband has a positive result 40% of the time, has a neutral result 40% of the time, and a negative result 20% of the time;

Where the father is also the husband, he has a positive result 50% of the time, and a negative result 50% of the time.
and

The wife has a postive result 20% of the time, a mixed result 60% of the time, and a negative result 20% of the time.

Note that the woman bears the greatest burden of all three in these scenarios under which the law applies, in terms of biology, legal obligation to the child, and financial obligation to the child, should it be brought to term.

Note also that she has the greatest legal obligation of the three with regards to the law itself.

Note finally that she has the least percentage of positive results by a considerable margin.

-----

In the 8 scenarios where the law does not come into play, these are the results.

2) Positive father, postive husband, positive woman.
3) Negative father, negative husband, positive woman.
4) Positive father, positive husband, positive woman.
6) Positive father, negative husband, positive woman.
7) Negative father, negative husband, positive woman.
9) Positive father, ----, positive woman.
10) Negative father, ----, positive woman.
11) Negative father, ----, positive woman.
12) Positive father, ----, positive woman.

In the scenarios where the law doesn't come into play,

The father has a positive result 55% of the time, a negative result 45% of the time.

The husband has a positive result 40% of the time, a negative result 60% of the time.

The woman has a positive result 100% of the time.

-----

So, in summary:

A pregnant woman has a mixed or negative result 80% of the times she falls under the law.

A pregnant woman has a mixed or negative result 0% of the time otherwise.

A father has a neutral or negative result 40% of the time under the law.

A father has a neutral or negative result 45% of the time otherwise.

A husband has a neutral or negative result 60% of the time under the law.

A husband has a negative result 60% of the time otherwise.

----

So, in conclusion, the law has the greatest effect on women, positively or negatively, than it does on either fathers or husbands.


I would therefore argue that the law is concerned more with women than with either fathers or husbands.

This despite the fact that women are already more burdened by pregnancy than fathers or husbands, as a result of biological, legal, and financial obligations.

Moreover, the law is uniquely punitive to married women seeking abortions.


IN OTHER WORDS -- THE LAW AS WRITTEN SERVES NO POSITIVE ADDITIONAL GOOD for men, and PENALIZES WOMEN FOR BEING MARRIED and WISHING TO HAVE AN ABORTION.

(If that doesn't imply that married women have a legal obligation to give birth, I don't know what does.)

Posted by: Rana at November 3, 2005 05:17 PM
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^^^ I don't know that the various outcomes you catalogued happen with equal frequency, so I;m not conviced by that piece of your argument.

However:

"This despite the fact that women are already more burdened by pregnancy than fathers or husbands, as a result of biological, legal, and financial obligations."

To me, this is the strongest argument for why the father and/or husband should not have as much say as the woman.

Posted by: Mike Anderson at November 3, 2005 09:17 PM
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"Isn't that the easiest part of the whole question? Not the biological father = no right to know anything."

Right, that why I would agree with that provision of the law (assuming I were to support the rest of it). My point is simply that it doesn't fit with Rana's previous argument.

I do think the huaband has a moral right to know if his wife got pregnant by another man, but I don't think that's something the government should get involved in enforcing.

Posted by: Mike Anderson at November 3, 2005 09:20 PM
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rana, you're dead right (and I blame the patriarchy, don't you??).

my two bottom lines (plus an appendix):
1. were men to carry babies in utero such rules and restrictions would never be codified; and

2. these rules and restrictions are only created to continue woman's status as second class citizens.

an appendix: women are complicit in maintaining secondary status every time we allow these rules and laws to see the light of day.

Posted by: peacebug at November 4, 2005 09:58 AM
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Presumption of property ownership being prohibited...

Because of the fact that the living tissue inside the woman is not properly understood as the property of either party involved, it must therefore be regarded as an entity unto itself. The destruction of that living entity, therefore, must be declared illegal.

A husband, then, has a right to know the nature of the criminal charges brought against his wife for her participaton in an illegal procedure.

/snark

Posted by: BoDiddly at November 4, 2005 02:49 PM
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I think you're skipping a few steps there, Bo.

Posted by: Chris Clarke at November 4, 2005 03:07 PM
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Women aren't property? When the fuck was that allowed to happen?!

Posted by: James Dobson at November 4, 2005 10:53 PM
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Okay, I'll take my shot, admitting that I skipped over some of the middle posts here. I can't split hairs on the spouse/father part. And I can write many pages as to why this is a bad bad bad law. Having said that...

I read the Golden Gate suicide articles Chris referenced in another post, and had a great deal of sympathy for the dad who wanted to put steps into place that would make it a little harder for someone to commit suicide. Not necessarily agreement, but sympathy.

I think abortion should be legal 100% of the time, completely at the woman's discretion. I also believe that many people suffer no trauma as the result of an abortion.

But I also know that some women are traumatized by abortions and can only assume that men are, too. A woman terminating a pregnancy without telling her husband is potentially traumatizing him. If they are forced to discuss the decision first, he can perhaps either persuade her not to, or come to terms with it a bit better.

(And I am not convinced that all efforts of persuasion are for the worse. I have been talked into things I was very much against that turned out wonderfully for me. I considered tying my tubes when my oldest son was 9 months old. Less than a year later, I was very intentionally pregnant with my second child.)

He also has the chance to learn something about his spouse, and make a fully-informed decision as to whether or not he wants to continue to share his life with her. Most people want to know if their spouse is cheating, and I would think this ranks as one of those important things that a spouse would not want to be in the dark about.

If one believe that life begins at conception (I don't), then having one's child aborted is akin to having a loved one commit suicide. Since many of us can agree that we would want a chance to persuade someone NOT to kill themselves, I can squint really hard and find sympathy for a man's desire to have a chance to change the outcome.

Pregnancy is an emotional time. The decision to terminate can be made as irrationally as the decision to kill one's self. Having to tell a spouse can possibly derail a rash action. This is particularly true if the woman gets pregnant and is suffering PPD (probably unknowingly) after a previous child. Perhaps she thinks she could never raise another kid because she is struggling so much with the first one, so she terminates it. Maybe a conversation with her husband makes her aware of options she hadn't otherwise considered. Maybe he tells her he can cut back his hours or she can quit her job or they can hire help.

Many couples don't communicate enough after a kid is born. Perhaps a pregnancy that a wife would otherwise simply terminate forces a conversation about possible solutions to current problems that both partners were unaware of.

I'm a big advocate of communication, and I don't think it's always malice that keeps it from happening. Sometimes we don't know things are wrong until that last straw hits. And if you believe that abortion is a completely life-altering decision for both partners, it would sure be better for them to make that choice together. And I think the analogies to getting a vasectomy don't wash since the trauma a woman feels over that is not reasonably comparable to that that a man might feel over having his unborn child taken away from him without his knowledge.

Boy, now I need to wash my hands and double my annual contribution to Planned Parenthood.

Posted by: Tiltmom at November 7, 2005 09:36 AM
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