Cathy Young at The Y Files defends Alito’s argument that the government can require married women to inform their husbands before they can have an abortion:
For the record, while I am staunchly pro-choice, I think that spousal notification is a painfully complex issue. Until lesbian couples have equal marriage rights, the term is “husband notification.” Calling it “spousal” notification is Orwellian; there will never be an instance in which a male “spouse” needs to sign a form swearing he’s notified a female “spouse” of his medical decisions. Yes, it’s the woman’s body. It’s also the man’s future child… It’s not the man’s future child if she’s getting an abortion, because the “future child” Cathy refers to will never exist. I don’t believe we can expect men to be equal partners in child-rearing while denying them any say in reproductive decisions. The claim that men have no say is not only mistaken, it belittles men’s agency. Do you really think I have no choice whether I have sex or not? No choice over if the form of sex I have will be coital or not? No choice whether I use birth control or not? Men are not helpless children, incapable of making sexual choices – but that’s the level Cathy’s analysis reduces us to. Nearly half a century ago, Kurt Vonnegut skewered the belief that it’s wrong if some people have abilities everybody doesn’t share, in his short story “Harrison Bergeron.” That story is very relevant to the “choice for men” debate. If my partner is female, she has an ability I lack – the ability to abort. (She also faces risks I don’t). But the fact that other people have inherent abilities I lack, doesn’t make me a victim, and doesn’t mean I lack liberty. Is it fair that women have an ability men lack? It’s not fair in the sense that the government in Harrison Bergeron-land understood “fairness,” which seems to be the sense Cathy uses. But in another sense, our system is fair, because it treats women and men the same: Everyone has the right to choose what to do with the reproductive abilities they have, and everyone is responsible for dealing with the choices they make. Paternal consent, in my view, goes too far in infringing on the woman’s bodily autonomy; paternal notification, on the other hand — with exemptions when there is domestic violence or other complicating factors — may not be such an onerous measure. (It turns out I was the one making an honest error – Cathy said “paternal,” not “parental.” So I’ve definitely got some egg on my face. :-) However, I still feel Cathy’s term was inaccurate; the law in question would only apply to married fathers, not to fathers in general. “Husband notification” is therefore the more accurate term.) The majority opinion, disagreeing with Alito, explained very well what’s wrong with husband notification: The husband’s interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband’s interest in the potential life of the child outweighs a wife’s liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband’s interest in the fetus’ safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband’s interest in his wife’s reproductive organs. And if a husband’s interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify — a requirement of the husband’s consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children. Section 3209 embodies a view of marriage consonant with the common law status of married women, but repugnant to our present understanding of marriage and of the nature of the rights secured by the Constitution. Women do not lose their constitutionally protected liberty when they marry. Hat Tip: Scott at Lawyers, Guns and Money, whose entire post is well worth reading.Cathy makes an interesting slip here – she uses the word “parental” where she should use the word “husband.” I’m sure it was an honest error, but it’s ironic, because the “husband notification” laws Cathy favors really do treat husbands like fathers – and wives like children.
Tangentially related: --they wouldn’t do that, unless they were extras in a company of The Sound of Music. --FAKE NEWS!…
Actually she said “paternal,” not “parental.”
Actually, “husband” isn’t really accurate either, because to be consistent with the idea that this is rooted in parental rights rather than spousal rights, you’d need to expand the law to include non-married prospective fathers as well. Something the MRAs advocate, but I doubt the majority of American’s would be as comfortable with. (or maybe that’s just wishful thinking on my part)
The majority opinion stated my other thought as well: that if this is rooted in parental rights as proponants advocate, rather than an archaic view of marriage, then these “parental” rights would have to include, oh, well just about everything the women in question does from the moment of conception, likely even before.
Despite all our drive-by-mothering, I’m not so sure that the majority of American women want anyone else to have a legal say in every single thing they do while pregnant. (but again, wishful thinking?)
Amp;
In the law that kicked all this off there was a get out for when your husband is not the father (I think this would have been operationalised by having the woman sign a statement to that effect). So – given that this specidic law is being discussed – the lesbian couple analogy is flawed, as is the suggestion that Cathy makes a slip by using the word “parental” rather than “husband”. It’s an easy mistake to make, as the opinions were a step removed from the law, and the blog post a step removed from the opinions.
(Sorry, this is a minor detail, but the current name of Cathy Young’s blog is The Y Files, not The Y Spot.)
[Whoops! Correction made. Embarassingly, that’s the second time I’ve made that error. -Amp]
Actually, ‘paternal’ is not the slip Amp thought it was (since he misread it as parental, and therefore dishonestly gender neutral), but it is suggestive of exactly that feature of common law marriage which the majority resoundingly rejects as still being a feature of marriage, but which it appears Alito accepts as sufficiently still a feature of marriage that it should be enforcable by law. The husband is no longer the pater familias, so his relationship to his wife is no longer paternal. While the ‘paternal interst’ is presumably actually intended to refer to the relationship to the fetus, it is exactly the ‘paternal’ relationship between husband and wife which is necessary for the husband notification requirement to be legitimate.
That a lesbian married couple would always have an out in this law actually reaffirms Amp’s point about Orwellian language. There is no circumstance (except John Howard’s ridiculous bugbear) under which this law would ever apply to a lesbian couple, so the ‘spouse’ requiring notification will always be a husband. To elide the gendered nature of the law by eliding the gendered nature of the language is a grotesque attempt to pretend that sex and gender issues are uninvolved here, and that this is a matter purely of fairness between two equal parties. As Robert is quick to remind us, unequal abilities will produce unequal results.
I’ve actually read the opinion itself (though why I, living in Sweden, should spend a lot of time researching an issue I can’t possibly influence is another matter), and I don’t think it’s quite as obviously anti-woman as it has been made out to sound.
First, the opinion didn’t state whether the law was good or bad (I think it’s terrible), nor should it have. It concerned itself with whether the law was valid under the constitution. Under the constitution and previous SCOTUS decisions, a law restricting abortions for many women isn’t valid unless there’s a very strong interest for the state in making that law. So, had S3209 restricted many, or most, women from having abortions, it would have been invalid.
But it doesn’t. This statute would cause problem for the 5 % of the married women seeking abortions who, for any reason, find themselves unable to inform their husband that they’re seeking an abortion. Because 95 % of the married women have already spoken to their husbands. And for these 5 % there’s yet another way out – lie. Just sign the paper where it says that you’ve notified your husband, or that you’re afraid that he’ll hurt you if you do, or that he’s not the father of the fetus. Just do that and you can still have your abortion.
I personally find it offensive that lawmakers should force me into having the kind of relationship with my husband that they think is proper, or force me to lie if I don’t. But given that this law effectively does nothing at all to restrain anyone from having an abortion, I don’t think it’s a restriction of a constitutional right.
Now, the fact that the law does nothing but give the misogynists warm fuzzy feelings about how they’ve made sure women don’t cheat males out of their progeny – that’s a good reason to strike it down. All this law does is pander to right-wing misogynists without actually doing anything. Oh, and it tells women where their place in society and in their marriage should be. Again, this is bad, and I’m truly happy to not live in a country where that kind of law ever gets passed. But that doesn’t make Alito’s opinion on its legal merits misogynistic per se. He’s had other opinions that I find more alarming.
I would assume that “paternal” means “father of the fetus” not “husband in a paternal capacity over wife.” I mean I get the greater point, obviously, but I think it can be made without misreading what was actually said.
Hell, pass the law, and watch women stop getting married and start sleeping around even more. Don’t know who the father is? No husband? I’ll be able to get an abortion!
Hey, let’s throw in a law for paternity tests at birth…That’s one out there too, that’s being campaigned for.
Make sure we can’t get to our birth control either!
Take away abortion rights?
You ain’t seen Angry Feminist yet.
Do you really think I have no choice whether I have sex or not? No choice over if the form of sex I have will be coital or not? No choice whether I use birth control or not? Men are not helpless children, incapable of making sexual choices – but that’s the level Cathy’s analysis reduces us to.
Quite true. And neither are women. But that’s the level that much of the analysis I’ve read on this blog has been at when the arguments for abortion rights are raised. This paragraph sounds an awful lot like the arguments I’ve made that when people take the risk of having coital sex, and even when they use birth control, if they happen to get pregnant they should step up to the responsibility which that entails. That when people make choices, they should accept the result of those choices even if those choices work out in an unintended fashion. I guess what’s sauce for the gander isn’t sauce for the goose, eh?
I have issues with abortion, but I’d have to agree that if it’s legal, I don’t see the logic of requiring the mother to notify the father prior to the abortion. I don’t support the concept of, “I think this is wrong, so I’ll step on everyone’s rights to stop it.” for either the right or the left.
Would a notification law be constitutional if it applied equally to same-sex and mixed-sex couples? I read the plurality opinion in Planned Parenthood v. Casey to strike down the notification requirement because it violates the right to privacy, not because if violates the right to equal protection.
By the way, what is Howard’s bugbear? I’m clearly not up to speed here.
Although, if women have the total right to deterine wheher to have an abortion or not, should not the man have the same essential right to determine whether he takes responsibility for the child or not? That is, if the man declares that he doesn’t want the woman to give birth to the child, should he not have the right to limit his child-support payment to half of the cost of an abortion? If the woman chooses to have the child anyway, he then has no more responsibility for it, but yet no more rights toward it either.
Or is this:
But in another sense, our system is fair, because it treats women and men the same: Everyone has the right to choose what to do with the reproductive abilities they have, and everyone is responsible for dealing with the choices they make.
Just another way of saying that after the sex act, the woman has total control over what happens, and then man has the responsibility to pay for whatever she decides?
Sorry, folks, but you cannot truly be pro-choice and for equal rights, and not allow the man a way to financially disown an unborn child he does not want.
But in another sense, our system is fair, because it treats women and men the same: Everyone has the right to choose what to do with the reproductive abilities they have, and everyone is responsible for dealing with the choices they make.
That is Orwellian.
In a truly fair system, everyone would have the right to choose what to do with the reproductive abilities they have, and their responsibility would be commensurate with the level of choice they have.
Why is it fair to say that a woman shouldn’t have to carry a child to term for nine months and then give birth because of a single sexual encounter, but it is fair to require a man to pay thousands in child support a year for 18 years for one sexual encounter?
This choice for men thing is daft, and has only originated because the “pro-choice” side have used some very suspect arguments in justifying their cause. If abortion was justified by the right to bodily integrity, and not the right to choose whether or not to have a child or “reproductive freedom”, there wouldn’t be a problem.
The logic is that a child has a right to be supported by both parents. Before the child is born a woman has the right to an abortion because she’s a right not to have things growing inside her she doesn’t approve of. Abortion doesn’t exist to get a woman out of the responsibility for her child – this is merely a double effect.
It’s a bit like if your child attacked you with a gun. You’d have the right to kill him in self-defence. This would get you out of paying for child support – but that is merely a fortuitous side-effect of the killing not the justification. Your right to self-defence is what justifies your action – abortion follows the same logic. And the reason it is fair to require parents to pay thousands in child support is because we’re concerned about fairness to the child.
The day men can get pregnant is the day they can decide whether or not they want to go through with the pregnancy and birth. The Choice For Men red herring ignores the fact that pregnancy has very immediate and real physical consequences and risks for women.
“A husband has no enforceable right to require a wife to advise him before she exercises her personal choices.” What is a personal choice?
I don’t agree with father consent. It is interesting, however, that a spouse must get consent before divesting him or herself of a house or other “certified” property that will affect the financial disposition of the parties involved. This is true even if the “spouse” is the only one who has ever benefitted from or used the property to their detriment — meaning the only person who is suffering or benefitting from the continuing ownership of the property must get consent from the other person with interest prior to divestiture. I argue that anyone should be able to sell or dispose of anything that they are using without the consent of the other party in interest. I am sure many of you would also agree that a California female domestic partner should be able to divest herself of her house without the consent of her female domestic partner. She built the house with her own sweat after registering as a domestic partner. Her partner never made repairs, never cleaned the place and never paid the mortgage. She just dropped off the wood and cement and took care of her tired partner when she was done at the end of the day.
“Calling it “spousal” notification is Orwellian; there will never be an instance in which a male “spouse” needs to sign a form swearing he’s notified a female “spouse” of his medical decisions.”
Actually, that’s not true. Several states require spousal notification for contraceptive sterilization procedures. In addition, many states require spousal notification when the other spouse is diagnosed with HIV.
This whole line of discussion completely forgets the fact that the circuit court majority in Casey felt that the there was a legitimate state interest in husband notification. They simply decided it was not compelling enough to outweigh the undue burden it presented to the pregnant wife. Alito’s position was that an undue burden was not presented by the notification provision and therefore the legitimate state interest that the majority agreed existed was sufficient to pass constitutional scrutiny based on prior supreme court precedents.
The interesting thing is I’ve seen that story used against liberals for things like anti-discrimination laws. I’ve never seen a liberal use against a conservative mindset.
For the “choice for men”. One more time: you have the right to bodily integrity. You do not have the right to shirk your children. Women get to take longer on their choice because their bodily integrity is at risk longer. Not so complicated.
Contact notification for HIV applies whether or not the contacts are married. That’s a public health communicable diseases principle.
Here’s a thought: while the wingnuts’ and MRA’s’ yapping about the husband/father’s “interest in his child” does a poor job of making a case for husband consent/notification in the first place, there is NOTHING WHATSOEVER in their argument that comes close to justifying why women should have to keep said “child” in their bodies. The idea that “it’s part his, so she can’t kill it without his knowledge/permission is, while flawed, sexist, and controlling, partially understandable (not to be confused with acceptable—I’m comparing their feelings (not their rights, however) to those of a woman who miscarries a wanted pregnancy or is forced to abort).
However, this does not add up to the woman being forced to donate her body to said fetus. She has the right to get it out of her, whether she’s allowed to have it killed or not. If the father wants the “child,” let him have it—but the mother’s body and support does not come with it; he’s not entitled to demand that of her, any more than the state or the fetus is. So my answer to these MRA moonbats is this: don’t want women having abortions without their husband’s consent or whatever? Fine, she can deliver the fetus instead (this would be like a total-birth abortion) and the husband can have it. Yes, it is ill equipped to survive at that stage of development, and most or all of such babies would die. That’s life. People die all the time due to some inability to continue living—and no one is entitled to use another person’s body as life support against that other person’s will. Not cancer patients, not accident victims, not embryos.
bean – you miss the point of the dissent (and jennyaxe’s post). The percentage is irrelevant. No matter what amount you would like to up it by to account for your concerns, it doesn’t meet the thresshold of an undue burden.
Alito’s point is that, according to prior SCOTUS decisions it is the plaintiff’s burden to prove that a provision is an undue burden on the pregnant woman. And to do that you have to demonstrate that the provision would affect a significant portion of the pool that the law applies to. The plaintiffs did not do that in the case. Alito mearly outlined percents to demonstrate how far below the thresshold of undue burden proof that the plaintiffs fell.
The other point is a simple legal one. It is not the court’s responsibility to judge whether or not a law makes good sense to the population it effects. It is simply their job to determine if it is constitutional. Strange as it may seem, there is a difference. That is why we have different branches of government.
You may very well be right that the spousal notification provision was not well thought out and had ramifications beyond what the legislature forsaw, but it is not the court’s job to even think along those lines. Their job is to determine if spousal notification is generically constitutional. If so, then they need to determine if this particular notification presents an undue burden. Finally, assuming that the state has a legitimate interest then the degree of interest is evaluated against the undue burden analysis to see which carries more weight. Of course, Judge Alito said it much better than I in the dissent. You should read it. I think you would find it enlightening.
Alito Dissent in pdf format
On the web along with the majority opinion
Kyra – you are right, and that is why the PA law didn’t contain a spousal consent provision.
Unfortunately, the court in Roe disagree’s with you. They stated that if it was determined that the embryo/fetus is a person, its 14th amendment rights would supercede the mothers and abortion would have to be illegal except in extenuating circumstances which could justify the homicide of the prenatal life. Now, they also determined that the prenatal life was not a person (or more to the point, they said they couldn’t decide). But, that is already changing with fetal homicide and protection laws. So, in the long run, Roe will implode based on the correction of its own flawed analysis.
“I personally find it offensive that lawmakers should force me into having the kind of relationship with my husband that they think is proper, or force me to lie if I don’t.”
It’s more than offensive; it’s more than stupid. That is what makes this law anti-thetical to the idea of liberty. It is one thing to provide incentives to encourage people to treat each other in certain ways while in private. It’s one thing to acknowledge that public laws that protect people from bodily harm extend to private areas as well. It is one thing for legal protection from harm to extend to include systematic verbal abuse in semi-public areas (work, public schools). It is completely another to legally compell someone to adhere to social mores in private.
“Why is it fair to say that a woman shouldn’t have to carry a child to term for nine months and then give birth because of a single sexual encounter, but it is fair to require a man to pay thousands in child support a year for 18 years for one sexual encounter?”
(sorry nik, but better analogy)
For the same reason that the courts can order someone to pay child support, but they cannot order even a parent to donate blood, bone marrow, etc. to their dying child.
It’s not exactly a matter of clearcut self-defense, it’s a matter of relative rights. Your children have the right to be taken care of. As a parent, you have the responsibility to do so, or else you risk losing your parental rights. But that responsbility does not extend so far as to legally compell one to consent to medical procedures..
Now, we may find a parent who refuses to donate non-essential body parts to his/her child, or even a pregnant woman who has an abortion, to be morally repugnant, but they are in no danger of legal consequences (or ought not to be).
So Jenny, I assume you disagree with parental notification and consent as well. You must not feel the state has any right to force children into having the kind of relationship with their parents that they think is proper. Apparently you believe children should be able to do whatever they want as long as it is generically legal and parents should have no say in their decisions even though it may impact the parent emotionally, physically, or financially.
I suggest that a huge majority from all sides of the political spectrum would disagree.
Everyone has to remember one important thing. The government can only intrude in private relationships regarding activities that the government regulates. If the government regulates the activity, they have a legitimate interest protecting the rights of the individuals involved OR affected by that activity.
It would be plain nonsense to state that husbands never have an interest in the reproductive activities of the marriage. It would also be nonsense to assert that husbands are not impacted in any way by the decision to either have a baby or abort it. Since the government regulates both the marriage contract and the medical practices involved, they have a interest and even an obligation to see to the rights of all parties concerned.
Marriage is a particularly sensitive area but from a legal perspective, it is just another form of contract. Abortion is an extreamly sensitive area but from a legal perspective it is just another medical procedure. Spouses have just as much say in the medical choices of their partners as far as they affect the marriage as parents have a say in the medical services performed on their children.
It would be plain nonsense to state that husbands never have an interest in the reproductive activities of the marriage. It would also be nonsense to assert that husbands are not impacted in any way by the decision to either have a baby or abort it. Since the government regulates both the marriage contract and the medical practices involved, they have a interest and even an obligation to see to the rights of all parties concerned.
Excellent. Then I propose that we codify into law the following:
Husbands must discuss with their wives their prostrate cancer treatments, since it can affect the marriage.
Husbands must discuss with their wives any big-ticket items they want to buy, since it can affect the marriage and their financial well being.
Husbands must discuss with their wives their decision to quit their jobs, for the same reasons above.
Husbands must discuss with their wives their decision to use erectile dysfunction drugs.
Prostate cancer treatment – this doesn’t affect a joint activity in marriage like reproductive activities.
Purchasing big ticket items – this is not regulated although it is often true that joint purchases and sales require spousal notification.
Quiting your job – your employment decisions are not regulated by the government
Erectile disfunction drugs – Well, one might argue that the performance enhancement would be notification enough :-) But that asside, sexual activity (which is different than reproductive activity) is not regulated by the government.
Let’s look at something closer to home. There are a number of states that require spousal notification before having contraceptive sterilization procedures. The key again is that the government regulates the activity.
You have something resembling a point there. I say “something resembling a point” because having one’s body co-opted to support something is considerably more invasive than having a portion of one’s income co-opted. On the other hand, there’s the time difference involved, which strengthens your argument.
I would have to say that in my opinion, such an “out” from child support would have to, besides dropping ALL future rights to said child, require a one-time payment from the father to the mother, equal to the price of an abortion at the gestational age of the fetus at the time the father found out about the pregnancy. Not half, but full price—the person who doesn’t want the child or pregnancy, pays the full price for getting rid of it, to the person who’s taking it off their hands.
Prostate cancer treatment – this doesn’t affect a joint activity in marriage like reproductive activities.
Do you know what a prostate is? Do you know what treatments are available? Both the cancer and the treatments can absolutely have an effect on reproductive activities (the radioactive “seed” treatment, for example).
Jake – you miss my point. Prostate cancer treatment in and of itself is not a reproductive activity. There is also no legitimate state interest in it and so it is not regulated. There are all kinds of activity in life that can affect reproduction but they are not themselves reproductive activities.
Abortion is a reproductive procedure. The state has a legitimate interest in the unborn and so it can regulate the activity (so says the Roe court) and in turn the husband has a legitimate interest in the reproductive activities within the marriage which also hinges on his interest in the unborn and therefore, as a party to the activity, has rights as well that the state can recognize and protect…to a point.
I wasn’t arguing that Roe said the fetus doesn’t have a right to a woman’s body. I know it didn’t say that. I was stating my opinion, my logical analysis of the concept, and precedent in similar situations.
The idea set forth in Roe that the fetus’s 14th amendment rights if it were a person would supercede the woman’s IS NOT USED in other cases involving one person needing another’s body or body parts. Cancer patients who need transplants or bone marrow do not have their rights supercede those of someone capable of donating said transplants or marrow. Neither do accident victims or otherwise injured people who need blood. Dispite the fact that they might need such things to live, their 14th amendment rights DO NOT supercede anyone else’s rights. This decision in Roe would grant rights to fetal persons that are not granted to any other persons, and is therefore discriminatory against pregnant women and against non-fetal people with similar needs to fetal people.
The “homocide” argument (that post-viability abortions kill beings capable of surviving outside the womb) can only legitimately prohibit the part of an abortion where the fetus is killed, not the parts where it is removed and separated from the woman’s body.
Can someone (politely and logically) explain to me why??? I honestly don’t get it, and have never heard an argument for it that’s any better than “because it’s an unborn child!” from anti-choicers.
Abortion is a reproductive procedure.
I have to disagree. Abortion is a medical procedure, not a reproductive procedure or activity. By your definition, condoms are a “reproductive device.” In truth, they are the opposit.
So what? Reproductive treatments are medical treatments. Period. And pregnancy is something that will affect a woman much more than it will affect a man–she is the one who is pregnant, not he.
You do not have the right to force a woman to put her body through pregnancy and assume the risks and potential complications it brings. There is an already-born person in this equation whose burden, and therefore whose say, should be greater.
You said that sometimes a spouse’s permission is required for big-ticket items. This isn’t true in my experience–my parents have not been required to consult with each othe before the purchase of a big ticket item.
You state that the government cannot regulate the things I mentioned, but seem to think it’s okay for it to regulate private medical matters WRT reproduction. I have seen nothing in the constitution about this. Frankly, it should not regulate reproductive activities either. They are medical decisions. It’s quite telling that it’s women’s reproductive rights that are up for government regulation and interference.
Kyra – state’s legitimate interest – well, I have to admit your have a point. I don’t clearly understand why the state has such an interest I just know that it was outlined in the Roe decision.
Jake – Yes, abortion is a medical procedure but it falls in the reproductive category just as vaginal delivery, c-section, etc. It is in that context I am referring to it as a reproductive procedure. It directly effects the outcome of reproduction (negatively in this case). My terminology may not be the clearest but the point is that prostate treatments can in no way be compared to abortion or delivery procedures from a medical categorization perspective.
I’m not sure how condoms would fall under my definition of reproductive procedures or activities but I certainly agree with you that they are not.
Sheez –
“pregnancy is something that will affect a woman much more than it will affect a man” that still doesn’t mean the man isn’t affected in any way and therefore retains certain rights related to the pregnancy.
“There is an already-born person in this equation whose burden, and therefore whose say, should be greater. ” So you don’t believe in equal protection, eh.
“It’s quite telling that it’s women’s reproductive rights that are up for government regulation and interference. ” So are mens. Did you not read the part about contraceptive sterilization.
“You state that the government cannot regulate the things I mentioned, but seem to think it’s okay for it to regulate private medical matters WRT reproduction” Heh, I’m just relaying the reality. You can complain all you want about government interference but that doesn’t change the fact that it exists and in many cases has consistently been found constitutional.
Are you kidding? It’s heavily regulated – there are very strong limits on who can legally offer prostate cancer treatment, and under what circumstances.
Could you offer some links about contraceptive sterilization spousal notification laws? I’m curious to know what states have the law you describe, and if the Constitutionality of the law has ever been tested in court.
These limits are established in the law??? I hardly can see a state interest in my getting cancer treatment. The FDA may regulate the drugs used and medical licensing certainly regulates who can perform it and the medical industry polices itself regarding proper medical guidelines for treatment but I don’t know of any law the regulates whether or not I can receive treatment.
Tell you what, you give me links to your laws and I’ll give you links to mine. Just kidding.
I have been trying to access the state of Louisiana site to look at their comprehensive medical law from 1999. It has spousal notification for contraceptive sterilization. There was another state I found, Ohio or Oregon, I can’t remember. At any rate, I promise I will get documentation.
Definitely not Oregon.
“You must not feel the state has any right to force children into having the kind of relationship with their parents that they think is proper.”
I think that it is impossible to force children to have a particular type of relationship with their parents, and thus laws that try to do so are rarely effective and often destructive. That does not mean that I think that parent’s don’t have rights with regard to their children.
The laws that regulate the activities of minors and their relationship with their parents usually do so on the basis that children are not capable of giving consent. Parents are given the rights and responsibility (at times) for giving the legal consent their children are incapable of.
Regulation of minor activities becomes more complicated when the activity does not involve adult engagement. No child is ever legally required to inform another’s child’s parent of any non-illegal activity, even though parents who punish minors for engaging in certain non-illegal activities and/or keeping them secret have a legal right to do so. The two are very seperate issues.
Medical procedures are on that same iffy line where it depends on the particular procedure and situation. This is because while adults are involved, all adults involved have legal responsibilities toward the child, not just the parents. It’s not that parent’s rights aren’t involved, but that a parent’s right and responsibility to make legal/medical decisions for their children does not trump the health and safety of the child. This is why parent’s rights have limits. The fact that parental rights are not absolute does not mean they don’t exist.
The fact that parents have the legal right to make certain legal decision for their children in no way translates to the state having the right to regulate private behaviour of adults that does not involve personal bodily harm or fraud. Marriage is exactly what you said it is, a contract. The state can regulate it, but only to a certain extent, and the contract can usually be modified by individuals. The law in question does not allow for this type of negotiation, it presumes a certain type of contract. Unless I missed the “my husband thinks this is stupid” exemption.
State regulation of marriage does not translate into wives or husbands having the same legal rights over each other as parents do with regard to their children. Parents, after all, have the legal obligation to be informed of certain actions their children take, not just the right to know about them if they wish. Should spouses not have the right to be in the dark about their partners activities if they want to be?
Furthermore, as I understand it, with the exception of mostly “blue laws” most laws regulating marriage makes violating the contract a civil issue. The law in question would consider women or health care providers who violated the law to be guilty of criminal activity. (Someone please correct me if I’m wrong.)
“Spouses have just as much say in the medical choices of their partners as far as they affect the marriage as parents have a say in the medical services performed on their children.”
This same line of reasoning is exactly why the majority opinion struck the law down. If the premise is that a married persons right to be informed of their spouses legal and medical decisions trumps their spouses right to have a say in their own legal and medical decisions, where does it stop? Does the wife legally need to be informed of her husbands prostate cancer – or just his decision to undergo treatment? Should obstetricians refuse treatment to married women who have not yet informed their husbands? If the right to be informed trumpts the right to self-determinination, is not consent implied?
The law however, was not talking about spouses, only about husbands and wives. Here the parent/child analogy makes more sense, some of the bad logic goes away, and it is only the husbands interest in prospective children that trumps the wife’s autonomy. Thus the majority opinion that it was, essentially, a stinking pile of sexist crap.
“Could you offer some links about contraceptive sterilization spousal notification laws? I’m curious to know what states have the law you describe, and if the Constitutionality of the law has ever been tested in court.”
Just got my spousal consented (vice notified) sterilization. I don’t know the law that required my wife to sign on the line, but she did. And boy did they get into my business. All the other crap they asked me with my jewels hanging over the butcher block you would think that I was ending the human race. All the people who were dissappointed that we were no longer going to do the duty required of all humans — propogate the species.
It seems that many people are equating “notification” with “consent”. Let me explain the difference. Honey, I am three months pregnant. I know you were in Iraq for six months. I just wanted to let you know that I am going to get rid of it, just for you. If you don’t like that fact then you can KMPA (Kiss My Pregnant Ass) — notification in the year 2005. Honey, I am three months pregnant. I know you were in Iraq for six months. I just wanted to let you know that I am going to get rid of it, just for you. I will need your consent to do so. If you don’t like that fact then you can KMPA (Kiss My Pregnant Ass) because I am going to lie and get it done anyway and you have no legal recourse against me for it — consent in the year 2005.
Regardless of paternal consent or notification women will do what they have always done — whatever they want despite what anyone else wants.
That ain’t the same Cathy Young from Reason, is it?
If so, isn’t she supposed to be a Libertarian?
And isn’t there supposed to be a bigger ideological gap between Libertarians and Conservatives than pro-marijuana/against-marijuana, ie, wider than you can slip a credit card through?
Or is the fact that they’re bought and paid for by the same folks who pay for the good Theocrats at Crisis Magazine and Independent Women’s Forum now public knowledge mean they don’t have to pretend any more…?
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Glaivester: Why is it fair to say that a woman shouldn’t have to carry a child to term for nine months and then give birth because of a single sexual encounter, but it is fair to require a man to pay thousands in child support a year for 18 years for one sexual encounter?
Because it’s two different issues.
A pregnant woman has the choice whether or not to abort. That’s not any choice a man can make: he’s never pregnant. He can, of course, make the decision at an earlier stage whether or not he’s going to release sperm inside the woman’s body that can get her pregnant: he can decide not to have intercourse: he can use condoms/spermicide: but despite all efforts, sometimes mistakes happen, and sometimes babies get accidentally conceived even though neither parent wanted that and both were taking precautions. When that happens, a man doesn’t have the ability to decide that the pregnancy should be terminated, because a man doesn’t have the ability to get pregnant.
But: once the baby is born, both parents have a legal and moral obligation to support the baby. (Unless the baby’s put up for adoption, which is a whole different raft of issues.) It doesn’t matter at that stage whether or not the father ever committed to having a baby: once the baby is born, it needs to be taken care of, and while a man may be entitled to restrict his support down to the bare minimum of a cheque each month while the woman does all the work, that bare minimum is the man’s moral and legal obligation.
Wrong, gengwell. Men do not have to bear the same risks a woman does in pregnancy, simply because they aren’t the ones who get pregnant. Biology does seem to escape you. They have no legal right to force their wives to undergo a pregnancy and expose themselves to these risks.
And it’s disingenous to say that I’m against equal protection when you equate a fetus with a woman. In your world, no, I’m not for “equal protection,” but in the real world, women are unquestionably people. They have been born. A fetus is not yet a person, and its “rights” take a backseat to the woman who carries it.
jstevenson
notification implies consent – or at least, that was part of the majority ruling anyway.
But: once the baby is born, both parents have a legal and moral obligation to support the baby.
I bolded this comment because a lot of people, who I would guess have never lifted a finger in doing any actual rearing of children, believe that child-support checks pay 100% of childrearing expenses and are all that is needed to rear the children.
I said: “that still doesn’t mean the man isn’t affected in any way and therefore retains certain rights related to the pregnancy.” In no way did I say men bear the SAME risks as women.
Again, no one disagree’s with you on that. But despite what the majority speculated, notification and consent are very different things.
You are correct…in the current world. But the times they are a changin’. Fetal homocide laws are already redifining the fetus a s a person that deserves equal protection.
But despite what the majority speculated, notification and consent are very different things.
If notification doesnt mean consent, then why have it? What’s the point of telling a man that all he has is the right to know that his wife is having an abortion?
Fetal homocide laws are already redifining the fetus a s a person that deserves equal protection.
No, actually, they’re not.
Notification recognizes that the spouse has a legitimate interest in what is happening. Although the spouse can not dictate what the other person does with their body their legitimate interest deserves respect and notification satisfies that. Consent would be over reaching by invading the personal body integrity decision of the other person.
If fetal homocide laws do not define the fetus as a person then what do they define it as? After all, “homocide” is the killing of a person. The laws give the fetus the same 14th amendment protections as born persons.
If you don’t believe me, listen to what Kerry said in opposition to the federal law
From the Washington Times, Feb 24th 2004 by Amy Fagan
“[L]egislation granting a fetus the same legal status in all stages of development as a human being is not the appropriate response,”
Mr. Kerry said he opposes the bill because “the law cannot simultaneously provide that a fetus is a human being and protect the right of the mother to choose to terminate her pregnancy.”
Even Kerry understands that the law defines the fetus as a person and rightly forsees the erosion of Roe that such laws portend.
Here are the pertinent sections from the actual federal law.
Title 18 Chap 90A Sec 1841 subsec (a)(2)(C) If the person engaging in the conduct thereby intentionally kills or attempts to kill the unborn child, that person shall instead of being punished under subparagraph (A), be punished as provided under sections 1111, 1112, and 1113 of this title for intentionally killing or attempting to kill a human being. (my emphasis)
subsec (d) As used in this section, the term `unborn child’ means a child in utero, and the term `child in utero’ or `child, who is in utero’ means a member of the species homo sapiens, at any stage of development, who is carried in the womb.
Just for clarity – Websters defines a Human as “a member of the species homo sapiens” and a person as a living human.
I don’t know how you can say that Fetal homocide laws are not redifining (as opposed to Roe) the fetus as a person that deserves equal protection.
Again – just for clarity. The pertinent statements from the Roe opinon regarding personhood of the prenatal life:
The development of man’s knowledge has obviously brought us to the point where we do recognize the prenatal life as a person and so all of the reasoning in Roe becomes moot.
Gengwall: Notification recognizes that the spouse has a legitimate interest in what is happening. Although the spouse can not dictate what the other person does with their body their legitimate interest deserves respect and notification satisfies that.
Why do you keep saying “spouse”, Gengwall? Do you think that someday a husband will get pregnant and his wife will want to be notified that he plans to have an abortion?
Rewritten, more accurately: Notification recognizes that the husband has a legitimate interest in what is happening. Although the husband can not dictate what his wife does with her body his legitimate interest deserves respect and notification satisfies that.
If a wife doesn’t respect her husband enough to tell him herself that she’s having an abortion, their marriage is already in such bad shape that there’s no point forcing her to make an artificial gesture of unmeant respect.
I keep saying “spouse” because there are other reproductive procedures besides abortion and spousal notification is the correct generic term when dealing with them.
gengwall Writes: I keep saying “spouse” because there are other reproductive procedures besides abortion and spousal notification is the correct generic term when dealing with them.
However, what we are discussing here is abortion. Therefore, you should accurately say “husband” (well, I suppose if the law exists in Massachusetts, it would be appropriate to say “husband or wife”) and you should definitely say “wife” and “her body” rather than the horrifyingly ambiguous “their body”.
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Correct me if I’m wrong, but isn’t the entire point regarding any of the “notification” laws, be they paternal or parental, NOT that the in the “majority” of cases, consent and knowledge *should* be present, but that in a signifigant number of cases, this requirement may endanger the womans life (abusive families and spouses)?
Therefore, that the blanket approach to “ALL parents/fathers must be notified” can/will do more harm than good?
I appreciate the depth of topics covered here, but at the end of the day, can we skip over the headier topics of responsibility and ownership and who’s rights are more important than whose, and just focus on the bottom line?
I believe that the bottom line is that if either of those laws is passed, some women will die. It’s not a one size fits all scenario, so that law doesn’t make sense.
Well, thanks for showing that the line about fetal protection laws not having any negative impact on abortion rights as being the BS they are.
Still–a fetus is not the same as a person. A woman who gets an abortion isn’t brought up on charges of murder.
The reasons people would give to support the bill follow.
(1) The husband has an interest in knowing that a potential child of his is being aborted, even if he doesn’t have a right to prevent it. There are plenty of similar situations: someone may not have the right to take medical decisions on behalf of their child, but does have a right to know about their child’s medical condition. Perhaps this essentially is about when a husband’s parental rights begin. Do they extend before birth?
(2) This information may be important to a husband. It may cause the husband to re-evaluate his relationship with his wife – i.e. he may want to divorce her. Knowing may be important.
People would suggest that notifying a husband isn’t about “respect”. In cases where the man wouldn’t want the abortion to take place, it would inform his that there’s a difference of opinion between him and his wife about having children – he would know the bad shape the marriage is in, that would be the point of the law.
I don’t support the law. But I do think some obvious points, such as that people would consent to the law affecting them by getting and remaining married, and the reasons it’s supporters would give to justify it – such as an implied reproductive contract between husband and wife – are being ignored.
Sheelzebub Writes:
The fetal protection law says otherwise. You may choose to not view the fetus as a person but the law clearly defines the fetus as a person. There was a time that the law and the common viewpoint didn’t view slaves as persons either. That didn’t mean they weren’t. Thank goodness we got that one right finally, huh?
Nor would she have been in the Texas law that Roe struck down. If you read the whole fetal protection statute it retains this exclusion as well as an abortion exclusion. But that doesn’t me it is out of the realm of possibility.
wookie Writes:
You are right, and Alito’s point was that the plaintiffs failed to prove that. Of course, the definition of “significant” is…er…significant. The plaintiffs could not even put a number on it so their burden of proof, to demonstrate that the number of cases is significant, failed because they couldn’t even produce a number to do the math with.
One of the courts major tasks is to determine who’s rights are more important than whose so we can’t just skip over that. This whole provision in the PA law is about whose rights are more important than whose (or more correctly, whose rights are important enough to weigh in the balance.)
Is a husband’s (I did that just for you Jesurgislac) acknowledged right to be a part of reproductive decisions in the family significant enough to outweigh the burden it will place on some wives to inform them of the abortion? That was the question.
Alito detailed in the dissent the two possible ways this can play out based on O’Connor opinions.
If the burden brought about by a notification requirement is undue (heavy) then the husband has to have a compelling (really big) interest for that interest to outwiegh the burden. Everyone agreed that the husband’s interest in this case was not compelling. Since the majority viewed the burden as undue, they ruled that the provision was not appropriate.
Alito argued, again based all on O’Connor opinions, that the burden was not undue. Therefore, the legitimate interest that even the majority recognised was sufficient to warrant the notification provision.
It all hinged on what an undue burden is. Again, using O’Connor, Alito pointed out the “level” a burden would have to go to (in this case, how difficult it would make obtaining abortions) to be undue. He also pointed out based on O’Connor that the burden of proof lies with the one claiming that the burden is heavy enough to be classified undue. Finally, he demonstrated why the plaintiffs had not met the burden of proof. Basically, if they can’t prove the burden is undue then it isn’t.
The fetal protection law says otherwise. You may choose to not view the fetus as a person but the law clearly defines the fetus as a person. There was a time that the law and the common viewpoint didn’t view slaves as persons either. That didn’t mean they weren’t. Thank goodness we got that one right finally, huh?
Yes, because a fetus is exactly the same as a born human. And abortion is just the same as slavery. What’s next? A comparison of abortion to the Holocaust? I’ve never seen that red herring flung about.
Here’s the majority opinion of the Court quoted these findings from the district court’s ruling:
You’ll note that it’s impossible to ‘prove’ that these burdens exist for a particular woman, abuse being as closeted as it is within families. Perhaps you don’t think it’s an undue burden. But I suggest you think a minute on how much of a burden it is on a woman who is in such a situation.
Finally, Alito’s opinion infantilizes and diminishes women. What with all of the concern over the personhood of a fetus, there is none for the rights and autonomy of women.
How so?
The last time I looked, ordinarily it takes a man and a woman to make a baby. Why should the woman have all the power about what happens afterwards?
Susan, here are two statements:
1) Things that happen to a child after birth matter; during pregnancy is not the only time in a child’s life that its parents will have the power to make important decisions.
2) Feminists here, by saying that only women should have the power to make medical decisions regarding their own pregnancies, are saying that women should have all the power regarding parenting a baby.
If you’re logically consistant, you can claim that (1) is true. You could also claim that (2) is true. But the two statements contradict each other, so you can’t logically claim that both statements are true.
So which statement do you think is true?
I should point out that my discussion of the man terminating parnetal responsibilities is more for the sake of argument than because I actually support the idea; I do not believe that fathers should be able to get out of supporting children conceived by a consensual sexual encounter (in the weird cases where, e.g., the woman takes sperm out of the condom without the man’s knowledge, or when the man is underage, etc., that would be a idfferent issue).
But: once the baby is born, both parents have a legal and moral obligation to support the baby.
Why? If the woman is the one who makes the decision to bring the child into the world, why shouldn’t she be the one to take full and total responsibility for it? On this and a lot of other issues (e.g. social welfare programs dealing with pregnancy) it seems to me that people on the left generally have the attitude that people should be free to make their own decisions on certain matters, but should be able to force other people to pay for the consequences.
The liberal position on this strikes me as contradictory in the same way that it strikes a lot of you as contradictory that someone can simultaneously be against legal abortion and against welfare programs.
gengwall, laws vary by state. In my state, the law clearly states that homicide is the killing of a human being OR a fetus (except in case of abortion).
Okay, apparently you believe that women create babies entirely by themselves, without any input from men. Let me assure you, however, that in virtually every case, babies are created with the voluntary participation of men, who participate in full awareness that there is a chance that the outcome could be a new baby.
Here’s my view: Given the lack of a full generous welfare state to support children, it’s up to the parents. It’s unfair to the child to allow either parent to get a “get out responsibility free card,” because if we gave out such cards, there would be more poor children. Both parents participated voluntarily knowing that sex sometimes leads to babies, and therefore both should be held responsible.
Here’s your view: It’s unfair for men to ever be held responsible for the results of their own freely made choices, because they made their choice second-to-last. And as we all know, only the last person to work on making something is ever responsible for the outcome. For instance, in a car assembly line, only the last person on the assembly line bears any responsibility at all for the finished product. When making comic books, the colorist is the only person responsible for the finished product; the contributions of the writer, artist, and letterer don’t count, because they weren’t the last ones to contribute. In a double-play in baseball, only the first baseman has any responsibility for the success of the play; the other players who handled the ball have no responsibility, because the first baseman was last in line.
Of course, that’s not at all the way it works in real life; so why do you think that’s how it works in reproduction?
Logically, the order of participation doesn’t magically erase responsibility from all parties but the last party. Both parties knew that their freely-made choices could lead to parenthood; therefore, both should be held responsible. Why do you think that view is dodging responsibility?
Yeah, what Amp said.
Of course, in Comic Book World, the colorist doesn’t get to look at the work that’s been done thus far, say “you know, I don’t want to make a comic book today”, and tear it all up.
If the woman is the one who makes the decision to bring the child into the world, why shouldn’t she be the one to take full and total responsibility for it?
This suggests that if a woman doesn’t actually make that decision, she bears no responsibility for the child whatsoever. Which isn’t the case.
Sometimes I think that the elephant in the room in these kinds of discussions is that, theoretically, in our society, when people do nine months of hard, inconvenient, dangerous work where other people have a legal interest in the outcome, they do so because they signed up for the job, they get the benefits for the job, and they get paid.
Rebecca
as due diligence: barren, likes babies, doesn’t like coathanger deaths.
Robert Writes: Of course, in Comic Book World, the colorist doesn’t get to look at the work that’s been done thus far, say “you know, I don’t want to make a comic book today”, and tear it all up.
The publishing house, however, does.
The last time I looked, ordinarily it takes a man and a woman to make a baby. Why should the woman have all the power about what happens afterwards?
Because women, unlike men, have no way to ever abdicate responsibility for pregnancies. A man can literally walk away from any decision involving a pregnancy; a woman never can. When it becomes technically possible for a man to take on a pregnancy from a woman so that the woman gets to say “Hey, you’re the one that’s pregnancy, not me,” then I’ll be all for equal responsibility in the decision-making process.
By treating us like we are children and interfering in our private lives. By deciding that we don’t really know what’s good for us, that we don’t really know our personal situations, and that we abseloutely must consult with someone else about our private medical decisions.
Because it’s the woman, not the man, whose body and health are affected by pregnancy. They do not store a fetus in a commonly-owned cabinet somewhere. It is her body that is affected by pregnancy, and it is her health that is exposed to the risks of pregnancy. No one has the right to force her to open herself to such risk, or to forty weeks (that’s ten months, by the way) of pregnancy. They day men can get pregnant is the day they should be able to decide if they want to put themselves through that.
Sheelzebub – I’m sorry you feel like Alito’s dissent treats women like children who can’t decide for themselves. By the way, have you ever read it?
I could just as easily say that the majority opinion demonizes and dimmishes men. That is if I was having a knee jerk reaction to the conclusion in the opinion. Of course, I have read the opinion and that type of response would be unwarranted. I find it well thought out and argued. I tend to think that Alito’s argument is better substantiated by precedent but that doesn’t mean that the majority’s arguments aren’t valid and even compelling.
Here is where Alito and the majority agree:
Husbands have a legitimate interest in the termination of their wife’s preganancy.
That interest, while legitimate, is not compelling.
Husband notification will place a burden on the woman.
Here’s where they disagree:
Majority – the burden on the woman is “undue”
Alito – the burden on the woman does not reach the level of “undue”
Nothing you stated about the dissent is true because the dissent is not about whether women can decide for themselves. It is about the level of recognized burden that notification places on them and how that compares to the husband’s recognized rights regarding the decision. Specifically:
“By treating us like we are children” – If that means patronizing women there is nothing of the sort in the dissent.
“and interfering in our private lives.” – Hate to tell you, but the government has a right to interefere to a point. The portions of the PA law that were upheld all interfere in your private lives.
“By deciding that we don’t really know what’s good for us, that we don’t really know our personal situations,” – Again, there is nothing in the dissent that makes these allusions.
“and that we abseloutely must consult with someone else about our private medical decisions. ” – Yes, when they have a legitimate interest in those decisions.
If husband notification becomes the law, I think I’ll have to divorce my husband and remarry him after menopause. Not that he’d be surprised or upset about my getting an abortion (outside of our mutual puzzlement of how exactly that could happen with our faithful use of multiple contraceptive methods!), but that I don’t want to be part of an institution where my uterus is the most important thing I bring to it.
Contraception, sterilization, and abortion are all personal decisions. If marriage makes them public decisions, then that’s a pretty strong reason to stay unmarried or get divorced ASAP.
How husband notification (and Alito’s support of it) diminish women? For an explanation far more thorough than I could do, see William Saleton’s article in Slate but this quote from Justice O’Connors decision on Casey sums it up quite well:
The law, where it is applied, doesn’t make them public decisions (you don’t have to put a notice in the paper), it simply makes them conjoint decisions.
The law recognizes that certain decisions and actions, although inherently private, are not completely one sided. I know that sounds like a contradiction but it really isn’t. What the law is saying is that you can’t assume your private decisions and actions don’t have an impact on other people and therefore give them a legitimate interest (i.e. “a say”) in the outcome of those decisions or actions. That was true even in Roe.
Incidently, contraception is off the table – the Griswold case settled that. Sterilization and abortion are the only two contentious issues regarding notification that I know of.
Your post begs the question – does this mean you object to any kind of spousal notification for any reason (medical, financial, child rearing, educational, etc.)?
No, gengwell, your reaction isn’t knee-jerk at all.
Have you bothered to read what Scalito thought wasn’t an undue burden, by the way? I posted it before, so I won’t bother reposting. And no, I don’t think it was particularly well-thought out or intelligent.
Had you bothered to read his opinion, you’d see why I think it’s infantilizes and diminishes women.
Wrong. From Alito’s opinion:
Silly woman. It’s all in your head. Even though it’s been pointed out that it isn’t all in their heads.
Diminishing:
Because the husband’s interest in a fetus, and not his wife’s interest in her own health and well-being, is what is at stake in Alito’s opinion.
You completely misinterpert what he is saying. He is not asserting any of those things are fact he is simply speculating on why the PA legislature might have felt their law covered the bases.
You may feel that the Pennsylvania legislature infantilizes and diminishes women by their reasoning. Alito to a certain degree agrees. But he states, correctly, that it is not the court’s job to assess whether or not the legislature is stupid, pig headed, or sexist. The people decide that with their vote. The court’s only job is to determine if the legislature’s stupid, pig headed, sexist laws are constitutional.
That is where O’Connor went way activist in her opinion. Her conclusion that the law returns women to a “common law” status is irrelevant as she does not prove that a “common law” status for women in marriage is unconstitutional (although I certainly think it is and one could make that argument). She only states that it is repugnant in the current court’s view. Repugnant is not the same as unconstitutional as is evidenced by the fact that the court upholds many laws that the court don’t particularly like or think are good public policy.
Show me anywhere in the opinion where Alito stated as fact that women are incapable of making informed decisions about their health and wellfare. He did not, nor would he because that wasn’t even on the radar in this case. He also rightly wasn’t concerned about future stupid unconstitutional laws that may try to piggy back on the PA provision. He rightly sought to analize the PA statute according to supreme court precedent on the issue at hand: the level of burden notification presents.
It seems that you feel notification on it’s face infantilizes and diminishes women because it always and exclusively assumes they can’t make a decision on their own. Therefore anyone who supports a notification requirement is guilty by association. If that is the case, you disagree with even the majority and O’Connor. A notification requirement in and of itself does not at all address women’s decision making capabilities, it addresses someone elses legitimate interest in the activity involved.
I don’t think I have to tell my husband anything except if I don’t make him the primary beneficiary of my 401(k). I think we both have a responsibility to keep each other informed about our joint accounts, but that would be the same responsibility as if we weren’t married.
But medically, none of my decisions should be automatically his business or my parents’ business or my siblings’ business. Period. Other people’s right to know most definitely ends at my skin.
I empathize with you – you are fighting quite an uphill battle disagreeing with the supreme court and all.
Dear, empathy means that you understand what I’m feeling, and you don’t even understand what I’m saying. Just because the possible near-future Supreme Court of the U.S. may rule that my uterus is public property doesn’t make that assertion correct or moral.
It is not the near-future Supreme Court that has ruled so. That was the ruling in Roe and before.
BTW I do empathise. I do not think you or other’s who are against this provision of the PA law are some kind of evil man-haters. I understand clearly the reasons why this provision scares you and I also understand your adamant desire to control your own lives. I know all of this causes you agnst and it is that angst that I empathise with because I can understand how you feal totally up against a wall and frustrated.
That doesn’t mean I have to agree with a) your position on the provision, b) your reasons for being upset. If my wife has taught me one thing it is that I can empathise with someone without agreeing or even necessarily understanding why they feel how they do.
And let me be clear I think your concerns are real. Roe is already on very shakey ground and it’s foundations are weaking steadily (even the O’Connor opinion in Casey was considered by many a weakening of Roe). If Alito is confirmed you are dead on that Roe’s existence becomes much more threatened. Personally I think that’s great but I understand why you think it’s horrendous.
I do wonder though, if those who hold the opposite position have any empathy at all for the feelings and concerns of the husbands? It continues to be argued here, against all legal precedent and, from my perspective, no common sense, that the husbands have no rights at all in this matter. Pretty uncompassionate if you ask me.
I do wonder though, if those who hold the opposite position have any empathy at all for the feelings and concerns of the husbands? It continues to be argued here, against all legal precedent and, from my perspective, no common sense, that the husbands have no rights at all in this matter. Pretty uncompassionate if you ask me.
Sure. But that doesn’t mean that I think we should legally enforce notification to mollify them, any more than I think husbands should be obligated to inform their wives about their private, medical decisions (vasectomies, etc.).
IOW, I couldn’t blame a man for being hurt and disappointed if he wanted children but his wife didn’t and had an abortion. I wouldn’t blame him if he wanted to get a divorce.
But to equate his hurt feelings with her bodily integrity is disingenous.
Sheelzebub – I am dumbfounded. I find nothing disagreeable in your comment.
OK, I’ve recovered. My response is simply – “fair enough”
(her comes the other shoe)
So, if someone, like me, holds a different opinion than you and has reasoned that opinion out to their own satisfaction, just as you have reasoned out your opinion, does that make them a sexist woman bashing ideologue or can we agree that we are two reasonable people who don’t agree?
If, as I hope, it means the later, then what makes me any different than Judge Alito? Shouldn’t he also be considered a reasonable person who happens to disagree with your point of view? And isn’t it advantageous to have reasonable people who have differing points of view on the Supreme court? And isn’t inevitable that the majority of points of view are going to swing one way or the other over time? And isn’t also inevitable that there will be periods of time where that majority is not the majority you or I desire? And isn’t it a fact that difference of opinion on issues is not grounds for disqualifying reasonable qualified people to the court (how did Ginsberg get confirmed if this were not true)? And therefore, considering all of that, is there any reasonable reason to object to Judge Alito’s confirmation?
Just because you don’t like something doesn’t mean it isn’t appropriate for it to happen.
Gengwall: I do wonder though, if those who hold the opposite position have any empathy at all for the feelings and concerns of the husbands? ?
Given that you have made clear in the other notification thread that you think the wife’s feelings can be disregarded completely, I think it’s kind of unfortunate that you – lacking any empathy for the feelings and concerns of the wives – are asking for empathy for the husbands.
Even if a fetus were a person, abortion should still be legal, because no born person is allowed to use a woman’s body without her consent. We need to completely abandon the personhood argument because it makes no sense.
What the law is saying is that you can’t assume your private decisions and actions don’t have an impact on other people and therefore give them a legitimate interest (i.e. “a say”) in the outcome of those decisions or actions.
gengwell, you really don’t understand privacy and the Constitution if you think the above makes sense.
Roe did not say that women’s privacy “has an impact on other people”. It balanced the woman’s right of privacy in the State’s interest in the protection of fetal life.
“Here’s your view: It’s unfair for men to ever be held responsible for the results of their own freely made choices, because they made their choice second-to-last.”
WRONG. According to the hypothetical scenario I set up, the man should be responsible for his decision (i.e. to have sex) and not for the woman’s decision (whether or not to continue the pregnancy). That is, he should have the right to choose to pay half the expenses of the least expensive option for dealing with the pregnancy if he so chooses, under the stipulation that he gives up all parental rights to the child.
Again, I am not saying that I support this as a policy, I just think it would be more consistent with being truly pro-choice.
Glaivester: Again, I am not saying that I support this as a policy, I just think it would be more consistent with being truly pro-choice.
I think you’ve got yourself muddled up about what being “pro-choice” means, and need to go away and think about it before you comment any more.
Being pro-choice means supporting a woman’s right to decide what she wants to do with her own body: whether or not she is pregnant. Equally, it means supporting a man’s right to decide what he wants to do with his own body, whether or not he’s pregnant, but that situation does not arise in practical terms.
It has nothing to do with encouraging men to abandon their children without financial support just because a man doesn’t happen to feel like providing support.
Correct. But it is the states interest in the husband’s rights that was being explored in Casey. Therefore, the husbands rights in actuality are an extension of the states right to protect a husband’s legitimate interest in the pregnancy. My point in the post clearly was that the woman’s right to terminate a pregnancy is not unqualified.
You are viewing this from the opposite point of the law. The correct statement is that no woman has the right to end the life of another person unless that homocide is justified. The court knew this in Roe.
The court, and most everyone even pro-lifers, agree that we have a right to do with our body what we want and that no one else has a right to force actions on our body that we don’t want. The point is that balanced against the taking of life those rights about our bodies are secondary.
So, contrary to your post, the whole abortion debate is completely about the personhood of the prenatal life. If it’s not a person, then Roe makes sense. If it is a person, then the abortion right becomes secondary to the right to life of the prenatal person. Why do you think the pro-choice camp is scared to death of fetal protection laws? Did you not get a change to read Kerry’s statement that I posted above? (post 51).
But it is the states interest in the husband’s rights that was being explored in Casey.
I don’t think you’ve read Casey. You certainly haven’t read Roe.
That, or you’re arguing that SCOTUS should have overturned modern Equal Protection law and returned to the older line of thinking, in which a wife was legally inferior to, and partly the property of, her husband. Because that’s really the only law that supports your line of thinking.
Jesurgislac:
It has nothing to do with encouraging men to abandon their children without financial support just because a man doesn’t happen to feel like providing support.
I find it interesting how people misrepresent what I said. I was talking about the man having the right not to financially support the child. That is not the same as encouraging the man not to finanically support the child.
Being pro-choice means supporting a woman’s right to decide what she wants to do with her own body: whether or not she is pregnant. Equally, it means supporting a man’s right to decide what he wants to do with his own body, whether or not he’s pregnant, but that situation does not arise in practical terms.
It has nothing to do with encouraging men to abandon their children without financial support just because a man doesn’t happen to feel like providing support.
As for the issue of “bodily integrity,” how do you think the man gets the money to pay child support? If the father is a janitor, or other physical laborer then requiring him to pay child support may force him to work long extra hours. Doesn’t that impose on his body?
Also, I find it interesting that when talking about abortion, the issue is the woman’s rights, but when the issue is child support, it is automatically assumed that the man has no rights to the fruits of his labor, and that only the child need be considered.
Put another way, you are phrasing the two issues in such a way as to put the woman making the decision to abort in the best possible light, and to put the man deciding to forego any responsibility to the child (we are assuming that he makes this decision prior to the point where abortion is no longer an option) in the worst possible light, which is sort of propagandistic.
Not that I don’t think a person can make a distinction between child support and gestation. Kyra (#29) does so fairly well, whether or not I agree with her.
I think you’ve got yourself muddled up about what being “pro-choice” means, and need to go away and think about it before you comment any more.
I know what it means. It means (that is, what you mean when you say it) that after pregnancy occurs, the woman has all of the choice, and the man has to share responsibility with her for whatever she chooses, even when he has no say.
The real reason why we keep talking past each other on these issues is that people on the right (me) view property rights as important, and to some level view property rights as an extension of bodily rights (as most people earn property using their bodies, or received the property freely from someone who earned it – e.g., inheritance), whereas people on the left (most of the posters) see property rights as unimportant and expendable, and therefore see infringing on someone’s property rights (i.e. taxes, requiring child support) not as a necessary evil (which I agree it sometimes is), but as morally neutral (and some even deny that there is any infringement), and therefore not part of the moral calculation. (That is, I would see such issues as balancing the need for revenue with the rights of the taxpayer in the case of taxes, or the rights of the father in child support cases, many on the left don’t view the taxpayer or father as having any rights to their property that need to be considered)
Therefore, you can’t see why I view child support as being an imposition similar to forced gestation, and why I see being pro-choice on abortion and anti-choice on child support payment as being an inconsistent position.
I was talking about the man having the right not to financially support the child
That’s not a right the woman has, either. The only real difference between men and women is that the woman, being the one whose uterus has occupied, has a limited right to an abortion. On the other hand, the man doesn’t have any obligations whatsoever until there is a born child.
An “opt-out” system has so many problems that I hesitate to criticize it, given the employment opportunities that it would open up to the family-law bar.
Glaivester Writes: I find it interesting how people misrepresent what I said. I was talking about the man having the right not to financially support the child. That is not the same as encouraging the man not to finanically support the child.
Okay, I’ll accept that there is a miniscule difference between arguing that a man ought to have the right to abandon his child, and arguing that a man ought to abandon his child. Both are scummy positions to take, of course, but I accept that the scummy position you were arguing for was the first. You don’t feel that a man ought to leave his child in poverty: he just ought to have the right to do so if he feels like it.
As for the issue of “bodily integrity,” how do you think the man gets the money to pay child support? If the father is a janitor, or other physical laborer then requiring him to pay child support may force him to work long extra hours. Doesn’t that impose on his body?
That would apply to both parents equally: indeed, it applies more so to the woman than the man (if we’re assuming that the man is providing nothing but a monthly child support check). Children are hard work, and working to make a living can be very hard. I agree it would be better if people didn’t have to work to make a living in ways that damage their body, but I disagree that a man ought to be exempt from supporting his child because supporting his child might mean he had to work hard.
but when the issue is child support, it is automatically assumed that the man has no rights to the fruits of his labor, and that only the child need be considered.
You may feel that it’s wrong to put the welfare of the child first, but that’s been the legal basis of child support decisions for some decades now. I find it interesting how many men make the assumption that their children have no right to any support from them – not even the basic financial support.
Put another way, you are phrasing the two issues in such a way as to put the woman making the decision to abort in the best possible light, and to put the man deciding to forego any responsibility to the child (we are assuming that he makes this decision prior to the point where abortion is no longer an option) in the worst possible light, which is sort of propagandistic.
Put another way, you are trying to spin a man’s decision that he has no obligation of support towards his child in the best possible light – and even that doesn’t make the man look very good. Your argument seems to be that the man has a right to the “fruits of his labor” – that he, and he alone, should benefit from his work – and that he shouldn’t have to work too hard to earn a living for anyone but himself. You see men as having a right to think only of themselves, and you’re trying to put that in a good light. I’m not really sure that’s possible: it’s hard to make selfishness look good.
As for a woman having the right to decide to terminate her pregnancy: it’s her right, because it’s her body. Some women might make that decision for good reasons, or for bad reasons – for example, they might know that they couldn’t support the child by themselves, and they knew the man who fathered it was the kind of guy who would want to welsch on child support. But it’s a basic right, to decide what you will do with your own body.
It means (that is, what you mean when you say it) that after pregnancy occurs, the woman has all of the choice, and the man has to share responsibility with her for whatever she chooses, even when he has no say.
Well, that’s a propagandist way of thinking of it. A woman has the choice whether or not to terminate the pregnancy. No man has that choice, because no man can get pregnant. Once the child is born, unless s/he’s put up for adoption, of course both parents are responsible for supporting the child. The man generally has the option of deciding to minimize his support down to the legally required monthly check. Once the baby exists, s/he needs support – all kinds of support, not merely financial, but you can’t simply wish her/his needs away by saying that you never wanted him/her to exist in the first place.
The real reason why we keep talking past each other on these issues is that people on the right (me) view property rights as important,
Indeed. And property rights are important. The real problem is that some people on the right (including you, apparently) value property rights over human life. Abandoning a child for whom you have the obligation of support is not morally neutral, even when it’s dressed up as “a man has the right to the fruits of his labor”.
Gentlemen:
‘Donation’ of sperm is like giving a gift. And, if you put no pre-conditions on the ‘donation’ she then becomes sole custodian of your ‘donation’ to do with as she pleases. If she, in her infinite wisdon, chooses to present you with a child, wonderful. You now have some say.
You have the right to put pre-conditions, it’s called a pre-nup. Though how you could reasonably enforce that right, I do not know. Every ‘donation’ carries with it the possibility of weighty life-time responsibilities. If you don’t like the way the woman handles your gift, remember, you picked her.
The only ‘manly’ thing to do when she tells you she’s pregnant is to tell her, “I’ll stand behind you whatever you decide and will meet any financial obligation that entiails.”
I honestly wish my ex-husband would sign away his parental rights. I’ve never asked for child support, because I know him too well. And he doesn’t really make any effort to be a father. If he would/could sign away his rights, then my husband could adopt my daughters and legally be what is factually is — their father.
There is one instance when I would think that child support would be optional, and that is when a woman goes out seeking to become pregnant sans the romantic relatioship society says ought to come before children. If the man were not informed of her decision, or she misrepresented her self (stated she was on birth control when she was not in fact) then I would argue that the man should be allowed to forgo his parental rights.
This is only my opinion, but I have known one or two women in my time that have actually done this in order to have children. In both cases, the women did not seek child support from the fathers. Only one of the men actually fought for his parental rights, including child support and visitation.
So, does anyone know when the Alito hearings are to start?