Abortion and Men’s Responsibility/Rights

Fox News is carrying an interesting editorial by a pyschiatrist, “Men Should Be Allowed to Veto Abortions.” He argues that current law giving men no say in a woman’s decision whether to continue or terminate her pregnancy teaches men that they are not responsible for the lives they create. The editorial argues the this is a result of Planned Parenthood v. Casey, the US Supreme Court opinion striking down a Pennsylvania law requiring spousal notice prior to abortion.

The Pennsylvania law provided, 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 had notified her spouse that she was about to undergo an abortion. The woman had the option of providing an alternative signed statement certifying that her husband was not the man who impregnated her; that her husband could not be located; that the pregnancy was the result of spousal sexual assault which she has reported; or that the woman believed that notifying her husband would cause him or someone else to inflict bodily injury upon her. A physician who performed an abortion on a married woman without receiving the appropriate signed statement would have his or her license revoked, and would have been liable to the husband for damages.

A majority of the Court found that this notice requirement imposed a substantial obstacle to women obtaining abortions. “For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife’s decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law-those who most reasonably fear the consequences of notifying their husbands that they are pregnant-are in the gravest danger.” The Court refused to accept the argument that such women could avoid the requirment by simply certifying that notice would result in bodily injury. The Court also considered it constitutionally irrelevant that domestic abuse would be applicable in only 1% of the cases.

At the other end of the spectrum, courts have imposed legal duties of paternity on males who have been the victim of statutory rape and non-consensual sex. In S.F. v. Alabama ex rel T.M., 695 So. 2d 1186 (Ala. Civ. App. 1996) a thirty-seven-year-old man was found to be liable in paternity, notwithstanding that the court accepted his testimony that he has no memory of having sex with the plaintiff after he had been drinking for several hours, and his brother had put him to bed.

In San Luis Obispo Co. v. Nathaniel J., 50 Cal. App. 4th 842 (Cal. App. 2d Dist. 1996), a fifteen-year-old boy who had been seduced by a thirty-four-year-old woman was legally liable to support the child resulting from his sexual relations with the mother, notwithstanding that the boy was the adjudicated victim of unlawful sexual intercourse with a minor. A similar result was reached in In re Paternity of K.B., 104 P.3d 1132, 1133 (Okla. Civ. App. 2004).

The most surprising case of paternal liability, however, is State of Louisiana v. Frisard, 694 So. 2d 1032 (La. App. 5th Cir. 1997). In this case the father testified (and the court accepted) that he never had vaginal intercourse with the plaintiff. Instead the woman inseminated herself from sperm that she had retained after she performed sex acts on the defendant. The court found the man liable for child support.

Taken collectively these cases illustrate what appears to be the general legal principle – a man will be responsible in a paternity action in each case in which a child is brought to term, independent of his consent to engage in the conduct directly responsible for conception of the child.

Teresa Collett

Teresa Stanton Collett is a professor at the University of St. Thomas School of Law in Minneapolis, Minnesota, where she teaches bioethics, property law, and constitutional law. A nationally prominent speaker and scholar, she is active in attempts to rebuild the Culture of Life and protect the institutions of marriage and family. She often represents groups of state legislators, the Catholic Medical Association, and the Christian Medical and Dental Association in appellate case related to medical-legal matters. She represented the governors of Minnesota and North Dakota before the U.S. Supreme Court as amici curiae regarding the effectiveness of those states’ parental involvement laws. She has served as special attorney general for Oklahoma and Kansas related to legislation designed to protect the well-being of minors and unborn children. She is an elected member of the American Law Institute and has testified before committees of the U.S. House of Representatives and U.S. Senate Committee on the Judiciary, Subcommittees on the Constitution, as well as numerous legislative committees in the states.