Abortion, Paternity and Fathers’ Rights

Earlier this year I posted a link to an editorial arguing that fathers should have a right to veto the abortion of their children.  I noted that the US Supreme Court struck down a Pennsylvania law that required husbands be notified of a wife’s intent to have an abortion in Planned Parenthood v. Casey, notwithstanding that notification could be avoided by a woman telling the abortion provider that the child was not her husband’s child, or that she feared violence if her husband was notified.  I expressed the view that while it is possible that the Court would reverse its opinion on notification of husbands, but I saw very little prospect of success for a consent requirement.

SSRN has a new article, Fathers and Abortion, by Ezio Di Nucci (Universität Duisburg-Essen), in which the author addresses paternal rights, but from a distinctly pro-abortion point of view.  Dr. Di Nucci argues that it is wrong for women to continue pregnancies over the objection of the “prospective fathers”, even in cases in which the man will bear no financial or legal responsibility for the child. Yet he simultaneously maintains that women should retain “an absolute right to abortion.” In other words, if either parent wants the unborn child aborted, that parent’s views should prevail.  While he disavows wanting to require women to abort at the demand of the father, he gives almost no explanation of why we should tolerate the “wrongful” conduct of a woman continuing the pregnancy over the father’s objection.

It is clear from his article that Dr. Di Nucci is concerned with making a philosophical, not legal, argument. Yet I think his article is weakened considerably by his failure to refer to actual cases involving fact patterns similar to those he is concerned with.   For example, in Evans v. United Kingdom, the European Court of Human Rights denied a biological mother’s request to bring her embryonic children to term over the objection of the father.  This case is particular poignant, because at the time of the lawsuit the woman had no other children and was incapable of conceiving other children due to ovarian cancer. Yet despite these facts, the court granted the man’s request to have the embryos destroyed since the couple was no longer together.  The outcome mirrors that of almost all American cases on this subject.  I discuss these cases in my article Whose Life is it Anyway?.

Dr. Di Nucci’s position contrasts sharply with the new billboard campaign in California urging men to fulfill the responsibilities that come with conceiving a child. The billboards are intentionally placed in black communities where fatherlessness is epidemic.  Over 72% of African-American children are born to single mothers.  The billboards proclaim “Fatherhood begins in the womb.” One of the sponsors of the billboards explains that abortion is promoted as empowering women but, “Men have been empowered by Roe v. Wade to have sex and run. They’ve been forced out of their crucial role by perpetual welfare and today’s brand of liberal feminism.”

The fact that Dr. Di Nucci supports “an absolute right to abortion” but not an equally absolute right to bring the child to term suggests he is more a fan of sexual license than personal autonomy, yet I fear his views are not unique.

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.