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Wednesday, September 28, 2005

Roberts and a Man's Right to Choose an Abortion

I have recently come across this snippet from Roberts' confirmation hearings:

FEINSTEIN: In Bray, you argued on behalf of the government as deputy solicitor general that the right to have an abortion is not specific to one gender. Specifically, your brief stated, quote, unlike the condition of being pregnant, the right to have an abortion is not a fact that is specific to one gender, end quote.

Here is the paragraph from the brief Roberts authored and argued:

There are more interests at stake in the abortion decision than those of the pregnant woman. The government has a legitimate interest in protecting both the unborn child and the health of the mother, Harris v. McRae, 448 U.S. at 324-325; Roe v. Wade, 410 U.S. 113, 162, 164-165 (1973); the parents of a pregnant minor have a valid interest in participating in their daughter's decision whether to carry her pregnancy to term, Hodgson v. Minnesota, 110 S. Ct. 2926 (1990); and the father of the child has a personal interest in the pregnant woman's decision. Thus, unlike the condition of being pregnant, the "right" to have an abortion is not a fact that is specific to one gender. Instead, it is a legal right as to which the law can properly assign different interests to various parties.

As I read it, Roberts' response to Senator Feinstein did not have him backing off of this position in the Bray brief.  This may be bad news for a woman's right to choose.  But it may mean that my argument for a man's right to choose could be heard sympathetically by a Roberts Court.  Of course, Danforth--the case that effectively precludes such a right--is stare decisis.  And we know how deferential to precedent Roberts claims to be.

Posted by Ethan Leib on September 28, 2005 at 04:15 PM in Constitutional thoughts | Permalink


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I have a question regarding the issue... can a boyfriend of a pregnant woman stake a claim in the decision to abort? What if the boyfriend wants the child, and the mother wants to abort?

Posted by: Patrick | Jan 23, 2006 12:52:33 PM

I wrote a seminar paper on it while in law school; my professor discouraged me from publishing it because I would be tarred as a misogynist. I don't, however, think Danforth is the best case to use, I think Doe v. Bolton is. Danforth dealt with the situation where a man has abandoned his wife and the wife has to ask a medical board to get an abortion, but the medical board refuses on account of her lacking her abandoned husband's written consent. The requirement of going to the medical board is invalid because there's no reason she couldn't just go to one doctor, and the requirement that she seek a consent from her husband in that particular case is invalid because he has abandoned his wife and presumably waived any rights he had to sue on the fetus' behalf. Doe v. Bolton, however, invalidates certain provisions of a Georgia statute, but NOWHERE invalidates the section of the statute that says that any close relative of the fetus can sue on behalf of it; later cases do not refute the notion that a fetus has interests that the state can regulate; indeed both Roe and Casey state that in its later stages abortion can be outlawed entirely for that very reason. Because O'Connor's "undue burden" test applies only to pregnant women with nonviable fetuses, pregnant women with viable fetuses (whose abortions could be outlawed entirely), could theoretically be subject to a husband's veto if the husband can prove that the child is his, that he has the financial resources to care for it, and that he hasn't abandoned his wife. The invalidation of a husband's veto has only been upheld in those cases where the State lacks the authority to outlaw abortion -- post-Casey those cases consist only of pregnant women with nonviable fetuses. In other words, if, in a given case, the State can outlaw an abortion, then, in that case, it can give the right to veto that abortion to the husband, because the greater includes the lesser. The only thing in the way of this reading of the legal materials is Stenberg v. Carhart, in which Kennedy (co-author of Casey's joint opinion) dissented. And Carhart is up-for-review in Gonzalez v. Carhart.

Posted by: John Smith | Sep 30, 2005 12:22:22 PM

I had pitched Findlaw on my piece well before the Colb article came out; alas, I didn't have the "professor" title yet and couldn't get the attention of the editors.

Naked bigotry. BTW, I didn't post to the link to say: "You're preempted." I think you knew that, but just in case, I'm saying it.

It's a provocative opinion, and very relevant. In some states, the father of a child must pay a minimum percentage of his income. In some states, it's as high as 23%. Some argue against abortion laws under the involuntary servitude argument. I've never understood why that same argument would not apply to involuntary fathers.

Worse still is that fathers have no discretion on how that money is spent. Most of us know some who pays a lot of money in "child support" only to watch the baby's mother squander the money. I'm sympathetic to requiring a father to pay for the baby under the best interest of the child test, but when the money is being spent frivolously, the child's best interests are not being met. At the least, the father should have some discretion as to how the money is spent. (Say, by putting a percentage of the money in an Education IRA.)

Posted by: Mike | Sep 28, 2005 6:53:20 PM

I had pitched Findlaw on my piece well before the Colb article came out; alas, I didn't have the "professor" title yet and couldn't get the attention of the editors.

Posted by: Ethan Leib | Sep 28, 2005 6:41:07 PM

Sherry Colb wrote an interesting column on this issue. It's here.

Posted by: Mike | Sep 28, 2005 6:29:47 PM

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