This is from the dissent in Dobbs.
The ability of women to participate equally” in the “life of the Nation” — in all its economic, social, political, and legal aspects — “has been facilitated by their ability to control their reproductive lives.” … Without the ability to decide whether and when to have children, women could not — in the way men took for granted — determine how they would live their lives, and how they would contribute to the society around them.
This is part of their argument against originalism. The idea is that women were not considered equal members of society (either at the ratification of the constitution or at the passage of the 14th amendment), so decisions affecting women from back then can’t be applied today — when women are equal members of society.
It’s an interesting point, although there is a counter-argument.
Do men really control their reproductive lives?
It’s clear that a man’s involvement in reproduction is not as intense or consequential as a woman’s. I don’t mean to pretend they are the same. They are clearly not. But does a man have any rights?
What if a man wants to have children, but his wife keeps having abortions? Does the man have any say in that? If not, what are his “reproductive rights”?
What if a man does not want to have more children, but his wife has an affair and gets pregnant. The husband is legally the parent of that child. Does he have any say in that? What are his “reproductive rights” in that case?
A better way to phrase the last question might be “What if his wife lies to him about being on birth control and gets pregnant and has the child?” If the child was actually another man’s child, the husband would have legal ways of getting out of the responsibility these days.
Is that really true? Can a man get out of parental responsibilities if he can prove he’s not the father?
I don’t know for sure, but I have a hard time believing that the laws haven’t changed that way in at least some states. I would think it could be part of a divorce process, if nothing else.
I found this:
https://www.dupagefamilylaw.com/naperville-attorney/paternity-when-the-husband-is-not-the-biological-father
If a man can prove (via DNA testing) that he is not the biological father, in some states, he can contest paternity and be legally released from parental responsibility. Unless he does that, he’s considered the legal father and must assume parental responsibility.
What’s interesting is the inverse is not the same. If a man fathers another woman’s child while he is married, his wife is not the legal mother of that child.
QUOTE: What if a man wants to have children, but his wife keeps having abortions? Does the man have any say in that? If not, what are his “reproductive rights”?
Generally, men currently have few rights, if any, relative to reproduction. There was a time when men could file injunctions to keep women from having abortions and sue their wives who had abortions without telling them. In 1988, a New York orthodontist, David Ostreicher, filed a suit against his wife and her doctors after she obtained an abortion without telling him.
Albeit I think men should have more rights, it gets complicated quickly. I don’t think we should always legislate for exceptions, but there might be a need to build nuances into laws that govern reproductive rights for both men and women. For instance, it could be problematic (for mother and child) to have women legally bound in cases of abusive husbands.
That said, it seems Arkansas is one of the few states that currently allows men to block their wives from having an abortion.
https://slate.com/human-interest/2017/02/arkansas-law-will-let-husbands-sue-to-prevent-wives-from-getting-certain-abortions.html
“I don’t think we should always legislate for exceptions”
There’s an old saying that hard cases make bad law.
It is definitely a difficult issue, which is why I get tired of the bumper-sticker level rhetoric that gets passed around as wisdom. E.g., “protecting reproductive rights,” which is wrong on so many levels.
Agreed…that’s why I take issue with the slogan…“my body, my choice”. Yes, it is a woman’s body and she IS a MAJOR stakeholder. Yet, there’s other important stakeholders to consider…the unborn and the father. It’s complex and whatever laws are constructed need to consider “ALL” stakeholders and create appropriate nuances. Otherwise, whatever law is developed will be likely create unfortunate unintentional consequences (for those stakeholders not considered).
That said, it’s equally exhausting to see how each side runs to their extremes. Some hyper-conservative want to criminalize miscarriage…
EXHIBIT A: Chelsea Becker had a stillbirth at a California hospital, losing a baby boy at eight months pregnant. The Kings county prosecutor charged her with “murder of a human fetus”, alleging she had acted with “malice” because she had been struggling with drug addiction and the hospital reported meth in her system. Becker’s attorneys argued there was no evidence that substance use caused the stillbirth and California law did not allow for this type of prosecution in the first place. Still, she spent 16 months in jail awaiting trial before a judge dismissed the charges.
Some hyper-liberals want abortion on demand…any time, for any reason without considering anyone else.
EXHIBIT B – But under no circumstances should men have any legal rights over women’s pregnancies. Women aren’t children and don’t need permission slips from their husbands or male partners in order to exercise a legal right.
Lastly, I think too much emphasis is placed on abortion. If more attention, effort and resources were placed on preventing unwanted pregnancies that might help significantly. Although it wouldn’t eliminate abortion, it could create less need for them and a multitude of laws to govern them.
Good post, although I don’t think it’s fair to caricature that as “criminalizing miscarriage.” They want to criminalize reckless behavior that leads to a miscarriage.
QUOTE: ..although I don’t think it’s fair to caricature that as “criminalizing miscarriage.” They want to criminalize reckless behavior that leads to a miscarriage.
Fair or not, in this context, I don’t think there is a significant “practical” distinction. The extremists will likely attempt to investigate women who miscarry for behavior they deem risky, even if it’s not illegal behavior. In 2019, an Alabama woman was charged with manslaughter for starting an argument with another woman, who then shot her, killing her fetus. In 2020, an Oklahoma woman was charged after methamphetamine was found in her system (despite a medical examiner’s conclusion that it played no role in the miscarriage). According to the National Advocates for Pregnant Women, between 2006 and 2020 more than 1,300 women were arrested, detained, or otherwise physically deprived of liberty for reasons related to a pregnancy. In some cases, the women were charged for unintentionally harming the fetus.
This was all BEFORE the current SCOTUS ruling. Given the current ruling, this will likely encourage extremists. For them, any pregnancy that doesn’t result in a live birth could be subject to scrutiny and possible prosecution. In Texas and Alabama there are already reports that physicians and pharmacists are declining to treat miscarriages in fear of a lawsuit or prosecution.
PS…I also think it’s time we take this argument out of the hands of the courts and put it where is rightly belongs…with state legislators and/or Congress! They are the “law-makers” in this country…not the courts.
I think we’d have to agree that women uniquely bear the physical ramifications of pregnancy, right? Also, despite gains, women still bear disproportionately the burdens of child care on a daily basis. I think that combination of factors is what the dissent was driving at, which can keep women from a career outside the home, thus the ability for personal and professional fulfillment, for example.
Yes, I don’t think anybody disputes that women bear the brunt of the difficulty in childbirth.
The dissent makes a very good point, and perhaps I should have been clearer about that.
The majority opinion says you can only find an unenumerated right in the 14th Amendment if (1) it’s clearly a part of our history and tradition as a country, and (2) it’s part of “ordered liberty.”
The dissent says that since women were not able to vote, it’s unreasonable to expect to see access to abortion as part of our history and tradition. As an analogy, it would be unreasonable to expect to see rights for blacks during slavery.
It’s a good point, but I don’t think it holds up because it assumes that women all agree on abortion (they do not), that women back then would agree with women now (very unlikely), and that voting was the only way women could have influenced laws and tradition (untrue).