Friday, March 10, 2006

An Equal Protection Argument Against Abortion

And interestingly enough, it becomes an argument for why we have to get the courts out of the abortion business.

(This isn't going to become The Abortion Blog, I promise. I just have been thinking about it a lot recently. At some point we will switch back to pictures of puppies playing with jello. )

Musing about the guy who's suing for the right to terminate his own fatherhood of a child on the grounds that he didn't want it and didn't get an abortion, I wonder if there is a 14th amendment case against abortion, on the following lines:

Once a child is born, both a man and a woman share financial and custodial responsibility for the child. They each have general duties toward the child under the law. This is just and equitable, as far as I know. (Where there are individual exceptional cases, ("that crazy judge gave him full custody!") they are in violation of the basic principles, in the absence of extraordinary circumstances.)

However, women have a power that is not granted to men: the power to abort the child. This is specific, unique to women; it can't be transferred. Unlike financial responsibility, this existential responsibility is assigned, by nature and the state, to one gender only.

It is not the state's place to rule on what nature may or may not do. However, there is no need for the state's action in the matter to conform to that set of facts. To be treated equally under the terms of 14th Amendment, which do not (so far as I am aware) make an exception for cases where only one group can exercise a right, it would seem that the state should bar both sexes from procuring the abortion of a jointly-conceived fetus, or allow both to procure unilaterally.

The latter option is ethically appalling. To grant men the arbitrary power to unilaterally decree an abortion, even in the case of a woman who greatly desired a pregnancy, would be monstrous beyond measure. No man was born to wear that crown of power over a woman, save One, and he is a gentle Lord.

The former seems to genuinely preclude the right of any woman to get an abortion. While in many cases it is likely that this would be an increase in justice, rather than a decrease, the fact that remains for some irreducible portion of pregnancies, such as cases of medical necessity or dire and unrelievable circumstances for the mother, an abortion is the morally right course of action. To deny those abortions is monstrous in and of itself. The measure of harm is, in my personal feeling, less than that imposed in the case of allowing male dictation of abortion. However, it still well exceeds the amount of injustice that can be tolerated under a humane regime of law.

It would seem, therefore, that some kind of compromise is in order. Perfect (i.e., strictly Constitutional) justice cannot be effectively delivered. However, some solution must be reached.

And here I suggest that the appropriate remedy on the part of the judicial system is: withdraw. Remove this element of our national, and personal, lives by making it a political issue instead of a legal issue.

The political system will come up with a messy, patchwork system - or more likely, set of systems. It will evolve in accordance with the efforts and desires of the people in the many communities and governmental entities that make up our society. There will undoubtedly be abuses and excesses; political systems eat efficiency and excrete corruption. But that's often a better thing than rulings by judges. You can't move out from an order of the Supreme Court. But you can leave New York for Utah, if that's what suits you. Or from Nebraska to Nevada, if that's your preference. If states and even towns are setting their own policies, then Americans for whom the issues are important can do the Burkean self-sorting which is the peculiar genius of our political and social culture.


nobody.really said...

Eh. The disparate circumstances of men and women, both natural and legal, has been kicked around a lot at Amp’s place. As I have understood the argument, in brief:

The challenge is to identify the interests that you think government (courts) should protect, and then to fashion corresponding protections that do more good than harm. Roe v. Wade was decide to vindicate a woman’s bodily integrity, and identified the protection of granting women discretion over whether to bear a fetus to term.

Incidentally, the Roe protection also protects a woman’s discretion over whether to bear the financial consequences of bringing a fetus to term. You accurately note that this remedy does not provide equal protection for the man’s financial autonomy. Finding these interests in equipoise, you reason that courts should throw in the towel.

I expect that this reasoning will not persuade many people who believe that a woman’s bodily integrity still requires protection, nor people who believe that the woman’s and the man’s interests identified here are not in equipoise. And even people who believe that the interests are in equipoise would likely acknowledge a separate remedy: defend the woman’s choice, but relieve the man of his financial responsibilities.

Of course, entire discussions could spin out of each sentence written above.
1. Would removing the man’s financial responsibility unduly impinge upon the woman’s autonomy to bear the child, effectively forcing the woman to have an abortion (another invasion of bodily integrity)? More generally, does the woman have a protectable interest in receiving financial contribution from the man?
2. Does society have a protectable interest in having the man make financial contributions, thereby reducing the burden on publicly-funded social services?
3. Does a fetus have protectable interests (“judicial standing”)? Given the potential for conflict of interest between the man, woman and fetus, who may represent the fetus’s interests? Does the fetus have a protectable interest in being born? Does the fetus have a protectable interest in financial contributions from the father?
4. Does the man have a protectable interest in controlling of his genetic material? Family name? Reputation? Does the woman?
[4a. Does the man have a protectable interest in controlling his genetic material if used for an unforeseeable purpose (retrieving sperm from a condom to conduct genetic testing, impregnate someone else, etc.)? But I’m getting off the track....]
5. What conduct constitutes waiver of any protectable interests?
- Does consensual, legal sex waive the interest in controlling genetic material? financial autonomy? bodily integrity?
- Does consensual, illegal sex (statutory rape, incest) waive any interests?
- Does non-consensual, legal sex (at least historically, there was no legal prohibition on one spouse forcing the other to have sex) waive any interests?
- Does non-consensual, illegal sex (rape) waive any interests?
6. Does consensual behavior induced by false statement constitute waiver of any protectable interests?
- “I’m your spouse.”
- “I’ll marry you.”
- “I’m using birth control/I’m sterile.”
- “If I get pregnant I’ll have an abortion.”
- “If I get pregnant, I won’t expect any support from you.”

There are no short abortion discussions.

A Jacksonian said...

If you don't mind I will take a look at the entire Roe v Wade ruling in a manner so totally strange that it may actually be right... I started out some time ago with my thoughts here and then, via discussion at CQ, finally regularized them here.

The Constitution, above all things, is a guarantee of equal protection and civil rights for citizens. This is firm ground as Amendment IV and XIV both put that down. Congress gets the right to regularize Citizenship via Immigration and Naturalization of foreigners, but the traditional bounds are left up to the States as an unenumerated right under Amendments IX and X.

Now, the Supreme Court, in its wisdom, has put down that a woman has a right to an abortion, save for a viability test. And no matter which way you turn this around, look at it and bounce it off the wall you come down to: viability for what?

This is obvious: viability to exist outside the mother or host body.

But this also confers one other thing *instantly* upon emergence: Citizenship.

So viability to become a Citizen.

Strangely enough, this begins to make a few people a bit nervous as they can see where it is headed. The States, well within their powers and rights under Amendment IX and X may use the *exact* same language as Roe v Wade to stipulate citizenship. Because there is a due process and equal protection problem inherent in the viability test leaving a premature child with citizen status and a gestationally equivalent fetus undergoing a full term pregnancy without those exact same protections.

The Supreme Court tried to muddy the water here by claiming some third state of being, neither betwixt or between, but even in *that* there is a due process and equal protection violation.

From there a State can very well enact legislation to, indeed, allow abortions outside of the viability zone with a buffer of a week or so in favor of the fetus so that due process and equal protection are given when viability is possible.

The State could then require a woman wishing to have an abortion to have to signed and sworn affadavits, one from herself and one from the acknowledged partner, on the date or dates possible for conception. A single State Certified physician could then perform an exam and give witness that the pregnancy did indeed fit in that window and give that in writing.

With those three papers (or three physicians in case of unknown partner or unclear date) a woman can go to an abortion clinic, copies will be sent to the State and a set kept at the office with originals returned. After the abortion a fetal specialist would examine the aborted fetus and confirm the above.

What this does is gives pro-life groups the opportunity to work very hard in extending the viability period downwards through technology and better understanding of reproductive biology. This would be to the betterment of all mankind.

A right to an abortion would still exist, so long as viability were kept as the test.

And a fetus within the viability period gets a new status: Citizen. With the full equal protection and due process rights of any other minor, incompetent Citizen under custodial care and oversight. This would not leave the matter up to *chance* and bad luck of being born premature.

The State could mandate genetic testing at that point to track fetal development and ensure the health and safety of this new Citizen until it emerges and gains a *birth date*.

No new laws to protect a viable fetus need be passed as all other laws on the books are in force for it.

And I would enjoy hearing the Supreme Court explain why this was not so. You can read their ruling in no other way, even when they say that you can read it no other way, as it involves a right that is *not* theirs to take away from the States.

This would be especially ironic as it would *not* involve abortion, but would use their exact viability concept to define *Citizenship*. How the test can be right for the negative and not for the positive is something that they would need to define *explicitly* and remove the due process violation regime that has been set up by previous Courts.

Of course, I have strange thoughts.

mythago said...

To be treated equally under the terms of 14th Amendment, which do not (so far as I am aware) make an exception for cases where only one group can exercise a right

I'm not sure where you get that interpretation, other than the fact that the rest of your argument hingest on it.

Robert said...

I'm not a lawyer, mythago, and I'm sure that there are gazillions of cases with which I have no familiarity, and maybe one or more of them go against this doctrinal idea. But I seem to recall that there have been 14th amendment cases where it was clear that the complainant was not really able to fully enjoy the right being sued for, but that wasn't considered material to whether they were entitled to the right.

mythago said...

But I seem to recall that there have been 14th amendment cases where it was clear that the complainant was not really able to fully enjoy the right being sued for, but that wasn't considered material to whether they were entitled to the right.

Name one or two and I'll take a look.

But specific to our discussion, the argument that pregnancy is severable from gender is silly; only one gender gets pregnant. That's why laws prohibiting discrimination against pregnant women don't violate the Equal Protection Clause, even though they treat men and women differently.

The test isn't 'do you treat everyone the same?' but 'if you treat people differently, what's your reason for doing it?'

Robert said...

Name one or two and I'll take a look.

Yeah, I'll get right on that! :P

Seriously, if anybody knows the cases I'm oh-so-specifically referring to, chime in. Otherwise it'll be 20 years before I find the time.

As for the severability of pregnancy - who's talking about pregnancy? I'm not talking about the unfairness of men not being able to get knocked up; we're talking abortion. Anybody can conduct an abortion. That the locus of the act is inside another human being is interesting but immaterial.

mythago said...

Anybody can conduct an abortion

....but only on women.

You stated that you believe the 14th Amendment doesn't allow this sort of exception; it does. There is not an absolute ban on sex-based distinctions, only on those which cannot pass 'heightened scrutiny'.

flint cordoroy said...

I am all for getting the courts out of the Abortion business.

By default Abortion shouldn't be illegal up to six months or so.

If you want to prevent abortions hang out outside the clinics and try talking people out of it.

Of course, in the earlier days of our Democracy it was more common for women to simply "accidently" roll over and smother their babies. It was a little questioned convention. You gotta love those small government days.

Glaivester said...

Would removing the man’s financial responsibility unduly impinge upon the woman’s autonomy to bear the child, effectively forcing the woman to have an abortion (another invasion of bodily integrity)?

If he doesn't give you his money, he is violating your bodily integrity? That's the flipside to the argument that a woman is controlling a man if she doesn't willingly have sex with him.

Udolpho described the "choice for men" issue best:

This idea very neatly divides those who truly find abortion unobjectionable and those who just like it because it gives women whatever they want.