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March 17, 2006

Roe v. Wade for Men: The Wrong Choice?

No matter your political affiliation, it is hard to think of a more divisive and distressing issue than abortion. It looms in the background of every political race, every judicial confirmation hearing; forcing candidates to walk a gauntlet between zealots on both sides of the issue.

During the Roberts hearings abortion assumed such importance that the old euphenism, "a woman's right to choose", no longer served to mask the disproportionate time and attention devoted to this single issue. And so Senators suddenly discovered a longstanding love for precedent and stare decisis. Surely no judicial nominee in the history of the United States has been so closely questioned on what remains a fairly entrenched judicial practice: that of letting settled matters lie. The notion that SCOTUS is the highest court in the land (and therefore is not bound by precedent in the same way as lower courts), or that most Americans would consider decisions like Dred Scott well reversed, was lost in a welter of Senatorial genuflection at the altar of judicial inflexibility.

Was all this fuss about abortion much ado about nothing? It begins to seem that, surprisingly, the answer to that question may be "no". The South Dakota legislature has thrown down a challenge to existing abortion laws and now another suit, dubbed Roe v. Wade for Men, challenges the idea that women should have all the "choices" when it comes to parental rights. It would appear Ted Kennedy's worst nightmares have come true: the Roberts Court is well on the way to chaining women to their Easy Bake ovens.

On first glance, the Dubay case appears to have some merit. After all, as I have noted before, there is little doubt that the status quo regarding parental "choice" and responsibility is unfair to men:

As we are constantly reminded, the abortion debate is all about something called reproductive choice. Of what does this reproductive choice consist? If a man and a woman, married or unmarried, conceive a child together, both are on the hook financially to support that child until he or she is grown. But there are rules. If the woman decides to rid herself of a fetus that she does not want, but the man does, she may kill it and this is perfectly legal. If the man decides to rid herself of a fetus that he does not want (perhaps by slipping her an abortifact that does not otherwise harm her), but the woman does, this is murder and he will go to jail.

Thus, two utterly contradictory things occur at the moment of conception:

Legally, from the point of view of a woman: the fetus is a lump of tissue which may be excised at will if she subsequently regrets having conceived a child. It imposes no obligation or legal duty unless she chooses to accept it.

Legally, from the point of view of the man: the fetus is a human being which must be allowed to live, even if he subsequently regrets having conceived a child. It imposes an absolute and irrevocable legal duty, regardless of his wishes in the matter.

In other words, if you have a y chromosome you have no reproductive choice. Except, of course, to pay at least a half-share of whatever "choices" your sexual partner may make, whether you are married or single - it makes no difference. When one considers that women can have multiple orgasms (and that ours generally last longer), something tells me men are getting the short end of the stick.


Framed in this way, the conclusion seems inescapable: there can be no rights without responsibilities. Despite the overheated rhetoric of abortion advocates, the vast majority of abortions occur, not as a result of rape or incest, but from simple failure to exercise responsibility. Women are not helpless children: they possess an ability to prevent conception that is equal, if not greater, to that of their male partners. Why, then, does the law confer on them the sole right to evade their parental responsibilities once a child has been conceived?

It's a good question. Unfortunately, advocates of Roe for Men have subscribed to the same error as their supposedly "pro-child, pro-choice" opponents. In their unseemly squabble about who should have to pay the awful price of parenthood after they both failed to act like responsible adults, both Mom and Dad are once again ignoring the one person who never had a choice in the matter: the child.

Dubay's case is an interesting one:

Dubay says he has been ordered to pay $500 a month in child support for a girl born last year to his ex-girlfriend. He contends that the woman knew he didn't want to have a child with her and assured him repeatedly that -- because of a physical condition -- she could not get pregnant.

Dubay is braced for the lawsuit to fail.

"What I expect to hear [from the court] is that the way things are is not really fair, but that's the way it is," he said in a telephone interview. "Just to create awareness would be enough, to at least get a debate started."

State courts have ruled in the past that any inequity experienced by men like Dubay is outweighed by society's interest in ensuring that children get financial support from two parents. Melanie Jacobs, a Michigan State University law professor, said the federal court might rule similarly in Dubay's case.

Sadly, Mr. Dubay makes a poor representative for men's reproductive choice. Like the pro-choice movement he opposes, Mr. Dubay wants to have it both ways. In his mid-twenties, this well-educated professional wanted to have sex with a woman he wasn't married to and leave the hassle of preventing pregnancy entirely up to her. Living, apparently, in some impenetrable cocoon where TV, newspapers, and magazine articles could not warn him of impending doom, he remained blissfully unaware that doctors are sometimes wrong about women's fertility and [surprise!] women sometimes get pregnant even if they use contraception or their partners don't want a baby. All he wanted was a good time without responsibility, and now a promising life could well be ruined by the horrendous prospect of paying $500 a month for the next 18 years. A few boxes of condoms would have been a far cheaper alternative, but that was a "choice" Mr. Dubay was deprived of by society and an uncaring Bush administration... not.

Faced with the disturbing notion that actions have consequences, Mr. Dubay immediately lighted on what has become the Great American Pastime: con law litigation. The pretext for his case is even more laughable than that used in the recent Solomon Amendment debacle. Invoking the Equal Protection Clause, Mr. Dubay's argument is, apparently, that the Constitution should protect him against his own failure to exercise responsible birth control:

The gist of the argument: If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood. The activists involved hope to spark discussion even if they lose.

"There's such a spectrum of choice that women have -- it's her body, her pregnancy and she has the ultimate right to make decisions," said Mel Feit, director of the men's center. "I'm trying to find a way for a man also to have some say over decisions that affect his life profoundly."

"But", some will undoubtedly say, "the penumbral right to privacy in Roe does just that for women: it protects them against their own failure to prevent unwanted pregnancies!". And this is undoubtedly true.

But do two wrongs make a right? And once again the question must be asked, what about the interests of the child? And that is the heart of the matter, for Dubay's case really amounts to no more than "If my ex-girlfriend can get out of her responsibilities, why can't I?". He wants to punish an unborn child for daring to inconvenience him. He rationalizes this by saying her Mother had more "choices" than he did, and this is undoubtedly true. But we deal with life as it is, not as we'd like it to be and one thing is certain in all of this: both Matt Dubay and his girfriend had chances to shape their future.

Their unborn child has none.

The flaw in Dubay's suit is that it raises abortion as a red herring in what is essentially a paternity suit. Strangely, his suit does not challenge Roe as any true exposition of full "reproductive rights" for men must logically do, for therein lies the seed of his discontent: women may unilaterally "choose" whether a jointly-conceived child comes into the world and men may not. But unless and until Roe is overturned, a real child results from a woman's "choice" not to terminate her pregnancy and that child has two parents, each of whom had a chance to prevent its conception. That one partner had one more chance than the other is largely irrelevant to the question of legal responsibility, enticing as the prospect of slaying judical gnats with a rolled-up Constitution must be to organizations like The National Center for Men.

Dubay's suit asks a valid question: is Roe equitable under the Constitution, but questions the wrong premises:

"Roe says a woman can choose to have intimacy and still have control over subsequent consequences," he said. "No one has ever asked a federal court if that means men should have some similar say."

"The problem is this is so politically incorrect," Feit added. "The public is still dealing with the pre-Roe ethic when it comes to men, that if a man fathers a child, he should accept responsibility."

The right question is, as disturbing as it sounds, is this: given that both parents can prevent a child from being conceived, why do we allow either one to walk away from a failure to exercise their responsibilities? Roe, a decision that even liberal justices like Ruth Bader Ginsburg have said is bad law, removed that thorny question from public debate and allowed us to sweep it - and the ugly consequences of sexual immaturity and irresponsibility - under the carpet for far too long. Actions have consequences. It is time for society, as well as men and women who engage in unprotected sex, to do its duty and wrestle this issue to the ground.

I make no bones about being rather reluctantly pro-choice (though I find that term dishonest in the extreme), yet I believe this is one "choice" society can no longer duck. It's long past time for America, both its men and its women, to grow up and face the very real consequences of the sexual revolution.

Posted by Cassandra at March 17, 2006 07:47 AM

Comments

I wish I had an Easy Bake oven. Dang that Bush!

Posted by: Crckt [TypeKey Profile Page] at March 17, 2006 08:29 AM

Even if we had one, what would we cook in it Cricket?

Ever since the damnable Shrub ushered in the worst economy since Herbert Hoover and swiped our Pop 'n Fresh dough to pay for new fire stations in Baghdad, life is bleak indeed.

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 08:35 AM

Irresponsible or not the man makes an extremely valid point.
The abortion issue has always been relegated in the realm of "womens issues" when in reality, that's only half true.

I am solidly anti-abortion (who knew?).
One of the main reasons is that I'm a Christian, but that is not the only reason.

However the fact that I'm a Christian, who is anti-abortion, allows the pro-choice people to to lable me a fanatic.
The "fanatic" label then gives them the conviction they need to discredit anything I might have to say on the subject.

Never mind that I have other reasons for my decision. Reasons that have nothing to do with my faith and reasons that I've held to even before I became a Christian.

I find it odd that when pro-choice lobbys use examples for their cause it almost always involves a case where a father or uncle rapes the girl. Yet when compared statisticly to the actual abortions that are performed, those cases amount to less than 1/10 of 1%.

What kind of argument is that? Who would use such "evidence" to make a point?
What lawyer would take a case based on a 1/10 of 1 % chance of winning?

The reason they've gotten away with it for so long has to do with nothing less than Political Correctness.

Attacking a cause or agenda that was backed by such feminist orginizations as NOW was a definite no-no.
It didn't matter if the cause was moral or legal, lawmakers found ways to appease.

However, although the Wheels of Justice turn slowly, they are nothing if not methodical.

The issues that feminists groups have been championing over the years in their never ending attempts for "equality" have come back full circle. The legalities of former rulings are being better scrutinized, and as a result these groups have come to realise what many of us have known all along.
It's not really "equality" they want, but Privileged Equality.

"Thus for thee, but not for me."

I know that I come off as a chauvanists online, and in reality I am to some extent. But my online barbs are mostly just for fun.
I do have a fairly balanced view on male and female issues and there is a big difference between a "Womens" cause and a "Feminist" cause.

Most of the ladies reading this may be under the assumption that abortion rights are a Womens cause. That is a false assumption.
Abortion rights was always, always a Feminist cause.

Simply put, the difference between a woman and a feminist is this: Women don't have penis envy.

Posted by: Joatmoaf [TypeKey Profile Page] at March 17, 2006 09:25 AM

Well, firstly I am not sure most of the women reading this blog would cast abortion as a women's cause. But be that as it may, I can't argue with this (in fact I'm constantly writing about it):

It's not really "equality" they want, but Privileged Equality.

Actually, I'd leave out the second "equality" and say that their real goal is privileged status under law, which amounts to nothing more than legalized discrimination to replace the informal discrimination women have complained about for years.

Wunderbar. Now we're going to set the federal govt. up in the discrimination business. I suppose our only comfort can be that they'll be no more successful in this endeavor than they have been in the War on Poverty, the War on Drugs, et cetera, ad nauseam.

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 10:00 AM

for Dubay's case really amounts to no more than "If my ex-girlfriend can get out of her responsibilities, why can't I?". He wants to punish an unborn child for daring to inconvenience him.

Absolutely right.

The problem (since the statement is equally true for her) is the only solution to it is to outlaw abortion outright. Not just overturn RvW (since state legalization still allows a woman to punish an unborn child for daring to inconveniece her). But that isn't going to happen. Even Roe is still safe at Scotus(Roberts, Alito, Thomas, and Scalia would make only 4) , much less the states.

So, either we let both be legally irresponsible, or they can both be legally responsible. Personally, I think the only correct answer is the latter, but at least the former would be equitable (at least to the parents, the child is shafted already).

Which, now that I think about it, may be the point to start with. The point may not even be to win, but a legal equivalent to reductio ad absurdum.

Posted by: Masked MenaceĀ© [TypeKey Profile Page] at March 17, 2006 10:10 AM

MM,

It is very possible that science will give us artificial wombs, and the ability to remove the fetus and put it in one, before the law moves along. Once that happens, abortion is over. There will be no more justification for it.

Adoptions can be accomplished without even having to worry about the biological mother's smoking. Just remove it, let the Microsoft Womb do its thing, and you have baby. Abortions will become adoptions, with the mother getting paid by the agencies that sell the babies when they are done baking in the Easy Bake Womb.

Posted by: KJ [TypeKey Profile Page] at March 17, 2006 01:03 PM

It may be that the argument from equality is the problem. This seems to be the Feminist position: Yourish responded accordingly that, as the male and female experience of childbirth was entirely different, the law could not establish an equality between them, and should not try. If the woman's experience changes her body physically and forever, while the man's does not, her decision over whether to carry the pregnancy to term is thus more important to her, to the degree that it overrides any rights the baby might have.

Leaving aside the question of the Microsoft Womb (which Heaven prevent), that sort of argument appears to have a certain merit. The law, by establishing imbalances and inequalities, could help to balance and equal what nature left otherwise. However, I think the Feminist will want to consider the implications of accepting that jurisprudence before they argue it too forwardly.

Meanwhile, I can't help but note that this is one more way in which the illegitimate, never-properly-ratified '14th Amendment' is screwing up the country. :) But if we're stuck with it, and the courts are going to continue to refuse to hear challenges to its validity, we've got to deal with its implications. Do we want to argue for a "separate but equal" set of laws for men and women -- a balancing of nature's imbalances? If so, are we prepared to accept what that means for women's status under the law?

Otherwise, well -- society's interest in the abortion question, as has become evident lately, lies in demography rather than anywhere else. Australia's attorney general, Phillip Ruddock, gave a speech the other day in which he asked Australian women to "have one for yourself, one for your husband, and one for Australia." France is now offering tax incentives to Frenchmen and women who will have children. America is doing a bit better, but only somewhat.

If we're asked to resolve this question according to a real equality under the law, I see no reason to believe that society will continue to permit abortion for anyone. Given my personal sentiments on topic, I'll be glad to see the end of it once and for all; but it isn't sentiment, but the hard facts of demographics, that is likely to be the driving force of the legislation. Abortion isn't a social good, regardless of whether or not it is (as I believe it is) a moral evil.

Posted by: Grim [TypeKey Profile Page] at March 17, 2006 02:26 PM

>...blissfully unaware that doctors are sometimes wrong about women's fertility and [surprise!] women sometimes get pregnant even if they use >contraception or their partners don't want a baby

*****
She should sue the docs for child support. I think a great case would be one in which a woman tells her partner she's taking the pill, and then stops without informing him, then goes for child support. More of an "intent" argument there.
****

>... be ruined by the horrendous prospect of >paying $500 a month for the next 18 years.

****

Uhh, Cass, I think you started in on the green beer a bit early. At $40k a year, he's looking at 12 grand a year minimum, based on pre-tax income (usually, but sometimes depends on the state). He will also be forced to put the baby on his health insurance, tacking on another $200+ a month. When the child starts school, if the mother decides to send the kid to Catholic school, he'll be lucky if he only pays a percentage of it, rather than the whole bill.

For non-"anecdotal" slightly OT evidence:
My closest friend make about $103,000 with overtime, traveling overseas for DoD working 100 hour weeks. Court based child support on base PLUS overtime pay, nailing him for 38% of *pre-tax* income. That's $38k tax free to her. Now, cut his take home to 55k after tax. Send 38k to her. Leaves him with 17,000 after tax a year. That amount is *only* child support, no alimony (they were married for four months, she never moved to Illinois with him.)

After four years, the court reduced the award to $2,400 after tax a month. After five, he takes a $75k job, and court refused to reduce the amount any further.

To add insult to injury, DNA test day of birth proved it wasn't his, but state supreme court (from precedent, no less) says because they were married (for FOUR MONTHS!), the kiddo is his financial responsibility until 18.

Posted by: JMarsh [TypeKey Profile Page] at March 17, 2006 03:55 PM

Hey - I agree it bites. It's wrong, particularly in this case as the child isn't his.

But first of all, the money isn't for "her", it's for the child. It is really crappy that he can't just pay it to a trust for the child, but there it is. And he needs to go back to court.

Second, I really have to wonder what would have happened in the days before paternity tests?

Ummm... he would, if he was an honorable man, been stuck in exactly the same position he is now, except he'd very likely be living with her because they didn't look kindly on divorce then either. Or the child would go hungry.

If I sound harsh, I have, perhaps, reason to be.

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 04:08 PM

The only reason the marriage happened was because of the presumption the kid was his (trying to do right thing with wool being pulled over eyes...) I've been to court with him enough times to know that ... resistance is futile!

I don't have a problem with reasonable child support.. Maybe that amount would be good sustainment for living in Chicago or NYC, but in Hammmond, Louisiana, it puts ya in the top 15% of earners in the parish.

I fully realize how expensive diapers and formula are... Gotta keept the A/C on, buy a couple of outfits a month, a crib, etc. Say you spend $1k on diapers and formula a month... Another $1500 a month for "lifestyle sustainment" to ensure a "happy and healthy environment?" Naturally, daddy is a doctor, and mom and brother are both lawyers. No day care costs for an unemployed National Guard yokel, either.

I'd prefer a debit card system with receipt verification (Ignore CVS, Winn-Dixie, doctors, Kids R Us, but pay special attention to bars, adult clothing stores, car dealerships, etc), but the evacuees showed how that can go awry.

Maybe if the whole process was more even, it wouldn't be so complaint worthy. But with 85/15 Female/Male custody awards, default judgements for mothers, and the general "man is a wallet, mother is a nurturer" syndrome that pervades the entire shebang, it makes escaping to a Central American country very appetizing.

Posted by: JMarsh [TypeKey Profile Page] at March 17, 2006 04:26 PM

I agree with you JMarsh. It's not right.

My comment wasn't a judgment on him, just a general observation that there was a time when we would never have known the child wasn't his. Just like all this technology is making the perceived cost of raising a child go way up.

I have a problem with the whole "lifestyle" argument anyway (i.e. basing support on what Dad can pay). Pick a reasonable amount for total child maintenance and then look at the income of the parents and figure something reasonable out.

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 04:32 PM

And your debit card idea is pretty smart, though I can think of ways to get around that too. But it might help.

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 04:33 PM

Ya, I know, just buttressing against the common gotchas that usually come up when I relay this little experience to others.

I'd prefer a reimbursement system, but that'd be too hard for honest recipients to sustain, especially if they were truly in real need.

Personally, I resolved to take an offensive stance should this occur. (Put down the beer lest you try to throw it at me!) More of a pyhrric defense: sue for 100% custody with zero visitation and a restraining order against the mother, or give the female 100% custody, with zero visitation on my part, but with no financial aid from me, either. Reduce it to simple bargaining technique; don't start in the middle to get dragged even further away from a reasonable solution. Most of the female company I frequented in my younger days ... well, the restraining order part should give you a good clue. In a similar vein, I've been designing the perfect pre-nup for six years, you should see the size of that thing! :)

Have a good weekend, I'm off to Savannah! I'll have someone throw a beer at me on your behalf.

Posted by: JMarsh [TypeKey Profile Page] at March 17, 2006 04:58 PM

Stop by Kevin Barry's and have a Black and Tan for me...if you can get in :)

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 05:14 PM

Since when do diapers and formula cost a grand a month? Even when the youngest CLU was in diapers a mere three years ago, diapers were about 150 a month at the local Wally's and he was on solids with an occasional trip to the breast milk bar. Okay, so I had a hard time weaning the little tyke. The point is, even in this day and age no way do disposables cost that much! Not even a diaper service!

Posted by: Crckt [TypeKey Profile Page] at March 17, 2006 06:21 PM

Strangely enough, formula can be pricey but there are plenty of affordable alternatives.

When I stopped nursing my boys, they couldn't tolerate formula and I thought it was nasty stuff anyway. They both thrived on... believe it or not... Carnation Instant Skim Milk from a box.

We were pretty poor with my first and no way did we have money for either formula or paper diapers. I washed cloth diapers (yuck, but hey...) and we only used paper when travelling or later on when I got a night job at night so my husband didn't have to cope with cloth.

It's hard to wean the last one, isn't it Cricket? It just about broke my heart - I think I cried for two days. I'm amazed I still remember that.

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 06:34 PM

Did I mention my night job was at night?

Just wanted to make that perfectly clear. Long day.

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 06:36 PM

It was dark.

When I went to work.

And when I came home, too. Hence the term "night job".

Posted by: Cassandra [TypeKey Profile Page] at March 17, 2006 06:36 PM

"It was dark. When I went to work. And when I came home, too. Hence the term 'night job.'"

I've had jobs like that which were day jobs. :)

JM -- when you get to Kevin Barry's, if Harry is playing, make him do the chicken song. Don't take no for an answer.

Posted by: Grim [TypeKey Profile Page] at March 17, 2006 09:50 PM

I know what you mean Grim. That was the nicest thing about not having to go in to the office any more with my current job. I used to leave well before dawn and never got back here until well after dark.

We live in the woods, so there are no street lights - I really hated walking to the front door and fumbling to unlock it at the end of the day in the pitch black.

Posted by: Cassandra [TypeKey Profile Page] at March 18, 2006 07:13 AM

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