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July 11, 2012

Preglimony: the Insanity Continues....Part Deux

Part II of The Great Preglimony Debate starts up where the previous one left off, namely with one half of a couple (who apparently slept through the part of sex ed where the teacher informed them that risky choices can have life changing consequences, as well as the ones covering condoms and The Pill) wondering if some of those consequences might not be mitigated through the creation of a shiny new set of legally enforceable rights?

Ms. Roiphe's essay strays off into the twilight zone fairly quickly. You see, the real danger here is that the interests of those pesky expectant mothers might run counter to the interests of the pro-choice movement that supposedly exists to protect them!

The implications of Motro’s sensible stance to the pro-choice movement, though, are complex and thorny. The interests of protecting expectant mothers do not necessarily coincide with the interest of protecting abortion rights. Once you admit that the father is responsible to a woman carrying his fetus, you are halfway, at least in an imaginative sphere, to admitting that the fetus is a “life.” You are, in theory, extending the idea of “paternity” and implicitly the idea of the child, to pregnancy. (Motro chooses her clunky word “preglimony” carefully to avoid any implications of “child support” but the intellectual connection, the implication that there is a child, and not just a cluster of cells, is there.)

Once again, it's hard to know where to start. Ms. Roiphe clearly likes the idea that when two people fail to use birth control and a pregnancy results, both should share the consequences of that decision equally. But this is, quite literally, impossible because regardless of which "choice" a pregnant woman makes regarding the new life growing inside of her, women will always (James Taranto's odd insistence that bearing half the monetary costs resulting from a mutual failure of responsibility "rewards" the woman and "punishes" the man notwithstanding) face greater costs from unintended pregnancies - physical, mental, and fiscal - than their male partners.

If she decides to have an abortion, at the very least the woman will have to pay for an initial doctor's visit, pregnancy test, and the abortion procedure itself. These fiscal costs are customarily assumed by the woman, though men have in some cases voluntarily stepped forward to assume part (or even all) of the costs. But there are also physical and mental costs to abortion that, for reasons of biology, a man cannot share or defray. In all fairness, some men will also pay a mental or emotional cost - especially if he is willing to marry her or help raise the child, but she is not ready to be a mother. As Grim noted, that cost can be just as agonizing for some men as it is for some women. For others, regardless of whether they are male or female, abortion causes no mental repercussions.

The physical risks, however, are suffered solely by the woman. The more frequent side effects are fortunately limited to 2-4 weeks in most cases. Others, though rarer, can be devastating. No law or new right can mitigate these risks. That's not fair, but neither are the biological and cultural realities that place most of the burden of unplanned pregnancies on the female of the species.

If she chooses to bear the child, a woman can go to court to force (though this should not be necessary) the man to pay part of the cost of raising the child. But other costs - the medical ones alone average out to about $2000 for prenatal care and $6-8000 for an uncomplicated delivery, do not fall under some child support laws. She is likely to incur other fiscal costs: food, clothing, vitamins, reduced earning power and employability. And it's here that I'm torn.

On the one hand, I've always thought conservatives are too quick to minimize the monetary, physical, and emotional costs of bearing a child. Some act as though they are trivial, even going so far as to equate child support with welfare for the mother. I don't think much of such arguments. The poverty rate for single mothers is truly depressing, which makes the notion that large numbers of women view childbirth and the ensuing 18+ years of parental care as some sort of nefarious get rich quick scheme even more laughable than it seems at first glance.

But on the other hand, when I try to imagine the legal or equitable reasoning that could justify compensating women for the costs of abortion or pregnancy, I come up short. The tort of negligence might seem to apply: after all, both parties failed to exercise reasonable care, causing one party to suffer economic damages. But even here, the traditional defenses to negligence are problematic.

Contributory negligence implies that a man's liability for his own part in causing an unwanted pregnancy should be proportional to his own carelessness and/or breach of duty. But there is also the question of assumption of the risk when a woman consents to have sex knowing the risks involved. Her assumption of these known risks carries considerable weight, especially as biology makes the consequences more severe for her than for him.

In the end, though I do see an equitable argument, I just can't see holding men responsible for the costs of pregnancy. The true innocent party here, contra Ms. Roiphe's surreal suggestion that pregnant women exist to serve the abortion rights movement (rather than the other way around), is not The Movement but The Child. And I'm glad to see someone finally admit that that's what we're really talking about:

I don’t actually think it is in the interests of feminism or the pro-choice movement to cling so rigidly to outdated notions of “life.” It no longer helps our cause to try to argue that the fetus is not “life.” The reason for this, as people have noted, is that technological advances, like sonograms, where you can see feet on a fetus in the first trimester, have made those claims clearly and patently hollow to even ardently pro-choice people who have seen the black and white staticky fuzziness take shape into human form. How can we possibly claim that the moving creature, with feet and toes that we can see, is not “life”?

It seems to me that the pro-choice movement doesn’t need to cling to these ideas, or this rigid ’70s-era idiom, to make its central argument acceptable to the larger public. The idea that a woman should control her reproductive choices is still a vivid and moral one even to a population that understands full well that a fetus is a baby-in-progress.

Can we admit that a woman has the right to choose, while also acknowledging what we see on sonograms? Can we say “embryos” and “fetuses” do represent some form of “life” without conceding a woman’s absolute control over the womb that bears them? A person who has had an abortion knows, and in fact has always known, and experienced very intimately this charged ambiguity: An unborn fetus that is wanted is a “baby,” and an unborn fetus that is not wanted is a “fetus.”

Can abortion rights survive honest discussion of what we're really talking about: a profoundly disquieting ranking of the interests of two adults who could have avoided creating a new life above the interests of a helpless child who had no such "choice"?

I think so. But it will be a lot harder sell. And I think that's a good thing, because it should be.

Posted by Cassandra at July 11, 2012 08:31 AM

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Comments

I should probably be the one to tell you that it was me, and not Tex, who wrote that piece at the Hall. I'd hate for her to get blamed for my not-especially-thoughtful response.

Although, having thought about it a bit more, I still think it was right. There is a natural law principle at work: it is a very clear violation of natural law to force a man to pay for the destruction of his own offspring. That's an offense against natural law if anything is.

Natural law is also why the rest of the argument doesn't strike me as objectionable. For example, you say:

But on the other hand, when I try to imagine the legal or equitable reasoning that could justify compensating women for the costs of abortion or pregnancy, I come up short. The tort of negligence might seem to apply: after all, both parties failed to exercise reasonable care, causing one party to suffer economic damages. But even here, the traditional defenses to negligence are problematic.

The issue at stake isn't a tort, though: it's a simple principle of natural law. The man should support his child, and he should assist the mother of his child during her pregnancy. There's no need for an offense of some kind, to be repaid with compensation: rather, this is simply a natural obligation that arises from parenthood. There is a natural duty to your children, and that includes -- at least during the pregnancy -- contributing to the well-being of their mother.

We don't need to find a tort to support this; it's not compensation. It's just fulfilling a natural duty that fathers have.

As for whether abortion rights can survive an admission that we are dealing with a "life," and indeed a human life... I'm not so sure. But I also won't mourn the current understanding if it passes. It is far more important that the child's interest be considered than that our current approach be undisturbed.

Posted by: Grim at July 11, 2012 03:55 PM

'Can we say “embryos” and “fetuses” do represent some form of “life” without conceding a woman’s absolute control over the womb that bears them?'

Uh, no, not really -- no more than we can say a one-month-old baby represents a life while conceding its mother's absolute control over the cradle it sleeps in. This is what I think hangs up most discussion of abortion. No one has a right to absolute control over anything involving the life of another human being. Sure, mom has strong rights to control the baby's surroundings, but only up to a point. We wouldn't be that interested in her heartfelt desire to make the baby's bedroom a chlorine gas environment, even if she owned title to the house outright.

Posted by: Texan99 at July 11, 2012 04:03 PM

I should probably be the one to tell you that it was me, and not Tex, who wrote that piece at the Hall. I'd hate for her to get blamed for my not-especially-thoughtful response.

Arrrgggghhhh! I'm sorry, Grim and T99. FWIW, I like the post. That's why I linked to it. I just started to comment early this morning and then realized it was going to turn into War and Peace, so I decided to post about it.

I woke up at 1:30 last night with a killer headache and never could get back to sleep. I was looking at two different posts over at Grim's place (one by each of you) and carelessly confused the authors.

Sorry - hopefully the references in both posts are fixed.

Posted by: Cass - Confirmation Bigot-in-Training at July 11, 2012 04:09 PM

The issue at stake isn't a tort, though: it's a simple principle of natural law. The man should support his child, and he should assist the mother of his child during her pregnancy. There's no need for an offense of some kind, to be repaid with compensation: rather, this is simply a natural obligation that arises from parenthood. There is a natural duty to your children, and that includes -- at least during the pregnancy -- contributing to the well-being of their mother.

Woulda, coulda, shoulda, though. That's all fine and well (and it may be a natural law principle) but governments and courts exist because natural rights are rarely enforced without them. This problem is the very reason for the social compact.

We don't need to find a tort to support this; it's not compensation. It's just fulfilling a natural duty that fathers have.

Easy for you to say, Grim. You're not a mother trying to support a child alone. And also not true, really.

I think you're confusing the method of enforcement and one of several possible remedies with where the right being enforced comes from in the first place. Murder violates natural rights too - that doesn't keep us from having criminal statutes and civil torts that spell out various penalties for breaking that natural law.

By what rule do we enforce natural rights, if the law doesn't spell them out? You often say, "well, a few men should just string up the offender". But absent some standard (and natural law can be whatever you claim it is if you're the one holding the gun), it's just another version of "Might makes Right".

As for whether abortion rights can survive an admission that we are dealing with a "life," and indeed a human life... I'm not so sure.

I am not sure either, but I know for a fact that simply admitting that abortion takes a human life isn't sufficient to move a lot of folks into the pro-life camp.

I've always thought that abortion takes a human life. There has never been the slightest doubt in my mind that this was so. But at the moment of conception, that human life is an infinitesimally small, multi-celled life form. It can't hear me - it can't talk, it can't see. It isn't the same as a baby any more than an amoeba is the same as an elephant. Sure, they're both alive but I wouldn't attempt to interact with an amoeba because it has no capacity (or at least none I can detect) to interact back.

So to me, it seems quite logical to say at once that an embryo or a fetus will eventually develop into a human, but it's not there yet.

Reverence for human life has no obvious bright lines. It is more of a moral sentiment - perhaps a belief in intangibles like souls - than anything else.

I carried two boys to term and loved every wonder-filled moment of the journey, and I can't point to the exact moment when a microscopic group of cells becomes "human" for the first time. If allowed to live, it will develop into a human being with feelings, senses, the ability to feel pain/fear/love. I truly believe it's important to respect life. But I've seen human beings exterminate animals far more advanced and sentient than a fetus with no thought whatsoever, even when the animal has done nothing to threaten or hurt them.

Maybe that's what kept me from having an abortion when I got pregnant. It certainly wasn't any deep moral conviction, nor can I explain it rationally. I just knew in my heart that I wanted to protect what would one day be a child, and is now a man with children of his own.

Posted by: Cass - Confirmation Bigot-in-Training at July 11, 2012 04:32 PM

I'm going to try one more time to explain why I think a father's duty to support his child is enforceable by the child, but not necessarily the mother (though she may act on the child's behalf to seek enforcement of that right, the duty is properly owed to the child, not the mother).

Mom and Dad are adults. If they're not willing to support or bear a child, both have a duty to exercise reasonable care to prevent an unwanted pregnancy. Since the pregnancy is extremely unlikely to occur without a failure of due care from BOTH father and mother (at least in the casual or unmarried sex scenario posited in the op-ed), it is the child to whom both parents owe a duty.

They could have created a partnership that would have imposed other duties owed by the man to the woman and vice versa, but they did not do so and neither is helpless. Adults are supposed to be able to take care of themselves.

Children, aren't. So the way I see it, both the mother and father have a joint and a separate duty to the child. They are both responsible for its well being, but if one ducks this responsibility, the other one is not only responsible for half the child's well being. If the father said, "I'm only going to feed you half of what you need to eat - your mother ran off and that's her problem, we would say he had breached his duty because it can't be neatly cut in half and it has nothing to do with his relationship with the mother (the plaintive cries of men who think their duty to their child somehow lessened when they ceased to enjoy the benefits of being married to the child's mother notwithstanding).

Similar to joint and several liability - it's a very useful concept.

Posted by: Cass - Confirmation Bigot-in-Training at July 11, 2012 04:47 PM

I've obviously said something that sounded different to you than it did to me. I'm not sure just what it was, though.

The principle re: the social compact is just the one we were discussing the other day, so you know I agree with what you're saying here. There are things no government can legitimately do, i.e., it may not violate natural rights. But the social compact may enforce natural rights. That is, indeed, what Locke thought it was for -- and I agree that, at best, that's just what it does.

But that's just why this strikes me as an easy case. This relationship of "parents" is one that arises from nature, and it is part of our nature that certain things have to be done because of it. It is part of our nature that we need children, and that these children need us, and that they must be provided and cared for, and so forth. The two parents have established a de facto and natural relationship between themselves by entering into parenthood. That's just a fact of life.

Thus, you can have a court enforce payments if you want; but I don't think you need to prove that the man has done anything harmful for which the woman ought to be compensated. It looks to me, rather, like there is a natural duty; the support should be made regardless of the question of harm. The duty arises from nature, and that alone should be adequate basis for approving the idea of support.

Posted by: Grim at July 11, 2012 04:58 PM

I've obviously said something that sounded different to you than it did to me. I'm not sure just what it was, though.

I get that feeling a lot when we're arguing :p

This relationship of "parents" is one that arises from nature, and it is part of our nature that certain things have to be done because of it. It is part of our nature that we need children, and that these children need us, and that they must be provided and cared for, and so forth. The two parents have established a de facto and natural relationship between themselves by entering into parenthood. That's just a fact of life.

If you said "by allowing a child to be created", I'd agree with this. But what is the nature of that relationship, what are its terms, and by whom is it enforceable? These are practical questions that arise when we look to the social compact to enforce natural rights that come from God or nature or simply the fact that we're humans.

People want to dismiss the questions, but they're integral to enforcing the right. And that matters because left to themselves, people demonstrably can't be relied upon to do what's right.

Thus, you can have a court enforce payments if you want; but I don't think you need to prove that the man has done anything harmful for which the woman ought to be compensated.

I think this is mostly semantics. Though negligence (carelessness that causes injury or loss to another) is the closest framework I could think of, it's not a perfect one. The pregancy hasn't "harmed" the woman, necessarily but it absolutely DOES impose heavy costs upon her, both concrete and intangible. It is easy for the man to just walk away, dusting his hands off as he shuts the door on his way out.

But she can't do that, because there is a new life growing inside of her. She will have to take action one way or another: either end the life or take special care and assume the burdens that go with pregnancy and motherhood. There's no "easy out".

It looks to me, rather, like there is a natural duty; the support should be made regardless of the question of harm. My intent here is not to say the man has done anything harmful to the woman that she didn't do to herself. Still, she must now bear costs that she didn't have to bear before. And they are asymmetrical.

The duty arises from nature, and that alone should be adequate basis for approving the idea of support.

Again, approving and enforcing are two different things. I agree that natural law should be enough for us to say, "He fathered the child and now he must support that child.", though I see conservative pundits suggesting that this is horribly, terribly unfair to the man.

I don't agree, because parenting isn't fair or unfair. It just is. There's no neat 50/50 split. The duty is joint (in that both mom and dad owe it) and several (in that the failure of one to discharge his or her duty does NOT discharge or lessen the responsibility of the other). In fact, it INCREASES the responsibility and burdens of the other.

Which explains a lot about the "unfairness" of child support and parental law :p

Posted by: Toni Tenille, Muskrat Lover Extraordinaire at July 11, 2012 05:17 PM

Torts are just duties that arise out of wrongful acts instead of out of contracts. There are other non-contractual duties as well, such as the duty of support owed by an adult to his/her child, which do not arise out of a wrongful act. That's the distinction I take Grim to be making -- we needn't figure out a way to make the law acknowledge a wrong the man has done to the woman in order to write a law saying the man owes the child a duty of support.

Now, the woman, as custodian of the child, may very well be the adult who has standing to charge the man if he fails his duty of support, or it could be CPS or the grandparents or whoever. I'm speaking from the perspective of someone in a community property state, where there is only child support, not alimony, so I tend to assume that the obligation flows only from the adult to the child. My model breaks down in benighted states with alimony.

Posted by: Texan99 at July 11, 2012 05:44 PM

I don't agree, because parenting isn't fair or unfair. It just is.

I agree with that. In fact, that's just what makes this a natural law question: it just is, a fact of nature.

If you said "by allowing a child to be created", I'd agree with this. But what is the nature of that relationship, what are its terms, and by whom is it enforceable? These are practical questions that arise when we look to the social compact to enforce natural rights that come from God or nature or simply the fact that we're humans.

I wasn't objecting to the proposal in the article, beyond the objection that abortion could not be enforced upon anyone who morally disapproves of it. That strikes me as a violation of natural law, and thus outside the legitimate power of any court.

Otherwise, the courts were the option in the original proposal, and I don't see a problem with that. I just don't think a tort is necessary -- if I understand what is meant by the word "tort," at least, it implies that there has been some harm or damage done. That's not the case here: a child is not a harm. Properly the child ought to be regarded as a gift! But it is certainly not a harm.

Yet the absence of harm shouldn't imply that the courts have no power to make an award. There's a natural duty here, and the social compact -- as I believe we agree -- is really supposed to try to make the natural law functional. That is, ideally, what it is for.

...what is the nature of that relationship...?

The relationship of parents? It's the relationship of two people who have created a third, dependent life. They have a duty to that third party to providing for its upbringing and education so that it can assume its place in society at the proper time.

I think I understand you to say that you believe they each have a duty to the child (with which I agree), but not to each other (except perhaps to attend to their duty to the child). I'm not sure I agree with that. They certainly have a relationship with each other. It would be strange if a human relationship were without obligations; that's not true even of purely voluntary friendships whose only purpose is pleasure. The courts aren't the place for enforcing these, but they exist and society generally will provide some punishment for people who are bad friends (for example).

I think that the financial duty may be toward the child, and toward the woman therefore only while she is pregnant (during which time her welfare and the child's are very difficult to disentangle). But there are surely other obligations as well.

Posted by: Grim at July 11, 2012 05:44 PM

.. we needn't figure out a way to make the law acknowledge a wrong the man has done to the woman in order to write a law saying the man owes the child a duty of support.

Well, I agree with you there. I was just casting about for some framework to explain how a man could be held partially responsible for disproportionate costs imposed by mutual carelessness.

Negligence was the best framework I could think of, but as you observe, the failure to use birth control is not necessarily a wrongful act, though I would argue that it can be when you know - as adults all do - that the costs of your carelessness will fall more heavily on others than they do on you.

Posted by: Toni Tenille, Muskrat Lover Extraordinaire at July 11, 2012 06:05 PM

All up and all down
Her right and left alike his
Mobius fatigue

Posted by: spd rdr running at July 11, 2012 06:07 PM

.. we needn't figure out a way to make the law acknowledge a wrong the man has done to the woman in order to write a law saying the man owes the child a duty of support.

I can see now why you'd find it easy to confuse Tex and me. We cross-posted, and when you cited that line wasn't sure if she'd written that or if I had. :)

Posted by: Grim at July 11, 2012 06:20 PM

We are so in sync in some ways, and so at odds in others.

Posted by: Texan99 at July 11, 2012 10:50 PM

The first part of that is a gift; the second is only to be expected. It's a joy to understand, even a little, in spite of everything that divides one from another.

Posted by: Grim at July 12, 2012 12:04 AM

Snarky attorney
Drops cryptic poem in comments
WHAP WHAP WHAP WHAP WHAP!!!
:)

Posted by: Sister Mary Ita-San at July 12, 2012 11:11 AM

I can see now why you'd find it easy to confuse Tex and me. We cross-posted, and when you cited that line wasn't sure if she'd written that or if I had. :)

The way my head's been pounding this week, I'm not really firing on all cylinders :p Plus, I'm easily confused even on the best of days!

Posted by: Cass at July 12, 2012 11:12 AM

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