Proposed Ohio Law Would Require Man’s Permission For Abortion

0 Responses to Proposed Ohio Law Would Require Man’s Permission For Abortion

1. Eric says:

   August 6, 2007 at 7:44 am

   I presume that the Ohio bill contains a parallel provision that requires a wife’s consent before a husband may undergo a vasectomy. In fact, the law ought to require a wife’s consent before a husband may (ahem) engage in self-service. After all, those are potential babies he’s spilling down the drain. Every sperm is sacred.
2. ethanleib says:

   August 9, 2007 at 5:19 pm

   I’m quite certain that my op-ed is short enough for you to have actually read. I’ve advocated nothing of the sort and have always made clear that a woman’s body is her own to do with it what she pleases. Unless, of course, all efforts to engage men in the abortion decision are the same from the perspective of a purportedly “feminist” abortion orthodoxy.
3. Ann Bartow says:

   August 9, 2007 at 5:55 pm

   The SSRN abstract for your article linked above says:

   This article attempts to argue – contra Danforth and Casey – for a man’s right to participate in the abortion decision and provides some legal mechanisms to implement such a right.

   And of course given my limited female attention span and tiny female brain I’m very grateful your essay is, as you helpfully point out “short enough for me to actually have read.” Here is an excerpt from your essay:

   …This may be fine as a matter of law and as a decision rule for when the parties disagree. But it also enables women to jump right to their veto power without including the man. And it also opens the door for women to cloak themselves with the sanctity of the legal right to choose:and not consider that men have very real interests in the termination of a fetus they are responsible for creating:and for which they will have to pay dearly, even if they took all necessary precautions to avoid a pregnancy.

   In short, I wish to suggest that consensual sex does not carry with it:without further specification or clarification:an abdication of the man’s interest in and right to the privacy of his genetic material. It does not waive his right not to be a father against his will. We can have a decision rule that the woman will get to choose if it comes down to that:but it is much harder to assert that a man abdicates any participatory rights he may have in the decision-making process.

   IMPLEMENTING THE RIGHT
   How can we give teeth to the man’s right to choose an abortion:other than merely hoping that women will consult with their partners? Should a man who tries in good faith to avoid a pregnancy have the legal right to force an abortion on a woman he accidentally impregnates who prefers to carry the fetus to term?
   No. A man should not be allowed to force a woman to undergo a traumatic surgical or pharmacological procedure to abort a fetus. The Court certainly got right that morality requires that women get a final say. Yet although women get the final say, there are nonetheless ways for the law to ensure that men still have a voice in the matter. First, we can allow suits like that in Illinois to vindicate the right, allowing claims for intentional infliction of emotional distress when the woman has forced a man to become a parent against his will. Second, we can relieve men of support payments if they can show that they did what they could to avoid becoming a father. If a man exercises due care to prevent pregnancy, a woman who nevertheless carries the child to term ought to bear the financial consequences of her decision.

   We should remain deeply concerned about deadbeat dads:but those who really wanted an abortion of an accidental fetus shouldn’t be stigmatized and penalized for not getting the ability to choose an abortion.
   Finally, we can allow men and women to contract out of support payments if a woman, without the man’s consent, insists on carrying an accidental pregnancy to term. This option, not available under current law, would allow the couple to agree that a man could give up all parental rights and responsibilities, perhaps in exchange for a one-time payment to the woman to assist with the costs of birth.

   However we choose to vindicate the right through the legal system, a man is entitled to be heard on the question of whether to abort a fetus he helped to create.

   Explain how this is not along the same lines as the Ohio proposal.
4. ethanleib says:

   August 10, 2007 at 6:15 pm

   For starters, the Ohio proposal tries to limit access to abortion for women; mine makes no such efforts and explicitly rejects any effort to have the state tell women what to do with their bodies. In fact, my proposal would tend to result in more rather than fewer abortions!

   About the only thing the two proposals have in common, perhaps, is a basic moral outlook that a man should be a partner in the difficult moral deliberations surrounding an abortion decision. But even if I share that starting point, I’d never implement such a “moral right of participation in the decision-making” with a legal right to trump the woman’s decision. I make that crystal clear — twice, in fact, in the selection you excerpt.

   Finally, some advice. You sound silly reading anti-feminism into everything. It reminds me of Jerry’s Uncle Leo who thinks everyone is an anti-semite. My op-ed was short so it should have been easy to read before you suggested that it defends a position it could never be reasonably read to defend. I don’t care whether you are a man or a woman; turning my simple point into a gendered comment diminishes your own credibility.
5. Ann Bartow says:

   August 10, 2007 at 7:52 pm

   My op-ed was short so it should have been easy to read before you suggested that it defends a position it could never be reasonably read to defend.

   I read it. Maybe you need to re-read your own essay. Like the part that says:

   “However we choose to vindicate the right through the legal system, a man is entitled to be heard on the question of whether to abort a fetus he helped to create. Ideally, the decision about what to do with an unwanted pregnancy should be a joint enterprise between man and woman. While women may hold the legal ace of spades:the ultimate right to choose and veto:men at least should be able to get their cards on the table.”

   You are pretty clearly advocating a legal right of participation when you talk about vindication of men’s rights “through the legal system” and declare a man “entitled to be heard.” You also wrote:

   If there is a right to decide for ourselves how many children to have, it is unlikely to inhere solely in women. We are offended by the idea of the China policy because it intrudes upon a more general right to procreative choice.

   That right is not gendered; it includes both men and women. It is the right to make private decisions about how and when to procreate. Any effort to reject the China policy without accounting for the ways in which it infringes on men’s rights would be inadequate.

   You may want to pretend now for some reason that your essay “explicitly rejects any effort to have the state tell women what to do with their bodies” but you call pretty clearly for the state to tell women what to do with their bodies when you demand “more substantial rights in the fetus” (as you put it), for men that can only be implemented and enforced by the state. Despite your representations here, you did not articulate “a proposal” with any specificity in your essay, but it seems to me like some folks in Ohio share your expressed contempt for Danforth and have answered your call.

   An argument that men should have “rights in a fetus” is an unambiguous call for men to have state enforced power over women’s bodies. It is true that your menu of suggestions includes only things like relieving a man from child support obligations for a child he does not want if a woman refuses his demands to have an abortion and providing a cause of action when “the woman has forced a man to become a parent against his will.” But all of your rhetoric preceding your final few paragraphs clearly supports an abortion veto power for men. I don’t have the reading comprehension problems you are instrumentally pretending I do, and I’d rather “sound silly” than intellectually dishonest, as I think you are being here.

6. Pingback: Feminist Law Professors » Blog Archive » What Does Ethan Leib’s Essay “A Man’s Right To Choose (An Abortion)” Mean?

7. ethanleib says:

   August 10, 2007 at 11:15 pm

   Yes, yes, my arguments (and abstract!) can be misused by people with whom I disagree. But what part of this did you have trouble with?

   “The Court certainly got right that morality requires that women get a final say.”

   I was about as clear as I could be that women should get the final say about what to do with their bodies — both legally and morally. A consent requirement, such as the one at issue in Ohio, would clearly violate the spirit of the essay. My real concern was with helping men avoid the unfairness associated with the incursion into their right to choose abortion — and focusing on the moral rights a man should have to participate in the decision. If you think I argued otherwise, perhaps I failed to make my point clearly enough. My provisional view is that you are reading with ideological glasses and villifying ideas you don’t want to take seriously. But I perfectly concede that I’m not a great writer, that things get made snappy during edits at newspapers, and that this is a very tough issue that requires especial caution.
8. Ann Bartow says:

   August 11, 2007 at 8:39 am

   “Yes, yes, my arguments (and abstract!) can be misused by people with whom I disagree. … My provisional view is that you are reading with ideological glasses and villifying ideas you don’t want to take seriously.”

   So you feel that by initially linking to your article, rather than trying to summarize it, I “misused” your arguments and abstract, and that disagreeing with you is “reading with ideological glasses and villifying ideas.” And you still felt entitled to give me advice about sounding silly and having credibility. Sheesh.

   “But what part of this did you have trouble with?”

   Again with the reading comprehension insults.

   “”The Court certainly got right that morality requires that women get a final say.” I was about as clear as I could be that women should get the final say about what to do with their bodies : both legally and morally.”

   Let’s put that all important first sentence in context of the words around it, shall we? Here is another excerpt from your essay:

   “A man should not be allowed to force a woman to undergo a traumatic surgical or pharmacological procedure to abort a fetus. The Court certainly got right that morality requires that women get a final say. Yet although women get the final say, there are nonetheless ways for the law to ensure that men still have a voice in the matter.

   So you offer a lone sentence to dishonestly assert you have argued that men should not have veto power over an abortion, when it is quite clear in context that all you are opposing with that sentence are forced abortions. There is a problem here all right, but I don’t think that it is my reading comprehension.

   You argue that men have “rights in choosing whether to become a parent.” If the man wants a pregnancy terminated but the woman does not, you suggest absolving a man of any financial responsibility toward his own child and giving him grounds for a “wrongful parenthood” lawsuit as a way to financially coerce the abortion he desires.

   Yet your subtitle and central claim is that “men deserve [a] voice in abortion decision.” It is not simply “men deserve legal tools to coerce abortions.” You assert men should have legal rights to “a say” in all reproduction decisions. If the man doesn’t want a women to have an abortion, your argument is still that he is legally entitled to “a say” and you support this by referencing forced family planning in China and criticizing Danforth. But suddenly you are very instrumentally vague on what legal tools you advocate and how that is going to work.

   In many states women already have a gauntlet to run if they want to obtain an abortion: finding a clinic, getting to a clinic, having the money to pay a clinic, receiving mandatory “counseling,” enduring mandatory waiting periods, obtaining and paying for required ultrasounds, avoiding trickery by phony clinics, and surviving protesters in front of clinics, bomb threats to clinics, death threats to doctors and clinic employees, actual bombings of clinics and actual killings and injuries to doctors and clinic employees. You want to add to all this by using the law to give men “a say.” But of course you declined to articulate exactly what that would mean, so that you could conveniently attempt to distance yourself from Men’s Rights initiatives like the Ohio legislation. Yet that is quite clearly very much in the spirit of your essay.
9. thebewilderness says:

   August 11, 2007 at 7:51 pm

   In short, I wish to suggest that consensual sex does not carry with it:without further specification or clarification:an abdication of the man’s interest in and right to the privacy of his genetic material

   Yes, it does.
   Once it leaves your body, it no longer belongs to you. That’s it, that’s all.
   Once you donate a kidney, you don’t get to decide what the recipient drinks, either.
   If a man wishes to control his ability to reproduce, he may do whatever he wishes to his own body. No one has a right to determine what another person will, or will not, do with their own body.
   Your comparison with a vasectomy is ridiculous. What will you have? A law that states that if a woman wants a child she can deny her husband a vasectomy and require by law that he impregnate her.
   Just as silly as claiming that a man should have a legal right to determin what another person do with her body.
10. ethanleib says:

    August 11, 2007 at 10:26 pm

    I suppose your readers can decide for themselves who they wish to believe has the better reading of my op-ed. It’s getting tiring debating what I intended to convey in my own article. I’m certain that I know my position — and I’m certain that I know my own positions better than you do. Again, though, it is perfectly possible that the article is not clear and leaves open room for your belief that I would support the Ohio proposal. l wouldn’t under any circumstances — and I wouldn’t have 2 years ago when I wrote the op-ed. You can go with “liar, liar, pants on fire” or “you are being intellectually dishonest” as a last resort. But I’m telling you what I think.

    For what it is worth, I’ve discussed the issue ad nauseam on prawfs.com:

    http://prawfsblawg.blogs.com/prawfsblawg/2005/04/from_ethan_on_a.html
    http://prawfsblawg.blogs.com/prawfsblawg/2005/11/mainstreaming_a.html
11. Jonathan says:

    August 13, 2007 at 6:04 pm

    “I presume that the Ohio bill contains a parallel provision that requires a wife’s consent before a husband may undergo a vasectomy.”

    It’s amusing that multiple posters have (seemingly in jest) brought up the issue of vasectomy, since, in most parts of the country, it is virtually impossible for a married man to obtain a vasectomy without his wife’s consent. Even in states where this requirement isn’t written into law, the vast majority of clinics and doctors are unwilling to perform a vasectomy without a wife’s express permission. The reason for this is obvious- while the operation is performed on the man’s body, the consequences of the operation will have a profound impact on the life of the wife as well.

    I’m not sure whether men should have a legal say in his wife’s abortion or not. But simply saying “it’s all about my body,” is a very selfish, female centric perspective that ignores the fact that what the woman does with her body will have an enormous impact on the life of the potential father as well as the potential mother. Prof. Leib should be commended for raising these issues in his article, regardless of whether the particular legal remedies he has for resolving these issues are practical or not.
12. Ann Bartow says:

    August 13, 2007 at 6:20 pm

    Jonathan, could you provide some support for your assertion that it is virtually impossible for a married man to obtain a vasectomy without his wife’s consent ?
13. Jonathan says:

    August 13, 2007 at 7:34 pm

    As I hinted at in my previous post, a wife’s consent is often a de facto requirement enforced by the discretion of doctors rather than a de jure requirement enforced by the law, so it would be hard to prove that this policy exists by looking at official statutes. In practice, though, most doctors are very reluctant to perform a vasectomy on a man if they suspect his wife won’t agree to the procedure. Many even insist the wife sign a written consent slip before performing the vasectomy. This probably has to do with legal liability- if the wife was expecting to have kids in the marriage and the husband gets sterilized behind her back, the doctor might be sued for malpractice.
14. Ann Bartow says:

    August 13, 2007 at 7:51 pm

    You didn’t “hint” at anything, you still haven’t provided any support for your claim, and I don’t believe it.
15. mike says:

    September 13, 2007 at 6:35 am

    You did not mention the entire bill. The man has to be notified. He can’t actually keep her from having an abortion. She can still have one. This bill is about not supporting a child a man doesn’t wan’t. If she chooses to have a child and he doesn’t wan’t it, to bad for her. If she wont have an abortion he doesn’t have to pay child support. It’s about time. For years women forced men to pay for children they didn’t wan’t. Or they aborted children the fathers wanted. This was okay for feminists. It gave women all the rights. Now talk of men choosing to opt out of paying for children they don’t wan’t, and look at the crying. You can’t have it both ways and be considered equal. I just hope more people don’t try to mislead about this bill. Do not act like a woman can’t have an abortion without a man’s consent. That is not what this bill is about.
16. Ann Bartow says:

    September 13, 2007 at 7:18 am

    Ah, once again a comment from a lying, despicable troll. The bill absolutely gave a man veto power over an abortion The text of the bill is available here:
    http://www.legislature.state.oh.us/bills.cfm?ID=127_HB_287

    Here is what it says:

    A BILL

    To enact section 2919.124 of the Revised Code relative to requiring paternal consent before an abortion may be performed.

    BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

    Section 1. That section 2919.124 of the Revised Code be enacted to read as follows:

    Sec. 2919.124. (A) As used in this section, “viable” has the same meaning as in section 2901.01 of the Revised Code.

    (B)(1) When the fetus that is the subject of the procedure is viable, no person shall perform or induce an abortion on a pregnant woman without the written informed consent of the father of the fetus.

    (2) When the fetus that is the subject of the procedure is not viable, no person shall perform or induce an abortion on a pregnant woman without the written informed consent of the father of the fetus.

    (C)(1) A pregnant woman seeking to abort her pregnancy shall provide, in writing, the identity of the father of the fetus to the person who is to perform or induce the abortion.

    (2) No pregnant woman seeking to abort her pregnancy shall fail to comply with division (B)(1) of this section.

    (3) No pregnant woman seeking to abort her pregnancy shall provide to the person who is to perform or induce the abortion the identity of a man as the father of the fetus if the man is not the father of the fetus.

    (D) No man shall give a consent pursuant to division (B)(1) or (2) of this section as the father of the fetus if the man knows that he is not the father of the fetus.

    (E) No person shall cause a man to believe that the man is the father of a fetus for the purpose of obtaining the consent required by division (B)(1) or (2) of this section, if the person knows that the man is not the father of the fetus.

    (F) If, pursuant to division (C)(1) of this section, the pregnant woman identifies two or more men as possible fathers of the fetus, the person who is to perform or induce the abortion shall perform a paternity test, or cause a paternity test to be performed, to determine the father of the fetus prior to accepting any consent required under division (B)(1) or (2) of this section and prior to performing or inducing an abortion of the pregnant woman’s pregnancy. No person shall perform or induce an abortion in violation of this division.

    (G) It is not a defense to a violation of division (B)(1) or (2) or (C)(2) of this section that the woman does not know the identity of the father of the fetus.

    (H)(1) Divisions (B)(1) and (2) of this section do not apply if the pregnant woman provides to the person who is to perform or induce the abortion either of the following:

    (a) A copy of a police report or a complaint, indictment, information, or other court document that gives the person who is to perform or induce the abortion reasonable cause to believe that the woman became pregnant as the result of rape or incest.

    (b) A copy of a paternity test that gives the person who is to perform or induce the abortion reasonable cause to believe that the woman became pregnant as the result of incest.

    (2) This section does not apply if the abortion is necessary, in appropriate medical judgment, to preserve the life or the health of the pregnant woman.

    (I) The written consent required under division (B)(1) or (2) of this section and the written identification required in division (C)(1) of this section are confidential, are not public records under section 149.43 of the Revised Code, and shall be viewed only by the pregnant woman, the man claiming to be or the man identified as being the father of the fetus, the person who is to perform or induce the abortion, any law enforcement officer investigating a violation of this section, and a court and jury in a criminal case involving an alleged violation of this section.

    (J) Whoever violates this section is guilty of abortion fraud, a misdemeanor of the first degree. If the person previously has pleaded guilty to or has been convicted of a violation of this section, abortion fraud is a felony of the fifth degree.