Notification vs. Consent

Julian Sanchez | October 31, 2005

As long as I'm in the awkward business of semi-defending Alito's ruling in Casey, which upheld a spousal notification requirement I don't personally approve of, I may as well make a note of Garance Franke-Ruta's post on the subject at TAPped. Franke-Ruta describes the "notification" requirement as in effect indistinguishable from a "spousal consent" requirement. Which, given the description she borrows from the National Abortion Federation, is certainly understandable:

Spousal notification -- would require a married woman to present a statement signed by her husband, attesting that he knows about her intention to have an abortion, before she could undergo the procedure.

Now, what's key here is the requirement to present a statement signed by the husband that he's been informed. It would give the spouse an effective veto on the decision to abort—he could always refuse to sign. But if you follow Franke-Ruta's link to the Casey decision, that's not at all the same as the characterization of the relevant provision in O'Connor's opinion:

§ 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;

Now, that's a huge difference. Because, within the context of the relevant precedent, someone who tried to claim the first, de facto "consent" sort of provision, didn't constitute an "undue burden" would certainly be stretching it. Now, ultimately, the court ruled that the requirement that the woman make the notification certification was also an undue burden. But ruling the other way, as Alito did, strikes me as much less of a stretch in this case, when you consider the various exceptions (among them fear of abuse).

As I said, I wouldn't be in favor of the authentic-notification rule either. But upholding that rule says a lot less about a judge than upholding the kind of rule Franke-Ruta is talking about would.

Help Reason celebrate its next 40 years. Donate Now!

Try Reason's award-winning print edition today! Your first issue is FREE if you are not completely satisfied.

|10.31.05 @ 5:20PM|#

Yeah, but if the wife went to WalMart, where there would be no black people if it weren't for the government, and needed to buy a pen to sign her papers, but only found low wage workers who couldn't direct her to the right aisle ... how would you feel THEN Mr. Libertarian Smarty Pants?

|10.31.05 @ 5:27PM|#

*snerk*

|10.31.05 @ 5:34PM|#

I wanted to write something snarky, but there is no topping the first post on this thread. Man, you need to go to work for NARAL.

|10.31.05 @ 5:37PM|#

If a man has absolutely no say in the life and death of his children then he should not be required to support them. If its all the wife's decision then it is all her responsibility to raise them. Having it both ways is immoral. LOL Like that would ever stop the left!?

|10.31.05 @ 5:44PM|#

RA,

Ah, but what if it's not his child?

|10.31.05 @ 5:48PM|#

SPD,

I beleive that the child not being the husband's is one of the circumstances in which the law in question did not require notification.

|10.31.05 @ 5:49PM|#

Julian Sanchez,

Heh. He would uphold any restriction on abortions. His rationale is superfluous. The man opposes abortion on ideological/moral grounds, and his legal reasoning is so much fluff.

|10.31.05 @ 5:55PM|#

Hakluyt,

Realistically speaking, would you ever expect Bush to appoint someone who agrees with a woman's right to choose?

§ 3209, which commands that, unless certain exceptions apply, a married woman seeking an abortion must sign a statement indicating that she has notified her husband;

Somes referred to as the "Kay Corleone" clause:)

|10.31.05 @ 6:09PM|#

Off-topic, but how's Alito's record on deference to executive authority?

RA,

What you say sounds logical, but what happens when the father chooses to abort, but the mother refuses? Either she would be forced to have an abortion -- a possibility all sides hopefully agree is horrid -- or he would at least get out of paying child support. Which means you'd see a lot of would-be deadbeat dads exercising the "right to choose."

The pre-Roe system, wherein both parents are held responsible for the child they conceive, is far more equitable than the current system.

|10.31.05 @ 6:40PM|#

I really hate the "deadbead dads" scam, but I'd rather take RvW's extra bit of freedom than try to make things more "equitable" by denying it.

|10.31.05 @ 6:42PM|#

Which means you'd see a lot of would-be deadbeat dads exercising the "right to choose."

I don't know -- choices and responsibilities generally go together. If it's the mother's choice whether to abort, shouldn't it be the mother's responsibility to deal with birth control and the possible failure thereof?

I think the father should be involved, ideally, but obviously there are problems, like paternal identity not being so obvious as maternal -- it's not always the spouse, and making the two the same just kind of reinforces the "Men can have affairs without responsibility; women can't" thing.

I like the exception where it isn't the husband's child.

1. Does she then have to notify the milkman?
2. What if she isn't sure?
3. Is that a fun conversation to listen in on: "Dear, I am having an abortion tomorrow, but don't worry about it, I am pretty sure it isn't yours."
4. Does it count if she just text messages him? Are there text message abbreviations? Are smiley faces considered inappropriate?

|10.31.05 @ 6:46PM|#

Now, ultimately, the court ruled that the requirement that the woman make the notification certification was also an undue burden. But ruling the other way, as Alito did, strikes me as much less of a stretch in this case, when you consider the various exceptions (among them fear of abuse).

Is it safe to assume that the notification certification was to be made under the penalty of perjury?

Surely it would be foolish for any woman impregnated by a jilted father to get an abortion without something signed by the father stating that he was notified.

|10.31.05 @ 6:48PM|#

If a man has absolutely no say in the life and death of his children then he should not be required to support them.

Fathers, by definition, should be required to support their children.

|10.31.05 @ 6:51PM|#

Tom Crick,

I agree; the problem arises because our legal system doesn't recognize that mothers by definition shouldn't kill their unborn children.

fyodor|10.31.05 @ 6:53PM|#

I don't know -- choices and responsibilities generally go together. If it's the mother's choice whether to abort, shouldn't it be the mother's responsibility to deal with birth control and the possible failure thereof?

It was still the father's choice to fuck. (Please note that I am not saying that it wasn't the mother's as well, only specifying what was the operative "choice" in the matter.)

|10.31.05 @ 6:58PM|#

fyodor,

My point was, that if we carve out a "man's right to choose", or perhaps a "private decision between a man and his financial advisor" exception to child support laws, many children who are now receiving child support will be getting none. They will most likely wind up on the welfare rolls, or in poverty.

Basically, there's no equitable solution to these problems so long as we hold the right to an abortion to be sacred.

|10.31.05 @ 7:01PM|#

fyodor,

You're arguing in circles here. What justification do we have for holding the father responsible for the choice to fuck, but not the mother?

fyodor|10.31.05 @ 7:13PM|#

crimethink,

Aiiiiiiii!!! I specifically said I was NOT relieving the mother of her share in the responsibility for the decision to fuck!! But my point was that the father's lack of legal standing over the choice of whether or not to abort does not necessarily relieve him of responsibility for the child because the choice to fuck (MADE IN CONJUNCTION WITH THE MOTHER) was the choice he DID have that is the one that makes him (partly) responsible for the child and in turn for its well-being.

|10.31.05 @ 7:16PM|#

fyodor,

I know what you said, but how exactly are you holding the mother responsible for her decision to fuck? She can choose to abort the pregnancy if she wishes, or she can have the child, and force the father to pay child support.

|10.31.05 @ 7:22PM|#

I agree that just because a father should be held responsible for providing for his children, that doesn't mean that a mother shouldn't be held responsible as well.

...and I've come out before as leaning pro-life, but even I think a notification certification requirement for women is a bad idea regardless of constitutionality. I hate to sound like I'm against someone for being right for the wrong reasons, and I don't think that's what I'm doing here. I think it's more like a the ends don't justify the means kind of thing. ...and in fact, I'm not sure whether I'm in favor of or opposed to this guy.

...I think parental notification for minors, on the other hand, makes a lot of sense.

Still, as Hakluyt said above, it looks to me like Alito's rational for this is beyond the context of the law itself--he just seems to want to curb abortions in any way possible. ...I that guess that just isn't my side of the pro-life fence.

|10.31.05 @ 7:34PM|#

I know what you said, but how exactly are you holding the mother responsible for her decision to fuck? She can choose to abort the pregnancy if she wishes, or she can have the child, and force the father to pay child support.

Because she's the one who has to raise the child if she has it. How much more responsible would you like her to be?

|10.31.05 @ 7:43PM|#

Phil,

But you see, she can choose not to raise the child by having an abortion.

Once conception occurs, however, the father has no choice but to pay child support if the mother chooses to carry the child. He also, of course, has no choice in the matter of whether his child lives or dies, but that's a different argument.

|10.31.05 @ 8:03PM|#

But you see, she can choose not to raise the child by having an abortion.

Yes, she can. She can also choose not to raise it by giving it away to someone who wants it. Thus do the rights and responsibilities of having a womb attached to your body accrue. Blame God -- he designed them that way.

Once conception occurs, however, the father has no choice but to pay child support if the mother chooses to carry the child.

If he is a decent human being, and if the mother does not give the child away for adoption, yes. If he does not wish to undertake this risk, he can get a vasectomy, or keep his penis in his underwear, and never have to be faced with it. Otherwise, yes, he should absolutely be held responsible for the well-being of the results of spraying his DNA around. If he isn't, you and I are going to have to pay for it. You don't want that, do you?

He also, of course, has no choice in the matter of whether his child lives or dies, but that's a different argument.

Perhaps, then, he should be careful only to have sexual intercourse with women who share his parenting goals.

Why is this so fucking hard for people to figure out?

|10.31.05 @ 8:56PM|#

Sex has nothing to do with fatherhood. Everybody at this website ought to know that you can be a father without knowing the mother or the child.

If your wife screws the milkman and gets pregnant, legally establishing that you're the father isn't too difficult.

|10.31.05 @ 9:09PM|#

What constitutes "family" is confusing and ever-changing. What family members do to each other is often crude, rude and worse.
In spite of that, the greatest good for the greatest number of individuals, even children, would spontaneously evolve faster if government respected the "borders" and "boundaries" of families, by staying without.

|10.31.05 @ 9:41PM|#

I've always felt that current abortion laws are unduely harsh on the male in the process. I believe if whichever party did not concent to the abortion gets saddled with raising the child, it would be fairer all around. If the father does not consent to the woman having an abortion but the woman wants to have one, the woman takes no responsibility for the raising of the child, and if the father wants an abortion to happen but the woman does not, the father gets saddled with the kid. If neither want to abort, they both get saddled with the responsibility. It just seems fairer to all parties involved, especially the father who doesn't want to lose his offspring just because he does not wish to marry the woman.

|10.31.05 @ 9:59PM|#

Phil,

Your first para doesn't address my argument at all, but whatever.

If he does not wish to undertake this risk, he can get a vasectomy, or keep his penis in his underwear, and never have to be faced with it. Otherwise, yes, he should absolutely be held responsible for the well-being of the results of spraying his DNA around.

My problem is not with men being held responsible for spraying their DNA around; it is with women not being held responsible for allowing DNA to be sprayed into them. As I've stated before, I prefer the pre-Roe situation where both parents take responsibility for their offspring whether they like it or not.

|10.31.05 @ 11:48PM|#

A woman gets more say in the matter because she has a larger share of the consequences any way you look at it. To say a woman gets off scot-free by having an abortion is ludicrous - anyone want to guess how much fun it is to go through one? Having an abortion IS one way of taking responsibility.
And no woman should EVER be forced to carry a child to term. Women die in childbirth, women get gestational diabetes, preclampsia or they can be forced into bedrest for months.Pregnacy is always a health risk.
That's why women get a more of a say - and men need to understand the risks they take every time they have sex. Sorry, there's no such thing as responsibility free sex.

Stormy Dragon|11.1.05 @ 12:07AM|#

If spousal notification is an undue burden on the wife, are at fault divorces in cases of adultery an undue burden on the man?

|11.1.05 @ 12:07AM|#

crimethink,

As far as women not being responsible (meaning under the law) for DNA being sprayed into them: well, women certainly face disproportionate consequences as a result of pregnancy, even if they abort (emotional stress, hormonal changes, social stigma); the woman is also ultimately the person who has to come up with the money for the abortion. Seems fair to me. If a man decides that he wants to keep the child, he can not at that point choose to go through the - from what I hear - immense pain in the ass that pregnancy is in place of the woman, nor go through birth in her stead, nor the recovery.

The way I see it, once the sperm is in the woman, it's no longer his - the woman owns it and the fetus that develops until the law determines that the thing is a baby having rights of it's own. One of those rights is $ from the father and mother.

It's enough that a man has absolute power over his ability to not have children.

|11.1.05 @ 12:15AM|#

Dag, droogy beat me to it.

|11.1.05 @ 1:05AM|#

Stormy Dragon -
um, so why would you assume it would be the man having the affair?

Don't get out much, do ya?

|11.1.05 @ 4:13AM|#

Otherwise, yes, he should absolutely be held responsible for the well-being of the results of spraying his DNA around

Whereas whoring around carries no responsibility of any kind, to the child, the father, or anybody else? That seems neither moral nor fair.

The man's moral obligation is equal to the cost of an abortion, adjusted for the risk involved in the procedure. Nothing more than that.

Dave W.|11.1.05 @ 5:56AM|#

About time someone kept their head when discussing abortion. Ppl get so outcome oriented on abortion, it alsways twists the discussion into a pretzel. Thanks for doing a bit of untwisting, J.

Dave W.|11.1.05 @ 6:01AM|#

Or maybe the stake of gay men in this debate is coming clearer and this is your way of being o.o.

|11.1.05 @ 8:06AM|#

droogy and T Bone,

I'm sure having an abortion is a terrible experience, but it's a bit different from being forced to support a child you didn't want for 18+ years.

|11.1.05 @ 8:51AM|#

I think much of the discussion here shows that much of the problem lies not with abortion, but with the concept of legally enforced child support.

In the same vein that the pro-abortion types argue that men have complete control over the decision, so do women over the issue of raising a child with no means to support it - don't have sex. If you have the kid, and have no means to support it, you have a choice - give it up for adoption, or rely on the charity of others.

In the same vein, a father who refuses to support his child can be held up to social and commercial stigma for the fact, if he doesn't have a valid reason for his decision.

Only people who have never been involved in the mandated child support process think that it is equitable or useful. I can honestly say that there is no more degrading or debilitating system in our law.

And nothing more destructive of healthy family units - quite often the payee lives a very comfortable life in nice digs without working, while the payor lives in a single room basement, working two jobs to make ends meet. And [insert deity here] help the payor if one job ends - the payor gets to go to jail for a while until able to prove that the payor can't afford the old payment - usually ending up with the loss of the other job for absenteeism. Think that all of this doesn't cause resentment and hostility? Ha! Many support cases make a W and Saddam get together look like woodstock.

And yes, I avoided gender in the above description because I have been involved in many cases where the woman was the payor. I would support eliminating divorce as an option when a child is involved before creating this monster that is mandated "child" support (quotes because it is also often ex-spouse support, as the payor must provide the custodial ex-spouse with a "proper" standard of living to share with the children).

Mandated child support is a great example of where a nearly universal social value - that parents should support their children - gets corrupted and perverted by getting the state involved. And it spills over into fights over custody - which become economic life and death struggles between spouses, and therefore worthy of massive litigation.

|11.1.05 @ 11:26AM|#

quasibill,

As with everything else, let it be decided on a case-by-case basis, either through a settlement or in a courtroom if necessary. But if a husband or boyfriend testifies he never wanted his wife or girlfriend to have the child, then what? Should that excuse him from financial obligations other than those he voluntarily offers? If so, should he then be required to sign a document that forfeits his right to custody and visitation rights? Seems only fair IMHO.

|11.1.05 @ 12:02PM|#

What your forgetting here in all this is the child you has no share of the blame and has to deal with the consequences of his/her birth parents actions. THAT is why a man should always be responsible for a child resulting from the sex act. Now that we had reliable way to establish paternity, men should just realize that having sex means potentially having a child (hello!) and procede from there.

What crimethink way has the child paying for the decision of the parents - look at the stats on child poverty - a large majority are in single-parent households, and makes them more vulnerable to abuse and neglect. Say what you will be if you as the absent, non-supporting father can look your own kid in the face and say - sorry not my problem - then I'm pretty sure you don't even qualify as a man. Male maybe, but not a man.

R C Dean|11.1.05 @ 12:15PM|#

THAT is why a man should always be responsible for a child resulting from the sex act.

Any old man, or only the proven genetic father?

It makes a difference, you know. The current system tends toward the former, not the latter, in a lot of ways.

And should the man be held fully responsible for something over which he has partial control? He has absolutely no say over whether the mother gets an abortion, and his input into the adoption process is strictly limited (he can withhold revocation of his status as parent, but he can't initiate).

In other words, both parents are equally responsible for the act of conception (leaving aside cases of rape), but the mother has much more control over the results of conception, while the putative (and not even actual) father has zero control over those results, but full financial responsibility.

That is not even close to symmetrical or fair.

And if it is "unfair" to the child to allow the father to opt out of financial responsibility, why isn't it even more unfair to the child to let the mother opt out of having or raising the child? Which is more important?

|11.1.05 @ 12:34PM|#

"If so, should he then be required to sign a document that forfeits his right to custody and visitation rights? Seems only fair IMHO."

Agreed.

"What your forgetting here in all this is the child you has no share of the blame and has to deal with the consequences of his/her birth parents actions."

Something tells me you have no problem with the child suffering the consequences of his birth mother's actions in aborting the child - right?

So you're putting the cart before the horse. If the mother can't support the child, she should give it up. She shouldn't be able to force the father to support her lifestyle decision if he didn't agree to it.

It's either that, or you admit the mother has no right to kill the baby when she doesn't want to pursue that lifestyle decision - the logic is the same as that you use to force fathers to pay for children that they don't want.

"What crimethink way has the child paying for the decision of the parents "

Only in the same way that the child pays for the decision of the parents when it is aborted.

Just because a woman decides not to abort does NOT mean she now has the right to raise that child, no matter what evil you have to do to others. If it is emotionally tough for her to surrender the child to adoption - tough. She should have thought about that before pulling down the zipper.

|11.1.05 @ 12:41PM|#

If you look at my previous post you'll see the reason I think the woman gets more of a say, is because she has a larger share of the consequences - can she just walk away? No, never. She has to go through an abortion or a full-term pregnancy - I've already gone through the potential health consequences of a full-term pregnancy, and an abortion is certainly no walk in the park. A woman has no way of avoiding resposiblility in this situation.
And I also said that paternity testing is reliable now so only the actual bilogical father should have to step up.

Again, sorry, as long as a man has a choice to have sex or not and/or take care of contraception they have deal with not having much control of the outcome of the act.

That is not to say that the current laws are fair- I've heard horror stories, and women who deliberately try to get pregnant against their partners wishes are scumbags. I think the man is these situations should be eligible for primary custody if they decide that's what they want.

|11.1.05 @ 1:00PM|#

"Again, sorry, as long as a man has a choice to have sex or not and/or take care of contraception they have deal with not having much control of the outcome of the act."

Again, sorry, if you're going to make the argument that the state has the right to enforce your conception of male responsibility for the sex act, it will have the power to enforce other people's conception of female responsibility for the sex act - in other words, women can avoid having the "complications" you speak of by precisely the same method that proclaim enables men to avoid being liable for ex-spouse support for 18 (or more years).

|11.1.05 @ 1:04PM|#

"And I also said that paternity testing is reliable now so only the actual bilogical father should have to step up."

Yeah, that always sounds nice, but what happens when the mother conceals her extra-marital affair for years, or the fact that she got pregnant (she claimed to be on birth control, got pregnant, then left to raise child on her own, then comes back 7 years later when she decides she wants someone else to pay for it).

In the first case, non-genetic fathers can and do get stuck all the time with supporting the child. In the second case, a woman who committed fraud gets the benefit of that fraud. And yes, both cases have happened here in PA.

So it's never as easy as people wish it could be...

|11.1.05 @ 2:26PM|#

I notice you never address the child...In your first post you're saying first a woman should ALWAYS have to deal with the consequences but a man should only when he feels like it. Sounds fair.

And having sex with a fertile woman means she can get pregnant - whether she's lying about birth control or contraception fails there's always a chance.

But the one innocent party here is the kid. If Dad doesn't accept responsiblility, the kid pays.

As for the married woman who has an affair - if the kid in question was raised by this Dad as his own for years, what kind of monster would say *sorry kid your no longer my son* because he finds out they're not genetically related? Some people do not consider children purely a liability.

Sure, the woman in squarely in the wrong for having the affair but when there is a third, innocent party in the mix things aren't so black and white.

|11.1.05 @ 2:37PM|#

"I notice you never address the child"

Then you're not reading my posts. I stated from the start that I was avoiding that question because if you are considering the child, you open the door for prohibiting abortion - the same logic applies in both arguments. And yet once again, you can't deal with the logic, so you sidestep it completely and go on the offensive.

"In your first post you're saying first a woman should ALWAYS have to deal with the consequences but a man should only when he feels like it. Sounds fair."

Nope. Never even came close to saying that, but nice try. However, you on the other hand, are advocating the opposite - the man should ALWAYS have to deal with the consequences of having a child, but a woman should be given the option to avoid the 18 (or more) year commitment that their common act of sexuality created.

"And having sex with a fertile woman means she can get pregnant - whether she's lying about birth control or contraception fails there's always a chance."

And having sex with a fertile man means you can get pregnant. That's the risk the woman takes, if the man takes the risk of being on the hook for 18 years. The same logic applies. But clearly, you can't deal with the logic, so I expect you will completely ignore this point, once again.

"But the one innocent party here is the kid. If Dad doesn't accept responsiblility, the kid pays."

Not necessarily - if the kid is given up for adoption to a healthy family. On the other hand, when the woman aborts, the one innocent party most certainly pays the ultimate price.

"As for the married woman who has an affair - if the kid in question was raised by this Dad as his own for years, what kind of monster would say *sorry kid your no longer my son* because he finds out they're not genetically related? Some people do not consider children purely a liability.

Sure, the woman in squarely in the wrong for having the affair but when there is a third, innocent party in the mix things aren't so black and white."

Which was my point - you however, continue on in your belief that it is a black and white issue and that only men can be held responsible for the sex act. Women must be allowed to free themselves of this responsibility. I guess if you find that "fair," then there isn't much common ground between us and this discussion is pointless.

|11.1.05 @ 5:38PM|#

If I were a fetus and could be polled, I'd rather not be born at all than be given up for adoption and suffer attachment and identity problems. And that's assuming the adoptive family isn't abusive.

|11.1.05 @ 7:44PM|#

As I've stated before, I prefer the pre-Roe situation where both parents take responsibility for their offspring whether they like it or not.

Thus we discover that crimethink is from an alternate universe where nobody ever had an abortion, smothered a newborn, or walked out on an expectant mother prior to the 1970s.

Shorter crimethink: "Women=cattle=sluts."

|11.1.05 @ 11:47PM|#

Phil, that's pretty unfair.

As would be: Shorter Phil: "Parents=infanticides and deserters"
----------------

If I were a fetus and could be polled, I'd rather not be born at all than be given up for adoption and suffer attachment and identity problems. And that's assuming the adoptive family isn't abusive.

Hm, are you sure about that? We could easily take this out of the realm of the purely theoretical by taking a poll of people (former fetuses) and asking them, "Would you prefer to be put out of your presumptively unbearable misery right now, or would you rather go on living?"

|11.1.05 @ 11:49PM|#

My apologies, I left out something crucial:

We could easily take this out of the realm of the purely theoretical by taking a poll of people (former fetuses) who'd been adopted and asking them, "Would you prefer to be put out of your presumptively unbearable misery right now, or would you rather go on living?"

Karen A. Wyle|11.2.05 @ 10:37AM|#

Responding to two previous comments:

--Alito has, in fact, found at least one restriction on abortion -- a partial-birth prohibition without sufficient exceptions -- to be unconstitutional.

--The spousal-notification statute did NOT require the woman to say under penalty of perjury that she'd notified her husband (assuming she wasn't already excused from that requirement under any of the four major exceptions). Alito noted, though he didn't rely on the fact, that the statute was unenforceable and could be easily evaded.

Reason Magazine

Get Reason E-mail Updates!

Site comments/questions:

Media Inquiries and Reprint Permissions:

Editorial & Production Offices:

advertisements