- Fathers' rights groups have used this case to argue for changing existing laws.
- While just about everyone agrees that excluding fathers from these decisions is unjust, no better alternative exists.
- The woman's monopoly on abortion persists because the law just can't overcome our gender-bound bodies.
- There simply cannot be a balanced weighing of paternal and maternal rights at present.
By Dahlia Lithwick
August 7, 2002
This week's "Dad's rights case" —the Pennsylvania battle over whether John Stachokus could legally override his ex-girlfriend Tanya Meyers' decision to have an abortion—has launched a thousand overheated conversations, the most striking element of which is this: People, even sensitive, feminist, pro-choice people, empathize with the father.
Perhaps they don't empathize with this father specifically—John Stachokus is allegedly a pretty controlling, and maybe even abusive, man. But this case reminds us of the truth at the heart of reproductive rights law in this country: Women have all the power, and men have none at all. That makes most fair-minded people very uneasy, but there's not much we can do about it.
Until the Associated Press report this morning that Meyers has miscarried,
fathers' rights advocates had been seizing their sound bite moment. Dianna
Thompson, co-founder of the D.C.-based American Coalition for Fathers and Children, offered up at least a dozen fight-the-power quotes this week.
"Stachokus may have ended up like the hundreds of thousands of American fathers who love children they are not able or allowed to see, and whose suffering is ignored by a society that seems capable only of denigrating fathers", she co-writes in an editorial in today's Newsday
Pro-life and fathers' rights groups have used this case to argue vigorously for changing existing laws. We already know which laws the pro-life groups are targeting.
The fathers' rights groups have a tougher time suggesting laws to protect fathers from being shut out of reproductive decisions because ironically, while just about everyone agrees that excluding fathers from these decisions is unjust, no better alternative exists. The womb wins. The courts won't stomach forcing a woman to bear a child against her will.
The law on paternal vetoes has been settled since 1976, when Planned Parenthood v. Danforth invalidated a Missouri statute requiring that a woman provide the written consent of her spouse before being allowed to undergo an abortion. Roe v. Wade had legalized abortion three years earlier.
The intent of the Missouri statute was not to keep women down or deify the patriarchy; it was to preserve the principle that couples jointly make the important decisions for a family.
A noble goal, said the court, but, as Justice Potter Stewart wrote in his concurrence, when push comes to shove, "we are called upon to choose between these competing rights" of husband and wife.
In situations where one parent was being given a veto—have the baby or don't—the court determined that it could not give fathers veto power the state itself did not possess. The court found that a woman's relationship with her own body is simply too intimate for the state to interfere.
This was the logic of Planned Parenthood v. Casey, the 1992 abortion decision that reaffirmed a woman's right to privacy in part because "The mother who carries a child to full term is subject to anxieties, to physical constraints, to pain that only she must bear.
"... Her suffering is too intimate and personal for the State to insist, without more, upon its own vision of the woman's role." What can dissenters do with that logic, other than grouse about what any of it has to do with the Constitution?
On almost every other front, men have achieved legal parity in asserting their constitutionally protected rights in the care and oversight of their offspring.
Where a mother's body is not involved, the law has gone a long way toward establishing equality: The presumption for mothers in custody battles is no longer the law.
Several state courts have held that unwed biological fathers have the right to veto an adoption initiated by the biological mother.
And even unwed fathers have significant custodial rights in their children's lives since the Supreme Court decided Stanley v. Illinois in 1972.
But the woman's monopoly on abortion persists because the law just can't overcome our gender-bound bodies.
As a result, few very satisfying resolutions to what is, ultimately, a zero-sum problem have emerged. One law review article urges a "cultural feminist" approach: creating a legal rule requiring counseling between parents that might "open the communication lines between the wife and husband." Fathers would at least feel "heard" under this regime; before, their opinions could be disregarded.
Of course in the case of Meyers and Stachokus, the clock was ticking (she was 10 weeks pregnant), there were allegations of abuse, and the father was filing for injunctive relief within days of learning of the planned abortion.
It's unclear that "counseling" would have satisfied him.
In the piece in today's Newsday, fathers' rights advocate Thompson and her co-author Glenn Sacks don't do much to propose a solution for this problem.
They concede that "NOW and NARAL were legitimately concerned that the Pennsylvania anti-abortion injunction ... could have established a precedent for giving men and the government control over an important aspect of women's lives," and then go on to list a dozen other ways that life sucks for dads.
They propose remedying these other problems. But even they don't argue that fathers should legally force women to bear children against their will.
So for all the huffing and puffing, and even despite our own innate sense of injustice, this week's case was mostly a big so-what. As a legal matter, the judge should never have granted this injunction in the first place. And until medical science enables us to transplant embryos as easily as we transplant sweet peas, there simply cannot be a balanced weighing of paternal and maternal rights.
That day is coming, mind you.