Father’s Day is June 19. A decision by the Supreme Court regarding the fate of Roe v. Wade is likely any day now. The conjunction of these two events is important. It ought to initiate a national conversation about fathers and their unborn children.
Roe is just the tip of the iceberg. When the Supreme Court exercised “raw judicial power” to invalidate practically every state abortion law in force in 1973, it also set the United States on a fifty-year course of forcing public policy into the Procrustean bed of a woman’s highly individualistic “procreative liberty.” Abortion—something unmentioned in the Constitution—became the exception to the rule: Minors, who could not be given an aspirin without signed parental consent forms, now could obtain abortions without parental consent or even notification. Physician requirements such as admitting privileges suddenly were inapplicable to abortionists, many of whom were traveling carpetbaggers with no relation to the place they plied their trade. Rights to free speech, assembly, and protest were abridged to “protect access” to abortion clinics and keep women in the dark about their non-abortion choices.
And, early on, paternal rights were eviscerated.
Just three years after Roe the Supreme Court, in Planned Parenthood v. Danforth, invalidated a Missouri law that required spousal consent to obtain an abortion. Missouri legislators, reasoning that the procreation of a child required two people, stipulated that both parties must consent to an abortion.
Harry Blackmun (the author of Roe who also wrote the majority opinion in Danforth), struck down that law using two lines of reasoning. First, “since the State cannot regulate or proscribe abortion [during the first 12 weeks], . . . the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.” (Planned Parenthood v. Danforth, 428US 52, at 69). Second, because “it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor” (Ibid., at 70).
Both arguments are risible. No father ever thought of himself as acting on behalf of his state government when engaging in sexual intercourse: A father’s rights are independent of—not delegated by—his home state. And while a mother carries the child, the father’s role in creating that child was not to supply a commodity.
Danforth preceded by two years Baby Louise Brown, the first child produced by in vitro fertilization (IVF). As artificial reproductive technologies developed and were refined, the possibilities of reducing parenthood to a mere supplier of gametes and/or incubation increased.
Artificial insemination by donor (AID) had preceded IVF, and state laws attributing paternity to a spouse (unless disavowed) largely allowed AID to be performed under the radar. Paradoxically it has been the woman—the supposed subject of Roe’s liberating solicitude—that has found her maternity sliced and diced into genetic, gestational, and social components since the 1980s.
Because Roe relied on a hyper-individualistic concept of “procreative liberty,” it was not long before its corrosive effects spread in law. In Davis v. Davis (1992), the Tennessee Supreme Court was faced with a divorcing couple who possessed frozen embryos produced from the husband’s sperm and the wife’s ova. The husband subsequently sought to have the embryos destroyed, claiming he did not want to become a father against his will. (News flash to Junior Lewis Davis: You already were.) The woman wanted to save them. The Court sided with the man.
Contrary to the scientific fact that two persons are necessary to create the embryos, the individualism of “procreative liberty,” as shaped by the supreme maternal will of Roe, became a wholly negative “right.” “Procreative liberty” could be invoked to terminate a pregnancy (or prevent one as in the Tennessee frozen embryo case.)
This individualism bodes ill for protecting the (rightly) privileged context of a child being conceived naturally by a father and a mother. If “procreative liberty” inheres in the individual, procreation no longer involves two persons, only one person and one gamete supplier. Is that arrangement fair or just to the child? Or is the child, like the gamete supplier, merely a product the commissioning “parent” orders up to satisfy her own plans?
A post-Roe America will have to reckon with these questions. Two areas we may have to address sooner rather than later are:
- How will states deal with the question of paternal rights? Should the negation of paternal rights imposed by Danforth continue? Pro-abortion advocates will no doubt insist abortion is a “woman’s” issue in which a man has no say (unless he approves of the decision to abort). Without Danforth’s straightjacket, however, a father in theory should regain a say in the fate of his child.
- Do we have a sufficiently interpersonal understanding of fatherhood and motherhood? No one becomes a mother without a father; no one becomes a father without a mother. Adapting Blackmun, neither a father nor a mother can be isolated in their “privacy” or parenthood. As Ryan Anderson has observed, the reproductive system is the only bodily system requiring another person for it to function. Since parenthood necessarily involves two people, how do we reshape the notion of “procreative liberty” to account for that mutuality of action and responsibility? And how do we legally account for a holistic view of persons that does not reduce one of them to their mere gametes or uterus?
Asking these commonsense questions—which Roe has artificially fenced off for almost half a century—on Father’s Day is a way to seize the narrative and reframe America’s post-Roe abortion debate in a way that does justice to fathers, mothers, parents, and the unborn.