Saturday, April 15, 2006

Shark and Shepherd on Dead Tree

It seems more unimportant than usual today, but my latest MJS column is in this morning's paper.


Seth Zlotocha said...

I haven't looked too closely at the legal history on this issue, but there seems to be a key difference between pregnancy and parenthood that's being confused here.

The Roe and Casey decisions uphold the right of a woman to abort her pregnancy. Since men can't get pregnant, there's no way these decisions can apply to them.

It seems what Dubay wants in getting out of paying child support is the ability to make a decision about giving up the child once born, which is a different issue than abortion.

More specifically, what Dubay wants is to sever legal (and subsequently financial) ties to the child once born. To be sure, Dubay does not have any legal obligations to the child until she/he is born.

So, this is really more an issue of a "male adoption right," not a male abortion right.

Rick Esenberg said...


You're missing the point. Why does a woman have a right to abort? Its because, as the quote from Casey points out, the Court believes women are entitled to decide whether or not to have a child. The fact that they chose to have sex doesn't matter. They still get to choose.

While it could be all about avoiding the state of pregnancy, that's not what the Court chose to emphasize and it would be problematic if it had because, as I point out, the government forces people to suffer (or prohibits them from alleviating suffering) in a number of different ways.

Now I don't think there is any such constitutional right, so I'm happy to make Dubay pay.

But if you think there is, why shouldn't he have it as well?

Seth Zlotocha said...

Why does a woman have a right to abort? Its because, as the quote from Casey points out, the Court believes women are entitled to decide whether or not to have a child.

You cherry-picked that quote from Casey without telling readers the next line: "These considerations begin our analysis of the woman's interest in terminating her pregnancy, but cannot end it, for this reason: though the abortion decision may originate within the zone of conscience and belief, it is more than a philosophic exercise."

Two important points there:

1) The Casey quote you give was just a philosophical precusor to the legal argument made in the decision.

2) The court is solely talking about the state of pregnancy in the Casey decision--not parenthood, which is the issue in the Dubay case.

You're trying to make the court out as hypocritical because it grants women the right to medically terminate their pregnancy while not granting men the right to legally terminate their relationship with their born child.

Of course, you don't think men should be granted the right to arbitrarily sever legal ties to their children. What you're suggesting, although you never say it explicitly, is that we should roll back women's abortion rights in light of this supposed hypocrisy. It's a back-door anti-abortion argument.

But comparing a woman's right to terminate her pregnancy and a man's ability to terminate his legal ties to his child is the definition of comparing apples to oranges.

There's nothing there, Rick, no matter how hard you try to spin it. And that's why Dubay will lose his case--not because there's hypocrisy in the court's decision.

Rick Esenberg said...

No, actually I did mention the fact that the Court went on to mention the physical fact of pregnancy. This "zone of conscience and belief" is what, for the Justices who joined in this opinion, constitutes the "privacy" protected by ... well, whatever it is that protects it. Without what you call this "philosophical precursor" there would be no reason to discuss the scope of the abortion right because there wouldn't be one. Having established that, there are all sorts of other things that fall into that "zone" as well, such as Dubay's interest in not being a parent.

I'm not saying that they are hypocrites. I am saying that they have created a right without a logical stopping point.

Seth Zlotocha said...

A woman's right to terminate pregnancy is not exclusive--the state does have the ability to intervene and prevent an abortion. This means while there is a philosophical belief that informs the decision of the court, when taking real-life situations there are limitations.

As for Dubay, you make the point yourself by claiming Dubay's interest is in not being a parent. This is a fundamentally different decision than whether to terminate a pregnancy.

Dubay doesn't have any legal ties to the fetus during pregnancy. It is only after the fetus is born and becomes a child that Dubay has legal rights and obligations--and it's those legal rights and obligations he wants to sever in his case. The child support payments he wants to avoid don't start until the baby is born.

So to think Dubay has any abortion rights is absurd because he doesn't have any more legal jurisdiction over the pregnancy than you, me, or any other individual (although the state can intercede after the second trimester).

Under your rubric of "a right without a logical stopping point" the court would either need to side with Dubay or roll back the abortion rights of women--otherwise, I don't see how it would not be hypocritical based upon your analysis.

My point is that there is a reason what Dubay is trying will fail and has failed in the past, which has nothing to do with a right without a logical stopping point--it's because it's a bogus argument that mistakenly conflates pregnancy and parenthood.

There is a logical stopping point to abortion rights--it's pregnancy (specifically before the end of the 2nd trimester). Parenthood is a completely different ball of wax.

Seth Zlotocha said...

I should clarify quickly that I know Dubay isn't arguing to have the abiltity to end the pregnancy--he wants to end his parental rights and obligations.

That is why I think it's more of an issue of adoption and not abortion. Women do not get abortions to terminate parental rights--they get them to terminate pregnancies. Adoptions are for terminating parental rights; after all, parental rights don't exist until after birth.

And just to comment on the last line of your editorial, that the child's right to support should trump a woman's right to abortion. A child does not have rights until birth--or at least the end of the second trimester. So there isn't a conflict, at least in the eyes of the law, until that point. Dubay, as the biological father, doesn't become involved until the child is born and, hence, is afforded rights.

Rick Esenberg said...


I think you are missing the point. The question is - why is there a right to an abortion? The Constitution contains neither the word abortion nor the word privacy. The Court has decided that abortion is within some protected zone of liberty but it has to explain why this is so.

That's where what you call a "philosophical" introduction comes in. The Court says that decisions relating to procreation are very personal and close to the very essence of who you are so the state should bug out. Its nothing so prosaic as avoiding the physical ordeal of pregnancy.

So now we know that people should have a right to make decisions about whether they procreate because its fundamental to exploring their connection to the mystery of their existence or whatever.

Why doesn't that apply to DuBay?

You could say its because he doesn't have to actually be pregnant and this is an ordeal that a woman should be able to opt out of. But,as I point out in the article, there all lots of ways in which the state forces us to endure physical ordeals.

You could say that his right is trumped by the child's need for support. But since the child's need to live doesn't trump the woman's right, this is problematic as well.

Seth Zlotocha said...

This isn't about procreation. It's about parental obligations.

Men who donate at a sperm bank are participating in procreation, but they are also doing exactly what Dubay wants--which is avoiding any parental obligations.

In other words, procreation and parental obligations are mutually exclusive. Dubay is trying to conflate them to avoid paying child support, and it appears you're trying to conflate them to make a politicial point.

The court can very easily locate a right to terminate pregnancy for women without that dictating that men should be able to arbitrarily avoid paying child support.

And, again, at the time of abortion the fetus has no legal rights. There is no conflict there. But at the time Dubay wants to sever his parental obligations, the child is born and thus has rights.

Rick Esenberg said...


Your argument is rather formalistic. You either have to argue that the privacy right is all about not having to go through pregnancy - in which case you have a hard time arguing that there are all sorts of other physical hardships - like combat, drug withdrawal, the sideeffects of chemotherapy, etc - that people have a constitutional right to avoid.

Or you have to admit - as the Casey court did - that it's about more than that, i.e., the decision whether to procreate, then you have to make a principled argument about why women, but not men, have a right to choose. You have to test the reach of the principle, not just look for some formal distinction that doesn't really limit the values that the principle seeks to promote, in this case, choices about procreation.

Seth Zlotocha said...

Both women and men do have the right to choose regarding procreation--although a woman's right is broader because she has an extended role in the process of procreation.

The first choice is to have sex (although in cases of rape, this choice is taken away from one of the partners).

The second choice is to use protection (although nothing is 100% and, again, in cases of rape this choice is taken away from one of the partners).

After this second choice, a man's right to choose regarding procreation stops because he is no longer involved in the act of procreation.

A woman, however, continues to be intimately involved in the procreation and therefore has a third choice to make--whether or not to get an abortion. A man can't make this choice because he has absolutely no jurisdiction over the woman or the fetus. For all legal purposes, he's out of the picture at this point. And he doesn't return until after the birth.

The choice to have an abortion does not need to stem from wanting to avoid physical discomfort or avoid being a parent. In fact, it is no one's business but the woman why she chooses to have an abortion.

The same is true for any legal medical procedure. Since combat is not a medical procedure, the comparison does not apply.

In terms of chemo side-effects, we're not talking about it being illegal to treat those side-effects--we're talking about using an illegal substance (medical marijuana) to treat them. If abortion required the use of an illegal substance--let's say, crack--it certainly would be illegal, but more likely the medical community would find a new, legal substance to use (which is the case for chemo side-effects).

The drug withdrawal example is similar--the state has the right to force detox because the use of the drug is illegal. So in that case, like the use of marijuana for side-effects for chemo, it's not so much performing a medical procedure on someone as it is not letting someone take drugs to avoid physical discomfort.

If you can name for me a medical procedure that is outlawed--for which no alternate procedure would suffice--and then you might have a reasonable comparison to banning all abortions. As far as I can tell, there would be no other ban like it in this country.

But, again, the Dubay case has nothing to do with procreation. It's about parental obligations.

Rick Esenberg said...

Saying that the goverment has an interest in forcing withdrawal,etc., because drugs are illegal begs the question. If you have a fundamental right not to suffer then that would trump the government's choice to make it illegal. That's what constitutional rights do.

Saying that she still has a choice to make after conception begs the question. Why does she have that choice? If its because she doesn't have to be a parent if she doesn't want to, then you have not identified a principled reason to deny that to a man. Both chose to have sex. Both did or did not use protection.

Of course, he can't force her to have an abortion but you have to come up with some reason why he has to be a father just because he engaged in sex which led to conception when she has a fundamental right not to be a mother even though she engaged in sex which led to conception.

The standard answer would be that the child's interest in support trumps his interest in avoiding fatherhood. I happen to think that's a good argument.

But why doesn't the same child's interest in being born trump her interest in avoiding motherhood. To say, as you do, that a fetus has no rights until it is born once again begs the question. Why is that?

Seth, I am not the only one who thinks the case for a constitutional right to an abortion is incoherent. Blackmun did an awful job of explaining it in Roe and O'Connor, Kennedy and Souter didn't do any better in Casey. Over the past thirty years, law professors have destroyed a considerable portion of the rain forest trying to explain what the justices could not. Unsuccessfully.

As for the fact that abortion would be the only "banned" medical procedure, your decision to call it a medical procedure begs the question yet again. Would live organ transplants be a medical procedure? How about treating schizophrenia with LSD? Or the inability to hit 70 home runs per year with steroids?

Seth Zlotocha said...

I'm sure we could do philosophical back-flips around these questions for quite awhile, but it only seems to be spinning wheels.

As this becomes more and more a debate over abortion and not the Dubay case, the further we get away from ever coming to a conclusion.

I'm sure you'll never be pro-choice, just as I will never be anti-choice. While I would never tell a woman to have an abortion, I don't feel I or the state has any place telling her she can't.

I'll leave the legal arguments justifying why to the law professors and justices. But something tells me, coherent or not, they'll never be able to come up with one to your liking because this issue isn't about the law for most people--even when they're lawyers.

Nice chatting, as usual, Rick. Thanks for indulging my thoughts. I find I learn a lot when I get into these spats over here--even if we can't seem to come to any agreement, except perhaps to disagree.