Wednesday, March 15, 2006

The fruits of Roe?

The National Center for Men has filed a
law suit seeking to extend Roe v. Wade's protection of "reproductive liberty" to men
. The plaintiff is Matt Dubay, 25, a computer technician from Saginaw, who feels that he should not be compelled to support a child that he never intended to bring into the world. Matt insists that the child’s mother repeatedly assured him she could not get pregnant. In the words of the Center, "Matt is asking for the reproductive choice he would have had if he were 'Mattilda.'"

Before you laugh at this, I am hard pressed to explain why he shouldn't win, given the right to privacy recognized by Roe.

The most complete statement of the basis of that right is to be found in the joint opinion in Planned Parenthood v. Casey, the case that reaffirmed the basic principle of Roe. Here is the explanation offered by Justices Souter, Kennedy and O'Connor of the abortion right:

Our law affords constitutional protection to personal decisions relating to marriage, procreation, contraception, family relationships, child rearing, and education. Carey v. Population Services International, 431 U.S., at 685 . Our cases recognize the right of the individual, married or single, to be free from unwarranted governmental intrusion into matters so fundamentally affecting a person as the decision whether to bear or beget a child. Eisenstadt v. Baird, supra, 405 U.S., at 453 (emphasis in original). Our precedents "have respected the private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). These matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the State.

Tell me why all of this is not just as applicable to Mr. Dubay. Isn't the decision to have a child just as essential to his concept of the meaning of his existence, of the universe and of the "mystery of human life." Why is it any less oppressive of his "personhood" for the state to compel him to become a father?

You can't say that he is just being asked to accept the consequences of his choice to have sex. That a pregnancy has predictably resulted from voluntary intercourse does not, in the Court's view, justify restrictions on the abortion right. As the Center points out:

More than three decades ago Roe vs. Wade gave women control of their reproductive lives but nothing in the law changed for men. Women can now have sexual intimacy without sacrificing reproductive choice. Women now have the freedom and security to enjoy lovemaking without the fear of forced procreation. Women now have control of their lives after an unplanned conception. But men are routinely forced to give up control, forced to be financially responsible for choices only women are permitted to make, forced to relinquish reproductive choice as the price of intimacy.

In fairness, the joint opinion in Casey went on to allude to the physical suffering of pregnancy, but it's hard to see how this could be a sufficient distinction. It is far from clear that being pregnant adds enough to the burden of responsibility for a child to justify imposing that burden on one party to the conception and not on the other. Pregnancy ends. Parenthood does not. Even for those unfortunate men who are able to ignore a child, Wisconsin law, to use an example, creates a presumption that child support for one child ought to consume 17% of one's gross income for 18 years. That'll sure wreak havoc on looking for the meaning of your existence.

Before you rush in to say that I am a man and cannot know what it is like to be pregnant, the privacy right in Roe is not about avoiding physical discomfort and pain. The state can draft its citizens and send them to near certain death or disfigurement in combat without violating this "right." It can, by the use of force, deny drugs to addicted persons and, thereby, compel them to experience the excruciating pain of withdrawal. It can deny medicinal marijuana to cancer patients, forcing them to endure the awful side effects of chemotherapy.

If you like Roe, you've almost got to like this case as well.

I know Dubay won't win and I don't think he should. But that's because I think Roe and its progeny are bad law.

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