October 27, 2011

"Why Don't More Law Schools Teach Reproductive Rights Classes?"

Asks Alexandra Harwin over at Slate's XXfactor. What a phony issue!

The subject is taught as part of Constitutional Law, which virtually every law student takes. In the Constitutional Law casebooks I've seen, it's the main subtopic under the Due Process Clause. Yes, a lawprof might decide to offer an upper-level seminar concentrating on reproductive rights, but the absence of a course like that scarcely means students walk away from law school without studying the key cases on birth control and abortion.

It would make more sense to complain about how much time is spent in Constitutional Law trying to comb through the multiple discordant opinions in these cases, considering the limited usefulness of the enlightenment to be derived.

132 comments:

campy said...

IOW, "why don't law schools do even more leftist indoctrination?"

Methadras said...

Why would you teach about reproductive rights (a stupid cannard to begin with) based on a bad law to begin with, that being Roe v. Wade.

Scott M said...

I've always wondered, from a legal standpoint, why reproductive consideration is not given to the man. Why is he not given the same choice, to the greatest degree possible, that the woman is given?

IE, a woman can legally decide whether or not to attempt to bring the pregnancy to term. The man has no say. Now, it would be ridiculous and nigh impossible to formate law that would somehow allow a woman to force a woman to have a baby (even if they're married)...remember that's one of HER choices. BUT, why can't a man decide that he doesn't want to have a baby? That's her other choice, isn't it?

Allow men to have the same reproductive rights, to the greatest degree possible. Allow a man to, when presented with a woman desiring to bring the pregnancy to term, sign an affidavit or something that would be the equivalent of a legal abortion. He doesn't want to be a father. Allow him the same out the woman has.

Don't give me arguments about abortion being a traumatic experience. There's nothing more traumatic to a man that being forced to raise a child he didn't want. We're talking the rest of someone's life here up against an outpatient procedure.

Don't give me unintended consequences and irresponsible men running amok. We have plenty of those on the female side of the equation.

Maybe, just maybe, if women know a man can simply have the same reproductive choice, ie, saying no to a pregnancy, they won't lie down with every idiot they know and we'll start to get a handle on some real issues.

lyssalovelyredhead said...

Why don't law schools waste even more of students' time and money teaching subjects that will never come up in the careers of 99 percent of lawyers, while glossing over things like wills, contract drafting, legal writing, and civil procedure?

Ann Althouse said...

"BUT, why can't a man decide that he doesn't want to have a baby?"

We all have a choice about what we do with our bodies. The pregnancy is going on inside the woman's body. The man's body became uninvolved when the sperm were released from the enclosure of the man's body. So just as the woman has no right to kill a baby that has made its way out of her "birth canal." The man loses his body-related right over reproduction when the sperm depart from the location.

In short, you have the right to keep your sperm to yourself. Don't give them to women. You can't get them back, just as the woman can't put a born baby back inside her body.

Ann Althouse said...

"Why don't law schools waste even more of students' time and money teaching subjects that will never come up in the careers of 99 percent of lawyers, while glossing over things like wills, contract drafting, legal writing, and civil procedure?"

It's taught as part of understanding how the Constitution operates in relation to other law, so you should be learning much more general lessons.

The problem with studying abortion (and affirmative action in the study of the Equal Protection Clause) is that the cases feel abnormal and strained.

MayBee said...

Would the rights surrounding paying child support be part of the curriculum?

(I see Scott M is thinking along the same lines)

lyssalovelyredhead said...

AA said: In short, you have the right to keep your sperm to yourself. Don't give them to women. You can't get them back, just as the woman can't put a born baby back inside her body.

Women also have the right to keep their eggs to themselves, and not give them to a baby. But, the current law says that she can "take it back"- even though it means killing the kid in the process - if she's not feeling up to being a mom.

Your logic assumes that men have the right to say no to activity that creates children, but women are either helpless and unable to take such responsibility or too dumb to understand how babies are made.

MayBee said...

The man loses his body-related right over reproduction when the sperm depart from the location.

But she has given consent to accept his sperm, knowing her body will decide what to do with them.

Surfed said...

"In short, you have the right to keep your sperm to yourself. Don't give them to women."

Or (as was explained to me by an ex-porn star) "Pull out. It looks better on them than in them".

MayBee said...

A woman also keeps the non-body related right to demand child support from a man if she wants to keep the baby, or to not name the father and give it up for adoption if she does not want to keep the baby.

Anneliese Dickman said...

I took Reproduction and the Law when I was in law school. There's much more to the topic than abortion. There's also surrogacy, egg and sperm donation, issues of ownership of frozen embryos, stem cell research, etc. It was a great class.

Scott M said...

Your logic assumes that men have the right to say no to activity that creates children, but women are either helpless and unable to take such responsibility or too dumb to understand how babies are made.

Lyssa beat me to it. It's all well and good to discuss biology here, but it neglects the real issue...parental responsibility and financial support.

Saint Croix said...

Why is he not given the same choice, to the greatest degree possible, that the woman is given?

Because feminism is not about equality. It's about empowering women.

Thus a man can have his fatherhood stripped from him against his will. Or be made a father against his will. The Supreme Court has specifically ruled on this.

On the positive side, at least the Supreme Court hasn't defined you as a commodity owned by a woman, which is what they did to the baby.

sean said...

There is a large cadre of liberals for whom morality, politics and law revolves solely around the issue of abortion. Examples abound if you are conscious of the phenomenon. For example, Ackerman's Social Justice is very careful to note that fetuses can't talk, so his methodology ensures that abortion is legal. Or when the NYT runs an article about our church--an evangelical church in New York--pretty much the only question the reporter can think about is what the pastor thinks about abortion.

Saint Croix said...

So just as the woman has no right to kill a baby that has made its way out of her "birth canal." The man loses his body-related right over reproduction when the sperm depart from the location.

Gee, I wonder if anybody will object to a "right to kill a baby"?

Rhetorical tips for Althouse:

1) never say "baby"
2) never say "kill"

J said...

most law students probably aren't capable or interested in the A. issue. They're interested in like contract/no contract, guilty or not guilty, and make shekels quickly with probate scams, etc.

Actually, when the man and woman are married, the bio-dad issue inn regard to A. may be an issue (and cases involving that, right). Unmarried, fem.'s call (tho' one might say...fathership might--or should-- be an issue---)

Scott M said...

Ackerman's Social Justice is very careful to note that fetuses can't talk, so his methodology ensures that abortion is legal.

What does Ackerman's Social Justice say about that death, dumb, and blind pinball wizard? I suppose we can off him after the second tilt, right?

Saint Croix said...

One might also distinguish between the ideology ("right to autonomy" etc.) and the messy reality of killing a baby inside the womb. For instance, a D&E abortion can result in all sorts of health hazards to women, including retained fetal tissue. Or you can scar the uterus, making future miscarriages more likely. Thus the abortion industry came up with partial-birth abortion, to kill the baby outside the womb, because the D&E abortion is so dangerous inside the womb.

Partial-birth abortion: half murder prosecution, half constitutional right.

J said...

Entrusting this difficult issue to Vox Populi--another error on the part of A-house.

janetrae said...

lyssalovelyredhead -- Ann isn't saying that at all. Your statement does not logically follow from anything she wrote. Since the law does give the woman the right to decide what to do with what is going on in her body, your remarks make no sense.

In short -- huh?

Roger J. said...

I fear, Professor, you have dumbed down the issue to a biological question. If thats your position, fine, but ScottM and Lyssa have suggested, quite rightly, that parenthood is about the consequences of biological issue.

There is a larger question that you have evaded.

Smilin' Jack said...

"Why Don't More Law Schools Teach Reproductive Rights Classes?"

The subject is taught as part of Constitutional Law....


That surprises me. I would feel ashamed of my ignorance, except that I'm pretty sure it would also surprise the people who actually wrote the Constitution.

Quaestor said...

Ann wrote:
The man's body became uninvolved when the sperm were released from the enclosure of the man's body. So just as the woman has no right to kill a baby that has made its way out of her "birth canal."

This is a modern and very arbitrary distinction. In many cultures we otherwise hold up as examples the practice of infanticide was, if not common, was it least deemed the innate right of the parent (usually the paterfamilias rather than the mother) to dispose of unwanted or sickly offspring in the greater interest of family and/or society.

The idea that existing birth canal confers personhood with the protection of law is really absurd, yet it is foundational to what are euphemistically named reproductive rights in this country. It's nothing less than magical thinking. Thankfully, magical thinking has limited shelf-life.

A one-minute old baby that is out in the light and breathing is no more and no less viable than a near-term fetus that is only moments away from the magic vaginal passage, yet until Pub.L. 108-105 there was no constitution barrier to the lawful slaughter of the fetus right up to the point where its legs are the only parts of its body not yet presented.

Roe v. Wade no longer sustains the magic birth canal notion. Consequently I think your argument against symmetrical reproductive rights for men is fatally weak.

Peano said...

We all have a choice about what we do with our bodies. The pregnancy is going on inside the woman's body.

Need to reserve a lecture or two on "begging the question."

sean said...

"What does Ackerman's Social Justice say about that death, dumb, and blind pinball wizard?"

I don't believe Ackerman addresses, say, profoundly retarded people who can't talk. (They wouldn't, under his theory, have any rights.) But it's pretty clear to the discerning reader that he felt, based on the concerns of his colleagues, that any political philosophy that doesn't unequivocally condone abortion, in the first chapter, isn't worthy of consideration.

Roger J. said...

I fully subscribe to Questor's comment. And agree also that your argument is trivial.

Roger J. said...

the professors argument apparently based on the biology of sex is interested--and as lawyers often do create hypotheticals let me propose one.

Man and women bound in a legal husband wife relationship. Wife wants a child, man doesnt. Man masturbates or pulls out prior to copulation and spills his seed. Can the woman in the relationship demand the partner's seed with all the responsilities that come from parenthood?

dont know of course. but it seems to me to be a least an interesting thesis.

Peano said...

We all have a choice about what we do with our bodies.

The question, of course, is whether that little body living inside the womb is the mother's to dispose of as she pleases.

In previous threads, you've dogmatically insisted that suicide -- i.e., killing one's own body -- is "self-murder." If we accept that, then killing another human body currently residing inside your body is ... well ... I can see why you wouldn't want to go there.

Saint Croix said...

A one-minute old baby that is out in the light and breathing is no more and no less viable than a near-term fetus that is only moments away from the magic vaginal passage, yet until Pub.L. 108-105 there was no constitution barrier to the lawful slaughter of the fetus right up to the point where its legs are the only parts of its body not yet presented.

If the viability doctrine was applied outside the context of abortions, doctors would go through the hospitals and kill anybody they deemed was a bad risk of surviving.

The unborn distinction is designed to keep the Supreme Court from applying its viability rules to the rest of us. A baby in the womb is dehumanized. That's the point.

In many cultures we otherwise hold up as examples the practice of infanticide was, if not common, was it least deemed the innate right of the parent (usually the paterfamilias rather than the mother) to dispose of unwanted or sickly offspring in the greater interest of family and/or society.

Jews and Christians believe in this thing called equal protection, even for the weak and vulnerable in our society. Yes, the pagans killed babies. We are not pagans.

Roger J. said...

re Peano's comment--once a fetus is creaed, seems to me that both parents have an interest in the biological process, It is only biology that places the fetus in the female of the species; but the male, by virtue of the biology of reproduction, surrenders all rights?

seems that the good professors position is yes.

Quaestor said...

janetrae wrote:
Since the law does give the woman the right to decide what to do with what is going on in her body, your remarks make no sense.

Since the fetus develops within the body of the mammalian female and yet is not "of" that same body, being a genetically distinct individual, and that abortion involves more than the woman's body your capsule summary of the law is incomplete.

As a practical matter abortion exists for one thing, and one thing only -- the freedom to engage in recreational sex without the burdensome consequence of childbirth and child-rearing, all boilerplate arguments about rape, incest, health of the mother not withstanding. Historically the onus of childbirth and child-rearing have fallen disproportionately on the mother, however there are legal remedies which coupled with today's almost foolproof paternity testing can provide at least a partial remedy.

As the law stand now a woman can arbitrarily decide to bring a pregnancy to term and still hold the biological father responsible for the upkeep of the child to whatever degree a court mandates, yet the same laws makes the wishes of that father irrelevant. If the law is to be fair and reasonably equitable then a prospective father who is not wedded to the expectant mother ought to be able to separate himself from all responsibility for a pregnancy if he offers to pay for a legal medical abortion and provides reasonable redress for any loss of income the mother might incur from the time of conception up to the recovery from the procedure.

Quaestor said...

Correction:
"The idea that existing birth canal confers personhood with the protection of law is really absurd..."

Ought to read: "The idea that exiting birth canal confers personhood with the protection of law is really absurd"

Damned spellcheck

Roger J. wrote:
I fully subscribe to Questor's comment. And agree also that your argument is trivial.

Whose argument do you hold trivial, Roger J? Mine or Ann's If mine please elaborate, I hate to be trivial.

Roger J. said...

Questor--apologies for my imprecision--your argument is on target, and the professor's is trivial

hope that clears it up

Quaestor said...

I do agree with Ann at least to the extent that reproductive rights can never be fully symmetrical for men, since a man cannot force a woman to bring a pregnancy to term short of putting her into a state of servitude for at least the duration of the pregnancy.

MayBee said...

I do agree with Ann at least to the extent that reproductive rights can never be fully symmetrical for men, since a man cannot force a woman to bring a pregnancy to term short of putting her into a state of servitude for at least the duration of the pregnancy.

I agree with this.
I disagree with trying to argue there is some biological event that creates "symmetry" even though the "symmetry" happens at different points and carries different weights.
Much more honest to say the law has decided to favor the woman than to pretend the man made some choice at the point of intercourse but the woman did not.

Canuck said...

"BUT, why can't a man decide that he doesn't want to have a baby? That's her other choice, isn't it?"

It depends how the US Supreme Court defines liberty under the 5th and 14th Amendment in the US constitution. (Due process clause.) And maybe the 4th Amendment "The right of the people to be secure in their persons...against unreasonable searches and seizures..."

If a woman doesn't have the constitutional right to prevent that sort of medical action on her body, then a state could make that right. (Providing the state constitution also defines liberty in a way that does not allow a woman the right to prevent that medical action.)

So theoretically if the constitutional right to liberty was defined down, it could be argued that a pregnant woman could potentially be subject to restraint and a forcible medical procedure on the wishes of her partner/spouse/one-night-stand?

People were forcibly sterilized in the U.S. for eugenic reasons. They were forcibly required to undergo a medical procedure and lost their reproductive rights.

That's usually where reproductive rights starts in a U.S. constitutional course, not at Roe v. Wade.

Alex Ignatiev said...

Now, I've seen a lot of stupid shit on Slate regarding constitutional law, particularly out of Dahlia Lithwick's mouth, but this is hands down an order of magnitude Lithwicker than anything Dahlia's ever produced.

Scott M said...

I do agree with Ann at least to the extent that reproductive rights can never be fully symmetrical for men, since a man cannot force a woman to bring a pregnancy to term short of putting her into a state of servitude for at least the duration of the pregnancy.

To suggest otherwise would be ridiculous. There are certain absolutes in life and the fact that women are the gestation sex is one of them. This doesn't mean that we cannot strive to make the rest of it as equal as possible.

Much more honest to say the law has decided to favor the woman than to pretend the man made some choice at the point of intercourse but the woman did not.

The law, as it currently is handled, goes further and says "fuck you" to the man at just about every step. It goes straight from the will of the woman (kill or birth) to the state's interest in the welfare of the child.

Contemporary family law cares not a whip what the man thinks or how it effects his life.

Saint Croix said...

If the law is to be fair and reasonably equitable then a prospective father who is not wedded to the expectant mother ought to be able to separate himself from all responsibility for a pregnancy if he offers to pay for a legal medical abortion and provides reasonable redress for any loss of income the mother might incur from the time of conception up to the recovery from the procedure.

Yeah, let's reduce it all to money.

Scott M said...

Yeah, let's reduce it all to money.

The argument for a legal "male abortion" rests solely against the way abortion law is currently practiced. It is not a moral judgement on abortion itself.

Quaestor said...

Roger J. wrote:
Can the woman in the relationship demand the partner's seed with all the responsibilities that come from parenthood?

Historically this is one of the few grounds for divorce granted by the medieval Church. In some cases the wife could demand an impartial witness to be present in the conjugal bedchamber to certify that the husband did his duty without prejudice. If the church found the husband maliciously negligent then he could be compelled to return the dowry and provide a new candidate husband of equal standing to himself for his wife's rejection or acceptance. It seems that the Church saw practical limits to a "demand for seed" remedy.

Canuck said...

Biology isn't equal and the Constitution can't make labor and reproduction equal.

It's definitely the short end of the straw if you have to go through labor. But the constitution can't make that more equal.

However, this is what the Constitution does say in the fifth Amendment: "No person shall be...deprived of life, liberty, or property, without due process of law..."

So- can a man force a woman to have an abortion?

Clearly he can't tie her down and allow a doctor to operate on her without going to a court.

Can a court force a woman to undergo an abortion? Not if you think this is an unconstitutional violation of her liberty.

That's the question, in the end: What is liberty? What sort of liberties does the U.S. Constitution protect?

Alex Ignatiev said...

And, having done cursory Google-stalkery on the author, we learn why she wrote such a steaming pile of crap:

http://www.feldesmantucker.com/professionals/alexandra-harwin

Once she spends a few weeks in actual litigation, she will very quickly learn the answer to her question: because reproductive rights law is based on a wholly cretinous and specious line of legal reasoning that has zero application in anything but a public policy setting.

The public policy issues surrounding reproductive rights are wholly divorced from the legal issues surrounding those rights, producing the most results-oriented jurisprudence on the face of the planet. Justice Scalia has it right every time he gives his standard speech: an undue burden on the right to an abortion is whatever a majority of the Supreme Court thinks it is.

I just wrapped up teaching this at the end of my undergrad con law class. Even my pro-life students find it hard to believe how weak the underpinnings of Roe v. Wade are.

Canuck said...

The question of child support is a very different question then the question of "can a man force a woman to undergo an abortion?"


Restraining a woman and performing a medical procedure is really different from asking what the state requires in terms of money.

The child support question is really about State v. Men. States don't want to support kids, so they require men to pay.

Men should never have sex with pro-life women if they aren't ok with her having the child if she gets pregnant. It's not fair to ask her to commit what she believes to be murder.

Scott M said...

Even my pro-life students find it hard to believe how weak the underpinnings of Roe v. Wade are.

That statement would seem to make more sense in context if it were your pro-choice students.

Quaestor said...

Canuck wrote:
[C]an a man force a woman to have an abortion?

Can a court force a woman to undergo an abortion?


Both of these questions, and a whole lot of very problematic law can be made moot if the fetus had some degree of personhood and consequent protection from the outset.

If asked asked "Quaestor, are your pro-life or pro-choice?" I reply neither, I'm anti-choice. I'll elaborate if someone asks.

MayBee said...

What about consent?

There is a current doctrine that says: If a woman does not affirmatively give consent to having sex, the man can be considered guilty of rape.

What if a man does not, prior to having sex, affirmatively give consent for the woman to use his sperm to make a baby? Or, what if before having sex, he says that he will not be responsible for any child she has a result?

Would the court support him?

Scott M said...

I'm anti-choice. I'll elaborate if someone asks.

If the unborn is granted personhood status (IMHO it should be) no choice is necessary. Choice is removed from the equation. "It's a life, not a choice" and other such bumper fodder.

Alex Ignatiev said...

ScottM-

I teach at a small-town Baptist university. I've got a few students who may be pro-life agnostic, but I've never had a pro-choice student who's out.

But most of my students only know that Roe v. Wade is wrong, not badly reasoned and poorly written. They literally come away shocked that a majority of educated adults could believe that it's an appropriate exercise of the judicial office.

raf said...

But adding to the population (or failing to do so) clearly affects interstate commerce, so Congress (or some designated executive agency) should be able to do anything they want, this being an enumerated power and all.

Right?

Hah! WV: perso. Almost made it to person, but cut off just before.

Roger J. said...

Well Questor, since you demurred initially, I'll ask: please share your views :)

Roger J. said...
This comment has been removed by the author.
Canuck said...

"What if a man does not, prior to having sex, affirmatively give consent for the woman to use his sperm to make a baby? Or, what if before having sex, he says that he will not be responsible for any child she has a result?

Would the court support him?"

No, because it is not in the state's interest to support him. States garnish men's wages to repay money taken out of public funds for the kid if a mother is on welfare.

The state has an interest in making sure the kid doesn't become a drain on the state.

This is what men would need to do: make an argument that his constitutional right to liberty and/or property and/or right to choose a family is being violated.

Quaestor said...

What if a man does not, prior to having sex, affirmatively give consent for the woman to use his sperm to make a baby?

I think the wording here is problematic. A woman can decide to terminate a pregnancy, but she cannot under typical circumstances decide to use the ejaculate from a particular coupling to become pregnant. That's more or less outside the realm of volitional acts. However, given the long history of these things if a man and woman were to enter into a duly rigorous contract that stipulated those terms, then I cannot foresee a court finding grounds to hold that contract void. This is after all not unlike the contract between a sperm donor and the woman who uses that sperm to gain a baby.

J said...

Queerstor's usual superficial pseudo-analysis. Unplanned pregnancies (ie failed BC pill, condom, etc)--especially on the part of poor females--may be a reason for first trimester abortions (and often are). It's the bio-mother's property, so to speak--and dependent on her. A female facing financial difficulties, unmarried, would have grounds for aborting--really, her life would be worse were she not to abort (and the potential-person-might be facing poverty as well). Perhaps A. should be counted..as like misdemeanor but still legal. OR should she, per Imam Queesstor just be forced to carry the child to term because she dared to open her legs (and assuming the contraception failed)? Look at say...the slums of Sao Paulo for the success rate of that sort of natural social planning.

Roger J. said...

J: every now and then when you drop your schtick, you make some good points--and in the current discussion you, rightly, discuss pregnancy from the woman's point of view--especially as refers to the issue of "dirt bag" father and women. I have absoluely no problem with your view in that case.

On the other side of the issue is the case where the sperm donor, may in fact want the child, but the mother does not--In your calculus am I to assume the sperm donor has no rights?

ndspinelli said...

Why don't more law schools teach basic social skills?

TCN said...

Well, gosh, why not study how and why it became legal to murder children? Seems to me that if they did that, more folks would realize what a joke Roe v. Wade is, particularly the "penumbra" part. And also, why murder is murder, no matter the size of the person.

Somebody please define for me what "rights" are when reproduction is the topic. I have a right to my biology? How about the biological "rights" of the baby?

It's all quite absurd.

J said...

GeezRoj thx, dreck.
Unwed fathers do not really have a say in the matter--the opinions of the A-house hardware store probably won't change that.

Anyway abortion might be a good thing at times. Why think..if Fen's mama had decided to..terminate the baby Fen in utero as they say-- suck the mierda right out--the world would have been rather improved. Krimefighter, as they call mamas who abort in Elllay.

MayBee said...

That's more or less outside the realm of volitional acts. However, given the long history of these things if a man and woman were to enter into a duly rigorous contract that stipulated those terms, then I cannot foresee a court finding grounds to hold that contract void.

Ok, but I'm trying to compare it to the woman being able, after the fact, to claim rape because she did not (or doesn't remember) giving affirmative permission to the man to have sex with her.

What if I changed the wording to say.. "the man doesn't give affirmative consent to support any baby the woman decides to have as a result of this sex act"?

I'm being too abstract, maybe.

Seven Machos said...

How many times is reproductive law likely to come up in the average lawyer's career?

Roger J. said...

J: damn son, can you drop the schtick long enough to have a conversation? At any rate, I agree entirely with you. In some cases abortion is totally appropriate for both personal and societal benefits.

Have a nice day, J. your's

rogerj dreck, wiccan masonic lds trash and probably a yid. :)

MayBee said...

Canuk:
No, because it is not in the state's interest to support him. States garnish men's wages to repay money taken out of public funds for the kid if a mother is on welfare.

The state has an interest in making sure the kid doesn't become a drain on the state.


Yes, that's the truth.

traditionalguy said...

Possession is 9/10s of the law. The unborn remain property. That is the secular law.

The religious teachers say killing the unborn is an accursed sin against the weak and the helpless.

But the Government is not a religion. Therefore women and men who do abortions to a baby have to deal with God, but not the police department.

Fortunately God is merciful and understands our hearts enough to make repentance, full forgiveness and braking curses available in Jesus, unlike Pharisee Santorum.

Quaestor said...

If the unborn is granted personhood status...

The key point is a degree of personhood.

I think we can all agree that egg and sperm are not persons, that a human being isn't killed when an ovum is flushed away with the menses, nor do million die during a futile male ejaculation. Sperms aren't sacred, nor are eggs. We can all agree as well that the toddler happily babbling in his stroller or playpen is a fully a person with all the protections (though few of the options) of citizenship, and he has had those protections since parturition (i.e. birth). Clearly then at some point the legally and morally insignificant egg and sperm acquire personhood sometime between conception and birth, the question is when does this happen. Suddenly, when the feet exit the vagina? Or gradually in stages during the nine months of pregnancy?

As the law stands now in most states the fetus is absolutely without rights from conception to the end of the second trimester, after which it acquires a degree of protection without rights, much like certain wildlife and domestic animals enjoy protection without rights. So the human fetus goes from being essentially vermin, kill-able at the whim of the woman, to somewhat less kill-able, to a full human being without a stop at potential person anywhere before the magic vagina trip. As the law stands now a woman has absolute sway over her child during pregnancy which she doesn't have any time after. Her decision to either kill or give birth is totally autonomous. This I hold to be both illogical and inhumane.

To my way of thinking a woman's desire to choose abortion ought to be necessary but insufficient to legally terminate a pregnancy. There ought to be some advocacy for the potential person which must be consulted before the fetus is killed. That is to say there ought to be kind of abortion magistracy which issues licences or permits before an abortion can be performed, just to make sure that the potential person's (admittedly reduced) right to life is respected. The later in the pregnancy the more weight the potential heron's rights bear.

Quaestor said...

Ok, but I'm trying to compare it to the woman being able, after the fact, to claim rape because she did not (or doesn't remember) giving affirmative permission to the man to have sex with her.

The kind of draconian non-consensual sex equals rape law as illustrated by this example to my knowledge doesn't exist outside of certain university behavior codes, so maybe it's a moot point, or maybe I've lost the thread of your argument. Can you re-iterate?

Peter said...

I had this image of a classroom, some light sources, and a demonstration of the difference between an umbra and a penumbra. But I still don't know how they'd demonstrate enamations.

In any case, if society truly had an interest in financial support from fathers then it would outlaw sperm banks.

But, it doesn't. Which makes me suspect there's more to this then a wish to make fathers support their children.

Further, biology is not always a trump card, as a man can become a "putative father" (and financially responsible) in some cases even if he can prove he could not possibly be the biological father.

MayBee said...

The kind of draconian non-consensual sex equals rape law as illustrated by this example to my knowledge doesn't exist outside of certain university behavior codes, so maybe it's a moot point, or maybe I've lost the thread of your argument. Can you re-iterate?

No, because I'm struggling.
I'm really just trying to take the thinking behind that kind of behavior code (usually pushed by women) and give men equal consideration. Applying "that's not what I wanted to happen!" to both genders.
It's not working for me, though.

J said...
This comment has been removed by the author.
J said...

be kind of abortion magistracy

With like Baron von Queestor, Magistrate of the A-house hardware store, presidin'.

You really don't know fuck about the issue , or human life ,little man, like the rest of yokels here.

Foobarista said...

Quaestor, the irony is that much of the Left insists that everything else is political and consequential, right down to the car you drive and the toilet paper you use, but sex must not have consequences.

Quaestor said...

In some cases abortion is totally appropriate for both personal and societal benefits.

I disagree.

Society may gain some benefit from some abortions, but this benefit cannot be realized unless the mother chooses to abort. Society cannot compel any woman to abort for any reason, unless you want to reinstate eugenics as a public policy. I'm not at all opposed to some small degree of eugenic abortions, btw, but as the law stands the societal benefits of abortion are accidental, and are at least to an unknowable degree cancelled out by abortions which do positive harm to society.

J mentioned in his own thuggish way that some abortions amount to crime control. This I condemn this utterly. Firstly it manifests an abysmal depth of racism on J's part (which sadly isn't surprising) and secondly it implies knowledge of the unknowable, specifically the ultimate fate of anyone and whether any given fetus if allowed to live will be either a drain on society or a benefactor. If future idiots and criminals get aborted, so do future Mozarts and philanthropists. We can't know which fetus will become what. Genes and nurture aren't destiny. Highly intelligent parents sometimes sire sociopaths and sometimes a mother of average intelligence gives birth to a genius.

Roger J. said...

I have to drop off the thread, but IMO, this has been a well reasoned, and well argued thread about a hot button issue. I appreciate the comments from all commenters. thanks to all. Cheers

Quaestor said...

Correction:
The later in the pregnancy the more weight the potential heron's rights bear.

The later in the pregnancy the more weight the potential person's rights bear.

Sometimes spellcheck has a perverse sense of humor.

Roger J. said...

Well--except for J's last screed which I failed to see.

Quaestor said...

J wrote:
You really don't know fuck about the issue , or human life ,little man, like the rest of yokels here.

If there is one true in this world its that J's ill-opinion of my comments is a guarantee that I'm not totally off-base.

J said...

knowledge of the unknowable, specifically the ultimate fate of anyone and whether any given fetus if allowed to live will be either a drain on society or a benefactor.

Alas, you can spew pseudo-legalist rhetoric, but you can't read. I said that would be ONE of a poor mother's concerns--assuming she is unwed, or living in poverty, and happens to have an unplanned/unwanted pregnancy ..she might be counseled to abort. Perhaps ..unseemly but hardly worse than an unloved/unwanted child living in poverty. Demanding that any pregnant female be forced to give birth--that's racism. I will grant Q's obvious point that ..something like a right develops. The fetus at 1 month is not the one at 5 months. At any rate first trimester A. should be legal. Later term is more problematic but in case of health emergencies should be allowed. It's only zealots such as Q-ster who think otherwise.

Saint Croix said...

The unborn remain property. That is the secular law.

I think you mean slavery law. Normally defining human beings as property gives some people pause.

J said...

One true?

You can barely write either, Q-ster.

Maybe just quote yr preacher on A. like you want to Q.

You also overlook health issues/deformities--as with Palin's retarded son Trig. Should have..A'd. Some might argue she had an obligation to.

Quaestor said...

J wrote:
I said that would be ONE of a poor mother's concerns--assuming she is unwed, or living in poverty, and happens to have an unplanned/unwanted pregnancy ... {etc.}

No, that's what you wish you said now that you've been called...

This is what you said:
Krimefighter, as they call mamas who abort in Elllay

Quaestor said...

J wrote:
One true?
You can barely write either, Q-ster.


J is reduced to fretting about my proofreading.

By common web convention I win by default.

J said...

No, you lose by default--for selective picking of quotes as well. I mentioned various concerns of a poor, unwed preg. mother. Of course a moralist zealot such as Q. never lowers himself to considering consequences.

Canuck said...

"Further, biology is not always a trump card, as a man can become a "putative father" (and financially responsible) in some cases even if he can prove he could not possibly be the biological father."

I agree -- there's another side to this -- the definition of fatherhood.

Infertile couples use sperm banks. The state doesn't care if a husband is infertile as long as he can financially take care of the child. In these case the sperm donor has legally signed away his rights.

But husbands have rights over the children to which their wives give birth within the marriage. That child is presumed to be his child. Many times this is seen as punitive to the father, and it can be if he is tricked.

But it's also a right. Somebody mentioned sperm donors not having rights -- and that's true in more ways then one.

A one-night-stand has no control over a child of which he may be the biological father. Her husband can sign the birth certificate, even if he is well aware that he cannot father children.

That child is assumed to be the child of the husband, and it would be very difficult, if not impossible, for the one night stand to gain any rights over his biological child. It would not matter how much he might long for a child -- the husband has right he will never have unless the couple willingly grants him rights.

It's not his child in the eyes of the law -- even if he happened to be the one-night-stand "sperm donor."

A lover/one-night stand/ fling -- is in a very weak position legally. By having intercourse he has, in the eyes of the court, agreed to support the child. The woman can go to court of a biological test, and the court will support her as the court wants all children to be supported to they are not a drain on the state.

But he has no rights over a potential child if the woman is married. The court has no interest in interrupting this relationship because the child is supported by the husband.

Ann Althouse said...

"I took Reproduction and the Law when I was in law school. There's much more to the topic than abortion. There's also surrogacy, egg and sperm donation, issues of ownership of frozen embryos, stem cell research, etc. It was a great class."

That is true, and my law school has such a course. That's quite a specialized course though and some of those topics will be in a Family Law corse (I think).

Ann Althouse said...

But the linked article specifies reproductive *rights*, and you're talking about a broader subject taking in contracts and family law as opposed to just the constitutional rights.

Big Mike said...

So just as the woman has no right to kill a baby that has made its way out of her "birth canal."

Whoa, Professor! That man in the White House you voted for believes that women have every right to kill a baby that has made its way out of her birth canal provided that the baby was accidentally born during a botched abortion.

Ann Althouse said...

I was not attempting to deal with the question whether the woman should be seen as having a right to kill the unborn child, only to explain the basis for the distinction between the mother and the father. If there are rights that are premised on the individual's dominion over his or her physical body, the presence of the fetus inside the woman's body at the point of abortion makes all the difference. I'm only purporting to explain why the man has no corresponding right.

I've talked about the woman's right elsewhere, so don't act like I'm ignoring it. I was focused on answering a particular question that was asked.

gutless said...

It should be covered in a class on the abuse of judicial power.

Gahrie said...

In short, you have the right to keep your sperm to yourself.

Not always.

http://gahrie.blogspot.com/2006/03/roe-v-wade-for-men.html

gutless said...

Regarding the man's authority in the abortion decision , in that he provided half the genetic material he should have the right to have his half aborted. Shouldn't be a problem since the fetus is not a person. Slicks that up, huh?

MayBee said...

If there are rights that are premised on the individual's dominion over his or her physical body, the presence of the fetus inside the woman's body at the point of abortion makes all the difference. I'm only purporting to explain why the man has no corresponding right.

I've talked about the woman's right elsewhere, so don't act like I'm ignoring it. I was focused on answering a particular question that was asked.


There's more to "having a baby" than physically giving birth. It also means becoming a parent beyond pregnancy.
As Scott M was asking- why can't a man have a legal right to not be a father?

The answer that he lost control of that when he gave his sperm doesn't answer that question. Giving sperm needn't mean you've the right to decide if you wish to become a parent any more than accepting sperm does.

We've decided to make the man more responsible for giving his sperm than the woman is for accepting it because it's better for the child and the state.

campy said...

Women have rights; men have responsibilities.

MayBee said...

Allow men to have the same reproductive rights, to the greatest degree possible. Allow a man to, when presented with a woman desiring to bring the pregnancy to term, sign an affidavit or something that would be the equivalent of a legal abortion. He doesn't want to be a father. Allow him the same out the woman has.

I should point to this from Scott M in his comment asking why men can't decide that he doesn't want to have a baby.

"He lost that right when he gave his sperm" doesn't answer why a man can't have a right to sign the baby away as a woman has a right to abort the baby.

There are reasons the legal system doesn't allow it, but it isn't due to body rights.

Canuck said...

"The answer that he lost control of that when he gave his sperm doesn't answer that question. Giving sperm needn't mean you've the right to decide if you wish to become a parent any more than accepting sperm does.

We've decided to make the man more responsible for giving his sperm than the woman is for accepting it because it's better for the child and the state."

yes - I think this sums it up.

I think the law sees intercourse as an implicit contract that the man has agreed to become a father.

Considering the roots of English common law and pregnancy rates in, say, early modern England, it made sense.

Now, not so much. But the state has no interest in changing things.

Quaestor said...

Gahrie wrote:
"not always"

Here is an abstract of the case you site

It doesn't appear to me to be quite such a loony-tunes a decision as implied.

Here's the take-away:
The court affirmed the child support obligations imposed upon the father, holding that the wrongful conduct of one of the parties in causing conception did not in any way alter the parental obligation to support the child.

I read this to mean that the child's welfare trumps the desire to remain a non-parent. Taken to its logical end this reasoning vacates Roe, does it not?

Rick said...

Law school "rights" courses generally are the equivalent of undergraduate "studies" courses.

Roadkill said...

The problem with a Reproductive Law course is that students would be forced to examine the inept effort at biology, tortured train of illogic, and patently unpersuasive argumentation that is at the core of the Roe v Wade opinion. Yet that such a pathetically poor peice of legal writing has survived as long as it has is probably worth some academic study to marvel at the incredible lightness of its being.

Paddy O said...

"The man loses his body-related right over reproduction when the sperm depart from the location."

Remind me never to park my car in a woman's garage. It becomes her car!

NotquiteunBuckley said...

Six-figure (size six is sexy no?) 1%er's should suffer their fate.

I feel no hate nor love as they both blamed themselves yet never took responsibility.

And I depend on them.

And you.

Crunchy Frog said...

Three generations of pinball wizards are enough.

Jose_K said...

http://www.youtube.com/watch?v=7tCkqWptDH0

lyssalovelyredhead said...

janetra: Ann isn't saying that at all. Your statement does not logically follow from anything she wrote. Since the law does give the woman the right to decide what to do with what is going on in her body, your remarks make no sense.

You're absolutely wrong. Read what AA wrote again. When Scott M objected to the issue that men don't have a congruent right to avoid parenthood after the fact, AA said: In short, you have the right to keep your sperm to yourself. Don't give them to women. You can't get them back, just as the woman can't put a born baby back inside her body.

In other words, if you don't want to be a parent, don't have sex. Women, however, are not held to the same responsibility, even though this means that a child will die as a result. Sickening, patronizing, insulting.

- Lyssa

Lem said...

The Cards are distracted.. not over the last game miscues?

Napoli up with men in scoring position.

Lem said...

Napoli comes through in the clutch.

Lem said...

Should Texas win tonight I got Napoli as series MVP.

Lem said...

Napoli is down.. he runs like a catcher ;)

Lem said...

Napoli is not coming out.. unless he needs a stretcher.

DaveW said...

Sickening, patronizing, insulting.

Yep.

Lem said...

There have been tree easy balls dropped by the Cards tonight..

Is it in the Cards for Texas?

Texas regains the lead as I typed.

Lem said...

Napoli gets the royal treatment.

Lem said...

The Texas pitcher is pitching very well. Good move leaving him in.

Michelle Dulak Thomson said...

The slogan a couple decades back was "Biology should not be destiny."

Well, we have fixed one part of that: It used to be that women, but mot men, might have to go through pregnancy and childbirth after having sex, and now it isn't. But think about the rest:

Women can have biological children without the long-term presence of a man; men cannot, except in exceptional circumstances, do the same without the long-term presence of a woman. A single woman who wants a child will ordinarily have no difficulty getting pregnant. A single man who wants a child will have to get into a long-term relationship with a woman, adopt, or contract with a surrogate mother (and the latter two routes -- no, all three -- are expensive and messy).

And then there's the financial bit. We've equalized the risk of bearing a child for men and women -- it's now effectively zero for both, if the woman doesn't want a child. But if she does, she can impose the cost of raising that child on the man, whether he wanted a child or not. They both chose to have sex, but she controls the consequences. She can abort (and he has no say); she can give birth (and he pays support through age 18). I should amend that: Apparently it's possible for the child of a divorced dad to demand and receive college tuition, though a child of parents still married cannot.

If the "Biology should not be destiny" folks were actually keen on equalizing male and female roles in childbearing and child-rearing, I might be interested. As it is, enh.

Lem said...

The only thing that occurs to me as to the poor quality of defensive play (5 errors averall in 6 innings) is the cold weather.

Lem said...

DP?

Renee said...

Men do have a lot of say, they just threaten the pregnant woman. If she wants to keep the pregnancy and he doesn't, the incidence of domestic violence rises. Or a family throws out their pregnant daughter or refuse to even assist in emotional support.

We're a prolife family. We support each other. Diapers or babysitting no questions asked to finish school or for a working parent knowing if they are running late a relative or two can be called to watch the children.

It's how we're suppose to treat pregnancy and children.

Michelle Dulak Thomson said...

"mot" is "not" in the above; sorry.

I forgot to add the case of the man who had oral sex (wearing a condom) with a woman; she fished the condom out of the trash, impregnated herself, and successfully sued him for child support. I don't see how a man who did something that could not conceivably (pun unintentional) get anyone pregnant should owe anything here; but as usual it was "in the best interests of the child."

wv: adifid. Surely some pharmaceutical company somewhere has used that.

Michelle Dulak Thomson said...

Renee,

Men do have a lot of say, they just threaten the pregnant woman. If she wants to keep the pregnancy and he doesn't, the incidence of domestic violence rises. Or a family throws out their pregnant daughter or refuse to even assist in emotional support.

But many pregnant women aren't living with the guys who got them pregnant. (Hell, a reasonable slice don't know the last names of the guys who got them pregnant.) And the families that throw out pregnant daughters are surely not all-male.

Lem said...

Beltre does it in the field and at the plate.. The thing about a homer.. one swing erases a multitude of errors.

Cruz follows back to back.

Fen said...

Althouse: The man's body became uninvolved when

Its his DNA too.

Fen said...

Althouse: In short, you have the right to keep your sperm to yourself. Don't give them to women.

You're saying that a man has a CHOICE to engage in intercourse, knowing that there's a risk of pregnancy.

He also knows that, should he choose to engage in intercourse, birth control is not 100% effective. Therefore he chooses to take on that risk, basically waiving his rights.

How come you don't apply the same standard to women?

Lem said...

No Walk Feliz

Lem said...

Oh boy.

Lem said...

Here we go again..

DP is in order

Lem said...

Nasty pitch

Texas one out away form winning the World Series.

Lem said...

Who the hell is playing the outfield?

He totally misplayed that.

Lem said...

Cruz fup.

Lem said...

That ball was catchable.

I'm out..

I have to go to work.

george said...

There is a certain unfairness at play here but I don't think there is any way around it. A man makes a decision in the heat of the moment and then whether he becomes a father is completely out of his hands. A woman makes exactly the same decision and then has plenty of time afterwards to consider things in the cold light of day after the passions have subsided. Does this not violate some left-wing principle of social justice? Not that I care but the left is all about the inequality don't cha know.

I am more interested in Althouse's sperm "departing the location" theory. (Are all lawyers so dry in their pillow talk? I can imagine each sperm departing a train station with a tiny bowler hat on his head and a newspaper tucked under his arm.) Is a man always responsible for where his sperm ends up once they leave his body? Is it not possible for them to be left somewhere harmless and for the woman to then intentionally place them where they can cause fertilization (presumably another train station or subway)?

Just because we can't get them back does that mean we are forever responsible for them? In this case the decision to risk procreation would fall entirely on one party it would seem to me and the "in the body" distinction would not hold. I could also imagine other cases where the man is raped or his sperm is forcibly extracted. At what point does a man's volition play into determining his legal status as a father as opposed to his biological status?

Abortion is a difficult issue because you have two parties coming together to make a third party which lives parasitically in one of the original parties. Not only that but the two original parties are not biologically equal and the entity being created is of yet another kind that will eventually grow to be like its creators. This situation is inherently one that requires a value judgment to be made and the law is uniquely ill equipped to parse out the best solution. Too many notions of life and liberty are too closely intertwined.

I think no matter what you decide you will end up with inconsistencies in the law. You would just think the legal profession could do a better job of papering over those issues than was done with Roe vs. Wade. Had they said that this is not a proper area for a court to rule I think they would have had the right of it as near as possible. This is a matter for the public and perhaps its representatives to decide if there ever was one.

edwardroyce said...

"It would make more sense to complain about how much time is spent in Constitutional Law trying to comb through the multiple discordant opinions in these cases, considering the limited usefulness of the enlightenment to be derived."

When you cannot rely on the actual wording of the Constitution and the possibility exists that some future Justice could act as irrationally as Sandra Day O'Connor did then any opinion, consenting, dissenting, oblivious, could prove one day to be the basis of judicial thought.

Hey it was only a few years ago that I thought racism was unconstitutional. Then Sandra Day O'Connor revealed that racism is A-OK as long as it is in favor of a favored race and to correct some perceived wrong.

edwardroyce said...

@ Ann

"So just as the woman has no right to kill a baby that has made its way out of her "birth canal.""

Excuse me but in fact she does. That may not be what the laws says, but that is in fact what the law does. And it is one that was promoted by Obama as a State Senator for Illinois.

The laws that govern the fate of infants that successfully survive an attempted abortion are born alive and yet allowed to die no matter how long it takes and how agonizing the death.

Don't you remember the outcry over that? You do remember voting for Obama so you must have been familiar with this issue. It was one of the very very few that Obama didn't vote "Present" on.

Indeed I believe he was the chairman of the committee.

G Joubert said...

A woman can decide to terminate a pregnancy, but she cannot under typical circumstances decide to use the ejaculate from a particular coupling to become pregnant. That's more or less outside the realm of volitional acts.

I don't believe that's true at all. Hypothetical: In the midst of intercourse the man decides he doesn't want to be a father, so he pulls out before ejaculation and squirts it onto the woman's tummy belly. She goes to the bathroom and uses a turkey baster to suck it up and insert it into her vagina, and thereby becomes pregnant. I say the law is the man will be obligated to pay, even if he can prove she did that.

However, given the long history of these things if a man and woman were to enter into a duly rigorous contract that stipulated those terms, then I cannot foresee a court finding grounds to hold that contract void.

In the two jurisdictions where I'm admitted to practice (Washington and Oregon) --and I'm going to assume everywhere in the US-- the father will be obligated to pay support, supposed contract notwithstanding. All the woman needs to do is say "king's X" to the contract, and go down to visit support enforcement, or put in for welfare, which does the same thing.

Men do have a lot of say, they just threaten the pregnant woman. If she wants to keep the pregnancy and he doesn't, the incidence of domestic violence rises.

A little known public health statistic: the number one cause of death of pregnant women in the US is murder by the father of their unborn child.