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In Planned Parenthood v. Danforth (1976), the Supreme Court made clear that a state could not require a father’s consent before allowing a woman to procure an abortion. And Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) struck down as unconstitutional a spousal notification provision, which required a married woman to sign a statement that she had notified her spouse before undergoing an abortion. Does this mean a man has no cognizable interest in the fate of his potential child? Should men be forced to have children against their will? What if they affirmatively want a fetus aborted? Don’t they have rights to procreational autonomy too? Adding insult to injury, men can get slapped with paternity suits (and jailed for failure to pay) even if they wore a condom and never consented to fatherhood. Although one might think that a man implicitly consents to letting his lover choose what happens with his sperm by engaging in consensual sexual relations, basic fairness demands there must be limitations to this logic, particularly given that women can engage in consensual sex without being required to complete any resulting pregnancy. Might men have a limited right to choose an “abortion” of parental rights and duties in some form? Might they even have a greater right to participate in the abortion decision than Danforth and Casey suggest? If we are serious about the right to choose, it might be more equitable to be more egalitarian about it. A February appeals court decision from Illinois started considering these issues. According to Dr. Richard Phillips, Dr. Sharon Irons performed (consensual) oral sex upon him, but then, unbeknownst to him, used his sperm to conceive a child. Reportedly, soon after she gave birth, Irons slapped Phillips with a paternity suit, in which he was required to pay $800 a month in child support. Thereafter, Phillips sued Irons, inter alia, for intentional infliction of emotional distress and theft in Cook County Circuit Court; that court dismissed his claims. The appeals court, however, allowed his case to go forward, saying that he may sue for emotional distress but not theft. The higher court found that Irons could not have stolen the sperm because when Phillips “delivered his sperm, it was a gift . . . There was no agreement that the original deposit would be returned upon request.” Nevertheless, it found that Phillips had a cognizable interest in not becoming a father against his will and gave the suit a green light. Although it didn’t directly raise the issue, the recent Illinois case puts in salient relief an understudied area of the abortion debate: what role men should have in the decision to prevent their genetic material from making its way into the world. NONGENDERED CHOICE We must start with the woman’s right to choose. A woman’s right to choose an abortion is a fully developed � if contested � constitutional and moral right. A woman’s right to choose an abortion is, most centrally, a right against the state: The state cannot tell a woman what to do with her body. It is also, of course, a right against the fetus: The woman’s right to choose is the right to terminate a pregnancy, particularly in the first trimester, above any right that might be asserted on behalf of the fetus. But the pro-choice position has another valence too, one that Danforth and Casey spell out most specifically: It is the woman’s right to terminate her pregnancy without regard for the desires or concerns of the man involved. The right was designed with a particular evil in view: that the state or a father would try to use coercive means to prevent a woman from seeking an abortion. That is the core of the right. Still, the right has come to mean more. The woman’s right to choose also seems to encompass her right to carry the fetus to term if she wants to, irrespective of the desire of the man or the state. Most people think this makes sense, and that this is a natural expression (if not a natural extension) of the woman’s right to choose an abortion. But it is worth pausing to notice that this extension creates thorny problems. Imagine the United States trying to adopt a family planning policy similar to the one in place in China, allowing families to have only two children. What is wrong with such a policy? It seems clear that the policy is offensive to our moral and constitutional sensibilities. But would our first line of defense against such a policy derive from the woman’s right to choose directly? I don’t think so. Nor would it be enough to talk about a woman’s right to bodily integrity, though that contributes a bit more toward explaining what is offensive about it. If there is a right to decide for ourselves how many children to have, it is unlikely to inhere solely in women. We are offended by the idea of the China policy because it intrudes upon a more general right to procreative choice. That right is not gendered; it includes both men and women. It is the right to make private decisions about how and when to procreate. Any effort to reject the China policy without accounting for the ways in which it infringes on men’s rights would be inadequate. This reasoning is of a piece with earlier Supreme Court decisions on the right to privacy, from which the right to choose an abortion was derived. Consider the Court’s pronouncement in Eisenstadt v. Baird (1972): “If the right of privacy means anything, it is 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.” Nowhere are women given especial focus in the right to privacy; men retain the right to procreate or not to procreate. That didn’t last for long, of course; Danforth and Casey cemented the idea that, as Danforth put it, “We cannot hold that the state has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the state itself lacks that right.” Still, the Court was not totally dismissive of the man’s rights in choosing whether to become a parent. For example, in Casey, the Court affirmed that a man has a “deep and proper concern and interest . . . in his wife’s pregnancy and in the growth and development of the fetus she is carrying.” And the Court rightfully appreciated that in well-functioning relationships, women would notify and consult with the father. Yet, citing a long string of factual findings about domestic violence and enlisting a parade of horribles that would follow from giving the father more substantial rights in the fetus, the Court made clear that the woman’s right to choose could not be qualified in any way by giving a man any say in the matter. WHAT ABOUT THE FATHER? This may be fine as a matter of law and as a decision rule for when the parties disagree. But it also enables women to jump right to their veto power without including the man. And it also opens the door for women to cloak themselves with the sanctity of the legal right to choose � and not consider that men have very real interests in the termination of a fetus they are responsible for creating � and for which they will have to pay dearly, even if they took all necessary precautions to avoid a pregnancy. In short, I wish to suggest that consensual sex does not carry with it � without further specification or clarification � an abdication of the man’s interest in and right to the privacy of his genetic material. It does not waive his right not to be a father against his will. We can have a decision rule that the woman will get to choose if it comes down to that � but it is much harder to assert that a man abdicates any participatory rights he may have in the decision-making process. IMPLEMENTING THE RIGHT How can we give teeth to the man’s right to choose an abortion � other than merely hoping that women will consult with their partners? Should a man who tries in good faith to avoid a pregnancy have the legal right to force an abortion on a woman he accidentally impregnates who prefers to carry the fetus to term? No. A man should not be allowed to force a woman to undergo a traumatic surgical or pharmacological procedure to abort a fetus. The Court certainly got right that morality requires that women get a final say. Yet although women get the final say, there are nonetheless ways for the law to ensure that men still have a voice in the matter. First, we can allow suits like that in Illinois to vindicate the right, allowing claims for intentional infliction of emotional distress when the woman has forced a man to become a parent against his will. Second, we can relieve men of support payments if they can show that they did what they could to avoid becoming a father. If a man exercises due care to prevent pregnancy, a woman who nevertheless carries the child to term ought to bear the financial consequences of her decision. We should remain deeply concerned about deadbeat dads � but those who really wanted an abortion of an accidental fetus shouldn’t be stigmatized and penalized for not getting the ability to choose an abortion. Finally, we can allow men and women to contract out of support payments if a woman, without the man’s consent, insists on carrying an accidental pregnancy to term. This option, not available under current law, would allow the couple to agree that a man could give up all parental rights and responsibilities, perhaps in exchange for a one-time payment to the woman to assist with the costs of birth. However we choose to vindicate the right through the legal system, a man is entitled to be heard on the question of whether to abort a fetus he helped to create. Ideally, the decision about what to do with an unwanted pregnancy should be a joint enterprise between man and woman. While women may hold the legal ace of spades � the ultimate right to choose and veto � men at least should be able to get their cards on the table. Ethan J. Leib, a New York lawyer, will become a law professor at the University of California, Hastings College of the Law, in July 2005. He is the author of Deliberative Democracy in America: A Proposal for a Popular Branch of Government (2004).

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