"Roe v. Wade for Men"

[Kevin_Lowe]

What if the woman doesn't discover she's pregnant until the 4th or 5th month? Some 30% of all women experience irregular periods. Many many women don't realize they're pregnant until the 2nd trimester or even later.

Do you think the man should still get his decision period in that situation?

Since I personally don't think even a third trimester pregnancy is particularly morally important, I think the man is as entitled to his decision even in this scenario.

However for people who think late-term pregnancies should count as humans, it would be a tough problem.

 

[meg]

I guess what I was trying to get at with that question is : what if it is too late to get an abortion? Does he still get his decision time?

Meg

 

[toddjh]

As I noted a while back, this male-right-of-abandonment principle you're espousing is not relevant to Roe.

Who said it was? This case has been nicknamed "Roe v. Wade for Men," but legally it has nothing to do with Roe. Roe was decided on privacy rights issues, while this is a matter of equal protection.

Are you suggesting that men would not be allowed this unilateral opt-out if abortion was outlawed?

Yes. If women don't have the right to opt out of parental responsibility, then neither should men. Like I said, it's about equality. Let's hope that hypothetical never comes to pass, however.

You do realize that a woman could always carry a pregnancy to term and then put the child up for adoption, right?

Again, not sure how this is relevant. The fact remains that women have a legal right that men do not. This legal inequality should be rectified.

Women remain the primary care-givers. The man merely has to cut a check. How difficult is it to watch where you put your d!ck?

You're trying to make a pragmatic point here, while I'm making a theoretical one. I'm not concerned with how stupid people can be (and don't forget that I could just as easily respond, "How difficult is it to keep your legs shut?" as a similar argument against allowing abortion). I'm only concerned with legal equality, for smart and stupid people alike.

I think you're failing to appreciate the individual freedoms of the child -- the entity that had no choice at all in the matter.

At the time the decision to abdicate responsibility would be made, there is no child, at least in any reasonable (or legal) sense. It's a non-issue. If the woman chooses to allow the pregnancy to continue to the point where there is a child, then I would argue that it is solely her responsibility -- after all, she was the only one who had control over that decision, and you can't say she didn't have enough information to make an informed decision. If she makes a poor choice and chooses to keep a child she can't afford, how is that the fault of the man? She could put the child up for adoption at that point, if she's that opposed to abortion.

Unfortuantely, Mumblethrax has already seized on the fact that it's easier to transmit HIV man-to-woman than vice-versa. Anal sex is even riskier than vaginal sex. Do gay men have any legal recourse for their inherently riskier modes of love-making?

No, because this biological inequality does not give rise to a corresponding legal inequality. The biological inequality which allows women to have an abortion does. It creates, as a side effect, a de facto legal right to abdicate parental responsibility that men do not have. It's this legal inequality, not the biological one, which must be addressed in the interests of equal protection.

 

[toddjh]

Again, so very clinical. But, as has been pointed out, your proposal doesn't level the playing field at all. Women may have an extra option, but they also have extra risks and extra respionsibilities that men simply do not have. You want to give men all of the options without any of the risks or responsibilities. How is that equal protection?

It's equal protection under the law, not equal protection in all aspects of life -- if it were, there would be an awful lot of robbing from the rich and giving to the poor going on. The law can't solve all problems; it can't change the fact that women have more biological risks from sex, and it's not its place to try. But what it can and must do is make sure the resulting legal inequalities are smoothed out.

As for "clinical," Kevin Lowe's response is good. I'd argue that the law should be clinical -- i.e. objective, and without emotional considerations. The law, as Aristotle realized millennia ago, is "reason free from passion." Sounds like the dictionary definition of "clinical" to me.

 

[toddjh]

I guess what I was trying to get at with that question is : what if it is too late to get an abortion? Does he still get his decision time?

As a matter of theory, no. In a practical sense, though, you're going to have to deal with the possibility of the woman intentionally hiding her pregnancy for several months in order to get monetary support. Some kind of reasonable exception would have to be made for that type of situation.

 

[mumblethrax]

It's equal protection under the law, not equal protection in all aspects of life -- if it were, there would be an awful lot of robbing from the rich and giving to the poor going on. The law can't solve all problems; it can't change the fact that women have more biological risks from sex, and it's not its place to try. But what it can and must do is make sure the resulting legal inequalities are smoothed out.

The problem with your argument is that on one hand you argue for a strong equal outcome perspective--it doesn't matter, you say, that reproductive rights follow from privacy rights, and the right to abandon responsibility for future children follows from reproductive rights; it's only important that this decision had the effect of allowing women a reproductive decision after sex which men do not have--while simultaneously arguing that government has no obligation to provide remedy for disparate outcomes in another area (the medical risks associated with sex), despite the marginalizing effects of shifting all such risks onto women.

In fact, the equal outcome perspective demands socialism, except to the degree that there exists a legitimate state interest in not introducing it. Here, there seems to be an interest in supporting children and forcing men to consider the 'externalities' of their sexual conduct.

I'm personally sympathetic to the equal outcomes view, but jurisprudence is considerably more ambiguous about the legitimacy of this approach. In Arlington Heights v. Metropolitan Housing Corp., for example, the court has found that intent is important in discrimination cases.

 

[meg]

"As a matter of theory, no. In a practical sense, though, you're going to have to deal with the possibility of the woman intentionally hiding her pregnancy for several months in order to get monetary support. Some kind of reasonable exception would have to be made for that type of situation."

Well, that's where I'm trying to go with these questions.

So how, practically, might we guard against something like that? Subpoena pregnant womens medical records and make them public? Require a woman's menstrual records to be kept as a part of public record?

We also would have to deal with the possibility that the man might just say "she didn't tell me!", or "she told me I didn't have to support it", or "she told me she didn't want children" also. What kind of proof of pre-sex discussions would be required to make this work?

What kind of diligence should we perform to insure that the man can't bully the woman into letting him sign away his parental rights?

What if the woman is an outspoken pro-lifer? What if the man is an outspoken pro-lifer? Does that antiabortion guy still get to have his decision period? Does a guy who screws an adamant pro-lifer, knowing full well that if she gets pregnant she will not abort, does he still get his little decision making period?

How could you prove it one way or another, in court?

Do we really even want to start legislating and spending our courts time attempting to figure out who might have lied to who prior to sex?

Does this also mean that every woman who's gotten the "It's ok, baby, I've had a vasectomy" line pulled on them gets to sue for *ALL* the costs of rasing the child, since he lied?

What I'm trying to figure out is: Even if we could agree that there is an inequity here that should be remedied, how, practically, might it be enforceable without messing up things (violating more people's privacy, playing he-said she-said in court, creating another situation easy to abuse, etc) worse than they are right now?

Meg

 

[toddjh]

The problem with your argument is that on one hand you argue for a strong equal outcome perspective--it doesn't matter, you say, that reproductive rights follow from privacy rights, and the right to abandon responsibility for future children follows from reproductive rights; it's only important that this decision had the effect of allowing women a reproductive decision after sex which men do not have--while simultaneously arguing that government has no obligation to provide remedy for disparate outcomes in another area.

It's not merely disparate outcomes which the law should address, it's disparate legal treatment of men and women. The "legal" is the key term: whether a right is created de jure or de facto has no bearing; that right exists and should be applied equally.

In the case of the other disparate outcomes you mention (greater risk of HIV transmission from men to women, for example), I fail to see how there is any legal issue involved. How do the disparate risks of HIV cause men and women to be treated differently under the law? What legal rights does one sex have that the other does not as a result of this situation?

 

[mumblethrax]

It's not merely disparate outcomes which the law should address, it's disparate legal treatment of men and women. The "legal" is the key term: whether a right is created de jure or de facto has no bearing; that right exists and should be applied equally.

Any wrong that goes unaddressed is a disparate legal treatment. If we can determine that something like unconscious job discrimination exists, for example, the equal outcome analysis would demand that we introduce corrective measures (like redacting identifying information from job applications).

In other words, I'm not at all clear on what distinguishes an outcome in general and a legal treatment for you. From the point of view of the state, they seem to be equivalent. Is it that that it's only important to consider this treatment where the state acts? Because this doesn't seem to be true in light of legislation like The Civil Rights Act of 1964, which extends this kind of protection into the private sphere.

In the case of the other disparate outcomes you mention (greater risk of HIV transmission from men to women, for example), I fail to see how there is any legal issue involved. How do the disparate risks of HIV cause men and women to be treated differently under the law?

How does a restaurant owner's refusal to serve black customers amount to different treatment under the law, according to your interpretation?

If the greater risks for women in sex amount to disparate outcomes, then it seems to me like the state has an interest in addressing the disparity. It does seem to be difficult to do so, but we could provide greater subsidies for medical treatments where disproportionate medical risks exist. And where we have the choice between two models of parenting responsibilities, we might choose the one that satisfies a sense of parity, if not equality, so that both women and men share the burden of reproductive risks. This again has the nice side effect of shifting the burden of decision making for both sexes to a point before they have sex, which does seem to be better than making this decision after pregnancy begins.

 

[toddjh]

So how, practically, might we guard against something like that? Subpoena pregnant womens medical records and make them public? Require a woman's menstrual records to be kept as a part of public record?

I don't know; that would be a matter for the courts to work out over time. More and smarter people than me could address that. Honestly, though, I think a healthy woman would have to be pretty dense not to notice a pregnancy for five whole months. In the absence of a medical condition to explain why the signs of pregnancy were missed, I think this should be taken into consideration.

We also would have to deal with the possibility that the man might just say "she didn't tell me!", or "she told me I didn't have to support it", or "she told me she didn't want children" also. What kind of proof of pre-sex discussions would be required to make this work?

I don't think there should need to be any pre-sex discussions. If the man wanted to opt out of his responsibility, he'd get a lawyer and file the paperwork. There wouldn't have to be any "he-said-she-said" involved in most cases.

What kind of diligence should we perform to insure that the man can't bully the woman into letting him sign away his parental rights?

Again, there wouldn't be any "letting" involved. The man could make that decision unilaterally, just as a woman can make the unilateral decision to have an abortion.

What if the woman is an outspoken pro-lifer? What if the man is an outspoken pro-lifer? Does that antiabortion guy still get to have his decision period? Does a guy who screws an adamant pro-lifer, knowing full well that if she gets pregnant she will not abort, does he still get his little decision making period?

Yes. The personal opinions of the woman are irrelevant; she still has the right to terminate the pregnancy, even if she chooses not to exercise it. The individual's religious beliefs should not be the concern of the law.

Do we really even want to start legislating and spending our courts time attempting to figure out who might have lied to who prior to sex?

I don't understand why "prior to sex" has anything to do with it. The system I and others are proposing only has to do with actions taken after sex.

What I'm trying to figure out is: Even if we could agree that there is an inequity here that should be remedied, how, practically, might it be enforceable without messing up things (violating more people's privacy, playing he-said she-said in court, creating another situation easy to abuse, etc) worse than they are right now?

I think the number of cases where the woman didn't know she was pregnant for five months would be very small, and not create a huge burden on the legal system.

 

[toddjh]

In other words, I'm not at all clear on what distinguishes an outcome in general and a legal treatment for you.

It's simple: a legal disparity is one which creates a legal right or obligation for one class of people but not another.

Your argument is tantamount to saying that "equal protection under the law" necessarily equates to "equal protection in every aspect of life," which is absurd.

How does a restaurant owner's refusal to serve black customers amount to different treatment under the law, according to your interpretation?

Discrimination on the basis of race is a violation of the right to equality of opportunity.

If the greater risks for women in sex amount to disparate outcomes, then it seems to me like the state has an interest in addressing the disparity.

It may have an interest in the "promoting the public good" sense, sure (although I'd disagree). But that's not an equal protection concern.

It does seem to be difficult to do so, but we could provide greater subsidies for medical treatments where disproportionate medical risks exist.

Sure, we could. But it's still not an equal protection issue, because there is no legal difference in the way people with disproportionate medical risks are treated. Unless you can provide an example of a legal right or obligation that one group has on account of its level of medical risk, this is not relevant.

 

[meg]

I don't understand why "prior to sex" has anything to do with it. The system I and others are proposing only has to do with actions taken after sex.

ok. Let me get this straight. You are recommending a system that says that no matter what a man may say *prior* to having sex, "Of course I want a baby, honey." "Sure I'll support it." "Yeah, I'll marry you"... that after she becomes pregnant he can opt out if he wants to.

Is that what you're saying?

Meg

 

[chris epic]

How is this an argument against the logical fallaciousness of appeals to emotion now?

I'm speculating, but I feel that the fallacy of emotional appeal is sometimes a fallacy in itself (does that make sense?) What I'm saying is that the fallacy is a fallacy. I don't want to "blame shift" but if people find themselves being manipulated by emotion, that very well could be a deep seeded sense of conscience. Yes, I'm saying that alot of the time, people allow themselves to be manipulated by emotion- I think people need to take personal accountability in this, does that sound weird or what? I allow myself to be manipulated all the time, why? Because I am an emotional creature. Its this innateness that keeps all human from being completely objective and ultimately is the reason why there is no such thing as pure objectivity. I almost appologized for "getting off track" but I think this is a defense for my use of emotion. Apathy is a social crime.

 

[toddjh]

ok. Let me get this straight. You are recommending a system that says that no matter what a man may say *prior* to having sex, "Of course I want a baby, honey." "Sure I'll support it." "Yeah, I'll marry you"... that after she becomes pregnant he can opt out if he wants to.

Is that what you're saying?

A woman can do the same thing with an abortion. So, yes, I prefer equality. I prefer it so much, in fact, that I'm willing to accept some negative consequences in the name of upholding that ideal.

ETA: There may be a happy middle ground, though. If the man wants to sign a contract in advance saying that he will support any resulting child, I have no problem with that. He could sever his parental responsibility, but he would still have his contractual obligation in that case.

 

[jj]

A woman can do the same thing with an abortion. So, yes, I prefer equality. I prefer it so much, in fact, that I'm willing to accept some negative consequences in the name of upholding that ideal.

I have a problem with that. If the guy (or the woman, doesn't matter) indicates beforehand that they want to have a kid and want to support it, THEN THEY (RULE 8) WELL BETTER LIVE UP TO THEIR PROMISE.

Before, after, whatever.

I support the idea that the guy should have ONE chance to opt out, as early as is humanly possible for him to do so, so the woman can make an informed decision.

But that's it, boys and women, that's it. Once you're in, you're in.

 

[chris epic]

I guess what I was trying to get at with that question is : what if it is too late to get an abortion? Does he still get his decision time?

Meg

That's a good question. Decision to wave his parental rights? I know its a controversy, but aren't partial birth abortions legal in some states? I don't know for sure. I guess this would lead me to say that a father should be able to terminate his parental rights. Because its very easy for a woman to give her child up for adoption without the father's consent, this means that she has the ability to terminate her parental rights even AFTER birth so, for equality's sake- yes, even though parental rights terminations on both sides of the spectrum suck.

 

[toddjh]

I have a problem with that. If the guy (or the woman, doesn't matter) indicates beforehand that they want to have a kid and want to support it, THEN THEY (RULE 8) WELL BETTER LIVE UP TO THEIR PROMISE.

Well, you could argue that promise constitutes a verbal or implied contract, so I could get on board with that in theory. In practice is another matter, like with all non-written contracts: how would you propose to show that such an agreement took place? You're back to he-said-she-said.

Certainly a man who makes a promise like that has an ethical responsibility to live up to his word, but I'm wary about using the courts to dictate special cases.

ETA: Also, to turn your point around, suppose the man is pro-life, and the woman gives him her assurance in advance that she won't have an abortion if she gets pregnant. Would you be in favor of using that agreement to take away her legal right to an abortion later?

 

[meg]

So what's to keep a guy from signing away his parental responsibility but contacting the child anyway?

The child will still want to know its father.

Can the child search for and find and contact its dad?

Our society still considers even a bad dad to be better than no dad at all.

Right now, even if the dad pays no child support at all, or is years and years behind on it, he can sue for visitation and win, because that is considered better for the child.

Can a signed away dad then sue for visitation rights?

Meg

 

[jj]

Well, you could argue that promise constitutes a verbal or implied contract, so I could get on board with that in theory. In practice is another matter, like with all non-written contracts: how would you propose to show that such an agreement took place? You're back to he-said-she-said.

Like everything else in the world. Stop treating having sex like some special unmentionable, stop having absurd laws surrounding its practice (say with unmarried people, the pseudo-illegality of such making contracts about it invalid, etc, or so I'm told), and WRITE IT DOWN.

ETA: Also, to turn your point around, suppose the man is pro-life, and the woman gives him her assurance in advance that she won't have an abortion if she gets pregnant. Would you be in favor of using that agreement to take away her legal right to an abortion later?

Only if he can use his body to raise the fetus.

 

[toddjh]

Like everything else in the world. Stop treating having sex like some special unmentionable, stop having absurd laws surrounding its practice (say with unmarried people, the pseudo-illegality of such making contracts about it invalid, etc, or so I'm told), and WRITE IT DOWN.

Agreed.

Only if he can use his body to raise the fetus.

Well, I think you're missing the point. You're saying that the man's verbal agreement is sufficient cause to take away his (proposed) legal right to opt out of responsibility. Is that something you'd support in the general case? If so, why wouldn't a woman's verbal agreement have a similar effect on her legal right to have an abortion?