An Oklahoma Bill Would Require a Father’s Consent for Abortion

The Oklahoma legislature is currently considering a bill that would require a woman who wishes to have an abortion to obtain the written consent of the father of the pregnancy. The Republican legislator who introduced the bill, Rep. Justin Humphrey, spoke of the pregnant woman as a “host” to the pregnancy who cannot simply kill her invited guest. In this column, I will discuss the deeper meaning of this plainly unconstitutional bill, a meaning that may have more to do with misogyny than with a concern for the wellbeing of fetuses.

The Unconstitutional Bill

The Oklahoma bill, House Bill 1441, provides that “[n]o abortion shall be performed in this state without the written informed consent of the father of the fetus.” The bill has exceptions for pregnancies resulting from rape or incest and for pregnancies that threaten the life of the mother. As a paternal consent requirement, this bill plainly violates the Constitution, as the Supreme Court ruled in Planned Parenthood v. Casey, finding unconstitutional a Pennsylvania law requiring that husbands be notified as a precondition to their wives being able to obtain an abortion; the Court ruled that such a requirement imposes an unconstitutional “undue burden” on the exercise of the right to abortion. It follows necessarily from this ruling that requiring consent—a more demanding standard than notification—would similarly violate a woman’s constitutional right to obtain an abortion. And the Court so held in an older case, Planned Parenthood v. Danforth (in connection with a spousal consent provision).

The Motive Behind the Bill

Rep. Humphrey, the bill’s sponsor, is apparently aware that the bill could well be unconstitutional but said that he believes fathers should have a role in the abortion process. Specifically, he reportedly stated: “I understand that they [women] feel like that is their body.” He continued, “I feel like it is a separate—what I call them is, is you’re a host. And you know when you enter into a relationship you’re going to be that host and so, you know, if you pre-know that, then take all precautions and don’t get pregnant…. After you’re irresponsible then don’t claim, well, I can just go and do this with another body, when you’re the host and you invited that in.”

It is useful to read these words carefully and couple them with the actual provisions of the law in question, because together they paint a rather disturbing picture of the motivations behind the proposed legislation.

First, let us consider what Humphrey is saying about women who become pregnant and wish to terminate their pregnancies. He addresses them directly and says “you’re irresponsible.” That is, you must “take all precautions and don’t get pregnant.” Women who unintentionally become pregnant are, in Humphrey’s view, irresponsible people who failed to take the proper precautions against pregnancy. Yet he ignores the fact that contraception is not 100% effective. Even those women who use contraception (which is, presumably, what Humphrey means when he refers to taking “the proper precautions”) sometimes become pregnant, despite their best efforts.

Meanwhile, why don’t men bear some responsibility for having intercourse without the “proper precautions,” given that men can wear condoms but often prefer not to because they enjoy sex more without a condom? Humphrey’s reference to women who fail to take the proper precautions thus ignores men’s role in bringing about unwanted pregnancies due to their own desire for condom-free sex, a desire that sometimes manifests itself in pressure (that does not rise to the level of rape) on a woman to agree to unprotected intercourse. Such pressure from men also receives no attention from Humphrey when he exclusively blames women for irresponsible behavior.

Invitation

In describing an unwanted pregnancy, Humphrey disputes the claim that women make that it is their body on the line. Instead, he says, they—through their irresponsible behavior—have invited a fetus to live inside their bodies. This is the respect in which they are “hosts,” as he describes them. By having consensual sex (by hypothesis, without contraception), then, a woman “invites” the fetus in and therefore cannot revoke the invitation by unceremoniously terminating the life of the fetus. By describing what occurs in pregnancy as the result of an invitation, Humphrey thus aligns himself with those who view consent to sex as tantamount to consent to pregnancy as well. He draws this equivalence despite the fact that most intercourse does not result in a pregnancy and therefore, having unprotected sex represents at most a modest risk rather than a certainty that pregnancy will result. (Depending on when in a woman’s cycle unprotected sex occurs, the risk of pregnancy generally varies from essentially zero to about nine percent, reaching nearly thirty percent at only one point during the month.) Ordinarily, the law does not equate the taking of a small risk with consent to a highly intrusive, nine-month occupation of the risk-taker’s body.

The Man’s Role

Although the man in this equation would—if the sex was unprotected—have contributed just as much to the unwanted pregnancy as the woman, we hear nothing from Humphrey about how irresponsible the father of the pregnancy was. On the contrary, once his identity is known, pursuant to the bill before the Oklahoma legislature, the father can decide that he agrees with the pregnant woman about the abortion and give his consent for the procedure to go forward. In other words, when the woman indicates her desire for an abortion, that is an occasion for criticizing her failure to prevent the pregnancy, but once the man agrees with the abortion wish, his role in “inviting” the fetus into the woman’s body goes unnoticed, and he can sanction its being killed.

The fact that the father can agree to have his fetus aborted (at least—under the Oklahoma bill—when the mother has already given her consent) suggests that Rep. Humphrey (and by extension, those other legislators who have supported the bill) is not entirely loyal to the needs and interests of the invited guest, the fetus. If he were, then he might prohibit the abortion procedure outright, and the wishes of the father of the pregnancy would be completely irrelevant to him.

That the man’s wishes are elevated in this case suggests that this bill is not what it might at first appear to be. It is not mainly about protecting fetuses from being chased out of their invited abodes. It is instead apparently about subjecting women to the wishes of the men who impregnated them. A woman may not want to tell the father of the pregnancy about what is happening, especially if it is early in pregnancy when she decides to terminate. But she does not have that choice under the Oklahoma bill; she must notify the father and give him the right of first refusal. If and only if he wants there to be an abortion can there be one, notwithstanding his conduct that led to the fetus’s having accepted the invitation that sex supposedly represents to the fetus’s existence.

It therefore seems safe to conclude that the Oklahoma bill in question is a bill intended to put women in their place. It forces disclosures from women that they may be uncomfortable making (for reasons including concerns about potential abuse from the father of the pregnancy). It then places decision-making power in the hands of the father, without ever acknowledging that the father has been “irresponsible” and should have to pay for that failure to take precautions by having a child against his (and the mother’s) will.

In some ways, of course, the Oklahoma bill is less troubling than an outright ban on abortion. In at least some subset of cases, a woman who wants to terminate a pregnancy will be able to prevail on the father of the pregnancy to give his consent (a consent that he might be more than happy to give, if the pregnancy is unwanted by both parties). Yet in some ways, the bill is more offensive than an outright ban would be. An outright ban would signify that the bill’s sponsor believes that abortion is morally unjustifiable violence that should be prohibited by law. While I disagree with that position, for a variety of reasons, it does not expressly treat women as men’s subordinates. By contrast, the bill at issue in Oklahoma does just that. It treats women as “hosts” but only so long as the father of the pregnancy wishes them to be hosts. It rests final decision-making authority in the man. In so doing, and by simultaneously allowing abortions that have the blessing of the man, it elevates the man over both the woman and the fetus and thereby exposes its underlying misogyny.