The Tennessee state legislature is considering a bill that would allow the father of a pregnancy to obtain an injunction against the mother’s having an abortion. Under existing law, this measure is plainly unconstitutional. But the Supreme Court has changed dramatically since 1992, when it invalidated a similar measure, so a “father knows best” provision could offer some eager Justices an opportunity to begin retrenchment on a woman’s right to choose. In one sense, it might be easier to defend this proposed legislation than it is to defend other obstacles that abortion opponents have erected in the path of women seeking an abortion. But in another sense, the Tennessee bill is even more objectionable than an outright ban on the procedure would have been. This column will develop these two perspectives.
Easier to Defend
Since the Supreme Court decided Roe v. Wade, abortion opponents have been very creative in proposing regulations that would impede access to abortion. Some efforts have succeeded, while some have failed. These efforts have included mandatory ultrasounds (with the offer to show the woman her embryo or fetus on the screen), an “informed consent” session at which she would hear a mixture of propaganda and contested moral assertions about the procedure she sought to have, parental notification or consent for the pregnant minor, regulation of the physical space in which providers could perform a termination, regulation of credentials that a doctor performing abortions needed to have, prohibitions against particular abortion procedures for moral-aesthetic reasons, requirements that an “unborn child” be buried or cremated, prohibitions against the procedure past twenty weeks (when the fetus is allegedly capable of feeling pain), waiting periods, and the list goes on. Though one could identify arguments on behalf of each one of these restrictions, a candid pro-life advocate would admit that provisions are meant to accomplish two goals: make it more difficult, more complicated, and more stressful for people to have an abortion, and by degrees pave the way for ending the legalization of the procedure.
The father knows best requirement is different. For perhaps most people planning a termination, including the father in the decision process is automatic. When someone becomes pregnant and wishes to abort, the father of the pregnancy may be the first or second person in whom the patient confides. Many fathers, in turn, even those whom no one would label “feminists,” will happily go along with a sex partner’s decision to terminate. Michigan Professor of Law Catharine MacKinnon, in her groundbreaking book, Feminism Unmodified, offered a candid and cynical account of this support: “So long as women do not control access to our sexuality, abortion facilitates women’s heterosexual availability. In other words, under conditions of gender inequality, sexual liberation in this sense does not free women; it frees male sexual aggression. The availability of abortion removes the one remaining legitimized reason that women have had for refusing sex besides the headache…. The Playboy Foundation has supported abortion rights from day one ….”
Though MacKinnon herself believes in the right to terminate a pregnancy, she also suggests that if more women felt comfortable interrupting male desire (to put on a diaphragm, for example, or to say no altogether), the need for abortion would diminish. Pro-life Associate Professor of Theology and Ethics, Charles C. Camosy, has argued (in Beyond the Abortion Wars) against abortion on the basis of a parallel sort of argument, proposing that for feminist reasons, women should not generally have access to a procedure that men are likely to pressure them into. Along similar lines, an organization called Feminists For Life presses for reforms that will make it easier to choose to remain pregnant despite what they view as society’s preference for termination. Those men who want women to have abortions are not obviously preferable, from a pro-woman perspective, to those men who want them to remain pregnant. If the goal is “choice,” it is plainly important to keep an eye on pressure coming from either direction.
Because people are likely to want to consult with their partners before proceeding with a termination, the father knows best requirement is unlikely to impede most abortions. Unlike provisions such as the waiting period, father knows best might be irrelevant for most people seeking an abortion. In other words, people will not generally experience the father knows best provision as a substantial obstacle to their ability to obtain an abortion.
Furthermore, the requirement that fathers agree to an abortion has a facially appealing logic to it. Both a woman and a man have a stake in whether a pregnancy comes to fruition. If the father is excited about the prospect of having a child, then he could be devastated if the woman terminates her pregnancy. Likewise, a man who prefers not to be a father might like the opportunity to weigh in on the decision and encourage and support the woman’s choice to have an abortion.
When a decision will implicate the futures of two people, it is understandable for the law to require both people to have a say in that decision. Some men would feel injured upon learning that they might have had a child if a partner or former partner had consulted them about whether to keep the baby. Regardless of whether one supports a father knows best provision, most would agree that, all things being equal, it is suboptimal when a pregnant person who wishes to terminate her pregnancy does so behind the back of the individual who would have become a father. Stated in the language of middle-schoolers, her abortion is “his business.”
Father Knows Best the Worst
We have seen that a father knows best requirement has a coherent logic to it. It makes intuitive sense because fathers and mothers both have interests relative to the birth of a child that would be theirs. We can understand that if the mother aborts a pregnancy to which the father feels very attached, the father suffers a harm, whether or not we recognize it as such in the law. And yet….
Allowing the father of the pregnancy to block a woman from getting an abortion is in some ways the worst possible regulation of abortion. Why? It treats women and women’s bodily integrity as subject to the will of a man and does so in the name of equal reproductive control.
To understand this objection, consider a different anatomical regime. In this regime, everyone who reproduces does so by depositing gametes into an incubator, and the embryo and then fetus develops into a baby in that incubator. In such a case, if one of the two people wanted to turn off the incubator, we as a society would need to decide at least two things. First, which is more important, the interest in procreating or the interest in not procreating? If the two people contribute equally to the “pregnancy” in the incubator, we are free to focus on the clash between these two interests. And second, what, if any, interests does the zygote/embryo/fetus have in continuing to develop into a baby? Because it is an inanimate object, an incubator, that grows the baby, we are free to focus on fetal entitlements as they place no physiological or anatomical burden on anyone.
Most pro-life enactments and attempted enactments proceed on the assumption that the embryo/fetus has entitlements as if it lives inside an incubator. A being with entitlements can effectively say “I live here, and I have an interest in staying here as long as my remaining alive requires.” The enactments pay little attention to the fact that the woman’s body arguably belongs to her first and not to the newly created embryo/fetus. It is around that “as if” proposition, unstated to be sure, that so much of the abortion debate revolves.
The father knows best (and father notification) provisions, by contrast, seem to ignore the interests of the embryo/fetus. If an embryo/fetus is a baby, then killing it is impermissible, even if both the mother and the father wish to kill it. Indeed, every one of its parents and grandparents could agree that a baby should be killed, and that would mean only that the murder conspiracy is very large. The baby’s right not to be killed overrides the wishes of its family.
What the father knows best and father notification provisions appear to do as well is frankly acknowledge that it is the mother and not the father who has the embryo/fetus inside her body. She is therefore the one who would need to terminate. And yet the proposed Tennessee bill says that even though the embryo/fetus is inside her, he can choose to block its removal from her body. That is, the provision, rather than simply impeding her access to abortion, places the key to her procedure in the hands of her partner. This move makes little sense in terms of the sacredness of life, for reasons explained above. But it makes a lot of sense from the perspective of redistributing control of reproduction from women to men. The bill hands him the legal authority to force her to become a mother of his child against her will.
Those of us who have long been concerned about “coercive control,” a model of domestic abuse, worry about a second feature of the father knows best arrangement. As we know, when young children wish to do something, their parents can stop them from doing it (either by withholding or withdrawing their permission). Schools are regularly sending home notes for signatures from the people in charge of the children, their parents. In addition to reinforcing the parent/child hierarchy, this setup gives parents the power to leverage the item for which the child needs consent to extract behavioral conformity from the child. You want to go on the trip to Six Flags? Then neaten up your room and take a shower. You want permission to get your ears pierced? Then clean out the cat’s litter box and study your times tables. Few of us criticize such quid pro quo manipulation because the parents are so often effectively bribing their children to do things they ought to be doing anyway.
When it comes to a grown individual seeking an abortion, however, the same sorts of quid pro quos are ugly and unacceptable. Want to have an abortion? Then vacuum the carpets, do the dishes, and wash the windows. Want my permission to terminate? Then don some lingerie and wait for me in bed. Want to stop being pregnant? Then go shopping and bring back some beer. Want permission? Earn it.
This sort of behavior is characteristic of domestic abusers. They manipulate their victims with threats and promises, and victims become increasingly dependent on their abusers’ positive attention. Both perpetrator and victim come to think of themselves as part of a master/servant dynamic, one that only the perpetrator chose voluntarily. While the government exercises control over everyone, it is also everyone that (in theory) keeps tabs on the government through the democratic process. A couple that includes an abuser does not have similar checks and balances to prevent a coercive control dynamic from taking hold.
A Mere Minority?
Some readers might be wondering whether it is appropriate to focus on domestic abusers who exercise coercive control on women. After all, I acknowledged earlier the likelihood that most women will find it relatively simple to avoid an injunction by the fathers of their pregnancies. In response I will quote from the plurality opinion (in Planned Parenthood v. Casey), reaffirming the right to abortion. In response to the argument that the husband notification provision in Casey will burden very few women because most women tell their partners anyway, the plurality said that “[t]he proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant.”
A father knows best provision is therefore offensive notwithstanding the fortuity that most men are not abusive and would not use a woman’s need for an abortion to manipulate her behavior. Quite a few men, though a relative minority of the population, would welcome the control that father knows best provisions bestow upon them. Let us hope that even pro-life legislators in the state of Tennessee choose not to give that dangerous minority of men the control that would exacerbate the coercion in their unfortunate partners’ lives.