Much has been made about Supreme Court nominee Samuel Alito’s opinion in which he believed it to be Constitutional to require a married woman to inform her husband before she had an abortion. Glenn Sacks writes an op/ed in today’s LA Times lambasting all us “hysterical” women who kinda like our reproductive rights, and claiming that Alito stands up for the reproductive rights of men. Now, I would love it if Alito stood up for reproductive rights, male and female alike. But that’s not what he’s doing. What’s particularly interesting about the spousal notification issue is that those on the MRA side seem to completely ignore the grounds on which Roe was decided — that is, the Constitutional right to privacy.
Now, we can split hairs over whether a right to privacy actually exists in the Constitution — I believe it does, some of you probably believe it doesn’t, and that’s all fine and good. For the purposes of this conversation, though, it stands that the highest court in this country believes that such a right exists, and that right is now recognized and utilized. Let’s not derail things by arguing over the basics.
But those who would argue that a wife should be legally required to notify her husband before she has an abortion do so because, as Glenn writes, “Feminists base their support for Roe vs. Wade in large part on the idea of “My Body, My Choice.” Yet men also help create children. Why should they have no say?”
Well… I think he kind of answers his own question, doesn’t he? “My Body, My Choice” isn’t about children. After all, children by definition are born, autonomous beings, and I don’t think that feminists are arguing that women should have an exclusive right to their children’s bodies. We just want the right to our own, including our reproductive systems. Yes, men help create children. There’s a general social agreement that parents both have a responsibility to the children they create. And while the argument can be made that men have an interest in any egg they fertilize, that interest cannot trump a woman’s basic right to privacy. In Roe, the court recognizes that the state has an interest in fetal life. But it also recognizes that the right to privacy is a more compelling interest, and that this right trumps the state’s interest in fetal life before the point of viability. If the standard is that the right to privacy trumps the right to fetal life, it would seem to logically follow that it would also trump a husband’s desire to know whether or not his wife has an abortion.
That’s why the conversation is going in circles: the MRA’s are talking patriarchial ideology, and the court is supposed to be evaluating law based on the Constitution. Men have just as much a right to privacy as women do. They have the right to control their own bodies, to decide to use contraception, and to decide when and how and with who to have sex. They day there’s a law requiring my husband to inform me whenever he ejaculates, I’ll be on the front lines protesting it. If there are laws requing spousal consent/notification for vasectomies, I’m against ’em and would argue that they’re patently unconstitutional.
The difference, of course, is that men can’t get pregnant — and so people like Glenn Sacks are, in fact, asking for special rights when they demand the right to know what particular women in their lives are choosing to do with their own reproductive organs.
Because that’s the deal with privacy rights for adults: They only extend to your own body. My desire to know what you do is not a reproductive right, even if what you do involves reproduction.
We go down a dangerous path with spousal notification laws for abortion. Where should they end? If men have a right to know what’s going on in your uterus, do they have the right to be notified if you go on birth control? After all, there’s a possibility that one of your eggs could be fertilized and it could not implant because of your birth control method, and that fertilized egg was half his, damn it! It’s worth noting, too, that Roe was decided along the same lines as Griswold, which gave married couples the right to obtain contraception (a few years later single women were afforded the same right). The right to privacy covers abortion and contraception. If it can be violated in the name of a man’s “right to know” about abortion, why not contraception?
The MRA’s also make the argument that “the fetus is half mine!” and so they should have equal say (or at least be notified) about their wife’s abortion. Again, though, the issue isn’t a game of cellular what-came-from-who. If that was the case, we’d be setting a fairly dangerous standard. Is it just to allow anyone who contributes to the modification of another’s body, or even the creation of something else on or within it, to then have partial ownership over that body? This isn’t the greatest example and of course few things are comparable to pregnancy, but if a plastic surgeon gives a women breast implants for free, can he then claim that those breasts are half his and demand her notification for, say, removing them? He paid for them. He created them. He put them in her. Doesn’t he then have a right to them? What if he’s her husband?
The MRA’s and right-wingers also point to the “bodily harm” exception to the spousal notification requirement that Alito wanted upheld — basically, if your husband is going to kill you or beat you senseless, you don’t have to tell him that you’re having an abortion. Good enough, right? The court answers, no (via a must-read post at Thoughts from Kansas):
273. The vast majority of women consult their husbands prior to deciding to terminate their pregnancy.
279. The `bodily injury’ exception could not be invoked by a married woman whose husband, if notified, would, in her reasonable belief, threaten to (a) publicize her intent to have an abortion to family, friends or acquaintances; (b) retaliate against her in future child custody or divorce proceedings; (c) inflict psychological intimidation or emotional harm upon her, her children or other persons; (d) inflict bodily harm on other persons such as children, family members or other loved ones; or (e) use his control over finances to deprive of necessary monies for herself or herchildren.
282. A wife may not elect to notify her husband of her intention to have an abortion for a variety of reasons, including the husband’s illness, concern about her own health, the imminent failure of the marriage, or the husband’s absolute opposition to the abortion.
285. Wife battering or abuse can take on many physical and psychological forms. The nature and scope of the battering can cover a broad range of actions and be gruesome and torturous.
287. Battering can often involve a substantial amount of sexual abuse, including marital rape and sexual mutilation.
288. In a domestic abuse situation, it is common for the battering husband to also abuse the children in an attempt to coerce the wife.
289. Mere notification of pregnancy is frequently a flashpoint for battering and violence within the family. The number of battering incidents is high during the pregnancy and often the worst abuse can be associated with pregnancy. . . . The battering husband may deny parentage and use the pregnancy as an excuse for abuse.
294. A woman in a shelter or a safe house unknown to her husband is not `reasonably likely’ to have bodily harm inflicted upon her by her batterer, however her attempt to notify her husband pursuant to section 3209 could accidentally disclose her whereabouts to her husband. Her fear of future ramifications would be realistic under the circumstances.
297. The marital rape exception to section 3209 cannot be claimed by women who are victims of coercive sexual behavior other than penetration. The 90-day reporting requirement of the spousal sexual assault statute further narrows the class of sexually abused wives who can claim the exception, since many of these women may be psychologically unable to discuss or report the rape for several years after the incident.
298. Because of the nature of the battering relationship, battered women are unlikely to avail themselves of the exceptions to section 3209 of the Act, regardless of whether the section applies to them.
Spousal notification is also fundamentally different from parental consent/notification. While I’m also opposed to parental notification laws, it’s an established legal principle that minors are in some circumstances not afforded the same rights as adults; it’s also an established principle that their rights are occassionally subject to review by their parent/guardian. As O’Connor writes:
This conclusion is in no way inconsistent with our decisions upholding parental notification or consent requirements. Those enactments, and our judgment that they are constitutional, are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart. We cannot adopt a parallel assumption about adult women.
Why? Because adult women are adults. Certainly people of all ages benefit from consulting others. But mandating that consultation is infantilizing, plain and simple, and legally takes us back to the days when women couldn’t do much of anything without their husband’s permission or notification. The law, rightfully, puts great emphasis on the individual and on personal liberty. Again from O’Connor, “It is an inescapable biological fact that state regulation with respect to the child a woman is carrying will have a far greater impact on the mother’s liberty than on the father’s.” Obviously. When a woman is pregnant, it is her body that is affected, not her husband’s.
Spousal notification laws are further logically inconsistent — they literally give married women fewer rights than those who aren’t married. Unmarried women have the right to abortion without getting permission, or telling anyone else about it. Married women lose that right. Reproductive rights are inherently individual and personal, and should not be subject to change based on one’s marital status.
It should go without saying (but yet somehow it doesn’t) that the vast, vast, vast majority of married women do talk to their husbands before they have abortions. In an ideal world, a law like this wouldn’t be necessary because everyone would be in healthy relationships and no one would ever get hit. But when the #1 cause of death for pregnant women is murder, and the majority of those murders are at the hands of their husbands or intimate partners, we can’t assume that we live in such a world. And we certainly can’t make laws which depend on the assumption that all marriages and families are functional. Pointing that out isn’t degrading or hateful to men in general; it’s saying that the majority of people are good and functional, but a handful of both sexes just aren’t.
These laws are about control, plain and simple. While one can make the argument that Alito was simply trying to base his opinion on what he believed was the next logical step according to precedent, the same cannot be said for all the MRAs and wingers who are coming out of the woodwork now to support spousal notification. For them it isn’t about the right to privacy, but their own personal entitlement to their wives’ bodies.
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