Abortion is one of the most controversial issues in American politics. The appropriate role that the father has in the abortion decision, if any, is just one of many heated debates on the topic. Though in some cultures throughout history, and even in 2010, men have a significant or even dominant role in abortion decisions, American father’s have essentially no legal right. The context in which this concern has been most litigated in the U.S. is with regard to the rights of married men whose wives seek to have an abortion.
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Davis v. Davis
In 1992, a groundbreaking case regarding father’s rights was decided in Tennessee. A divorced couple had been unsuccessful in having children and had created fertilized embryos that were frozen for future implantation. After the couple divorced, the woman wanted to go ahead with the implantation. Though the trial court ruled in her favor, saying it was in the best interests of the embryos to be implanted and be born, the appellate court held that the man had a constitutional right to not be made a father without his consent. The decision was affirmed by the Tennessee Supreme Court, but not reviewed by the U.S. Supreme Court.
Planned Parenthood v. Casey
That same year, the Supreme Court issued its own landmark decision on father’s rights. A Pennsylvania statute authorizing abortion required, among other things, spousal notification of the procedure. The law had been invalidated at the federal appellate level as unconstitutional, and a sharply divided Supreme Court upheld the ruling. The decision was based on prior cases in which the Court had found the right to decide whether or not to have a child is a fundamental aspect of individual privacy protected against intrusion from state laws by the Due Process Clause of the 14th Amendment.
More than a decade after the decision in Planned Parent v. Casey, the controversy was again in the headlines. In 2005, then-president Bush nominated Samuel Alito, Jr. to the high court. Alito had sat on the three-judge panel that decided Casey at the appellate level. Though that court had struck down the parental notification requirement, Alito had been the lone dissenter. Alito was eventually approved by the Senate and ascended to the high Court, where as of 2010 he currently sits alongside Justice Antonin Scalia, who also dissented in Casey on the issue of spousal notification.
The possibility that the Supreme Court will explicitly overturn Planned Parenthood v. Casey is low, but there is a chance a conservative-leaning Court could issue a ruling that gives states some leverage to require spousal notification before an abortion. A 2003 Gallup poll on the subject found public opinion had remained fairly steady in the decade since Casey, and that it was largely in favor of spousal notification. Seventy-two percent of respondents favored parental notification, with 67 percent of women agreeing that a woman should notify her husband before getting an abortion. Over time, the Supreme Court does tend to come in line with public opinion, and some believe the reasoning in Davis v. Davis could be a way to bridge the gap.
As the sperm donor for a fertilized embryo, you have the legal right to prevent becoming a father against your will. But with regard to a fetus developing inside a women, you have no legal say over whether an abortion occurs or not. A variety of public interest advocacy groups have been formed to argue in favor of giving men a right in the abortion decision. The law is one-sided, they say, because a man can be forced to accept the legal obligations of paternity, but can't prevent a woman from aborting a baby when he wants it to be born. The law can change, and the debate rages on, with states like Ohio considering legislation that could potentially sidestep the Casey decision.