U.S. Supreme Court Declares Men Have Right To Abortion

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"the ‘right’ to unilaterally kill [an] unborn child that another person is carrying, is neither fundamental nor important—indeed, it does not exist.”
Pennsylvania Supreme Court
Commonwealth v. Bullock, 913 A.2d 207, 215 (Pa. 2006)
October 18, 2006

The U.S. abortion rate declined to 16.9 abortions per 1,000 women aged 15–44 in 2011, well below the 1981 peak of 29.3 per 1,000 and the lowest since 1973 (16.3 per 1,000) … our study did not find evidence that the national decline in abortions during this period was the result of new state abortion restrictions.
Guttmacher Institute
Monday, February 3, 2014

In an exceptionally controversial decision on the explosively contentious matter of abortion, the U.S. Supreme Court has ruled a man has the right to terminate a pregnancy. In the culminating appeal of a case in which a male defendant had been found guilty of the Unborn Victims of Violence Act, the Court found that the UVVA violated the Equal Protection Clause and the state needs to clarify the matter of when life begins.

A Tragedy Begins

The case began four years ago this month when Ms. Jane Doe informed Mr. John Smith that she was pregnant with his child. The two wed the next month, but Mr. Smith repeatedly indicated his reluctance to produce children and had asked Ms. Doe to obtain an abortion. Ms. Doe objected and informed Mr. Smith in clear terms she would not undergo the procedure. The next month, Ms. Doe underwent an ultrasound, which indicated the fetus had a heartbeat; Mr. Smith was present at this appointment.

Mr. Smith then began to research methods on how to induce an abortion. He subsequently bought Misoprostol, a drug known to cause abortions, from an online company in Canada. Mr. Smith then ground up the drug and put the powder into Ms. Doe’s food and drink on four different occasions, without her knowledge.

One morning at the end of the month, Ms. Doe experienced severe cramping and awoke to find she was bleeding. At the hospital, an ultrasound indicated she had miscarried. It was estimated that her pregnancy terminated at approximately eight weeks gestation. A few months later, Ms. Doe heard from a friend that Mr. Smith caused the abortion by putting drugs into her food. She confronted her husband on the phone and secretly taped the conversation. Mr. Smith ultimately admitted to what he had done and Ms. Doe took the information to the local authorities.

The case was initially investigated by the local county sheriff’s office, which then turned its report over to the FBI and to the U.S. Attorney’s Office. The U.S. Attorney’s Office took the case to federal grand jury. Mr. Smith was then indicted by a federal grand jury on a federal murder charges under the federal Unborn Victims of Violence Act (UVVA, 18 U.S.C. Section 1841).

The UVVA provides that if during commission of any of 68 specific federal crimes, an unborn child is injured or killed, a second charge may be brought on behalf of the second victim — the unborn victim. The federal grand jury did exactly that in this case. Citing the UVVA, the indictment charged Mr. Smith with the murder of “the unborn child in utero of [Ms. Doe].” The murder charge carries a maximum possible penalty of life in prison.

Conviction and Appeal

One year later, a jury convicted Mr. Smith of the murder charge and the judge applied the maximum life sentence. Mr. Smith then appealed the decision alleging that one, the law violates the Equal Protection Clause because it adopts a gender-based classification and, two, “causing the death of an unborn child” is unconstitutionally vague.

Regarding gender differences, Mr. Smith’s lawyers argued the UVVA violated equal protection by exempting mothers from prosecution for causing harm to the unborn child but excluding the father from similar protection. Mr. Smith’s lawyers asserted the Equal Protection Clause directs that all persons similarly circumstanced shall be treated alike; the team cited numerous examples of how a father might be indicted for conduct that causes the unborn child to die in utero but the mother would be free from prosecution for the same actions.

Regarding constitutional ambiguity, Mr. Smith’s lawyers identified the numerous definitions and interpretations for “child” and asserted the the law’s lack of specificity would lead the triers of facts to give their own definitions as to when an unborn fetus becomes a member of the species, when life occurs, and when death occurs. This, in turn would lead to indiscriminate results, as differing triers of facts will give various definitions, depending on their own subjective beliefs and interpretations.

Furthermore, Mr. Smith’s lawyers argued that UVVA provisions violated the principles of Roe v. Wade, in which the Supreme Court specifically held that the word “person” as used in the Fourteenth Amendment does not include the unborn. Lastly, in Roe, the Court stated that conception is a “‘process’ over time, rather than an event.”

Therefore, according to the appeal, the UVVA definition of an unborn child as a member of the species homo sapiens, at any stage of development, who is carried in the womb equates an unborn fetus to a constitutional person is an outcome specifically rejected in Roe.

As commonly understood, America's prenatal policy has been defined by Roe vs. Wade, which banned states from barring early-stage abortions; the UVVA, however, punishes the killing of an unborn human in any stage of gestation during the commission of a separate federal crime.

I.

On the matter of gender differences, the Court’s opinion stated the following:

In prior cases, appeals courts could dismiss an appellant’s equal protection argument by concluding allegedly similar situations -- unborn child homicide statutes had exposed male defendants to serious penal consequences while not subjecting others, to include mothers who intentionally terminate a nonviable fetus or embryo, to criminal sanctions -- were dissimilar. In prior cases, the courts would be correct as the male defendants in such cases had assaulted a pregnant woman causing the death of the fetus she is carrying without the consent of the woman.

However, in this case, the male defendant did not assault the pregnant woman, the pregnant woman’s health was not imperiled, and the male had proceeded and acted in the exact same manner as a woman would have. Indeed, the male defendant consulted with three three medical professionals legally authorized to perform abortions.

Ultimately, the law impinged upon a father’s right to produce children or promote their development -- or not to produce children or promote their development -- in the same vein as a woman’s rights. [Emphasis in the original].

The fact that the male defendant did not notify the woman of the Misoprostol’s presence, while egregious, is immaterial and underscores the applicability of the Equal Protection Clause; notification provisions requiring women to inform third parties have been deemed unconstitutional in that they constitute an undue burden on the right to obtain an abortion. If a woman is not required to notify, why a man would be required is not evident.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a man's decision whether or not to terminate a pregnancy.

The detriment that the State would impose by denying this choice altogether is apparent. Paternity, or additional offspring, may force upon the man a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it.

Accordingly, the provisions of the UVVA singularly exempting mothers from prosecution for causing harm to the unborn child are unconstitutional and fathers possess the right to terminate a pregnancy resulting from his sperm.

II.

On the matter of constitutional ambiguity, the Court’s opinion stated the following:

The expansion of the right of privacy to both mother and father may introduce circumstances where the state’s important and legitimate interest in protecting the potentiality of human life is undermined.

More pointedly, the potential human life is now at greater risk of termination because the potential human life’s actuation from unborn to born is now dependent on two individuals agreeing the actuation must occur, not just one.

Given the plain, common sense reading of the UVVA term “unborn child,” it is difficult to imagine a situation in which the meaning would be unclear, unless the mother and father are undecided or in disagreement as to the unborn child’s future.

Whether the state accepts this outcome is unknown and requires remedy.

Regardless of the scientific, philosophical, or theological perspectives on when potential human life is viable, its existence is the result of two cells -- an ovum (female gamete) and a sperm cell (male gamete) -- combining to form a single cell (e.g. the zygote) containing the DNA of the female and male individuals.

Obliging both male and female to be in agreement would directly contravene the individual right to privacy cited previously. Permitting either male or female to act unilaterally would be consistent with the right to privacy, but this permission underscores the complications arising from a consensus on when “life begins.”

To reiterate the original conclusion included in Roe, “those trained in the respective disciplines of medicine, philosophy, and theology are unable to arrive at any consensus, [and] the judiciary, at this point in the development of [human] knowledge, is not in a position to speculate as to the answer.” The Court can no more expect two individuals, more proximate and intimate to such circumstances, to come to a consensus when even the Court cannot.

In establishing the equal protection impact of the case, the Court now notes that each individual, in exercising their respective right to privacy, may have divergent intentions to exercise his or her respective rights regarding the future of the unborn child, intentions directly resulting from their divergent perspective of when potential life begins. [Emphasis in the original]

Under Roe, conception was deemed a "process" over time, rather than an event and, with respect to the State's important and legitimate interest in the health of the mother, the "compelling" point, in the light of present medical knowledge, was at approximately the end of the first trimester.

In the present day, over forty years later, new scientific knowledge and technological innovations should invite a re-investigation of when in this “process” the state’s important and legitimate interest in protecting the potentiality of human life can take precedent over the right to privacy.

The law, as before, is reluctant to endorse any theory of life and prescribing remedy declines to use its remedial powers to circumvent the intent of the legislature; indeed, the touchstone for any decision about remedy is legislative intent. To be direct, to nullify more of a legislature’s work than is necessary because a ruling of unconstitutionality would contravene the intent of the elected representatives of the people.

When Roe was first decided, the Court sought to protect a pregnant woman’s right to obtain a safe medical procedure. The decision has since become a cornerstone of women’s reproductive rights. Indeed, the debate surrounding the UVVA clearly indicates that the law was specifically drafted to comply with Roe and the legislative history makes clear that the UVVA represents Congressional intent to protect the potentiality of human life. (Even detractors of the legislation agreed that such protection was necessary.)

However, we have determined that the UVVA violates equal protection and that men similarly possess the right to terminate a pregnancy resulting from his sperm, and, as noted above, new scientific knowledge and technological innovations over the past forty years should prompt a re-examination of the state’s interests regarding the potentiality of human life.

Accordingly, the provisions of the UVVA referring to unborn child are unclear and the appropriate remedy would entail the elected representatives of the people identifying when the interest of protecting the potentiality of human life should take precedence over the right to privacy.

III.

The above is hypothetical but it is a plausible and conceivable outcome arising from contemporary thinking on how the Constitution should address matters of life. In the present day, how long before a craven and cowardly man bids for this right.

When Roe was first decided, it was a matter of access to a medical procedure and women’s health, and, indeed, more broadly, public health. While the formulation of “safe, legal, and rare,” is laudable, the debate over the potentiality of human life only reminds one how this procedure ultimately entails the destruction of human life, and with it, the erosion of the relationship central to its very occurrence.

Sole reservation of the right by the mother has liberated men from the responsibility to step forward as a father and a husband. Lower costs -- more specifically, lower obligations arising from the sexual act and relationships further increase the convenience of abandoning the potential for a family. Regardless of the judiciary’s opinion, terminating a pregnancy is the destruction of human life and the casual abdication of moral leadership by the Republic’s elite augurs the eventual evisceration of the family.

In 2012, there were more black babies killed by abortion (31,328) in New York City than were born there (24,758), and the black children killed comprised 42.4% of the total number of abortions, according to a report by the New York City Department of Health and Mental Hygiene.

The report is entitled, Summary of Vital Statistics 2012 The City of New York, Pregnancy Outcomes, and was prepared by the New York City Department of Health and Mental Hygiene, Office of Vital Statistics.


References

1. 1990/01/19 State v. Merrill, 450 N.W.2d 318 (Minn. 1990); Supreme Court of Minnesota
2. 2001/12/19 The Consequences of Single Motherhood; The American Prospect; Sara Mclanahan
3. 2011/06/29 United States v. Airman First Class Scott D. Boie United States Air Force; United States Air Force Court Of Criminal Appeals
4. 2011/07/22 Men Should Be Allowed to Veto Abortions; FoxNews; Dr. Keith Ablow
5. 2012/01/31 Coming Apart, The State of White America, 1960-2010; Charles Murray
6. 2012/06/08 Unexpected Pregnancy, Morality, and the Law; Slate; Katie Roiphe
7. 2013 Winter The Next Battleground? Personhood, Privacy, And Assisted Reproductive Technologies; Oklahoma Law Review; Volume 65 Number 2; Mark Strasser
8. 2013/05/24 Abortion pill cases link Tampa woman to stranger in Oklahoma; Tampa Bay Tribune; Patty Ryan
9. 2013/05/27 Constitutional Challenges to Unborn Victims (Fetal Homicide) Laws; National Right To Life
10. 2013/08/28 How To Convince A Girl To Get An Abortion; Return of Kings; Anonymous
11. 2013/09/10 Man pleads guilty to tricking pregnant girlfriend into taking abortion pill; CNN; Lateef Mungin
12. 2013/10/02 Remee Lee–tricked into taking abortion pills—is suing pharmacy; National Right To Life News; Dave Andrusko
13. 2013/10/30 Survey Says: Women Are for Life; The Public Discourse; Daniel Kuebler
14. 2014/01/25 More Imperfect Unions; New York Times; Ross Douthat
15. 2014/01/27 The Case Against Reproductive Freedom; Slate; William Saletan
16. 2014/01/27 Welden gets 13 years in abortion pill case; Tampa Bay Tribune; Elaine Silvestrini
17. 2014/01/29 An Abortion Right for Men; RealClearPolicy; Robert VerBruggen

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