Fatherhood in Law and Culture in the Wake of Roe, ‘Quo Vadis’

COMMENTARY: But the potential fall of Roe will have implications, certainly in connection with abortion … and with Father’s Day.

If states regain power to regulate abortion, expect the debate over paternal rights to have to be revisited, which it should.
If states regain power to regulate abortion, expect the debate over paternal rights to have to be revisited, which it should. (photo: Shutterstock)

Many Americans will be watching the Supreme Court closely this June. The court is likely in late June to hand down its decision in Dobbs v. Jackson, which may bring Roe v. Wade’s almost-50-year reign of abortion on demand to an end. 

The likelihood of a decision in late June brings it close to Father’s Day, though the ruling is unlikely to come down on Monday, June 20, which will be the transferred observance of the new federal holiday “Juneteenth.” Still, some reflections on Father’s Day and Roe seem in order.

Those undergoing panic attacks at the possible demise of Roe raise questions about its potential follow-on implications. Many of them are using scare tactics to intimidate people into believing the Supreme Court is chopping at the bit to delegalize interracial marriage or contraception.  

But the potential fall of Roe will have implications, certainly in connection with abortion … and with Father’s Day. How?

Current rhetoric notwithstanding, Roe was an extremely radical decision. The unlimited abortion license created by the ruling essentially invalidated laws in at least 46 of 50 states. Arguably, it provided the basis to throw them all out because even New York’s law — permissive by the standards of the day — banned abortion after 24 weeks (six months) of pregnancy.

Roe created a vacuum. The Supreme Court had the “raw judicial power” to invalidate laws but not to make them. So, in the aftermath of Roe, states scrambled to address the legal status of abortion under various circumstances.

One of those circumstances was a father’s role in abortion. Roe had not addressed that question. Justice Harry Blackmun even threw a bone to those who affirmed that life existed before birth by writing a “pregnant woman cannot be isolated in her privacy” (410 US 113 at 159). Missouri sought to address how a father fit into that “privacy.”

Following the science and the common sense of sex, states argued that since it “took two” to create a baby, those two both had an interest in its existence. Missouri enacted a law that made spousal consent necessary to obtain an abortion.

The Show-Me State was promptly challenged in federal court, and, in its 1976 ruling Planned Parenthood v. Danforth, the Supreme Court nullified the Missouri requirement. The court did what it claimed in Roe not to do: isolate a mother in her “privacy.”

The essence of the court’s logic was that since women were more directly implicated in a pregnancy, their “interest” was greater than fathers’ — who could not block an abortion. 

The question, of course, is whose “interest.” Roe also paid lip service to a state’s “interest” in the “potential human life” of the unborn child, but, in Danforth, as in much of the Supreme Court’s abortion jurisprudence, that “interest” is a pure chimera. No life, “potential” or otherwise, ever got in the way of federal abortion rulings.

The only “interest,” then, was the mother’s, and, in Danforth, the court decided it nullified any interest of the father’s. That has tallied with pro-abortion orthodoxy, which insists abortion is a “woman’s right” that men should stay out of.

(The opportunistic nature of pro-abortion orthodoxy was on display, however, in a May 26 New York Times guest essay, “Men Have a Lot to Lose When Roe Falls.” The nub of the Times argument was that men would have to take economic and relational responsibility for a child and maybe even a woman if they cannot vacuum aspirate their offspring out of existence).

What is particularly disturbing about Danforth, however, is how the court decided the Missouri law was unconstitutional. Blackmun, who also wrote Danforth, opined that because Missouri did not have the power to deny a woman an abortion, it could not “delegate” that veto to a father.

Please reread that rationale. It regards the rights of fatherhood not as coming from the fact of one’s being a father but as “delegated” by the state. This is very clearly a question of Catholic social ethics, which would certainly insist that parental rights preexist and are superior to the state. I have never regarded my fatherhood as a gift of the state of New Jersey.

If states regain power to regulate abortion, expect the debate over paternal rights to have to be revisited, which it should. In the wake of nearly a half-century of Roe, pro-abortion absolutists will almost certainly oppose any such restrictions tooth and nail. But we have the “science” on our side.

One of the malignant residues of Roe has been federal jurisprudence that conceives of “procreative choice” in terms of an “individual’s” interests and “privacy.” That paradigm is false and unscientific, for the simple fact that having a child is not a solo act. It inherently involves somebody else.

The problem is what we think of that “somebody” as. Is that other a “person,” with the full rights and responsibilities of an incarnate, enfleshed being? Or is (s)he simply a supplier of gametes or a temporary incubator, as artificial insemination, ovum donation and the modern-day trafficking-in-persons known as “surrogacy” all entail? 

Should our society regard parenthood as what former Paris Archbishop Michel Aupetit called a “project,” in which one party is a full person while the other merely supplies necessary ingredients? From a social and legal viewpoint, have we reached the point where a father’s “role in reproduction has come to be limited to ‘having sex and providing sperm?’”

That might be a question worth revisiting this Father’s Day.

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