Many movements are afoot that seek either to define unborn human beings as persons or to outlaw abortion in a state, thus representing a direct challenge to the Supreme Court’s vandalism of the Constitution (credit to Lila Rose for that phrase) in Roe v. Wade,  and Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Some in the pro-life movement have cautioned against such a move, since the entities (like the ACLU or Planned Parenthood) that go into court to challenge these laws as unconstitutional could have their hefty attorneys’ fees paid at taxpayers’ expense, should the Court strike the laws down.

Reasonable minds can differ on which tactic should prevail, but I do have some thoughts for state legislators who would like to challenge the status quo on abortion, but would also like to take a more cautious approach than an outright ban on the procedure.

While the Supreme Court has denied the personhood of the unborn, no court has yet deigned to declare that men are not legal persons.  Along with their personhood come rights that the abortion cases fail to reconcile with a woman’s right to abortion-on-demand.

The two rights in play here are the right to procreate [Skinner v. Oklahoma ex rel. Williamson, 316 U.S. 535, 541 (1942); Stanley v. Illinois, 406 U.S. 645 (1972)(which cites other cases calling the “rights to conceive and to raise one’s children” “essential,” among the “basic civil rights of man,” and “rights far more precious…than property rights”)], and the right “in” their children [Stanley v. Illinois, 405 U. S. 645, 651-652 (1972); Quilloin v. Walcott, 434 U. S. 246 (1978); Caban v. Mohammed, 441 U. S. 380 (1979); and Lehr v. Robertson, 463 U. S. 248 (1983)].

These gain some recognition in abortion cases, but only insofar as this proposition “supports” the right to abort.  When majorities in Casey and an earlier case, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), come to the question of the man, and whether state statutes may require notification and consent, respectively, the court simply reasons as though these rights do not exist.  A concurring opinion in Danforth noted this:

This seems to me a rather more difficult problem than the Court acknowledges. Previous decisions have recognized that a man's right to father children and enjoy the association of his offspring is a constitutionally protected freedom[…]In assessing the constitutional validity of § 3 (3) we are called upon to choose between these competing rights. Id at 90.

This concurring judge, Justice Stewart, goes on to state that even recognizing that at times the right of the man to procreate and the right of the woman to abort are in conflict, the right to abort prevails:
I agree with the Court that since "it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy… the balance weighs in her favor." Id.

This is roughly the same rationale the Court employs when declaring a notification provision unconstitutional in Casey, although instead they use the term “bodily integrity.”
Before birth, however, the issue takes on a very different cast. 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. The effect of state regulation on a woman's protected liberty is doubly deserving of scrutiny in such a case, as the State has touched not only upon the private sphere of the family but upon the very bodily integrity of the pregnant woman.

Planned Parenthood v. Casey, 505 U.S. 833, 896 (1992)

Both of these rejections of the man’s right to procreation are rooted in the physical realities of pregnancy—the location of the baby in the woman.

What about rationales that have nothing to do with the fact that the woman is carrying the baby? The Court is careful to split hairs when the distinction is between the man’s rights in family and the woman’s rights in bodily integrity.  But what about the instances when the woman’s rationale is not about her bodily integrity or her rights in the family but about lesser concerns, like economic realities, or simple convenience?  The physical realities of pregnancy actually at the heart of any concept of bodily integrity are, in fact, very rarely the reason that women cite for their decisions to abort.[1] The Supreme Court has implied, perhaps without realizing it, that the physical realities of pregnancy for the woman will serve to imbue her most weightless rationales with the magic ability to trump a man’s right to procreation, and his right in his children.

Savvy state legislators should make the Supreme Court say this outright, if that is the type of regime they support.  They could do this by writing a law that says essentially that women must notify the men of their decision to abort, and gain their consent, except in situations where their reasons for aborting relate to the physical realities of pregnancy.  The law in its findings should make explicit mention of the fact that the Court’s rationale for trumping men’s rights rest solely in the physical realities of women, when it is rarely their physical condition that has anything to do with the decision.

A law of this nature would, of course, lead many women to falsely claim some physical rationale when in fact there is none.  Some women wouldn’t lie, however, and in this way, such a law could save lives.

Aside from this, though, are the strained arguments it would force the Supreme Court to make if a majority sought to defend the current regime against an attack this type of law would present.  Supreme Court Swing Vote Justice Anthony Kennedy’s opinion in Gonzalez v. Carhart (where he supported a ban on partial-birth abortion) suggests that he isn’t up to making such arguments these days.  It is worth finding out for sure.

Scott Lloyd is an attorney for LegalWorks Apostolate in Front Royal, Virginia. Formerly an attorney for the US Department of Health and Human Services, his areas of work include health law and policy, conscience rights, family law, and communications law.

[1] See, Lawrence Finer, et. al, "Reasons U.S. Women Have Abortions: Quantitative and Qualitative Perspectives"  Perspectives on Sexual and Reproductive Health, Vol. 37 No. 3 (Sept., 2005) p. 110, at (12% of women surveyed in 2004 listed “physical problems with my health” as their reason for aborting). See also, for example, Guttmacher Institute, Facts on Induced Abortions in the United States, Guttmacher Institute In Brief, July 2008, at, which does not even mention physical difficulty.  See also, Miguel Vazquez, ‘It was Horrible, Horrible!’  A First-Hand Account of What Goes on Inside a Chula Vista Abortion Clinic, San Diego News Notes, January, 2005, at [“In most of the cases we handle there is no really pressing need…One 38-year-old woman told me, 'It's either the baby, or it's my daughter's quinceañera (A traditional Mexican debutant party for 15-year-old girls). It's not my daughter's fault that I got pregnant.' … Another one came because she was going to get married and wanted the abortion before the honeymoon.”].  See also, Susan Kinzie, Yale Senior’s ‘Abortion Art’ Whips Up Debate, Protests, The Washington Post, April 18, 2008, at (detailing a hoax in which an art student claimed to have had abortions to create an art project, which would have been legal if the abortions were real); John Leland, Under Din of Abortion Debate, an Experience Shared Quietly, N.Y. Times, September 18, 2005, at (four women list financial reasons, one says she could not “start again” after having one child, one had a lack of support from an abusive boyfriend).