Thursday, March 09, 2006

Abortion Rights and Men

It would probably come to no surprise to anyone who reads this blog that, when it comes to abortion rights, I am "pro-choice". I don't think that abortion is an ethical method of birth control (and yes, it is sometimes used for that). I think that, on this issue, I think that Senator Hillary Clinton gets it right: when she says that our society should use

a comprehensive approach to the problem of unintended pregnancies (which) provides a roadmap to the destination of fewer unwanted pregnancies -- to the day when abortion is truly safe, legal, and rare.

And please, let's be honest. We are not in a situation where "a baby can be killed so long as the umbillical chord is attached" (many people believe that is the case!). For example, Illinois law protects the fetus after it is viable (outside of the body):

http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/illinois.html?templateName=lawdetails&issueID=3&ssumID=2563

Illinois
Post-Viability Abortion Restriction

Illinois' post-viability restriction provides that no abortion may be performed after viability unless necessary to preserve the woman's life or health. The physician must use the available abortion method most likely to preserve the life and health of the fetus, and a second physician must attend to provide medical attention to any live born child. 720 Ill. Comp. Stat. Ann. 510/5

By the way, for a collection of enforcable and unenforcable reproductive rights in your state, you can go to the following site: (NARAL)

http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/

For example, Illinois law is discussed here:

http://www.prochoiceamerica.org/choice-action-center/in_your_state/who-decides/state-profiles/illinois.html

But I digress.

What I was really interested in was the topic from this diary from the Daily Kos:

http://www.dailykos.com/story/2006/3/8/201955/3509

Men Want Ability to Opt Out of Support in Unplanned Pregnancy

Wed Mar 08, 2006 at 06:19:55 PM PDT

Given South Dakota's new abortion law, more men in South Dakota will be paying child support for unplanned pregnancies (ah, good old DNA tests...). Where abortion provides women a choice, it also provides men with the opportunity to end an obligation to support an unwanted or unplanned child.

Enter The National Center for Men and their "Roe v. Wade for Men."

The National Center for Men announced today that it would be filing a lawsuit in Michigan on behalf of a 25 year old computer programmer who is paying child support for the child he and his ex-girlfriend have together.

The suit addresses the issue of male reproductive rights, contending that lack of such rights violates the U.S. Constitution's equal protection clause.

The gist of the argument: If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood. The activists involved hope to spark discussion even if they lose.

At heart, the lawsuit addresses the issue of a woman's choice, and the man's responsibility in managing the consequences of her choice. If the man and woman choose to abort an unplanned pregnancy, then they are in agreement and there is no conflict. They they both choose to have the child together and share in parenting responsibilities, again--no conflict.

But when a woman chooses to abort but the man wants her to give birth, what rights does he have? Or, as this lawsuit highlights--what happens when an unplanned pregnancy leads to the woman's choice to give birth to a child the father does not want? Should he be compelled--as is current law--to provide support for said child through the child's 18th or even 21st birthday?

And in light of South Dakota's law, and the Mississippi bill banning abortion in that state, riddle me this: if the "Roe v. Wade for Men" lawsuit results in a court's agreement that the Equal Protection clause is violated, and men can opt out of child support for children they do not want, then where does this leave women in states where abortion is illegal?

Well...

State courts have ruled in the past that any inequity experienced by men like Dubay is outweighed by society's interest in ensuring that children get financial support from two parents. Melanie Jacobs, a Michigan State University law professor, said the federal court might rule similarly in Dubay's case.

"The courts are trying to say it may not be so fair that this gentleman has to support a child he didn't want, but it's less fair to say society has to pay the support," she said.

Feit, however, says a fatherhood opt-out wouldn't necessarily impose higher costs on society or the mother. A woman who balked at abortion but felt she couldn't afford to raise a child could put the baby up for adoption, he said.

OK. So if men are given the choice to opt out of supporting the child, but women cannot choose abortion, can women then sue under the Equal Protection clause at some point, in the future, in states where abortion might be illegal?

That these two events--South Dakota's abortion ban, and the National Center for Men's "Roe v. Wade for Men" lawsuit--converge this week is fascinating.


Wow. I always thought that things were skewed towards women in this area. Sure, it is not a symmetrical problem as men simply don't have the health consequences that women have from pregnancy. But the courts have always been careful to "look after the interests of the child". In fact, men can be forced to pay child support for kids that they did not father! See the article below. Funny, but many of the women who gripe about being viewed as "incubators" have no problem viewing us as "wallets."

http://www.usatoday.com/news/nation/2002-12-02-paternity-usat_x.htm

Men wage battle on 'paternity fraud'
An acid sense of betrayal has been gnawing at Damon Adams since a DNA test showed that he is not the father of a 10-year-old girl born during his former marriage.

"Something changes in your heart," says Adams, 51, a dentist in Traverse City, Mich. "When she walks through the door, you're seeing the product of an affair."

But Michigan courts have spurned the DNA results Adams offered in his motions to stop paying $23,000 a year in child support. Now, Adams is lobbying the state Legislature for relief and joining other men in a national movement against what they call "paternity fraud."

In almost a dozen states, men have won the right to use conclusive genetic tests to end their financial obligations to children they didn't father. But women's groups and many public officials responsible for enforcing child support are battling the movement, which they say imperils children.

Most states design their family laws to protect what they call "the interests of the child." That means siding with the child's financial and emotional needs and against supposed fathers who want to avoid paying for tricycles and braces.

Taxpayers also have a big stake in child support collections, which have grown to$18 billion annually and cover 20 million children. If men who are paying child support no longer have to and authorities can't find the real fathers, welfare agencies will get the bill for family assistance.

Many men who feel deceived by a woman are in no mood to accept a legal system that doesn't recognize DNA science in such cases. "It's like they are saying, 'Let your wife cheat on you, have children by other men, divorce you, and now you have to pay for it all,' " says Air Force Master Sgt. Raymond Jackson, 43. California judges won't consider tests he says prove that the three children of his former 10-year marriage were fathered by other men.

Fraud, mistakes

There are signs of substantial fraud or mistakes in identifying fathers in child support disputes. The American Association of Blood Banks says the 300,626 paternity tests it conducted on men in 2000 ruled out nearly 30% as the father.

The legal doctrines raising barriers to DNA testing on paternity questions are formidable. In 30 states, married men face a 500-year-old legal presumption that any child born during a marriage is the husband's. The concept, based in English law, is aimed at preventing children from being branded illegitimate. Nebraska's Supreme Court ruled last week that an ex-husband who is not a child's father cannot sue the mother to recover child support payments.

The law is more flexible for men who admit to fathering a child out of wedlock but then change their minds or who are named by the mother. But they have only brief opportunities to deny paternity. Florida allows a year after a child support order, California two years after a birth.

Many unwed fathers paying child support have never admitted paternity. A 1996 federal welfare law requires a woman to name a father — no questions asked — when she applies for public assistance. A court summons can be mailed to the man's last known address. Many men don't get the notice. The result: The paychecks of 527,224 men in California, for example, are being docked under "default" judgments of paternity that can't be contested after six months.

Men who urge use of DNA cite a precedent: DNA's increasing impact in murder and rape cases.

"Think of it. I can get out of jail for murder based on DNA evidence, but I can't get out of child support payments," says Bert Riddick, 42, a computing teacher in Carson, Calif.

Riddick is paying $1,400 a month for a teenage girl born out of wedlock whom he's never met. Strapped, he and his wife are living with in-laws. Their three children, ages 3 to 11, cram into one room. He lost his driver's license for missing support payments and rides a bus 75 minutes to work.

Gradually, legislators are reshaping paternity law. Alabama, Arkansas, Georgia, Iowa, Ohio and Virginia now permit ex-husbands and out-of-wedlock fathers to end child support through DNA. Maryland has made the same change via court decisions.

Colorado, Illinois and Louisiana grant relief only to ex-husbands, allowing them to offer genetic proof. Texas allows ex-husbands four years from a birth to disprove paternity and gives unwed fathers unlimited time. A sweeping bill that would authorize married and unmarried fathers to offer DNA evidence is working its way through the New Jersey State Assembly.

Carnell Smith, 41, an engineer in Decatur, Ga., who was getting nowhere in challenging a support decree, started a group called U.S. Citizens Against Paternity Fraud that lobbied for the law Georgia Gov. Roy Barnes signed in May. The slogan on the Web site of Smith's group (www.paternityfraud.com): "If the genes don't fit, you must acquit." Smith is back in court and says, "I fully intend to be one of the first people to be released."

Pending in Vermont is the toughest bill of all. It would make a mother's knowingly false allegation of fatherhood a felony that could put her behind bars for up to two years and fine her up to $5,000. "A woman almost always knows who the father is, and if she puts down the wrong person knowingly and it's costing him money, it's just plain fraud," says state Rep. Leo Valliere, a Republican, the bill's sponsor.

Men's rights groups aren't advancing everywhere. California Gov. Gray Davis vetoed a bill in September that was opposed by women's organizations. It would have given men two years after discovering they weren't the father to produce the DNA evidence to prove it. Florida paternity fraud bills died this year. A package of bills passed the Michigan House 102-0 but is stalled in the Senate.

'Dump the child'

Some analysts say laws need revising but DNA shouldn't be decisive. "Some people want to dump the child and say biology is all that matters, not relationships," says Jack Sampson, a law professor at the University of Texas-Austin. Carol Sanger, a family law professor at Columbia University in New York, says the law should be more generous to men who may not even know a child than to dads who have been living with the kids they didn't father.

"Families are more complicated than who's biologically related to whom," says Valerie Ackerman, staff director for the National Center for Youth Law in Oakland. "If there has been a relationship between a father and child, the man can't just abdicate the responsibility that he's taken on."

Supporters of current law say the interests of the child should trump a man's concern for his wallet. "The other guy is somewhere over the hill and long gone," says Jenny Skoble, an attorney at the Harriet Buhai Center for Family Law in Los Angeles. "If it comes down to whether the only (available) father is going to be on the hook to pay money or this kid is going to be in the situation of having no father, I'd say we have to put the child first."

Men who want relief say it's a matter of equity. "DNA equals truth," says Patrick McCarthy, 41, a Hillsborough, N.J., package courier. After paying for 13 years to support a girl he denies fathering, McCarthy co-founded New Jersey Citizens Against Paternity Fraud. The group has put up nine billboards supporting the pending bill in New Jersey. The ads depict a pregnant woman and ask, "Is it yours? If not, you still have to pay!"

"Obviously, there's more to fatherhood than genes," McCarthy acknowledges. "However, to pay support on a non-biological offspring should be an individual choice, not ordered by the courts." Adams says he's willing to directly aid the child he'd thought was his but doesn't want to give his ex-wife any more cash.

Trouble could be minimized if all children were DNA-tested at birth or at the time of divorce, says Geraldine Jensen, president of the Association for Children for Enforcement of Support. She says maternity wards should distribute pamphlets telling men, "Get tested now if you have any questions, because doing it later will disrupt this child's life."


My note: the CNN article is below:

Male activists want say in unplanned pregnancy

Lawsuit seeks right to decline financial responsibility for kids

NEW YORK (AP) -- Contending that women have more options than they do in the event of an unintended pregnancy, men's rights activists are mounting a long shot legal campaign aimed at giving them the chance to opt out of financial responsibility for raising a child.

The National Center for Men has prepared a lawsuit -- nicknamed Roe v. Wade for Men -- to be filed Thursday in U.S. District Court in Michigan on behalf of a 25-year-old computer programmer ordered to pay child support for his ex-girlfriend's daughter.

The suit addresses the issue of male reproductive rights, contending that lack of such rights violates the U.S. Constitution's equal protection clause.

The gist of the argument: If a pregnant woman can choose among abortion, adoption or raising a child, a man involved in an unintended pregnancy should have the choice of declining the financial responsibilities of fatherhood. The activists involved hope to spark discussion even if they lose.

"There's such a spectrum of choice that women have -- it's her body, her pregnancy and she has the ultimate right to make decisions," said Mel Feit, director of the men's center. "I'm trying to find a way for a man also to have some say over decisions that affect his life profoundly."

Feit's organization has been trying since the early 1990s to pursue such a lawsuit, and finally found a suitable plaintiff in Matt Dubay of Saginaw, Michigan.

Dubay says he has been ordered to pay $500 a month in child support for a girl born last year to his ex-girlfriend. He contends that the woman knew he didn't want to have a child with her and assured him repeatedly that -- because of a physical condition -- she could not get pregnant.

Dubay is braced for the lawsuit to fail.

"What I expect to hear [from the court] is that the way things are is not really fair, but that's the way it is," he said in a telephone interview. "Just to create awareness would be enough, to at least get a debate started."

State courts have ruled in the past that any inequity experienced by men like Dubay is outweighed by society's interest in ensuring that children get financial support from two parents. Melanie Jacobs, a Michigan State University law professor, said the federal court might rule similarly in Dubay's case.

"The courts are trying to say it may not be so fair that this gentleman has to support a child he didn't want, but it's less fair to say society has to pay the support," she said.

Feit, however, says a fatherhood opt-out wouldn't necessarily impose higher costs on society or the mother. A woman who balked at abortion but felt she couldn't afford to raise a child could put the baby up for adoption, he said.

'This is so politically incorrect'

Jennifer Brown of the women's rights advocacy group Legal Momentum objected to the men's center comparing Dubay's lawsuit to Roe v. Wade, the 1973 Supreme Court ruling establishing a woman's right to have an abortion.

"Roe is based on an extreme intrusion by the government -- literally to force a woman to continue a pregnancy she doesn't want," Brown said. "There's nothing equivalent for men. They have the same ability as women to use contraception, to get sterilized."

Feit counters that the suit's reference to abortion rights is apt.

"Roe says a woman can choose to have intimacy and still have control over subsequent consequences," he said. "No one has ever asked a federal court if that means men should have some similar say."

"The problem is this is so politically incorrect," Feit added. "The public is still dealing with the pre-Roe ethic when it comes to men, that if a man fathers a child, he should accept responsibility."

Feit doesn't advocate an unlimited fatherhood opt-out; he proposes a brief period in which a man, after learning of an unintended pregnancy, could decline parental responsibilities if the relationship was one in which neither partner had desired a child.

"If the woman changes her mind and wants the child, she should be responsible," Feit said. "If she can't take care of the child, adoption is a good alternative."

The president of the National Organization for Women, Kim Gandy, acknowledged that disputes over unintended pregnancies can be complex and bitter.

"None of these are easy questions," said Gandy, a former prosecutor. "But most courts say it's not about what he did or didn't do or what she did or didn't do. It's about the rights of the child."

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