by Dawn Johnsen and Lynn Paltrow
The following article is from the Spring/Summer 1988 issue of CIVIL LIBERTIES, a newspaper published by the American Civil Liberties Union. It is presented for the purpose of editorial critique. The opinions of the authors are not necessarily those of this presenter.
BOYFRIENDS AND HUSBANDS USE COURTS TO BLOCK WOMEN'S ABORTIONS
By Dawn Johnsen and Lynn Paltrow, Staff Attorneys, "ACLU Reproductive Freedom Project"
During the last several months, the anti-abortion forces have implemented a new strategy in their systematic campaign to deprive women of their reproductive freedom. In cases in Indiana, Utah, and Pennsylvania, individual men, represented by anti-choice lawyers, have sought and obtained temporary restraining orders ("TROs") from state courts enjoining women from exercising their right to choose to have an abortion. Three cases were recently brought by men who claimed to be the women's "boyfriends" and two were brought by the women's husbands.
These cases, usually orchestrated by anti-choice activists, only arise where there is a problem in the marriage or the relationship. They frequently reflect not a concern for the woman or the baby that might be, but rather a hurt or spurned lover's desire to continue or control the relationship. Husbands and boyfriends, of course, have every right to express their views on pregnancy from the beginning of the relationship and to seek a different relationship if the couple's views on childbearing do not coincide. Partners who disagree about terminating a pregnancy should seek help from a professional counselor not a court order from a judge.
Thus far, these cases have been concentrated in Indiana, where courts have issued three TROs in the last two months. This strategy was devised by Indiana attorney James Bopp, Jr., who is general counsel to the National Right to Life Committee. Bopp has stated that his ultimate goal is to bring one of these cases to the U.S. Supreme Court as a device to have Roe vs. Wade, and the many subsequent cases recognizing a woman's right to choose to have an abortion, overturned. Bopp has made available at no cost, and is advertising nationwide, what he calls a "Father's Rights Litigation Kit." It contains all of the legal documents necessary to bring a case seeking to enjoin a woman from having an abortion. In addition to the Indiana cases, this litigation kit has already been used by a "boyfriend" to obtain a TRO against a pregnant woman in Philadelphia. Anti-choice lawyers have issued ominous warnings of more cases to come.
WITHOUT A HUSBAND'S CONSENT
Although the pregnant women in the five current (and any future) cases are almost certain to prevail in the end, these women have and will suffer devastating constitutional deprivations prior to their ultimate victory. Ordering a woman not to end an unwanted pregnancy directly conflicts with a long line of U.S. Supreme Court decisions recognizing the constitutional right of every individual to decide whether and when to have a child. The Court specifically held in 1976 that a woman has the right to have an abortion without her husband's consent. And every lower federal court to address the issue has ruled that requiring spousal consent or notification is unconstitutional; spousal consent laws are ultimately just a mechanism for harming pregnant women through delay and/or harassment.
The harms to pregnant women are clear from the experiences of the women in the first two Indiana cases. On April 4, 1988, a court in Vigo County, Indiana, issued a TRO prohibiting a young unmarried woman from obtaining an abortion. Clinics and physicians were also ordered not to perform an abortion on her. The woman, identified as Jane Doe, had no prior notice and no opportunity to oppose the court order which was requested by an man identified as John Smith, allegedly Jane's boyfriend.
Three days later, the court held a hearing to determine whether it would permanently order Jane not to have an abortion. The court permitted John to testify about the most intimate details of Jane's life, with the judge personally evaluating her sexual relationships, her use of birth control, and the degree to which Jane and her boyfriend allegedly loved each other. The court also permitted three other people to testify on John's behalf. Jane herself refused to be subjected to the embarrassment of testifying and being cross-examined, properly maintaining that her reasons for wanting an abortion were highly personal and the court was acting unlawfully in seeking to examine those reasons.
BOYFRIEND OF THREE MONTHS
The Vigo court ignored the Constitution and controlling Supreme Court precedent and issued a permanent injunction ordering Jane to bear a child. Forcing nine months of pregnancy, labor, childbirth, and unwanted motherhood on anyone is an awesome and intolerable burden. Moreover, Jane was only 18 years old, John claimed to have been her boyfriend for only three months, and his responsibility for the pregnancy was challenged.
Based solely on the testimony of John and his three witnesses, the court found that Jane's reasons (never articulated by her) for wanting an abortion were not good enough. The court trivialized the abortion decision by focusing on, for example, John's claim that Jane simply "wishes to look nice in a bathing suit this summer," ignoring the many obvious reasons such as age, length of relationship, life plans, and health which undoubtedly influenced Jane's decision to have an abortion. By the time of the court order, her abortion had been delayed at least five days and though abortion is safer than childbirth at all stages, each week of delay increases by 50 percent the physical risks to a woman's life and by 30 percent the risks to her health.
On April 13, Jane notified the Indiana Supreme Court that she had terminated her pregnancy despite the court order; like the millions of women who sought and obtained illegal abortions before Roe vs. Wade, Jane would not tolerate the unconstitutional invasion of her rights and the risks to her physical and emotional health that the court order imposed. The issue, however, is not over.
As briefs were being filed in Jane's case, yet another Indiana court issued a TRO ordering a woman not to have an abortion, again at the request of an alleged "boyfriend." Although the court ultimately dismissed the court order, properly finding that the woman had a clearly established constitutional right to make the decision to choose to have an abortion, the boyfriend immediately requested a further court order from the Indiana Court of Appeals, then from the Indiana Supreme Court, and then from two U.S. Supreme Court Justices, all of whom denied his request. This case, which took a total of sixteen days before the woman was no longer under a court order not to have an abortion, exemplifies the extreme tenacity of the opponents of reproductive freedom.
THE BURDEN OF PREGNANCY
The so-called right-to-lifers' attempts to justify their harassment of these women as a desire to simply balance legitimate rights of the men involved is unconvincing. There is not way to balance the burden of pregnancy; it is not possible for the woman to carry the fetus for four-and - a-half months and then give it to the man to carry for four- and-a-half months. As the Supreme Court has recognized, as long as the fetus is inside the woman's body, she must be the one to decide. Moreover, it is clear that Bopp and others taking these cases seek to prohibit ALL abortions whether the husbands and boyfriends agree or not.
Certainly every individual has the constitutional right to decide, free from government interference, whether or not to have a child. This right, however, clearly does not give a man the right to force a particular woman to have his child. To the contrary, the Constitution guarantees that the power of the government will not be used to compel anyone, male or female, to be an unwilling participant in procreation. If men can force women to continue pregnancies, then men could just as easily get court orders to force women to have abortions, and women could force men to produce sperm or undergo vasectomies.
The ACLU's Reproductive Freedom Project is working with the Indiana Civil Liberties Union to represent the women in the first two Indiana cases. Bopp is representing the men. The ACLU also has alerted its affiliates to watch for further such attempts to deprive pregnant women of their constitutional rights and has distributed a model brief to help defeat this latest attack on the right of ALL people to reproductive freedom.
(Dawn Johnsen and Lynn Paltrow are staff attorneys for the ACLU's Reproductive Freedom Project.)