an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
What is the irony? Van Alstyne points out that under today's Supreme Court doctrines, husbands can't stop their wives from having abortions when they are the biological father. In this respect, they are no different from unmarried fathers. Marriage today gives married men no special or additional rights to stop their wives from having abortions. Alstyne sees this lack of additional powers to husbands as showing a lack of respect for the special importance of marriage. Or as Van Alstyne puts it, "marriage has been so far marginalized by the Supreme Court to the point that it now holds the view that one who has concieved a child in marriage with his wife has no more standing to claim an interest in the well being of the child thus conceived than the most casual male acquaintance with whom she may have had an equally casual one night stand affair (namely, virtually none at all.)."
So why does this show the irony in grounding abortion rights in equality, you might ask? Well, Van Alstyne argues that in various cases the Supreme Court has held that men and women have equal rights in marriage. He cites as examples the 1970s sex equality cases like Frontiero v. Richardson and Califano v. Goldfarb-- cases in which the Supreme Court held that disparities in spousal benefits between husbands and wives violated constitutional guarantees of equality (in this case, the equal protection component of the Due Process Clause of the Fifth Amendment). A related example is Orr v. Orr, which held that alimony only for wives and not for husbands violates equal protection. Van Alstyne seems to be saying: how can abortion be an equality right if sex equality requires equality within marriage?
Similarly, Van Alstyne argues, suppose the state gives husbands and wives the right to block an abortion, (which, in effect, gives the husband a right to block an abortion, since the wife already has the right not to have an abortion under Roe v. Wade.). Van Alstyne argues that all this statute does is treat husbands and wives equally in marriage. So how can the woman claim that this statute would violate equal protection of the laws? In Van Alstyne's view, she is in exactly the same position as her husband. Is the equality argument that she is in a worse position than an unmarried woman? But she is married, Van Alstyne explains, so it's a different situation.
Indeed, Van Alstyne argues, if there is an equal protection claim, it belongs to the husband, for "that claim would more compellingly belong to the bereft father whose 'rights' in the well-being of his child conceived in marriage are zero as against those of the mother who may either carry it to term or 'terminate' the gestating child for whatever reason is satisfactory to herself irrespective of her husband's feelings and irrespective of any representations or promises she made when they married and conceived the child by mutual choice."
So the "irony" is that the equality argument for abortion gives married women more rights with respect to abortions than married men have. And,Van Alstyne asks, how can an equality argument give women more rights than men in marriage?
The answer to this question is that the equal protection clause does not merely protect formal equality between the sexes. It protects substantive equality as well. That is, the equal protection clause has an antisubordination component. It also reaches laws that have the purpose or effect of creating or maintaining socially subordinate groups, whether they are racial minorities or women. The idea that the fourteenth amendment is designed to dismantle caste and social subordination goes all the way back to the framing of the Fourteenth Amendment; it also appears in Brown v. Board of Education.
The antisubordination theory has the disadvantage of being messy and difficult to measure and apply. But it has the advantage of being far more connected to social realities. The basic idea is this: Although it normally takes a man and a woman to make a baby, the woman carries the baby, and bears the risks and hardships that accompany even a normal pregnancy. Moreover, even after birth, sex roles place much heavier expectations on her to engage in child care. Those expectations impose obligations on most women that they do not impose on most men. This is especially true for women who are not affluent and cannot afford full time child care. The right to decide whether to have an abortion rests with women, and not with men, because women, and not men, need that right to enjoy equal citizenship with men.
Van Alstyne's considers a hypothetical statute that gives husbands and wives the ability to block an abortion if the blocking party is willing to provide "appropriate support" for the child. He argues that the statute treats the sexes equally and also promotes marriage because it gives married couples (actually married men) rights that single persons do not have. It is true that the statute appears to treat husbands and wives formally equally, but in practice, it gives men considerable power in their relationship with their wives.
In reality, we know that in most marriages women will be far more likely to feel the obligation to sacrifice their lives and prospects to the daily tasks of child care than men will. Saying that husbands have a veto on abortions if they are willing to provide financial support to the wife essentially says that husbands can block abortions if they are willing to pay for their wives to sacrifice significant portions of their lives to devote to child care. The husbands' careers and their freedom are comparatively unaffected; they pay the money and their wives do the actual labor. This is not sex equality and it is not an equal bargain.
Being willing to pay for child care is not the same thing as actually giving it oneself. The latter is a significant sacrifice of lost opportunities and lost freedom. Many people are happy to make that sacrifice, but that is because they chose to make it; they would feel quite differently if the choice were thrust upon them by the state or if the state gave another party the right to thrust it upon them.
The statute that Van Alstyne imagines would be far closer to sex equality if it defined "appropriate support" not in monetary terms but in terms of forgone career opportunities, forgone freedoms, and imposed commitments to the time-consuming manual labor of housework and child care. Thus the statute would be closer to equality if it said that husbands could veto an abortion if they agreed to be the primary caretaker of the child and agreed to give up their career prospects to stay at home with the child and raise it with little or no assistance from the wife, and if the state actually enforced this obligation, so that the husband could not simply make the promise and then not carry through with it. This law would be more equal, although it would not impose the burdens and health risks of even normal pregnancies on men. Most men in America would not take this bargain, and they would feel the requirement of forced labor by the state as a serious imposition on their lives. That husbands would be willing to impose that requirement on their wives if they could does not prove that the state is treating men and women equally.
Van Alstyne's argument trades on the unspoken assumption that marriage, and particularly marriage with children is not only a relationship of formal equality between the sexes but also a relationship of genuine equality. It is not. It is a relationship in which one of the parties must take on the risks of pregnancy and childbirth. After childbirth, marriage is a relationship embedded in a set of social expectations which assume that women either are or should be the primary caretakers of children, and in an economy that advantages people who are either not the primary caretakers of children or can afford to hire other people to do a significant proportion of the work of childcare.
What does genuine equality require in this world? It requires women to have the ability to choose the number and timing of their children. It also requires that the state attempt to the extent possible, to facilitate women's ability to raise families and compete in the world of work. The rights to contraception and abortion cannot by themselves guarantee these rights of equality but with out them, equality is not possible.
If the state allows husbands to control their wives' reproductive lifes, women cannot enjoy practical equality, even if, in Van Alstyne's view, the statute appears formally equal. The 1970s sex equality decisions he cites were not "equality in marriage" decisions; they were sex equality decisions which sought to promote sex equality by prohibiting states from imposing gender stereotypes through distribution of spousal benefits. Those decisions did not hold, however, that formal equality in spousal benefits is all that sex equality requires or that it trumps equality between men and women.
A central idea in the equality argument for abortion is that men, including husbands, do not have the right to control the reproductive lives of women, including their wives, and that equality between men and women requires that women have the right to choose the number and timing of their children. This is an argument both from liberty and from equality. It is an argument from liberty because it prevents men from controlling women's sexuality and what women do with their bodies. It is an argument from equality because women's equal citizenship requires control over their reproductive lives. Liberty often promotes equality, and conversely, equality often promotes liberty. The framers of the Fourteenth Amendment understood this general point about the relationship between liberty and equality when they sought to protect privileges and immunities of citizens of the United States. By securing basic liberties to all citizens, they helped secure their equal citizenship. This relationship is true to this day: guaranteeing gays liberty in Lawrence v. Texas greatly increased their practical equality too.
We can better see how giving women liberty promotes their practical equality by considering a few variations on Van Alstyne's statute: First, imagine that the statute said that either party had the choice to require the other not to use contraception if he or she was willing to support any child that was produced as a result. This statute is formally equal. Is it constitutional? I don't believe so. Here formal equality between the spouses effectively gives men a right to control women's reproductive lives. Such a statute would violate both men and women's liberty. But it would clearly violate women's practical equality. It is no accident that women's liberation and demands for women's equality followed quickly upon the sexual revolution. That is because the access to contraception is a prerequisite to practical equality for women, although it does not by itself guarantee equality. I hope (although I admit I do not know for sure) that Van Alstyne would agree that if the state gave husbands and wives the power to stop each other from using contraception, it would violate women's equality, not just their liberty.
Van Alstyne might respond: But I'm only interested in cases where the parties have engaged in voluntary sexual intercourse and a pregnancy resulted. In these cases, why doesn't sex equality demand that men and women have an equal right to decide whether the woman has the child? There is a great deal one could say about the notion of voluntariness in this context, but let me put it aside. For now, consider the following statute, which is also formally equal between men and women. Suppose the statute said that either party in the marriage may require termination of a pregnancy if the party is unwilling to support it. This is the mirror image of Van Alstyne's statute: Under this law, the husband can demand an abortion if the wife seeks to bring the fetus to term and he is unwilling to support it.
After all, the husband is half of the marriage and contributes half of the genetic material. So why doesn't sex equality demand this? Indeed, since the husband contributes half the genetic material, why doesn't his equal right to sexual autonomy-- his right to choose to have or not have children-- also demand it?
Most courts would agree that this statute is unconstitutional under Roe. I assume that Van Alstyne would as well. Giving a husband the right to force his wife to have an abortion against her will allows the husband to control her body against her will. But-- and here is the point-- so does giving him a right to prevent her from having an abortion. If we give him a formal equality of veto in either direction, then we in fact deny her liberty. When we deny her liberty, we also deny her practical equality.
Here I assume that Van Alstyne would not support the constitutionality of the statute that lets either party terminate the pregnancy regardless of the other's wishes. He wants to protect the right of one person in the marriage to have a child regardless of the other's wishes. But if so, then equality in marriage and respect for marriage does not adequately describe this position. In fact, Van Alstyne is interested in vindicating the choice of any party to the marriage as long as that choice leads to the birth of a child. This is not a pro-marriage position; it is a pro-childbirth position.
Indeed, it is more than a pro-childbirth position. It is a position that identifies protecting marriage with protecting a husband's right to compel his wife to have a child against her will.
I do not think these two ideas (marriage and the right of fathers to compel childbirth) are connected in the way that Van Alstyne assumes they are. There are many different conceptions of marriage and its purposes in history, and some of them are perfectly compatable with women's practical control over their reproductive lives. I certainly agree that protecting a traditional conception of marriage meant protecting the husband's right to control his wife's sexuality, and this is threatened by the abortion decision. But I am not sure that respect for marriage per se requires that husbands enjoy the right to veto a wife's choice to terminate a pregnancy.
In Casey v. Planned Parenthood of Southeastern Pennsylvania, the Supreme Court upheld all of Pennsylvania's restrictions on abortion except the spousal notification provision (which is not even a spousal veto of the kind that Van Alstyne discusses). The reason is quite illuminating: Justice O'Connor argued that Pennsylvania had confused father's rights with the common law conception of marriage, in which the woman was presumed to be economically and socially dependent on the husband, was expected to devote herself to the traditional roles of childcare, and therefore rely on him for economic support. Justice O'Connor wrote:
In keeping with our rejection of the common law understanding of a woman's role within the family, the Court held in [Planned Parenthood of Central Mo. v.] Danforth that the Constitution does not permit a State to require a married woman to obtain her husband's consent before undergoing an abortion. The principles that guided the Court in Danforth should be our guides today. For the great many women who are victims of abuse inflicted by their husbands, or whose children are the victims of such abuse, a spousal notice requirement enables the husband to wield an effective veto over his wife's decision. Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law - those who most reasonably fear the consequences of notifying their husbands that they are pregnant - are in the gravest danger.
The husband's interest in the life of the child his wife is carrying does not permit the State to empower him with this troubling degree of authority over his wife. The contrary view leads to consequences reminiscent of the common law. A husband has no enforceable right to require a wife to advise him before she exercises her personal choices. If a husband's interest in the potential life of the child outweighs a wife's liberty, the State could require a married woman to notify her husband before she uses a post-fertilization contraceptive. Perhaps next in line would be a statute requiring pregnant married women to notify their husbands before engaging in conduct causing risks to the fetus. After all, if the husband's interest in the fetus' safety is a sufficient predicate for state regulation, the State could reasonably conclude that pregnant wives should notify their husbands before drinking alcohol or smoking. Perhaps married women should notify their husbands before using contraceptives or before undergoing any type of surgery that may have complications affecting the husband's interest in his wife's reproductive organs. And if a husband's interest justifies notice in any of these cases, one might reasonably argue that it justifies exactly what the Danforth Court held it did not justify - a requirement of the husband's consent as well. A State may not give to a man the kind of dominion over his wife that parents exercise over their children.
That is to say, the Court argued in Casey that respect for marriage is not the same thing as protection of husband's practical ability to control wives' sexuality. I think that Van Alstyne's discussion of the Court's treatment of abortion rights and marriage tends too easily to conflate different conceptions of marriage and assumes that the Supreme Court's decisions have undermined all of them in the same way. Some forms of marriage are not threatened by these decisions, while others no doubt are, but I would suggest that the forms that are most threatened are the ones that treat women least like equal citizens in a democracy. For the same reason, I think that the equality argument makes perfect sense, and leads to no contradictions (or even ironies) if you see it as grounded on an antisubordination rationale. Indeed, this language in Casey seems to be as much about women's equality as about their liberty.
There is another theme in Van Alstyne's article that I think is particularly worth addressing: He argues that the Supreme Court's decisions since Eisenstadt v. Baird (which held that single persons have the right to use contraceptives) have tended to treat marriage as increasingly less important in guaranteeing rights. As noted before, I think this runs together many different conceptions of marriage. In any case, Van Alstyne explains his point this way: "As the idea of the centrality of marriage appears to be on the wane, so too, may the idea of one's family and of one's responsibilities to the family, become diminished as well. The two are not, after all, entirely easy to distinguish as one tries to think these matters through. . . . [P]erhaps it is altogether pointless to presume to relate any of these things to developments in constitutional law, as I have sought to relate them here. Yet, admitting all of this, it is difficult to believe that they are wholly disconnected insofar as the Supreme Court itself has actively participated in this cultural debate, first by specifically treating these interests [in marriage] with solicitude and exceptional protection, but more recently with an attitude of quite a different and dismissive sort."
Van Alstyne seems to be arguing that the Supreme Court is partially responsible for the trivialization of marriage in American culture. I am dubious, since history and political science teach us that the Court follows, rather than leads most important social trends. This is especially so where the sexual revolution is concerned. Moreover, the primary example he offers-- regarding the marriage penalty in the U.S. tax code-- cannot be laid at the feet of the federal courts; it is the result of legislative fiat. The real source of these changes in marriage and social attitudes toward marriage have not come from directives from courts; they came (initially) from the sexual revolution, which was made possible in part by cheap and easy access to contraception and in part by women's liberation from traditional occupations. The Supreme Court ratified these powerful social trends, it did not cause them. That is the best way to understand cases like Eisenstadt: they stated in terms of constitutional principles basic facts on the ground. By 1971 sex before marriage had become increasingly commonplace among middle class Americans and criminalizing access to contraception in such cases made little sense. I assume that Van Alstyne does not actually want to reverse either of these larger trends: he does not want to criminalize contraception (or make it harder to obtain) for unmarried people and he does not want to undo the liberation of women in American society. I think he is blaming decisions in the U.S. Reports for far more powerful causal tendencies that would not easily be cured if those decisions had been written or reasoned differently. Overruling Eisenstadt, Danforth, or for that matter, Casey, will not save American marriage. It will, however, harm women, especially the least affluent women.
In any case, Van Alstyne larger concern is not abortion: it is the strength of the institution of marriage and people's felt sense of responsibility in marriage. These are admirable sentiments. But it is hard to see how giving husbands a veto over their wives' ability to abort would strengthen marriages or instill in people a greater sense of marital responsibility. Rather, it would seem to have the opposite effect: it would seem to allow husbands the ability to use the power of veto to dominate and punish their wives. It would certainly conduce little to promoting marital harmony. I assume that Van Alstyne would agree with me that, ideally, marriage should be a relationship between social equals. If so, then giving husbands rights to control their wives' sexuality does not seem to me to be the best way to support that valuable institution.