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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.)
Jane's boyfriend.
Thr