The Oklahoma legislature is currently considering a bill that would require a woman who wishes to have an abortion to obtain the written consent of the father of the pregnancy.
The Republican legislator who introduced the bill, Representative Justin Humphrey, spoke of the pregnant woman as a “host” to the pregnancy who cannot simply kill her invited guest.
In this column, I will discuss the deeper meaning of this plainly unconstitutional bill—a meaning that may have more to do with misogyny than with a concern for the well-being of fetuses.
The Unconstitutional Bill
The Oklahoma bill, House Bill 1441, says that “no abortion shall be performed in this state without the written informed consent of the father of the fetus.” The bill has exceptions for pregnancies resulting from rape or incest, as well as for pregnancies that threaten the life of the mother.
As a paternal consent requirement, this bill plainly violates the U.S. Constitution, as the Supreme Court ruled in Planned Parenthood v. Casey , which found a Pennsylvania law requiring husbands be notified as a precondition to their wives obtaining an abortion to be unconstitutional; the court ruled such a requirement imposed an “undue burden” on a woman’s ability to exercise her right to an abortion.
It follows from this ruling that requiring consent—a more demanding standard than notification—would similarly violate a woman’s constitutional right to obtain an abortion. The court so held in an older case, Planned Parenthood v. Danforth, in connection with a spousal consent provision.
The Motive Behind the Bill
Representative Humphrey, the bill’s sponsor, is apparently aware that the bill could well be unconstitutional, but said that he believes fathers should have a role in the abortion process.
Specifically, he reportedly stated: “I understand that they [women] feel like that is their body.”
I feel like it is a separate—what I call them is, is you’re a host. And you know when you enter into a relationship you’re going to be that host and so, you know, if you pre-know that, then take all precautions and don’t get pregnant…. After you’re irresponsible then don’t claim, well, I can just go and do this with another body, when you’re the host and you invited that in.
It is useful to read these words carefully and couple them with the actual provisions of the law in question, because together they paint a rather disturbing picture of the motivations behind the proposed legislation.
First, let us consider what Humphrey is saying about women who become pregnant and wish to terminate their pregnancies. He addresses them directly and says, “You’re irresponsible.” That is, you must “take all precautions and don’t get pregnant.”
Women who unintentionally become pregnant are, in Humphrey’s view, irresponsible people who failed to take proper precautions against pregnancy. Yet he ignores the fact that contraception is not 100 percent effective. Even those women who use contraception (which is, presumably, what Humphrey means when he refers to taking “all the precautions”) sometimes become pregnant, despite their best efforts.
Meanwhile, why don’t men bear some responsibility for having intercourse without taking “all precautions,” given that men can wear condoms but often prefer not to because they enjoy sex more without a condom?
Humphrey’s reference to women who fail to take proper precautions ignores the male role in bringing about unwanted pregnancies due to their own desire for condom-free sex—a desire that sometimes manifests in pressuring women to agree to unprotected intercourse. Although such pressure does not rise to the level of rape, it receives no attention from Humphrey, who exclusively blames women for irresponsible behavior.
In describing an unwanted pregnancy, Humphrey disputes women’s claims that their bodies are on the line. Instead, he says, through their irresponsible behavior, they have invited a fetus to live inside their bodies. In this respect, Humphrey depicts women as “hosts.”
By having consensual sex (hypothetically without contraception), a woman has “invited” the fetus in and therefore cannot revoke the invitation by unceremoniously terminating the life of the fetus. By describing what occurs in pregnancy as the result of an invitation, Humphrey aligns himself with those who view consensual sex as tantamount to consensual pregnancy.
He draws this equivalence despite the fact that most intercourse does not result in pregnancy, and therefore having unprotected sex represents at most a modest risk, rather than a certainty that pregnancy will result. (Depending on when in a woman’s cycle unprotected sex occurs, the risk of pregnancy generally varies from essentially zero to about nine percent, reaching nearly thirty percent at only one point during the month.)
Ordinarily, the law does not equate the taking of a small risk with consent to a highly intrusive, nine-month occupation of the risk-taker’s body.
The Man’s Role
Although the man in this equation would—if the sex was unprotected—have contributed just as much to the unwanted pregnancy as the woman, we hear nothing from Humphrey about the irresponsibility of the father. On the contrary, once his identity is known, pursuant to the bill before the Oklahoma legislature, the father can decide if he agrees with the pregnant woman about the abortion and give his consent for the procedure to go forward.
In other words, when the woman indicates her desire for an abortion, it becomes an occasion for criticizing her failure to prevent the pregnancy. But once the man agrees with the woman’s wish for an abortion, his role in “inviting” the fetus into the woman’s body goes unnoticed, and he can sanction its being killed.
The fact that the father can agree to have his fetus aborted (at least under the Oklahoma bill, after the mother has given her consent), suggests that Representative Humphrey—and by extension those other legislators who have supported the bill—is not entirely loyal to the needs and interests of the invited host (the fetus). If Humphrey were, then he might prohibit the abortion procedure outright, and the wishes of the father of the pregnancy would become completely irrelevant.
In this case, the elevation of the man’s wishes suggests that this bill is not what it might initially appear to be. It is not predominantly about protecting fetuses from being chased out of their invited abodes. Rather, it is about subjecting women to the wishes of the men who impregnated them.
A woman may not want to tell the father of the pregnancy—especially if she decides to terminate early. But under the Oklahoma bill, she does not have that choice; she must notify the father and give him the right of first refusal. If and only if he wants an abortion can there be one—notwithstanding his conduct that led to the fetus accepting the invitation that sex supposedly represents to the fetus’s existence.
It therefore seems safe to conclude that the Oklahoma bill in question intends to put women in their place. It forces disclosures that women may be uncomfortable making, for reasons including concern about potential abuse from the father of the pregnancy. The bill places the decision-making power in the hands of the father without ever acknowledging he has been “irresponsible,” and that he should have to pay for that failure to take precautions by having a child against his (and the mother’s) will.
In some ways, of course, the Oklahoma bill is less troubling than an outright ban on abortion. In at least some subset of cases, a woman who wants to terminate a pregnancy will be able to prevail on the father of the pregnancy to give his consent—a consent that he might be more than happy to give, if the pregnancy is unwanted by both parties.
Yet in some ways, the bill is more offensive than an outright ban on abortion. An outright ban would signify that the bill’s sponsor believes abortion is morally unjustifiable violence which should be prohibited by law.
While I disagree with that position for a variety of reasons, it does not expressly treat women as men’s subordinates. By contrast, the Oklahoma bill at issue does just that. It treats women as “hosts,” but only so long as the father of the pregnancy wishes them to be hosts.
The Oklahoma bill rests final decision-making authority on the man. In so doing, and by simultaneously allowing abortions that have the blessing of the man, it elevates him over both the woman and the fetus, and thereby exposes an underlying misogyny.
Sherry F. Colb is Professor of Law and Charles Evans Hughes Scholar at Cornell Law School. Her most recent book is Mind If I Order the Cheeseburger? And Other Questions People Ask Vegans.
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