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Abortion law
  Should men have rights in abortion?
By David Nolan

The question 'Should men have rights in abortion?' is once again a subject for debate in Britain, following news that a Coventry man is seeking toprevent his ex-girlfriend from having an abortion.

For comment on the High Court ruling on this case, visit www.bpas.org

The following is an edited extract from a chapter, entitled 'Abortion:Should Men Have a Say?', authored by David Nolan, (originally published in Abortion Law and Politics Today (ed. Ellie Lee, 1998)), which discusses some of the key relevant issues.

A joint decision

While the debate about 'men's rights' in abortion should be taken seriously it is important to note that most decisions to abort are reached by both partners together - in as many as 90 per cent of cases according to some estimates. In their study, published in 1984 ('Men and Abortion, Lessons, Losses and Love'), Shostak and McLouth found that only five per cent of the 1000 men they surveyed felt they had been forced into the decision. A massive 84 per cent felt the decision was 'a joint resolution of the matter'. This shows that most of the time couples can reach joint decisions that they are both happy to live with.

It is also the case that most men are not overly perturbed by the decision to end an unwanted pregnancy in this way. Few resort to the law to stop their partners having an abortion.

Roger Wade was the director of an American abortion clinic for five years. One of his roles was to talk to the men who accompanied their partners on the day of the operation. During his five years, he spoke to about 1200 men. His opinions are outlined in a leaflet he wrote for men as a result of his experiences.

'Contrary to what you might expect, given all of the public battles about abortion, only a few men wanted to discuss the moral issues around it. Moral matters were not a chief concern. Men who got as far as accompanying a woman to an abortion clinic had for the most part settled their moral qualms if they had any. I only talked with a few guys who opposed their partner's decision to have an abortion'.

Disagreement between couples about the decision whether or not to have an abortion is therefore rare and few cases, in the UK at any rate, reach the law courts. Secondly, the law is also unequivocal on both sides of the Atlantic. UK law allows men no say in whether their partner has an abortion. Case law in the USA has confirmed that men should have no say in the matter. This has not prevented a number of men from trying. Since 1991 24 men in the UK have approached the courts attempting to prevent their partners having an abortion. In the USA there are regular attempts, although not as many as there were in the late 1980s when a whole host of men went in front of the courts.

In cases of disagreement, a decision has to be made

The contention only arises when one partner disagrees with the other's decision. This is not grounds for a healthy and reasonable debate but one for divisive and potentially destructive arguments. In cases of disagreement there can be only one person whose view prevails.

When a couple faces an unplanned pregnancy there are any number of possible reactions. Many men are very happy with the decision to abort, and most of those involved in committed relationships will support the decision, even if it is not exactly the one they would choose, given different circumstances. This is exactly the same for the woman. Many women facing an abortion have said that they would not mind a child - it is the fact of the pregnancy and the timing of the pregnancy that is the problem.

The law and the role of anti-abortion organisations

Men who choose to pursue legal or administrative and obstructive action either in the UK or in the United States are usually supported by one or other of the major anti-choice organisations. In the UK, the anti-abortion organisation Life distributes a leaflet for men entitled Forgotten Fathers.

The other major organisation in the UK opposed to abortion, the Society for the Protection of Unborn Children, claims to receive half a dozen enquiries a week from men wanting to prevent their partners having an abortion. They both argue that the abortion experience is bad for everybody concerned and that their work is in the interests of the 'unborn child'. Life's leaflet states that 'abortion is bad for the men who want to be kind and loving fathers. Relationships often break up after abortion - leaving both parents bereft and with long-term problems.' It is men backed by groups such as these who pursue legal cases to prevent women seeking abortions. Anti-abortion groups encourage men to seek recourse to the law on the basis that they will suffer as a result of the woman's decision.

Legal cases in the UK

The law is very clear on the matter. A man has no legal right to prevent his partner even if they are married from having an abortion nor may he force her to have an abortion. The decision rests solely with the woman, provided she can convince two doctors that she meets the criteria laid out under the 1967 Abortion Act as amended by the 1990 Human Fertilisation and Embryology Act.

The first reported case that went to the courts in the UK was in May 1978. In the case Paton v Trustees of BPAS and Paton, William Paton, a steelworker living in Liverpool, failed in his attempt to prevent his estranged wife Joan having an abortion. The judge, the Rt. Hon. Sir George Baker, President of the Family Division of the court, ruled that the claim for an injunction to prevent the abortion 'is completely misconceived and must be dismissed'. Paton also failed in his attempt to gain a ruling in his favour before the European Court of Human Rights which denied his application for a hearing. The major case, however, was in 1987.

Richard Carver, 24 and a student at Magdalen College, Oxford attempted to prevent his former girlfriend, a 21 year old woman also studying at Oxford, from having an abortion. He argued that the abortion was unlawful in that the fetus was, in the words of the 1929 Infant Life (Preservation) Act, 'capable of being born alive'. At the time of the case, the woman was 21 weeks pregnant. The father, known throughout the case as 'C', brought the action in his own right and in the right of the 'child'.

The case 'C and another v S and another' became known as the 'C v S' case. 'C', a member of the Oxford University Society for the Protection of Unborn Children, who paid his legal fees in the case, attempted to force the decision to the House of Lords after the High Court and the Court of Appeal turned down his request. Three law lords refused his application.

At the time Sir John Donaldson, Master of the Rolls (the second highest ranking judge in the UK) recalled the words of Sir George Baker in the Paton case mentioned above. 'I think it would really be a foolish judge who would try to do such a thing [force the woman to keep the pregnancy to term] unless, possibly, there is clear bad faith and an obvious attempt to perpetrate a criminal offence.'

The counsel for 'C', Gerard Wright QC, a founding member of the Association of Lawyers for the Defence of the Unborn (ALDU) had previously acted for Victoria Gillick in her attempts to prevent General Practitioners prescribing contraceptive pills to girls under 16 without parental consent.

He argued that the fetus, if born, would be born alive. He conceded the point that it would be dying and that it would die but argued that it was therefore 'capable of being born alive'. The local Oxfordshire Health Authority refused to carry out the abortion until the matter had been finally resolved, a decision which astonished the three law lords called upon to rule on whether an appeal to the full House of Lords was permissible. They countered that the Court of Appeal had already ruled and nobody would ever be charged for acting on such a decision, 'otherwise the life of the country would grind to a halt'. However, the Health Authority insisted on a final decision which was given immediately.

The C v S case was one of the quickest in British legal history. It made its way from first hearing in the High Court to an appeal and dismissal by the law lords in about 36 hours. Under normal circumstances, such actions may take years. The result however, was that the woman was deeply affected by the case and had the baby and gave it over to Carver to look after. The fact that the driving force behind any move to give men a say in the decision whether or not to abort almost invariably comes from the anti-choice lobby is not to say for a moment that all men who oppose their partners' decision are anti-choice - for they are not. But to take their opposition to the courts has usually required the assistance, financial and otherwise, of a well-organised and well-funded anti-choice lobby as was the case with the C v S case.

Where should the right lie?

Clearly some men's feelings are likely to be hurt, where a partner or former partner makes a decision in conflict with their own. The question remains, where does the right lie? If the appeal for rights is entirely a matter of emotional attachment, then yes, men ought to have rights. But the question of right is less emotional. It seems callous to say that a women can decide to end a life in the same way that she might withdraw from a contract, but it is the same ability to determine your own future that is at stake. Where women can be legally obliged to carry an unwanted pregnancy to term, we make women slaves to pregnancy. Whatever the emotional attachment of men, their loss is not a loss of freedom. It is important to refute the suggestion that men have as much at stake as women in pregnancy and subsequently abortion. It is legitimate to expect men to play a role in taking responsibility for contraception and childcare. However, pregnancy is something that, at this stage in scientific development at any rate, only women can undergo. It affects women's bodies, their careers and their lives. An unwanted pregnancy may have a devastating effect on a woman and it is entirely legitimate for her to seek to end that pregnancy on her terms. As we shall see below that introduction of any conflictual third party into the equation can have a ruinous impact on a woman's life.

Babies on demand (by any third party)

The logical conclusion, but one which is often missed, of involving men in the decision is that it could give any third party with a connection to the pregnancy a say in whether a woman has an abortion. This removes whatever little control women have now over the decision to abort and dilutes that control to the extent that others, even those remotely related perhaps, can have a say over the decision to terminate a putative cousin, relative, friend or neighbour.

The result of allowing third parties a say can have dreadful results for the women involved. In one case, a woman was forced to have an abortion against the wishes of a court, after her husband got a ruling preventing her having the abortion. The case, which became known as Jane Doe v John Smith, came before the Indiana Court of Appeals on 24 October 1988 by which time the abortion had already taken place. On 9 February 1989 the Indiana Supreme Court (in the US this is a higher court than the Court of Appeals, unlike the UK) refused to hear a review of the case. In the appeal the woman involved was condemned by the plaintiffs for seeking an abortion for 'immature and near-frivolous reasons'. 'Fathers', it was alleged, 'are disenfranchised from the judicial system.' The court upheld her constitutional rights without any consideration of the father's interests. However, similar circumstances ended very differently in 1994 in Blair, Nebraska.

On September 26 1994, Mary Smith (not her real name) discovered she was pregnant. She was 15 years old at the time. Two days later she told her boyfriend, Heath Mayfield, that she was booked in for an abortion. Within 48 hours, according to Time magazine, 'she was detained by police, placed in a foster home and brought before a judge who forbade the abortion'. The boy's mother approached a local doctor who provided a letter stating that 'any elective abortion could potentially cause medical and emotional damage to the mother at any stage of pregnancy'. Neither the doctor, nor another who co-signed the letter, ever examined Mary. Up to ten police cars (the number is disputed) arrived at Mary's home to take her away after the local county attorney signed an affidavit consenting to her being taken into custody.

Another examination revealed that Mary was in fact 27 weeks pregnant and beyond the legal limit for abortion. The following day flyers appeared in the town branding Mary's parents murderers. The Blair city attorney at the time, Wyman Nelson, acknowledged that anti-choice sentiment runs strong in the area but that it played no role in the incident. 'This wasn't about the issue of abortion, it was about the health of a juvenile' he said. 'If it had been a tonsillectomy or an appendectomy, we would have done the same thing.'

The baby was born on December 7 1994 and now lives with Mary and her parents in Iowa, across the state border. The family are pursuing a civil action in the Nebraska courts against a number of local officials and the boyfriend and his family. Mary's attorney has described the episode as 'the first time town authorities have mobilised en masse to interfere with a woman's right to choose'.

The above incident is remarkable because it is rare. However, while it is perhaps unique for the lengths the boy/father went to, it shows the possibilities when others choose to interfere with the decision whether or not to abort an unwanted pregnancy. This case demonstrates that this particular man's claim acted as a conduit for interference by the police and other state bodies and generated an immense amount of public and legal debate. What should have been private decision for the woman developed through his actions into a massive public storm.

Keep the law out

Some of the cases above are used instrumentally by the anti-abortion lobby to legitimate third party intervention. However, when things of this kind go wrong it is actually illegitimate to seek legislative solutions. The implication of this is that all relationship difficulties need to be both monitored and policed by any interested body. The consequences of this are debilitating for any couple and horrifying for anybody with an interest in autonomy. Any attempt to force a decision on a woman represents a diminution of women's ability to control her own body. It also reveals an attitude that 'women do not know what they want'.

Is there perhaps something in the argument from those men whose appeal is based on the fact that they have to look after children when they are born against their wishes so they should be allowed to have a say whether they are born at all? And is it not entirely legitimate and logically coherent to say that in such cases there should be absolutely no legal or financial comeback on those men? That would overcome most of their arguments. This leads on to one recurring and problematic area which appears to transcend the pro- and anti-choice barriers. As Roger Wade points out:

'Men and women involved in unplanned pregnancy have all sorts of relationships to each other. Some may have on-going, very intimate relationships, while others have just met and have no intention of continuing on with each other. Most are somewhere in between these poles and have dated for a while but are not sure whether their relationship has the potential to become a serious one. The crises of dealing with an unexpected pregnancy forces a couple to examine some of the most intimate and sensitive issues of human sexual relationships. Uncertainties about the relationship can become crucial in what happens'.

It is an unfortunate fact of life that when couples cannot agree on a decision - let alone on whether or not to continue a pregnancy - one or other of the partners will be hurt. Generally speaking when disagreements occur on such matters which are entirely fundamental to the relationship, it does suggest a deeper difficulty in the relationship. In this instance, both because the woman is the one who bears the child and is the one on whom the majority of the responsibility for childcare falls, it must be she who has the final say.

Men are generally involved in the decision to abort. It is only when the relationship breaks down that men will attempt to force women to either carry to term or end a pregnancy against their wishes. It is only in these circumstances that it becomes an issue. And precisely because it is in emotionally charged circumstances, we must hold firm to the cold calculated reality of pregnancy and childbirth: women are still ultimately responsible for this aspect of the reproduction of the species and they alone should be allowed to make decisions as to whether and when to have children.

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