Roe vs. Wade's Dirty Little Secret

Great Debates
1

This past January 22nd, the nation celebrated the 30th anniversary of the Supreme Court’s landmark Roe vs. Wade decision and the constitutional tenet of “freedom of choice”.

As trumpeted on the National Abortion Rights Action League web page, “The essence of America is the right to determine the course of one’s life, to make one’s own choices and shape one’s own destiny.” Well… that is if you are of the favored gender.

Ironically, the month of January also marks the thirtieth anniversary of another Supreme Court case having to do with reproduction that rarely, if ever, receives any mention.

Just five days prior to the Supreme Court’s ruling in the Roe case, the Supreme Court ruled in the case of Gomez vs. Perez. However, unlike in the case of Roe vs. Wade, the Supreme Court elected to rule contrary to the concept of “freedom of choice” by overturning existing state law and ruling that unmarried men are responsible for the financial support of their “illegitimate” children. But rather than the Supreme Court protecting the American ideals of “Equal Justice Under the Law”, as inscribed on the portico of the Supreme Court building itself, the Court may have engaged in something more along the lines of the sinister.

The dirty little secret is that it appears that the Supreme Court may have intentionally delayed the Roe vs. Wade decision until after Gomez vs. Perez so as to facilitate a definition of “freedom of choice” that would be compatible with a specific political agenda.

A Supreme Court case consists of two phases, the argument and the decision. A case is first argued before the Court and the decision is usually rendered four to six weeks later.

Roe vs. Wade was argued before the Court on Oct. 10, 1972 and, after an unusual length of fourteen weeks, a decision was handed down on Jan. 22, 1973. Gomez vs. Perez was argued before the Court on Dec. 6, 1972 and decided on Jan. 17, 1973. The general rule for Supreme Court cases during the 72-73 term found the arguments and decisions to be in chronological order. This presented a problem for the Court.

Had the Supreme Court followed the chronological order of the two cases, a problem would have been created for the Court in its Gomez ruling. How could the Supreme Court set a precedent that would deem a woman’s pregnancy to be autonomous and affirm the concept of “freedom of choice” through a “right of privacy”, but yet render a decision that would assign an unmarried man a financial responsibility for that so-called “autonomous” and “private” affair? Obviously the answer was to delay the decision of Roe vs. Wade until after Gomez vs. Perez.

To compound the issue, the Court had to go through some legal contortions to reach their decision in Gomez. The essence of the Court’s ruling was, “… law denying right of paternal support to illegitimate children while granting it to legitimate children violates the Equal Protection Clause of the Fourteenth Amendment.”

This was the classic example of courts perverting law to legislate from the bench. Initially, child-support was not considered to be a “right” of the child, but the sharing of liabilities of two parties involved in a contract (marriage) upon the dissolution of that contract (divorce). No such “right” to support existed beforehand. Inventing “rights” out of thin air is another technique courts use to make palatable legislation that would otherwise be repugnant to the rule of law. As for an “equal protection” issue, there is no statutory law that requires parents within the bonds of matrimony to allocate a specific percentage of their income to child-support.

However, one cannot morally argue against the Court’s ruling in Gomez, being that couples that maintain a sustained relationship, even outside the institution of marriage, should not be allowed to abandon their partners upon the event that a child should be born within that relationship. The problem with Gomez vs. Perez, the Supreme Court ruling that states use to enforce child support laws on unmarried men, is that the law has evolved into a vehicle that is sometimes used to extract a monetary benefit from a man in which no relationship, other than a consensual sexual encounter, existed.

While rape, incest, and the health of the mother are the most publicly touted justifications for legalized abortion, in reality those “justifications” are nothing more than rhetoric. The truth of the matter is that abortion is primarily used as a remedy for a “mistake” or a failure of birth control. The Supreme Court’s ruling in the case of “Roe vs. Wade” was a judicial exercise that enacted a provision to provide women with an opportunity to relieve themselves from the consequences of sexual intercourse. Abortion rights activists insist that abortion remain a safe and legal procedure because a young woman should not have to suffer the consequences of having her life interrupted with an unplanned pregnancy. Pro-choice advocates insist that women have the option to terminate their pregnancies for any reason without any regards to the wishes of the so-called biological father. Women are to be free to continue their education, enter the job market or concentrate on their careers. Free to travel, purchase a home or automobile, or just avoid the responsibilities of parenthood if they should so desire.

However, the true agenda of the “pro-choice” movement is exposed when those who gallantly rush to the defense of a young lady facing an unplanned pregnancy, idly stand by while the same legislative and judicial systems, that recognize a constitutional tenet of “freedom of choice”, vilify unmarried men as “deadbeat dads” and force them under the threat of incarceration to be fully accountable for their “mistakes”.

While the idea of “freedom of choice” is fundamental to the American tenets of individual freedom, liberty and “the essence of determining the course of one’s life”, the current application of law regarding “the right to choose” is an absurdity that is repugnant to the concepts of both the “rule of law” and “equal protection of the law” and is indicative to the inconsistencies and hypocrisy inherent to liberalism and, in particular, to feminism.

And they say that men just don’t get it. What a joke.

George C. Collinsworth

A liberal’s worst nightmare; a redneck with both a library card and a concealed-carry permit.

2

Interesting OP, Mr. Collinsworth.

Too bad you stole it from someone named David Roberts.

3

The quick answer is that Gomez had very little legally to do with Roe. Gomez was an Equal Protection claim where legitimate children were treated differently than illegitimate children. It had little, if anything, to do with the decision in Roe, which was founded on the Due Process rights in liberty. You can create any conclusions you want, and, indeed, you have, but the basic fact is that Gomez and Roe are fundamentally different cases and are not in conflict, as you seem to be positing.

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Has the Supreme Court weighed in on plagerism recently?

5

However, from this site, it appears David Roberts is our very own Razorsharp.

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Oh. I take back my plagerism comment.

Apologies, Dr. Sharp.

At any rate, I don’t buy your analysis. Roe v Wade is not going tobe overturned, no matter how much the anti-abortion crowd wishes it to be.

7

Why would he bother signing it “George C. Collinsworth” then?

8

The more I look at the issue, the more I am convinced you are misreading Gomez, Razorsharp. As SCOTUS said in their ruling:

The ruling went out of it’s way to NOT establish a children’s right to support as you insist, but rather to not allow a State to discriminate against legitimate and illegitimate children. If you don’t like child-support laws, we can deal with those. If you don’t like abortion, you can search the archives for numerous abortion debate threads. However, your underlying assertions are based on a misreading of the cases.

9

Nice spot Atreyu, you’re sharper than a razor. lol

BTW Razorsharp the issue of the “double standard” over abortion rights has been discussed here plenty and thus is not really a dirty little secret to the SDMB. In fact, I was sure the Gomez-Perez case was mentioned but my searches turn up jack. Let’s just say that the contradictory nature of the two rulings is not as self evident as your extended quote from {your article/Mr Robert’s article} would suggest.

Here’s one mammoth thread: If a man requests, but woman won’t have abortion, should he be freed of obligation?

10

[Homer Simpson imitating Mr. Burns voice]

I Don’t Know.

[/Homer Simpson imitating Mr. Burns voice]

Somewhere, either here or on the other site, is a false attribution. Maybe he is the author maybe not, but I’ll hold off until we know for sure AND he puts down the gun. He can keep the library card.

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Okay, okay… George C. Collinsworth is a nom de plume derived from several of my grandparents. Now to the meat of the issue.

But the Court was in error in hearing Gomez under the pretext of an “equal protection” issue for the simple reason that no such “right” to support existed beforehand. As explained in the essay, “child-support” was " the sharing of liabilities of two parties involved in a contract (marriage) upon the dissolution of that contract (divorce)."
GOMEZ v. PEREZ, 409 U.S. 535

"Texas law denying right of paternal support to
illegitimate children while granting it to
legitimate children violates the Equal Protection
Clause of the Fourteenth Amendment.
Cf. Levy v. Louisiana, 391 U.S. 68 [;
Weber v. Aetna Casualty & Surety Co., 406 U.S. 164 [1972].

As one can see, the Texas Supreme Court spoke of a “right of paternal support”, when, in fact, no such “right” exists.
The legal theory that a biological father is obligated to provide support for an illegitimate child is founded on the premise that both parents have an obligation to provide support for a child or that a child has a “right” to support from it’s parents. These are false premises based on emotion rather than the rule of law.

First, whether a child is supported by its biological parents is also arbitrarily decided by the “choice” of the birth mother. Even after the birth of a child, the birth mother still has the option to decline her parental responsibilities through the adoption process. After a birth mother relinquishes her child through adoption, she is free of any further responsibilities to her child regardless of the future hardships that may befall that child.

In a disingenuous effort to balance the scales of justice, some states now require the consent of a biological father before an adoption is allowed. However, this is nothing more than legal sophistry. In the instance of illegitimacy, where no definable relationship exists between the birth mother and biological father, the man is not going to object to an adoption just so the state can seize a portion of his income to subsidize the birth mother’s desire to parent her child.

Second, while both parents supposedly have an obligation to support a child, in many cases the State will provide the birth mother’s part of the parental obligation with cash benefits, housing allowances, food stamps, Medicaid, etc. The State will then appropriate the biological father’s income and sanctimoniously chastise him about a parental obligation.

Finally, a child does not have a “right” to support from its biological father because there is no such thing as an arbitrary right. Either a right exists or it doesn’t. Today, women often choose to become single mothers so as not to be encumbered with the presence of the biological father. Whenever a pop star, film actress or any other woman of fame and fortune makes the “choice” to have a child without revealing who the father is, she is applauded as a heroine for raising “her” child without the assistance of a man.

Furthermore, there is a new phenomenon sweeping the nation that offers women yet another post-conception option. Many states now allow women the opportunity to drop off their unwanted newborns at specific locations on a no-questions-asked basis.

No, the only time that a child’s “right” to support from it’s biological father is recognized, is when the birth mother wants financial assistance with the “choice” that she unilaterally made.

The overturning of “Roe” is not the objective.

Irrespective of one’s personal opinions concerning the issue of abortion, it has to be acknowledged that a Supreme Court ruling has certain legal ramifications. As a result of the Roe vs. Wade decision, a woman’s pregnancy was determined to be autonomous and protected by a constitutional “right to privacy”. The Supreme Court ruled that it is solely a woman’s personal “choice” to either bring a child into the world, or to terminate a pregnancy without any regard for the wishes of the man involved. Therefore, for child support laws to be consistent with the application of law that our system of jurisprudence demands, a certain relationship must exist between a birth mother and a biological father. If the birth mother has the legal means of a “contract” of marriage or an “implied contract” of a sustained relationship with the biological father of her child, only then should the law be applied to require that man to provide support for a child that is the result of that relationship. If a birth mother does not have the obligatory contract with the biological father, then that man should not be required to support a child that the birth mother unilaterally chooses to bring into the world. The only other scenario that would justify the application of child support law is if an adult male impregnates a girl under the age of consent.

For the State to require an individual, not bound by contract, to be financially responsible for a “private” matter of a second party, not only violates the rule of law, it violates the very essence of freedom, liberty, and justice that America stands for.

12

Let’s go through Razorsharp’s argument step by step.

First, there’s the suggestion that the Court tinkered with the timing of the release of the decision. There’s several problems with that argument, starting with the point that there’s no hard and fast rule for the timing of release. Some cases get released quickly, some take more time. The usual reasons for a lengthy delay are how complex the case is, and how many of the justices are writing. Not surprisingly, hard cases that advance major new propositions tend to take longer to come out, while cases that apply existing principles and decisions are quicker. Also, if only one or two justices are writing, the case will normally come out quicker, but if several are writing it takes longer - each judge will want to be compleletely aware of what his/her colleagues are doing before making up his/her mind on who to join.

So by these tests, how do Gomez and Roe compare? Well, Gomez takes up a total of six pages (pp. 535 to 540, inclusive, of volume 409 of the US reports). Roe takes up 67 pages (pp. 113 to 179, inclusive, of vol. 410). That’s one factor that suggests it was reasonable for Roe to take longer.

As well, in Gomez there were only two sets of reasons: a per curiam decision of the majority, and a dissent, so only two of the nine justices wrote. By contrast in Roe, Blackmun J. wrote the majority decision. Burger C.J., Douglas J. and Stewart J. joined the majority, but each wrote his own concurring reasons. White J. dissented. Rehnquist J. joined White J.'s dissent, and wrote his own dissent. So of the nine justices, six wrote reasons. That’s another factor suggesting that a longer time for Roe is understandable.

And of course, as we all know, Roe was a hard case. Everyone knew at the time that it could be a landmark, which it’s turned out to be, advancing a significant new theory for due process under the 14th Amendment, and providing constitutional protection for abortion. Both the legal reasoning and the result were highly significant. By contrast Gomez didn’t carry nearly as much significance as Roe. That’s another factor suggesting the longer time for Roe was reasonable, and can be explained without delving into conspiracy theory.

Now let’s turn to the possible motivations for the actors in delaying Roe. There’s his assumption that releasing Roe first would have “presented a problem for the Court.” Well, that’s his take on it, but his subsequent legal analysis doesn’t bear it out, as I’ll argue later. But his argument has a significant flaw, in that he assumes that “the Court” was a monolith, trying to pull a fast one by tinkering with the order of the decisions. It overlooks that Rehnquist J. (as he then was) was in dissent on both cases. The Court doesn’t release a decision until all the justices have signed off on it. Rehnquist J. is a very smart jurist (people may disagree with his opinions, but he’s generally seen as a highly intelligent man). Don’t you think that if he thought Roe would have caused a problem for the majority in Gomez he would have refused to release Gomez until after Roe came out? Especially if he got any whiff of a suggestion that his collegues were trying to distort the process to protect their decision in Roe?

So overall, I don’t see much in the timing of the decisions; certainly not sufficient to warrant Razorsharp’s conspiratorial approach to the matter.

Turning to his legal analysis, Razorsharp characterises Roe as having established ’ the constitutional tenet of “freedom of choice”, ’ and suggests that Gomez is inconsistent with that constitutional value by overriding the father’s right of choice. Unfortunately for Razorsharp’s argument, Roe did not establish a constitutional principle of “freedom of choice.” (That’s how the pro-choice folk characterize the decision, but it’s not the actual holding.) Rather, the majority held that various provisions of the Bill of Rights established a constitutional protection for privacy, and that state intervention in the woman’s decision on whether to have an abortion in the early stages of pregnancy would violate the Due Process clause of the 14th amendment. The majority did not create a general consitutional “right of choice,” and therefore Roe is not inconsistent with Gomez.

Gomez was instead concerned with equal protection, a significantly different area of constitutional law. Speaking generally, equal protection doctrine does not require states to take any particular action; it says that if they do take any action, they must not discriminate between similarly situated individuals on various prohibited or suspect categories. That was what happened in the law in issue in Gomez - Texas provided certain legal rights of support to legitimate children, but not to illegitimate children. Discriminating between two groups of children, similarly situated in their need for parental support, solely on the basis of their civil status at birth, violated the equal protection clause. That’s a completely different concern than state interference in particular individual’s area of protected privacy. [On preview, I see that Hamlet has already made this point, more concisely than I have.]

Razorsharp also criticises the Court in Gomez for inventing child support obligations out of thin air. He states:

Well, except they didn’t. On questions of state law, the Supreme Court is bound by the interpretation that the state courts have placed on the common law and statutes of the state. To set out the law of Texas, the majority relied on the determination of Texan law by the Texas Court of Civil Appeals in their earlier decision in Gomez:

So, Razorsharp is wrong on two counts on this issue as well. First, the law of Texas was that a father owed a duty of support to his legitimate children; it wasn’t an obligation of the ex-spouses flowing from the marriage contract. Second, the Supreme Court didn’t make up this principle. It had been the common law of Texas for over a century, as interpreted by the Texas courts, and had been confirmed by statutes passed by the state Legislature.

One final point that Razorsharp raises, to criticise the Supreme Court’s finding of a breach of equal protection, relates to the duty of child support when a couple is still married:

There are a couple of responses to this criticism. First, it wasn’t before the Court in Gomez. Courts are restricted to deciding the issue before them. In Gomez, the Court was faced with a distinction in the law between the rights of legitimate children and the rights of illegitimate children, and stuck to that issue. If and when the issue of support within the marriage ever comes up, the Supreme Court will deal with it then.

Second, in response to the merits of this argument, I would suggest that the presumption is that when the couple is together, they are in the best place to determine how to spend their money to support their family, and will do so with their children’s best interests at heart. Support laws kick in when the couple separates and are no longer in agreement on the financial issues. In other words, as long as the family unit is in agreement, the state stays out. It only intervenes when the parents can no longer agree, and one of the parents invokes the state’s laws. That doesn’t sound like an equal protection problem to me.

So in summary on Razorsharp’s post: lots of smoke, red herrings and indignation; complete lack of anything to back it up.

13

Bit of a hijack, but is “quoting” an entire article (like what Razorsharp did) legal? Even if he did write it himself, it still belongs to the Collegiate Times.

14

There are several foolproof, entirely legal methods which all but guarantee men will be able to avoid paying child support.

  1. Don’t have sex with a woman unless you intend to support any children you may father.

  2. Properly use reasonable methods of birth control when you have sex with a woman unless you intend to support any children you may father.

  3. Get a vasectomy.

Do I think almlost all deadbeat dads got themselves in the situation they are in? Yes, yes I do. And I don’t care if the mothers were or were not equally culpable. Doesn’t matter. Actions have consequences and all that.

And this social problem, deadbeat dads, has NOTHING to do with the abortion debate. No more than funding for neonate research issues are part of the abortion debate.

15

magog, maybe, maybe not. In most cases a published article remains the intellectual property of the author, according to my copy of the Writer’s Market. It depends largely on the author and the publication however

16

I’d just like to lay claim again, to this idea. The first Straight Dope thread on the topic ever was titled “Abortion For Men”. I can’t find it anymore.

In any case, I have two things to say:

  1. The Gomez association is a new twist. Interesting. But it also looks like you are indeed overstating SCOTUS’ intentions in the rulings and particularly the timing.

  2. I’m a liberal and a feminist, and I think robbing men enitrely of * their * right to choose (once conception has occurred), is bullshit.

17

Lets see:

The OP has a 2 post history and posted a copywrited article here, verbatim, without even citing the source.

Nope, not suspicious at all.

18

Perhaps usually, but a longer period of time is not at all uncommon, especially with very controversial landmark cases.

19

Oops, take that back. It appears this guy is posting his own article.

20

No, they didn’t “make up a right”. The right to paternal support for LEGITIMATE children already existed under Texas law. The Supreme Court simply said that if you give legitimate children the right to support, illegitimate children get support too.

Equal Protection of the Laws.

You are mistaken. If a state wanted to do completely away with the requirement for parental support, they are free to do so. They just can’t disciminate between legitimate and illegitimate children.