Roe vs. Wade's Dirty Little Secret

[Hamlet]

I’ll give a shiny, new quarter to the first moderator to fix my coding error.

[Mtgman]

@Razorsharp

You say there is no conflict, I say there is. In “Roe”, the Court essientially ruled that a woman’s pregnancy was her “private” concern. How then, can it be reconciled, that an individual can be held financially responsible for a “private” concern of a second party?

For anyone who may be reading this thread who didn’t read the first one. The Duty of Child Support flows from the CHILD, not from the PREGNANCY. Once the child is born, that child has a right to receive support from his/her biological parents or others who have explicitly taken on that responsibility(as in the case of adoption). Once the child is born it is no longer a private concern of another party. This is a new, and helpless, citizen of our society.

Until such time, and after abortion cut-off timeframes(first trimester in my area at least), how to deal with the pregnancy is indeed the perogative of the woman as a consequence of her having a right to seek personal medical services in private with only the doctor-patient relationship involved. If the woman does not choose to terminate the pregnancy then it proceeds as is natural and both parties share in the responsibility for pre-natal care, birth and delivery, and post-natal care.

I think it bears repeating, so I’m re-posting a section of one of my previous comments on this topic. It is very similar to *Kimstu’s prior post, but I originally made mine almost a year ago

@Mtgman

Do we, as a society under the rule of law, wish to seperate the act of sex from its potential biological consequences? Right now the laws have been written in a way that does NOT make this seperation. There is no official “opt out”. For BOTH parties the decision to have sex is the same as the decision to accept the consequences of pregnancy, should it occur. This is the position of the law.

Now, Razorsharp, and some others have argued that legal, safe, elective abortions have put an unofficial(although they insist it was official[and have developed complex conspiracy theories to support this view], I contend they just misunderstand the intent behind the law) “opt out” into the process for the woman. The point they’re missing is that abortions were NOT made legal so women could “opt out” of the consequenses of sex. Abortions were made legal so a woman could retain her autonomy. Her right to be sovreign in her own body. This sovreignty can ONLY be challenged if exercise thereof would cause harm to another being. The courts have decided that protection of law does not extend to the unborn(the piece I disagree with), so a woman has a choice, thanks to her biology giving her control over the biological process of pregnancy in the post-sex, pre-birth timeframe. This choice does NOT exist to give the woman an “opt out” of parenthood. This is a side effect of the greater goal of giving the woman sovreignty over her body.

So now people are claiming that there is an imbalance. Women have an “opt out”, an implicit one, under the law and men have no such thing. A decision needs to be made. Are we, as a society under the rule of law, going to divorce sex from its biological consequenses of parenthood? If so, then both parties need an explicit “opt out”. If not, then something needs to be done to educate the population to understand that a woman’s ability to get a legal elective abortion is not an “opt out”. It is a side effect of a right she has always posessed combined with the nature of human reproduction having the woman as the carrier of the child.

Enjoy,
Steven

[Mtgman]

@Kimstu

2. Deciding whether to abort conceived embryo/fetus or bear it to term: right/responsibility rests solely with the woman, since it’s her body. Her pregnancy has no biological or medical impact on the man, so he has no say in whether to terminate it. Likewise, he bears no legal responsibility for its costs or risks.

It should be noted that some jurisdictions, such as the state of Mississippi, allow collection of support monies for expenses related to prenatal, delivery, and postnatal care and other pregnancy-related expenses.

• • • All * * * orders for withholding may permit the Department of Human Services to withhold through said withholding order additional amounts to recover costs incurred through its efforts to secure the support order, including, but not limited to, all filing fees, court costs, service of process fees, mailing costs, birth certificate certification fee, genetic testing fees, the department’s attorney’s fees; and, in cases where the state or any of its entities or divisions have provided medical services to the child or the child’s mother, all medical costs of prenatal care, birthing, postnatal care and any other medical expenses incurred by the child or by the mother as a consequence of her pregnancy or delivery.

Enjoy,
Steven

[pravnik]

@Razorsharp

First of all, when one “refutes” something, they PROVE it to be erroneous. You, like myself, have provided no proof, only conjecture.

Well, I guess if citing the law doesn’t count as “proof”, I haven’t.

Oh really? People cannot be treated differently unless it is in the state’s interest? That may be acceptable in the socialist climate of certain Europeon nations, but in America, the concept of individual freedom and liberty is supposed to be paramount.

This belies a misunderstanding of the purpose and history of the Equal Protection clause. All laws treat different classes of people differently. All of them. Tax laws treat different professions differently. Laws against homicide treat murderers differently than non-murderers. The Equal Protection clause guarantees that the govenrment can’t treat different classes of people differently in an arbitrary manner and for no legitiamate reason, and a long series of cases sets out guidelines for what can and what can’t be done.

You’re way off base with your “segregated schools” and “water fountains” analogy. Those woud have been actions directly taken be the state. Requiring a married couple to continue supporting their children is not.

It’s not an analogy; those are Equal Protection issues. I and every federal judge who ever sat on the bench fail to see how a law passed by the state is not a state action. That’s the very essensce of a state action. Arguing that it isn’t is like arguing that night is day.

*Here’s why.

The institution of marriage existed long before the state of Texas or any Texas state law.

A child born within the institution of marriage was automatically a party to that marriage contract and had two parents.

A child born outside the institution of marriage only had one parent and was not a member of a marital contract.

Then came the state of Texas.

Texas law recognized the institution of marriage and had to deal with the issue of divorce.

Children born within a marriage were privileged to certain benefits that children born outside of marriage did not have. This had nothing to do with the Texas state legislature. Texas law dealing with the issue of divorce did NOT create a special provision for children classified as “legitimate”, the Texas legislature only extended provisions that already existed for those children.*

You provide no legal authority for your assertions, which is crucial to making a legal argument. Your failure to include any is fatal to your argument. Accepting that you’re assertions are true for the sake of argument still doesn’t account for the fact that state statute trumps the common law concerning contracts, and constitutional amendments trump them both. If the common law violates the Constitution it gets struck down. Why didn’t the State of Texas make your argument in Gomez? Why didn’t the dissenting justices? It’s because there’s no legal authority whatsoever to back it up.

Texas law did not create two seperate classes of people, the two classes already existed independent of and prior to Texas law.

Cite me some legal authority that states that this is a meaningful distinction. By that logic miscegenation laws don’t violate the Equal Protection clause because whites and blacks existed prior to and independant of state laws.

The issue of “equal protection” in Gomez, like the issue of “privacy” in Roe, was just the tool used to facilitate the “agenda”.
Both “Roe” and “Gomez” are classic examples of courts perverting law to legislate from the bench.

That’s fine as far as opinions go, but it still doesn’t address the fact that Roe and Gomez are unrelated cases dealing with different ares of the law, and no conspiracy whatsoever existed concerning the the timing of the decisions.

When I stated that the dissenting justices didn’t reach the merits of the case but instead said that they would have dismissed on jurisdictional greounds, you said:

And that’s just what I am doing.

:smack: No, it’s not. You’re arguing on the merits. The two dissenting justices wrote three short paragraphs explaining that since the Texas statute was not the subject of actual litigation they would have dismissed the case as unripe and not yet within their jurisdiction. They didn’t reach the merits and they didn’t make your argument.

*I admit, my conjecture that the Court monkeyed with the docket to facilitate conflicting decisions is just that, conjecture. Conjecture based on evidence. Circumstancial evidence, but evidence nonetheless. But let’s put that aside for a moment, as it is only secondary to the issue at hand.

You say there is no conflict, I say there is.*

There’s not even so much as a magic bullet to suggest that the court changed the docket. If there is a conspiracy among the majority justices, why aren’t the majority justices the same in both cases ? Why did none of the dissenters mention the supposed conspiracy? It’s not just me saying that there’s no conflict, it’s every legal authority in America. If there’s a conflict, why has no lawyer made that argument to any court in the last thirty years?

In “Roe”, the Court essientially ruled that a woman’s pregnancy was her “private” concern. How then, can it be reconciled, that an individual can be held financially responsible for a “private” concern of a second party?

Once a child is born, the law doesn’t care how it got there. Both parents have a statutory duty of support to the child, not just the mother, not just the father, both parents. There is no privacy issue.

[BlackKnight]

@Diogenes the Cynic

I don’t buy the “raped” man story, btw. How is that possible?

How is it not?

(Considering some of the responses here, I should say that I am not arguing what the law is. I’ll leave that for the lawyers. I’m merely arguing what I believe is the proper moral stance.)

Kimstu, your first two items make perfect sense to me. What does not make sense is how a fetus, which is the sole “property” (forgive me that term, but I don’t know a better one offhand) of the mother, suddenly becomes the responsibility of another person. It just seems odd that something is entirely under Person A’s jurisdiction / responsibility, and then, regardless of any action taken or not taken by Person B, and depending only upon actions taken or not taken by Person A, that thing becomes Person B’s responsibility as well.

[Ike_Witt]

@BlackKnight

How is it not?

So you, or somebody, is saying that one court found a woman guilty of rape\sexual assault and another court awarded her child support from her victim? That doesn’t make sense. Is there any cite for this?

[pravnik]

@BlackKnight

It just seems odd that something is entirely under Person A’s jurisdiction / responsibility, and then, regardless of any action taken or not taken by Person B, and depending only upon actions taken or not taken by Person A, that thing becomes Person B’s responsibility as well.

The responsibility arises from an action jointly taken by Persons A and B involving the insertion of Tab C into Slot D.

[pervert]

@BlackKnight

What does not make sense is how a fetus, which is the sole “property” (forgive me that term, but I don’t know a better one offhand) of the mother, suddenly becomes the responsibility of another person.

Because you are focusing on the temporary power the female has over the child during pregnancy. The fact is that the act of sex (which results in fertalized egg[s]) confirs responsibilities on the male. The fact that the female has more power over that child during pregnancy does not change those responsibilities. Several things can happen which will make the male’s responsibilities moot. Accidents, miscarriages, or abortions, for instance. But none of these things go back in time to remove the male’s responsibilities. For example, I think that morally the male has a responsibility to comfort the female when any of these things occurs.

Temporary custody of the fetus grants power to the female. It does not remove any of the responsibilities inherent in fatherhood.

To address directly your property idea, you have to remember, that the property is not created from whole cloth during pregnancy. Imagine, for instance a business where 2 partners start it. If one is called away for some reason and grants complete power of attorney to the other while he is away, he cannot complain (much) when he returns and finds that he is on the hook to share some new debts.

[Razorsharp]

@pravnik

Well, I guess if citing the law doesn’t count as “proof”, I haven’t.

Citing the law, when it is the law that is in question, is nothing less than a self-serving statement.

When citing the law in Roe v Wade, one cites pious legalese of a “right of privacy”, when the case is absent a genuine privacy issue.

All laws treat different classes of people differently. All of them. Tax laws treat different professions differently. Laws against homicide treat murderers differently than non-murderers. The Equal Protection clause guarantees that the govenrment can’t treat different classes of people differently in an arbitrary manner and for no legitiamate reason, and a long series of cases sets out guidelines for what can and what can’t be done.

Yes, laws against homicide treat murderers differently than non-murderers, and married couples are treated different by the rules of divorce, than those who are not married. And this is where the origins of child-support are found, in divorce.

So, as one who does not commit murder should not be subject to the laws of murder, an unmarried person should not be subject to the laws of divorce.

You provide no legal authority for your assertions, which is crucial to making a legal argument. Your failure to include any is fatal to your argument.

Sure I do. To require an individual, not bound by contract, to be financially responsible for a private concern of a second party, violates the essence of the “rule of law”.

Once a child is born, the law doesn’t care how it got there. Both parents have a statutory duty of support to the child, not just the mother, not just the father, both parents. There is no privacy issue.

That is not true. If the mother wishes, she can refuse to name the biological father and raise “her” child alone. Or she can relinquish her child through a state sanctioned “Safe Haven” program.

It’s like I have said over and over. The only time that a child’s so-called “right” to support from it’s biological father is recognized, is when the birth mother wants financial assistance with the “choice” that she unilaterally make.

To require a person to be responsible for the “choice” of a second party, is another violation of the “rule of law”. It is a choice, isn’t it?

[pravnik]

@Razorsharp

Citing the law, when it is the law that is in question, is nothing less than a self-serving statement.

Conveniently ignoring that I cited numerous cases that back up the decision in Gomez as being in line with precedent, as well as explained the standard for Equal Protection analysis and why an Equal Protection decision cannot conflict a Due Process decision.

When citing the law in Roe v Wade, one cites pious legalese of a “right of privacy”, when the case is absent a genuine privacy issue.Yes, laws against homicide treat murderers differently than non-murderers, and married couples are treated different by the rules of divorce, than those who are not married. And this is where the origins of child-support are found, in divorce. So, as one who does not commit murder should not be subject to the laws of murder, an unmarried person should not be subject to the laws of divorce.

If a statute imposes an obligation of child support on all biological parents regardless of marital status, child support can’t be said to come from the “laws of divorce”. Again, you have no legal authority for the assertion that the obligation of child support comes from the “marriage contract”, or why that law is not subject to change by statute or constitutional amendment.

Sure I do. To require an individual, not bound by contract, to be financially responsible for a private concern of a second party, violates the essence of the “rule of law”.

Are you citing to yourself? Unless you’re the author of a legal treatise on the subject, that doesn’t fly. Cite to relevant legal authority that backs up your assertion, please. Otherwise it’s just a baseless assertion.

That is not true. If the mother wishes, she can refuse to name the biological father and raise “her” child alone. Or she can relinquish her child through a state sanctioned “Safe Haven” program.

For the millionth time, that is not the law, and a woman cannot unilaterally legally terminate a father’s parental rights. She cannot give the child up for adoption without his permission if he asserts his rights over the child. She cannot terminate his rights by abandoning the child. She cannot prevent the father from seeing the child or trying to get custody of the child. If she does not want the child and wants to give it up for adoption, the father may take custody and get child support from her. She cannot raise the child alone with the father completely out of the child’s life if the father wants to assert his parental rights over the child.

[catsix]

pravnik said:
For the millionth time, that is not the law, and a woman cannot unilaterally legally terminate a father’s parental rights. She cannot give the child up for adoption without his permission if he asserts his rights over the child. She cannot terminate his rights by abandoning the child. She cannot prevent the father from seeing the child or trying to get custody of the child. If she does not want the child and wants to give it up for adoption, the father may take custody and get child support from her.

Incorrect.

Forty two states have “safe haven” laws allowing a person to drop off a newborn infant at a specified location, some of them completely anonymously, such as Washington, Pennsylvania, California, Arizona, Nevada, Utah, Idaho, Montana, New Mexico, Kansas, South Dakota, Oklahoma, Minnesota, Missouri, Arkansas, Iowa, Wisconsin, Illinois, Kentucky, Tennessee, Mississippi, Alabama, Florida, South Carolina, North Carolina, West Virginia, Maryland, Ohio, New York, and Rhode Island.

All of these states list, via the web, that they are ‘Safe Haven’ states and specifically state either “No questions asked.” or “You do not have to give your name.”

Very possible for a woman or girl to give away a baby without even the knowledge of the father.

Map and links to laws available at http://www.safeplacefornewborns.org

[pervert]

pravnik said:“For the millionth time, that is not the law”

@catsix

Incorrect.

Forty two states have “safe haven” laws …

Which does not change the fact that both parents have responsibilities towards the child. Especially when you take into account that either parent (or a third party for that matter) could take advantage of such laws.

@Razorsharp

The only time that a child’s so-called “right” to support from it’s biological father is recognized, is when the birth mother wants financial assistance with the “choice” that she unilaterally make.

This is not true either. The only time that the right to support from either parent is recognized is when they volunteer to do so or are compelled to do so by the other parent. Males have responsibilities and rights associated with parenthood. So do females. Mostly those are the same rights and responsibilities. They differ slightly in the very early stages of development. The differences are due almost exclusively to the biological facts of said development. There is NO legal quandry at all.

[vanilla]

@furt

How is this any more reasonable from just saying “Girls, you don’t want a baby, don’t have sex”

Its equal. I agree with that too, women, don’t have se unless you want a baby you may have to raise alone.

[catsix]

pervert said:
Which does not change the fact that both parents have responsibilities towards the child. Especially when you take into account that either parent (or a third party for that matter) could take advantage of such laws.

Oh but it does make into bullshit the claim that the mother cannot unilaterally give the kid up without the father’s consent or even without his knowledge. The claim that the only time she has the ability to take unilateral control is during pregnancy and not after the baby is born is a blatant falsehood. In any one of the thirty states on that list she can walk up to a hospital, fire station or police station anywhere from 3 to 30 days after the birth of the baby and hand it over without any legal requirement to give any information at all - including her name. She never has to tell the father where she dropped the kid off, and the hospital, fire station or police station certainly can’t notify him unless they know his name (which she can’t legally be compelled to give).

So, she most certainly does have the ability to usurp the father’s right to custody by using the ‘Save Haven’ laws.

[pervert]

@catsix

So, she most certainly does have the ability to usurp the father’s right to custody by using the ‘Save Haven’ laws.

Possibly, but since the father has the same right, so to speak, there is no inherent unfairness.

I find it difficult to believe that if a father suspected his child had been delievered to a safe haven that he could not ask the state about it. I find it hard to believe that if such a father submitted to a few genetic tests his child could not be located. If I recall correctly, an extremely few children are abandoned in such a way.

Regardless, even if we were to posit a new law which allowed abortions into the 3rd year of life, we would not have a situation where it was arguable that father should be allowed to simply walk away from children they helped create. The fact of the matter is that regardless of when you cut off the option of abortion, the father most certainly did of his own free will (rape cases not withstanding) contribute to the creation of that child. He has, by that contribution, some responsibility.

Certainly we can argue whether it should be 25% of his income, or 35% or 75%. But the proposal that his responsibilities should be 0 is simply silly.

[catsix]

You and I most definitely disagree with that.

The person who unilaterally decides to keep the child should be the one solely responsible for the financial burden of it.

[minty_green]

catsix, would you be so kind as to provide some legal authority for the extraordinary proposition that a father’s legal rights to a child are terminated when a woman drops the kid off at one of those “safe havens”? Thanks ever so much.

[catsix]

Did you visit the link?

In thirty of the states there is no way to legally compel the person dropping off the infant to give a name, meaning it would be impossible to track down the father of the child at all. Most of them also stated in their FAQs that there’s a maximum of thirty days for anyone to contest the turning over of the infant, regardless of the fact that the person dropping the infant off is guaranteed privacy and told explicitly by the FAQ that they do not have to give their name or any identifying information.

Not all of the states list the actual statutes, but a couple of them do, and I found nothing in the statutes that required the person dropping off the infant to give their name, or the name of the biological parents.

[pervert]

@catsix

The person who unilaterally decides to keep the child should be the one solely responsible for the financial burden of it.

Clearly we disagree. But note that you have to use the word “keep”. The mother does not go off into the woods and produce the child without any voluntary input from the father. She only has temporary unilateral control over the child. You feel that this temporary situation somehow negates the father’s responsibilities. I have yet to see any argument which makes this sound reasonable.

No offense. It is just that the argument seems silly to me.

Consider again, my business analogy. If two partners start a business and one of them is called away, the second partner has sole control of the business while the first is away. They may have talked about and agreed on what should be done. But while the first partner is away, everyone will listen and do what the second partner wants. If she decides to sell off the most valuable assets, the first partner may not have any legal recourse to get them back when he returns. If she decides to borrow more money than they can pay back, he may be stuck with his share of the debt.

Of course, businesses can be set up on a contractual basis as “limited” partnerships (I know Limited Partnerships have a distinct legal meaning, I’m simply talking about contractual limitations not normal to the common understanding of a partnership). That is, they could agree in writing beforehand that neither partner can borrow more than a certain amount. In which case, the first partner might have good legal recourse.

However, the principle still holds. Unless you can establish a partnership which limits the power of the second partner, you do not have the right to back out of the partnership later. Just like she does not have the right to force you out if here decisions result in a huge windfall. In the case of children, limiting the females power would mean finding a way to have children other than gestation inside the female’s body. Do that, and I will agree that neither partner should be allowed a unilateral power over the fetus. Untill then, however,…

[catsix]

You can use whatever word you want in there. I think that if a person chooses to raise a child knowing that no one else wishes to share in that experience, then the financial responsibility for the child falls only on the person who chose to rasie it.

Anything else is a double standard.