Subject: Friends of Choice for Men #11 From: change@nas.com (Kingsley G. Morse Jr.) Date: Wed, 6 Nov 1996 16:54:06 -0800 (PST)
How the Web Was Won
Subject: Friends of Choice for Men #11
From: change@nas.com (Kingsley G. Morse Jr.)
Date: Wed, 6 Nov 1996 16:54:06 -0800 (PST)
Status: O
X-Status:
For redistribution
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F R I E N D S O F C H O I C E F O R M E N # 1 1
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11/6/96
Current C4M Cases
More Boys Forced into Parenthood by Statutory Rape
Was President Clinton Forced into Parenthood?
Supreme Court Strikes Down Gender Discrimination
Choice from the Grave
Data on Illegitimacy may be Unreliable
Census Bureau Report
Right Not
Condoms are Unreliable
Equal Protection Case Law
Israeli Supreme Court OKs Forcing Men into Parenthood
Vital Statistics on Abortion and Adoption
Administrative Stuff
=======================
Current C4M Cases
=======================
California: A case went up the appellate route, until it reached the U.S.
Supreme Court, and they refused to review it. No explanation of why
they refused to review it was offered. I read the man's argument in this
case, and in my opinion the arguments for legalizing choice for men were
weak. The man in this case wants to avoid publicity.
Kansas: In the state which forced a boy who'd essentially been statutorially
raped into legal parenthood, another case is before the Kansas Court of
Appeals, and it's been requested to be transferred to the Kansas Supreme
Court. See: Spease, et al v. Rooney. I haven't read the case.
Tennessee: A third case has been submitted to the Court of Appeals for
the western section of Tennessee, home of the Davis v. Davis case, which
said that the party wishing to avoid procreating should normally prevail
(that's good). The man's argument in this case looks pretty good to me.
======================================
More Boys Forced into Parenthood by Statutory Rape
======================================
Kentucky: Harlan County prosecutor Alan Wagers said his office would help
a 27 year old woman appeal a trial court's denial of her lawsuit to get the
father of her child to pay support. The father was 14 at the time,
essentially making him a victim of statutory rape because he was too young
to consent. Rush was never prosecuted. [Bowling Green Daily News-AP, 5-3-96]
Colorado: The Rocky Mountain News reported on August 2, 1996 that Adams
County is attempting to recover AFDC payments from a man who was about 12
when he was forced into parenthood, essentially by statutory rape.
===========================================
Was President Clinton Forced into Parenthood?
===========================================
President Clinton's directive to aggressively establish legal paternity
for AFDC purposes may turn out to be another example of political opportunism
if a story from issue 359 of a newspaper named "The Truth at Last" turns
out to be true.
Evidently Clinton has an illegitimate child! The paper published a picture
of a boy named Danny, who bears a distinct resemblance to President Clinton,
and his mother, Bobbie Ann Williams, passed a lie detector test when she
claimed that Danny was Clinton's son! An anthropologist who studied a photo
of Clinton and Danny found that they had many close resemblances which
are so unusual that the likelihood that he is the father is very good.
Remember this the next time Clinton goes after unmarried fathers to
establish paternity or collect child support.
====================================================
Supreme Court Strikes Down Gender Discrimination
====================================================
The U.S. has a long and sad history of sex discrimination, for example,
women didn't even have the right to vote until the 20th century, and
men still don't have the right to decline parenthood. The U.S. Supreme Court
made it harder to justify gender based discrimination in the recent Virginia
Military Institute case. The court concluded that sex discrimination
by the government can only be permitted if the state demonstrates an
"exceedingly persuasive justification". This is a good legal precedent
for our cause, because it makes it harder to justify forcing only men
into legal parenthood. The VMI case Syllabus is at
http://www.law.cornell.edu/syllabi?virginia+and+military+and+institute
=====================================
Choice from the Grave
=====================================
Do men have the right to not be forced into parenthood after they die? This
isn't a joke! Britain's Human Fertilization and Embryology Authority
is reconsidering it's decision to not let Diane Blood use her dead husband's
sperm without his written consent after considerable media and political
sympathy. And an Australian court in the Tasmanian capital of Hobart ruled that
a frozen embryo is legally entitled to inherit its father's estate even if
the father died before implantation in the mother's womb. The upshot is that
some courts may actually force dead men, who haven't consented, into
parenthood, and award part of the man's estate to the resulting child.
======================================
Data on Illegitimacy may be Unreliable
======================================
The L.A. Times reported on May 2, 1996 that California women who use their
maiden names after marriage and childbirth may be surprised to learn they
are officially counted among the states 'epidemic' of unwed mothers. This
error may cause the number of illegitimate births to be over estimated.
I don't know how much error this introduces in California's numbers, nor
which other states are making the same mistake.
=====================
Census Bureau Report
=====================
"Fertility Patterns of American Men" (Population Division Working
Paper No. 14). Available April 29, 1996. This working paper
examines fertility differences among men by age, race, Hispanic
origin, marital status, educational attainment, labor force
status, occupation, income, place of birth, and characteristics
of spouses in married-couple families. Copies may be obtained by
calling 301-457-3030.
=========================================
Right Not
=========================================
>From familylaw-l@lawlib.wuacc.edu (The Family Law Email List)
By Wolfgang Hirczy
The right to control reproduction is indisputably one deemed of
great importance and is vigorously asserted. Its achievement and
protection is one of the primary rationale of some advocacy
organizations. While the earlier privacy rights discovered by the
U.S. Supreme Court in the federal constitution (access to, and use
of, contraceptives) involved no dispute between a couple, however,
abortion rights subsumed under the label "reproductive freedoms"
are today quintessential women's rights, i.e. they are unilateral
and sex-specific.
The U.S. Supreme Court established in _Planned Parenthood of
Central Missouri v. Danforth_ that states may not allow the husband
(let alone an unwed biological father) any say in the abortion
decision.
"We now hold that the State may not constitutionally
require the consent of the spouse [...] as a condition
for abortion during the first 12 weeks of pregnancy.
[...] We recognize, of course, that when a woman, with
the approval of her physician but without the approval of
her husband, decides to terminate her pregnancy, it could
be said that she is acting unilaterally. The obvious fact
is that when the wife and the husband disagree on this
decision, the view of only one of the two marriage
partners can prevail. Since it is the woman who
physically bears the child and who is the more directly
and immediately affected by the pregnancy, as between the
two, the balance weighs in her favor." 428 U.S. 52.
[Also see the more recent Casey decision, in which a husband
notification requirement was struck down as unconstitutional
_Planned Parenthood of Southeastern Pennsylvania v. Casey_, 112
S.Ct. 2791 (1992).]
On the other hand, however, the federal government has forced the
states to hold fathers responsible for their biological children.
Modern paternity statutes provide for the involuntary determination
of paternity of children born out of wedlock, and thus
establishment of child support obligations. The biological father
cannot defend against a paternity suit on the grounds of privacy or
denial of reproductive freedom. In addition, he can be required to
pay retroactive support and an equitable portion of all prenatal
and postnatal related health care expenses of the mother and the
child. While the economic and life style consequences of
childbearing may be more onerous for women because they
automatically become custodial parents upon birth, the key
difference is that would-be mothers have the legal right to avert
these consequences by means of abortion, while the would-be father
has no functionally equivalent mechanism to escape the
responsibilities of parenthood.
Under current law, once conception has occurred women can still
chose whether they will become parents, while men have no such
choice, whether they are married to the mother or not. If the
principle of equal rights with respect to involuntary parenthood is
to be take seriously this situation must be remedied.
While the inequality with respect to the right to have a child is
not amenable to presentation as a constitutional complaint under a
state equal rights amendment (except for cases where a would-be
father seeks to prevent the abortion of what would be his child),
the constitutionality of involuntary parenthood has already been
tested in a Texas court.
In _D.W.L. v. M.J.B.C._, 601 S.W.2d 475 (1980), an unwilling
biological father appealed a judgment establishing his paternity
and ordering him to pay child support and attorneys fees. He argued
that the woman's right to abortion breaks the nexus between the act
of intercourse and the birth of the child. Since the decision to
bear or not bear a child belongs to the woman, the man should not
be forced to support the child if the woman chooses to bear it. (p.
478).[3] The Court of Appeals disagreed, giving two reasons: (1)
that the decision to bear children is a fundamental liberty, and
(2) that the U.S. Supreme Court has also held that illegitimate
children have the same rights of support as legitimate children.
The first reason is specious. If the decision to bear a child is a
fundamental liberty, a woman cannot be forced to abort. Whether or
not a court later establishes paternity has nothing to do with it.
It does not retro-actively interfere with her liberty to carry her
pregnancy to term. The mother's fundamental right is nevertheless
relevant to equal rights analysis, because the father has no
equivalent right to decide whether he wants to be a parent. The
court's second reason is more compelling, but also troublesome. As
long as there is no provision for establishing the paternity of all
illegitimate children, it depends on the mother (and others with
standing to sue for paternity), whether an illegitimate child will
enjoy equal rights, i.e. have two parents.
The argument about discrimination on the basis of illegitimacy is
flawed for another reason as well: A husband could make an
identical complaint about involuntary parenthood if his wife
decides to bear a child he does not want to support. There is of
course a good public policy reason for holding against the
biological father, one that does not apply to the mother. By safe-
guarding the would-be mother's right to abortion the state's
welfare burden is likely to be reduced because of lower numbers of
children born into adverse economic circumstances.
In contrast, if the state recognized the father's complaint against
involuntary parenthood he could not be tapped as a source of
support for a child ALREADY BORN. Had the court sustained the man's
complaint and ruled Texas' paternity statute unconstitutional, it
would have torpedoed the policy of recouping AFDC payments to
relieve the welfare burden.
Interestingly enough, men who do not want to become fathers may
fare better in instances where the child is not yet born. In _Davis
v. Davis_, 842 S.W.2d 588 (Tenn.1992), the now famous frozen-embryo
case, the Tennessee Supreme Court ruled that a divorced man could
prevent his former wife from using or donating pre-embryos that
resulted from the fertilization of her ova with his sperm in a
petri dish for later implantation. While carefully using gender-
neutral terminology the court recognized that the ex-husband had an
equal right to procreational autonomy, which encompasses both the
right to procreate and the right to avoid procreation. The court
did not create an absolute veto power for the party trying to avoid
parenthood, but balanced the interests of the two "gamete-
providers," and determined that Mr. Davis should prevail in his
efforts not be forced to become a parent against his will.
Men may now apparently also claim an interest in fetal tissue
derived from abortions performed on their female sex partners.[2]
And as for artificial insemination, New York's first female chief
justice, Judith S. Kaye in a recent speech characterized the
question of whether sperm donors should have visitation rights as
one of the serious issues confronting the family courts (New York
Law Journal May 17, 1993, 1).
FOOTNOTES
[1] This argument was examined by Levy and Duncan (1976) in the
wake of _Roe v. Wade_. They concluded that the mother's decision to
bear the child does not refute the RATIONAL BASIS for holding
fathers at least equally liable with mothers for the support of
children resulting from their sexual union, and that paternal
support statutes should thus be upheld. But that argument pertains
to federal equal protection analysis. The rational-basis test is no
longer applicable in Texas, because the ERA made sex a suspect
classification; at least since 1987, when the Texas Supreme Court
clearly said so.
[2] _The Chronicle of Higher Education_ April 7, 1993, A26. ("New,
temporary federal guidelines on fetal-tissue research include a
controversial provision that restricts scientists from conducting
the research if the father of the fetus objects.")
=========================================
Condoms are Unreliable
=========================================
The Alan Gutmacher Institute in New York City says that 16% of those
using condoms will experience an accidental pregnancy each year. That's a
lot!
A mere 84% success rate EACH YEAR is like playing russian roulette over
the long course of a man's reproductive life, and certainly won't "control"
his procreation. A binomial statistical analysis can be used to accurately
predict the probability of various numbers of accidental pregnancies over
time. For example, after 20 years of using condoms, a man has a only a 4%
chance of having had no accidental pregnancies! 4% isn't control!
But there's more. After 20 years of playing russian roulette with condoms,
the chances are that a man will experience not one, not two, but THREE
accidental pregnancies! Three accidental pregnancies isn't "control", and
condoms aren't a substitute for the right to decline legal parenthood.
======================================
Equal Protection Case Law
======================================
Although the recent Virginia Military Institute case in the U.S. Supreme
Court subjects official classification based on gender to so called
"strict scrutiny", other cases have concluded that strict scrutiny is also
justified when fundamental interests are at stake, for example:
A) an interest in receiving welfare benefits within a year of
having moved to a different state (_Shapiro v. Thompson_, 394
U.S. 618 (1969)).
B) an interest in entering into a marriage (_Zablocki v. Redhail_,
434 U.S. 374 (1978)).
C) an interest in securing a decree of divorce (_Sosna v. Iowa_,
419 U.S. 393 (1975)).
As Kevin Darcy points out "Is the man's interest in not being made a legal
parent not as "fundamental" as the above rights, and thus not as deserving
of Strict Scrutiny?"
======================================================
Israeli Supreme Court OKs Forcing Men into Parenthood
======================================================
Recently a five judge panel of Israel's Supreme Court ruled that Danny
Nahmani, who fertilized 11 of his childless wife's eggs in vitro before
their marriage went bad, could not be forced into parenthood.
But an 11 judge panel has now overturned that ruling, saying Ruti Nahmani's
"right to be a parent is stronger than a man's right not to be a father"!
I have one thing to say about that. Yuk.
============================================
Vital Statistics on Abortion and Adoption
============================================
Statistics on abortion, adoption and illegitimacy rates are at
http://www.instantech.com/users/1260/index.htm
For example:
Abortions:
1993 - 1,3000,000 ( 99,000 fewer than the peak of 1990 )
In 1993 there were 334 abortions per 1000 live births
In 1993 79 % were unwed --- 54 % were under age 25
In 1993 62 % were white and 34 % were black
In 1991 77 % were white and 23 % were black
Adoptions:
In 1993 there were 16,409 adoptions in the U.S.
================================
Administrative Stuff
================================
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newsletter, send your request to change@nas.com
LEGALIZE CHOICE FOR MEN!
for more information contact
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http://www.nas.com/c4m
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