Coercive Abortion Prevention Act Assumes Male Guilt, Opens Door to Unfair Prosecutions

By Jeffery M. Leving and Glenn Sacks

Bob and Jane live together and, like many young couples, they sometimes argue. There never seems to be enough money, and while they both want to go to college, neither has yet been able to do so. Jane recently discovered that she is pregnant.

Jane is ambivalent about the pregnancy, and her friends think she should terminate it–she’s too young, and Bob isn’t very stable. Bob would like to be a father someday, but not now–he can’t pay their bills and wants a better career.

One day Bob and Jane argue over some things Jane bought with their credit card, and Bob tells Jane he doesn’t want to pay their bills anymore. He says he’s tired of arguing with her, doesn’t want her to have the baby, and wants to move out for a while and think things over.

Under a bill recently passed by the Michigan House of Representatives, Bob could go to jail.

HB 5882, which passed the Michigan House 67-38, amends the Michigan Penal Code to create the Coercive Abortion Prevention Act. Its purpose is to prohibit the putative father of a pregnant woman’s child from coercing or intimidating the woman into terminating her pregnancy. While preventing violence or threats of violence against pregnant women is an admirable goal, HB 5882 goes way beyond this by interfering with constitutionally protected personal prerogatives.

HB 5882 actually makes it a crime for a man to "change or attempt to change an existing housing or cohabitation arrangement" with a pregnant significant other, to "file or attempt to file for a divorce" from his pregnant wife, or to "withdraw or attempt to withdraw financial support" from a woman who he has been supporting, if it is determined that the man is doing these things to try to pressure the woman to terminate her pregnancy.

This violates men’s rights. The U.S. constitution’s protected liberty interests safeguard privacy in areas such as contraception, abortion, marriage, procreation, child rearing and sexual conduct between consenting adults. Do Michigan legislators believe these protections don’t also cover the basic personal choices HB 5882 proscribes?

The Michigan National Organization for Women and other women’s advocates have declared their opposition to CAPA because they see it as a step towards limiting women’s reproductive freedoms. Yet to date HB 5882 has only drawn comment for its potential impact on women’s reproductive rights and not its serious consequences for men.

The bill is also laden with unfair presumptions of male guilt. There are many legitimate reasons why a man might be angry over his wife or girlfriend’s pregnancy. He may leave because he doubts that the child she is carrying is his. He may want her to terminate a pregnancy because he felt he was deceived into getting her pregnant, and doesn’t want to be on the hook for 18 years of child support. He may leave because she blames him for not being a good enough provider, or lashes out at him during pregnancy-related mood swings. None of these behaviors are particularly chivalrous, but they are certainly understandable.

A talented district attorney, who may be looking for publicity as a defender of pregnant women, could frame a man’s decision as an attempt to coerce an abortion. The accused needn’t be convicted to suffer egregious harm–the cost of criminal defense is often ruinous, and the emotional toll can be worse.

While the media has greatly exaggerated the threat men pose to their pregnant wives or girlfriends, the physical danger from which HB 5882?s supporters seek to protect women is real. For example, Rae Carruth, formerly a prominent NFL wide receiver, was convicted in 2001 of conspiring to murder a woman who was carrying his fetus. The woman had refused to terminate her pregnancy, and, according to the prosecution, Carruth didn’t want to be obligated to pay child support.

It’s debatable whether the anti-violence provisions of HB 5882 are good law, because the violence it prohibits is already illegal. But protecting women from the Rae Carruths of the world is one thing–punishing men for their private conduct in their personal relationships is quite another.