If Men Got Pregnant, Would Abortion Be Legal?

By Glenn Sacks

In Peggy Drexler’s new Huffington Post column "The Supreme Court: Why Women Matter" (6/8/09), she defends maligned Supreme Court nominee Sonia Sotomayor and calls for more women on the Court. Drexler explains:

"[Abortion is] gender’s judicial flashpoint. If men got pregnant, reproductive choice would be in the Bill of Rights—if not a sacrament. Yet, we were/are a vote or two shy of limiting or denying that choice. Women will see that threat as no man possibly can."

Drexler may be correct that Sotomayor will help broaden the Court’s perspective and make it more solicitous of women’s concerns. Her view that society would be more solicitous of men’s reproductive rights than women’s is common in the pro-choice movement. However, if men could get pregnant, would abortion really be legal? Based on the relevant family law rulings and related legislation, the answer is probably "no."

Though abortion is controversial, few believe that women should be compelled to bear and be responsible for children who were conceived as a result of a criminal act, such as a sexual assault. Yet numerous courts have ruled that boys must be held responsible for the children they involuntarily fathered in their early teens as a result of a criminal act—statutory rape by an adult woman.

For example, in 2004 a Michigan appeals court ruled that a man who had conceived a child with an adult when he was 14 must pay her child support. Though the court acknowledged that the sex act which produced the child would have been a crime under state law, they decided that the case should be resolved "without regard to the fault of either of the parents."

Most people sympathize with women who have decided to terminate their pregnancies because they conceived as a result of being deceived into believing that their partners had vasectomies or were sterile. By contrast, courts have consistently failed to extend any consideration to men who have been deceived.

For example, in 2005 an Illinois appellate court decided a case in which a Chicago physician alleged that his ex-girlfriend had secretly kept his semen after the two had oral sex, and then impregnated herself with it. The court stated that if the doctor’s story is true, his ex-girlfriend "deceitfully engaged in sexual acts which no reasonable person would expect could result in pregnancy." Yet it hung the responsibility for the child on the doctor anyway, employing the pretzel logic that "when plaintiff ’delivered’ his sperm, it was a gift…There was no agreement that the original deposit would be returned upon request."

Fetal protection laws also demonstrate courts’ and lawmakers’ concern for women’s reproductive rights and disregard for men’s; if mom doesn’t want to be a parent, the unborn child is a meaningless fetus, yet if it is dad who doesn’t want to be a parent, the fetus is considered a living human being. This double-standard was highlighted in 2005 in a case involving a Texas high school couple.

Erica Basoria testified that when she was four months into her twin pregnancy she regretted not getting an abortion, and asked Gerardo Flores, her boyfriend, to help her terminate it. Basoria then punched herself in the stomach while Flores stepped on her stomach, inducing a miscarriage.

Though both Flores and Basoria had committed exactly the same act for exactly the same reasons, Flores is now serving life in prison for murder. Basoria, who stood by Flores and cried when he was sentenced, could not be prosecuted because of her legal right to an abortion.

A million and a half American women legally walk away from motherhood every year by abortion, adoption, or abandonment. In more than 40 states, a mother can terminate all parental responsibility by returning the baby to the hospital within a few days or weeks of birth. Similarly, women can give their babies up for adoption, generally with few legal complications.

By contrast, courts and laws refuse to recognize reproductive prerogatives for men, forbidding them to avoid responsibility for a pregnancy in even the most extreme circumstances. If men got pregnant, would they have abortion rights? There’s little reason to think so.