Given the sensational headlines, you’d think an Oklahoma state legislator proposing a bill that requires a father to agree to his baby being aborted is akin to the horror of actually, you know, aborting a baby. With his bill, Republican state Rep. Justin Humphrey honors the sacred unborn baby’s life, involving a person often left out of the abortion debate altogether.
Humphrey’s bill would require a woman to get the written consent of her baby’s father before getting an abortion, and “to provide, in writing, the identity of the father of the fetus to the physician who is to perform or induce the abortion.” The bill allows exceptions for rape, incest, or when the mother’s life is in danger. Although its passage is unlikely, the media’s outrage and likelihood of the bill’s failure demonstrate just how much harder conservatives need to work to involve fathers in pro-life issues.
Now that the Republicans enjoy control of a record number of houses of state legislatures (67), and nearly 1,000 more seats than prior to the 2016 election, lawmakers have proposed a number of strong abortion bills. The Ohio legislature passed a so-called “heartbeat” bill that would have basically banned abortion once a heartbeat was detected, which can occur as early as five or six weeks into pregnancy. Gov. John Kasich vetoed the bill but signed another banning abortion after 20 weeks.
It Takes Two to Make a Baby, After All
Liberal media has responded to this Oklahoma bill with such vitriol, it’s clear they think acknowledging male involvement or “rights” in the baby-making process is a bridge too far. To them, “pro-choice” actually means “woman’s” choice, men be damned. Mother Jones and even The Washington Post lambasted the bill and its author.
Humphrey recently told the Intercept that he wrote the bill because he wanted to involve fathers in the decision regarding an abortion.
‘I believe one of the breakdowns in our society is that we have excluded the man out of all of these types of decisions,’ he said. ‘I understand that they feel like that is their body,’ he said of women. ‘I feel like it is a separate — what I call them is, is you’re a ‘host.’ And you know when you enter into a relationship you’re going to be that host and so, you know, if you pre-know that then take all precautions and don’t get pregnant,’ he explained. ‘So that’s where I’m at. I’m like, hey, your body is your body and be responsible with it. But after you’re irresponsible then don’t claim, well, I can just go and do this with another body, when you’re the host and you invited that in.’
While it’s clear what he meant in calling women “hosts,” the media attached to that like a barracuda to flesh.
No, Rep. Justin Humphrey, we are not “hosts.” We are women, and we cannot be contained. #WhyIResist
— Women’s March (@womensmarch) February 13, 2017
Slate covered the bill with this headline: “Why the Oklahoma’s Anti-Abortion Fetal “Host” Bill is So Noxiously Unconstitutional.” The author said “Humphrey’s vision of pregnancy is ethically incoherent and morally grotesque.” He continued,
The ‘liberty’ described in the Due Process Clause includes the ability of women ‘to control their reproductive lives.’ Our Constitution allows women to make choices about sexuality and reproduction: whether to have sex and with whom; whether to get married and to whom; whether to use birth control, in or out of marriage; and whether to carry the fetus to term or terminate it.
Ironically this author, and many liberals, rely on the due process clause of the Fourteenth Amendment to criticize bills like this. Yet the clause clearly says “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws (emphasis mine).”
So women are protected under the due process clause, but men and babies aren’t? Since male sperm is literally required to create an embryo (i.e., a really tiny baby) shouldn’t the due process clause, I dunno, cover all three?
In 1991, while on the federal bench at the U.S. Court of Appeals for the Third Circuit, Judge Samuel Alito Jr. supported a “case for a provision in a Pennsylvania law that required women, with few exceptions, to notify their husbands before they could have an abortion.” Although Alito’s fellow judges and the U.S. Supreme Court disagreed (in 1992’s Planned Parenthood v. Casey they ruled spousal notification was unconstitutional), Pew Research found the public supports spousal notification, even though they also supported Roe v. Wade. Obviously liberals are concerned if a bill like this passed and were challenged at the Supreme Court, Alito and other like-minded justices would uphold it.
For Now This Bill Isn’t Going Anywhere
Humphrey introduced his bill last week and it passed out of a House Committee Tuesday. Although the Oklahoma legislature enjoys a Republican majority and Gov. Mary Fallin has signed approximately 20 pro-life bills over her last six years in office, it’s possible the bill may not pass. Humphreys says he wants to “strike title” to work on the bill. This generally means the bill faces an uphill battle toward passing. It either needs more work or there are some serious objections and it won’t make it to the floor unless it’s been rectified.
Another problem is the likelihood of the Supreme Court’s review of such a law. Indeed, the Supreme Court dealt with this very question in Planned Parenthood v. Casey and found that while “most women discuss an abortion with their partners, those who do not were much more likely to be in abusive relationships.” The court decided rules like this place an undue burden on women. If a bill like this is going to succeed, it needs to make very specific allowances for situations like this. For many women, abuse is real and should be taken seriously.
One of the counterarguments against such a bill is that this may force women who want an abortion to receive consent from abusive or “deadbeat” fathers, or conversely that granting an exemption for such cases would immediately become a loophole for all women even if the exception doesn’t apply. Humphrey’s freshman status might have contributed to his zeal. It appears he went full-bore toward a message that, however genuine, could have been translated better into legislation. In the future, it might help to collude with Oklahoma’s pro-family groups on the best way to advance a pro-father, pro-life message.
Still, Humphrey’s willingness to draw fathers into the pro-life cause is admirable, necessary, and could influence the abortion debate in a unique and compelling way. Legislation like this, even a rookie effort, could be a stepping stone to more mature pieces of legislation that push the pro-choice community to embrace facts and reality: Mothers, babies, and fathers have rights too.