Abortion Law is Family Law

Family Law Professor Helen Alvaré has a new article challenging the notion of many legal scholars that abortion law is constitutional law.  The Ruth Institute has published her piece where she discusses this idea, and challenges whether it is time for that to change.  Here is her work from the Ruth Institute web site:

“Questions about ‘abortion and the law’ are usually seen as matters of constitutional law. Constitutional law, however, seems ill-suited. This is not only because the U.S. Supreme Court discovered a ‘constitutional right’ for something that had been banned by most states for most of the nation's history. It is also because the ‘privacy’ right encompassing abortion frames the issue as a struggle between the state and the woman over her right to define her life, her future, or even her ‘concept ...of the universe,’ in the famous words of the Casey Court. But it is becoming increasingly apparent that abortion is about family relationships, not simply a contest between the state and a woman who happens to be pregnant. Scientific discoveries about human development and the testimonies of women who have had or have considered an abortion suggest that it is family law rather than constitutional law that provides the best means of understanding the issue of abortion.

Scientists do not really dispute the human genetic identity of the earliest embryo, or the continuity of identity from conception through birth and beyond. A book published recently to wide acclaim, Origins: How the Nine Months Before Birth Shape the Rest of Our Lives, by Annie Murphy Paul, shares scientific research indicating a relationship between external events like war and disease, and the wellbeing of those human persons who were unborn while their mothers experienced these events. Developments in the field of assisted reproductive technologies (‘ARTs’) also highlight the continuity between unborn and born lives, as does the now-routine practice of ultrasound technology.

A person who spends even a little time in the company of post-aborted women and clients of crisis pregnancy centers will come away convinced that these women experienced their pregnancies as motherhood-dilemmas. Their internal debates about abortion did not revolve around the question: ‘Should I kill?’ Rather, they wondered, ‘Should I, can I, be a mother now?’

Abortion is a family issue in other ways as well, as explained in the affidavits of 180 women filed with the U.S. Supreme Court in the second partial-birth abortion case, Gonzales v. Carhart. They described how abortion affected their mothering, how siblings of aborted children experienced repercussions of the abortion, and how they became pregnant again quickly after the abortion in order to have a ‘replacement baby.’

Justice Kennedy's majority opinion in Gonzales v. Carhart indicated that the Court itself was beginning to understand abortion in a family context. The opinion states outright that a bond exists between a woman and her biological offspring and that the severance of this bond via abortion might cause significant suffering for the woman. The majority wrote that ‘Respect for human life finds an ultimate expression in the bond of love the mother has for her child.’ The Court's use of language like ‘mother’ and ‘child’ also indicates a family law context. So does the majority's choice of labels for the unborn including ‘a living organism while within the womb,’ ‘unborn child,’ ‘infant life,’ and ‘child assuming the human form.’ The Court continued: ‘some women come to regret their choice to abort the infant life they once created and sustained.’

There are quite a few signs, then, that the time is ripe for exploring abortion from within a family law context. Indeed, there is some evidence that family law is experiencing second thoughts about ‘what was lost’ during the period when lawmakers fell into a pattern of prioritizing adults' interests over children's. This is a fair characterization of family law's failures over the past 30-40 years: the failure to place meaningful limits on the use of ARTs in order to defer to adults' wishes and to the flourishing of the fertility industry; the adoption of no-fault divorce laws which turned a blind eye to the wellbeing of minor children within a marriage. This ‘adults'-eye-view’ (really a blindness) has permeated recent judicial decisions creating a right to same-sex marriage on the grounds that legal marriage is unrelated to any state interest in procreation and child-rearing.

A backlash against the adults-first approach is now brewing. Bills introduced at the state level have suggested a number of positive steps, including restricting assisted reproductive technologies to married couples, or limiting donor anonymity. Others have proposed slowing down divorce proceedings, especially for couples with minor children. Meanwhile, every state which has turned the question of same-sex marriage over to voters has passed a law or constitutional amendment banning them, largely after campaigns insisting on the links between marriage, procreation, and child welfare." 
Click here to continue reading the entire article.
Abortion law is family law.  How a society orders its procreative rights either strengthens or weakens the families in that society.  For this reason many states are re-ordering their abortion law.  For example, South Dakota recently approved a 3-day waiting period for an abortion.  See the article at:
http://jurist.org/paperchase/2011/03/south-dakota-approves-3-day-abortion-waiting-period.php.  Younger Americans are realizing the effects of an adult-focused approach and are speaking out about it on college campuses.  At two New York colleges, students are having to fight for their right to do so.  Read about that here: http://www.yournabe.com/articles/2011/03/15/brooklyn/courier-yn_brooklyn_front_page-bn_kingsboroughlawsuit_2011_3_18_bk.txt.

Abortion places an adult’s interests above that of a helpless, innocent child.  When a society treats children in an abortive manner at the beginning of their lives, that adult-centeredness grows stronger with aging children.  Adults placing their interests above their children, born and unborn, weakens families. 

Family restoration is needed in the area of procreative rights.  Family restoration brings societal strength, and that strength is fostered by an end to abortion, and all adult first procreation. If families are restored and strengthened, the society will be strengthened in turn.  Children are always the future of any civilization.  Considering how adults treat children illuminates the core values of that culture. 

No comments:

Post a Comment