As Democrats in Virginia, New York, Rhode Island and in Congress, just to name a few places, seemed to condone laws allowing babies born alive after botched abortions to die, pro-life activists have been emboldened. A legal case in Alabama may toss more fuel on their fire.
Ryan Magers has filed a wrongful death lawsuit against those who in February 2017 dismissed his objections and assisted with an abortion for his then-girlfriend, who was six weeks pregnant. The defendants include the doctor, the clinic that performed the procedure and the drugmaker that created the abortifacient administered to her.
A probate judge recently allowed the lawsuit to proceed, heartening Magers and his pro-life cheerleaders.
Magers’ case is a long shot. Courts routinely have smacked down men’s “reproductive rights” since the Supreme Court decided Roe v. Wade in 1973.
But other factors are in play that raise questions about whether the status quo can hold, if the case goes far enough: the high court has a new conservative majority; many are repulsed by the Democrats’ increasing radicalism on abortion specifically, and on cultural issues generally; and recent polling by Marist College indicates Americans by a 2-1 margin want tighter restrictions on abortion
So, with the glare of the Democrats’ outrageous position in the born-alive debate still burning bright, Magers’ case, which his lawyer claims breaks new ground legally, could be a game-changer in two ways: highlighting the “personhood” movement, and pursuing fathers’ rights.
The lawsuit is built on a 2018 state constitutional amendment, adopted by 59 percent of Alabama voters, that recognizes legal rights for the unborn from the moment of conception. Besides Alabama, Kansas and Missouri also have personhood laws.
But activists behind such laws are working in every state. Any progress by Magers will encourage them, and invite a counter-reaction by pro-choice forces. Again, if Magers makes enough headway, the court might have to revisit Roe to define when life begins.
On a different front, since Roe, the issue of fathers’ rights has been less than an afterthought, as reinforced by two major decisions over the past 46 years.
Just three years after Roe, the court struck down a Missouri law that required a wife to obtain her husband’s consent for a first-trimester abortion.
“We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife’s pregnancy and in the growth and development of the fetus she is carrying,” Justice Harry Blackmun wrote for the six-justice majority. “Notwithstanding ... we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right.”
The court revisited the issue in a 1992 decision involving abortion regulations adopted by Pennsylvania.
The majority found that a father’s-consent mandate created an “undue burden” on pregnant women. “A significant number of women will likely be prevented from obtaining an abortion just as surely as if Pennsylvania had outlawed the procedure entirely,” the majority held. “Furthermore, it cannot be claimed that the father’s interest in the fetus’ welfare is equal to the mother’s protected liberty, since it is an inescapable biological fact that state regulation with respect to the fetus will have a far greater impact on the pregnant woman’s bodily integrity than it will on the husband.”
In Magers’ case, pro-choice activists predictably predict doom for women everywhere. But the lawsuit may cast new light on the biological fact that a father’s involvement in pregnancy begins long before birth.
Family court judges are notoriously and commonly biased against men. Had Magers’ situation been reversed two years ago, every family court judge in America would have compelled him, rightfully so, to financially support the baby for 18 years, as well as likely giving the mother custody most of the time. Yet, although Magers was ready to step up to his responsibility, his girlfriend, her family and the law denied that, asserting he had no say whatsoever.
Armin Brott, author of several books on fatherhood, once summed up this issue fairly succinctly: “A woman,” he said, “can legally deprive a man of his right to become a parent or force him to become one against his will.”
Many women believe without much proof that their hard-fought gains for equality are perpetually at risk with Donald Trump in the White House
Yet on abortion, men truly are second-class citizens, and pro-choice activists and judges have ensured they remain so. Magers’ case could lead Americans to rethink that.
Bill Thompson (firstname.lastname@example.org) is the editorial page editor of The Ledger in Lakeland, Florida.