March 12, 2006

Privacy, Equality and Public Policy

by PG

Despite the vast contempt in which my physician-dominated circle of family friends holds attorneys, a visit home always entails requests for a lawyer's opinion. Thankfully, most of these requests are on abstract matters rather than personal legal problems, so I don't have to cite the prohibition on the unauthorized practice of law (which explanation tends to be summarized by listeners as "Ah, they don't want you cutting into the other guys' business by giving it away for free, huh?"). The big topic of the day among non-law students is not the Solomon Amendment nor even state bans on abortion; it's "Roe v. Wade for men."

The actual reasoning of Roe v. Wade, and of subsequent decisions upholding a constitutional right to obtain an abortion, is of course* quite useless for this crusade to end the imposition of child support responsibility on biological fathers. Roe is about the right of privacy against government intrustion, and to some degree personal liberty in the body, the latter aspect being championed by 9th Amendment types. Child support, on the other hand, has no obvious connection to privacy; freedom from it is a matter of economic rather than social liberty, and economic substantive due process has yet to regain its purchase on Supreme Court jurisprudence. Government began mandating child support so it would not be burdened with the financial cost of raising the children of unmarried and divorced parents, and this is a policy necessity that seems likely to out-balance any opposing claim.

Nonetheless, the equal protection basis for the lawsuit** is interesting from an alternative history perspective. What If... Roe had been decided on gender equality instead of privacy penumbras? Articles about this possibility abound, but I'd recommend Justice Ginsburg's 1984 Lecture cum Essay: Some Thoughts on Autonomy and Equality in Relation to Roe v. Wade, 63 N.C.L. REV. 375 for its extreme brevity and thorough footnoting. (I consider this a good combination for a blog post -- get the opinion across quickly while providing lots of links for those who wish to explore further.)

I commented at the outset that I believe the Court presented an incomplete justification for its action. Academic criticism of Roe, charging the Court with reading its own values into the due process clause, might have been less pointed had the Court placed the woman alone, rather than the woman tied to her physician, at the center of its attention. Professor Karst's commentary is indicative of the perspective not developed in the High Court's opinion: he solidly linked abortion prohibitions with discrimination against women. The issue in Roe, he wrote, deeply touched and concerned "women's position in society in relation to men." It is not a sufficient answer to charge it all to women's anatomy -- a natural, not man-made, phenomenon. Society, not anatomy, "places a greater stigma on unmarried women who become pregnant than on the men who father their children." Society expects, but nature does not command, that "women take the major responsibility . . . for child care" and that they will stay with their children, bearing nurture and support burdens alone, when fathers deny paternity or otherwise refuse to provide care or financial support for unwanted offspring.
* I say "of course," but there is a frustratingly stupid post on National Review's Bench blawg by Matthew Franck, who also doesn't seem to have read Roe and its progeny. He concludes some remarks about how legal abortion and the Pill allowed men to have sex without consequences (odd how it's only methods under women's control that are problematic, while our old buddy the condom goes unmentioned) by saying,
At the end of this road, as I argued a few months ago here, is a man’s “right” to seek an injunction forcing a woman to have an abortion if a pregnancy is “unplanned.” There is no reason, under the abortion regime as it stands in our constitutional law, that this last barbarous step cannot be taken. But then there is simply no reason at work in that regime at all—only willfulness.
Considering that our "abortion regime" stands against forcing women to get their husbands' permission to get an abortion, on the rationale that the State cannot "'delegate to a spouse a veto power which the [S]tate itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy,'" I'm sincerely curious as to how Franck gets from the "willfulness" of those wayward women who get abortions to the ability of their impregnators to exercise control over them. No doubt opponents of legal abortion find calling the privacy jurisprudence nonsensical more satisfying than performing the 1L con law task of understanding it, but that's a mentality I'd expect more at the Corner than on what purports to be a blawg.

** Picking on typos in a filing by an individual or even organization of limited resources is mean, but this particular malapropism in the list of injuries amused me: "Subjecting himself to embarrassment, public reticule, anger, loss of self esteem, etc." Just something about carrying a lady's bag in public when suing over gender equality... it's not a purse, it's European!

March 12, 2006 05:29 PM | TrackBack

Where is the prohibition against giving free legal advice found? The only prohibitions I have seen cover the "unauthorized practice of law for compensation."

Posted by: Curious at March 13, 2006 11:56 AM


The provision of legal advice is considered unauthorized practice (advice=practice), and until PG has passed the bar, she's not authorized to give it. The "for compensation" part is pretty broad, too. Giving an opinion on a personal legal issue is one of those things law schools warn you about doing.

Posted by: A. Rickey at March 13, 2006 02:05 PM
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