Spare me.
Conley re-evaluates his original argument in the Times, and pretty much just digs himself a deeper hole. But, contrary to various accusations from other left-wing blogs, Conley is neither an anti-choice zealot nor an idiot. He’s pro-choice, and he’s socially liberal — in other words, he’s one of us, he just really misses the boat on this issue. And that’s why I think he’s worth engaging. So here goes, piece by piece:
One of the (main) modernist projects is about erasing the limitations of biology. If someone is wheelchair bound, we do not — at least since the passage of the Americans with Disability Act – tell him/her that s/he cannot see a movie because biology has made him unable to walk up the flight of stairs to enter the theater.
In fact, we actively try to mitigate the effects of physical differences even though it comes at enormous costs to the rest of society — particularly small business owners. Likewise, we reject social assignment based on other physical characteristics such as skin tone, most notably. And many progressives (including myself) think it absurd that only a pair of individuals who have the opposite sex organs should be able to enter the social and economic contract of a marriage with all the rights (and responsibilities) attendant to that contract.
Think of men’s inability to conceive as a disability that needs to be overcome by law where science is not able…
But here’s the difference: The Americans with Disabilities Act doesn’t infringe on the body of anyone else. Yes, it is costly to tax-payers and small business owners, but it doesn’t compromise their physical integrity. The comparison is irrelevant. And it’s not that disabled people are asking to do things that they physically cannot do no matter what — they’re asking for access to things that they can do. To use Conley’s own analogy, a person in a wheelchair is asking that a ramp be in place to let him access the theater — he isn’t crying discrimination because he can’t be a dancer on broadway, and then demanding that those dancers carry him on their backs so that he can experience it, too.
Perhaps a better analogy is this one: Just as we don’t tell the wheelchair-bound that they can’t go to the theater because they can’t climb the stairs, we don’t tell men that they can’t be fathers just because they can’t give birth.
As for the same-sex marriage thing, there isn’t any biological reason why same-sex couples can’t marry — there are only social and political reasons (and not particularly good ones). So that analogy flies out the window.
However, I would argue that it is this biologically-based argument opens the floodgates for all sorts of essentializing arguments; Larry Summers’ claims about differences between male and female brains are only the beginning.
Well, first of all, people have been using supposedly biologically-based arguments to justify female oppression for centuries. But the difference between comparing something like math ability and conception capability is that both men and women can do math, and both men and women have the intellectual capacity to do well in that subject. Men don’t have a specific neurological wire that women are missing, which enables them and them alone to be mathematicians. But only women can conceive and give birth. Men physically cannot. Feminists aren’t complaining that it’s gender oppression or gender essentialism that we can’t pee standing up, or that we’re physically incapable of inseminating someone else.
But the rhetorical worries aside, research shows that the main roots of continued gender inequality in the workplace (and home) rests in the asymmetry of the “exit” strategy from childrearing — the power garnered by men through this implicit threat.
Why is it that men seem to exit from child rearing responsibilities much more often than women do?
(…)
Until then there exists an asymmetry of rights and responsibilities. It is this asymmetry – not the biological differences per se — that I argue lead to the oppression of women through the underlying logic of unequal family roles.
So the solution is to give men the right to determine whether or not a woman continues a pregnancy? That sounds like a good solution, which surely will lead to women attaining more rights, and men helping out more in child-rearing.
The key to my argument is separating out the costs and risks of pregnancy from the issue of the child as joint property — for lack of a better word. If you believe that a fetus is only a woman’s and part of her body, then the argument stops there. But then shouldn’t paternal obligations be abrogated too (other than compensating the woman for the “tort” he has inflicted by inseminating her — i.e. perhaps paying for the cost of an abortion and associated pain and suffering)?
Well… they pretty much are, at least during pregnancy. I’m fairly certain that under tort law, one doesn’t have a cause of action for pregnancy. The compensation and parental issue doesn’t come up until the kid is born, at which point it is no longer a part of the woman’s body, and isn’t “property” of anyone.
From the point of view of the potential “father,” what distinction is there between his responsibilities to a bunch of cells when it is in the uterus to it when it is born if all the material “stuff” that created that child is donated, if you will, by the mother save half of the instruction manual (i.e. DNA)? The answer may be that he engaged in contract with the woman when he engaged in intercourse. Perfectly reasonable is to say that sex is not a contract, in which case, pregnancy should be non-binding on the father, no? (But can the same be said for sex within the marriage contract?) Again, if it all boils down to the fact that “it’s a woman’s body” then let’s have a real discussion of what can and can’t be expected of fathers.
That first sentence is a little confusing, but if I’m understanding it correctly, he’s asking what obligation men have to women’s pregnancies. And the answer, in my mind, is none.
Do men have an obligation to the partners they impregnate? Sure (but it’s more of a moral than a legal one). Can (and do) men feel responsibility for the embryos and fetuses they create? Absolutely. And that’s fine. But do they have a legal obligation to them? I’m not even sure what this would mean.
And as for his obligation to a born child, that’s a different story. And the difference is, well, birth. At the point of birth, the fetus is no longer a part of the woman’s body. It is now an autonomous entity. That isn’t to say that men should have no part in their partner’s pregnancy — of course they should, and if they’re decent people, they will. But when it comes to reproductive decision-making, that right ends at birth (it should be noted that things like adoption aren’t “reproductive rights,” they’re post-birth contractual decisions). Once the child is born, it is the undisputed progeny of two people. It’s not physically attached to one or the other. Both parents then have an obligation to that individual.
When might a father’s rights and obligations be said to start? At birth, would be the answer for many people. However, if the issue is the pregnancy risks / costs, the risks of childbirth and the hijacking of the woman’s body toward these ends, then what are we to make of a father’s rights when a fetus is say, 25 weeks — well within the realm of viability? If the issue is getting the object out of the woman’s uterus, and she chooses to do that post the point of external survivability, then does a man have any say whether the fetus is “born” or “aborted” as long as it is out of her body — i.e. about the method of extraction?
No, he still doesn’t have any say about the method of extraction. And here’s why: Because it’s a medical procedure being done on her body. If I decide to donate my kidney, and there are various ways in which it may be extracted from my body, should the potential recipient be the one who determines how it’s extracted? Of course not. It’s my operation. I’ll work with my doctor to decide what the best procedure is.
Another question is why the state needs to get involved here at all?
If a man cannot properly negotiate reproductive decisions with his partner, then how would the courts do any better? I would hope and assume that in almost all cases sexual partners would be able to work out a suitable solution privately. But in some cases this fails. You might argue that it is equally wrong for the state to get involved in custody arrangements and in adoption proceedings, for that matter. Fine. Or you might argue that there is a difference because the object of debate is the woman’s body. This gets us back to the notion that a fetus is part of her body — an argument that was more sustainable, I would say, before the advent of ultrasound and other technologies that let us “see” into the womb.
The state should not be involved in reproductive decision-making. It may, however, be involved in custody arrangements and adoption proceedings, and there’s nothing inconsistent about that view. Here’s why: Reproductive decisions are private. They fall under the right to sexual privacy, an arena in which the state has little place — indeed, the courts have ruled that the state does not have a compelling enough interest in early fetal life to get involved with first-trimester abortions. The state certainly has no compelling interest in preventing women from using birth control, or from preventing two consenting adults from having sex with eachother — these are things covered by privacy rights. When it comes to sex and reproduction, the state generally stays out of it because we’re dealing with adults making decisions about their own bodies.
On the other hand, the state does have a compelling interest in the well-being of children, who do not yet have the full array of rights given to adult citizens, and who need protection in a way that adults don’t. That’s why the state gets involved with custody battles and adoption proceedings — in the interest the child, not in the interest of controlling the behavior of either parent.
The state often has to get involved post-birth when one partner walks away completely. And Conley seems to be forgetting that a lot of pregnancies occur between people who aren’t in a stable relationship — what about one-night stand pregnancies? Pregnancies that occur as a relationship is ending? Pregnancies that result from rape or incest, or that occur in abusive relationships? When it comes to reproductive decision-making, the state certainly shouldn’t have much of a role. But post-birth, it’s a different story, because the state is usually representing the minor child — an entity who has no other means of supporting him/herself. The state has a vested interest in protecting individuals, particularly its weaker members, like minors, and so it involves itself in post-birth disputes. Fetuses aren’t citizens, and they aren’t individuals — adult women are.
As for his argument about ultrasound equipment, it’s ridiculous. If it’s not part of the woman’s body, where exactly is your ultrasound equipment looking?
If I view the fetus as distinct from the woman’s body, why not go all the way then, and just be pro-life? Again, this is a matter of separating the pregnancy issues from the externality — if you will — of the child to be born. Notice that I am not advocating that men should not be able to inflict an abortion. Rather, the notion is that we should act to preserve life that is wanted by at least one of the progenitors.
Ok, but at what cost? And why should we only act to “preserve life” that one of the progenitors wants? What if a third party decides they want it — shouldn’t we preserve it then? If not, why not?
I find it interesting that he argues that the embryo/fetus is “distinct” from the woman’s body. If that’s the case, how exactly is it surviving? Where is it living? If it’s distinct from her body, why are we jailing women who use drugs while they’re pregnant? — after all, if the fetus was distinct, it wouldn’t matter what she does with her body, right? If the fetus was truly a distinct entity, we’d be able to simply remove it at any point in pregnancy, hand it to the man who wants it, and call it a day, everyone’s happy. But the fact that such a plan wouldn’t really work demonstrates pretty clearly that the fetus is part of the woman’s body, and her choosing to carry it is a burden that should be chosen, not forced.
If the purpose of abortion is to avoid unwanted children then the child wanted by his father is not, in fact, “unwanted.” This must be weighed in tandem with the obvious physical, emotional and other risks and costs associated with the pregnancy itself. To the extent that abortion takes place to end an unwanted pregnancy (not prevent a birth), then it seems to fall entirely in a woman’s domain.
I doubt there are many women out there who go, “You know, pregnancy is no big deal. I’d do it, but I just don’t want another kid.” I’d imagine that, for most women, the decision to have an abortion doesn’t come down to “I don’t want a child” or “I don’t want to be pregnant” and that’s it. I’d imagine that it’s a slightly more complicated interplay of those two desires.
And using this argument, anti-choicers will tell you that no child is “unwanted” (that’s clearly a lie when you look at child poverty and orphan rates, but let’s follow their lead and ignore that for a few minutes). The anti-choicers will tell you that every fetus is wanted, that they themselves want every single fertilized egg to develop into a human being. So the “force her to give birth if it’s wanted” argument doesn’t really fly.
However, the complicating factor is the view of the fetus as having two responsible parties with rights over it. Is a better solution a negotiated settlement where the man provides a nest egg to guarantee the support of the child (agrees to have wages docked, etc.) and also compensates the woman for her pregnancy costs (in terms of health risks, lost wages, and so on minus the risks attendant to an abortion)? Non-binding arbitration might also present a potential solution. And of course, as an alternative I think it is entirely logical to say that fatherhood should be entirely voluntary — absent any rights or responsibilities until entered to through written contract. (One view of insemination sees it as a gift contract, a donation of sperm over which the man has no further claims; however, this flies in the face of the financial responsibility of the father for what the woman does with that gift.) Along these lines, perhaps there should be a pre-sex contract that partners can sign to firm up their reproductive rights and/or responsibilities (downloadable in PDF format for those moments of passion — might take less time than fumbling with a condom).
Well that sounds pleasant. But even if we accept that Conley’s contracting suggestion is a good one (which I don’t), here’s one major loophole: Should either party break the personal-service parts of contract, the courts can’t force them to perform, only to make it up in monetary damages. So, if a couple contracts for the woman to have an abortion and the man will pay for half of it, and she decides afterwards that she wants to give birth instead and breaks their contract by not showing up for her abortion appointment, there’s nothing he can do about it (thank you, contracts outlining). As far as I understand it, the courts cannot legally require her to perform a personal service; the best they can do is award him financial damages for anything he had lost. So, if she had accepted the money for the abortion, she’d have to pay him back. Beyond that, though, I’m not sure he has much of an arguement that he financially lost out because she chose to give birth instead of terminating her pregnancy.
Similarly, if a couple contracts for the woman to give birth and the man to pay half of her healthcare costs, and she turns around and has an abortion anyway, there really isn’t much he can do except sue for any money he lost.
And what of those pregnancies that happen outside of a committed relationship — or a relationship where the partners even know eachother? It’s not ideal, but the reality is that some women are impregnated by men they don’t know, who maybe they met at a bar one night and have no way to get ahold of in the future. Or women who are raped — will we force them to press charges in order to exempt themselves from the partner contract requirement? Or will the “father” of the fetus still have a claim to it?
So the contract solution would be a bureacratic mess, and not even a particularly effective one. And while I think it’s a pretty good idea to understand your partner’s views on reproduction before you sleep with them, even a universal application of that method wouldn’t solve the problem, because people change their minds. How many times have we heard, “I was vehemently pro-life — until I got pregnant” or “I didn’t think it was the right time to have kids, but when I accidentally got pregnant I changed my mind.” We have to leave room for that.
As for his argument that fatherhood should be voluntary, well, it gets a little tricky when you’re talking about the state’s interests in protecting the born child. I think that pregnancy should be voluntary, but I’m not sure that I’d make the argument that after the child is born, parenthood should be voluntary (assuming, that is, that adoption isn’t chosen). When “giving up” parental status, we still require that mothers do particular things: Sign adoption papers, place the child in an adoption center, etc. It’s a criminal act for a woman to give birth, then just leave the baby wherever she feels like it or refuse to take care of it, because “motherhood should be voluntary.” We don’t require ever woman who gives birth to keep her child — and this is a good thing — but we still have a few legal hoops that she has to jump through. She can’t just sign a contract pre-birth and walk away, which is what Conley seems to be suggesting men should be able to do.
The bottom line is that motherhood isn’t completely voluntary. Even if adoption is chosen, the woman who gives birth still has to take particular actions, and she relinquishes her responsibilities to someone else. In Conley’s “fatherhood contract” model, the father doesn’t have a replacement to take on his responsibilities, and to care for the child — he just walks away. That doesn’t seem quite right.
We must also keep in mind that if men had rights in reproductive decision-making a new generalized equilibrium would emerge. Heterosexual couples might enter sexual relationships more cautiously (on average) with adequate discussion of reproductive possibilities. Practice of birth control may become more widespread. And, I think, fathers would be more involved in the raising of children, thereby easing the second shift for women and leading to greater gender equality. I recognize that structure of negotiations is such that men and women are starting from unequal positions in the wider world; however, that does not mean that the solution is to ignore reproductive rights differences but rather to actively engage them within that context.
See, this really doesn’t follow. If a man can force you to continue a pregnancy, or force you to have an abortion, and simultaneously can contract into fatherhood (but absent a contract, it’s assumed that he has no responsibilities), men will be more involved in child-rearing and will help the ease the second shift? Huh. “Don’t worry, ladies, by taking away your right to control your own reproductive functions, we’re actually helping you.” No thanks. Empowering women and easing the second shift will come when woman and men are social equals, not when we give men greater power over women’s bodies.
As for his birth control point, that raises an important question: If we’re allowing men to decide whether or not their partners give birth, what’s the argument for allowing women to be on birth control without permission? After all, that birth control is blocking his sperm from inseminating her. Why should she have the sole right to decide what happens to his sperm after he ejaculates?
Response to comments: I can accept that it is “your” body but will someone please then just engage the argument that fatherhood should then be voluntary? Or make it explicit that in this case, rights and responsibilities are decoupled, it is not fair, and men should get over it. But in that case, are other forms of gender inequality–such as a $1 to .76 cents wage ratio okay too? Should women just “get over it too and accept that life isn’t fair? All I’m saying is that we need a real dialogue about the underlying devil’s deal that is being cut across this issue–especially since parenthood is the prime root of the wage penalty. I should have framed my argument as: “let’s reexamine the debate over fatherhood given it’s (only) a woman’s right to choose” rather than “let’s reexamine the abortion debate, given fathers’ responsibilities…”
Post-birth fatherhood shouldn’t be voluntary because post-birth motherhood isn’t voluntary. Once we’re talking about another individual, and not a pregnancy, it’s a different story.
So no, it’s not the same as wage inequality — women are not physically incapable of being paid on par with men. But men are physically incapable of being pregnant and giving birth — therefore, they shouldn’t have legal power over someone else’s pregnancy.
Here’s what Conley misses: How do we enforce, or even institute, any of the ideas he brings up here? If we agree that a male partner should have an equal say in a woman’s reproductive decisions, how do we make that happen? A permission slip before she can have an abortion or give birth (“Stop! Stop labor immediately! You can’t have that baby yet, your partner hasn’t given the ok!”). What for the women who exercise a choice that differs from their partner’s wishes — criminal sanctions? Economic sanctions? How do we measure what those would be?
And what do we do when partners don’t agree? If both people want to terminate the pregnancy, or both want it to continue, it’s fine. But if their desires differ, and we’re working with the idea that each partner has a 50% say, who do we defer to? Do we take it to court? Or do we defer to the person whose body is the carrier for this “life” who both people have a 50% claim to? (And how, exactly, viewing women as carriers or vessels is going to increase gender equality is still beyond me). Either way, someone will have to make the final call; someone’s opinion will have to outweigh the other’s. But how do we decide? Err on the side of “life,” even if it means that a woman is literally forced to carry a pregnancy to term? Is compulsory childbirth really what we want? And how do we enforce it — lock her in a room for 10 months? Moniter her constantly? Throw her in jail if she has an abortion?
Conley also seems to argue for particular legal rights without understanding the law behind them. Reproductive rights are centered on the right to sexual privacy, which is premised on the idea that others — like the state — have no business regulating what you do with your own reproductive system. Under that very basic framework, I’m not sure how he could make the argument that men have a right to exert control over women’s reproductive functions. It runs counter to the legal definition of privacy rights. How he could possibly reconcile these two concepts is still beyond me.
Ok, I’m done. For now. I’m sure there’s a lot that I missed — have at it.