Abortion: a man’s right to choose?

A man in Coventry in the UK is asking the courts to prevent his partner from having an abortion – once again raising the question of whether men should have a say in abortion, or whether the decision should be solely down to the pregnant woman.

In fact, most decisions to abort are reached by both partners together. One study found that only five percent of 1000 men surveyed felt they had been forced into the decision, while a massive 84 percent felt the decision was ‘a joint resolution of the matter’ (1).

And most men are not overly perturbed by the decision to end an unwanted pregnancy, with very few resorting to the law to try to stop their partners having an abortion. Disagreement between couples about abortion is rare, and few cases, particularly in the UK, reach the law courts. The law regarding men’s right to have a say in their partner’s abortion is unequivocal on both sides of the Atlantic: UK law allows men no say, and case law in the USA has reached the same conclusion.

But this has not stopped some men from trying. Since 1991, about two dozen men in the UK have approached the courts attempting to prevent their partners from having an abortion, while in the USA there are regular attempts, though not as many as there were in the late 1980s.

So should men have a say in their partner’s decision to have an abortion? No. However tough it seems, this decision has to be the pregnant woman’s and hers alone.

When a couple faces an unplanned pregnancy there are a number of possible reactions. Many men are very happy with the decision to abort, and most of those involved in committed relationships will support the decision to abort even if it is not the one they would prefer. This is exactly the same for the woman. Many women facing an abortion have said that they would not mind having a child – it is the fact of the pregnancy and the timing of the pregnancy that is the problem.

Those men who do pursue legal and obstructive action either in the UK or the USA are usually supported by one of the major anti-choice organisations. In the UK, the anti-abortion group Life distributes a leaflet for men entitled ‘Forgotten fathers’. The Society for the Protection of Unborn Children claims to receive half a dozen enquiries a week from men wanting to prevent their partners from having an abortion.

Both organisations argue that the abortion experience is bad for everybody concerned. Life’s leaflet states that ‘Abortion is bad for the men who want to be kind and loving fathers. Relationships often break up after abortion – leaving both parents bereft and with long-term problems’. It is men backed by anti-choice groups who pursue legal cases to stop women seeking abortions – on the basis that they will suffer as a result of the woman’s decision.

But the UK law is very clear on the matter. A man has no legal right to prevent his partner, even if they are married, from having an abortion – nor may he force her to have an abortion. The decision rests solely with the woman, provided she can convince two doctors that she meets the criteria laid out in the 1967 Abortion Act.

The first reported case of a man trying to prevent his ex-partner from having an abortion that reached the UK courts was in May 1978. In Paton v Trustees of BPAS and Paton, William Paton, a steelworker living in Liverpool, failed in his attempt to prevent his estranged wife Joan from having an abortion. The judge, Sir George Baker, ruled that the claim for an injunction to prevent the abortion ‘is completely misconceived and must be dismissed’.

The first major case, however, was in 1987, when Richard Carver, a 24-year-old student at Magdalen College, Oxford, tried to prevent his 21-year-old former girlfriend, who was also studying at Oxford, from having an abortion. He argued that the abortion was unlawful because the fetus was, in the words of the 1929 Infant Life (Preservation) Act, ‘capable of being born alive’. At the time of the case his ex-girlfriend was 21 weeks pregnant. The father – known throughout the case as ‘C’ – brought the action in his own right and in the right of the ‘child’.

The case C and another v S and another became known as the ‘C v S’ case. ‘C’, a member of the Oxford University Society for the Protection of Unborn Children, attempted to force the decision to the House of Lords after the High Court and the Court of Appeal turned down his request. Three law lords refused his application, with then master of the rolls Sir John Donaldson recalling the words of Sir George Baker in the Paton case: ‘I think it would really be a foolish judge who would try to do such a thing [force the woman to keep the pregnancy to term] unless, possibly, there is clear bad faith and an obvious attempt to perpetrate a criminal offence.’

The counsel for ‘C’, Gerard Wright QC, a founding member of the Association of Lawyers for the Defence of the Unborn (ALDU), had previously acted for Victoria Gillick in her attempts to prevent general practitioners from prescribing contraceptive pills to girls under 16 without parental consent. He argued that the fetus, if born, would be born alive. He conceded that it would almost certainly die, but argued that it was still ‘capable of being born alive’.

The local Oxfordshire Health Authority refused to carry out the abortion until the matter had been finally resolved – a decision that astonished the three law lords, who pointed out that the Court of Appeal had already ruled and nobody would ever be charged for acting on such a decision, ‘otherwise the life of the country would grind to a halt’. Still the health authority insisted on a final decision, which was given immediately.

The ‘C v S’ case was one of the quickest in British legal history. The time from its first hearing in the High Court to an appeal and dismissal by the law lords was about 36 hours. Under normal circumstances, such actions sometimes take years. The end result was that the pregnant woman was deeply affected by the case, had the baby, and gave it over to Carver to look after.

The ‘C v S’ case shows that the anti-choice lobby is often the driving force behind the demand that men should have a say in their partner’s decision to abort. This is not to say that all men who oppose their partner’s decision are anti-choice. But to take their opposition to the courts has usually required the assistance, financial and otherwise, of a well-organised and well-funded anti-choice lobby.

Obviously, some men’s feelings will be hurt if a partner or former partner makes a decision that conflicts with their own. But the question remains, where does the right lie? If the appeal for rights is entirely a matter of emotional attachment, then yes, men ought to have rights.

The question of right, however, is not an emotional one. If women can be legally obliged to carry an unwanted pregnancy to term, then we make women slaves to pregnancy. Whatever the emotional attachment of men, their loss is not a loss of freedom – as it would be for a woman if she was forced to continue her pregnancy to term.

It is important to refute the suggestion that men have as much at stake as women in pregnancy and, subsequently, abortion. It is legitimate to expect men to play a role in taking responsibility for contraception and childcare. But pregnancy is something that only women can undergo. It affects women’s bodies, their careers and their lives. An unwanted pregnancy may have a devastating effect on a woman and it is entirely legitimate for her to seek to end that pregnancy on her terms.

And any introduction of a conflictual third party into the equation can have a ruinous impact on a woman’s life.

The logical conclusion of involving men in the decision to abort, is that any third party with a connection to the pregnancy a could have a say in whether a woman has an abortion. This removes whatever little control women have over the decision to abort.

The fact is, the result of allowing third parties a say can have dreadful results for the women involved.

In Blair, Nebraska, on 26 September 1994, Ruby Scott discovered she was pregnant. She was 15-years old at the time. Two days later she told her boyfriend, Heath Mayfield, that she was booked in for an abortion. Mayfield returned with friends and family to harass her and forced them to leave their home for a cousin’s house. Then up to 10 police cars (the number is disputed) arrived there to take her away, after the local county attorney signed an affidavit consenting to her being taken into custody. She was detained by the police, interrogated by the county attorney, temporarily placed in a foster home and forbidden by a judge from having an abortion.

The boy’s mother had approached a local doctor who provided the court with a letter stating that ‘any elective abortion could potentially cause medical and emotional damage to the mother at any stage of pregnancy’. Neither the doctor, nor his assistant who co-signed the letter, ever examined Ruby Scott.

Another examination revealed that Scott was in fact 27 weeks pregnant and beyond the legal limit for abortion. The following day flyers appeared in the town branding her parents ‘murderers’. The Blair city attorney at the time, Wyman Nelson, acknowledged that anti-choice sentiment runs strong in the area, but insisted that it played no role in the incident. ‘This wasn’t about the issue of abortion, it was about the health of a juvenile’, he said. ‘If it had been a tonsillectomy or an appendectomy, we would have done the same thing.’ (3)

The baby was born on 7 December 1994. Ruby and her parents moved to Iowa, across the state border. The family pursued a civil action in the Nebraska courts against a number of local officials and the boyfriend and his family. Ruby’s attorney described the episode as ‘the first time town authorities have mobilised en masse to interfere with a woman’s right to choose’. The suit was finally settled in May 1998. The terms of the settlement were kept confidential but Scott’s attorney described them as ‘happy’ with the outcome (4).

The above incident is remarkable because it is rare. But while it is perhaps unique for the lengths the boy/father went to, it shows the possibilities when others choose to interfere with a woman’s decision whether or not to abort an unwanted pregnancy. This particular man’s claim acted as a conduit for interference by the police and other state bodies. What should have been a private decision for the woman developed, through the man’s actions, into a massive public storm.

The consequences of third-party intervention in the decision to abort are debilitating for the couple involved and horrifying for anybody interested in defending personal autonomy. Any attempt to force a decision on a woman represents a diminution of the woman’s ability to control her own body, revealing an attitude that ‘women do not know what is good for them’.

But what about the argument that as men have to look after children when they are born against their wishes, so they should be allowed to have a say whether they are born at all? Is it not entirely legitimate and logically coherent to say that, in cases where men are reluctant fathers, they should enjoy complete freedom from any legal or financial comeback?

This leads on to one recurring and problematic area that appears to transcend the pro- and anti-choice barriers. As Roger Wade, the former director of a US abortion clinic, who spoke to about 1200 men, writes in a leaflet for men that, as a result of his experiences:

‘Men and women involved in unplanned pregnancy have all sorts of relationships to each other. Some may have on-going, very intimate relationships, while others have just met and have no intention of continuing on with each other. Most are somewhere in between these poles and have dated for a while but are not sure whether their relationship has the potential to become a serious one. The crises of dealing with an unexpected pregnancy forces a couple to examine some of the most intimate and sensitive issues of human sexual relationships. Uncertainties about the relationship can become crucial in what happens.’ (5)

It is an unfortunate fact of life that when couples cannot agree on a decision – let alone on whether or not to continue a pregnancy – one or other of the partners will be hurt. But when disagreements occur on such matters, which are entirely fundamental to a relationship, it does suggest a deeper difficulty in the relationship. In this instance, both because the woman is the one who bears the child and is the one on whom the majority of the responsibility for childcare falls, it must be she who has the final say.

Men are generally involved in the decision to abort. It is only when the relationship breaks down that men will attempt to force women to either carry to term or end a pregnancy against their wishes. It is only in these circumstances that it becomes an issue.

And precisely because it is in emotionally charged circumstances, we must hold firm to the cold, calculated reality of pregnancy and childbirth: women are still ultimately responsible for this aspect of the reproduction of the species, and they alone should be allowed to make decisions as to whether and when to have children.

David Nolan has worked for reproductive rights organisations in the USA and the UK.

This is an edited extract of the chapter ‘Abortion: should men have a say?’, by David Nolan, originally published in Abortion Law and Politics Today (ed) Ellie Lee, Macmillan 1998. Buy this book from Amazon (USA).

Read on:

Defending abortion in law and in practice by Ann Furedi and Dr Ellie Lee
(1) Men and Abortion, Lessons, Losses, and Love, Shostak and McLouth, Praeger 1984
(2) New York Times, 25 September 1995
(3) Marie Claire, October 1996
(4) Omaha World-Herald, 12 May 1998
(5) ‘For Men About Abortion’, Roger Wade, Boulder, Colorado 1994