For the record, while I am staunchly pro-choice, I think that spousal notification is a painfully complex issue. Yes, it's the woman's body. It's also the man's future child, and while there may be no good way of balancing the man's and the woman's interests when those interests compete (i.e. when one of them wants to have the child and the other doesn't), I think that our current system, in which women have all the reproductive rights and men have the responsibilities, is seriously flawed. I don't believe we can expect men to be equal partners in child-rearing while denying them any say in reproductive decisions. Paternal consent, in my view, goes too far in infringing on the woman's bodily autonomy; paternal notification, on the other hand -- with exemptions when there is domestic violence or other complicating factors -- may not be such an onerous measure.
Ampersand (Barry) responds at Alas, A Blog and also in my comments thread. Among other things, he argues that the issue is less one of fathers' rights than of husbands' authority. (He points out that the law did not apply to unmarried fathers.) Kevin Drum also comments, along similar lines:
... abortion is just one of a constellation of hot button conservative social issues that have at their core a desire to enforce traditional sex and gender roles, and notification laws are yet another example of that. They aren't about notification, they're about control. In the case of parental notification, there's at least a reasonable argument that this kind of one-sided control is appropriate, but in the case of husbands and wives, there isn't. Not in the 21st century, anyway.
I don't think it's that simple. We're talking about the man who contributed half of the fetus's DNA; who, if he is aware of the pregnancy, may well regard the fetus as "his child" and not just a lump of cells. And this makes notification a wrenching issue. (Of course, that's equally true for unmarried fathers; but the disctintion may be partly pragmatic, since the partner of a pregnant single woman may not be easy to identify.)
I am not arguing, by the way, that spousal notification -- or, per Barry's correction, husband notification -- is the right policy. If I were in the legislature, I honestly don't know how I would vote; I'd have to listen to arguments on both sides first. (I would definitely oppose a husband consent requirement.) I am only saying that supporting such a law does not necessarily make one a fascist, a neanderthal, or a male chauvinist pig. Incidentally, in various polls, about 70% of Americans favor a law requiring a woman to notify her husband -- some polls include "partner" as well -- if she's having an abortion. So either the vast majority of Americans support male patriarchal ownership of women, or there is something else at stake.
Kevin Drum asks: what if the roles were reversed, and it was a question of making the husband notify the wife of something of roughly equivalent significance? For an answer, he points to this post by Garance Franke-Ruta at Tapped, who believes she has found an equivalent:
... it is worth noting that at the same time the state of Pennsylvania was arguing that the state had a legitimate interest in compelling a woman to inform her husband before she obtained an abortion, the state declined to make the conceptually similar demand that an HIV-infected man inform his wife that he carried a potentially deadly infectious disease that could be sexually transmitted.
Pennsylvania law states that "a physician may disclose confidential HIV-related information to a known contact of a patient infected with HIV" if he or she believes that the patient is putting that person at significant risk of infection, but the physical has no obligation to make such a disclosure unless ordered to do so by a court.
Garance-Ruta sums up:
The overwhelmingly male legislators of the state of Pennsylvania thought it perfectly appropriate to intervene in a woman's marriage and deny her the freedom to make reproductive choices without coercion, threats, or worse from her husband. Judge Samuel Alito agreed with those legislators. And yet, should that same husband carry HIV, the state would have left informing his wife of this fact to his discretion, and would require from him no proof or signed affirmation that he had, in fact, informed her.
The only commonality in the state's approach to these two (admittedly different) scenarios was, in each instance, to effectively diminish the power of the female part of the couple to control her fate and what happens inside her own body.
First of all, it is worth noting that the main reason we have no mandatory spousal/partner notification for HIV, the way there once was for syphilis and other sexual transmitted diseases, is not anti-feminist right-wing male legislators. Mandatory HIV-positive status reporting has been vehemently opposed by the American Civil Liberties Union and by gay rights groups. According to the website of the Canadian HIV/AIDS Legal Network:
... a proposal in San Francisco that health department staff offer partner notification services to bisexual men whose female partners might unknowingly have been placed at risk was denounced as Orwellian because of the prospect of creating lists of bisexual men and their partners. ... Even greater antagonism greeted the possibility of creating lists of the homosexual contacts of gay men, because of the fear of discrimination.
But leaving that aside, Garance-Ruta's analogy falls flat on two counts.
1. The policy on HIV infection notification is gender-neutral. A wife is under no more legal obligation to inform her husband of her HIV status than he is to inform her. Now, admittely, the risk of infection for women with HIV-positive male partners is much higher than for men with HIV-positive female partners. (Various studies estimate that male-to-female transmission of the virus is 8 to 10 times more likely than the reverse.) But the risk to male partners of HIV-positive women does exist. Furthermore, I'm not sure the legislators were even aware of how great the risk gap was; public health literature on HIV tends to consistently downplay it so as not to promote complacency about female-to-male transmission. So this is hardly a case of refusing to mandate notification when it affects only women.
2. More important, while a physician is not obligated to inform an HIV-positive patient's spouse or partner of his (or her) HIV status, and cannot require proof of notification from the patient, the patient does, in a sense, have a legal duty to notify his/her partner. Knowingly transmitting HIV to another person is a felony in
every state most states. It is also a civil tort; indeed, you can sue your spouse or lover for pain and suffering if he or she knowingly exposed you to HIV even if you test negative. Added: An HIV-positive person also can be prosecuted for exposing a sexual partner to the virus even if the partner is not infected.
In other words, if we treated abortion notification the way
we most states treat HIV notification, a woman coming in for an abortion could not be required to produce proof that she has notified her husband or partner -- but if the husband was not informed and learned about the abortion later, he could not only sue her for damages but file criminal charges.
I don't think even "Scalito" would go that far.
Correction: Knowingly transmitting HIV to one's sexual partner(s) is currently a crime in most but not all states. In some states, it is classified as a misdmeanor; in a few others, it applies only to selected groups such as prison inmates, sex offenders, and prostitutes and their clients. It should be noted that in states that lack specific statutes, including Texas and Washington, a person who knowingly and deceptively infects another with HIV can be prosecuted on other charges including assault, reckless endangerment, and "criminal exposure."
It is worth noting that generally, it's the socially conservative "red states" that criminalize knowing HIV transmission. The opposition to such statutes has come from civil liberties organizations such as the ACLU, as well as AIDS activist and gay rights groups.