Capital Commentary is the weekly current-affairs publication of CPJ, written to encourage the pursuit of public justice.

Paternal Responsibilities And Abortion Logic

Keith Pavlischek


December 7, 1998

Peter Wallis and Kellie Smith met at work, fell in love, shared an apartment. She got pregnant. He got mad. They split up. She gave birth to a baby girl. Mr. Wallis is now suing Ms. Smith for becoming pregnant against his will, accusing her of "intentionally acquiring and misusing" his semen when they had sexual intercourse. (I'm not making this up; it's all there on the front page of the November 23rd Washington Post!) It's not just a modern love story, for it has profound implications for law and public policy.

Wallis claims that Smith promised to take birth control pills but then quit without telling him. Smith says she took the pills but became pregnant accidentally. He offered to marry her, but she refused, claiming "I realized that he didn't love me." He then urged her to have an abortion, thereby, one suspects, confirming her intuition. She refused and gave birth. Mr. Wallis claims this forced him into a role he did not choose: fatherhood and the child support that goes with it.

The guy's got a point! In fact, the moral and legal logic of Mr. Wallis' position is impeccable. Prior to birth the law acknowledges no rights for the father when it comes to his offspring. A woman can legally abort the child he has fathered without even notifying him, let alone seeking his consent. That's her fundamental right under Roe v. Wade and Casey v Planned Parenthood. As far as the man is concerned it's the 'ole "heads I win, tails you lose." If the man wants her to have an abortion, that's solely her option. If he doesn't want her to abort, that's solely her option.

No legal rights! Fair enough, says Wallis, but then no legal responsibilities either. Indeed, this does raise fundamental questions regarding the legal responsibilities of a father. It seems fundamentally unjust for a woman to have the absolute right to avoid the legal obligations of parenthood by aborting her child, while the "father" (or the "donor of genetic material") is legally required to pay, against his desire not to have a child, years of child support. How can this be just if child bearing is entirely her choice? Abortion rights advocates have long denounced restrictions on abortion as "coerced motherhood." Isn't this "coerced fatherhood"?

R. Alta Charo, a law professor at the University of Wisconsin, argues that in cases like Wallis's, "lack of intention doesn't excuse you from parenthood." She says he has no legal right not to become a parent. But it certainly is an odd legal situation, when a woman has an absolute legal right not to become a parent but a father has no legal right not to become a parent. Apparently, intention is relevant for her, but irrelevant for him? Sounds a bit, well, sexist, does it not?

I propose a modest solution to this quandary. Given the current abortion regime, the sole just, nonsexist, equitable legal solution is to extend to men the right to opt out of parenthood currently only available to women. If a father declares that he doesn't want a child before birth and offers to provide the means (or at least half of the cost) for the woman to obtain an abortion he should not be required to pay child support.

I say, "given the current abortion regime," for the abortion license forces upon us such perverse consistency. We could hold fathers and mothers legally responsible for their sexual activity and for their children from the time they are conceived. But that, of course, would entail the legal protection of the unborn from harm, from the time they are conceived. Which is, after all, not such a bad idea.

—Keith J. Pavlischek, Fellow
   Center for Public Justice

“To respond to the author of this Commentary please email:
Capital Commentary is a weekly current-affairs publication of the Center for Public Justice. Published since 1996, it is written to encourage the pursuit of justice. Commentaries do not necessarily represent an official position of the Center for Public Justice but are intended to help advance discussion. Articles, with attribution, may be republished according to our publishing guidelines.”