Roe v. Wade

PART III: The Forgotten Rights of Men


" To the extent that American women - most American women - follow the
rules of fair play and give-and-take and no alimony, they do so because
they think of themselves as strong human beings, human like
the men of whom they refuse to take an advantage."

                             Margaret Mead

We have seen how the Court has acknowledged the predominant rights of fathers in the past, and even while doing so has utilized the philosophy of this same past to render a decision that recognizes a mother's right and ignores the father's. Having examined the means the Supreme Court used to justify abortion let us now examine what should be one of the main consequences of their decision. Since a man no longer has a say as to whether he is to be a father or not, that is to say, whether or not any woman, even his own wife, is to have an abortion or not, then he should not be held accountable for support of the child that then comes into being without his consent or "choice."  Decisions arrived at by "the consent of the governed" are democratic, those that are imposed against the will of the governed are tyrannical - forced child support is tyranny.

The issue of a husband having a say over his wife's abortion was addressed by the Court in Planned Parenthood of Missouri v. Danforth (1976.)  Justices Stewart and Powell in concurrence acknowledge that; "Previous decisions have recognized that a man's right to father children and enjoy the association of his offspring is a constitutionally protected freedom. .. In assessing .. constitutional validity .. we are called upon to choose between .. competing rights." For the choice they make we read from the majority decision, which, like that in Roe, was delivered by the injudicious Blackmun; "The obvious fact is that when the wife and the husband disagree on this decision, the view of only one of the two marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is the more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor."  We are also told that; "we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right."

We listen now to Justices White, Burger, and Renquist in dissent; "the Act provides that a married woman may not obtain an abortion without her husband's consent. The Court strikes down this statute in one sentence. It says that 'since the State cannot . . . proscribe abortion . . . the State cannot delegate authority to any particular person .. even the spouse, to prevent abortion . . .' .. But the State is not .. delegating to the husband the power to vindicate the State's interest in the future life of the fetus. It is instead recognizing that the husband has an interest of his own in the life of the fetus which should not be extinguished by the unilateral decision of the wife.  It by no means follows, from the fact that the mother's interest in deciding 'whether or not to terminate her pregnancy' outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed and may not be protected by the State. A father's interest in having a child - perhaps his only child - may be unmatched by any other interest in his life. .. It is truly surprising that the majority finds in the United States Constitution, as it must in order to justify the result it reaches, a rule that the State must assign a greater value to a mother's decision to cut off a potential human life by abortion than to a father's decision to let it mature into a live child. Such a rule cannot be found there, nor can it be found in Roe v. Wade, supra. These are matters which a State should be able to decide free from the suffocating power of the federal judge, purporting to act in the name of the Constitution.

 In describing the nature of a mother's interest in [terminating] a pregnancy, the Court in Roe v. Wade mentioned only the post-birth burdens of rearing a child .. and rejected a rule based on her interest in controlling her own body during pregnancy. .. Missouri has a law which prevents a woman from putting a child up for adoption over her husband's objection .. This law represents a judgment by the State that the mother's interest in avoiding the burdens of child rearing do not outweigh or snuff out the father's interest in participating in bringing up his own child. That law is plainly valid, but no more so than .. the Act now before us, resting as it does on precisely the same judgment."

 There are two main areas of interest and controversy that I would point out in these quotations. First, we can clearly see some of the dangers apprehended in the forming of our Constitution; the arguments forwarded by Madison that the federal government would make itself the arbitrator of unenumerated rights and render them "consequently insecure," and that the government would be used as an instrument by the majority to oppress the minority. Both these things have both to pass, the rights of men have become "insecure" and the majority, that is women, have used the Federal Government, and particularly the Supreme Court, as an instrument to oppress the minority sex, that is, men.

 In the second area we can see the blatant disingenuousness, or may I say, outright fraud, of the Court in its application of rules. You have read the reason given in Danforth for denying a husband a choice in the abortion decision, now read the following. In Reed v. Reed (1971) the Court increased the job opportunities for women by ruling; "to give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by [equal protection]. In Frontiero v. Richardson (1973) it said; "statutory distinctions between the sexes often have the effect of invidiously relegating the entire class of females to inferior legal status without regard to the actual capabilities of its individual members."

 Clearly the Court has two rules; one says that you look how the two sexes on average or in general are affected by a law; the other says that you ignore average effects and concentrate on how individuals are effected. How do they decide which rule to use? That is easy - you know the answer, whichever rule better serves the interests of women. If physical strength is needed in a job, you don't reason like in Danforth that women are in general weaker than men and are therefore excluded from this occupation. No, you point out that there are strong women out there who can do the job as easy as the average man. What if we extended the reasoning in Danforth to cover child support - what would we come up with? It would be pointed out that the man is the one who is more greatly saddled with the financial burden of the child and therefore it is he that should decide whether the child is to be supported or not. Is it not amazing how Blackmun can write of "her pregnancy" while a wife tells a man she is having "your baby," and that the same "deadbeat" - or father, in matters of delinquent child support is told by the government that it is "his child." It is difficult to even read these decisions without being overcome with disgust, but as I do not wish to lapse into rhetorical excess I will move on.

 In Book 1, Ch.16 of Blackstone's Commentaries we read; "3. The duties of children to their parents arise from a principle of natural justice and retribution. For to those, who gave us existence, we naturally owe subjection and obedience during our minority, and honour and reverence ever after; they, who protected the weakness of our infancy, are entitled to our protection in the infirmity of their age; they who by sustenance and education have enabled their offspring to prosper, ought in return to be supported by that offspring, in case they stand in need of assistance. Upon this principle proceed all the duties of children to their parents, which are enjoined by positive laws." Clearly Blackstone's remarks accurately reflect what we find in human society throughout history. Go to a third world country today and ask a woman why she desires to have so many sons and she might tell you it is because she expects to rely on them one day for support, particularly if her husband has passed away. As for the "principle of natural justice and retribution," the concept is easy to understand. The man puts an alimony or child support check on one side of the scale and the beneficiary puts something of equal value on the other side to balance things out. To take something from someone without compensation is theft; slavery is a type of institutionalized theft that is both continuous and extensive. A man whose combined alimony, child support, and taxes leave him with just enough to live off of is in a similar financial position to a traditional slave. Reading from the California Penal Code of 1935 (Sec. 270-270c) we find that a "father" and "husband" is required to provide for his "child" and "wife." Right after this we read; "Every adult child, who having the ability to do so, fails to provide necessary food, clothing, shelter, or medical attendance for an indigent parent, is guilty of a misdemeanor." How many of the homeless men you see sleeping on the streets, eating out of trash cans, and rotting away to early deaths have children capable of supporting them? Many we might guess. What happened to the rights of fathers - of MEN?!

The issue of child support may be examined under the concepts of involuntary servitude and peonage, whereby someone is forced to work off a debt, usually as the result of a contractual obligation. What contract would hold sway in the case of child support is frankly a mystery to me; the contract could not have been with the child as the child would not have had the capacity, legally or otherwise, to agree to a contract the day it was born. If it was part of the marriage contract with the wife as indirect beneficiary, then such terms would have had to be set forth in the marriage contract to be valid. How such terms would be worded is again beyond my comprehension; it would have to contemplate the dissolution of marriage in advance, and then after the parties have separated - than what, the man should keep fulfilling his side of the bargain without any consideration in return? Contracts without consideration are not valid, unjust enrichment is not allowed, and many courts have ruled in the past that marriage contracts that contemplate the end of marriage are not valid (as they are destructive of marriage.3 ) Since child support is in fact a debt or obligation dictated by statute let us begin with a peonage case where the debt is owed to the state.

 In United States v. Reynolds (1914) the Supreme Court overturned a court mandated surety agreement whereby an individual was forced to work off a fine; "This labor is performed under the constant coercion and threat of possible arrest and prosecution in case he violates the labor contract which he has made with the surety; and this form of coercion is as a constant service of the convict. Compulsion of such service by a constant fear of imprisonment under the criminal laws renders the work compulsory, as much so as authority to arrest and hold his person would be if the law authorized that to be done." Similarly, in an employment situation, the Court found in Bailey v. Alabama (1911) that "The state .. may not compel one man to labor for another in payment of a debt, by punishing him as a criminal if he does not perform the service or pay the debt."  Why then we ask aren't these anti-peonage rulings applied to child support and alimony? 4  Why instead do we see wanted posters of "Deadbeat Dads" posted in public places portraying these men as criminals?

 In Taylor v. Georgia, decided 1942, we are supplied with the wording of the peonage laws:



 In the first law cited you will note the phrases "forever abolished," "all acts, laws..," "directly or indirectly," "voluntary or involuntary," and "null and void"; and in the second that it is the person who "in any manner" causes a person to be subject to peonage that faces criminal punishment.

 A typical sophistry that may be invoked to attempt to evade the obvious injustice of alimony or child support is to say that it is not like traditional slavery or involuntary servitude in that you are not forced to labor directly for a particular master or creditor or even to work at all. One who advances this argument has guile "more subtil than any beast of the field" (Genesis 3:1,) for a man must work to support himself, this is a natural compulsion, to incorporate this natural compulsion into a system of forced payments drawn from the fruits of a man's labor then becomes involuntary servitude.

 Now examine this passage from what is known to us as the Fugitive Slave Act of 1950; "Sec. 6 .. When a person held to service or labor in any State or Territory of the United States, has heretofore or shall hereafter escape into another State or Territory of the United States, the person or persons to whom such service or labor may be due .. may pursue and reclaim such fugitive person." You notice that the word slave is not used here, nor is it used in any other place in the body of the document. The only difference between the description of the fugitive above and what is to be done with him and the treatment of a "deadbeat dad" is that instead of bringing "dad" back physically you have the state bring his money to you, involuntary servitude from a distance care of our shrinking world. When slavery and involuntary servitude began in this country there was no government network to track people down wherever they went to garnish their wages and rob their bank accounts. Technology has altered the means but the principle at work has not altered, for it cannot, for justice is eternal and immutable.

 Another excuse or "justification" for alimony and child support is necessity; women and children would suffer if the "deadbeats" did not support them. Long before the invention of alimony and child support there were plenty of women and children in need of support; private charities and public subsistence programs have always been there to take there of them. The issue is not so much whether they need support but the degree of support and by whom how are to be supported.  If needy women and children are supported by the public both men and women are doing the paying, alimony and child support legislation pushes the burden almost solely on men.

 In 1757 the Reverend Peter Fontaine writes to his brother Moses; "To live in Virginia without slaves is morally impossible. Before our troubles, you could not hire a servant or slave for love of money, so that, unless robust enough enough to cut wood, to go to mill, to work at the hoe, etc., you must starve or board in some family where they both fleece and half starve you .. they take advantage of the necessities of strangers, who are thus obliged to purchase some slaves and land. This, of course, draws us all into the original sin and curse of the country of purchasing slaves." As you can see the necessity of acquiring slaves in the past was often as strong or stronger then making "deadbeat dads" pay today. We do not accept this justification in regards to the past treatment of blacks, we consider it a great wrong, going so far as to create illegal 5 ex post facto or "remedial" affirmative action programs in the hopes that two wrongs will make a right. The weakness of the child support argument looms even greater when you consider Douglas concurring in Roe; "[A] woman is free to make the basic decision whether to bear an unwanted child. Elaborate argument is hardly necessary to demonstrate that childbirth may deprive a woman of her preferred lifestyle and force upon her a radically different and undesired future. . . . " Here women are excused merely because they "may" - not "will" mind you, but "may" be deprived of their "preferred lifestyle." Their is no balancing of interests here, no cause need be shown to avoid responsibility, and anyone the least knowledgeable of human nature should know that the rearing of children is more in the interests of women as a whole than it is of men. Douglas' argument then serves more to relieve men of child support then it does to allow women to have abortions.

 We know that the Fourteenth Amendment, like the Thirteenth, was created with the intent of remedying racial discrimination against black people in this country. Since the Fourteenth Amendment has been extended to cover sex discrimination, then by the same "logic" the Thirteenth Amendment would have to be extended as well.  Therefore, it is illegal for a member of one sex to subject a member of the other sex to involuntary servitude. One must wonder whether people will one day look back from the future and wonder how such a thing as alimony and child support could ever have happened; will they finally learn that slavery is wrong no matter who it happens to.



1 Here, I believe, we have come to the real heart of the decision; a reestablishment of matriarchy linked with state and totalitarian control (See FUNDAMENTAL ARGUMENTS: PART IV).

2 This causes one to wonder how there could ever be something called "community service" issued as punishment for a crime.

3 One suspects these decisions were made prior to the advent of the "pre-nuptial agreement."

4 I have to suspect again that statutes dealing with anti-peonage may have been surreptitiously repealed (Chapter 11A of Title 18 USC now provides criminal punishments for non-support of children.) You can imagine politicians trying to explain to the NAACP and black men why they are doing away with laws designed to protect blacks from a form of slavery or quasi slavery because they don't want men to raise this as a defense. If anyone knows the legislative details please inform me so I can post the account here. Whatever the details, the 13th Amendment is still in effect, as well as common law, natural law, and other statutes.

5  I say "illegal" instead of the scholarly "unconstitutional" because the former has more rhetorical impact - and the term is quite accurate, for the constitution is the fundamental law. To see why affirmative action is illegal on the basis of race we go to Strauder v. West Virginia (1879) per Justice Strong to examine the intent of the Fourteenth Amendment:

"That the West Virginia statute respecting juries--the statute that
controlled the selection of the grand and petit jury in the case of the
plaintiff in error--is such a discrimination ought not to be doubted.
Nor would it be if the persons excluded by it were white men. If in
those States where the colored people constitute a majority of the
entire population a law should be enacted excluding all white men from
jury service, thus denying to them the privilege of participating
equally with the the blacks in the administration of justice, we
apprehend no one would be heard to claim that it would not be a denial
to white men of the equal protection of the laws. Nor if a law should be
passed excluding all naturalized Celtic Irishmen, would there by any
doubt of its inconsistency with the spirit of the amendment....

As to why the amendment does not apply women we continue with Strauder:

"We do not say that within the limits from which it is not excluded by the
amendment a State may not prescribe the qualifications of its jurors, and
in so doing make discriminations. It may confine the selection to males,
to freeholders, to citizens, to persons within certain ages, or to persons
having educational qualifications. We do not believe the Fourteenth
Amendment was ever intended to prohibit this. Looking at its history,
it is clear it had no such purpose. Its aim was against discrimination
because of race or color."  (italics added)

The Equal Rights Amendment would need to have been passed to achieve what feminists want, however, since women have more rights than men in so many other areas, the Equal Rights Amendment, if applied as written, would have given more rights to men than to women, so feminists selectively target only areas where they
believe men still have the advantage, thus leaving areas of feminine superiority alone.

Written by Thomas Pollock aka Spartacus,  Editor of  The Men's Tribune                                First Posted: 1997       Last Update: March 2001