The Fathers’ Veto and Fatherhood As Property
46 Pages Posted: 7 Apr 2022 Last revised: 19 Sep 2022
Date Written: February 24, 2022
Over the last twenty-five years, state legislators have been quietly adding civil remedy provisions to antiabortion legislation to supplement, and in the case of Texas’ SB8, to completely replace the traditional criminal and administrative enforcement mechanisms of restrictive abortion legislation. Laws currently in effect in at least seven states permit putative fathers, regardless of their relationship to the pregnant woman, to sue abortion providers for civil damages for wrongful death and emotional distress for alleged harms that result from the abortion procedure. Several state legislatures have introduced laws—although to date all have been enjoined or are in the process of being challenged—that require women seeking an abortion to get signed consent of the father. As these laws gain traction, abortion opponents have advanced a new narrative of abortion: regret for lost fatherhood.
While civil remedy antiabortion provisions are an attempt to establish fetal personhood, what may be less obvious is their potential to shift the regulation of women’s reproductive autonomy from the state to private actors, specifically to fathers. This Article explores these previously unexamined civil remedy provisions to reveal the ways that they function as a veto over women’s reproductive decision-making and place women’s constitutional rights in the hands of private actors through the pretextual vehicle of parentage. Granting a putative father the right to sue in wrongful death recognizes him as having a parental interest that is compensable when lost, even when a pregnancy has been terminated through a consensual abortion procedure. While the nominal purpose of these laws is to compensate putative fathers in tort, these laws in fact have a much broader sweep: to recast abortion as an issue of parentage and to extend the power of fathers over their genetic offspring and, by extension, their pregnant sexual partners, both through monetary compensation and veto power over abortion. In short, antiabortion civil remedy laws forge a property interest in genetic fatherhood.
Keywords: abortion, reproductive rights, reproductive justice, Dobbs, SB8, constitutional law, family law
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