The following article is from the Spring/Summer 1988 issue 
of CIVIL LIBERTIES, a newspaper published by the American 
Civil Liberties Union. It is presented for the purpose of 
editorial critique. The opinions of the authors are not 
necessarily those of this presenter.
 
          BOYFRIENDS AND HUSBANDS USE COURTS 
              TO BLOCK WOMEN'S ABORTIONS
 
           By Dawn Johnsen and Lynn Paltrow
 (Staff Attorneys, "ACLU Reproductive Freedom Project")
 
During the last several months, the anti-abortion forces 
have implemented a new strategy in their systematic campaign 
to deprive women of their reproductive freedom.  In cases in 
Indiana, Utah, and Pennsylvania, individual men, represented 
by anti-choice lawyers, have sought and obtained temporary 
restraining orders ("TROs") from state courts enjoining 
women from exercising their right to choose to have an 
abortion.  Three cases were recently brought by men who 
claimed to be the women's "boyfriends" and two were brought 
by the women's husbands.
 
These cases, usually orchestrated by anti-choice activists, 
only arise where there is a problem in the marriage or the 
relationship.  They frequently reflect not a concern for the 
woman or the baby that might be, but rather a hurt or 
spurned lover's desire to continue or control the 
relationship.  Husbands and boyfriends, of course, have 
every right to express their views on pregnancy from the 
beginning of the relationship and to seek a different 
relationship if the couple's views on childbearing do not  
coincide.  Partners who disagree about terminating a 
pregnancy should seek help from a professional counselor not 
a court order from a judge.  
 
Thus far, these cases have been concentrated in Indiana, 
where courts have issued three TROs in the last two months.  
This strategy was devised by Indiana attorney James Bopp, 
Jr., who is general counsel to the National Right to Life 
Committee.  Bopp has stated that his ultimate goal is to 
bring one of these cases to the U.S. Supreme Court as a 
device to have Roe vs. Wade, and the many subsequent cases 
recognizing a woman's right to choose to have an abortion, 
overturned.  Bopp has made available at no cost, and is 
advertising nationwide, what he calls a "Father's Rights 
Litigation Kit."  It contains all of the legal documents 
necessary to bring a case seeking to enjoin a woman from 
having an abortion.  In addition to the Indiana cases, this 
litigation kit has already been used by a "boyfriend" to 
obtain a TRO against a pregnant woman in Philadelphia.  
Anti-choice lawyers have issued ominous warnings of more 
cases to come.  
 
              WITHOUT A HUSBAND'S CONSENT
 
Although the pregnant women in the five current (and any 
future) cases are almost certain to prevail in the end, 
these women have and will suffer devastating constitutional 
deprivations prior to their ultimate victory.  Ordering a 
woman not to end an unwanted pregnancy directly conflicts 
with a long line of U.S. Supreme Court decisions recognizing 
the constitutional right of every individual to decide 
whether and when to have a child.  The Court specifically 
held in 1976 that a woman has the right to have an abortion 
without her husband's consent.  And every lower federal 
court to address the issue has ruled that requiring spousal 
consent or notification is unconstitutional; spousal consent 
laws are ultimately just a mechanism for harming pregnant 
women through delay and/or harassment.
 
The harms to pregnant women are clear from the experiences 
of the women in the first two Indiana cases.  On April 4, 
1988, a court in Vigo County, Indiana, issued a TRO 
prohibiting a young unmarried woman from obtaining an 
abortion.  Clinics and physicians were also ordered not to 
perform an abortion on her.  The woman, identified as Jane 
Doe, had no prior notice and no opportunity to oppose the 
court order which was requested by an man identified as John 
Smith, allegedly Jane's boyfriend.
 
Three days later, the court held a hearing to determine 
whether it would permanently order Jane not to have an 
abortion.  The court permitted John to testify about the 
most intimate details of Jane's life, with the judge 
personally evaluating her sexual relationships, her use of 
birth control, and the degree to which Jane and her 
boyfriend allegedly loved each other.  The court also 
permitted three other people to testify on John's behalf.  
Jane herself refused to be subjected to the embarrassment of 
testifying and being cross-examined, properly maintaining 
that her reasons for wanting an abortion were highly 
personal and the court was acting unlawfully in seeking to 
examine those reasons.  
 
                BOYFRIEND OF THREE MONTHS
 
The Vigo court ignored the Constitution and controlling 
Supreme Court precedent and issued a permanent injunction 
ordering Jane to bear a child.  Forcing nine months of 
pregnancy, labor, childbirth, and unwanted motherhood on 
anyone is an awesome and intolerable burden.  Moreover, Jane 
was only 18 years old, John claimed to have been her 
boyfriend for only three months, and his responsibility for 
the pregnancy was challenged.
 
Based solely on the testimony of John and his three 
witnesses, the court found that Jane's reasons (never 
articulated by her) for wanting an abortion were not good 
enough.  The court trivialized the abortion decision by 
focusing on, for example, John's claim that Jane simply 
"wishes to look nice in a bathing suit this summer," 
ignoring the many obvious reasons such as age, length of 
relationship, life plans,  and health which undoubtedly 
influenced Jane's decision to have an abortion.  By the time 
of the court order, her abortion had been delayed at least 
five days and though abortion is safer than childbirth at 
all stages, each week of delay increases by 50 percent the 
physical risks to a woman's life and by 30 percent the risks 
to her health.
 
On April 13, Jane notified the Indiana Supreme Court that 
she had terminated her pregnancy despite the court order; 
like the millions of women who sought and obtained illegal 
abortions before Roe vs. Wade, Jane would not tolerate the 
unconstitutional invasion of her rights and the risks to her 
physical and emotional health that the court order imposed.  
The issue, however, is not over.
 
As briefs were being filed in Jane's case, yet another 
Indiana court issued a TRO ordering a woman not to have an 
abortion, again at the request of an alleged "boyfriend."  
Although the court ultimately dismissed the court order, 
properly finding that the woman had a clearly established 
constitutional right to make the decision to choose to have 
an abortion, the boyfriend immediately requested a further 
court order from the Indiana Court of Appeals, then from the 
Indiana Supreme Court, and then from two  U.S. Supreme Court 
Justices, all of whom denied his request.  This case, which 
took a total of sixteen days before the woman was no longer 
under a court order not to have an abortion, exemplifies the 
extreme tenacity of the opponents of reproductive freedom.  
 
                THE BURDEN OF PREGNANCY
 
The so-called right-to-lifers' attempts to justify their 
harassment of these women as a desire to simply balance 
legitimate rights of the men involved is unconvincing.  
There is not way to balance the burden of pregnancy; it is 
not possible for the woman to carry the fetus for four-and -
a-half months and then give it to the man to carry for four-
and-a-half months.  As the Supreme Court has recognized, as 
long as the fetus is inside the woman's body, she must be 
the one to decide.  Moreover, it is clear that Bopp and 
others taking these cases seek to prohibit ALL abortions 
whether the husbands and boyfriends agree or not.
 
Certainly every individual has the constitutional right to 
decide, free from government interference, whether or not to 
have a child.  This right, however, clearly does not give a 
man the right to force a particular woman to have his child.  
To the contrary, the Constitution guarantees that the power 
of the government will not be used to compel anyone, male or 
female, to be an unwilling participant in procreation.  If 
men can force women to continue pregnancies, then men could 
just as easily get court orders to force women to have 
abortions, and women could force men to produce sperm or 
undergo vasectomies.
 
The ACLU's Reproductive Freedom Project is working with the 
Indiana Civil Liberties Union to represent the women in the 
first two Indiana cases.  Bopp is representing the men.  The 
ACLU also has alerted its affiliates to watch for further 
such attempts to deprive pregnant women of their 
constitutional rights and has distributed a model brief to 
help defeat this latest attack on the right of ALL people to 
reproductive freedom.
 
(Dawn Johnsen and Lynn Paltrow are staff attorneys for the 
ACLU's Reproductive Freedom Project.)
 Jane's boyfriend.
 
Thr 
 
