I added the following as a comment to the original post on the subject, but I thought I’d highlight it here as well, since it’s a response to points made by many readers in the comments section. This post doesn’t really stand on its own; it relies on the first one and is an expansion of it.
(I want to add, also, that I am rather intensely sympathetic to the problems of both men and women in this area. There’s plenty of sorrow, pain, and injustice to go around.)
Equal protection does not, when last I looked, apply where the valid and actual biological differences between male and female are the basis for the distinction made. Pregnancy is, by definition, one of these biological differences, and in my opinion the distinction here is based on that biological difference. The situation will never be exactly equal for that reason, and cannot be.
Once the woman is pregnant and there is a disagreement between partners about what should be done (the situation we are dealing with here), the following would be the only alternatives for her: bearing the child or having an abortion, and doing either because she chooses it; or bearing the child or having an abortion because she is compelled by another. Given that abortion is presently legal, to allow a man to compel a woman to bear a child against her will is not a good solution in the legal sense. The same would be true, by the way, for forcing her to have an abortion against her will.
For a somewhat (but not totally) analogous situation, there’s a principle in the law of contracts that says that “specific performance” of a contract is not ordinarily enforceable by the law. There are certain things the law will not compel a person to do just because the other person involved in the bargain or the contract wants him/her to do so, even if it was explicitly part of the original agreement. Making things right traditionally involves a money penalty, rather than compelling specific performance.
However, back when the legal system banned abortion, it used to compel the woman to bear a child against her will, although it could not compel her to keep it. (In truth, however, in many cases, women got illegal abortions anyway and did not bear the children in question. But that’s a different issue.)
Now that a woman is allowed to make the choice to have a legal abortion, no one else is allowed to choose for her, not even her husband. Some of you may indeed disagree with that, but IMHO changing that rule would make very bad law indeed, somewhat like compelling specific performance.
The real question is: what is the proper remedy in a case in which the mother bears the child against the biological father’s will, and is asking him to financially support that child? Note, again, that no one can force him to be an involved or caring father; no one can compel him to babysit or have the child live with him (that would be compelling specific performance, once again).
The remedy is financial, as remedies usually are under the civil law: pay child support. And it applies equally to both spouses, as far as I know (legally speaking; in actual practice it’s not always applied so equally). For example, if the unwed father successfully stops a mother from giving a child away for adoption, she is compelled to pay him child support for that child (although she never wanted or expected to), and he is free to raise it. This would be the most analogous situation, in my opinion, the one to which equal protection would apply. The remedy, once again, is financial: she could not be compelled against her will to have anything more to do with the child other than to pay child support.
If one accepts the principle that, for biological reasons, the woman gets to decide the course of her pregnancy, the question remains whether the biological father should be allowed to opt out of paying if she chooses to bear and to keep the child against his will. Under some sort of contract law, one might imagine that, as a penalty, she might have to forego child support because she is going against his expressed wishes about his own child.
But that’s where some sort of strict contract law between the parties (mother and father) does not apply, because the remedy is not to the mother as a party to a contract (real or implied): it’s to the child, who is not a party to any contract made before its conception. Child support is paid to the parent but it’s a right of the child, and is supposed to be applied to the child’s needs only.
For example, let’s say the woman had promised the man that she’d have an abortion if pregnant; an explicit oral contract. But she then changes her mind when actually pregnant and refuses to do. “Specific performance” is not allowed; he can’t force an abortion on her. If contract law were to be applied, and he could prove she had agreed to an abortion and broken her word to him (the “contract”), he might be able to opt out of paying for that child as a sort of financial penalty for her breaking the contract, in lieu of specific performance.
But this is where another overriding principle, the “best interests of the child” comes in. And this, once again, is because the child was not a party to that contract, and the child is the helpless result of the decisions of both these adults, and as such must be protected. It is in society’s interests to protect that child–or so goes the argument–and to compel both parents to support that child financially until it reaches its majority.
So, there is a linked set of decisions: the decision to have sex (and to assume its consequences), in which both take part; the decision to have or not to have the child, which is the woman’s only, for biological reasons; once she decides to have the child, the decision as to whether it will be given up for adoption (and the man has some rights in this matter, to challenge an adoption and keep the child himself); once the decision is made for one or the other parent to keep the child, the decision to pay child support (equal for both parents according to ability to pay), and the decision about coparenting and visitation rights, in which the court is involved if the parties disagree.
Bottom line: there are certain things you can force a person to do legally, and certain things you can’t. There are certain risks you are assumed to have taken on when you engage in certain acts. And there are certain considerations that trump others, according to the law, and are considered best for society as a whole.
[First part here.]