Fathers' Rights and Abortion

Discussions about abortion often focus on the rights of the mother or unborn child. Yet, there have been efforts to elevate fathers' rights in abortion decisions. These efforts involve notice requirements or "opt-outs."

Expectant fathers might oppose a pregnant mother's decision to terminate a pregnancy. Conversely, a father may not wish to assume the responsibilities of fatherhood and oppose carrying a pregnancy to term.

While courts have largely treated fathers' rights in abortion decisions as secondary to women's rights, there are other ways for fathers to influence a pregnant woman's decision. These ways happen primarily through private agreements.

Fathers' Rights and Abortion: Consent

If a father's pregnant partner seeks to abort an unborn child, having the father's consent isn't a legal obligation. The person carrying the child may terminate a pregnancy against the father's objections.

The legal reasoning for this is twofold. It is based on a woman's right to privacy in their medical decisions. It's also based on the fact that the mother is more affected by pregnancy. In both considerations, observance of the pregnant party's reproductive rights has been key.

The Supreme Court found laws requiring a spouse's consent for an abortion to be unconstitutional. In Planned Parenthood v. Danforth, the Court reasoned that a husband's refusal to consent would veto a woman's choice to terminate a pregnancy. Danforth also addressed parental consent and restrictions on minors consenting to abortions.

The main issues in Danforth were overbreadth and vagueness. Danforth was not overturned but was superseded by the decision in Dobbs v. Jackson.

Dobbs v. Jackson Women's Health: Overturning Abortion Rights

In June 2022, the U.S. Supreme Court ruled on Dobbs v. Jackson Women's Health, overturning the 50-year-old decision in Roe v. Wade, and allowing states to set their own abortion laws. Seven states now have a complete ban on abortion, and ten others are attempting to enforce such bans or have had their bans enjoined by the court.

However, Dobbs did not explicitly address paternal rights or the father's role in abortion decisions.

Fathers' Rights and Abortion: Notice Requirements

In Planned Parenthood v. Casey (1992), the Supreme Court found unconstitutional a Pennsylvania statute requiring a married woman to inform the biological father of a planned abortion. This created the “undue burden" prong of the key judgment in Casey. Paternal notification was unconstitutional if it placed an undue burden on the woman seeking an abortion. The Court reasoned that a woman in an abusive relationship or having an affair could not tell the father without putting herself at risk.

The Court's decision in Dobbs overturned the key judgment in Casey but did not specifically address the issue of undue burden or paternal notification. Parental rights were not an issue during the Dobbs arguments. Since Dobbs allows states to make their own abortion laws, these legal rights are evolving.

Opting Out of Fatherhood or "Financial Abortions"

After birth, the father will be responsible for child support payments. This is true despite any objections to carrying the pregnancy to term by the father. This has led some fathers' rights advocates to oppose what they see as a double standard in fathers' rights for family planning.

Advocates for fathers' rights argue that a father should be able to decide, after conception, that they don't want to be a father. Some scholars have argued that fathers should have the right to "financial abortions."

A financial abortion right would require a woman to notify a prospective father during pregnancy. The father could then refuse financial or legal responsibility for the baby. Should the child be born despite this, the biological father would not be responsible for it.

Currently, there is no right to a financial abortion or to opt out of fatherhood. In one well-publicized case, a father in Michigan objected to child support payments when his ex-partner gave birth after knowing he did not want children. The Court rejected his argument that, since a woman may avoid motherhood through abortion, the man had a right to disclaim responsibility for a child born against his wishes.

The Court did not see the question as one of the father's interests versus the mother's interests. Instead, they viewed it through the lens of the child's right to parental support. Once a child is born, the parents are responsible for the child's support and education.

Private Agreements for Child Support

Each state has child custody laws. Child custody and child support are separate in most places. Fathers who want to keep their babies and prevent an abortion may be able to reach private agreements with the mother. They can pay the costs of the pregnancy and post-natal care and obtain full custody following the birth.

Parents cannot waive child support by private agreement. No family court will honor a prenuptial agreement setting a dollar amount for child support. The courts base support on the parents' income at the time of separation.

In the same way, no state allows a parent to avoid child support payments by voluntary surrender of parental rights. Termination of parental rights requires a finding of parental unfitness or the presence of another person, such as a grandparent or stepparent, to adopt the child.

Get Legal Help With Your Questions About Fathers' Rights and Abortion

Abortion rights are a hot topic. Many state abortion laws have changed since the U.S. Supreme Court overturned Roe v. Wade in Dobbs v. Jackson Women's Health. It is unclear what individual states may do about fathers' rights and abortion.

Even though fathers are not physically involved in the pregnancy, they still may have rights when it comes to their unborn child. If you have questions about your rights as a prospective father, contact a family law attorney.