Friday, November 04, 2005

Considerations on Alito's Casey Ruling   posted by TangoMan @ 11/04/2005 07:19:00 PM

I've been a silent observer of the recent debate about Justice Alito's ruling in Planned Parenthood v. Casey and have witnessed varying levels of sophistication in the arguments and responses from all sides of the issue. Jeff Goldstein at Protein Wisdom makes a good faith effort to argue that supporting spousal notification doesn't necessarily imply that one supports a religiously-based effort to strip away a women's right to control her own reproductive health. On the other side of the sophistication metric I've read the conspiracy inclined stylings of Garance Franka-Ruta and the feminist "patriarchy around every corner" perspective of Pandagon.

It seems the anti-spousal notification forces have drawn a line in the sand and oppose any form of notification, even with the exceptions that are designed to protect women that are noted in the Pennsylvania legislation. Which leaves me with a few questions. At what point during a pregnancy does a husband have any right to be informed about the health of the fetus? Is it only the decision on abortion that must remain hidden from the husband or does this line of reasoning extend to all decisions regarding the fetus?

Consider this situation: A husband and wife are at the doctor's office for a consultation after some routine lab tests on the pregnant woman. High levels of maternal serum a-fetoprotein concentrations were obtained in the first trimester of pregnancy and this is highly indicative of myelomeningocele, or Spina Bifida, in the fetus. An amniocentesis procedure is recommended. Clearly it will be the woman who will have to undergo the procedure but the Anti-Casey line of reasoning would preclude any notification to the husband about the wife's medical procedure or for that matter, any information on the condition of the fetus. Should the husband be asked to leave the consultation for fear that the physician will be breaking patient confidentiality by simply assuming that the wife wants the husband to hear the news with her, in effect being notified of the condition of the fetus and the procedures that are to be recommended?

After the amniocentesis the physician recommends intrauterine surgery at 25 weeks gestation. The procedure will involve either an endoscopic surgery or a more invasive procedure of opening the mother's abdomen and uterus, partially removing the fetus and sewing shut the opening over the fetus's spinal cord. Now that surgury is to be performed on the actual fetus does the father have any right to be notified of the impending procedure? Does the father have any right to consent to the procedure which is to be conducted on his child? Of course, if this procedure was done on a prematurely delivered baby the father's rights would automatically be granted.

The obvious distinction between the two cases is that the fetus is still within the woman and only the woman can decide for herself the questions that pertain to her own health. Depending on the jurisdiction in which this couple reside, the woman may still have the right to abort the fetus and make the decision independently of her husband's wishes. However, many states impose restrictions on the freedom to abort as the length of gestation progresses. So at what point in the pregnancy does a father have the right to be notified of his fetus' health status, if at all? For the anti-notification advocates, does it all really boil down to "My Body, My Choice, Our Obligation? Is there room for gradualism or is such a position tantamount to a restriction on a woman's right to reproductive freedom? If a gradualist expansion of a father's right to be notified of, or consent to, a medical procedure for a fetus is considered a threat to the right of reproductive freedom then how is reproductive freedom itself defined? It would seem that the definition is quite expansive if it also incorporates medical decisionmaking on behalf of a fetus that will continue to term. The reproduction and the continuance, or discontinuance, of the pregnancy are not at issue. The health and welfare of the woman is not at issue. The crux of the issue is the health of the fetus and notification to both parents of relevant information. Are fathers absent all rights until the moment of birth or do those rights gradually come into existence? If those rights do gradually come into existence then does the Anti-Casey position with regard to notification weaken as the length of the pregnancy increases, before it become self-evident, of course? As you can see I'm having a little trouble understanding the full parameters of the controversy. Can anyone help clear up the details?