ANTIABORTION CIVIL REMEDIES AND UNWED FATHERHOOD AS GENETIC ENTITLEMENT.

• Author: Lindgren, Yvonne

ABSTRACT

Antiabortion civil remedy laws in effect in five states grant putative fathers the right to sue abortion providers for wrongful death regardless of their relationship to the gestating parent. While these laws represent an important new development in the movement to restrict the abortion right, they also expand parental recognition of unwed fathers. Constitutional law requires that unwed fathers who seek to assert parental rights must establish that they possess both biological connection and a relationship with their child or the gestating parent--what has come to be known as "biology-plus." However, antiabortion civil remedy laws vest parental recognition and rights in putative unwed fathers without the necessity of meeting the constitutionally required biology-plus-relationship standard. In so doing, these laws recognize legal parentage for unwed fathers by legislative fiat in a way that is inconsistent with constitutional law norms. This Article argues that civil remedy laws reflect a turn towards genetic essentialism because they replace the current biology-plus standard with biology alone as the defining marker of parentage. The laws do more work than merely establishing fetal personhood; rather, they represent a turn towards patriarchy through the genetic entitlement of fatherhood.

TABLE OF CONTENTS I. ANTIABORTION CIVIL REMEDY LAWS II. UNWED FATHERS' RIGHTS AND CONSTITUTIONAL LAW III. FATHERHOOD AS GENETIC ENTITLEMENT CONCLUSION INTRODUCTION

Restrictive abortion laws in at least eight states include provisions that allow putative fathers (1) to sue abortion providers for wrongful death for violating the antiabortion statute. (2) Critically, while three of the states require that the putative father be the spouse of the abortion patient, five of these laws extend rights to putative fathers to sue abortion providers regardless of their relationship to the abortion patient. (3) In addition, laws currently pending or enjoined in several states require a putative father's consent for abortion and allow fathers to seek injunctions to block the abortion procedure regardless of their relationship to the gestating parent. (4) Civil remedy statutes that compensate putative fathers for wrongful death in the context of a consensual abortion procedure are a vehicle for establishing fetal personhood in an ongoing campaign to insert fetal personhood into a broad range of statutes. (5) While these civil remedy laws represent an emerging threat to the abortion right based on the fathers' rights rationale, the laws also significantly expand parental recognition of unwed fathers.

There is an irony in thinking about antiabortion civil remedy laws in the context of a symposium on nonmarriage. Efforts to expand the recognition of parentage outside of formal marriage has largely been a progressive undertaking. (6) Indeed, the Republican party has adopted marriage promotion as an important part of its policy agenda. (7) Therefore, it is ironic that the slippage from a marital and functional/social definition of parentage should happen by the fiat of Republican legislators. Civil remedy antiabortion laws have transformed the definition of legal parentage beyond the historical bright line developed in constitutional case law of marriage and the functional forms of biology-plus and replaced it with a new bright line of parental recognition based on biological connection alone. In an effort to establish a toehold in fetal personhood, the party that has long championed marriage has dispensed with it and in its wake reasserted the hierarchy of men's control over women and children.

Under constitutional law, unwed fathers do not gain parental rights through biology alone. (8) Instead, unwed fathers who seek to establish parental recognition must do more to "grasp[] th[e] opportunity" (9) to develop a parental relationship with children born outside of marital relationships, what has become known as the biology-plus relationship requirement. (10) However, it would be nearly impossible for an unwed father to establish the traditional biology-plus factors for a pregnancy terminated through a consensual abortion. The biology-plus standard is designed to recognize parental relationships between the putative father and child and marriage-like relationships of support between the biological father and the gestating parent, neither of which is applicable in the context of a pregnancy terminated through abortion. (11) Thus, the overlay of fetal personhood attempts to both reshape the abortion decision as one involving parentage rather than bodily autonomy and recast the unwed putative father as a parent. The statutes provide that damages may be sought by "the father of the unborn child" or the "father of the aborted unborn child," but do not require that he be the spouse of the abortion patient. (12) This Article argues that through legislative fiat, these laws arc quietly replacing the current constitutionally required biology-plus standard with biology alone as the defining marker of parentage. They are doing more work than merely establishing fetal personhood; instead, these laws represent a turn towards patriarchy through the genetic entitlement of fatherhood. (13)

A wrongful death cause of action is a statutorily created right. Thus, a wrongful death claim only exists where the state has provided such a cause of action through statute. (14) The cause of action is designed to compensate specifically identified beneficiaries who suffer loss as the result of someone's tortious conduct that results in death. (15) Antiabortion civil remedy statutes name putative fathers as beneficiaries who are entitled to compensation for the death of the aborted "unborn child." (16) When a wrongful death cause of action involves the death of a child, it is specifically designed to compensate parents for the loss of society, comfort, and companionship of children who have died as the result of another's tortious conduct. (17) Damages in wrongful death of a child are designed to compensate a parent for the lost parent-child relationship, what is known as loss of filial consortium. (18) Thus, granting civil damages to a putative father in the context of abortion recognizes him as having a parental interest that is compensable when lost, even when a pregnancy has been terminated through a consensual abortion procedure. By its very nature, a wrongful death claim in this context is one that is related to parentage. The harms that are recognized in a wrongful death cause of action are harms that result from the lost parent-child relationship: loss of filial consortium and emotional pain and suffering. Thus, civil remedy provisions recognize a legal claim in putative fathers that flows from their lost fatherhood and is disconnected from and in opposition to the abortion patient. These provisions are creating, by legislative fiat, new rules in establishing legal parentage for unwed fathers that violate longstanding constitutional law precedent that have cabined the rights of unwed fathers within marital relationships or biology-plus-connections.

This Article proceeds in three parts. Part I surveys the antiabortion civil remedy laws. Part II examines the ways that these antiabortion civil remedies disrupt traditional constitutional law rules regarding the rights of unwed fathers. Specifically, constitutional recognition of the parental rights of unwed fathers requires something more than mere genetic connection alone-unwed fathers must establish biological connection plus a relationship with the child or the pregnant parent to be recognized as a legal parent of children born outside of marriage. Part III argues that these laws replace the biology-plus standard with a new bright-line rule of biology alone. In so doing, they represent a turn toward genetic essentialism in establishing paternal recognition and rights. While Supreme Court precedents have required more than mere biology to anchor the rights of unwed fathers, these laws permit fathers to recover civil damages as fathers based purely on genetic ties to the fetus and in direct conflict with the decisional autonomy of the gestating parent. It concludes that this turn toward genetic essentialism reflects a retrenchment of patriarchy, or the rule of fathers. (19)

1. ANTIABORTION CIVIL REMEDY LAWS

   The first iterations of civil remedy statutes were designed to allow the woman who underwent the abortion procedure to sue her provider for violations of laws regulating abortion in the state. (20) However, beginning in 2011, state legislatures began including putative fathers in antiabortion civil remedy statutes based on model National Right to Life Committee (NRLC) legislation. Currently, eight states have antiabortion civil remedy laws that allow putative fathers to sue abortion providers for damages: Alabama, Arkansas, Idaho, Kansas, Montana, Nebraska, Oklahoma, and Wisconsin. (21) Three of these states' laws--Arkansas, Idaho, and Kansas--provide that only a father who is married to the abortion patient may sue a provider under the statute. (22) Critically, five of the state's laws--Alabama, Montana, Nebraska, Oklahoma, and Wisconsin--provide a civil remedy to a putative father of the fetus without respect to his relationship to the abortion patient. These statutes provide that damages may be sought by "the father of the unborn child" or the "father of the aborted unborn person," for example, but do not require that he be the spouse of the abortion patient. (23) Thus, the laws grant remedies to the putative father as a stand-alone right that does not require that he have a marital relationship with the woman who underwent the abortion procedure.

   With the exception of Oklahoma, the nearly-identical laws in Alabama, Montana, Nebraska, and Wisconsin are based on the NRLC's model "Unborn Child Protection from Dismemberment Abortion Act." (24) Oklahoma's "Unborn Person Wrongful Death Act"...