OK GOP: Pregnant Women are “Hosts” Without Autonomy
Because he believes women lose bodily autonomy when they become pregnant, Oklahoma state Rep. Justin Humphrey (R) just proposed legislation requiring written permission from male sexual partners for all abortions. HB 1441 – labeled as a bill “prohibiting abortion to be performed without consent of the father” – aims remove all bodily autonomy from women thereby rationalizing unconstitutional hurdles to obtain safe and legal abortion.
HB 1441 states “No abortion shall be performed in this state without the written informed consent of the father of the fetus.”
A pregnant woman seeking to abort her pregnancy shall be required to provide, in writing, the identity of the father of the fetus to the physician who is to perform or induce the abortion. If the person identified as the father of the fetus challenges the fact that he is the father, such individual may demand that a paternity test be performed.
Explaining why he proposed the legislation, Humphrey told the Intercept women give up the right to control their bodily decisions when they decide to have sex:
“I believe one of the breakdowns in our society is that we have excluded the man out of all of these types of decisions,” he said. “I understand that they feel like that is their body,” he said of women. “I feel like it is a separate — what I call them is, is you’re a ‘host.’ And you know when you enter into a relationship you’re going to be that host and so, you know, if you pre-know that then take all precautions and don’t get pregnant,” he explained. “So that’s where I’m at. I’m like, hey, your body is your body and be responsible with it. But after you’re irresponsible then don’t claim, well, I can just go and do this with another body, when you’re the host and you invited that in.”
Humphrey’s logic and legislation are the reasons women’s rights advocates constantly argue for bodily autonomy. Once a woman is reduced to being a “host” rather than an individual endowed with the same rights as other living, breathing human beings, she is a second class citizen beholden to her sexual partner and/or the government.
Moreover, even if Humphrey’s legislation passes it will undoubtedly be challenged in court for that very reason. And a two decade old legal precedent offers guidance how that case will go.
In Planned Parenthood of Southeastern Pennsylvania v Casey, a similar question was posed and answered: “Can a state require women who want an abortion to obtain informed consent, wait 24 hours, and, if minors, obtain parental consent, without violating their right to abortions as guaranteed by Roe v. Wade?”
The Pennsylvania legislature amended its abortion control law in 1988 and 1989. Among the new provisions, the law required informed consent and a 24 hour waiting period prior to the procedure. A minor seeking an abortion required the consent of one parent (the law allows for a judicial bypass procedure). A married woman seeking an abortion had to indicate that she notified her husband of her intention to abort the fetus. These provisions were challenged by several abortion clinics and physicians. A federal appeals court upheld all the provisions except for the husband notification requirement.
The courts concluded:
In a bitter, 5-to-4 decision, the Court again reaffirmed Roe, but it upheld most of the Pennsylvania provisions. For the first time, the justices imposed a new standard to determine the validity of laws restricting abortions. The new standard asks whether a state abortion regulation has the purpose or effect of imposing an “undue burden,” which is defined as a “substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability.” Under this standard, the only provision to fail the undue-burden test was the husband notification requirement. The opinion for the Court was unique: It was crafted and authored by three justices.
That decision follows an earlier 1976 precedent – Planned Parenthood of Central Missouri v Danforth – that also dealt with spousal permission.
Based on this, Humphrey’s legislation (should it pass into law) will face steep opposition in lower courts and will more than likely be refused by the Supreme Court based on their prior rulings.
That’s not to say Oklahoma won’t try nonetheless. If they’re known for nothing else, it’s pushing the envelope (at taxpayers’ expense) attempting to implement a conservative agenda based more in religious ideology than constitutional principle.