I. INTRODUCTION
An orphan is a child left without adequate familial provision and protection from evil.1 In many circumstances, children are orphaned by the death of one or both parents, by abuse suffered at the hand of their parents, or by abandonment by one or both parents. Where the family institution is severed, the Government steps in as parens patriae to provide orphans with relief. However, the state itself orphans children in its treatment of fathers. First, fathers have no legal right to protect their preborn children from abortion; therefore, the Government renders children fatherless where they have a father present and willing to care and provide for them. Second, government programs that provide financial assistance to needy families are structured to keep families on benefits for as long as possible and to withhold child support payments from the child’s family; the Government usurps the father’s role and wedges itself between father and child.
II. ABORTION
Abortion is “gravely contrary to the moral law” because it ends the life of a unique, innocent, human person.2 Although the primary injustice of abortion is the killing of preborn human life, law that permits abortion creates further injustices: fathers and husbands are prevented from protecting their children, essentially creating a fatherless child—despite the presence of a father willing to accept his role.
A. Husband’s Consent
When a husband’s interests and rights in regard to the life of his preborn child are limited, his ability to father his child is inhibited. Although the Supreme Court has recognized that a man has a “deep and proper concern and interest” in his wife’s pregnancy and their preborn child,3 he is left without an opportunity to act on that concern and interest.
In Planned Parenthood v. Danforth, the Court held that states cannot require spousal consent as a condition for abortion during the first 12 weeks of pregnancy.4 The Court found that giving the husband unilateral “veto power” does not achieve the goal of fostering mutuality and trust in a marriage or strengthening the marriage institution.5 Further, because a woman is more directly and immediately affected by the pregnancy, her decision is favored where she and her husband disagree.6
First, the Court’s ruling in Danforth turns a blind eye to the vocation of both the mother and the father. The mother, although part of a divinely instituted union with procreation as its purpose, is permitted under human law to renounce her God-given vocation to motherhood. The father, who by the marital act conceives a child with his wife, is denied the expression of his vocation to fatherhood.
Second, the Court’s ruling allows a mother to destroy the child of her husband without concern for her child’s or husband’s dignity. The father is unnaturally stripped of his fatherhood and denied any involvement or power in the procreative function of his marriage. The law has taken away a father’s ability to protect and nurture his preborn children. A child of marriage who is aborted essentially dies fatherless; she will never experience her father’s presence or know that her father loved her dearly and wanted to fight for her.
B. Notice to Husband
After Danforth, the Court also eliminated the right of husbands to know that their wives have decided to have an abortion. In Planned Parenthood v. Casey, the Court struck down a provision of a Pennsylvania abortion statute that required a signed statement that the woman has notified her spouse that she is about to undergo an abortion.7 The statute provided exceptions in instances where the husband is not the father, her husband could not be located, the pregnancy is a result of spousal sexual assault which she has reported, or the woman believes her husband or another person would inflict bodily injury on her.8
The Court discusses research that indicates most women notify their male partners, but, in cases where they do not, the pregnancy is either the result of an affair or the husband and wife are experiencing marital difficulties that often involve incidents of violence.9 One of the Court’s greatest concerns appeared to be that, because many women fear and experience physical abuse, child abuse, and psychological abuse at the hands of their husbands, the spousal notification requirement is “likely to prevent a significant number of women from obtaining an abortion.”10 Although domestic violence is a substantial and important concern, as it violates the dignity and equality of the woman, the solution cannot be to foreclose a non-abusive husband from crucial information concerning his child, the fruit of the most intimate and sacred part of his marital union. The Court’s ruling “punishes the law abiding majority for the crimes of the minority.”11 The Court also demonstrates its general approval of abortion and disregard for the sanctity of preborn human life.
By eliminating the spousal notification requirement, the Court may also be denying husbands the opportunity to try to convince their wives not to have an abortion or to clear up misunderstandings in instances where the wife may believe her husband does not want children.12
Further, the Court expressed worry that a requirement to notify the husband may justify “exactly what the Danforth Court held it did not justify—a requirement of the husband’s consent as well.”13 The Court essentially equates notice and consent, and, in fearing the husband’s domination of his wife, denies the husband of the mere opportunity to know the truth concerning his preborn child. Notice and consent, however, confer different legal rights; notice merely provides knowledge, where requiring consent allows a party to interfere by withholding consent.
An additional concern for the Court was the right of the individual to privacy from unwarranted governmental intrusion.14 The marital relationship has previously been protected by the Court, which rejected an individual rights analysis.15 Regrettably, the Casey Court not only backed away from protecting truth and procreation in marriage; the Court also intruded on the preborn child’s right to life, which is fundamental, for the sake of a right to privacy, which is fictitious.
C. Unmarried Fathers
Husbands are not the only men who experience lost fatherhood through abortion; unmarried fathers have never had a right to protect their children from abortion.
In Alabama, fathers who were never married to the mother and register on the Alabama Putative Father Registry have a right to be notified of an adoption proceeding involving their child. If his child is being put up for adoption, an unmarried father’s fatherhood is honored by providing him an opportunity to know of and possibly participate in the proceedings. The consent of unmarried fathers is also required if they registered and responded to the notice within 30 days.16
Why must unmarried fathers be notified and their consent be obtained for adoption, but not for abortion? In either case, the father’s duty is to ensure his child’s safety and wellbeing. Although the law provides the father with the right to express his fatherhood in regard to adoption, his fatherhood is not recognized when it comes to abortion. Many unmarried men are interested and eager to father their child. Sadly, these men have no recourse, legal or otherwise, to protect their child, and their child is left vulnerable to the claws of the abortion industry.
Ultimately, when society tells husbands and fathers that their opinions do not matter, and that they have no decision-making rights with respect to their preborn children, “they may feel insignificant and lose interest in providing for their children.”17
III. CHILD SUPPORT
There is a growing trend of father-absence in the United States.18 Only 17.5% of custodial parents are fathers, and 31.2% of custodial mothers live below the poverty line.19 Aside from the fathers who are absent from the beginning, many fathers who are engaged in the lives of their children, or litigate aggressively for custody or visitation, may disappear after court proceedings.20 Several barriers to fatherly engagement are created or exacerbated by the legal system, including role ambiguity, assignment of child support, and the ban on informal payments.
A. Role Ambiguity
Court orders award physical and legal custody, set a visitation or parenting schedule, and may award child support.21 However, courts go no further in allocating responsibility between parents, and very few parents are able to identify and negotiate issues concerning their role on their own.22 Loss of involvement in decision-making and uncertainty of what mothers expect causes significant frustration and stress for fathers, which then leads to absence.23 As a result of the lack of well-defined roles, fathers report conflict with the mother, dissatisfaction, being respected less by their children, feelings of inadequacy, and emotional pain.24
While child support payments are mandatory, taking advantage of visitation rights is not; the court and community do not expect the father to do any more than provide financial support.25 Low-income fathers may also face sanctions when they fail to pay.26
Ultimately, the law “fail[s] to support paternal caretaking,” or in other words, fatherhood.27 To suggest that fathers are only capable of providing court-ordered financial support greatly diminishes the dignity of men and their children, who desperately need a strong father figure for their emotional and mental development. In some cases, child support payments can ensure some minimal level of father-presence where a father may otherwise be completely absent from his child’s life. In other instances, courts treat a father who desires to participate in co-parenting and the nurture of his child as a “visitor.”28
B. Assignment
Federal and state law provide that recipients of Temporary Assistance to Needy Families (TANF) are required to assign their rights to child support to the government as reimbursement for the benefits they receive; therefore the family gets only the portion of child support payment that exceeds its TANF award.29 However, if the noncustodial parent has missed child support payments, then payments are diverted to pay off the debt before the custodial family receives anything.30 This applies to future child support payments once the custodial family stops receiving TANF benefits.31
Assignment of TANF payments denies noncustodial fathers “the opportunity to directly benefit their families.”32 In fact, TANF payments are so low that an average family’s income on TANF does not reach 50% of the poverty line.33 Assignment of child support funds prevents low-income fathers from adequately providing for their children. The Second Vatican Council acknowledged that extreme poverty makes it difficult for a man to “arrive at the needed responsibility, […] to become conscious of his dignity, and to rise to his destiny by spending himself for God and for others.”34 Requiring the assignment of all or a portion of a low-income father’s child support payment who, despite his best efforts, struggles to meet his legal obligations diminishes his ability to “spend himself” for his children. Assignment takes away from his diligent efforts to financially support himself and his children during a difficult time, and it imprisons his children in poverty.
The father’s support is diverted away from his children so that the government instead receives the benefits of his fatherhood. The Government usurps the father’s role so that his child receives the Government’s financial assistance but sees little, if any, of the father’s contributions. The Government, in denying children monetary provision from their father, creates ‘fatherless’ children in order to establish its parens patriae authority, fill its own pocket, and entrap TANF recipients for longer periods of time. Children are then resigned to longer periods of instability and insecurity, which negatively affects their development.
C. Ban on Informal Payments
Assignment prevents custodial mothers on TANF from re-negotiating their financial arrangement because accepting informal payments could amount to welfare fraud.35 Not only are mothers prohibited from receiving informal support, the father gets no credit for informal payments.36 Informal gifts might include diapers, baby formula, payment for the child’s medicine, gifts, clothing, and more. Fathers often prefer to purchase goods and services for their children because doing so allows them to provide and nurture their children in a way that is visible to their children.37 Children, though benefitted by child support payments, likely do not understand or see the money. The fruits of their father’s labor in the form of child support are not readily apparent to them, whereas receiving gifts and other goods allows them to see and feel their father’s presence.
Saint Paul instructs us that the wealthy must be “rich in good works.”38 Although being generous with money is good, the call to service is greater. It is no wonder that fathers feel more satisfied by giving non-financial payments, such as diapers and toys, because these also are examples of “spending” oneself that God calls fathers to make.
Many mothers realize that they are more likely to receive informal contributions from low-income fathers and often accept such payments instead of assisting the government with formal enforcement of child support obligations.39 A mother must violate the conditions of her TANF support in order to benefit her child.
Mothers, fathers, and children have little legal recourse to combat the government’s message that a father’s non-monetary contributions are irrelevant.40 Father-nurture is undervalued and substituted with Government-nurture.
IV. CONCLUSION
Children, born and preborn, are the most precious members of our society. Orphans, born and preborn, are the most precious and vulnerable members of our society. The estimated 2,300 preborn children who die each day from abortion in the United States41 die fatherless because the Supreme Court has stripped husbands and unmarried fathers of any right or recourse to protect their preborn children. Similarly, the Government creates fatherless children by driving fathers away through role ambiguity, assignment of child support, and the ban on informal payments. Even when diligent fathers work to support their children, the Government inserts itself between father and child, replacing father-nurture with supremely inferior Government-nurture. The legal standard for making decisions about a child’s life is “the best interests of the child.” Sadly, the Government appears to believe that its parens patriae authority and the destruction of the institution of family is more in the best interests of children than encouraging diligent, nurturing fatherhood.
– Gretchen Hedke
Gretchen Nicole Hedke is going into her third year at The University of Alabama School of Law in Tuscaloosa, AL. Raised by a working mother and stay-at-home father, Gretchen strives to combat legal obstacles that fathers face in protecting their children and the law’s valuation of fathers solely according to their financial contributions to the family. Instead, Gretchen is keenly aware of how necessary and impactful a faithful, dedicated, nurturing father is to the stability of family life.
Footnotes
1. Samuel J. McLure, The End of Orphan Care 18 (2016).
2. Catechism of the Catholic Church, 2271-72 (Washington, D.C.: United States Catholic Conference, 2d ed. 2000).
3. Planned Parenthood of Cent. Missouri v. Danforth, 428 U.S. 52, 69 (1976).
4. Id. at 68.
5. Id. at 70.
6. Id. at 71.
7. Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992).
8. Id. at 887.
9. Id. at 892.
10. Id. at 893.
11. Michael L. Jackson, Fatherhood and the Law: Reproductive Rights and Responsibilities of Men, 9 Tex. J. Women & L. 53, 77 (1999).
12. Id. at 76.
13. Casey, 505 U.S. at 898.
14. Id. at 896.
15. See Michael H. v. Gerald D., 491 U.S. 110 (1989) (holding that a California statute, which created a presumption that a child born to married woman living with her husband is a child of the marriage, did not violate biological father’s procedural or substantive due process rights).
16. Ala. Code § 26-10A-7 (2021).
17. Jackson, supra note 10, at 90.
18. Kohn, Laurie S., Engaging Men as Fathers: The Courts, The Law, and Father-Absence in Low Income Families, Cardozo Law Review, vol. 35:511, 512 (2013).
19. Grall, Timothy. “Custodial Mothers and Fathers and Their Child Support: 2013.” Current Population Reports, United States Census Bureau, (January 2016), https://www.census.gov/content/dam/Census/library/publications/2016/demo/P60-255.
20. Kohn, supra note 16, at 512.
21. Id. at 525.
22. Id.
23. Id. at 526.
24. Id. at 526-28.
25. Id. at 529.
26. Id. at 533.
27. Id.
28. Id.
29. Id. at 534.
30. Id.
31. Id.
32. Id.
33. Id. at 536.
34. Pope Paul VI, “Pastoral Constitution on the Church in the Modern World – Gaudium et spes,” (December 7, 1965), https://www.vatican.va/archive/hist_councils/ii_vatican_council/documents/vat-ii_cons_19651207_gaudium-et-spes_en.html, at 31.
35. Kohn, supra note 16, at 536.
36. Id.
37. Id. at 542.
38. 1 Tim. 6:18 (NASB).
39. Kohn, supra note 16, at 542.
40. Id. at 540.
41. See Rachel K. Jones, Elizabeth Witwer, and Jenna Jerman, Abortion Incidence and Service Availability in the United States, 2017, Guttmacher Institute (September 2019), https://www.guttmacher.org/report/abortion-incidence-service-availability-us-2017
