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 pageok [Eugene Volokh, March 16, 2006 at 6:32pm] Trackbacks Women and Men, Abortion and Excuse from Child Support Obligations: Cathy Young has some interesting thoughts on the subject. (link) Marcus1 (mail) (www): Good comments. I'm also surprised at the willingness of many feminists to immediately invoke the "keep your legs closed" argument in relation to men. If it's offensive for women, I think it's equally offensive in relation to men. I think there's definitely a strong argument here on behalf of the guy that he deserves a right to choose fatherhood, since women have that choice both with abortion and with adoption. I haven't seen any equity arguments that contradict this. Some claim that the right to abortion only has to do with bodily autonomy, and nothing to do with the choice whether or not to become a parent, but I don't think that's true. At a fundamental level, I think there's a very strong interest in deciding whether or not to become a parent. I don't think that right is trivial. The child support laws essentially forces many fathers into fatherhood. I really don't think it's about the money, at least not entirely. To dismiss all these guys as deadbeat dads, I think, is just as sexist as making judgments about women who choose to have an abortion. The situation with the guy who insists on keeping the child, I think, is quite instructive. If a guy blocks giving the child up for adoption, do we really think he is then entitled to full compensation from the mother? What if he begged her not to have an abortion so he could keep the child? To me, asking for child support at that point would take a fair amount of gall. My big concern is just the potential consequences. If men were not bound by child support laws, it would create a situation with almost entirely consequence-free sex for men. The result, I think, would be to drastically lower the incentive for men to use protection. This would make men more insistent, put much more of the burden on women, and would probably result in less use of protection in general. I'm just guessing, of course, but I think it's true. So, like Cathy, I really don't know that the system can be improved. But I think the guys have a real beef, and to dismiss it as pigishness is unfair to say the least. (Of course, the interests of children are also important, but I don't think they override. If the state wishes to provide compensation, that's great, but it doesn't make forcing fatherhood any more fair.) 3.16.2006 8:43pm (link) Dustin R. Ridgeway (mail): Unfortunately Cathy seems to be the exception. I peroused the feminist blogs to see what they thought on the matter and, I don't know if it's the rule at those places or this particular issue really lights them up, but I was really blown away at some of the intense, vitirol soaked crassness &awesome hatred of men coming from some of the contributors. 3.16.2006 10:31pm (link) Dustin R. Ridgeway (mail): Also I would really like to hear what some of more legally inclined folks have to think about "male choice" or whatever. 3.16.2006 10:32pm (link) Ross Levatter (mail): Marcus 1 argues: "My big concern is just the potential consequences. If men were not bound by child support laws, it would create a situation with almost entirely consequence-free sex for men. The result, I think, would be to drastically lower the incentive for men to use protection. This would make men more insistent, put much more of the burden on women, and would probably result in less use of protection in general. I'm just guessing, of course, but I think it's true." I disagree with Marcus' economic analysis--economics being the study of incentives. Eliminating child support MANDATES, such as now exist, would NOT drastically lower the incentive for men to use protection, unless you also assume that women have no preferences one way or the other concerning risks of pregnancy. If women have a preference, then men who want to sleep with women have an incentive. Perhaps (though I hate to suggest this to a forum of lawyers) standard forms would develop, pre-coital forms rather than pre-nuptual forms. In general, the idea that if there isn't a law mandating X then no incentive to perform X exists is wrong. If it truly took a law mandating X to bring X about--that is, if so many people were opposed to doing X in the first place, one would wonder how in a democracy a mandate for X got made into law in the first place. 3.16.2006 11:25pm (link) therut: I'm a woman and not a femenist of today. If abortion is going to stay legal for women then I support the men. I to find it funny that "men should just keep their pants on " attitude. Tell a femenist to keep her legs together and she will scream and scratch your eyes out. Stange creatures. 3.16.2006 11:26pm (link) Proud to be a liberal : There is an enormous difference between a woman's risk from pregnancy - the complications can include death -- and a man's risk from pregnancy -- just child support. Also, there can be no question but that men do play important roles in decisions on abortion. Many women have abortions because the potential father is unwilling or unable to support the child. The day that a fetus can be transplanted into a man for the remainder of the pregnancy is the day that I will worry about men's rights in the abortion decision. I also think that, sadly, much unwanted pregnancy is caused because men are unwilling to take precautions themselves or wait until precautions are available. 3.17.2006 12:26am (link) Proud to be a liberal : There is an enormous difference between a woman's risk from pregnancy - the complications can include death -- and a man's risk from pregnancy -- just child support. Also, there can be no question but that men do play important roles in decisions on abortion. Many women have abortions because the potential father is unwilling or unable to support the child. The day that a fetus can be transplanted into a man for the remainder of the pregnancy is the day that I will worry about men's rights in the abortion decision. I also think that, sadly, much unwanted pregnancy is caused because men are unwilling to take precautions themselves or wait until precautions are available. 3.17.2006 12:26am (link) Marcus1 (mail) (www): Ross, I agree with you -- I didn't mean to suggest it would eliminate all incentives. Of course, there are still STD's to consider, and many men do have a conscience, and there are probably other incentives. Perhaps for a particular class of guys, though, in a particular situation, I think it would have a real impact. When you're talking about the drunk college hook-up, or the drunk bar hook-up -- the situation where the couple doesn't really know or care about eachother, the possibility of an unwanted pregnancy, I think, is a powerful deterrant to unprotected sex. In a manner of speaking, I think we might reduce that deterrant at our peril. 3.17.2006 12:38am (link) e: I don't think the moral stink would go away just because the legal condemnation is justly removed. Deadbeat guys will still be more visible in society than women who've chosen to abort for lifestyle reasons. And many will have the same regrets. Without the scarlet letter of our legal system, maybe they'll rationalize less and actually contribute. I too am baffled by the readiness of people to say the choice ends at sex, when abortion is legal. Rights of children are important, but I don't think the state should meddle in how families provide shelter and sustinance. Most of us hope for full emotional support from two parents, but if we really believed in a right to dual financial support, we'd mandate that all parents work for pay. We'd take children away from widow/ers. We'd shut down the sperm banks. It may sound nice, but a childs right to child support shouldn't be part of our law. Idiots conceive all the time. Perhaps women would choose more reliable partners if they took the same risk as men. Pregnancy is not the same as a lifetime of payments, but women do have the choice to give up children with no future legal obligations... 3.17.2006 2:59am (link) Challenge: "There is an enormous difference between a woman's risk from pregnancy - the complications can include death -- and a man's risk from pregnancy -- just child support." Given modern medicine, that risk is, on average, pretty small. Many men would happily trade a temporary slight increase in health risk for 20 years of child support. That said, I don't necessarily think feminists have much explaining to do. Most of the abortion debate centers around when life is worth protecting. Abortion is thought to be morally permissable because of the ambiguity of the moral status of the fetus. Many pro-choicers simply see no harm in abortion. The harm done to children by allowing fathers to withhold support is real and not open to debate. I think we can agree on that. In this way the current debate is much different than abortion. In this debate both sides should acknowledge the harm caused by the choice, whereas in the abortion debate the question is what moral status a fetus should have at all. 3.17.2006 4:42am (link) Wintermute (www): Cathy Young has been a wonderful antidote to purely gender-based "thinking" for some time. I once did research back into history on this issue, but it was peripheral to the subject of my law review article and I did not preserve it. I do think this is a subject we need historical information on, because the regime we have going now has several serious downsides. 3.17.2006 5:09am (link) Erik H.: "The harm done to children by allowing fathers to withhold support is real and not open to debate. I think we can agree on that. In this way the current debate is much different than abortion. In this debate both sides should acknowledge the harm caused by the choice, whereas in the abortion debate the question is what moral status a fetus should have at all." I might point out that there is only harm IF the child is born. Seeing as I--and feminists--support the right to abort a child if the life they'll be born into is poor, I don't see how merely changing that life is any different. Clearly the "right of the child" would apply to POST-birth denials of child support. But so long as abortion remains an issue, it doesn't come into play. 3.17.2006 9:10am (link) Per Son: Bottom line is this: Child support is about support for the child. End of story. If you have a concern about supporting possible children - do not have sex. 3.17.2006 9:36am (link) Taimyoboi: A bit of a tangent, but doesn't this provide the mechanism that you said Mark Steyn was lacking in your post criticizing the impact he claimed abortion had on low birth rates? I'm not sure about laws in other countries, but at least in the U.S. it would seem that the lop-sided distribution of decision making power, plus the expectation of paying future child support, would play a pretty strong role in severing the connection between sex and procreation. 3.17.2006 10:20am (link) Houston Lawyer: One of the reasons that the vast majority of people support abortion in cases of rape and incest is that the woman wanting the abortion didn't consent to have sex. So a substantial part of the population already agrees with the idea that consent to sex means you must carry the child to term. So long as abortion remains a woman's constitutional right, women will have a right denied to men. Apparently the fundamental right of killing your unborn child must be denied to men. Also, the current law presumes that women are incapable of giving informed consent to sex with any man. 3.17.2006 10:29am (link) Daniel Chapman (mail): From a legal standpoint, this seems like a perfect example of a legislature's recognition of the inherent differences between the sexes. I'd question whether this guy could even win if he managed to convince the Court to adopt strict scrutiny for gender discrimination, but it's pretty clear that there's an "important" government interest at work here. From a policy perspective, though, I'm surprised at the glee I've seen from pro-life people that the shoe is on the other foot. How is it a good for children, families, or society that even MORE people are attempting to separate sex from children? This isn't a backlash against the Roe v. Wade sexual revolution, it's another step down the road toward sex without responsibility. I hope this guy loses badly. 3.17.2006 10:42am (link) Per Son: I agree. I do not understand why the parents' actions should punish the child - who has a right to child support. Children do have rights independent from their parents. If a woman lies and says she cannot get pregnant (or their clean, etc), and the guy goes ahead and does not use a condom - he is an idiot! Also, if a woman becomes pregnant, and without child support would need to seek public assistance to help raise the child - how better is society? I say the father should bear the burden rather than all taxpayers. 3.17.2006 10:55am (link) Hans Bader (mail): I see the man's argument, and the analogy to Roe, but I still wonder why this case, rather than a case in which the man did not consent to sex in any form, was brought as a test case. There are far more attractive scenarios to sue over -- like the underage boy who is pressured by an adult woman to have sex, and then forced to pay child support for 20 years as a result. For example, the Alabama Court of Civil Appeals forced a teenager to pay a third of his net income in child support to a woman who raped him by having sex with him while he was asleep. (The headnotes of that case, S.F. v. State ex rel. T.M. (1996), are set forth below). Wouldn't someone similar to that boy have been a much more effective plaintiff? The man in There is a broad societal consensus that rape victims should not be forced to bear their rapist's child. So why are male rape victims forced to pay a big chunk of their income in child support to their rapists? And why do feminists applaud this result, defending the Alabama decision whenever I raise it? By contrast, the man in the "Roe for men" suit discussed in the above post was merely tricked by his girlfriend about whether she was using birth control and could get pregnant. That deceit was reprehensible, but I'm ambivalent about whether it totally absolves him of any responsibility for the ensuing child. After all, few forms of birth control are absolutely 100 percent reliable. I do think the deceit should at the very least be taken into consideration in any future motions to increase or decrease his child support. While I can see the argument that the child should not be deprived of adequate support because of its mother's deceit, if the mother is able to adequately support the child on her own, I see little reason for the father to be forced to pay the standard child support guideline amount, which typically exceeds the actual cost of raising children. (Child support guidelines typically require the father to pay more in child support than it actually costs to raise a child, constituting a windfall for the mother. Such a windfall is unjust when the mother's deceit is the only reason the father is on the hook for child support). West's published summary of the Alabama case I described above is as follows: Court of Civil Appeals of Alabama. S.F. v. STATE ex rel. T.M. 2950025. Nov. 22, 1996. Rehearing Denied Jan. 10, 1997. Certiorari Denied May 30, 1997 Alabama Supreme Court 1960744. State brought action to establish paternity and sought child support. The Franklin Circuit Court, John D. Jolly, J., entered judgment for state, and adjudicated father appealed on due process grounds, contending that he did not knowingly and willfully have sex with child's mother. The Court of Civil Appeals, Yates, J., held that adjudicated father was obliged to support child, regardless of whether conception resulted from sexual assault by mother. Affirmed. 3.17.2006 11:02am (link) Cornellian (mail): There is a broad societal consensus that rape victims should not be forced to bear their rapist's child. Other than in South Dakota, apparently. 3.17.2006 11:13am (link) Daniel Chapman (mail): apparently. 3.17.2006 11:14am (link) Vincent, Paul (mail): "Feit, however, says a fatherhood opt-out wouldn't necessarily impose higher costs on society or the mother. A woman who balked at abortion but felt she couldn't afford to raise a child could put the baby up for adoption, he said." So, according to Feit, the mother and child must assume all costs (the physical and financial cost of rearing a child by the mother, or her giving up the baby for adoption and its emotional costs; then for the baby the burden of being an adopted child and its emotional, socio-economic costs), but the father will be protected by law from any cost (for a sexual liason that he willingly participated in). Is there going to be a limit (first one's free) to how many "unintended children" a man can father yet not fund, or will this be the procreation equivalent of the Oklahoma land rush for any modern day Don Juan? Oh, I love this Feit quote, " wouldn't necessarily impose higher costs on society or the mother." I honestly believe that if a man is to qualify for a, "free one," that it must come at some cost to him. Since he doesn't want to pay support for the child or help the mother in any way, then the law must mandate his sterilization. 3.17.2006 11:37am (link) KeithK (mail): I don't get the impression that the plaintiff expects to win this case. The goal is more to raise the profile of men's rights issues. As for why they are bringing this specific case, I suspect it's just a matter of using what's available. There probably isn't a large pool of men with standing who would be willing to sue over this issue. 3.17.2006 11:38am (link) Hans Bader (mail): The South Dakota law banning abortion will be invalidated by a federal judge, and that ruling will be affirmed, unanimously, by the United States Court of Appeals for the Eighth Circuit. 3.17.2006 11:39am (link) Daniel Chapman (mail): As much as I hate to continue the hijacking of this thread... "well duh!" Great prognosis, Hans... but would you care to predict where the case will lead once we reach a court that ISN'T bound hand and foot by clear precedent? My guess is it will still fail, and SCOTUS might not even grant certiorari. But the lower courts would have to be crazy or incompetent to buck Roe on their own. 3.17.2006 11:45am (link) cfw (mail): Hypothetically, if a woman had a duty to advise father in the first trimester and have him help decide the abort or give up for adoption or carry to term and support for 18 years issues, one could envision diverging views (on occasion). In the case of divergence, why not have the law courts resolve the issue (as needed) then and there based on best interests of the prospective child? If prospective Dad says I am an 18 year old idiot who had "hook up" sex in college, I have no income, no assets, no prospects for being a good dad now, why not have the court declare "no male consent to parenthood," so female must go with financial adoption (and bio mom has visitation rights, maybe custody with adoptive parents paying support)? Adoptive parents would most likely by related to female. If Mom has means to do the support herself (not just the desire), she could forego the mandated financial adoption. Or bio mom-to-be could always exercise her unfettered right to abort. If no adoptive parents are available, after reasonable search, one might consider making loans available to prospective bio mom, ideally from private funds. Tapping public funds so single mom could go it alone without private funding is probably what we do now in fact, in lots of cases, but seems hard to justify absent exceptional circumstances. In short, maybe something could be worked out to help the intelligently unwilling Dads have a legal voice. 3.17.2006 12:10pm (link) Dick King: The proper analogy is not with Roe V Wade. The proper analogy is with those laws almost all jurisdictions have these days that allow a new mother to drop an infant off at any hospital or fire station within the first [usually] three days of life with no further life consequences to the mother. It's fairly clear that the safe haven laws are more factually analogous to the right the plaintiff is seeking, but I also think the new focus is better tactically, for two reasons: 1: Row V Wade does not have universal support, so it seems wrong for the mens rights movement to attach to it. 2: I believe the "safe haven" laws have wide support and that people would get the point. I do, however, have a problem figuring out what my sound bite should be, and maybe that's decisive in a movement like this. Challenge wrote: The harm done to children by allowing fathers to withhold support is real and not open to debate. I think we can agree on that. In this way the current debate is much different than abortion. In this debate both sides should acknowledge the harm caused by the choice, whereas in the abortion debate the question is what moral status a fetus should have at all. This lawsuit does not seek an end to child support, not even close. None of this movement has anything to do with the majority of child support cases, which arise from divorces and split-ups well after the baby is born and raised by the parents as a couple for months or years. The lawsuit merely seeks parity for fathers. Mothers already have the privilege of withholding support from a child they actually bear, provided they do it in three days, and relinquish parental rights*. I would support a rule that said that the father must make his decision within three days of being notified that he is a father or potential father whenever that may be -- in some egregious cases it's been years after the birth. My proposed rule would deliver two benefits: 1: In the case where the father is notified shortly after conception this would leave the mother time to have an abortion if her calculus is that she only wants to carry to term if she can reasonably expect support. 2: Currently the mother has an incentive to conceal the baby from the father until after bonding is possible. If the father finds out about the baby at or before birth, he can make demands for co-parenting, which the mother may not want. Currently she can have the best of both worlds by creating a situation where no court will order co-parenting with a stranger but the wallet can still be tapped. Retroactive child support exists but can only go so far, but in common cases the father is barely an adult and has minimal income at birth, but finds his economic footing a few years down the road. In any event, if the mother waits two years she can get most of the money for a much lesser amount of entanglement exposure. If my principle were applied, the incentives would reverse -- prompt notification may induce the biological father to decide to become a true father and let his three days lapse, but this is unlikely in the surprise case. -dk * "safe haven" laws usually allow the mother something like 28 days to reverse her decision. Should the be available to men? Seems reasonable, actually. 3.17.2006 12:35pm (link) Houston Lawyer: The debate would get much more interesting if the father would be presumed to get custody of the child instead of the mother. Men are presumed to get, in general, the right to pay to visit the children born to their lovers or ex-wives. I believe there would be fewer out-of-wedlock births and fewer divorces if this rule applied, and that such a state of affairs would be beneficial to children generally. The debate cannot be allowed to focus on the unfairness of the current regime both to children (during or after gestation) and men. 3.17.2006 12:35pm (link) sprice (mail): \begin{non legal conjecture} From what I can tell men have the same right as women to abort their pregancies. If men's bodies had the capacity for the gestation of a separate life form then they would have the right to abort said being. The argument appears to be about parental rights and responsibilities which come into effect at birth. Sex is really a contract to perform certain duties upon the birth of a child. Abortion is simply a loophole available to women to escape this contract without penalty and is provided regardless of motive. Therefore the "keep pants on/legs closed" argument applies; however, only to men (and women unwilling to use the abortion loophole). Sorry guys. If you were able to woo her into bed looks like you are stuck with wooing her to the clinic as your only option. 3.17.2006 12:53pm (link) Marcus1 (mail) (www): Per Son, Of course, condoms break and birth control fails. I think by your definition of "idiot," it would actually include the vast majority of people. I can see saying it's a good disincentive for guys to have casual unprotected sex. To think reasonable people won't end up with unwanted pregnancies, though, I think is irrationally judgmental. Particularly when such people are often quite young. 3.17.2006 1:07pm (link) Per Son: Marcus1: I offer no apologies. One is an idiot if they have unprotected sex and rely on another's promise that preganancy or disease is impossible. Those are the idiots. If a girl believes that love prevents her getting pregnant, or a guy believes that a woman does not have AIDS because she says so, then the only conclusion is that they are idiots. Condoms and birth control fail as well, and that is why I say do not have sex if you do not want to deal with the possible consequences! I fully support abortion, which as a consequence if so chosen. On the other hand, there is the possibility for a man that he will support a child for the next 18 years that he never wanted/planned on having/etc. These, my friends, are choices. 3.17.2006 1:18pm (link) eddie (mail): I think some basic ground rules should be set forth in this debate. It certainly takes two to tango. So any argument regarding abstinence and/or prevention must be equally applicable to men and women. If a woman want a man to use protection, then make sure he does. Indeed the risks re pregnancy are unique to a woman and thus I do not think that a man can force a woman to bear a child that he conceived. This is also somehwat apparent. Yet, let us also not forget that right now the only criminal sanctions in this debate are on the man's side. For example, I do not know of any laws in the United States where a woman would be subject to imprisonment for the improper application of child support payments. Isn't that as equally important to the "interests of the child". But child support itself is a faulty concept. In the interests of the child the court decides that the non-custodial parent bears a certain economic obligation. If the starting point were that the parents owe a certain quantifiable amount and that such amount must be placed in trust for use solely to "support" the child, then there would be less incentive to "win" custody and thus "win" the monetary pot of gold. These issues remain incredibly unexamined in current divorce/family law. And givern the adversarial nature of the resolution of these disputes and problems, it changes the nature of the "interests" of the child. All of this discussion must be placed in the context of an unfortunate amount of actual dead beat dads. But as is always true, bad facts make bad law. But in the realm of have an equal right to avoid the consequences of a birth, I do not see why this should only be a woman's right. I understand that the right is far more ground in the autonomy of a woman's own body, and can only as a male empathize with the audacity of men saying there should be a law that forces a woman to cede control of her own body. Thus, I look no further at a woman's reason for going through with an abortion. However, why is a man not afforded the choice, for whatever reasons. This is not easy stuff. But a woman cannot on the one hand say she has the exclusive right to avoid pregnancy because its about her body and turn around and demand that once there has been conception the man is on the hook. What is the justification? Per Son: The point is that if the contraception fails, only the woman has the right to "avoid" the consequences, even if the reasons are identical to a man's. The only justification is that the woman should not be forced to give up control of her body. However, a man has no such ability and is being told "Just don't." 3.17.2006 2:02pm (link) Francis (mail): Presuming that the political and judicial conservatives who post here do not want judge-made law on this topic, this issue is and should be vested in state legislatures. Now, if you are a state legislator presented with the question of what the law should be when a unmarried woman who is pregnant wants to bear and raise the child but the father wants no responsibility, you have the following choices: 1. force the mother to abort; 2. force the mother to give up the infant for adoption; 3. force the couple to get married; 4. force the dad to pay child support; or 5. allow the dad to skate, recognizing that the taxpayer will then have to support the mother (let's all recognize that a single mother with a newborn is unlikely to be able to generate enough income to support herself). Which one of these choices will get you re-elected? Which four will get you voted out of office? Bringing the courts back into it, choices 1, 2 and 3 are pretty clearly unconstitutional violations of liberty interests. Choice 5 raises no constitutional interests. I like analyzing choice 4 under regulatory takings jurisprudence. Under the Nolan/Dollan cases, there exists a nexus between the taking ($out of dad's earnings) and the state action (protecting the interest of the child) and, so long as the support award is reasonable, the award will also meet the rough proportionality test. 3.17.2006 2:30pm (link) Hans Bader (mail): Per Son says that "One is an idiot if they have unprotected sex and rely on another's promise that preganancy or disease is impossible," and that lies about such things are not relevant. At least in the disease context, courts increasingly disagree. It's tortious to lie about whether you have a disease when you have someone, and give them a disease. You can be sued in many states for damages for giving someone a sexually-transmitted disease. It's utterly reprehensible to lie about whether you have a sexual disease. I don't think we should blame the victim of the lies. When someone claims that they are disease-free, I think their partners have a right to rely on that argument. Perhaps the same should be true about false claims that one cannot get pregnant, which are also reprehensible. It's not clear why a mother should be able to profit from her lies when she has the financial resources to raise the child without the support of the father who was tricked into participating in the conception of that child. (Child support guidelines frequently award more money in child support, payable to the mother, than it actually costs to raise a child). 3.17.2006 2:35pm (link) Dick King: Houston Lawyer: Men are presumed to get, in general, the right to pay to visit the children born to their lovers or ex-wives. No. Men are presumed to get, in general, the obligation to pay child support to mothers of such children. In addition, they can petition the court for the right of visitation, but it's not guaranteed [and child support is still owed even when the father is denied any visitation]. In fact, the amount of child support you can get decreases every time the other parent gets more visitation, which creates an incentive for mothers to estrange the fathers from the children. I apologize for not making that point clear in my previous post; it's an important issue but not germane to this thread except insofar as it creates an incentive for mothers to delay notification of the fathers that can outweigh the child support forgone over the delay interval. -dk 3.17.2006 2:38pm (link) Dick King: Francis: I like analyzing choice 4 under regulatory takings jurisprudence. Under the Nolan/Dollan cases, there exists a nexus between the taking ($ out of dad's earnings) and the state action (protecting the interest of the child) and, so long as the support award is reasonable, the award will also meet the rough proportionality test. Takings require just compensation. I could be wrong, but I suspect that most fathers would very willingly pay $1000/month non-deductible child support if the state sent them$1000/month tax free. -dk 3.17.2006 2:44pm (link) Per Son: Hans said: (Child support guidelines frequently award more money in child support, payable to the mother, than it actually costs to raise a child). Really, the formulas are based on the father's income as well as other expenses. His income should matter. If the mother is using the income on ehrself, it should be reported to the proper authorities, rather than have it cut off completely. Whole government bodies keep track of that stuff in some states. As far as being an idiot, I am not talking about people in committed relationships. I am only talking about people who fall for stupid tried and true lies (you won't get preganant because I love you etc.). My wife and I each had STD tests before we ever became intimate, and I am glad to say many more people are doing the same. Additionally, I am not talking about liability or being a victim. In this day and age, with AIDS and all, one is playing with fire, and all the Torts suits in the world will not get rid of AIDs, herpes, genital warts, etc. 3.17.2006 3:00pm (link) gasman (mail): Let's not forget that some realities are indisputable differences of biology. Men sire children, women bear children. There is a huge asymmetry here. There is no grind-your-teeth unfairness about it. Not the fault of any human, government or politically active group; it's just the way things are. So naturally there must be some asymmetry in the relationship of child bearing responsibilities. The woman, while pursuing her constitutional "life, liberty...." must be free from unwanted physical harm from the man, or at the behest of the man. The man has presumably had consensual relations, and did understand that conception is always possible. If he beleives that some sort of deception was involved, the woman deliberatly increased the likelihood of conception by lying about fertility or use of contraception, then he has a civil tort. But this does not relieve him of his a priori responsibility for the outcome of his consensual act. One nagging sticking point for many are non-consensual acts, such as rape. Can and should a parents rights be terminated by the courts? It is quite possible to conclude that the rapist is not a fit parent, and using existing and established law can strip a biologic rapist of their parental rights. Thus, fears of a rapist interfering in a victim's pregnancy should be prevented (obveously the application of law falls short here, but some dedicated DA should be able to figure this one out). 3.17.2006 3:24pm (link) Roger Schlafly (www): Per Son: Child support is about support for the child. End of story. ... If the mother is using the income on herself, it should be reported to the proper authorities, rather than have it cut off completely. Whole government bodies keep track of that stuff in some states. No, child support is about support for the parent, not the child. State laws do not require the mom to spend the support money on the child. She can legally spend it all on herself. The child support formulas are based on equalizing the incomes of the parents, and not based on the expenses of raising the child. What used to be called alimony is not called child support. These details about child support are not too relevant to the Choice For Men issue, except to note that the support obligations are quite substantial, and much greater than most people realize. 3.17.2006 3:44pm (link) Francis: dk -- the Nolan/Dollan regulatory takings cases discuss the parameters of acceptable govt regulation for which compensation is NOT owed. my not-terribly-serious point is that the court's 5th amendment jurisprudence is one way of analyzing whether ordering reasonable child support payments is within the scope of a state's regulatory power. 3.17.2006 4:23pm (link) David Chesler (mail) (www): Was it really 24 years ago that this issue was dealt with so neatly in "An Officer and a Gentleman": "Of course I'll do the right thing by you, I'll pay for the abortion". One of the luxuries of not being a lawyer is I get to misuse concepts like indemnify and mitigate and subrograte, but the way I figure it, sure the kid has a right to be supported, and the father is one of several people who are liable to the kid, but the mother had a duty to mitigate the damages that the father would incur if she carried the pregnancy to term and thus is liable to the father for what he has to pay in child support. As to the "keep your pants on" argument, does this apply to other things? Should we outlaw seatbelts and airbags and emergency rooms and just tell people "If you don't want to be in a car crash, just don't get in a car." I see where everybody is so upset that the South Dakota ban doesn't even make an exemption for rape and incest. I don't get it. If abortion is murder, why should there be such an exemption? It is no less murder to kill a born baby if it was conceived out of rape or incest, so why should it make any difference in killing an unborn entity? (Personally I don't think abortion is murder, regardless of the circumstances of conception, but that's not the point.) And finally, while I've just contributed to letting this genie out of the bottle, at least while comments are still allowed, I'll note that a lifetime ago on a libertarian emailing list I was the keeper of a debate-abortion-in-a-libertarian-context sublist. It consisted of a list of everybody who had every brought up the topic on that list, which, anytime anyone brought it up, I would mail to him or her, with his or her name added at the bottom, suggesting that they take it off the main list and discuss it on a new list, and here were the charter members. 3.17.2006 11:49pm (link) Challenge: "No, child support is about support for the parent, not the child. State laws do not require the mom to spend the support money on the child. She can legally spend it all on herself." Just because the law does not monitor how the money is spent does not mean "child support is about the parent." It has more to do with a reluctance to micromanage how families operate. 3.18.2006 8:01am (link) markm (mail): "I agree. I do not understand why the parents' actions should punish the child - who has a right to child support. Children do have rights independent from their parents." Except that women do have two opportunities after conception to avoid having to help support the child. They can have an abortion, or the mother can place the child for adoption once it is born and have no further responsibility to the child. If she decides to keep it, the father has NO opportunity to avoid paying child support. Even if he was raped. There are many more asymetries here: 1) Women have better birth control options than men, whose only options are abstinence, irreversible surgical sterilization, or unreliable condoms. This asymetry is biological, not legal, and I don't see any reason the law should try to level it. 2) Worse, under current law a woman who sneaks off with a used condom and impregnates herself with the sperm contained in it thereby entitles the child to 18 years of support - and if the man is much richer than her, that child support will also support her. This is partly a biological issue and partly a legal one. My suggestion, is to level only the legal side of it: make custody law truly gender-neutral, giving the father an equal opportunity to show that he will be a better parent, raise the child himself, and collect child support from her. 3) Pregnancy is painful and just a little bit dangerous, rather like the work men often have to do to make child support payments. This is another biological asymetry, and IMO it's not sufficient to balance #1. 4) Men are often stuck with child support for children they did not actually father. Laws in many states bar men from challenging the paternity of children born to their wife; when there was no real way to be certain these might have been a good idea, but now they are obsolete. Furthermore, in some cities in CA (at least) the DA office works actively to get single mothers on welfare to name the father, and then use quite unfair tactics to get a child support judgment whether or not he is actually the father. They'll mail a notification to an out of date addres, and then get a default judgment - which under the law appears to be irreversible, no matter what DNA tests show, no matter that the alleged father was out of the country at the time of conception, no matter that he wasn't actually notified. Make all child support dependent upon either an admission of paternity or DNA testing. 5) Custody decisions are grossly biased against men. 6) A drunken woman is often considered to be incapable of informed consent. A drunken man is implicitly considered capable of informed consent. That is, if two people get stonkered together and then have sex, if she regrets it next morning the man just might be charged with rape. Are feminists trying to bring back the Victorian Age? 3.18.2006 11:16am pageok pageok