It's the kind of news story that provokes an age-old parental impulse: to glare at the kids in the rearview mirror and announce, "I really don't need this today!"
Thursday, three days after Gov. Mike Rounds signed a sweeping bill that would ban almost all abortions in South Dakota, a men's rights organization called the National Center for Men announced it was filing a lawsuit nicknamed "Roe v. Wade for Men" in the U.S. District Court in Detroit.
With the suit, NCM hopes to establish that a man who unintentionally fathers a child has the right to decline financial responsibility for that child, a right based on the same principles laid out in the 1973 case that made abortion legal. According to the argument put forth by the team behind the suit, women are afforded more choices about reproduction than their male counterparts, which violates the 14th Amendment right to equal protection under the law.
The NCM has been looking for an appropriate plaintiff for this case for more than 10 years. It finally found one in Matt Dubay, a 25-year-old computer technician from Saginaw, Mich., who claims he and his ex-girlfriend did not use birth control because of her assurances that she could not get pregnant due to a medical condition. But the couple, who Dubay told Salon were together for about three months, did conceive, and Dubay's ex elected to keep the child, for whom he now pays $500 a month in child support, despite his contention that he was always clear about not wanting the child.
Despite the national attention it has garnered, even the plaintiff's camp seems aware that the case is a little half-baked. Though NCM executive director Mel Feit said by phone that "there is no way to know" how the courts will rule in the case, many past child-support decisions have been decided on the basis that the need of a child to receive support from both parents outweighs any unfairness to a man who didn't want to be a father. CNN called the suit a long shot, and on Thursday's "Good Morning America," correspondent Dan Harris ruefully told anchor Diane Sawyer that while Dubay and his attorneys "do not hold out much hope of winning," they do want to start a discussion, and that "given the fact that I'm here, they've won on that point at least."
But is this really the moment to start a discussion about a case that looks like a non-starter designed to generate more publicity than legal traction? Now? Within weeks of the confirmation of Samuel Alito and days of the South Dakota abortion ban? It's hard not to see it as just a novelty act and maddening distraction tactic -- so we don't have to read and write and think about the 18 states about to enact further limitations on abortion, or about the rising insurance costs for the pill, or the Health Insurance Marketplace Modernization and Affordability Act that would allow insurance companies to get out of laws requiring them to pay for birth control, or about pharmacists who refuse to sell legal contraception to paying customers. Is this really the moment to be discussing whether paying child support is an injustice? Because we really don't need this now!
But maybe I'm the only one who feels that way. Since the NCM's announcement of its suit, the story has been featured on ABC's "World News Tonight," CNN and Fox, and in USA Today, the Chicago Tribune, and twice, as of today, Salon. An item posted about the story in Broadsheet has garnered 20 pages of letters. Roy Barreca, publicist for the NCM, sounded almost shaken by the attention. "I didn't think we'd be so overwhelmed with press," he said Thursday. "It shows a real need for this to be discussed in this country. I have to go. I have two radio interviews to do right now." Meanwhile, South Dakota state Sen. Bill Napoli's televised assertion -- that only a religious virgin who got "sodomized as bad as you can possibly make it" might qualify for an abortion in his state -- has been reported only in blogs and by Molly Ivins in her syndicated column earlier this week.
"I didn't have control over the timing of this," said Feit, head of the NCM since its founding in 1987. "There was no attempt to pick a symbolic time. But I do think it adds an element, to the extent that Roe is front and center and in the news right now. [It] sort of works for us, but there was no thinking of that ahead of time." Feit said he'd been looking for an appropriate plaintiff for the case since the mid-1990s, and that it was pure coincidence that he found Dubay at this moment, when choice is as imperiled as it has been since 1973.
By phone, Dubay explained that he first approached the NCM with questions about his rights when his ex decided to have the child despite his objections. "I went to the National Center for Men looking for help," he said, adding that he is a supporter of abortion rights, though he feels men should have a bigger voice in the decision about whether to terminate a pregnancy. "I don't necessarily believe that men should be able to force women to do anything either way, but I believe their input should at least be taken into consideration," he said.
Feit too, said he supports Roe. "Like many Americans I feel that there can be some reasonable compromises made about viability, somewhere between nine months and nine minutes," he said. "But yes, the concept of reproductive choice is a concept I support." Asked whether he, like many other "father's rights" activists, also believed that men should have a role in making abortion decisions, he said, "For single people, no. It's a woman's choice. Nothing we're doing seeks to deny women control. It is her body."
He also made clear that his suit didn't aim to change the law so that fathers could jettison their financial or paternal obligations anytime they felt like it. Instead, he said, he has written up what he calls a "reproductive rights affidavit," which would allow a man to accept his responsibilities and rights to fatherhood or relinquish them for a one-month period after learning of his partner's pregnancy, giving the pregnant woman a chance to take his decision into account before she decides whether to carry the fetus, abort it, raise the child or give it up for adoption. But, Feit conceded, that monthlong window might even be a stretch. "Maybe a month is too long," he said. "Maybe it should be five days. A woman has to know his decision before she can make hers. It should be a very limited period of time. We should not give him much time at all."
Feit acknowledged there is a critical difference between the right not to have to pay child support and the right not to be forced to bring an unwanted pregnancy to term inside your body. Decisions about parenthood are readily comparable for men and women until the moment of conception. But after a body becomes host to a fetus, a woman's choices become the final answer. And that explains a further difference between this lawsuit and the right to reproductive freedom for women: The cost of losing one is child support payments, and the cost of losing the other is dangerous, back-alley medical procedures and desperate, scared women unable to get the care they need.
"Of course there is a physical difference," Feit said. "And I wouldn't want to minimize that. But I also wouldn't want to minimize a significant part of your livelihood being taken away from you for a quarter century. In the case of my client, there is this child, and presumably the child will be very smart and go on to postgraduate studies, and the client would be paying for a significant part of his life. I don't want to minimize that either."
Feit sees his mission as philosophically weighty. "Reproductive freedom for women did more than give them control of their bodies," he said. "It gave them control of their lives. It said that they had a right to choose to love and have intimacy with another human being without having to sacrifice their lives for it. That's what Roe is all about."
In response to that assertion, Planned Parenthood of New York City spokeswoman Samantha Levine said, "Legalized contraception is what gave women and men the ability to be in a sexual relationship and keep themselves protected from unintended pregnancies. Roe v. Wade said that no state could place restrictions on a woman's right to abortion before the second trimester." In response to the "Roe v. Wade for Men" lawsuit, Levine said, "If men are really interested in beginning a meaningful dialogue about parenting, we recommend that they start the conversation while in the relationship and discuss birth control options and the potential outcomes of the sexual relationship with their partner. We encourage open dialogue between partners that includes how they feel about the possibility of parenting a child and also how to best prevent unintended pregnancies and sexually transmitted diseases."
Feit said, "I don't disagree with any of that. The point where Planned Parenthood and I would disagree is what happens in the event of an unintended pregnancy if a woman changes her mind." What really has him steamed, though, is the common reaction from feminists and reproductive health advocates who assert, as blogger Shakespeare's Sister did Thursday, that "men have plenty of 'say' over this decision ... before the pregnancy. They have 'say' over the women with whom they choose to have sex. They have 'say' over whether they choose to discuss in depth with a partner what they would do in the case of an unintended pregnancy -- and what their partners would do. They have 'say' over whether they put a condom on ... Once a woman is pregnant, men's legal 'say' ends." Dubay's ex-girlfriend, Lauren, echoed many critics when she told "Good Morning America," "Everybody knows where babies come from. And it was [Dubay's] choice before the child was even conceived. That was where his choice was."
"This reaction disturbs me," Feit said of the "Wear a condom, stupid" line of thinking. "First of all, a woman has a choice about whether she uses contraception or not as well. Second, these arguments are not new. They're exactly the same arguments used against women before [Roe v. Wade]: 'Hey, a woman has a choice. She can choose not to have sex.' And women's groups fought tenaciously against those arguments and they rightly succeeded. Now they're trying to dust off an argument they themselves discredited ages ago."
In fact, Feit repeated over and over again, much of his case is entirely dependent on the precedent set by Roe. If abortion becomes illegal again and women are forced to carry fetuses they don't want, he was asked, should women have the same right to refuse the financial burden of an unplanned child? He replied, "The arguments we're using here are thoroughly dependent on Roe being in place. Prior to Roe it made perfect sense to require a man to be financially responsible for an unplanned pregnancy. Without Roe, everything we're doing falls apart."
But whether or not Roe works for these guys, the question is: Are they working against Roe, or what remains of it, by gobbling valuable media attention that might be focused on what's happening to reproductive rights and healthcare by talking about paying $500 a month to keep an unplanned kid in clothes and food?
"We're actually asking a question of women," said Feit. "Is your stand on choice a principled stand, or does it work only when applied to you? As a progressive pro-choice man I am willing to support a woman's right to choose, but not if she's unwilling to reciprocate. I understand she's got to make the ultimate choice. But there is a disparity here that gives her complete control. So maybe there is a way to take advantage of this timing coincidence and say to pro-choice women: Are we in this thing together?"
But how is it possible to behave as if we're in this thing together when, after 10 years of looking for a fill-in-the-blank plaintiff, Feit and company picked now to suck all the oxygen out of the news coverage of actual abortion bans around the country? "But why can't you look at it in different way?" Feit responded. "That it will bring men into the movement and strengthen the choice position. Honestly, I don't see it as men versus women. It's about broadening what choice means."