1979] ABORTION JURISDICTION 433 Coe v. Gerstein invalidated a state statute requiring the physician of a married woman seeking an abortion to obtain "the written consent of her husband, unless the husband [was] voluntarily living apart from the wife" 192 or the abortion was necessary to preserve the woman's life.13 The district court treated the entire abortion decision as though the subject of abortion could simply be divided into two issues: Maternal health and fetal protection. Of course, neither of these issues denies the independent, though overlapping, interest of the husband/father. But by relying exclusively upon Roe and Doe, even though the court recognized their inapplicability," the judges locked themselves into a categorical analysis that simply was not intended to solve this problem. The court concluded that: [I]f the State cannot interfere to protect the fetus' interest in It would be more palatable if the court had stopped there, and we could conclude that it simply missed the point. Continuing, however, the panel recognized that possibly the husband's interests "fall completely outside the categories of protection of maternal health and potential life." Furthermore, the court recognized that "the interest of the husband in the embryo or fetus carried by his wife. . . is qualitatively different from the interest which the mother may have in her health and the interest of the viable fetus in its potential life."197 Yet the court eschewed further analysis of the constitutional significance of this qualitatively different interest expressly left open in Roe and Doe and held the 541 F.2d 523 (6th Cir. 1976). 191. 376 F. Supp. 695 (S.D. Fla.) (declaratory judgment granted, injunctive relief denied), cert. denied for want of jurisdiction, 417 U.S. 217 (appeal from declaratory judgment must be made to circuit court), aff'd in part sub nom. Poe v. Gerstein, 417 U.S. 281 (1974) (denial of injunction upheld), aff'd in part sub nom. Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975) (declaratory judgment affirmed), aff'd sub nom. Gerstein v. Coe, 428 U.S. 901 (1976). 192. Fla. Stat. Ann. § 458.22(3) (a) (West Supp. 1978). 193. Id. § 458.22(3)(c). 194. Gerstein v. Coe, 376 F. Supp. at 697. 195. Id 196. Id. 197. Id. at 697-98 (emphasis added). 434 TULANE LAW REVIEW [Vol. 53 requirement unconstitutional because it permitted a veto of the wife's decision to abort. 198 Thus, the court begged the question. The nature of the husband's interest must be more fully understood before state advancement of that interest can be judged perhaps the respective husband-wife interests are equally weighty and a balancing procedure is appropriate. On appeal to the Fifth Circuit, 199 the husband's interest received a somewhat more serious treatment. The appellate court examined more closely the state's justifications for requiring spousal consent. First, the state asserted that the provision was consistent with its general interest in the marriage relationship. Second, the state contended that the statute was necessary to protect the husband's interest in the abortion decision. As to the marital relationship, the circuit panel asserted, somewhat summarily, that this interest was narrow and did not extend to "intrafamilial decision-making processes with regard to childbearing decisions."200 Therefore, the "state's societal interest in this aspect of the marriage relationship [was] not sufficiently 'compelling' to justify the statute."201 Can the state's interest in marriage be so easily dismissed? Does this analysis really address the larger question of what is the state's interest in marriage? For example, the Supreme Court has said that the state's interest extends to the need to protect the "regularity and integrity of the marriage relation."202 Accordingly, the traditional state interest clearly transcends the mere formulation and dissolution of the relationship; it is also concerned with marriage as an institution. Under this more accurate understanding of the state's interest, can it be so easily asserted that the state has no interest in requiring that important decisions affecting a marriage be forestalled in the absence of unanimity? Could not a state preserve and protect the integrity of the marriage unit by requiring unanimity on questions of adoption, artificial insemination, and voluntary sterilization? Admittedly, all these questions relate to the "child-bearing" decision, yet they seem vulnerable under a view of marriage that holds the parties to be simply two independent individuals who happen to be cohabitating. 198. Id. at 698. 199. Poe v. Gerstein, 517 F.2d 787 (5th Cir. 1975), aff'd sub nom. Gerstein v. Coe, 428 U.S. 901 (1976). 200. Id. at 795. 201. Id. 202. Estin v. Estin, 334 U.S. 541, 546 (1948). 1979] ABORTION JURISDICTION 435 In bold contrast to the Fifth Circuit's view of the state's interest in marriage, the words of the district court in Planned Parenthood v. Danforth are instructive: Other testimony at the trial merely supports what should be obvious—that those things which foster mutuality and trust in a marriage tend to strengthen the relationship and the institution of marriage . . . . In the area of procreation, which is a fundamental aspect of that relationship, the state's interest in protecting the integrity of the marriage unit and the mutuality of decisions made by the partners to that unit becomes particularly compelling. It is difficult to see how marital harmony could possibly be preserved if husbands were precluded from participating in decisions which affect the very essence of the marriage relationship. The interest of the state in protecting the mutuality of decisions vital to the marriage relationship is compelling at all times during the marriage. It does not vary in importance at different times during the relationship, and certainly is not subject to distinctions between trimesters of the wife's pregnancy.203 Clearly, nothing in Roe or Doe compelled the Fifth Circuit to reject this more firmly established view of the state's societal interest in marriage. The second asserted state interest-the husband's concern over the abortion decision-was thought to be more substantial. The court saw both a current and a future interest assertable by the husband: a present interest in the protection of the threatened fetus and a future interest in procreation potential. Since this familial interest in the fetus had only recently been threatened, it was considered de novo. Astonishingly, however, the court rejected the father's interest primarily because the statute did not base its consent requirement on paternity as opposed to status as a spouse: "The statute therefore seems to base the husband's interests upon his marriage to the woman rather than his paternity of the fetus."204 Without determining the identity of the constitutional defect, the court concluded that "[a]s a consequence, the rights of the husband which arguably spring from his interest in the fetus are of doubtful applicability in this case. Given the opportunity, a state court could certainly have construed the statute to make it consistent with the court's concern, 203. 392 F. Supp. 1362, 1370 (E.D. Mo. 1975), rev'd in part, 428 U.S. 52 (1976) (citations omitted). 204. 517 F.2d at 796. 205. Id 84-581 0-81-26 436 TULANE LAW REVIEW [Vol. 53 yet the Fifth Circuit chose to assume, without giving the state courts a chance to give the statute a narrowing construction, that the case of the adulterous progeny invalidated the entire attempt to recognize the admitted paternal interest. Perhaps perceiving the weakness of its conclusion, the court asserted, as an independent reason for invalidation, that the father's interest in the fetus is not sufficiently weighty to prevent the exercise of the woman's fundamental right." The court reasoned that because the fetus is not a person and therefore not a child, then “a fortion" the father's interest in the fetus is less significant than his interest in live born children. Of course, Foe's conclusion that a fetus is not protected under the Constitution does not inexorably lead to the conclusion that a fetus is not a child, and it will certainly come as a shock to many fathers that the Constitution says they cannot be as concerned about and protective of their children in utero as of their live bom children Sotor will many courts and commentators be shocked by such a notion since a testator's interest in his children has been recognized to include those who have been conceived but not bom moreover, the parental interest in the life and health of the fetus has been widely recognized in the tort law." Therefore, it seems that the premise upon which the court distinguished prenatal from postnatal children is flawed, and as a result, so too is its preference for the "weightler" maternal interest. There is nothing in constitutional or logic that can support the position that the mother's interest in a dead baby is somehow "weightler" than a 1979] ABORTION JURISDICTION 437 father's interest in a live one. As Justice White has recently said, "[i]t by no means follows, from the fact that the mother's interest in deciding whether or not to terminate her pregnancy' outweighs the State's interest in the potential life of the fetus, that the husband's interest is also outweighed and may not be protected."2" Finally, the Fifth Circuit examined the husband's interest in the procreative potential of his marriage. It recognized abortion and procreation as competing fundamental rights but concluded that since procreation takes a willing partner, cases recognizing the fundamentalness of procreation212 “merely safeguarded . . . procreative potential from state infringement."213 Consequently, the right to procreative potential is less weighty than the right to abort. The court's grounds for decision are nothing more than conclusions and are not analytical statements of constitutional principle. What did the court mean when it said that "we do not read Skinner to permit state infringement upon the woman's fundamental right to abortion"? Why did the court read Skinner so narrowly and Roe so broadly that the abortion right was expanded to exclude the entire spousal interest-a result not mandated by Roe? The long constitutional tradition of which Skinner is only a small part15 seems to clearly outweigh, in history, precedent, and fact, two relatively infant decisions216 that broke entirely new ground and were unsupported by, and in fact contrary 211. Planned Parenthood v. Danforth, 428 U.S. 52, 93 (1976) (White, J., concurring in part, dissenting in part). 212. See, e.g., Skinner v. Oklahoma, 316 U.S. 535 (1942); cases cited at note 215 infra. 213. 517 F.2d at 797. 214. Id. 215. See, e.g., Stanley v. Illinois, 405 U.S. 645, 651 (1972): The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," Meyer u. Nebraska, 262 U.S. 390, 399 (1923), "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and "[r]ights far more precious ... than property rights," May v. Anderson, 345 U.S. 528, 533 (1953). "It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder." Prince v. Massachusetts, 321 U.S. 158, 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer u. Nebraska, supra, at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra at 541, and the Ninth Amendment, Griswold v. Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concurring). 216. Doe v. Bolton, 410 U.S. 179 (1973); Roe v. Wade, 410 U.S. 113 (1973). |