The XX Factor

Why Oklahoma’s Anti-Abortion Fetal “Host” Bill Is So Noxiously Unconstitutional

It was this sort of law that convinced former Justice Sandra Day O’Connor of the necessity of Roe v. Wade protections.

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The constitutional doctrine that protects a woman’s right to terminate her pregnancy is often diluted into an abstraction. We frequently discuss how the 14th Amendment prohibits anti-abortion laws, but we seldom explain why. Even the Supreme Court’s excellent 2016 decision striking down Texas’ absurd abortion restrictions largely took “a woman’s right to have an abortion” as a given. But some anti-abortion bills so obviously and egregiously invade women’s personal liberty that the constitutional backdrop of the abortion battle comes sharply back into view. Oklahoma’s fetal host measure is one of those bills.

To recap: Oklahoma Republican Rep. Justin Humphrey sponsored a bill requiring women to get “the written informed consent of the father of the fetus” before terminating her pregnancy. Moreover, a woman seeking an abortion would “be required to provide, in writing, the identity of the father of the fetus” to the doctors performing the procedure. In an interview with the Intercept, Humphrey explained the purpose of his bill:

I believe one of the breakdowns in our society is that we have excluded the man out of all of these types of decisions. I understand that they feel like that is their body. 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. 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.

Obviously, Humphrey’s vision of pregnancy is ethically incoherent and morally grotesque. But it is also valuable, because it strikes at the heart of why the Constitution protects abortion rights in the first place. The 14th Amendment’s Due Process Clause declares that no state may “deprive any person of life, liberty, or property, without due process of law.” As the Supreme Court has long held, there are certain facets of liberty that are so fundamental to individual autonomy that the state may not lawfully proscribe them at all: No amount of “due process” can make up for the resulting infringement on personal freedom.

Abortion is one of those components of liberty that the state cannot forbid. The “liberty” described in the Due Process Clause includes the ability of women “to control their reproductive lives.” Our Constitution allows women to make choices about sexuality and reproduction: whether to have sex and with whom; whether to get married and to whom; whether to use birth control, in or out of marriage; and whether to carry the fetus to term or terminate it. State interference with this deeply sensitive decisions would rob women of the personal autonomy shielded by the Constitution. It would strip them of decision-making powers and place that authority in the hands of the state.

In 1992, a law much like Humphrey’s bill made Justice Sandra Day O’Connor recognize this fact in the Supreme Court’s Planned Parenthood v. Casey decision. Pennsylvania had passed a spate of abortion restrictions, including a spousal “notification” law. Although the court had already ruled that spousal consent laws are invalid, Pennsylvania argued, it had not proscribed the state from demanding that women tell their spouse before they have an abortion. (In practice, these laws do the same thing: Many women who seek abortions are victims of spousal abuse, and fear that notifying their husband would result in violence—and if they cannot notify their spouse, they cannot terminate their pregnancy.)

Before this case, O’Connor looked poised to overturn Roe v. Wade. But as Jeffrey Toobin has reported, the justice found Pennsylvania’s spousal notification statute so offensive that she felt obliged to invalidate it and, in the process, affirm Roe. O’Connor finally recognized that abortion restrictions strike at the heart of individual liberty, seizing power from women and placing it in the hands of not only the state, but also, in the case of Pennsylvania, a woman’s husband.

Humphrey’s bill, of course, does the same thing. And it does so with perverse gusto, trumpeting its intention to let the father of the fetus veto an abortion. (His bill, unlike the Pennsylvania statute, applies to all fathers, not just spouses.) His vile assertion that a pregnant woman is merely a “host” for a fetus neatly proves that he thinks of these women not as human beings with personal agency, but as mere carriers for babies. That kind of logic is noxious to the Due Process Clause conception of liberty. It would mean that women surrender their autonomy when they become pregnant, a breach of reproductive autonomy barred by the Constitution.

There is one unnerving postscript to all of this. Before Planned Parenthood v. Casey reached the Supreme Court, a circuit court judge insisted that spousal notification laws were constitutional. That was Judge Samuel Alito, and he now sits on the Supreme Court. Humphrey’s bill has been tabled for the time being, likely because most legislators recognize its unconstitutionality. But there are only five justices on the current court eager to uphold Roe. If one of those justices steps down during Donald Trump’s presidency, he or she will likely be replaced by an anti-Roe conservative. And if that happens, now-Justice Samuel Alito may be able to turn his retrograde views on spousal notification statutes into the law of the land.