Pt. 1 - Another liberal, feminazi lover chims in on Roe v Wade for Men..

http://writ.news.findlaw.com/grossman/20060322.html


"Roe v. Wade for Men"? A Men's Rights Group Makes A Farfetched Claim for
Avoidance of Child Support
By JOANNA GROSSMAN

----

Wednesday, Mar. 22, 2006

In a recent, controversial lawsuit, Matt Dubay, a 25-year-old computer
programmer, challenges a court order directing him to pay $500 per month in
child support.
Dubay alleges that when he engaged in sexual relations with his girlfriend,
he was relying on her assurances that, due to a medical condition, she was
unable to get pregnant, and that, in any case, she was using some form of
contraception to be absolutely safe. He also alleged that he clearly
informed her that he was not interested in becoming a parent at that point
in time.

However, just three months into their relationship, she conceived a
daughter - to whom she ultimately gave birth. Dubay now would like to
disclaim any paternal responsibility toward the child - and asks the court
to strike down the child support order as unconstitutional.
This order, Dubay's suit claims, violates his reproductive rights. The
argument was crafted by the National Center for Men (NCM), a nonprofit group
with the stated mission to "educat[e] the public about how men are hurt by
sex discrimination."

While Dubay's suit has gotten an unusual amount of press, his allegations
are not unusual. Indeed, lawsuits based on exactly parallel facts have been
pursued in a host of jurisdictions, using a variety of legal theories.
Across the board, they have failed. For the reasons explained below, Dubay's
suit will likely fail too.

Using the Constitution to Avoid Child Support? A Losing Pursuit

When the Saginaw County, Michigan prosecutor ordered him to pay child
support, Dubay alleges, it violated the Equal Protection Clause of the
Fourteenth Amendment of the U.S. Constitution by treating him differently
because he is a man.

Under Roe v. Wade, women have the ability to avoid procreation by making the
decision to abort. Under state law, they also have a greater ability in many
cases to control the decision whether a child is put up for adoption because
states require unwed fathers to jump through technical hoops - hoops they
often are not aware of -- in order to have a say in the decision. Men, Dubay
thus complains, have substantially less opportunity to decline parenthood
once conception occurs. For the legal situation to be equal, men must be
afforded equal, or at least comparable, opportunity to avoid or decline
fatherhood after the fact, just as women can avoid or decline motherhood.

In a separate column yesterday, Sherry Colb discussed men's and women's
relative rights to escape parental responsibility by giving a child up for
adoption. Here, I will discuss the constitutional Equal Protection doctrine
that governs the claim Dubay did make, as well as the fraud claim he might
have made (but didn't).

The "Similarly Situated" Requirement: Deeming Pregnant Women Unique

The Equal Protection Clause embodies a commitment to formal equality: It
mandates that likes be treated alike. It thus only guarantees that men and
women be treated the same to the extent they are "similarly situated."

This limitation has operated in many respects as an obstacle to women's
quest for equality. For example, the Equal Protection Clause does not
protect against pregnancy discrimination. In Geduldig v. Aiello, the Supreme
Court held that classification based on pregnancy is not a classification
based on sex, even though only women get pregnant. And since "pregnant
persons" are not similarly situated to "non-pregnant persons," the Court
reasoned, there is no constitutional guarantee that the groups be treated
alike.

To some extent, federal and state laws equating pregnancy and sex
discrimination, and prohibiting both, negate the practical effect of this
holding. Governments can - but need not - go beyond what the Constitution
requires, and here, they have. Thus, most employers are forbidden to
discriminate on the basis of pregnancy, but the ban is a product of enacted
statutes rather than constitutional guarantees.

As a matter of pure constitutional doctrine, pregnancy is a unique condition
and pregnant women are a unique group - they cannot make claims to equal
treatment vis-à-vis any other group. While this analytical anomaly usually
operates to disadvantage pregnant women - a frequent target of
discriminatory treatment -- here it works against a man like Dubay.

How the Requirement Applies At Different Stages of Potential and Actual
Parenthood

Before conception, men and women are arguably "similarly situated" with
respect to potential procreation. Both have the ability to abstain from
sexual contact that might result in pregnancy. Both also have the right,
under the Supreme Court's privacy jurisprudence, to make use of available
contraceptives to avoid pregnancy.

But that is where the similarity ends.

After a child is conceived, the mother and father are no longer similarly
situated. The woman carries and gives birth to the child, while the man has
no continuing role in procreation. The woman's unique, physical role in this
process is constitutionally significant, and she thus has control over
whether to continue with or terminate the pregnancy, as long as she
exercises her decision within valid limits set by state law. (If those
limits impose an "undue burden" on her exercise of her rights, however, they
will be invalidated.)

Once the child is born, the similarities between mother and father
re-emerge. Mothers and fathers are, in theory, equally liable to support the
child, with the liability adjusted based on their means and the child's
needs. Married mothers and fathers have essentially identical parental
rights, and those rights, which include the right to the care, control, and
custody of the child, are fundamental and thus cannot be abrogated by the
state without a compelling reason.

Unwed fathers do not automatically have parental rights, but instead must
follow statutory procedures to earn them. Although those procedures vary
from state to state, most are derived from a line of Supreme Court cases in
the 1970s and 1980s that outlined the constitutional minimum for the rights
of unwed fathers. In most states, an unwed father can gain parental rights -
and thus the ability to argue for custody and visitation or to veto an
adoption - if he has admitted paternity, openly behaved as a father to a
child, or lived with or subsequently married the child's mother. He may also
file with the state's "putative father" registry in case the mother never
informs him about her pregnancy or the child's birth. A father will also
have legal rights (and concomitant obligations) if his paternity has been
adjudicated or if the mother has listed him on the birth certificate or
otherwise identified him as the father. If any of these requirements have
been satisfied, an unwed father has rights similar to those of unwed
mothers.

Let's return to Dubay's claim. Taken together, the constitutional guarantees
and statutory rules mean that Dubay's claim must fail. Before the child was
conceived, Dubay and his girlfriend both had - but did not exercise - the
same right to avoid procreative behavior. During the period he and the
child's mother were not similarly situated - while she was pregnant - they
did not have the same rights and the constitution does not say that they
must.

Now, they are similarly situated - they are both the biological parents of a
child in need of support - and accordingly, they have the same rights and
obligations. The fact that he does not want to be a father is
constitutionally irrelevant. (For all we know, his ex-girlfriend does not
want to be a mother - but may have become one because she does not believe
in abortion.)

As the highest court in New York held in a similar case, Pamela P. v. Frank
S., "[the father's] constitutional entitlement to avoid procreation does not
encompass a right to avoid a child support obligation simply because another
person has not fully respected his desires in this regard. However unfairly
[the father] may have been treated by [the mother's] failure to allow him an
equal voice in the decision to conceive a child, such a wrong does not rise
to the level of a constitutional violation."

Suing for Fraud? Not Alleged Here, but Also a Losing Pursuit

Dubay does have another option, though - but one that has been generally
unsuccessful in these kinds of cases. He has not yet done so, but in theory,
he could sue the mother of his child for fraud - legally defined as an
intentional, knowing misrepresentation, reliance upon which causes another
person injury. Here, the "injury" would be Dubay's having to pay child
support.

If Dubay won this claim, the child support order would still remain intact.
But even though he'd have to comply with it, he might be able to use the
money damages from the fraud claim to do so, at least for a while.

Even if a court were willing to apply conventional tort principles here -
treating this kind of "fraud" as it would a fraud in the business context -
the mother might still have strong defenses.

Was her misrepresentation really intentional and knowing? Or did she make an
honest mistake - believing a doctor's mistaken pronouncement of her
infertility, or forgetting she'd forgotten to take the pill that day?

And what, exactly, is the injury here? It is not clear why the birth of a
normal, healthy child is "injurious" in the way that other torts are.
(Courts have, by contrast, permitted recovery for intentional
misrepresentations about sterility, birth control, or sexual health where
the misled party contracts a sexually transmitted disease, or suffers an
ectopic pregnancy that requires surgical intervention. There, the injuries
are obvious.)

Finally, even if the rights facts were alleged and proven, courts have been
unwilling to apply conventional tort principles to this type of case. A
"purely legalistic" approach, in the words of one court, would be
inappropriate for a case involving such private conduct and interaction
between two adults. (A California court suggested that the inquiry into the
facts by a court would itself violate the parties' constitutional right to
privacy and control over reproductive decisionmaking.)

Under state child support laws, monetary obligations to children are
determined based solely on parental income and children's needs, without
regard to any parental misconduct and without consideration of the parents'
relative desire to become parents. Courts have thus refused to apply tort or
contract principles in a way that negates or undermines those calculations.

Regardless of the Theory, Public Policy Dictates Against Permitting Lawsuits
Based on Unplanned Pregnancies

Whether the claim is rooted in the Constitution or in tort principles, there
are myriad public policy considerations, most of which weigh against
recognition of a claim for unplanned pregnancies.

First and foremost, the welfare of children is paramount. Children have
obvious needs, and the best way to satisfy them is to impose support
obligations on both parents. The "better them than us" argument - a
reference to the state's (and taxpayers') role in providing assistance to
needy families - is persuasive to courts, and leads them to find parental
obligations of support to be virtually absolute.

Second, the private nature of the conduct involved in these cases makes
judicial intervention of any kind undesirable. The Due Process Clause of the
Constitution protects individuals against unwarranted intrusions into
decisions about consensual sexual relationships and procreation. Recognizing
a claim under either an equal protection or fraud theory might independently
contravene those rights by giving courts license to intrude into parties'
reproductive behavior and decisionmaking.

Third, the subjective nature of the inquiry here makes it unlikely that
courts would uncover the "truth" in most cases. This is a classic "he said,
she said" situation: In most cases there will be no witnesses or other
tangible evidence to prove whether a misrepresentation was made or, if it
was, whether the other party relied on it when engaging in sexual conduct.
Would Dubay really have abstained from sex with his girlfriend if he had
known pregnancy was a possibility? It will be hard for a court to answer
that question with any confidence in its finding.

Regret is a powerful force, and many people facing an unplanned pregnancy
(or birth) experience it. That regret might be an inducement to lie about
what was said and done prior to conception - especially if doing so enabled
an unwilling father to avoid nearly two decades of child support payments.
No wonder, then, that most states have abolished so-called "heart balm
actions" such as wrongful seduction, or breach of promise to marry, out of
fear of false claims - claims by women non-marital sex was either
accompanied by a promise of marriage or procured by deception.

Finally, one might consider that the recognition of these claims would give
an incentive for abortion in some cases. More women might terminate
pregnancies if they know they will bear sole financial responsibility for
the resulting child. While it is important that women have the right to
terminate a pregnancy, unnecessary economic hardship due to the father's
abdication of his obligations should not push them to make that decision.

The author would like to thank her colleagues at Hofstra Law School who, in
a lively e-mail exchange, both piqued her interest in the case and pointed
her to some of the most relevant sources to analyze it.

Quote: "Married mothers and fathers have essentially identical parental
rights, and those rights, which include the right to the care, control,
and custody of the child, are fundamental and thus cannot be abrogated
by the state without a compelling reason."

Quote: "Children have obvious needs, and the best way to satisfy them
is to impose support obligations on both parents."

It's interesting how the author ignores the obvious with these two
quotes: custody. She all but spills her guts that the child has needs
from both parents, yet says nothing in regards to blatant disregard of
CP's when it comes to fulfilling custody. What about all those
divorced fathers who have "the right to the care, control, and custody
of the child" who has "obvious needs", but are shunned by the CP's AND
THE COURTS when they go to exercise their rights?

Care to comment Ms. Grossman? Or are you just focusing on the monetary
issues of this particular case (as most feminists do)?

On Thu, 23 Mar 2006 19:00:45 -0500, "Dusty" wrote:

http://writ.news.findlaw.com/grossman/20060322.html



SNIP
Finally, one might consider that the recognition of these claims would give
an incentive for abortion in some cases. More women might terminate
pregnancies if they know they will bear sole financial responsibility for
the resulting child. While it is important that women have the right to
terminate a pregnancy, unnecessary economic hardship due to the father's
abdication of his obligations should not push them to make that decision.


Ohhhhhhhhhhhhh! So as long as women know that the courts will attach
them like leaches to the supposed fathers wallet, then they can simply
chose to ignor the consequences of their actions and have the child -
in the process sticking it to the sperm donar.

I think the real fear is that such women might actually have to face
the full consequences of their actions without the assistance of a
man! How ironic. So femminists don't need men - what they need are
men's wallets.

How typical.

Econimic hardship is a reality for men, many of whom are impoverished
by the state at the hands of women. SO why not put that square into
the womans lap???? What is wrong with a woman considering the weight
of bearing the entire financial responsibility??? It is a realistic
and pragmatic consideration, one that should not be taken lightly. So
what if there are more abortins as a result? You want women to bring a
child into the world that they cannot aford to raise? How responsible
is that?

If it were true as femminists claim that women don't need men, then
there should be no problem holding a woman accountable for her actions
100%. But the truth is, women do need men - contrary to femminist
doctrine. And so we see laws designed to steel from men "in the best
interests of the state - um, I mean woman, ur, ahh the child".

You want child support, OK. Then the law should be plain. If a man is
granted visitation while a woman has custody, then the woman should be
put in jail for screwing with a man's court ordered access. You cant
have it both ways. You want the money, provide access as you have been
ordered to do or (finally) face some consequences for your actions.

[....snip.........]

I think the real fear is that such women might actually have to face
the full consequences of their actions without the assistance of a
man! How ironic. So femminists don't need men - what they need are
men's wallets.


To an outsider, after reading this group for sometime, it seems that the
system is essentially built this way

Version 1 - Men have more rights, Men also have FULL responsibility.
Women are expected to be 3 steps behind the husband. Most marriages are
rock solid and continue on "..till death .."

Version 2 - Feminists and every other liberal comes in and says women
need equal rights.... but they haven't got there yet. STILL men have
FULL responsibility. Women have little or no responsibility.

Version 3 - PROTECTION OF THE OH ! SO DESTITUTE WOMEN starts. Women have
almost equal rights. STILL men have ALMOST FULL responsibility. Women
have some responsibility, but much less than equal.

Version 4 - PROTECTION OF THE OH ! SO DESTITUTE WOMEN is in full swing.
Women get more than equal rights on right to residence, custody etc.
etc. MEN are left with MUCH MORE than equal responsibility, especially
most of the monetary burden is still on them

........ and it goes on

I think this is because, men are taught from child hood that they are
strong and as decent human beings most are also taught that they *have*
*to protect the weak*

*Women are taught they are weak*

The results are there to see


Regards
Vinayak



How typical.

Econimic hardship is a reality for men, many of whom are impoverished
by the state at the hands of women. SO why not put that square into
the womans lap???? What is wrong with a woman considering the weight
of bearing the entire financial responsibility??? It is a realistic
and pragmatic consideration, one that should not be taken lightly. So
what if there are more abortins as a result? You want women to bring a
child into the world that they cannot aford to raise? How responsible
is that?

If it were true as femminists claim that women don't need men, then
there should be no problem holding a woman accountable for her actions
100%. But the truth is, women do need men - contrary to femminist
doctrine. And so we see laws designed to steel from men "in the best
interests of the state - um, I mean woman, ur, ahh the child".

You want child support, OK. Then the law should be plain. If a man is
granted visitation while a woman has custody, then the woman should be
put in jail for screwing with a man's court ordered access. You cant
have it both ways. You want the money, provide access as you have been
ordered to do or (finally) face some consequences for your actions.

"Vinayak" wrote in message
...

[....snip.........]
[snip]

To an outsider, after reading this group for sometime, it seems that the
system is essentially built this way

Version 1 - Men have more rights, Men also have FULL responsibility.
Women are expected to be 3 steps behind the husband. Most marriages are
rock solid and continue on "..till death .."

Version 2 - Feminists and every other liberal comes in and says women
need equal rights.... but they haven't got there yet. STILL men have
FULL responsibility. Women have little or no responsibility.

Version 3 - PROTECTION OF THE OH ! SO DESTITUTE WOMEN starts. Women have
almost equal rights. STILL men have ALMOST FULL responsibility. Women
have some responsibility, but much less than equal.

Version 4 - PROTECTION OF THE OH ! SO DESTITUTE WOMEN is in full swing.
Women get more than equal rights on right to residence, custody etc.
etc. MEN are left with MUCH MORE than equal responsibility, especially
most of the monetary burden is still on them

....... and it goes on

I think this is because, men are taught from child hood that they are
strong and as decent human beings most are also taught that they *have*
*to protect the weak*

*Women are taught they are weak*

The results are there to see


Regards
Vinayak


It took me a minute to see what you were saying but I finally got it.
You are simply giving a history of America over the past 200 years.
And you are accurate.
[snip]