For the second time in five months, a Maryland man has gone to court to stop his wife from obtaining an abortion. In both cases, Washington County Circuit Court Judge Daniel Moylan has temporarily prohibited a wife from doing something that the Supreme Court of the United States has said she has the right to do. The judge, in an interview in October with this newspaper, made it eminently clear that he's not about to let the Supreme Court stand in the way of his personal beliefs.
He gave as his reasons for stopping the first abortion Maryland's equal rights amendment, the common law and "my personal belief that the husband's and father's consent is needed to terminate a pregnancy."
The woman involved in the first abortion case obtained the abortion after a higher court overruled Moylan's order. But the attorney representing the husband persevered and the case ended up in the Maryland Court of Appeals, which refused by a 4-to-3 vote on Monday to decide it, saying the case was moot since the woman had obtained an abortion.
Within the week the same lawyer was in front of the same judge with yet another husband trying to prevent his wife--from whom he is separated--from having an abortion. It seems clear that antiabortion forces in Maryland are going to pursue this line of attack until the appeals court reaffirms some basic principles that are at stake here.
There can be no question that a man has a legitimate stake in what happens to a pregnancy he has caused, and there can be no question that it would be far, far better for both potential father and potential mother to reach accord about what to do. But it is also very clear that marital discord, perhaps even over this very subject, will keep this from happening on occasions.
As far back as 1976, the Supreme Court addressed precisely the situation being raised in Maryland. That action came in a case known as Planned Parenthood of Central Missouri vs. Danforth, which involved a state statute requiring spousal consent to an abortion. The court overturned the law in language that could not be more clear: "The obvious fact is that when husband and wife disagree on this decision, the view of only one of the marriage partners can prevail. Inasmuch as it is the woman who physically bears the child and who is more directly and immediately affected by the pregnancy, as between the two, the balance weighs in her favor."
Judith Avner, a staff attorney with the National Organization for Women's Legal Defense and Education Fund, has been monitoring the impact of state ERAs on state laws. Her organization filed a brief siding with the wife in the first case, who was represented by the American Civil Liberties Union. "It was our position that Danforth settled the issue, and based on Danforth the trial court judge was wrong," she said.
"The trial court took what the judge saw as an inequity, for her to decide and him not to decide, and what he did was to flip it on its head and say he the husband had the right and she [the wife] did not. That creates another inequity and that's not what the ERA is about. That interpretation takes away from certain individuals in a marriage certain rights."
Antiabortion organizations have shown no end of resourcefulness in finding ways to limit the availability of abortions. An Akron, Ohio, ordinance, for example, that is now before the U.S. Supreme Court, requires physicians to inform the pregnant woman that life begins at conception--a contention that is widely disputed--and to describe in devastating detail the condition and appearance of the fetus. The ordinance requires, in other words, that a woman already burdened by a wrenching decision undergo further psychological torture before she can terminate a pregnancy.
The decision to abort is not one that women take lightly. It is not a decision many women even favor, but it is one that the overwhelming majority of Americans believe should be made by the individual. Just last week, the League of Women Voters, for the first time, announced that 92 percent of its chapters favored the woman's right to choose an abortion.
In Maryland, a judge is prohibiting women from doing that even after that right has been clearly affirmed by the Supreme Court. Given the situation, it is incumbent on the Maryland Appeals Court to step in to protect women from judges who are taking the law into their own hands.