Doe v. Doe
314 N.E.2d 128, 62 A.L.R. 3d 1082, 365 Mass. 556 (1974)
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Rule of Law:
A husband does not have an enforceable constitutional or common law right to prevent his wife from obtaining an abortion, at least where the fetus is not yet viable, as the wife's right to privacy in making that decision is paramount.
Facts:
- The husband and wife married on April 17, 1973.
- The wife had a child from a previous relationship prior to the marriage.
- Around November 12, 1973, the wife became pregnant by her husband, a pregnancy that both initially wanted.
- The couple separated in late January 1974.
- In early February 1974, the husband told the wife he did not want to support the child and did not want his name on the birth certificate.
- Following the husband's statements, the wife decided she wished to terminate the pregnancy.
- The husband then objected to the abortion, stating he was willing to support the child and assume full custody after its birth.
- At the time of the dispute, the wife was approximately 18 weeks pregnant and the fetus was not viable.
Procedural Posture:
- The husband filed a bill in the county court seeking declaratory and injunctive relief against his wife and her physician to prevent a planned abortion.
- A single justice of the Supreme Judicial Court ordered the appointment of a guardian ad litem for the unborn child.
- After a hearing, the single justice granted the husband's request for a temporary restraining order, prohibiting the wife and physician from proceeding with the abortion.
- The single justice then reserved and reported the case to the full court for a final decision.
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Issue:
Does a husband have an enforceable right to prevent his estranged wife from obtaining an abortion of a non-viable fetus?
Opinions:
Majority - Braucher, J.
No. A husband does not have an enforceable right to prevent his wife from obtaining an abortion of a non-viable fetus. The court found no constitutional, statutory, or common law basis for the husband's claim. Citing Roe v. Wade, the court reasoned that the right of privacy is broad enough to encompass a woman's decision to terminate her pregnancy. Constitutional privacy rights act as a shield against government action, not as a sword for one private citizen to use against another with state assistance. If the state itself cannot interfere with the abortion decision before viability, it cannot grant the husband an authority it does not possess. The court declined to create a new common law right, viewing the matter as a delicate and intimate issue within the marital relationship that courts should not attempt to enforce.
Dissenting - Hennessey, J.
Yes, the husband has a fundamental right, though it should not be enforced through an injunction. This dissent concurs that an injunction is inappropriate because enforcing it, potentially by incarcerating the wife, would be untenable. However, it strongly disagrees with the majority's finding that the husband has no legal rights. The dissent argues that a father's rights are familial, antedate the Constitution, and are fundamental. It asserts that Roe v. Wade is not controlling as it explicitly reserved the question of a father's rights. In this specific case, the husband's rights were dominant because the wife's health was not a factor and he was willing to assume all responsibility for the child. The court should have declared the husband's rights and the wife's duty to forbear, even while denying the injunction.
Dissenting - Reardon, J.
Yes. A husband does have an enforceable right to prevent his wife from obtaining an abortion under these circumstances. This dissent argues that the majority misinterprets Roe v. Wade, which protects individuals from state action, not from the competing rights of another private individual like a spouse. The husband, as the father, is not a 'stranger' to the fetus. The dissent posits that a father's interest in his unborn child is a 'natural right' recognized implicitly by the common law in areas like inheritance. The court's duty is to balance the competing interests of the husband and wife. On these facts, the balance favors the husband, as his loss would be 'unmistakably palpably permanent,' while the wife's burden was largely temporary, especially since the husband offered to assume all parental responsibility at birth. Therefore, the injunction should have been granted.
Analysis:
This decision solidifies the application of Roe v. Wade's privacy principles to spousal disputes, establishing that a pregnant woman's autonomy over her body outweighs her husband's interest in the potential life of a non-viable fetus. It effectively denies a husband a legal 'veto' over his wife's abortion decision, framing it as a matter of individual privacy rather than a joint marital right. This precedent significantly curtails the legal avenues for a father to prevent an abortion and suggests that legislative attempts to impose spousal consent requirements would face serious constitutional challenges.
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