In 1990, in my early 20s, I worked for six months in a women's health clinic in Brookline, Massachusetts. Several years later, an active shooter entered those same offices and killed two women who worked the same job that I did, admitting patients. They too were in their early 20s. In 1990, if a woman was fewer than eight weeks along in her pregnancy, we had her reschedule her appointment to when she was eight to ten weeks into it, for medical reasons. Perhaps now, 30 years later, it is not medically inadvisable to terminate a pregnancy at six weeks. But in 1990, a woman wasn't even eligible to have the procedure before she was in her eighth week.
Pregnancy is a big, big, big, big deal.
In week 23 of my pregnancy I was hospitalized with contractions from preterm labor. Two days later, I was back in the hospital for a week, hooked up to an IV drip for magnesium that put a halt to my contractions, but made me sick and weak. It would be hard to overstate how sick I was on that magnesium drip. Afterwards, I couldn't go back to work. I couldn't go home to my house. I had to stay at my mother's house so she could look after me while I incubated in bed for another 10 weeks.
As difficult as that was, I did not have maternal sepsis, like my friend A. whose life hung in the balance when she was pregnant with twins. Nor did my water break early, as it did for another woman in the antepartum ward when I was there who spent at least ten weeks upside-down in a hospital bed in a heroic effort to safeguard her pregnancy. I was not as badly off as Amy Schumer, who was acutely sick throughout her pregnancy, in and out of hospitals for dehydration not dozens, but hundreds of times.
If you talk to women about their experiences being pregnant, you might be surprised by the wide range of stories you will hear. Many love every minute of their pregnancy. Some have to endure magnesium drips, or a total loss of agency, or both. Many experience dangerously high blood pressure and have to stay home and not walk around for a few weeks. For some, the onset of pregnancy brings unexpected diabetes, or a life-threatening immune response to the pregnancy itself.
These are the stories of a few privileged white women who had health insurance, support systems, and financial means. They are not examples of single women without health insurance, or 12, 13, or 14-year-old pregnant children. These examples were not pregnancies brought about by rape or incest.
Birth control fails. All of it. Not all the time, but occasionally. On an ongoing, regular basis, all birth control occasionally fails.
And then there's that oops moment, when you thought or assumed that he put on a condom, but you didn't see him do it, so you couldn't be sure he did, and you didn't mention it or ask because you didn't want to be a wet blanket. Or maybe you didn't want to make him mad. Or maybe he was a forceful about it, so he wouldn't have stopped to put a condom on if you had asked him, (but you like him, so it wasn't rape, right?). Maybe he assumed you were wearing something or taking something, because right after, he said, "You've got something, right? You're on the pill or something?" And then, seeing the blood drain from your face, depending on your relationship, your sense of self-worth, and the kind of guy he is, events unfold.
Pregnancy is hard. Birth control fails. Men get women pregnant.
If, as in the state of Texas, a woman cannot safely, legally, or logistically terminate her pregnancy, then she evidently must bear the full weight of the consequences of being pregnant.
Those consequences include:
1) Being pregnant, and potentially having a miscarriage, carrying a baby to term and having to decide whether to keep it or give it up for adoption.
2) Medical expenses
3) The cost of raising a child: $233,610 (on average in 2021)
4) Lost opportunity costs related to
a. Medical complications related to pregnancy (including but not exclusive to time off from work)
b. For a pregnant child, emotional, mental, educational, and social opportunities, which would translate into career opportunity costs, which would have to be calculated on a case-by-case basis
c. For a college or graduate student, the cost of educational and related career opportunities which may b reduced, or overshadowed by childcare and financial priorities related to parenthood.
This list is situational and elliptical in nature. Suffice it to say, under the best of circumstances, a woman who embraces her pregnancy is at least emotionally prepared to address attendant opportunity costs. A woman or child who does not want to be pregnant and is not prepared to have a baby will nonetheless incur significant opportunity costs. In addition, she will experience her pregnancy and the disadvantages of cumulative lost opportunities as a series of consequences that she is forced to endure by order of the state.
Against her will, a woman or child in Texas who does not want to be pregnant is forced to remain pregnant.
And what about the men? Without their participation, it would be impossible for any woman or child to have an unwanted pregnancy.
What are his consequences?
Does he have to pay a woman $10,000 every time he fails to wear condom? Should he pay $10,000 every time his condom tears, or slips off inside a woman's vagina, and results in an unwanted pregnancy? Or should he simply pay $10,000 each time he puts his penis inside of a woman regardless of whether or not she becomes pregnant because his participation could initiate the start of an unwanted pregnancy?
If a woman has a video of herself and a man having sex, and it is obvious and apparent by the reasonable-person standard that the man did not put on a condom, or that his condom slipped off and became lodged inside her vagina, or that the condom tore and was rendered ineffective, should that be admissible in court as evidence that he should be held liable not only for child support but also for his partner's damages?
What do I mean by damages?
Caveat: I am not a lawyer, nor did I go to law school, but I am a developmental editor of law school books. In that capacity, and through osmosis, I have managed to absorb some basic legal concepts, such as damages and (we'll get to it) negligent torts. I don't know about Texas state law, and I don't know about this, that, and the other, but I do understand the concept of damages, and I do know a negligent tort when I see one.
Damages are what the judge or jury views as the harm done to one person who is suing another person for having caused that harm.
For example, say I fail to shovel the snow on the sidewalk in front of my house. The snow melts and freezes. It's a disaster waiting to happen, right? And then you walk along, slip on the ice, and break your hip!
Now, it wasn't my intention that you should break your hip. However, because I neglected to shovel the snow (or salt the icy) in front of my house, you did fall and break your hip.
A jury would find that my negligence was the cause of your injury.
Okay, so the jury decides in your favor. Then what?
Then the jury (or the judge, depending on the format of the hearing) would determine (in civil court, not criminal court)
a) the extent of your damages, and
b) how much money I should pay to compensate you for the damage I caused.
Your damages include your medical bills, obviously, plus any money lost from your not being able to work while recovering from your injury, plus pain and suffering.
If you're 60 years old, a broken hip could actually set off a series of events that could kill you. In that case, your damages would be different and probably greater than if you were 30 and made a quick recovery.
But if you were a professional athlete, and the broken hip destroyed your entire career? Well then, your damages would be pretty darn high and you'd better hope my insurance could cover it.
Anyway, that's damages.
And that's a negligent tort (my failure to shovel the snow).
Does this remind you of anything?
I mean, sure, the dude wore a condom, but it was the cheap kind, and he knew it, because they had broken before, several times!
A creditable witness could testify in court that he told them, while laughing, that that he had torn that same condom--that same expired box of condoms--on three separate occasions, with three different women, that he could remember.
Is unwanted pregnancy a form of injury?
If an unwanted pregnancy can't occur without a man initiating the process, shouldn't he be at least partially liable for the damages to the woman resulting from the unwanted pregnancy?
I forgot to mention, there are various degrees of liability for damages. If you slip on the sidewalk I didn't shovel, 100%; but if you're trespassing on my property when you slip on the ice in my driveway? You might be awarded 35% of the cost of your medical bills, etc.
Medical bills, lost work, pain and suffering, long-term opportunity costs...
According to the principle of negligent tort law (far more prevalent in law suits than intentional torts cases), it stands to reason that where the state forces women to carry an unwanted pregnancy to term, it ought to force upon the men a significant burden of responsibility for her damages.
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