Supreme Court watchers are speculating on whether Obama’s nomination of Elena Kagan to replace Justice John Paul Stevens will affect the Court’s position on a man’s reproductive rights, as articulated in Richard Everwood v. Jane Does 1 through 3, 413 U.S. 110 (2006), a case that has received surprisingly little attention to date.
The lower court case in Everwood was filed in Massachusetts shortly after the landmark decision in Goodridge, et al. v. Department of Public Health, 440 Mass. 309 (2003). The Goodridge court held that a person has a constitutional right to marry the person of their choice, and that, in light of that right, the state cannot prohibit same-sex marriage. Everwood brought a declaratory relief action in the Massachusetts Superior Court seeking a declaration that his right to choose extended beyond marriage and into the entire realm of reproductive behavior. The action was summarily dismissed; the dismissal was summarily affirmed by the Massachusetts Supreme Judicial Court.
The Supreme Court of the United States saw things differently. In a 5-4 decision, the Court held that a man’s right to choose does extend beyond choice of a marriage partner. It cited the substantial common-law history, typified in the right of primae noctis. The court found nothing in the original intent of the framers that would diminish a man’s right to choose. Since Thomas Jefferson himself was known to frequently avail himself of the right, it could hardly be claimed that the intention of the framers was to abrogate that right. Well into the 20th century the right was safeguarded, particularly in the South, and juries repeatedly nullified efforts to restrict the right.
The attorney for the three girls argued that more recent jurisprudence, most significantly the Equal Rights Amendment, had completely abrogated a man’s right to choose. A majority of the court rejected the anti-choice position. It held that the rights of the female varied across three distinct phases, based upon the female’s viability, that is, its ability to survive outside a parental household.
During the first phase, when the female is not viable, the state cannot restrict a man’s clear liberty interest in procreation. During the second phase, when the female is less dependent for support upon outside sources, the State may legitimately place reasonable restrictions on a man’s exercise of his right to choose, such as limiting excessive pain and injury to the female. During the third phase, when the female is fully viable (i.e., married), the state can prohibit exercise of the man’s liberty interest, or can severely restrict it.
Because Everwood had chosen three girls who were orphans and wards of the state, they clearly fell into the first phase, and his exercise of his reproductive rights could not be diminished. However, the high court ruled that Everwood’s right to choose did not guarantee a right to exercise reproductive freedom with all three girls simultaneously, as he had originally intended.
The dissent argued with some force that the concept of viability was not relevant when deciding a matter of human rights. The majority rejected this argument, and found that whatever rights the female had, they must he weighed against a man’s right to choose, guaranteed by the Fourteenth Amendment. It felt that the viability test struck an appropriate balance.
It remains to be seen whether Justice Stevens’ replacement (be it Elena Kagan or someone else) will overturn or solidify the important constitutional principle established in Everwood.
