Experienced NJ Family Lawyers Discuss Consent, Communication, and Abortion Choices in Complex Marital Dynamics
What if you found out you were pregnant, with conflicted feelings and unsure what to do? Are you required to tell your husband about your pregnancy termination decision, and can he stop you from getting an abortion in New Jersey? Though legally straightforward in some ways, the issue is complex and raises some deeply personal beliefs, rights, and freedoms for both spouses.
The Legal Odyssey of Abortion in the Eyes of the Law
The right to an abortion arose from the Supreme Court decision in Roe vs. Wade. This 1973 case established a woman’s fundamental right to privacy in making healthcare decisions, including abortion. A woman’s right to privacy allows her to make healthcare decisions for herself, but the right is not without exceptions.
The U.S. Supreme Court in Roe acknowledged a state’s compelling interest in maternal health and the health of a viable fetus (one that could survive outside the mother’s womb). Thus, the Court weighed a woman’s privacy rights against the state’s interests by trimester. In the first trimester, a woman has an unfettered right to privacy/abortion, but in the third semester, states may demonstrate a compelling state interest, meaning states can more likely restrict abortions in the third trimester when the fetus is viable to protect the mother’s and fetus’s lives.
After Roe, some states’ laws restricted abortion access with waiting periods and consent restrictions. Laws requiring parental consent before a minor could get an abortion or the biological father’s permission before a woman could get an abortion were challenged in Court. In Planned Parenthood v. Casey, the Supreme Court ruled that such veto power over a woman’s abortion decision is unconstitutional when it comes from her husband or the child’s biological father.
Subsequent Supreme Court decisions weighed whether state laws placed an undue burden on women’s rights to abortion, including waiting periods and consent laws, until the Dobbs v. Jackson Women’s Health decision. The U.S. Supreme Court in Dobbs ruled that there is no constitutional right to an abortion, and it is up to each state to legislate abortion rights and restrictions.
Spousal Consent in the Abortion Rights Framework: No Spousal Veto in NJ Abortion Decisions
New Jersey does not require spousal consent for an abortion. According to Supreme Court rulings to date, spousal consent requirements for an abortion are unconstitutional, even after the Dobbs case. After Roe, the Supreme Court ruled in Planned Parenthood of Central Missouri v. Danforth (1976) that a Missouri abortion law requiring spousal consent for married women and parental consent for minors was unconstitutional. The ruling expanded access to abortion care in the United States.
Later, the Supreme Court’s ruling in Planned Parenthood v. Casey set forth a standard that differed from the Roe Court’s. Instead of measuring state regulations against the trimester and fetal viability standard, the Casey case introduced the “undue burden” standard. State laws that place an undue burden on a woman’s right to an abortion are unconstitutional. In the 1992 Casey case, Planned Parenthood challenged Pennsylvania’s abortion law requiring a woman’s informed consent to the abortion and a waiting period prior to an abortion. The Supreme Court ruled that all of Pennsylvania’s legal requirements were constitutional except spousal notification, which placed an undue burden or obstacle to a woman’s abortion rights before fetal viability.
The Court reasoned that spousal notification could dissuade women married to abusive, domineering, mentally ill, and religiously convicted spouses who would object to the abortion. While Dobbs eliminated the constitutional right to an abortion, the Court did not rule on spousal consent, so state laws that require spousal consent are still unconstitutional.
When Emotions and Abortion Rights Collide in Family Decisions
Nevertheless, amid the various cases, analyzing state laws is the underlying consideration of marital relationships and the influence a husband may have on the abortion decision. Abortion is a sensitive and highly emotionally charged subject. It taps into the deepest emotions and values about the burdens of bearing children and control over one’s family decisions.
Husbands who feel strongly about abortion, children of the marriage, and control in the relationship may attempt to sway their wives who are contemplating abortion. Fearing violence or relationship damage, even loss, some women may feel pressured to conform to their husband’s wishes. However, a husband cannot legally stop his wife from having an abortion. Currently, most states require parental consent, parental notification, or parental participation regarding abortions for minors.
The Intersection of Abortion Decisions and Family Stability
No doubt, abortion remains a controversial subject and a source of deep contention in the nation and in individual households. Disagreements about abortion can cause a deep rift in a marriage, even leading to divorce when one spouse feels strongly about getting the abortion and the other feels equally convicted against it. A severe conflict over abortion can deepen already troubled marriages with too little communication, differing religious views, and power disparities. Legally, an abortion should have no bearing on the outcome of a divorce but may be the reason for the divorce.
In child custody disputes, one party may assert the other’s failure to cooperate and communicate, as evidenced by a secret or opposed abortion, to reduce or limit their parenting share. However, child custody decisions consider the best interests of the parties’ children, which probably does not include past abortion decisions. An unconsented-to abortion may raise violence or the threat of violence in a marriage with a domestic violence history. A woman may fear for her safety concerning her decision to have an abortion. Fortunately, resources are available to help a woman facing reproductive coercion. National and local domestic violence hotlines can help a woman find protection and legal assistance, including restraining orders. Plus, knowledgeable domestic violence attorneys such as those on our team can make the process seamless and lessen the burden on a woman in fear for her safety.
Finding Common Ground in Marriage Amidst Abortion Challenges
Regardless of objections and coercion, a husband cannot legally prevent his wife from getting an abortion. Nevertheless, couples who passionately disagree about an abortion decision are more likely to overcome an impasse with honest and open communication about their feelings, reasons, and values. A couple earnest in resolving a potential marriage-threatening conflict might attend marital counseling, so long as both are willing.
Speak with our Family Law Team to Assert Your Rights and Assess Your Options in Spousal Abortion Disputes in Monmouth and Ocean County, NJ
Knowing the law on reproductive rights and responsibilities regarding abortion decisions in New Jersey may help one or both spouses understand the issues and their options. A husband may learn to live with the decision and reconcile his feelings when he understands he cannot legally stop a pregnancy termination and the consequences of reproductive coercion or domestic violence. On the other hand, a pregnant spouse may understand that her legal right to make decisions about ending the pregnancy does not depend on her husband’s consent, nor must she submit to illegal coercion. Victims of domestic violence can request protection through the family court in the form of a restraining order if appropriate.
Furthermore, when disagreements over abortion decisions lead to divorce, an experienced family law attorney’s advice, counsel, and representation can help negotiate a problematic life challenge for both spouses. At Bronzino Law Firm, we take care of your rights and your feelings seriously in Point Pleasant, Sea Bright, Seaside, Colts Neck, Eatontown, Long Branch, Wall, Brick, Toms River, Freehold, and communities in Ocean and Monmouth County, New Jersey. Our family lawyers are committed to helping you pursue any of the legal avenues that may be available and applicable to your unique family law case. Contact us at (732) 812-3102 to speak with a member of our team today.