Over the next months attention will be devoted to divining Judge Alito’s probable position on Roe v. Wade. Will he affirm it or overrule it or chip away at it? No matter what happens to his nomination, states will continue to line up to send the Supreme Court new laws restricting or criminalizing abortion in whole or in part in hopes that the Roberts Court will overturn Roe or at least weaken it more.

We already know where Judge Alito stands on one crucial issue—that of allowing a state to require a married woman to inform her husband before she has an abortion. The Judge voted in 1991 to uphold a Pennsylvania law to that effect. Pennsylvania justified the law as strengthening marriage and as promoting the husband’s interest in the unborn child. The Supreme Court disagreed with Judge Alito, but only by a 5-4 vote. See my previous post on this.

Judge Alito is right in line with American public opinion on this issue. The Gallup Poll of January 2003 asked: Do you favor or oppose a law requiring that the husband of a married woman be notified if she decides to have an abortion?

The results:

Favor—72%
Oppose—26%
DK—2%

In fact, 95% of wives tell their husbands of an impending abortion. 5% do not, fearing the repercussions.

Recently, the government reported a record number of babies were born to unmarried woman—1,470,152 to be exact. Almost 1.5 million. This represents 35.7% of all births. Teens accounted for just 24% of the births. The rest were women over age 20.

So what is a young woman to do if the Pennsylvania husband notification law becomes a national standard? She has to figure out childbearing on her own these days. 65% do it with their husbands, and they figure out the timing of having children, taking into account their own station and position in life, as well as that of their husbands. Sometimes husbands and wives disagree—sometimes they aren’t getting on, sometimes there are money problems—the list is endless. So sometimes a woman decides it is not the right time to have a child. The husband may or may not agree. She may not know what he will say or may know all to well. She may fear the results of telling him.

So, if a state passes a law like Pennsylvania did requiring her to tell her husband, then what? What does this mean for marriage?

I suspect that for many women, it is another reason not to marry. Why not have the children you want, live with the man if it suits you and not be bothered with the forced communication that the state legislature is requiring husbands and wives to go through because of the marriage certificate. This seems at first blush like a rather thin reason not to get married. But reproduction is the most serious thing a young woman is ever going to do. So serious that she knows she has to do it right, and not accidentally and at the most propitious time. Sometimes a marriage certificate and laws requiring forced marital communication will get in her way. How many women will be deterred from marriage? I have no idea, but I think for some this might be another straw that may break the marriage back.

So, America has a choice: more marriage or less. What is more important: forcing marital communication for the 5% of wives who don’t want to tell their husbands or promoting marriage in the first place?

In May 2005, the Gallup Poll asked about the moral acceptability of having a baby outside of marriage. 54% said it was morally acceptable and 43% said it was morally unacceptable. So what is the 72% of the public who favor husband notification to do? About 60% of them think unwed parenthood is wrong and that is what their position of husband notification may lead to.

And what of men? Many men (like women) like the forced notification law. It gives them power over reproduction, which, after the women is pregnant, they lack. This may be an incentive for them to marry more.

But why have a law that exacerbates the battle of the sexes over reproduction? Why don’t we have public policies that promote cooperation in childbearing, where women and men can come to a joint decision about the right circumstances to bring a child into the world. Communication is essential, but not forced, and dangerous, communication. Wouldn’t it be better to have public policies promoting childbearing, including better prenatal care, parental leave, and pediatric care? Some European countries are paying bonuses to parents when children are born.

Legislators should begin to think about the consequences of their laws. All laws have unintended consequences. Forced communication over abortion may deter marriage. If they are determined to strengthen marriage, how about bonuses for married couples having children that are larger than for unmarried women having children (of course unmarried women need the bonus more, but that’s another policy decision). These are the types of questions that should be asked of our policy makers and our prospective judges.