NetNews Usenet Archive 1992 #27/NN_1992_27.iso/spool/soc/women/19652

Internet Message Format | 1992-11-15 | 5.9 KB

Xref: sparky soc.women:19652 talk.abortion:48054 alt.feminism:4506 soc.men:19352 misc.legal:19984
Newsgroups: soc.women,talk.abortion,alt.feminism,soc.men,misc.legal
Path: sparky!uunet!pmafire!mica.inel.gov!ux1!news.byu.edu!eff!sol.ctr.columbia.edu!usc!sdd.hp.com!nigel.msen.com!heifetz!rotag!kevin
From: [e-mail] (Kevin Darcy)
Subject: Re: Back Again To Father Notification...
Message-ID: <[e-mail]>
Organization: Who, me???
References: <[e-mail]> <[e-mail]> <[e-mail]>
Date: Mon, 16 Nov 1992 00:28:58 GMT
Lines: 112

In article <[e-mail]> [e-mail] (Gordon Fitch) writes:
>gf:
>| >[ child-support obligation as contract is metaphorical ]
>
>[e-mail] (Kevin Darcy) writes:
>| ...
>| There's a lot that's metaphorical and ill-formed and incoherent about
>| or current paternity child-support laws. Re-casting it in a contract or
>| tort framework would be a positive improvement, IMO.
>
>I prefer my contracts explicit where possible; otherwise
>the term "contract" becomes meaningless.  But you may mean
>to do this.  Would you prefer as system where a child, or
>its guardian, or the state, would be required to sue either
>or both parents for support which was not forthcoming?  Who
>would initiate the action on behalf of infants? Who would
>pay the child's legal fees?

The state could act on behalf on the child, just as it believes it does
currently.

>gf:
>| >While I'm in this thread, I'd like to note that while
>| >people are willing to argue at great length about the
>| >obligations of the father and sometimes of the mother
>| >as they are and should be, no one takes the point of
>| >view of the child and asks how, having been born, it
>| >is to be fed and clothed.
>
>kd:
>| I take the view of potential illegitimate children which might be created
>| or prevented, depending on the legal situation wrt paternity child-support.
>| I feel that the current laws encourage the creation of these unfortunates,
>| and that's a driving motive behind my reform zeal. As a Utilitarian, I cannot
>| countenance laws which _create_ more misery than they prevent or cure.
>
>What a quaint term, "illegitimate child"!  How do you know
>that those children who, by being born, fail to meet
>patriarchal requirements, are necessarily unhappy?

Necessarily unhappy? Whose words are those? I speak only in terms of
statistical generalities.

>| Cessante ratione lex, cessat et ipsa lex.
>
>You mean _legis_, do you not?

Instead of the first "lex", yes (but not the second). I stand corrected.

>And in any case, the _ratio_
>of a law is not what someone said it was for (there might
>have been many such sayings, all contradictory) but the fact
>that the legislature enacted it.

Huh? The whole point of _cessante ratione_ is that what may be enacted at one
point in history may be obsolete at another, later point. One of the arguments
against abortion restrictions, for instance, was that they were originally
enacted to protect women against unsafe medical practices, and that since
medicine had progressed, there was no longer any valid purpose to the laws.
Some of this _cessante ratione_ reasoning, propounded largely by New York
Law School professor Cyril Means, whose article "The Phoenix of Abortional
Freedom", which was distributed among the justices of the Supreme Court as
they were deliberating _Roe_, apparently made an impression on them:

    When most criminal abortion laws were first enacted, the procedure
    was a hazardous one for the woman.  This was particularly true prior
    to the development of antisepsis. Antiseptic techniques, of course,
    were based on discoveries by Lister, Pasteur, and others first
    announced in 1867, but were not generally accepted and employed
    until about the turn of the century.  Abortion mortality was high.

    ...

    Modern medical techniques have altered this situation.  Appellants
    and certain amici refer to medical data indicating tht abortion in
    early pregnancy, that is, prior to the end of the first trimester,
    although not without risk, is now relatively safe.  Mortality rates
    for women undergoing early abortions, where the procedure is legal,
    appear to be as low or lower than the rates for normal childbirth.
    Consequently, any interest of the State in protecting the woman from
    an inherently hazardous procedure, except when it would be equally
    dangerous for her to forego it, has largely disappeared.

    (RvW, part VII of the opinion)

Similarly and connectedly, paternity child support statutes were enacted, on
the whole, before RvW, (the last major revision of Michigan's statutes, for
instance, was enacted in 1956) when conception was, by law, functionally
equivalent to parenthood in many jurisdictions, with scattered exceptions.
Blind paternity child support made sense then, but not once RvW was handed
down, and abortion became a legal option for virtually all women. For almost
20 years, our _lex_ has had insufficient _ratio_.

What principle do you cite in support of the assertion that whatever a
legislature happened to pass, however long ago, in whatever socio-political
climate, must necessarily embody a valid state objective right here and now?

>Many good or bad things
>might subsequently attach to its being.  What is the _ratio_
>for driving on the right side of the road, instead of the
>left?

Well, there _is_ a _ratio_ for picking one side of the road for people to
drive on consistently -- if everyone drove on whichever side they felt like,
there would be mayhem and destruction. As for _which_ side that should be,
I don't see how the _ratio_ for picking one side over another, whatever it
was, has changed since the laws were enacted. _Cessante ratione_ therefore
does not apply. Nor do I see anyone's life, liberty, or property being
deprived as a result of that choice, so even if the statute were
constitutionally untenable, who would have standing to sue?

                                - Kevin