Emotional Distress and Parenting, Part 4: Here's an example of courts doing what courts do WORST. (Family Law Matters)

Can the exercise of a constitutional right also be grounds for a tort suit?

No, said the Wisconsin Court of Appeals, and it only took them 10 paragraphs to say it. And they didn't even write one of those paragraphs. Talk about an easy day at the office!

In Pryzybyla v. Przybyla, a husband sued his wife for getting an abortion while they were married, an abortion he alleged was done "maliciously and deceitfully," claiming that

through the malicious acts of the defendant, the plaintiff was denied the enjoyment of fatherhood and the companionship and care of his child and family; and that the plaintiff suffered great emotional anguish and mental distress caused by the malicious deceit of the defendant, all to his injury.

The husband was seeking $1,000,000 in damages from the wife, who admitted that she'd had the abortion but defended on the grounds of "you can't tell me what to do with my body."

Interestingly, to me, but not to the Court, which relegated this to a footnote, the parties were, in fact, husband and wife when the child was conceived (Awkward Deposition Questions, #1!) and were separated but not yet divorced when the wife had the abortion (which, technically, meant that they were still husband and wife, something the Court didn't comment on), but were maybe not yet divorced at the time of the opinion?

The present marital status of the parties is unascertainable from the record.

They couldn't just ask the lawyers? CCAP not existing back then, I know it would be hard to just go online and find out, but it seems to me that might have been an important fact to consider, given the Courts' longstanding reluctance to intervene in intact families.

The Circuit Court denied the wife's motion for summary judgment, setting the stage for what presumably would be a jury trial, but the Court of Appeals got to intervene, first, in what also presumably was an interlocutory appeal, because a denial of summary judgment doesn't end the issue... unless the husband won summary judgment? The opinion doesn't say:

Defendant concedes that she was pregnant as alleged and that she procured an abortion on April 22, 1977, in a medically-accepted manner nine weeks after conception without the permission or consent of her husband. Her concession is not disputed by the plaintiff husband. Although the defendant has denied the allegations [of the complaint pertaining to malice, etc.] the parties concede that the issues presented are legal, not factual, and thus may be reached upon summary judgment. Thus, we construe the defendant's position as a concession of the facts as alleged and as supplemented by the moving papers, but a contention that the conceded facts, as a matter of law, do not constitute a claim upon which relief may be granted.

The defendant, in furtherance of that position moved for summary judgment denying that an issue of material fact existed and claiming entitlement to judgment as a matter of law. The circuit court denied summary judgment and this appeal followed.

You would think a case that raises a constitutional question would at the least have a better explanation of the procedural and factual issues underpinning it, but this is, after all, the Wisconsin Court of Appeals, where dollar amounts are always set out down to the last penny while procedural backgrounds are glossed over.

The Court then went on to adopt a critical paragraph from the then-just issued United States Supreme Court in Planned Parenthood of Missouri v. Danforth, 428 U.S. 52, 69-71, 96 S.Ct. 2831, 2841-2842, 49 L.Ed.2d 788 (1976) to the effect that the State could not (and still can't, I assume, the U.S. Supreme Court not having gotten around, in their originalist zeal, to gutting this precedent yet) delegate the decision about whether to have an abortion to the State:

Clearly, since the State cannot regulate or proscribe abortion during the first stage, when the physician and his patient make that decision, the State cannot delegate authority to any particular person, even the spouse, to prevent abortion during that same period.

The Wisconsin Court of Appeals appeared to be quoting the part of Danforth which adopted a dissenting judge's opinion, in Danforth, that

the State cannot "delegate to a spouse a veto power which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy."

Which is sort of precedential-by-loophole: A dissenting judge, somewhere, said something, and the U.S. Supreme Court adopted the viewpoint of that dissenting judge in ruling on a slightly different question, which allowed the Wisconsin Court of Appeals to re-adopt the dissenting judge's opinion vis a vis mad dads and abortions... I'm a little dizzy now.

The Court then proceeded to decide the question presented here by changing the question to a different one that it wanted to answer, instead:

We are not unaware of the deep and proper concern and interest that a devoted and protective husband has in his wife's pregnancy and in the growth and development of the fetus she is carrying. Neither has this Court failed to appreciate the importance of the marital relationship in our society. Moreover, we recognize that the decision whether to undergo or to forgo an abortion may have profound effects on the future of any marriage, effects that are both physical and mental, and possibly deleterious. Notwithstanding these factors, we cannot hold that the State has the constitutional authority to give the spouse unilaterally the ability to prohibit the wife from terminating her pregnancy, when the State itself lacks that right.

Which is not what the husband here was asking for. He wasn't asking that husbands be allowed to keep wives from having abortions, even if that may have been an effect of this decision. He was asking to be allowed to sue when a wife intentionally inflicts emotional distress on a husband by having an abortion maliciously and willfully.

That's a different question, isn't it? Again, the facts here might have just mattered a little bit: Suppose wife asked husband to have another child with her as part of a deal to stay married, and husband, who didn't want to stay married, had agreed, only to then have his wife change her mind, have an abortion, file for divorce, and taunt him with it?

You may agree with the right to an abortion, but should it be used as a weapon? That's a question the Court didn't decide, and by not delving into the facts of this case, what the Court said is that there is no set of circumstances under which a mother could be sued for intentionally inflicting emotional distress by having an abortion.

Maybe you're okay with that; as a rule it's certainly one way to go. But if you're going to reach that rule, reach it the right way: discuss the various rights at stake here and the circumstances under which those rights are affected. Don't pawn it off as "delegating authority." Had the husband won here, women could still have abortions -- they'd just run the risk that they might be sued for doing so, and have to justify their actions as not being intended to inflict emotional distress.

And that's already a risk spouses run in marriage: being sued for making marital decisions. Wives have sued husbands for embezzlement, and the legislature has decided to allow intra-marital suits over disposal of marital property. A husband who wanted to sue for intentionally inflicting emotional distress via abortion would still have to prove that he would have been a good and devoted dad, that the mom acted maliciously and not out of some legitimate concern, and a host of other factors. I don't doubt that there would have been a potential chilling effect on women seeking abortions, for fear that a vengeful husband might sue them, but that potential chilling effect seems to carry no weight when it comes to letting wife-beaters and child-abusers seek placement and custodial rights; how often do courts say "If we let someone who was convicted of a violent crime seek placement, we might be infringing on the rights of women to be free of fear of retribution from potentially violent people?"

Those are all questions raised by this opinion... and ignored.

I'm more of an originalist than the actual "originalists," when it comes right down to it; I tend to believe that constitutional rights are enumerated or they likely don't exist -- because we can amend the Constitution to put them in if we want, so we don't have to "find" them, with the "finding" being done by an unelected superlegislature that also holds the veto power over attempts to undo that finding.

Imposing constitutional rights by fiat wasn't a power the Founding Fathers imagined giving to the minority -- and for everyone who celebrates the Court's power to find a right to abortion, you should be mindful that the same power lets the Court "find" a corporation's right to contribute to presidential campaigns. What's good for the goose...

But this is the system we have -- and so we have a messy situation when family dynamics run into constitutional rights, something that exists everywhere. You don't clean up a messy situation by cutting through the Gordian knot like this; that just decides a family situation one way rather than the other. The Court of Appeals had a chance here to get down into the mud and really dig into what was going on in this family and decide how much courts can, and should, intervene into decisions that intimately affect families, and it dropped the ball by the sleight-of-hand-three-card-Monty decisionmaking, rephrasing the question and adopting a ruling that adopted a dissent, and now you've got another area of law that's completely untouchable by anyone.

Whether that's a good or bad thing, as it affects the right to abortion, is up to your own opinion of the right to abortion. But judicial legislation without proper consideration of the facts, using bait-and-switch reasoning, is terrible for our society.