Fiction: The Allegretti Paradox

By James Hanna

            In the summer of 2030, the United States Supreme Court ruled on Indiana Mothers for Fetal Rights vs. Subscribers to Caballero Productions. This case had floundered in the Putnam County Superior Court and the Seventh Circuit Court of Appeals, but the Supreme Court, having triggered the plaintiffs through the controversial Dobbs decision, had an ethical and legal obligation to hear the case. It was one of hundreds of thorny briefs that had been precipitated by the Dobbs decision—filings that addressed not only abortion but contraception as well. Predictably, in its attempt to relegate abortion to the discretion of the states, the Supreme Court had inspired a tsunami of cases that it was pretty much obliged to address.  

            At issue in this particular case, filed by twenty Indiana mothers, was the now expanding claim that masturbation is murder. Orville Baumgardner, a former Indiana state congressmen who had drafted the brief, wrote:

 

      “If fetuses are indeed people, as has been determined by the Alabama Supreme Court, should the sperm that awakens these embryos to life not be afforded personhood too? Although millions of these tiny swimmers are fated to perish unceremoniously, we say that those fortunate few who penetrate the ovum are analogous to the indomitable breath of God. Does the Parable of the Sower only apply to seeds cast upon thorns and rocks? Should the chance to thrive and multiply not be given to sperm as well? We hold that those who impede the miracle of life for the sake of their own selfish pleasure are no less guilty of homicide than had they pulled a trigger.”

 

            Applying the principle of textualism, the Supreme Court ruled 8-1 in favor of an off-ramp. Chief Justice John Honeycutt wrote, “To speculate as to when life begins would force the Court to assume powers the Constitution does not explicitly provide. The Court therefore rules that any decision regarding self-abuse is a matter that the Tenth Amendment has given exclusively to the states or the people at large.”

            In a dissenting opinion, Justice Sandra Rhodes stated, “Those who use religion to cut the cake of custom would be better served by remembering words of Proverbs 11:29: ‘He who brings trouble to his own house will inherit the wind.’”

            This dissenting opinion was frequently cited by civil rights advocates, but the maelstrom predicted by Justice Rhodes never came to pass. This was not because most of the public accepted the go-ahead granted the states; it was because only a handful of citizens were inclined to demonstrate for the right to masturbate.

            A more formidable challenge was made by the American Civil Liberties Union. Citing the equal protection clause of the Fourteenth Amendment, the ACLU stated:

 

            “Indiana Mothers make no mention of female masturbation. Are we to assume that only men may be criminalized for ‘self-abuse’? Since this appears to be the case, the Supreme Court’s majority opinion is clearly discriminatory and therefore unconstitutional. One need look no further than Brown vs. Board of Education to confirm that no portion of our populace is to be randomly selected for second-class citizenry.”

 

            A response penned by Orville Baumgardner placed the ACLU’s argument in a most ironic light:

 

       “Courtesy of the Dobbs decision, female rights, as far as women’s bodies are concerned, have been deemed secondary, in many states, to the commanding will of God. We would argue that women who joyfully accept God’s gift of children are equal in spirit to the immaculate heart of Mary. However, some women claim that they have been reduced to the status of chattel rather than promoted to vessels of God’s divine plan. We have no wish to recognize ingratitude, but recognize it we shall if the ACLU continues to insist that men bear a singular cross. Since both women and men have chosen to portray themselves as victims of prejudice, the playing field is virtually even and no constitutional breach exists.”

           

            The Supreme Court sided with the respondent, ruling that the majority opinion could not be challenged on the grounds of gender bias—not when both sexes were claiming to suffer comparable discriminations. The Court also reiterated that its constitutional power ends where the rights of the unborn begin and that individual states have every right to subject masturbators to the ultimate punishment for murder. The Court was not prepared, however, for the issue of nocturnal emission. Emboldened by its victory, Indiana Mothers filed a supplemental brief, claiming that men who fail to take responsibility for their seed, even before going to sleep, have committed an omission so egregious that their actions also amount to murder. Orville Baumgardner wrote, “We hold that slumber is not an excuse for shunting God’s glorious plans. Are men who allow unconsciousness to deprive the world of children not analogous to drivers who fall asleep at the wheel?”

            The Court held, in a 7-2 opinion that, although a state had the prerogative to execute masturbators, in the case of nocturnal emissions, such a penalty would not be constitutional. Citing the Eighth Amendment’s protection from cruel and unusual punishment, Chief Justice Honeycutt wrote, “The Supreme Court holds that punishment must be commensurate with the nature of the offense. When the waste of sperm is involuntary, although a condom might have prevented it, the offense of involuntary manslaughter would seem a more fitting charge.” Chief Justice Honeycutt also suggested that a penalty need not apply if a male wore a condom while sleeping and, in the event of a nocturnal discharge, took the brimming condom to a sperm bank within a requisite period of twenty-four hours. Consequently, sperm banks sprang up throughout Indiana, and men, whose consciences had been pricked, were spotted visiting them at every hour of the morning. 

            By the fall of 2031, anti-masturbation laws were on the books in Alabama, Florida, Tennessee, and Indiana. But not a single conviction resulted from this rampant proliferation of law. The reasons for this are two-fold and worthy of review:

            Firstly, although many right-to-lifers filed complaints accusing citizens of squandering sperm, only a handful of prosecutors, those with overt political ambitions, chose to file charges. And in the few cases where trials were held, the accused had only to shun a plea bargain in favor of a jury trial. Inevitably, this would result in an acquittal or, at the very least, a hung jury. Clearly, not many jurists wanted to shoulder the sticky burden of hypocrisy.

            Secondly, since passive resistance dominated the courts, it was extremely difficult for even the most eloquent of prosecutors to meet the burden of proof. Because masturbation is usually a solitary affair, conducted behind closed doors, the smidgen of cases that came to court was inevitably based on hearsay. Since criminal convictions require that guilt be proven beyond a reasonable doubt, none of these cases survived a preliminary challenge.

            After a year, it became clear that criminal proceedings were powerless to hold masturbators to account, so the religious right started bombarding the courts with a glut of civil cases. Only a preponderance of the evidence is required to stick a civil complaint, and plaintiffs reasoned that, if self-abusers could not be punished criminally, at least, they could be made to pay stiff fines for depriving the world of life. Several judgments favoring the plaintiffs resulted, but these judgments were overturned when a self-abuser named Joseph Allegretti brought up the issue of standing.

            Joseph Allegretti was a janitor living in Putnamville, Indiana, and he was in the habit of visiting the local porn shop two or three times a week. When word of his behavior reached Indiana Mothers, this organization filed an amicus brief in the Putnam County Superior Court. The irate mothers accused Joseph of “lewd and prodigal” behavior and sued him for the compensatory sum of a hundred thousand dollars.

            The frequency with which Joseph had been observed entering the porn shop made him an exception to hearsay rules that might otherwise have shielded him. But when the matter went to a preliminary hearing, Joseph’s attorney successfully argued that Indiana Mothers had no standing to bring this matter to court. Citing Article III of the US Constitution, Joseph’s attorney declared that Indiana Mothers had failed to establish that the organization had suffered any harm due to Joseph’s conspicuous appetite for pornography.

            The Putnamville County Superior Court tossed out the case on the basis of standing. Predictably, the case was appealed all the way to the United States Supreme Court, and the Supreme Court agreed in a unanimous decision that Indiana Mothers could not file suit in the absence of locus standi. Chief Justice Honeycutt wrote, “Although Mister Allegretti’s behavior is clearly lewd and prodigal, the plaintiffs might better secure their relief by simply looking away.” Justice Honeycutt further suggested that standing might only be claimed by a son or a daughter who had not been born because Mister Allegretti had misspent his seed.

            Arguing for Indiana Mothers, Orville Baumgardner insisted that the Supreme Court had set too high a bar where standing was concerned. In an impassioned speech, Orville Baumgardner shouted, “Might standing not also belong to an only child deprived of siblings because of the father’s ill behavior? How I weep when I think of homes deprived of the collective laughter of youngsters simply because a husband failed to make judicious use of his seed.”

            The Court agreed that Orville Baumgardner had made a salient point and extended the right to sue to an only child as well. But not a single lawsuit resulted from this ruling, perhaps because children were too dependent to sue an errant father. Also moot was the concession the court had granted to children who had not been born, and this became known throughout the land as the Allegretti Paradox. Yes, unborn children had been given the nod to sue their prospective fathers, but to bring the matter to court, such children would first have to exist.

                 Ultimately, laws penalizing masturbation went the way of the Comstock Act, affording supporters no more than a plaque in the morgue of quixotic ideals. Frustrated by the reticence its purity had spawned, Indiana Mothers disbanded and was never heard from again.

James Hanna is a retired probation officer and a former fiction editor. His books have appeared in over thirty journals including Sixfold, Crack the Spine, and The Literary Review. He is also a former contributor to A Thin Slice of Anxiety. James’ books, all of which have won awards, are available on Amazon.