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Abortion Parental Notice Laws: Irrational, Unnecessary and Downright Dangerous

JURIST Guest Columnist Caitlin Borgmann of CUNY School of Law says that abortion parental notice laws such as the one that will now be enforced in Illinois do nothing to help teenagers, while imposing traumatic hurdles, and sometimes grave danger, on those who lack loving and supportive parents to whom they can turn...

On July 14, in Zbaraz v. Madigan, the Seventh Circuit lifted a permanent injunction that had prevented enforcement of Illinois' parental notice for abortion law since its enactment in 1995. The decision hinged on an arcane question of state procedural law, and the opinion did not break new legal ground on the abortion issue. What is noteworthy about the decision, then, is precisely what for many might seem mundane: Illinois will now join the ranks of 34 other states in enforcing some kind of parental involvement requirement before a teenager can obtain an abortion. The court emphasized the unexceptional nature of its decision, noting that "[m]any, if not all of the concerns first raised against parental involvement laws in the 1970s and early 1980s have been addressed" in laws like Illinois'.

This soothing language, however, obscures the fact that a substantial majority of states blithely impose what are in reality irrational laws that impose appalling burdens on the teenagers who are least able to consult with their parents about their pregnancies. States continue to enforce these restrictions despite evidence that they do not serve their intended purpose, and are unnecessary for most teens and downright dangerous for others. It is worth a pause to reflect on these laws that now seem scarcely to merit a yawn from the courts.

On their face parental involvement laws appear intended to keep parents informed and to ensure minors' wellbeing. But let's remember that the main proponents of parental involvement laws oppose abortion altogether. Their ultimate goal is not to improve familial communication but to eliminate abortion as an option for all women. A strategy memo written by anti-abortion-rights movement leaders James Bopp, Jr., and Richard E. Coleson, for example, encourages the passage of "parental involvement" laws, among other "incremental" restrictions on abortion. They argue that such laws "keep the abortion issue alive and . . . also translate into more disfavor for all abortions, which in turn reduces abortions."

Parents understandably want to be involved in their minor children's important life decisions, but this desire has not translated to parental involvement requirements for other sensitive medical decisions that minors make. Most states recognize that mandating parental involvement for sensitive medical treatment will have the hazardous drawback of deterring many minors from seeking care at all. As the Guttmacher Institute reports, "The legal ability of minors to consent to a range of sensitive health care services — including sexual and reproductive health care, mental health services and alcohol and drug abuse treatment — has expanded dramatically over the past 30 years." Minors in most states can consent to services such as contraception, prenatal care, and treatment for sexually transmitted infection. In many states, minors can even relinquish their children for adoption and consent to medical care for their children. Parental involvement laws for abortion stand out as the glaring antithesis to this trend.

Studies have shown that most pregnant teens voluntarily involve their parents in their abortion decisions. Even in the absence of a parental involvement law, about six in ten teens consult at least one parent before seeking an abortion. Teens who avoid telling their parents often have compelling reasons for doing so. Teenagers may suffer abuse when their parents discover they are pregnant; other teens are thrown out of the house. Some parents actively prevent their children from obtaining an abortion. Some minors function as the de facto adult in dysfunctional homes where the custodial parent is largely absent. Because of the dangers that minors can confront when forced against their own judgment to involve their parents, most major medical groups, including the AMA and the American Academy of Pediatrics, oppose mandating parental involvement for abortion.

The Supreme Court has held that teenage girls, like adult women, have a constitutional right to determine the fate of their pregnancy. Thus, while states can require parental consent or notice for abortion, the Court requires that they provide some alternative for teens who do not wish to consult their parents. The alternative that has become standard is the judicial bypass. The judicial bypass allows a teenager to seek permission from a court rather than involve her parents in her decision. Not surprisingly, this option holds many perils for a pregnant teenager. Teens must navigate the process of a court hearing. They must find the time, often during school hours, to appear in court before an imposing stranger to discuss this most intimate of issues. Although the Supreme Court has required that the process be confidential, in practice it can be difficult for teens to keep their presence secret. In small towns, they may know the court personnel. In one instance, a teen waiting in the hallway for her hearing encountered her sister's entire class, which had come to the courthouse on a field trip.

Ironically, properly functioning bypass systems demonstrate the irrationality of requiring court waivers in the first place. When bypass processes work as envisioned, the vast majorities of minors' petitions are granted. This is because the law requires that judges must grant a waiver of parental involvement if a minor is either mature enough to consent on her own or if an abortion without notice would be in her best interests. The vast majority of minors fall into one of these two categories. For example, one study in Massachusetts showed that out of 477 petitions, only one minor was denied a waiver. Indeed, a report by the AMA found that minors' decision making process on abortion is comparable to that of adults aged 22-25. Thus, when bypasses work correctly, they ensure nothing more than that minors needlessly parade through courtrooms in order to be granted the right to do what they can already do for a host of other sensitive medical treatments: provide their own consent.

On the other hand, bypass processes often don't work. Helena Silverstein's book, Girls on the Stand: How Courts Fail Pregnant Minors, documents the myriad ways in which the bypass process can fail. Court personnel are often misinformed about the procedures. Some judges ignore confidentiality requirements. Other judges, ideologically opposed to abortion, refuse to hear bypass petitions, or they conduct hearings but then lecture teens about their immorality and routinely deny waivers. In these all too frequent circumstances, the "bypass" becomes a roadblock. While minors facing such roadblocks can try to seek an abortion in another state, not all will be able to do so. As the Guttmacher Institute points out, "[t]o travel out of state, a minor must have access to transportation and must be within a reasonable distance of a state with less restrictive laws. The degree to which minors exercise this option varies by age, socio-economic status and access to public transportation."

The Zbaraz court conceded that the bypass process may be "intimidating" and may pose "practical problems" for many minors. However, the court demurred, "[W]e fail to see a better alternative." This is a cop-out. The court may have felt compelled to follow precedent, but it should not pretend that precedent dictated a good outcome. Healthcare providers should always strongly encourage teens to involve their parents in their abortion decisions. But laws like the one that will now be enforced in Illinois do nothing to help teenagers, while imposing traumatic hurdles, and sometimes grave danger, on those who lack loving and supportive parents to whom they can turn.

Caitlin Borgmann is a professor at CUNY School of Law and editor of the Reproductive Rights Prof Blog

Opinions expressed in JURIST Commentary are the sole responsibility of the author and do not necessarily reflect the views of JURIST's editors, staff, donors or the University of Pittsburgh.

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