Parental Involvement Laws: Why We Should Still Care That They Don’t Work
by Diana Philip
July 27, 2009 - 7:00am (Print)
On July 14, 2009, the Seventh Circuit Court of Appeals issued a ruling in Zbaraz v. Madigan, lifting the injunction of the 1995 Illinois Parental Notice of Abortion Act. Public discourse about parental involvement laws for minors seeking abortions has been quiet in recent years. Many believe that such statutes are common place and the U.S. Supreme Court ruling that set out the requirements for such laws to be constitutional, Bellotti v. Baird, is settled law, just like Roe v. Wade.
In the 1970s, Supreme Court decisions resulted in case law allowing state legislatures to enact parental involvement statutes mandating notification or consent of at least one parent by the clinic performing an abortion of a minor. The seminal case, Bellotti v. Baird II (1979), mandates that such laws must include alternative medical consent mechanisms to allow a minor the constitutional right to seek her desired medical care, so that such measures do not create an absolute veto by a parent or legal guardian. The legal intent was to balance the rights of parents in the pregnancy decision making of their daughters while guaranteeing an alternative for those minors unable to feasibly or safely seek parental involvement. In order for such statutes to be constitutional, 34 states have enacted laws allowing judges to rule on whether a pregnant minor can obtain an abortion without parental consent through a process known as judicial bypass. A minor can choose to seek a court order waiving the parental involvement requirement if she can prove that she is either mature enough to make the abortion decision independent of parental involvement or that it is in the minor's best interests to not involve either of her parents.
Proponents of parental involvement statutes claim that minors need to be protected from any possible harm that might come from the abortion decision through mandated consultation with their parents. They insist that such statutes encourage consultation between minors and their parents regarding pregnancy decision making and assume that minors should always confide in their parents about their pregnancies, no matter the outcome of the communication. Opponents argue that such laws actually harm minors who have adverse relationships with their parents or legal guardians and should not be denied the right to choose when to parent or add to their existing families. They counter that communication between parents and daughters cannot be legislated, especially in families where there is a significant degree of separation, dysfunction and abuse.
Along with protecting parental authority, the legislative intent of many states that chose to pass parental involvement laws was to decrease the number of abortions of minors as well as reduce the number of unintended pregnancies due to concerns that minors were engaging in unprotected sex while counting on abortion as a method of birth control. However, the majority of studies show that these laws have not resulted in any significant impact on pregnancy rates, nor has the recent national decline in minors' abortions been significantly attributed to the enactment of such laws. Other arguments against parental involvement laws involve unequal application of health law. If minors can legally self-consent to the range of pregnancy-related medical care which includes amniocentesis, fetal surgery and cesarean sections, there should be no reason to not allow a minor to self-consent to abortion. Research has shown that there is no increased medical risk associated with abortion based solely on the age of the patient. Just like adult women, abortion is ten times safer than childbirth in terms of medical risks. [Note: see also CDC’s Abortion Surveillance System: FAQs.] Adding to the debate are various research studies conducted in the fields of social science, health care and law that examine factors that influence pregnancy decision making among minors. The majority of these studies show that the capacity for mature and competent decision making of pregnant minor women is equal to that of pregnant adult women. Minors and adults are also similar in their confidence in pregnancy decision making and comfort with their pregnancy outcomes. Some argue that the law cannot continue to ignore this body of research and illogically assume that if adults do not experience poor psychological outcomes after abortions, minors somehow will. Citing that the intentions of these laws violate the rights of minors in obtaining confidential services and achieving self-determination, many researchers suggest that these statutes and their judicial bypass mechanisms create an unnecessary burden.
The majority of studies about the impact of parental involvement laws regarding minors' access to abortion conclude that there is little empirical data to prove that the benefits outweigh the costs of mandated involvement. The majority of minors consult their parents in their pregnancy decision. A parental involvement law does not change the consultation patterns of pregnant minors nor does it encourage communication as intended. It is the long standing relationship factors that promotes or inhibits parental consultation. If they do not consult with their parents, minors consult with a trusted adult – most likely someone with whom they have had previous discussions regarding sexual health issues. The majority of parental involvement laws also do not recognize the number of important caregivers of these minors who are not parents or legal guardians and are prohibited from serving in alternative notification or consent roles, such as grandmothers, uncles, brothers-in-law, sisters, etc.
There are also concerns that the mechanism of bypassing parental involvement through the courts has not met expectations in implementation. There have been issues raised related to how minors are affected by negative experiences in the judicial bypass process when confidentiality, expediency fair access and due process are denied due to active bias or passive aggressive tactics by court actors opposed to abortion or the notion of minors acting independently of their parents. One of the commonly reported unintended impacts of these statutes is the delay minors experience in seeking medical care due to the complicated process of complying with notification, consent and judicial bypass procedures or traveling out of their home states when access to fair hearings has been proven difficult or impossible.
What recommendations do opponents of parental involvement laws have of alternatives to mandated parental involvement or judicial bypass? Many suggest alternative notification or consent of other trusted adults of minors such as relatives. Others offer that specified health professionals such as counselors should serve as an alternative to parental involvement for minors unable or willing to confide or inform their parents about their pregnancies. Some desire more straight forward approaches such as making parental involvement laws apply to minors under 15 years in age or that all pregnant minors should be deemed legally competent to consent to all medical treatment. Others think that the right of privacy should be clearly afforded to minors through federal measures or legal rulings using the 14th Amendment.
Meanwhile, physicians are recommended by the American Medical Association to 1) encourage minors to discuss their pregnancy options with their parents, 2) not require their parents be involved in the decision and 3) rely on data that shows decision making capacities should be trusted enough to treat the minor as mature enough to make the pregnancy decision as an adult. Judges are recommended to decide judicial bypass cases using research on how competency and maturity has been evaluated by the social sciences. One approach is for judges to use an "Informed Consent Framework" which outlines elements necessary to evaluate informed consent: voluntariness, understanding of terminology, and ability to make decisions rationally and intelligently. Finally, there is a call for the Supreme Court to re-examine its assumptions regarding the decision-making capacities of pregnant minors in light of the growing body of knowledge showing that pregnant minors exhibit adult-level reasoning. Courts should consider and acknowledge studies that do not support the notion that abortion causes long-term emotional damage, that minors are incapable of adult-level decision making when seeking pregnancy-related medical treatment, and that parental involvement laws are functioning as they were intended.
While the Obama administration has been holding meetings to seek "common ground" on abortion, I have been wondering who was at "the table" and how the agenda was being shaped. Does this notion of common ground include the pregnancy rights of minors? Will this White House take the opportunity to review available literature that explores whether the compromise between parental authority and minor's reproductive autonomy in the form of abortion parental involvement laws has been working as intended? Youth advocates in Illinois are now worried about the law's affect on pregnant minors in their state. Does the political leadership in Washington, D.C. understand why? Pro-choice is the common ground. Women and girls need not compromise their reproductive health anymore than they have been enduring in the last 30 years. In fact, perhaps it is time that national leaders engage in discourse about how parental involvement laws do more harm than good. If minor women are as a competent in their pregnancy decision making capacity as adult women, why should they continue to compromise their reproductive health?
Question:
"While the Obama administration has been holding meetings to seek "common ground" on abortion, I have been wondering who was at "the table" and how the agenda was being shaped. Does this notion of common ground include the pregnancy rights of minors?"
Short answer, arguably too sarcastic:
Are you kidding?
Longer answer:
Are you kidding? It arguably should be, but in practice, that’s not how it’s worked out. Reducing the welfare rolls and expenditures is a higher priority than ensuring “rights” related to pregnancy, including of course contraception and abortion. And what minors are we talking about? Relatively poor minors say 16-17 in a stable, nonabusive relationship, or late-teenage trophy wives, or 13-year-olds, or perhaps Jamie Lynn Spears and Briston Palin?
Elaboration:
While most of the people on this blog don't personally remember life before Roe/Griswold/Carey v Population Services, many of the people here should at least remember the early 1990s and what occured during the Clinton administration and the courts at the federal and especially the state level related to minor's access to abortion, and relatively unbiased sex education. If you’re too young to remember that, ask about it, more ground was lost on that in a few years under Clinton than had been lost in the previous administration of George HW Bush and two terms of Ronald Reagan before him.
At the same time as the early 90s version of "common ground" -- Roger Rosenblatt's "permit but discourage" --was being discussed and advocated by numerous political figures, most notably then first lady Hillary Clinton. Rosenblatt’s most accessible rendition of “permit but discourage” may have been his New York Times Magazine cover story, “How to End the Abortion War”, and to a lesser extent his book ''Life Itself: Abortion in the American Mind''. It is at times a hopeful and certainly not an outright anti-choice book, but in all nearly 200 pages (and over 4000 words in the NYT Mag piece) there’s little about how to respond to anti-choice threats that narrow down quickly to what might be reasonably considered their real target, the rights and liberties related to reproductive health involving young and poor people, to the extent that public spending on things like welfare programs may be reduced.
The parallels in much of today's "common ground" arguements are so obvious that one hardly needs to cite references.
And in the subsequent years after Rosenblatt's essay ran in 1991 we saw numerous restrictions pass and gain public support related to both welfare and abortion access, to the extent today that the concept of “abortion access” is as controversial and almost unspoken as the concept of “welfare rights”.
Or, a better answer to the question:
While one should argue that it ought to, NO, not only does the notion of "common ground" not include the pregnancy rights of minors (and poor women in general, with the exception of reducing disease and obvious neglect related to prenatal care or child welfare among poor mothers), the notion of "common ground" can be demonstrated to actively or passively sacrifice those rights it in the name of saving it for women who are neither minors nor poor, in a way parallel to "permit but discourage" did some 15-20 years ago.
The same legal and legislative precedents that restricting access and free choice for young and poor women are often seen (especially in the media and mainstream press, and most alternative press as well) as affirming access and choice (of a sort) for women who are neither minors nor poor. It happened during the Clinton administration, and if you understand how it happened, you'll see better how it may be happening again, and maybe better understand what to do about it.
You don't have to, but if previous generations fought for reproductive rights the way the mainstream today seems to defend it, we'd be living in Margaret Atwood's "The Handmaid's Tale".
Thanks for your comment-
I wrote this to spark conversation about how we seem to no longer be in an uproar about restricting minors' access to abortion as we used to be. It used to be we would fight back on each restrictive measure and revisit the failed compromises made in public policy and law to safeguard parental authority and rights of minors. It seems that the backlash from the 1980s and 1990s is becomingj just a historical footnote and people are not really considering how much damage was actually done. I know of the damage done by parental involvement laws after receiving thousands of hotline calls from pregnant minors at the legal organization I co-founded in Texas - Jane's Due Process (www.janesdueprocess.org). I see the damage done in the attitudes and behaviors of college women today who seemingly escaped their years of being minors unscathed as they make judgmental comments about "those pregnant girls". I recently was a guest lecturer at my university for an undergrad class on women and health. Many of the students could not allow themselves to talk openly about the pregnancy decision and were instead fixated on how women and girls should know better to not get pregnant unintentionally.
By the way, my real feelings about the "common ground" discourse would take another essay!
Diana
Thanks for your reply, Diane. Your post was a very good and in-depth analysis of parental notification and consent laws and some opportunities for reform of those laws. Our comment was probably too bitter to be an adequate response to your post. We hope others read your post and post comments of their own, and are inspired to work along these lines.
Maybe you or someone with your background would want to review a book we got last year, "Girls on the Stand, How Courts Fail Pregnant Minors" by Helena Silverstein, published in 2007 by the NYU Press. It struck us as especially interesting as few books, even few articles as you know explore problems related to parental notification laws. The only significant review we've found on the web of this book was this one from the San Francisco Chronicle, Young, pregnant and in peril.
...and it includes the interesting point from the book that some of the biggest problems minors face come not from anti-abortion judges or personnel but from "ignorance" (the reviewer's word, I think), especially on giving inaccurate information to people calling and asking for information about getting a judicial bypass. We read of numerous examples in the book of calls made to test the system and the bogus information, probably in many cases not deliberately, that was given to the would-be minor on the phone.
The review above however is supportive of parental notification laws, and concludes that a better answer would be to educate and when necessary sanction (reprimand) court personnel who give erroneous information, and he refers to Planned Parenthood as a "decent safety net". Well, sure, where one can find a Planned Parenthood, and hopefully get in the door, sometimes one gets inaccurate information over the phone with them or with any clinic, but that's another story. Another way to read the book is to consider reforming some of the state laws so that the laws are more uniform from state to state, and that unfortunately might have the effect of making relatively lenient state laws stricter and more difficult to fairly implement.
All the more reason for good educational efforts for minors about the abortion laws in their state, which efforts like Jane's Due Process has done a very good job of. But let's not give up on public school sex education programs, as flawed as many of them may be there is hope that some could include information about parental notification and consent laws including accurate information about obtaining a judicial bypass. If it's accurate and phrased in a way to neither encourage or discourage minors from seeking abortion some schools might be open to educating students about this, and we recall one Midwestern state -- something like Nebraska or Kansas? -- did that, almost as a fluke, as few other states did that. That might be something also to report on here, if that's still going on, and if not, why it's no longer being done.
Oops, just told that there was one other significant review on the web, this one from pro-choice perspective, Bypassing Young Women's Abortion Rights from the American Prospect, August 17, 2008. But we're pretty sure that's about it, we found no other reviews or mentions of significant length. So if you or someone else well qualified reviews it, it might make all the more of a difference to discuss the issue further.
I am familiar with both Ehlich and Silverstein's work and do cite their books in a longer essay I wrote:
Seeking Bypass: What Will Ultimately End Confidence in the Necessity of Parental Involvement Laws?
http://www.llrx.com/features/parentalinvolvementlaws.htm
I hadn't consider doing a review - thanks for the suggestion!
