Seeking Bypass: What Will Ultimately End Confidence in the Necessity of Parental Involvement Laws?By Diana Philip, Published on July 19, 2009
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. Although routinely afforded the same reproductive health care and rights as adult pregnant women who carry to term, pregnant minors are assumed to need different treatment under the law when it comes to access to abortion. Proponents claim that minors need to be protected from any possible harm that might come from the abortion decision through mandated consultation with their parents. 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. 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?
Much of my 20-year career has been spent launching new initiatives in non-profit organizations. One of these was a small, statewide non-profit in Texas that assists pregnant minors to comply with the state parental involvement law for abortion enacted in 2000. In the four years I served as founding executive director of Jane's DUE PROCESS (JDP), I answered approximately 5,500 hotline calls from pregnant minors seeking accurate information about their legal rights, services available to assist them in obtaining professional abortion care, and ways to secure legal representation to bypass the law, if necessary. In addition to the volunteer attorneys to represent these youth, we offered training to clinic staff, social service providers, school teachers and staff, court personnel and judges to increase their knowledge and comfort level about minors exercising their rights under state and federal law. Two years into our work, JDP expanded its mission to provide legal assistance to pregnant minors seeking to carry to term and in need of other forms of legal relief such as protective orders, emancipation petitions and Title IX public school discrimination actions. However, our primary concern was the troubling implementation of the state parental involvement law.
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. 1 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.2
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. 3 Proponents of parental involvement laws 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 (Worthington, Larson, Brubaker, Colecchi, Berry, and Morrow 1998). Opponents to such statutes counter that communication between parents and daughters cannot be legislated, especially in families where there is a significant degree of separation, dysfunction and abuse (Philip 2003).
There are also concerns that the mechanism of bypassing parental involvement through the courts has not met expectations in implementation. 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 (Silverstein 2007, Sanger 2004, Philip 2003, O'Shaughnessy 1996, Crosby and English 1992). There have also 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 (Silverstein 2007, Jacobs 2005, Sanger 2004, Philip 2003).
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. Many authors of these studies call for a reconsideration of the value and legality of parental involvement laws and raise concerns that law and public policy measures are not reflecting the growing body of research on the issue. 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. Law and policy makers do not appear to trust the perspectives of minors participating in such research, some of which are follow-up studies that assess confidence in their decision making and comfort with their pregnancy outcomes. What new information will law and public policy makers trust? What relevant research are they ignoring now? The purpose of this literature review is threefold: to provide a history of the laws and public policies that began in the 1960s that set the environment for current minors' rights to access abortion, analysis of the impact of parental involvement laws and their failures in implementation, and an overview of relevant research that examines the pregnancy decision-making capacities of minors and whose results often raise questions regarding the necessity of such laws.
How the Reproductive Rights of Minors Evolved
The concepts of "adolescent" and "youth" are social constructs (Gordon 2006, Lesko 2001, Males 1999). Society tends to apply bias perspectives regarding how young people are perceived and should be treated. Adolescents and youth experience subordination as they are seen as "unfinished citizens" (Hinton 2008, Gordon 2006) or as less developmentally evolved individuals. Youth are often seen as less than adults, as adults-in-making, or as having no real place except at some time in the future when they become "real people" (Howard, Newman, Harris, and Harcourt 2002). Negative labels attached to youth include delinquents, dropouts, druggies, turbulent teens, super-predators and targets for intervention (Scott, Deschenes, Hopkins, Newman, and McLaughlin 2006). The United Nations defines youth as those under the age of 18, while many government policies consider youth to be from 13 to 25 (Howard et al 2002; Hart 1992, Wyn & White 1997). Every society has its own way of determining when adult responsibilities are applied to a young person or recognized by others in a community (Hart 1992). In the United States, the concept of "minor" is a legal construct and determines adulthood. The definitions of legal rights and applications of law are applied differently to this younger class of youth than those 18 years or older. Minors often endure further subordination, mostly in efforts to protect them from harm due to assumptions regarding immaturity as well as to safeguard parental authority.
Prior to the 1970s, many sexually active minors found themselves in juvenile court, brought to the legal system for intervention by their parents (Devlin 1997). Many were referred to maternity homes or reform schools in efforts to curb their behaviors, creating a conspiracy of silence and stigma surrounding the prevalence of minors engaging in sex (Solinger 2005, Sanger 2004). Meanwhile, the courts were beginning to respond to legal arguments regarding the civil liberties of adults pursuing reproductive freedom. While adults were suddenly seeing their sexual rights granted, the Supreme Court was also providing basic constitutional rights to minors. Under the 14th Amendment to the Bill of Rights, Griswold v. Connecticut (1965) extended the right to privacy of adults to include access to birth control. The Court held In re Gault (1967) for the first time that a minor, merely on account of age, is not beyond constitutional protection. In Tinker v. Des Moines Independent School District (1969), the Court stated that "students in school as well as out of school are 'persons' under our Constitution" and "are possessed of fundamental rights that the state must respect" (393 at 511). Eisenstadt v. Baird (1972) established that denying the right to possess contraception to unmarried individuals as married couples was a violation of the Equal Protection clause. This ruling also implied that the rights of unmarried people to engage in potentially procreative sexual intercourse was constitutional, meaning that the rights of minors engaged in the same sexual activity could be lawfully protected as well. On the heels of the Ordway v. Hargraves (1972) ruling prohibiting schools from expelling unwed pregnant students, Congress forced schools with public funding to provide education to pregnant and parenting students through the passage of Title IX. After Roe v. Wade (1973) gave the right to legal abortion for women, Planned Parenthood of Central Missouri v. Danforth (1976) made it clear that the rights Roe defined also applied to minor women. In 1978, Congress amended the measures in Title X mandating confidentiality to minors served by the family planning clinics it funds, without parental involvement. However, not long after these rights were granted through the Supreme Court and Congress, a conservative political climate began to emerge and the court of public opinion began to weigh in.
The sexual revolution played a part of how minors saw themselves as sexual beings, and with the ability to legally access family planning services, birth control, abortion and equal education as sexually active, pregnant and parenting individuals, minors engaged more freely and openly in sex. Rickie Solinger's book, Pregnancy and Power: A Short History of Reproductive Politics in America (2005) covers a history of how adult and minor women have managed their fertility and the external forces that often shaped and restricted their choices. She states that as more white teens chose motherhood, a perceived crisis of parental and state authority emerged and teen pregnancy became negatively labeled as an "epidemic". White parents "were mortified to realize that parental rules about sex and its consequences didn't seem to matter anymore" (238). In national efforts to safeguard parental authority, new policies were implemented. These included welfare rules mandating that poor teen mothers live with their parents, government programs encouraging marriage and adoption as the best alternative for pregnant teens, and sex education promoting abstinence-only curriculum. Solinger discusses the challenge of encouraging parental and state authority with the risks associated with these tactics: teen mothers on welfare forced to live in unsafe parental homes, worsening economic and educational outcomes for minors pressured to marry due to pregnancy which increases the likelihood of teen subsequent births, harm inflicted on minors who receive inaccurate or incomplete information regarding sexual health, and promotion of the idea that teens are unfit to parent amid constant encouragement to surrender babies for adoption (Solinger 2005). These efforts were often led by the conservative right to not only safeguard their notion of the American family, but to provide a successful response to the sexual revolution and the advent of legal abortion. In their attempts to chip away at reproductive rights, conservative advocates found success targeting a population viewed as having no political clout: minors.
Judith Levine's book, Harmful to Minors: The Perils of Protecting Children from Sex (2006), serves as a social critique on how American culture and institutions have harmed the sexual health of youth. According to Levine, the assumption of policy makers at every level is that although unwed teen sex is wrong, and despite advancements in sex education and birth control, teen child-bearing should be encouraged, no matter if it ruins the lives of young women. There have been concerted efforts to remove the option of abortion from the equation in terms of minor pregnancy decision-making processes. Stigma attached to abortion remains prevalent among youth. Harassment tactics of protesters outside of reproductive health centers have profoundly affected how minors consider and obtain professional abortion care. Levine comments that the notion of abortion harming minors in particular persists despite studies to the contrary and is perpetuated among youth who are continually exposed to anti-choice propaganda. Teens are aware of the consequences of public shaming and some engage in dramatic denial by hiding unintended pregnancies, giving birth secretly, and dumping their babies. Defense of abortion as a moral decision has significantly waned, demonstrated by national womens conferences declining to discuss it, Hollywood ignoring the topic, and pro-choice feminists adopting "pro-family" language that sidesteps the issue (Levine 2006).
The Emergence of Parental Involvement Laws
It is the pro-family ideology that has proven most useful to the conservative right to restrict minors' access to abortion. After the Supreme Court in Webster v. Reproductive Health Services (1989) gave states more latitude to regulate access to abortion, the National Right to Life announced that they would pursue passage of parental involvement laws (O'Keefe and Jones 1990). The popularity of parental involvement statutes is due to the political capital they offer politicians who can appear to be pro-life, pro-choice and pro-family at the same time (Saletan 2003). Nationwide public opinion polls show that a majority of parents and adolescents support parental involvement laws, even among those who support abortion rights (Butler and Bailey 2008, Levine 2006, O'Keefe and Jones 1990).
What are the arguments for passing such laws and what do their proponents seek to accomplish? Three reasons are commonly given by legal and social science scholars for the passage of measures restricting minors' access: 1) abortion is considered a more significant health risk for minors than for adult women, 2) adolescents lack the capacity to make informed medical decisions as adults, and 3) teens benefit from parental attention and consultation (Adler, Ozer and Tschann 2003; Britner, LaFleur, and Whitehead 1998; O'Keefe and Jones 1990). Legislators are also not afraid to state that such measures are attractive because they seek to defend parental rights and maintain their authority, deter minors from engaging in sexual activity, and promote healthy communication between parents and daughters (Dennis, Henshaw, Joyce, Finer and Blanchard 2009, Silverstein 2007, Bertuglia 2001). Proponents say that excluding parents will not only infringe on parental authority, but bring harm to minors seeking abortions without parental involvement since minors often underestimate that value of parental support (Dennis et al 2009, Clary 1982).
In an article written to respond to studies published by social scientists opposing parental involvement laws, Worthington et al (1989) argue that minors benefit from such measures claiming that adolescents will feel alienated from their parents for not confiding about their abortions which will contribute to problematic coping about their abortion decision making. The authors also state that minors engage in sexual behavior in the effort to rebel against their parents and that parents need to be involved in their daughters' abortion decisions in order to help avoid repeat pregnancies and abortions. Failing to consult parents "compounds the power struggle" (Worthington et al. 1989, 1544). The article is an example of how some view teen sexual activity as a social problem, a public health epidemic and a high-risk juvenile delinquency behavior in need of legal intervention. The authors also criticize studies written by opponents to these laws that use the framework that minor sexuality is an issue of personal liberty. Since the rights of equal protection and privacy were granted to minors seeking to exercise their reproductive autonomy in the Danforth decision in 1976, how did the legal environment change to allow the passage of parental involvement laws?
The answer, unfortunately, can also be found in the Danforth ruling. The Supreme Court held that a parent's interest in a minor daughter's abortion does not override the privacy rights of the "competent minor mature enough to have become pregnant" (428 at 75). Striking down a Missouri statute requiring unmarried pregnant minors to obtain written parental consent prior to abortions, the Court extended rights given to Roe to minors - but also stated that such rights were not absolute. The decision held forth that minors possessed privacy rights regarding reproduction, but that not all minors are competent. This is the first time the issue of competency of minors regarding abortion decision making is raised by the Court, but no guidance is given in defining minors' competency (Silverstein 2007, Ehrlich 2006). The ruling also affirmed notions that a state has the authority to regulate activities of minors using less rigorous standards regarding their constitutional rights than applied to adults as long as it could show it has "significant" state interest rather than a "compelling" state interest in restricting abortion (O'Shaughnessy 1996). The Court held that the "constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as adults, are protected by the Constitution and possess constitutional rights" (428 at 74). The Court rejected the notion that family structures would be stronger if there were absolute veto power by parents concluding that the desire to safeguard the family unit and protect parental authority was not significant enough to justify parental consent (Solinger 2005, Bertuglia 2001). However, this decision opened the door for more state legislatures to try to their hand at passing laws that would mandate parental consultation that would be deemed constitutional by the Court.
The key cases allowing parental involvement in abortion decision making of minors are Bellotti v. Baird I (1976) and Bellotti v. Baird II (1979). The Court remanded a Massachusetts two-parent consent statute with guidance on how such a law would be deemed constitutional if there were a third party mechanism to bypass parental veto power by suggesting the judicial bypass alternative. The second ruling overturned a revised version of the Massachusetts parental consent statute that carried the judicial bypass language as it did not pass constitutional muster: a minor could be eligible for judicial bypass only after her parents refused to consent. The Court understood that "young pregnant minors, especially those living at home, are particularly vulnerable to their parents' efforts to obstruct both an abortion and their access to court" (443 at 647). As in the Danforth ruling, the Bellotti II Court noted that there are differences between mature and immature minors, but neglected to offer any guidance to clarify "maturity". The Court found that constitutional rights of minors were distinguishable from adults based upon "the peculiar vulnerability of children; their inability to make critical decisions, in an informed, mature manner; and the importance of parental role in child rearing" (443 at 634). Another important aspect about this ruling is up until then, Roe defined abortion as a medical decision and states had historically allowed minors to self-consent to all pregnancy-related medical care including abortion. However, the language used in Bellotti II 4 defined abortion as a moral and religious decision in which parental involvement should be mandated (Ehrlich 2006). The ruling also negated a minor's presumptive maturity by virtue of her pregnancy found in Danforth. Bellotti II offered a blueprint on how parental involvement laws could be constitutional using the judicial bypass alternative. Subsequent rulings by the Supreme Court gave further reasons why parental involvement would be beneficial for minors, each one questioning minors' capacity to engage in pregnancy decision making.
The Court upheld a one-parent notification statute in Utah without judicial bypass in H.L. Matheson (1981). Although Utah allows minors to consent to other medical treatment related to pregnancy, the Court held that the state had a right to promote childbirth over abortion, pregnant minors' rights are not absolute, and abortion can be exceptionally risky for minors. In Planned Parenthood of Kansas City, Missouri v. Ashcroft (1983) , the Court upheld a parental consent law with judicial bypass for the first time. Ohio v. Akron Center for Reproductive Health (1990) let stand a one-parent notification statute with a judicial bypass without declaring whether the mechanism was essential. The Court stated that a notification law was different from a consent law as it does not carry the same type of veto power (Silverstein 2007, Bertuglia 2001). Hodgson v. Minnesota (1990) struck down a two-parent notification statute without a judicial bypass option and commented that such a statute would not be unduly burdensome if it had the bypass alternative. Planned Parenthood of Southeastern Pennsylvania v. Casey (1992) held that state restrictions on abortions were allowed unless the measures created "an undue burden". The Court reaffirmed that parental involvement laws will be constitutional as long as there is a judicial bypass alternative and the process does not place an undue burden on minors. The Court stated that it is reasonable to assume that minors will benefit from parental consultation; however, by also ruling that spousal consent for abortion was unconstitutional, the Court ignored risks of domestic violence pertaining to minors (Bertuglia 2001, O'Shaughnessy 1996). The most recent case is 5 Lambert v. Wicklund (1997), in which the Court let stand Montana's one-parent notification law and clarified that judicial bypass can be used to show that the parental notification of a minor's abortion is not in her best interest as well as the abortion decision without parental involvement is in her best interest (Silverstein 2007).
Overall, the Court has held that parental involvement statutes 1) must be in place to sustain parental authority, 2) are desirable as some parents have profound moral and religious concerns about abortion, and 3) allow parents to act in the best interests of their children. Dissents include concerns that the laws create family and personal problems, overextend parental authority to limit access to abortion, and open minors to retaliation by their parents through acts of physical violence, abandonment and obstruction from obtaining professional medical care (O'Shaughnessy 1996).
The criticisms of these rulings and the subsequent state laws are numerous. To begin, many in the legal field cry foul about the way minors are discriminated against in having to be subject to some laws that question their maturity and some others that assume it. The undue burden standards set out in Casey are applied unfairly to minors in comparison to adults and allow restrictive state laws to survive constitutional challenges (Bertuglia 2001). Although restrictions on the reproductive rights of minors have increased due to perceived lack of capacity in autonomous decision making, so have efforts to react more harshly towards minors regarding juvenile crime, including trying minors as adults (Britner, LaFleur, and Whitehead 1998, O'Shaughnessy 1996). Because youth are seen as maturing at an earlier age, legislators are adopting philosophies that minors need to be punished rather than rehabilitated since they are acting more like adults–resulting in legislative dissonance when laws are passed restricting their sexual rights (O'Shaughnessy 1996).
Implementation of Judicial Bypass
Another group of criticism focuses on the difficulty of minors finding adults willing to assist them in using the judicial bypass option. First, most minors are generally unaware of their reproductive rights, let alone that there is a judicial bypass alternative to a parental involvement statute. Many medical professionals are significantly unfamiliar with their state's laws, a frequent scenario which complicates minors' rights to access reproductive health care (Jacobs 2005, Philip 2001, Lieberman and Feierman 1999). Second, not all judges and court personnel are educated, ready or willing to hear these types of cases (Silverstein 2007, Jacobs 2005, Crosby and English 1991). Silverstein (2007) found that "40% of Alabama courts, just over 45% of Tennessee courts and a whopping 73% percent of Pennsylvania courts proved inadequately acquainted with their responsibilities under the (judicial bypass) law" (52). Some judges flat out refuse to hear cases (Silverstein 2007, Jacobs 2005, Philip 2003, Crosby and English 1991, O'Keefe and Jones 1990). Minors unable to access the court process locally either decide to carry to term, tell their parents about their pregnancies, or endure the stress of travelling to find a judge and/or abortion provider out of state (Crosby and English 1991, O'Keefe and Jones 1990). There is great concern regarding requiring parental involvement in abusive families in areas where it is difficult for minors to access the courts for bypass (Ambuel 1995, Crosby and English 1991). Poor access to the judicial bypass process contributes to the burden that the bypass compromise sought to resolve (Silverstein 2007, Jacobs 2005, Bertuglia 2001).
Although the Supreme Court in Bellotti II mandated that judicial bypass hearings are to be confidential and expedient, many states are not held accountable for how their local courts violate their statutes. Perceived lack of confidentiality in court hearings can deter minors from engaging in the court process, especially in small communities (Silverstein 2007, Philip 2003, Crosby and English 1991, O'Keefe and Jones 1995). Although parental involvement laws were reportedly created to safeguard the physical and emotional health of minors, the process of judicial bypass in areas where mandated expediency is absent delays medical treatment and increases risks associated with more progressed pregnancies in the second trimester (Sanger 2004, Philip 2003, Bertuglia 2001, Britner, LaFleur, and Whitehead 1998, Ambuel 1995, Crosby and English 1991, O'Keefe and Jones 1990). Further, in instances where minors anticipate a significant delay in ending their pregnancies, there is risk that minors will seek dangerous alternatives (Philip 2003, Crosby and English 1991). Poor implementation of the compromise described in Bellotti II between safeguarding minors' abortion rights and parental rights undermines the intent of these statutes, leading many to consider that the judicial bypass process is ripe for a constitutional challenge in many states (Silverstein 2007).
Another set of criticisms concern how many minors face difficulty meeting the expectations of judges during the hearings. For example, many argue that Bellotti II failed to offer any standards or approaches to assist a judge in assessing a minor's maturity and best interests. States have been left to resolve this through their own appellate and supreme courts or through determinations made by individual judges.6 As a result, courts do not effectively distinguish between mature and immature minors (Britner, LaFleur, and Whitehead 1998; Pliner and Yates 1992; Donovan 1980). It is not uncommon to hear among advocates that while some courts grant waivers based upon the maturity of minors willing to sacrifice their privacy and engage in the judicial bypass process, other judges engage in practices in which they ignore all testimony and deny waivers based on the notion that all minors who get pregnant are automatically deemed immature. In examining transcripts of hearings used in the appeals process, one study cites examples of judicial misconduct in questioning minors about morality and sexual activity in the attempt to try to upset the minors testifying. The study showed that questions posed to minors by judges can be irrelevant, incomplete and problematic in trying to apply a maturity standard – such as expecting a particular use of vocabulary or knowledge of how one dies from a ruptured uterus (Pliner and Yates 1992). To complicate the process more, court-appointed attorneys have been reported to act poorly in representing minors in these hearings in the effort to deter, frighten or humiliate their clients (Philip 2003).
The idea of a parental involvement law and its judicial bypass mechanism violates the sensibilities of many feminists and civil libertarians. Some point out the inconsistency in having anti-abortion foes tell minors to abide by parental consultation in their pregnancy decision making, but argue that minors should disregard their parents when they counsel them to abort (O'Keefe and Jones 1990). Others argue that hearings violate the privacy rights of minors by allowing a third party (parent, legal guardian or judge) into the pregnancy decision-making process (Bertuglia 2001, O'Shaughnessy 1996). Another view is that the notion of making a minor talk about their pregnancies in a court hearing carries connotations of "forced speech" as adult women do not have to endure testifying about their pregnancy decision making or announce to their parents about having engaged in sex resulting in unintended pregnancy (Sanger 2004). Having minors explain how and why they got pregnant and the decision to have an abortion in front of a judge brings back memories of adult women who had to present their arguments for abortion care before hospital review boards before Roe (Solinger 2005). One law professor describes the judicial bypass hearings as "a unique and rather clever form of punishment", that they are "intrusive, humiliating and meant to punish" minors for engaging in sexual behavior, and that the legal process is used to punish the petitioner where there is "no legal wrong" (Sanger 2004, 312). Nonetheless, studies have shown that in the majority of judicial bypass cases, minors are judged mature and those judged immature, win their cases based on best interests arguments (Ehrlich 2006, Sanger 2004, O'Keefe and Jones 1990). This brings up the biggest criticism among feminists: if a minor is denied a judicial bypass waiver based upon immaturity, it is difficult to understand why an immature minor should bear a child and become a mother (Sanger 2004, O'Keefe and Jones 1990).
Many criticisms of parental involvement laws and the legal frameworks in which they were created are centered on the loss of privacy rights. The Webster decision encouraged policy makers to consider how some abortions could be more moral justified than others in cases such as fetal defect, endangerment to maternal health, and sexual assault – meaning that reasons for choosing abortion should be subject to review by a higher authority than the pregnant woman or minor. The concern from legal scholars is if constitutional protections based upon the privacy argument continue to be weakened, patients' reasons for seeking abortions will become more important in maintaining their rights (O'Keefe and Jones 1990). However, should we trust the reasoning of minors in the abortion decision? Should we trust the decision-making capacity of those who choose not to involve their parents in deciding their pregnancy outcomes? Those in the social science and health fields are eager to show law and public policy makers how their reasoning behind promoting parental involvement is not congruent with research conducted on how minors engage in exercising their reproductive rights.
The Pregnancy Decision-Making Capacity of Minors
Prominent representatives of the health professions have spoken out against parental involvement laws in favor of minors seeking confidential reproductive health care:
The American Medical Association, the Society for Adolescent Medicine, the American Public Health Association, the American College of Obstetricians and Gynecologists, the American Academy of Pediatrics, and other health professional organizations have reached a consensus that minors should not be compelled or required to involve their parents in their decisions to obtain abortions, although they should be encouraged to discuss their pregnancies with their parents and other responsible adults. These conclusions result from objective analyses of current data, which indicate that legislation mandating parental involvement does not achieve the intended benefit of promoting family communication, but does increase the risk of harm to the adolescent by delaying access to appropriate medical care. (Felice and Boulter 1996)
These groups oppose parental involvement laws stating that mandated parental consultation and the resulting loss of confidentiality are deterrents for minors seeking sexual health care (Butler and Bailey 2008; Boonstra 2002; Britner, LaFleur, and Whitehead 1998; O'Keefe and Jones 1990; Torres, Forrest, and Eisman 1980). Legal scholars have recognized that the medical field view parental involvement laws as interfering with medical practice and undermining tenets of public health (Bertuglia 2001). One law professor states that the laws, "are less concerned with developing nuanced policies to improve the quality of teenage health or decision making than with securing a set of political goals aimed at making abortion harder to get, restoring parental authority, and punishing girls for having sex" (Sanger 2004, 306). The National Association of Social Workers also opposes parental involvement laws stating that they are unnecessary and their intentions violate the rights of minors in obtaining confidential services and achieving self-determination (Butler and Bailey 2008). Due to the body of research that has emerged in the psychology field on this issue, the American Psychological Association has participated in law suits challenging these restrictions by filing amicus briefs pointing out that scientific arguments regarding the decision making capacity of minors are not being recognized by the courts (Adler, Ozer and Tschann 2003). However, can we trust this research?
In the last two decades, studies have improved their methodology in examining minors' decision making by "using psychological variables closely linked to the legal construct of informed consent" and finding minors are as competent as adults. (Ambuel1995). Research shows that minors 14 years and older make medical decisions generally in the same manner as adults and are equal to adults to make informed, voluntary and intelligent decisions regarding medical treatment (Britner, LaFleur, and Whitehead 1998, Ambuel and Rappaport 1992, Donovan 1982). Minors are comparable to adults in the capacity to recognize implications of pregnancy; understand treatment alternatives, risks, and benefits; compare alternatives; and make a decision consistent with personal values and short-term and long-term goals (Ambuel 1995). For example, Ambuel and Rappaport (1992) conducted interviews with 75 participants in a study using what the authors called the Reasoning about Pregnancy (RAP) instrument, consisting of four criteria used to measure competence: volition, global quality, consequences and richness. Three age groups were selected to compare decision making: 13-15, 16-17, 18-21. Those 17 years and younger demonstrated competency in their pregnancy decision making as those 18 and older, if they considered abortion among their pregnancy options. In another study, Foster and Sprinthall (1992) explored factors of ego development and moral judgment among three groups of patients engaged in abortion decision making, ages 12-14, 17-19 and 23-25. No differences were found among the three groups in their reasoning regarding the abortion decision and all reported considering long-term factors such as financial consequences and goals towards achieving personal autonomy.
Studies also show that there are no differences between adults and minors in their comfort levels regarding their abortion decision making (Adler, Ozer and Tschann 2003; Britner, LaFleur, and Whitehead 1998). In a study where patients were assessed after the 30-minute post-abortion recovery period, those who perceived having a good support system demonstrated confidence in coping mechanisms, no matter the age of the patient (Major et al 1990). In another study, Quinton, Major and Richards (2001) compared responses by 38 minors and 402 adults in interviews measuring degrees of satisfaction and degrees of depression at one month and two years following first trimester procedures. The study used four questions in their survey instrument on the day of the procedure to assess perceived parental conflict, one inquiry regarding coercion to abort and another whether parents were consulted. One of the most important questions asked during the two year follow-up contact stated, "If you had the decision to make over again under the same circumstances that you were in two years ago, would you make the same decision to have that abortion?" The results showed that minors were not more depressed than adults when tested at either time period. Although minors reported less satisfaction and less benefit from obtaining the procedure as adults when surveyed one month following, the results were the same for both groups when surveyed two years later. The average measurement for both contacts with minors revealed positive benefits and no harm experienced by the abortion among minor participants. This is explained by minors' reports on the use of avoidant coping strategies and perceived parental conflict. The researchers conclude that their findings effectively challenge the assumption that minors are more vulnerable to psychological harm following abortions than adults.
Another follow-up study by Andrews and Boyce (2003) involved interviews of 12 teens (ages 15-18) conducted twice at 6 months and then again at 8 months after their abortion procedures. They found that none of the participants wavered in their confidence regarding the outcomes of their pregnancies and none experienced emotional regret. The researchers state that in the three sets of interviews conducted with the teen participants regarding their unplanned pregnancies and elective abortions, there were reports of initial sadness, but none concerning serious psychiatric problems. Another study showed that minors who carry unplanned pregnancies to term report feelings of less self-esteem and more anxiety than minor abortion patients (Adler, Ozer and Tschann 2003).
The rationale used to support the notion that minors are too immature to self-consent to abortion has been also disproved by studies which show that minors considering abortion are more likely to exhibit mature and competent behavior than minors not considering abortion as a feasible pregnancy option. (Adler, Ozer and Tschann 2003; Ambuel and Rappaport 1992). In a study by Donovan (1992), differences and similarities in pregnancy decision making among 75 youth were explored in three age categories: 14-15, 16-17, and 18-21. Analysis included measuring the independent variables of how much conflict was experienced in making the pregnancy decision and the types of social support accessed by the participants. The researcher compared those in the three groups considering abortion and found that most minors ages 14-17 demonstrated similar competency as the young adults considering abortion. These minors were able to understand the risks and benefits of each pregnancy option and to engage in voluntary and independent decision-making. However, minors 15 and younger who did not consider abortion a pregnancy option were seen as less competent than young adults in the study due to the quality of their decision-making process and their reasons offered.
Butler and Bailey (2008) examined characteristics of minors engaged in pregnancy decision making focusing on aspects regarding maturity, defined as having a "particular level of emotional and moral development", and competence, which "implies intellectual capability" (62). Using data collected from a survey of 111 pregnant minors ranging in ages 13-17, the study explored the relationship between indicators of maturity and competence with the likelihood of parental involvement regarding their abortion decisions. The dependent variable was whether a minor had informed at least one parent or legal guardian of her abortion decision. Independent variables included indicators of maturity and competence, such as age, year in school, grade average, employment, volunteer service, and educational aspirations. The study found that minors who sought abortions without parental involvement were more likely to exhibit characteristics of maturity and competence. The authors offer a key point that the minors seeking judicial bypass are not the type to avoid responsibility, but are those who strive to fulfill responsibilities expected by their schools, families and communities.
Minors have indicated that satisfaction with pregnancy outcomes was not determined by the variable of having consulted with one's parents, but whether the parent supported the final pregnancy decision. This has proven true in studies for minors who chose to terminate their pregnancies as well as for those who chose to carry to term. Because they are more socially, emotionally and financially dependent than adults, minors may be especially likely to tell a parent of their pregnancy, but feel that the choice becomes not their own (Zakus and Wilday 1987, Clary 1982). Minors are more likely than adults to perceive decisions about pregnancy outcomes and contraception as being "externally" determined (Henshaw & Kost 1992, Lewis 1980). However, those who report good communication with their parents about sexual issues will confide with them regardless of maturity level (Enrlich 2003, Resnick 1994, Zabin et al 1992). Studies show that satisfaction with parental involvement in a pregnancy decision is based more upon how positive the relationship is between daughter and parents (Adler, Ozer and Tschann 2003; Blum, Resnick and Stark 2000; Resnick, Bearinger, and Stark 1994; Zabin et al. 1992).
In a study examining the likelihood of some minors more than others to involve parents in pregnancy decision making, Zabin et al (1992) explored whether notification of minors' intentions alters their pregnancy outcomes. Among 334 minors interviewed while receiving the results of pregnancy tests, participants were asked with whom they consulted about being tested. Two follow-up interviews were conducted by telephone at 6 months and then again at 18 months (284 participating) and in-person interviews with participants (313) were done 2 years after initial contact. The participants were asked if their pregnancy outcomes reflected good decision making and with whom they consulted during the decision-making process. Findings included that 95% confided in a trusted adult to whom they considered themselves responsible, not necessarily their biological parent. Overall, 57% of the participants confided in their mothers prior to their pregnancy tests and 86% of mothers were consulted regarding their pregnancy decisions. Only 1% who lived with their mothers consulted with another trusted adult, while 26% who did not live with their mothers confided in another trusted adult. The major determinant found regarding whom the minors chose to confide about their pregnancies was the adult women with whom they had prior communication regarding sexual health. Those who followed through on the decisions they made at initial interviews during the study regarding their pregnancies were also more satisfied with the outcomes. Minors whose pregnancy decision making was autonomous were more satisfied than those who felt the decisions were made for them.
Studies also show that the type of relationship between daughter and parents dictates whether parents will be involved in pregnancy decisions, not legal mandates. Griffin-Carlson and Macklin (1993) surveyed 439 pregnant women between the ages of 12 - 21 about the type of support networks they consulted during their pregnancy decision-making processes. The intent was to identify the factors that predict whether minors would consult their parents in their decisions. Five variables (age, marital status, living arrangements, employment status and maturity) were used as indicators of perceived independence. Two other variables involved general family communication and the same regarding communications about sexuality. Two groups were divided – those who told at least one parent and those who did not – measured against the seven variables. The results showed that the degree of independence (financial and emotional) as well as the quality of family communication contributed in the decision for a teenager to consult with at least one parent regarding the abortion decision. Although the researchers did not clearly distinguish the results concerning minors when speaking of "teenagers", the study did offer reasons for parental involvement and non-involvement. Involvement reasons fell into three categories: assistance with money, desire for emotional support, and adherence to parental authority (they felt it was the parent's right to know). Non-involvement reasons fell into four categories: fear of rejection, fear of disappointment, desire of sparing the burden of the situation, and instinct to handle the pregnancy event autonomously.
Another example of research regarding the choice whether to involve a parent in abortion decision making is a follow-up study by Resnick, Bearinger, and Stark (1994). A comparison was made of minors who obtained abortions in a state that has a two-parent notification law (Minnesota) to minors in a state which did not have a parental involvement law at the time of the study (Wisconsin). The study explored whether minors consult parents, peers or other adults in their pregnancy decision making. First interviews were conducted with 148 minors from Minnesota and 37 minors from Wisconsin on the day of their abortions. Second interviews were attempted approximately one year later (45% response rate). Participants in Minnesota either complied with the state law through clinic notification of both parents or successfully obtained judicial bypass waivers. More than 75% of the study's participants reported seeking advice from at least one adult about their pregnancies. Most importantly, the study showed that of the minors who chose not to involve their parents in the pregnancy decision making (44%), all continued to keep their pregnancies and their outcomes secret from their parents one year later. Resnick, Bearinger, and Stark comment about the importance regarding these responses "perhaps indicating that the initial reasons for avoiding parental notification were stable and salient across time" (314). They conclude that mandated parental notification does not change the consultation patterns of pregnant minors and that it is the degree of a supportive relationship between parent and daughter that dictates parental involvement in minors' pregnancy decision making.
Another study from Minnesota also explores experiences of minors seeking to comply with its two-parent notification law. Those able to notify only one parent are still required to go to court for a waiver to notify the other parent. Blum, Resnick, and Stark (2000) showed that maternal involvement was the key difference between minors who chose to engage in judicial bypass and those who had their parents notified. These minors were more likely to live in single-parent homes and report positive relationships with their mothers who were their custodial parents. The study showed that 43% of the minors who chose judicial bypass were more likely to be older minors than younger ones (85% were 16 years or older). Seeking abortion services at four clinics, 148 minors were compared in two groups: those who had their parents notified by the clinic and those who did not. The sample was geographically diverse and did not show any differences among urban, suburban and rural areas. Reported religious observance of minors increased the likelihood of parents not being notified. Minors who reported a high degree of control exercised by their parents were also less like to confide in them. This study also makes a unique contribution in analyzing minors' perspectives on when they decide to involve their parents: minors who have no relationship with their fathers were not informed, and those who had positive relationships with their fathers claiming openness and compassion were also not informed due to fears of inciting disappointment.
Griffin-Carlson and Schwanenflugel (1998) sought to identify factors that are relevant in determining a positive, supportive response when minors confide with parents about the decision to have an abortion. A sample of 159 minors was surveyed regarding experiences with parental involvement in pregnancy decision making. Although each minor was accompanied by at least one of her parents to the clinics participating in the study, survey instruments were administered by the clinic counselors in private rooms where parents were not present. Fourteen independent variables were identified in areas such as demographics, religiosity, and degrees of family functioning. Results showed that demographics and religiosity have little bearing in predicting a positive or negative experience in parental response after parental notification of minors' intention to abort. However, the ability for the family to be adaptable did provide the best predicting variable, defined as "parents' ability to change their interactions with their children in age-appropriate ways" and "are more likely to accept the growing sexuality of their daughters during adolescence" (549). Although the researchers comment that perhaps there was a positive bias in the sample since there was a 50-75% refusal rate among eligible minors to participate in their study, it is important to note that 40% of the minors that did participate reported negative experiences when consulting with their parents.
Henshaw and Kost (1992) provide perspectives by minors regarding their abortion decisions, with or without parental involvement. Of 1,500 minors surveyed, ages 12-17, 75% had informed at least one parent about their pregnancies. The most common reasons given by minors for not involving their parents include the desire to preserve the family relationship and "wanting to protect parents from stress and conflict" (197). Of those who did not tell their parents, 30% reported having experienced prior physical abuse and feared potential violence or abandonment. The researchers found that only 7% of the minors they surveyed appeared to have been in situations where parental involvement may have been helpful, indicating that the majority of minors surveyed exhibited mature decision making with adequate social support. A second set of results indicates that minors are accurate in their predictions of parental reactions. A third set indicates that clinic pressure regarding pregnancy outcomes is rare, but that approximately 18% of minors surveyed indicated that they were being pressured by their parents to terminate. Henshaw and Kost conclude that a majority of minors would not be affected by laws mandating parental involvement, but a minority would be "exposed to risk of significant harm or coercion to resolve the pregnancy in a way contrary to what the minor would choose for herself" (207).
The theme of minors who fear negative reactions when facing mandated parental involvement also appears in other studies. Ehrlich (2003), an attorney who represents minors in judicial bypass hearings in Massachusetts which has a one-parent consent statute, interviewed 26 minors one month following their hearings. Participants of the study demonstrated concern regarding the impact of disclosure on their parents and others. Reasons that emerged from the interviews about the decision to not involve parents included fear of serious adverse response and relational considerations. Commenting on the results of their study, Butler and Bailey (2008) state that just because teenagers are able to present themselves as mature does not mean that minors will not also fear potential stress, disappointment and punishment in informing their parents about the unexpected pregnancy and/or intention to abort.
The results of Butler and Bailey's research regarding the reasons pregnant minors exclude their parents from abortion decisions are consistent with other studies. These include not wanting to hurt or disappoint parents (Sanger 2004; Ehrlich 2003; Blum, Resnick and Stark 2000; Henshaw & Kost 1992; O'Keefe and Jones 1990; Clary 1982) nor burden parents or create significant stress, especially if a parent is in a fragile mental state (Sanger 2004, Henshaw & Kost 1992). Minors report fear of anger (Clary 1982 and Henshaw & Kost 1992), fear of rejection or being kicked out of their homes (Sanger 2004, Ehrlich 2003, Philip 2003), and fear of punishment or physical abuse (Enrlich 2003, Philip 2003, Henshaw & Kost 1992, Clary 1982). Fear of domestic violence is not only sparked in these minors seeking to comply with parental involvement laws, but in their mothers as well. Henshaw and Kost (1992) found that results of their study indicate that two-parent involvement laws will prove to be problematic for some families as 57% of the mothers who knew about their daughters' pregnancies chose not involve their daughters' fathers. Philip (2003) reported that some minors indicated not wanting to involve their parents in their abortion decision for fear of having their mothers blamed by their fathers for the unintended pregnancy. Some minors reported not wanting to find an abusive parent to have notified due to fear of reoccurrence of violence in their homes.
Is There a Need for Parental Involvement Laws?
Other arguments against parental involvement laws involve unequal application of the 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. To strengthen the argument for minors’ access to abortion, research has shown that there is no increased medical risk associated with abortion based solely on the age of the patient (Sanger 2004, Ehrlich 2003, Bertuglia 2001, O’Shaughnessy 1996, O’Keefe and Jones 1990). [Note: see also CDC’s Abortion Surveillance System: FAQs]
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 (Adler, Ozer and Tschann 2003, Crosby and English 1991). Most minors consult their parents in their pregnancy decisions (Ambuel 1995; Resnick et al 1994; Henshaw and Kost 1992; Zabin et al. 1992; Blum et al. 1987; Torres, Forres, Eisman 1980, Zabin et al 1992). A parental involvement law does not change the consultation patterns of pregnant minors nor does it encourage communication as intended (Bertuglia 2001; O'Shaughnessy 1996; Resnick, Bearinger, and Stark 1994; Henshaw and Kost 1992; Zabin et al. 1992; Crosby and English 1991; Clary 1982; Lewis 1980). It is the long standing relationship factors that promotes or inhibits parental consultation (Griffin-Carlson & Mackli 1993, Zabin et al. 1992, Henshaw & Kost 1992). 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 (Henshaw and Kost 1992, Zabin et al 1992). 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. Zabin et al. (1992) point out that since a high proportion of minors in their study did consult with trusted adults - many who are not recognized as legal guardians - the courts need not be involved in a family matter unless there is significant evidence of serious dysfunction.
Other arguments against parental involvement laws involve unequal application of the 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. To strengthen this argument, research has shown that there is no increased medical risk associated with abortion based solely on the age of the patient (Sanger 2004, Ehrlich 2003, Bertuglia 2001, O'Shaughnessy 1996, O'Keefe and Jones 1990). In other studies, younger minors were shown to inform their parents more often than older minors (O'Shaughnessy 1996; Resnick, Bearinger and Stark 1994; Henshaw & Kost 1992; Clary 1982.) Donovan (1992) argues that younger minors who did not consider abortion as a pregnancy option were seen as less competent than older minors and young adults in her study. She and Ehrlich (2006) challenge that parental involvement laws target the wrong youth: the majority of minors who considered abortion as a pregnancy option are not the minors that states seek to protect, and the ones that need to be protected from making uninformed decisions can be best helped in a health care setting rather than a legal adversarial one. Prior to the 1980s, the majority of abortion providers reported employing parental involvement policies in treating minors independent of state laws and clinic staff used their professional discretion to waive them for individual circumstances. (Torres, Forrest and Eisman 1980). Quinton, Major and Richards (2001) argue that since studies shows that minors are just as competent as adults in their pregnancy decision making, 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. Many researchers and writers mentioned in this literature review have questioned the necessity of parental involvement laws. Citing that the intentions of these laws violate the rights of minors in obtaining confidential services and achieving self-determination, many suggest that these statutes and their judicial bypass mechanisms create an unnecessary burden (Butler and Bailey 2008; Quinton, Major and Richards 2001; Bertuglia 2001).
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 (Britner, LaFleur, and Whitehead 1998, O'Keefe and Jones 1990). 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 (Ehrlich 2003; Quinton, Major and Richards 2001; Britner, LaFleur, and Whitehead 1998; Ambuel 1995; Pliner and Yates 1992; O'Keefe and Jones 1990). Some desire more straight forward approaches such as making parental involvement laws apply to minors under 15 years in age (Britner, LaFleur, and Whitehead 1998; Ambuel 1995; Pliner and Yates 1992) or that all pregnant minors should be deemed legally competent to consent to all medical treatment (Britner, LaFleur, and Whitehead 1998; Ambuel 1995; Donovan 1982). Others think that the right of privacy should be clearly afforded to minors through federal measures or legal rulings using the 14th Amendment (Bertuglia 2001, Britner, LaFleur, and Whitehead 1998).
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 (Gans 1993). Judges are recommended to decide judicial bypass cases using research on how competency and maturity has been evaluated by the social sciences. Britner, LeFluer and Whitehead (1998) offer an approach for judges they call an "Informed Consent Framework" and outline 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.
In January 2001, I helped launch a non-profit organization formed to provide legal assistance to pregnant minors seeking to comply with the Texas parental notification statute. In screening over 1,200 minors for services through the Jane's DUE PROCESS hotline, I was able to capture basic demographic information regarding age, ethnicity, geography, education, and pregnancy history as well as reasons minors reported for seeking abortion services without parental involvement. The data I collected over the years has helped identify common factors that contribute to minors' resistance to parental involvement. Based upon this information, I am able to offer basic statistics about how minors were significantly affected by the notification statute when it was in effect (the law is now parental consent).7 Many reported that they would have been willing to comply with the state parental involvement law - if had been feasible.
- 35% reported having at least one parent missing, deceased or incarcerated.
- 12% reported being unable to contact either parent.
- 26% of the minors contacting the hotline reported having experienced physical abuse by their parents or legal guardians.
- 37% reported having been threatened or already kicked out of their homes for being pregnant.
- 25% of the minors who contacted the hotline reported having been pregnant before and 14% were actively parenting their children.
- 28% reported fear of being forced to carry to term against their better judgment (Philip 2004).
Texas law does not exempt orphans or de facto orphans from its parental involvement law, nor crime victims and teen mothers. Victims of sexual assault are not exempt. Many of the callers discussed other trusted adults they had in their lives who were helping with their pregnancy decision making. For those experiencing threats of domestic violence, alternative notification or consent is a safer option. Also, it is important to note for many minors who experience significant degrees of physical, emotional and/or sexual abuse in their families, there is no difference between parental notification and parental consent. A parent having advanced notice of a medical procedure being sought by a minor daughter can obstruct that procedure from being performed through threats or acts of physical violence as well as unlawful restraint.
The most accurate research regarding how Texas has been affected by its parental involvement laws is by Joyce, Kaestner and Coleman (2006), who conducted a study examining pregnancy, abortion and birth rates two years before and two years after the enactment of the parental notification statute in January 2000. Their findings show that there was a decrease in the number of abortions performed among youth ages 15-17 years, an increase in the overall teen birthrate, and no change in the rate of overall teen pregnancies. The study also found evidence of delays in obtaining abortions for minors just under 18 years of age, seen in the drop in the number of first trimester abortions among 17 year-olds, and a corresponding increase of second trimester procedures among 18 year-olds. These results provide insight regarding the effects of the statute in regards to minor pregnancy decision making.8 The law has not been a deterrent to teen pregnancy, but may be a contribution to the increase in the teen birthrate. According to the National Campaign to Prevent Teen and Unplanned Pregnancy, Texas had the third highest teen birth rate in the nation in 2006. 9
Reproductive health and legal advocates in Texas are open to the idea about adopting other alternatives to parental consent, as well as the judicial bypass mechanism. A study conducted by Jacobs (2005) researched issues raised by local attorneys, youth advocates and health care professionals surrounding concerns about fair access, due process, expediency and confidentially regarding judicial bypass hearings. A former law clerk at JDP, Jacobs found that access to correct information about the court process proved problematic when surveying abortion clinics in Texas, who serve as the main reference to minors seeking information about the law. In telephone surveys conducted by JDP interns, misinformation and reluctance to share information about the court process was experienced in contacting the majority of the 36 abortion clinics with a high number of them referring callers directly to court clerks. At the time of the study, JDP maintained a database containing responses to annual telephone surveys regarding how pregnant minors would file for petitions for judicial bypass hearings in the 254 counties. Using data collected in 2003, Jacobs analyzed whether the court clerks were prepared enough to assist minors to comply with the notification law using similar methodology used by Silverstein (2007) in her studies in Alabama, Pennsylvania and Tennessee noted previously. Of the 254 counties, only 108 met the definition of preparedness. Some clerks and judges simply recommended against minors seeking hearings in their counties due to concerns regarding confidentiality and due process. Jacobs argues that the bypass process was put into place by the Supreme Court to protect the most vulnerable of minors who are unable to access parental involvement, yet the majority of Texas courts are not willing to ensure minors' access to this legal relief.
How can scholarship encourage social justice for youth seeking reproductive autonomy in states such as Texas? If the available literature is not enough, then perhaps there is a need for more focused and inclusive research to contribute to the growing body of knowledge to help inform law and public policy makers about how parental involvement laws harm these youth. In particular, Adler, Ozer and Tschann (2003) recommend that studies should be conducted regarding the types of unintentional hazards that occur as minors seek to comply with these laws, such as increased rates of parental abuse and conflict, stress for minors in participating in legal proceedings, delays in seeking abortion care resulting in more second trimester cases, challenges in traveling out of state for procedures, and risks in seeking illegal abortion methods to circumvent the laws. Andrews and Boyce (2003) suggest further research to explore whether regret or remorse may be experienced among minors choosing abortion later in their lives as adults. Dennis et al. (2009) suggest evaluating the impact of minors forced to consult with their parents and the actual opinions of minors about the laws. In a recent literature review of studies about parental involvement statutes, the authors discuss the importance of factoring in racial and ethnic differences, distinguishing between short and long-term effects of the laws, and comparing pregnancy outcomes of minors in states with and without such laws (suggesting that pre-law and post-law trends are best to examine).
However, the call for further examination of whether parental involvement laws do more harm than good for pregnant minors – or that they are basically unnecessary - will only be heard if we are willing for this "common ground" discourse on abortion to be inclusive of the rights of youth. If the pregnancy decision making and satisfaction in pregnancy outcomes of minor women is equal to that of adult women, why are we still engaging in the subordination of youth and acting as if they have no place at the table? Why do we insist on relying on these laws?
In addition to being the founding director of Jane's DUE PROCESS, Philip is a former regional director of the ACLU of Texas and director of legal advocacy at the Texas Advocacy Project, as well as interim executive director of the National Coalition of Abortion Providers and its sister organizations, the Abortion Conversation Project and the Abortion Care Network. She currently serves on the board of directors of the DC Abortion Fund and the advisory committee of Lilith: A Fund for Reproductive Equity. Philip is pursuing her M.S. in Women's Studies at Towson University.
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1 Twenty-two states require consent of at least one parent, with two requiring consent from both parents. Ten states require notification of at least one parent, with one requiring both parents. Two states require consent and notification of at least one parent. Six states allow an additional alternative of adult relative notification or consent to bypass parental involvement. Three states allow specified health care professionals to waive the parental involvement requirement in certain circumstances. For more information about which states have passed these laws, see States Policies in Brief: Parental Involvement in Minors' Abortions published monthly by the Alan Guttmacher Institute at www.agi-usa.org. Another seven states have parental involvement statutes that have been enjoined or struck down due to conflicts with state or federal constitutional law. For more information about challenges by the states, see Jessica Bertuglia. 2001. Preserving the right to choose: A minor's right to confidential reproductive health care. Women's Rights Law Reporter. 23 (1): 63-77.
2 The Supreme Court has yet to rule whether parental notification statutes require judicial bypass alternatives. However, state legislatures have taken precautions to include the alternative measure in order to withstand potential constitutional challenges. Supreme Court cases on the issue have resulted in mixed results.
3 For more information see Heather Boonstra, 2002. Issues in brief, teen pregnancy: Trends and lessons learned, The Alan Guttmacher Institute. (591) 1-4.
4 For a more complete analysis of Bellotti v. Baird, see J. Shoshana Ehrlich. 2006. Who Decides? The Abortion Rights of Teens. Praeger Publishers. Westport, CT
5 For a more complete analysis of these Court cases, see Helena Silverstein, 2007. Girls on the Stand: How Courts Fail Pregnant Minors. New York University Press, New York, NY
6 For more information about the frameworks that judges use to assess minor's maturity, see Preston Britner, Suzanne J. LaFleur and Amy J. Whitehead. 1998. Evaluating juveniles' competence to make abortion decisions: How social science can inform the law. University of Chicago Law School Roundtable. (5): 1-35.
7 On January 1, 2000 Texas enacted a parental notification statute which later evolved into a parental consent law on September 1, 2005.
8 For more information, see Theodore Joyce, Robert Kaestner, and Silvie Colman. 2006. Changes in abortions and births and the Texas Parental Notification Law. The New England Journal of Medicine. 354 (10): 1031-1038
9 For more information about how each state fares in teen pregnancy and birth rates, see http://www.thenationalcampaign.org/state-data/state-comparisions.asp?id=3&sID=18
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