Katheryn D Katz. Albany Law Review. Volume 62, Issue 3. Spring 1999.
Introduction
This Article examines the constitutional parameters of reproductive autonomy, particularly as they pertain to a pregnant minor’s access to abortion. Both the United States Supreme Court’s jurisprudence in this area and the effect of laws designed to curtail the access of unmarried pregnant minors to safe and legal abortions are surveyed. Also discussed are the current efforts at the federal level to impose national parental involvement requirements when minors seek access to contraceptives or abortion. Finally, a new standard for addressing a minor’s constitutional claims to reproductive freedom is proposed.
As soon as the Supreme Court announced its decisions in Roe v. Wade and Doe v. Bolton, invalidating most existing abortion laws, anti-abortion activists unleashed a firestorm of activity seeking either to outlaw abortion entirely by constitutional amendment or to restrict access to abortion through legislative proposals. The legislative activity has continued unabated since 1973 and much of it has been productive. Two of the most successful efforts have been measures aimed at the least powerful categories of pregnant females—poor women and unmarried minors. Congress and many state legislatures enacted prohibitions on the use of public funds for the abortion expenses of poor women and states targeted unmarried pregnant minors’ access to abortion through the enactment of parental notification and consent laws. State parental involvement statutes are now widespread. The laws typically provide criminal penalties for the physician who performs an abortion upon a minor without the requisite parental notification or consent. The Supreme Court has upheld parental involvement statutes where they provide for bypass procedures by which the young woman may petition a third party decision-maker and demonstrate that she is mature enough to decide whether to terminate her pregnancy. If she is found to be immature, she still must be given the chance to demonstrate that an abortion is in her best interest. Therefore, when a minor chooses to terminate her pregnancy, the state may, consistent with the United States Constitution, place the abortion decision in the discretion of a judge or some other government official as well as her physician. If she is immature and unemancipated, arguably there is no constitutional necessity of a bypass procedure for a parental notification law.
More recently, anti-abortion forces succeeded in having two pieces of anti-abortion legislation introduced in Congress. Both federal proposals are directed at a minor’s ability to obtain an abortion. One, entitled the Child Custody Protection Act (CCPA), makes it a federal crime for a non-parent to take a pregnant minor across state lines to obtain an abortion for the purpose of avoiding laws requiring the involvement of parents in abortion decisions. In effect, this proposal will give extraterritorial force to state laws that mandate parental involvement in the minor’s abortion decision. The other proposal, the Putting Parents First Act (PPFA), requires minors to get parental consent for abortion referrals or contraceptives obtained at any facility receiving federal funds, thus reversing years of public health policy.
Parental involvement statutes are not the only legal means used to try to deny or limit a minor’s access to abortion. A recent North Carolina case involved a civil suit for assault and battery against a physician and clinic for performing an abortion upon a sixteen-year-old who had forged her mother’s signature on a consent form and stated that she was seventeen on a patient information record. The plaintiffs, the girl and her parents, alleged that the defendants intentionally or negligently inflicted emotional distress upon the girl and her parents; they sought compensatory and punitive damages. The appellate court affirmed the trial court’s order dismissing the complaint, agreeing that there had been compliance with the parental consent law, and that the abortion providers had no affirmative duty to determine the validity of the purported written consent. Other states, however, have included requirements in their parental consent laws that are intended to prevent forgery of the parent’s signature. Louisiana, for example, has adopted a law requiring parental consent to be notarized. Until the courts invalidated South Dakota’s parental involvement statute, it provided that parents of a minor, upon whom an abortion had been performed that was not in compliance with the statute, could sue the physician for treble damages and be awarded punitive damages in the amount of $10,000.
Although supporters of parental involvement laws claim that they are justified by the need for parental wisdom and counsel when an unmarried minor faces an undesired pregnancy, there are anti-abortion activists who do not hesitate to take action when the parents’ decision is to permit an abortion. In Michigan, a state that bans almost all abortions past twenty-four weeks, a twelve-year-old Detroit girl who had been impregnated by her older brother was taken into state custody when authorities learned that the parents planned to take her out of state for a late term abortion. The court originally granted a petition preventing the parents from carrying through with their arrangements for medical assistance. The judge eventually relented and returned her to her parents custody after her doctor argued that the pregnancy could imperil her physical and mental health, and a psychologist testified that a Hindu who had a non-marital child would be considered an outcast, unfit for marriage. Abortion opponents offered the family money if the girl would continue the pregnancy, and stated that the girl’s age and alleged incest did not sway them from their position. “The best interests of the young mother would be served by delivering this child alive,” stated Erin Wilson of Right to Life of Michigan.
The parents of a pregnant girl’s sexual partner may also seek to play a role in the abortion decision. In a notorious Nebraska abortion prevention case, the parents of a male who had impregnated a fifteen-year-old girl learned of her appointment at an abortion clinic, and interfered with the abortion decision made by the pregnant girl and her family. The partner’s mother obtained a letter from a physician (who had not examined the girl) stating that an abortion at twenty-three weeks could be risky. Shortly after midnight, three police officers with possession of the letter took the girl from her parents’ home. She was detained in police custody for thirty-six hours and then sent to a foster home. The police initiated judicial proceedings to determine whether she was in danger or neglected. When the police determined that she was twenty-seven weeks pregnant, they released her after her parents promised in a court hearing that they would not obtain an abortion for her without a court order. In fact, the girl and her family decided against an abortion when they realized the advanced stage of her pregnancy. Four years later the girl’s family settled the lawsuit they had filed against the ex-boyfriend’s family and local officials for interfering with the family’s decision concerning the pregnancy.
In addition to the state-created obstacles to abortion, pregnant minors face the same shortage of abortion providers that adult women face. Abortion, although one of the fundamental aspects of reproductive freedom, is increasingly unavailable to poor and disadvantaged women. Clinic violence, harassment, and social stigma has led to a marked shortage of physicians willing to perform abortions. Approximately eighty-four percent of American counties have no abortion provider. Further, there are fewer trained providers, and doctors who are willing to perform abortions are becoming scarce outside of urban areas. For example, when the constitutionality of South Dakota’s parental notice statute was challenged, the court noted that the physician who was involved in the challenge was the only doctor who performed abortions in the state. There is such a paucity of medical school education and training in abortion procedures that the accrediting authorities have had to promulgate a requirement that hospitals training residents in obstetrics and gynecology include abortion skills in their programs. Critics charge, however, that hospitals now provide so few abortions that doctors in training will have difficulty learning the necessary procedures.
Driven by political and financial considerations, many hospitals have gradually withdrawn from providing abortions, a change that critics charge leaves “abortions outside the protective aura of established medical centers, creating delays for women who need abortions and leaving the independent clinics ever more susceptible to violence.” The isolation of abortion services in free standing clinics has lead to life-threatening delays in finding abortion providers for women who rely on hospitals for their medical care, as well as made it easier for anti-abortion groups to identify and to beleaguer doctors and patients. In fact, in some states there is as few as one provider of abortion services. The mergers that are taking place between private or municipal hospitals and Catholic hospitals mean not only that abortion services are no longer avail-able, but family planning and sterilization services are also disappearing.
My primary purpose is to examine the tension between parental rights and adolescent autonomy, particularly reproductive autonomy. Accordingly, I address the constitutional boundaries of parental control and the evolution of minor’s reproductive rights. I also consider the conflicts generated by a tradition of governmental limitations on a minor’s self-determination imposed in the guise of protecting the minor and upholding the authority of parents. I conclude that the analysis used to determine the breadth of a pregnant minor’s right to seek an abortion is fatally flawed, emphasizing as it does the impact of an abortion, rather than the impact of pregnancy, childbirth, and an unwanted child on the young woman.
The Pregnant Minor’s Claim of Reproductive Liberty
Supreme Court Jurisprudence Concerning a Minor’s Reproductive Liberty
General Principles Concerning Minors and the Constitution
The Supreme Court’s jurisprudence on a minor’s abortion decision must be understood within the basic framework of a child’s constitutional rights. Since the middle of the twentieth century the Court has consistently recognized as a general principle that the Bill of Rights and the Fourteenth Amendment protect minors, and not just adults, from unjustified state action. Nevertheless, when that abstract principle is applied to concrete cases, it is apparent that there are countervailing, limiting principles. The Court has made clear that there are some activities of children that may be subject to state regulation to a greater degree than those of adults. The state may even punish or seek to curtail conduct of adults that would be unobjectionable or even constitutionally protected were children not involved.
Accordingly, the Court has reinforced the state’s power to curtail the rights of minors where it acts in the guise of a protector of minors from their lack of capacity to fend for themselves. The Court has reiterated in a number of cases that the constitutional rights of minors are not coextensive with those of adults by reason of “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” Thus, “the State is entitled to adjust its legal system to account for children’s vulnerability and their needs for `concern, … sympathy, and … paternal attention.'” The freedom of children is seen as validly limited as to those decisions having “potentially serious consequences,” since “minors often lack the experience, perspective, and judgment to recognize and avoid choices that could be detrimental to them.”
The other general constitutional principle undermining minors’ independence is the deference given to family autonomy—deference that has been a persistent hallmark of the Court’s jurisprudence on the family from 1923 to the present. The Supreme Court’s understanding of the family is that the protection of liberty under the Due Process Clause includes parental authority to raise their children as they see fit. Although there is general agreement on the Court that children are not beyond the protection of the Constitution, the Court has never viewed children as fully sovereign individuals who have rights to dignity and personhood. The Court’s conception of the family as the institution by which society “inculcate[s] and pass[es] down many of [its] most cherished values, moral and cultural,” is seen as requiring “that constitutional principles be applied with sensitivity and flexibility to the special needs of parents and children.” To the extent that children’s interests are protected at the expense of their parents’ authority, the protection is usually manifested by giving some other adults decision-making authority rather than through recognition of the minors’ right to control important facets of her life.
The Court’s protection of the parental role in transmitting values has been both praised and condemned. Professor Peggy Davis, for example, has presented family liberty as entailing “the right of every individual to affect the culture and embrace, act upon, and advocate privately chosen values.” On the other hand, Professor Barbara Woodhouse has described the foundational decisions protecting parental autonomy as “constitutionalizing a patriarchal notion of parental rights,” viewing children as parental property, and permitting the use of children as “conduit[s] for the parents’ religious expression, cultural identity, and class aspirations.” Others have rejected the concept of parental rights in its entirety as antithetical to the principle that no one is entitled to control the life of another.
The Special Case of Abortion
The Supreme Court has issued at least nine decisions dealing with minors’ access to abortion without ever satisfactorily explaining the reasons why a minor’s right to seek termination of her pregnancy is not co-extensive with that of an adult woman who faces an unwanted or dangerous pregnancy. A woman’s interest in determining whether she will continue a pregnancy has been described as a “fundamental right to self-determination.” “among the `choices central to personal dignity and autonomy.” Furthermore, a woman’s choice rests on the “moral fact that a person belongs to himself and not … to society as a whole.” The Court has not offered a persuasive rationale for denying an unmarried pregnant minor the same right to control her body and the concomitant right to define her “own concept of existence, of meaning, of the universe, and of the mystery of human life.”
The first abortion decision to reach the Supreme Court after Roe v. Wade was Planned Parenthood v. Danforth, in which the plaintiffs challenged several provisions of a Missouri statute regulating various aspects of abortion. The Supreme Court struck down, among other things, a provision that required parental consent before an unmarried minor could have an abortion during the first twelve weeks of her pregnancy unless the abortion was necessary to preserve her life. The State sought to defend the statute by arguing that minors “properly may [be] subject[ed] … to more stringent limitations than are permissible with respect to adults.” Furthermore, the State pointed out that the government is prohibited from unreasonable or unwarranted interference with parental discretion and that, since the physician would not perform the abortion without parental consent prior to the statute’s passage, the measure imposed no additional burden upon the physician.
The district court in Danforth found the State’s interest “in safeguarding the authority of the family relationship” to be a compelling basis for the parental consent measure. The Supreme Court, however, agreed with the district and circuit courts that had concluded that parental consent statutes could not withstand constitutional scrutiny. The Court stated that the right to decide whether to terminate a pregnancy does “not mature and come into being magically only when one attains the state-defined age of majority.” Given the unique nature and consequences of the abortion decision, the Court held that a provision giving any third party a blanket veto over the decision to abort is necessarily unconstitutional when measured by the Roe v. Wade guidelines. The Roe decision stressed that “the abortion decision and its effectuation must be left to the medical judgment of the pregnant woman’s attending physician.” Thus, Missouri lacked “the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient.”
The Danforth Court, however, did not employ strict scrutiny in analyzing the parental consent measure. Instead of requiring that the state demonstrate a compelling necessity, the Court required only that the State establish a “significant state interest in conditioning an abortion on the consent of a parent or person in loco parentis that is not present in the case of an adult.” Nevertheless, the Court rejected the view that the State’s asserted interests in safeguarding the family unit and preserving parental authority justified the consent statute: “Any independent interest the parent may have in the termination of the minor daughter’s pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant.”
The Danforth Court, however, did not preclude all parental involvement measures, indicating that there are minors who are incapable of giving effective consent for termination of their pregnancies. A concurrence by Justice Stewart, joined by Justice Powell, adumbrated what later became the Court’s doctrine concerning parental involvement statutes. After noting that the parental consent provision’s primary constitutional deficiency was “its imposition of an absolute limitation on the minor’s right to obtain an abortion,” he noted that Bellotti v. Baird (Bellotti I),decided the same day, indicated:
[A] materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases but providing for prompt (i) judicial resolution of any disagreement between the parent and the minor, or (ii) judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor’s best interest.
His concurrence, as well as the concurrence and dissent of Justice Stevens, emphasized the gravity of the abortion decision and the pregnant minor’s need for “mature advice and emotional support.” Despite its guarded holding, the Danforth decision led to immediate invalidation of many first generation parental consent laws.
The Court ruled in Bellotti I that the constitutionality of a Massachusetts statute requiring both parents of an unmarried pregnant minor consent to her abortion should not be determined until the Supreme Judicial Court of Massachusetts construed the statute. In Bellotti I, however, the Court reiterated its view that a pregnant minor may be too immature to make an independent judgment concerning the termination of her pregnancy.
In the interval between Bellotti I and Bellotti v. Baird, 443 U.S 622 (1979) (Bellotti II), the Court was faced with a challenge to New York’s ban on the distribution of contraceptives to minors under sixteen years of age. In Carey v. Population Services International, eight justices agreed that the New York statute was invalid, but the Court could not agree on the standard by which it should scrutinize legislation where the procreative rights of minors were at issue. A plurality led by Justice Brennan concluded that the prohibition on distribution of nonprescription contraceptives to persons under sixteen, as applied, cannot be justified as a permissible regulation of minors’ morality in furtherance of the State’s policy against promiscuous sexual intercourse among the young. The Court did not find the State’s ends illegitimate; rather, the means used did not serve those ends. The plurality reiterated that “the right to privacy in connection with decisions affecting procreation extends to minors as well as to adults.” Citing Danforth on the unconstitutionality of the State’s efforts to impose “a blanket prohibition, or even a blanket requirement of parental consent, on the choice of a minor to terminate her pregnancy,” the plurality concluded that the prohibition on the distribution of contraceptives was foreclosed a fortiori. The plurality also noted that the abortion decision more clearly implicates “[t]he State’s interests in protection of the mental and physical health of the pregnant minor, and in protection of potential life …” than does the decision to use a nonhazardous contraceptive. Although he concurred in the judgment, Justice Powell rejected the rationale that, minors have a fundamental right to make reproductive decisions on the basis that respect for parental authority demands otherwise. In fact, he opined that it was constitutionally permissible for the state to encourage “adolescents to seek the advice and guidance of their parents before deciding whether to engage in sexual intercourse.” Furthermore, the Court could not agree on the meaning of its precedents regarding the privacy rights of adults.
In Bellotti II, the Court addressed the Massachusetts statute, requiring two-parent consent for a minor’s abortion, after it had been construed by the state’s high court. The statute provided for a judicial bypass but remained unconstitutional since it required that notice of any judicial proceeding be given to the minor’s parents. Justice Powell noted, in his plurality opinion, that typically, a state may impose parental notice and consent qualifications “on a minor’s right to make important decisions.” The abortion decision, however, “differs in important ways from other decisions” a minor may face. Among the distinguishing characteristics is the fact that the pregnant minor cannot postpone the abortion decision since the possibility of a legal abortion exists for a short period of time. Furthermore, a pregnant minor faces a “potentially severe detriment” that is “not mitigated by her minority.” She typically lacks valuable attributes such as financial stability, education, and maturity—resources that an adult would be more likely to bring to a situation of unwanted motherhood. Moreover, motherhood typically is an emancipating event which terminates the legal disabilities of minority. Justice Powell concluded that “there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.” Thus, despite the traditional right of parents to direct their child’s upbringing, the Supreme Court held that any absolute parental right to be consulted about, much less veto, their child’s decision to abort, is strictly foreclosed.
In dicta, the Bellotti H plurality set forth four criteria for a constitutional bypass provision. The bypass provision must: (1) allow the minor to bypass the consent requirement if she establishes that she is mature enough and well enough informed to make the abortion decision independently; (2) allow the minor to bypass the consent requirement if she establishes that the abortion would be in her best interests; (3) ensure the minor’s anonymity; and (4) provide for expeditious bypass procedures.
Although the Court discussed the alternative procedure in terms of a judicial proceeding, the state is not required to provide a judicial, rather than an administrative, forum. In fact, as Justice Powell noted, there is much to be said for a less formal proceeding than those identified with courts of general jurisdiction. Furthermore, the Court has never held that parental consent is constitutionally required; it has held only that parental consent requirements that have a bypass procedure are constitutionally permissible.
Notwithstanding the fact that Bellotti II invalidated the parental involvement statute, the decision’s detailed discussion of the requirements for a valid law led to a marked increase in state enactments of parental consent or notification laws. The constitutionality of such a course was soon borne out. City of Akron v. Akron Center for Reproduction Health (Akron I) is the only post-Bellotti H decision to invalidate a parental involvement law. Akron had enacted a city ordinance requiring that a minor under fifteen obtain either her parent’s written consent or a court order to have a legal abortion. The Supreme Court rejected the city’s argument that the juvenile courts would construe the law in a manner consistent with the Bellotti doctrine so as to constitute a bypass procedure, noting that the governing statutes in juvenile courts neither mentioned abortion nor gave the juvenile courts the authority to inquire into a minor’s maturity. The Akron Court stated that “it is clear that Akron may not make a blanket determination that all minors under the age of 15 are too immature to make [the] decision [to have an abortion] or that an abortion never may be in the minor’s best interests without parental approval.” The same day that the Court decided Akron, however, Planned Parenthood v. Ashcroft upheld a parental consent statute that contained a judicial bypass procedure. Thus, the forecast in Bellotti II that such a statute would be sustained became reality.
In Ohio v. Akron Center for Reproductive Health (Akron II), the Court had an opportunity to address the adequacy of a judicial bypass procedure in light of its five previous decisions entailing either parental notification or consent in the abortion context. The Ohio statute in question made it a crime for a physician or other person to perform an abortion on an unmarried, unemancipated woman under eighteen unless the physician personally gave notice to one of the girl’s parents, or in some circumstances, to other relatives before performing the abortion. The statute also provided for a judicial bypass, requiring the minor to prove by clear and convincing evidence: (1) that she has enough information and maturity to make an intelligent decision; (2) that there exists a pattern of physical, emotional, or sexual abuse by one of her parents; or (3) that notice is not in her best interests. Justice Kennedy’s opinion relied on the “principal opinion” in Bellotti II, namely Justice Powell’s concurrence. Justice Kennedy’s adoption of Justice Powell’s four requirements led him to the conclusion that the Ohio scheme did “not impose an undue, or otherwise unconstitutional, burden on a minor seeking an abortion.”
In addition to challenges to the bypass procedures based on the requirements of Bellotti II and its progeny, the appellees sought additional criteria for constitutional bypasses. They asked the Court to invalidate the “constructive authorization” provisions since those provisions did not require an affirmative order permitting the abortion when a court fails to act on the minor’s complaint. The appellees also challenged the statute’s requirement that the minor had to prove her maturity or best interest by clear and convincing evidence. They contended that “when a State seeks to deprive an individual of liberty interests, it must take upon itself the risk of error.” Finally, the appellees argued that the pleading requirements, namely that the minor must choose from three different forms depending upon which of the grounds for a bypass she intended to use, “create[d] a trap for the unwary.”
The Court, however, refused to extend the Bellotti II criteria and found no infirmities in the Ohio scheme. The Court relied on the State’s representation that a physician could “obtain certified documentation from the juvenile or appellate court that constructive authorization has occurred” and stated that an additional “safety net” was not required. The Court again turned to Bellotti II to reject the challenge to the statute’s requirement that the minor herself prove with clear and convincing evidence her maturity or best interests, stating that Bellotti II indicates that the minor may be required to prove such facts in a bypass procedure. The higher burden of proof was “acceptable” when the procedure was ex parte with “no one oppos[ing] the minor’s testimony.”
The Akron II Court did not determine whether, under its precedents, due process mandates a bypass procedure for a parental notification statute, since the statute at issue had such a procedure and was consistent with its precedents. Justice Kennedy stated that “it is a corollary to the greater intrusiveness of consent statutes that a bypass procedure that will suffice for a consent statute will suffice also for a notice statute.”
Only four Justices, however, joined that portion of Justice Kennedy’s opinion, stating that the Ohio law constituted “a rational way to further [legitimate] ends.” The plurality also stated: “A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic[al] choices confronted by a woman who is considering whether to seek an abortion,” a decision which will affect “her own destiny and … dignity, and the origins of the other human life … within the embryo.” A consequence of Akron II has been that some physicians fearing criminal liability have required parents to come to the clinics, identify themselves, and sign a notarized statement.
Most of the Supreme Court’s decisions involving challenges to parental consent or notification have been facial challenges. Hodgson v. Minnesota,—a companion case to Akron II—was a dispute in which the district court had made extensive factual findings concerning the operation of Minnesota’s two-parent notification statute. The statute provides that, “with certain exceptions, … no abortion shall be performed on a woman under 18 years of age until at least 48 hours after both of her parents have been notified.” There is no exception “for a divorced parent, a noncustodial parent, or a biological parent who never married.” The statute imposes criminal liability on an individual who performs an abortion in violation of its terms and civil liability in an action brought by any person who was not properly notified. The requirement was challenged as imposing additional trauma on the minor and causing delays that increased the health risk of the procedure.
Hodgson was the first of the Court’s parental involvement decisions to focus on a two-parent notification provision. Among the findings of the district court was the following: that the statute “had particularly harmful effects on both the minor and the custodial parent when the parents were divorced or separated.” Additionally, it was found that forced notification did not result in reestablished relationships between the minor and absent parent, but rather, often created disappointment in the minor and situations in which the custodial parent reacted to the forced notification with “`anger, resentment and frustration at the intrusion of the absent parent,'” as well as fear that his or her custody rights will be threatened or that intra-family violence will result. Moreover, two-parent notification had harmful effects on families in which the minor lives with both parents, particularly those in which “violence is a serious problem.” In fact, the district court found, family communication was actually impaired in those families where violence was a concern since the minor may simply go to court rather than inform either parent. Despite these detriments, a fractured Supreme Court, after invalidating the two-parent requirement, upheld both the two-parent notification requirement with a judicial bypass and the forty-eight hour waiting period. With good reason, the Fourth Circuit Court of Appeals has described the decision as almost incomprehensible.
In its penultimate pronouncement on parental consent and notice, Planned Parenthood v. Casey, the Court considered, among other provisions, the parental consent measure of the Pennsylvania abortion statute. The statute provides that, except in a medical emergency, the informed consent of at least one parent (or guardian) is required before an unemancipated minor may obtain an abortion. The statute also provides a judicial bypass procedure, if neither parent gives consent, upon a finding that the young woman is sufficiently mature or that an abortion would be in her best interests. The joint opinion stated:
Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian, provided that there is an adequate judicial bypass procedure…. Under these precedents, in our view, the one-parent consent requirement and judicial bypass procedure are constitutional.
The Casey decision, of course, has relevance far beyond the context of the minor’s abortion decision. The less exacting undue burden standard has long been used in the context of the minor’s abortion rights. Casey altered the constitutional analysis for adult women by rejecting the trimester framework of Roe v. Wade and substituting the undue burden standard for all abortion issues.
At the same time that the Casey Court upheld the parental notification statute, it struck down as an undue burden a spousal notification statute governing a married woman’s abortion. It did so even though the law exempted medical emergencies and reported cases of fear of bodily injury at the hand of their husbands. The holding was justified by the prevalence of and impact of unreported physical and psychological spousal abuse as well as the fear of provoking child abuse. There is no question that child abuse is a pervasive problem in our society. Why should a minor have to report or prove parental abuse in order to avoid parental notification or consent? As difficult as it is for women who are in a situation of spousal abuse to seek help or take steps to end the situation, surely the circumstances are much more onerous for a minor who is dependent upon her parents. Even when there is no past abuse, the revelation of the daughter’s pregnancy may provoke an explosive reaction from the parents.
One particularly egregious case is that of a thirteen year old Idaho girl who became pregnant after repeated rapes by her father. Since Idaho does not provide abortion funding for women, the girl and her mother remained in Idaho while seeking the money to enable them to travel to Oregon where individuals and organizations were willing to provide the necessary financing for an abortion. When the father learned of his daughter’s intention to get an abortion, he shot and killed her.
The Court sustained a parental notification statute without a bypass provision in the case of an unemancipated minor living at home with her parents. In H.L. v. Matheson, the Court rejected an unmarried fifteen-year-old girl’s challenge to a Utah statute requiring a physician to notify, if possible, parents of a minor seeking an abortion. Although the plaintiff’s physician concluded that an abortion was in her best medical interests, the physician would not proceed without notifying her parents. Chief Justice Burger, writing for the Court, held that: (1) the plaintiff lacked standing to challenge the statute on its face on the ground of overbreadth; and (2) as applied to an unemancipated minor girl living with and dependent upon her parents and making no claim or showing as to her maturity or as to her relations with her parents, the statute was narrowly drawn to protect only those interests and did not violate any guarantees of the Constitution. Recognizing the traditional authority of parents over the rearing and welfare of their children, the Court concluded that the statute was reasonably calculated to promote family integrity, encourage parental consultation, and allowed parents the opportunity to provide essential medical and other information to the physician. Justice Burger also made the astonishing statement that “[i]f the pregnant girl elects to carry her child to term, the medical decisions to be made entail few—perhaps none—of the potentially grave emotional and psychological consequences of the decision to abort.”
Despite the holding in Matheson, many states with parental notification laws also provide for a bypass procedure rather than running the risk of the statute being found facially unconstitutional. Nevertheless, the uncertainty created by the lack of specific direction from the Supreme Court on one-parent notification statutes without bypass in Hodgson has emboldened some states to enact single-parent notice or consent laws with no bypass procedure. South Dakota, for example, enacted such a law, only to have it struck down in federal court. Since the result in Hodgson is open to varying interpretations, some courts have treated the question of whether a bypass procedure is required as unsettled.
In the Court’s latest parental notification decision, Lambert v. Wicklund, it was held that a judicial bypass provision allowing waiver of the notice requirement if notification was not in the minor’s best interest was sufficient to protect the minor’s right to abortion. The Montana statute at issue provides:
If the court finds by clear and convincing evidence that any of the following three conditions are met, it must grant the petition and waive the notice requirement: (i) the minor is “sufficiently mature to decide whether to have an abortion”; (ii) “there is evidence of a pattern of physical, sexual, or emotional abuse” of the minor by one of her parents, a guardian, or a custodian; or (iii) “the notification of a parent or guardian is not in the best interests of the [minor].”
The Lambert Court addressed only the issue of whether the notification requirement must be waived if the “court determines that notification—not the abortion itself—is not in the minor’s best interests.” The Court found no “constitutionally significant distinction,” particularly since the challenge was to the face of the statute and not to the statute as applied.
In sum, parental notice or consent statutes clearly will pass federal constitutional muster when they meet the requirements first set out in Bellotti II. Arguably, parental notice statutes do not have to provide a judicial bypass, at least for unemancipated, immature minors. At the same time, the Court has recognized that laws providing for parental involvement in the minor’s abortion decision must not “unduly burden” the right to seek an abortion. This recognition has led the Court to require states to provide access to an alternative decision-maker, such as a judge, when the state imposes parental notice and consent conditions on the minor’s abortion decision. Unquestionably, this is a compromise position between according minors the right to make their own decisions concerning continuation of a pregnancy and according parents or guardians unchallenged authority to determine that the pregnancy must be continued to term. What the Court has never satisfactorily explained is the reason why a minor has, by reason of her age, less of an interest in her bodily integrity, her future, and her life than adult women possess.
State Constitutional Law
The constitutional law of reproductive rights is not limited to Supreme Court decisions interpreting the Federal Constitution. Since the Supreme Court has consistently upheld parental notice and consent statutes so long as they comply with the requirement of a bypass procedure, the only hope for a successful constitutional challenge to the concept of parental involvement in a minor’s abortion decision lies in state constitutional provisions. Under the ruling in In re T.W., the Florida Supreme Court was the first state high court to find that a state constitution’s right of privacy provision gave a pregnant minor broader rights of self-determination than the Federal Constitution.
The story of T.W.’s odyssey through the Florida court serves as an illustration of, among other things, the role played by individuals who have no interest in or concern about the minor herself. T.W.’s “uncontroverted testimony” established:
that she was a high-school student, participated in band and flag corps, worked twenty hours a week, baby-sat for her mother and neighbors, planned on finishing high school and attending vocational school or community college, had observed an instructional film on abortion, had taken a sex education course at school, would not put her child up for adoption, and had discussed her plans with the child’s father and obtained his approval. She informed the court that due to her mother’s illness, she had assumed extra duties at home caring for her sibling and that if she told her mother about the abortion, “it would kill her.”
Nevertheless, the trial court agreed with the guardian ad litem, whom it had appointed for the fetus, that the judicial bypass was vague and made no provision to controvert the testimony of the minor. Therefore, parental consent had to be obtained in every case and T.W.’s petition was denied. The District Court of Appeal, finding the bypass provisions to be so vague as to permit arbitrary denial of the petition, declared the entire statute invalid and quashed the order requiring parental consent. The guardian ad litem appealed and unsuccessfully sought to block the abortion; nevertheless, “T.W. lawfully ended her pregnancy.”
Despite the arguable mootness of the parental consent issue, the Florida Supreme Court accepted jurisdiction because the questions raised were “of great public importance and … likely to recur.” As a preliminary matter the court found that it was clearly improper to appoint “a guardian ad litem for the fetus.” On the issue of a minor’s right of privacy, the court held that under the state constitution a pregnant minor has the same right of privacy as an adult woman facing an unwanted pregnancy.
Since T.W., the high courts of both California and Massachusetts have upheld challenges to their parental involvement laws. In American Academy of Pediatrics v. Lungren (Lungren III), ten years after California enacted a mandate that a pregnant minor secure either parental consent or judicial authorization before obtaining an abortion, a divided California Supreme Court held that the statute infringed upon the pregnant minor’s fundamental constitutional privacy interest under the California Constitution. In fact, the court observed that an abortion can be a more significant issue for a pregnant minor than for an adult woman, and “‘unwanted motherhood may be exceptionally burdensome for a minor.'” Using heightened scrutiny, the court held that, although the State’s interests in protecting the health of minors and in fostering the parent-child relationship were extremely important interests rising to the level of “compelling interests” for purposes of constitutional analysis under the privacy provision of the state constitution, the infringement was not necessary to further those interests. The court noted: “No one would doubt the value to a pregnant minor of wise and caring parental guidance and support as she confronts a decision that will affect the rest of her life, assuming such support is available and the minor is willing to seek it.” The consent law, however, “has its most significant impact in those instances in which a pregnant minor is too frightened or too embarrassed to disclose her condition to a parent (or to a court).”
Chief Justice Ronald George’s majority opinion encapsulates the reasons why parental involvement laws undermine the very ideals they purport to serve. The court first noted a series of California statutes that expressly allow minors to make independent decisions concerning their own medical care and assailed the parental consent provision for making abortion an exception. Although the State professed that its intervention protected the pregnant minor’s health through the parental consent requirement, it nevertheless permitted the pregnant minor to make decisions about the complications of a high-risk pregnancy or the adoption of an unwanted child. The court was also skeptical of the law’s protective function since the testimony of experts called by the plaintiffs demonstrated the consent requirement “was likely to be detrimental both to the health of such minors and to their family relationships.” The court was concerned with the prospect of the parental involvement requirement “lead[ing] those minors who are too frightened or ashamed to tell their parents … about their condition … to terminate their pregnancy through a dangerous self-induced or back-alley abortion.” Alternatively, the minor might “postpone action until it is too late safely to terminate [the] pregnancy,” leaving her with no choice except to “endure the increased physical, emotional, and psychological risks posed by an unwanted full-term pregnancy and birth.”
Justice Joyce Kennard, in concurrence, submitted that a consent law might still be valid for girls under fourteen, who might be too immature to take responsibility for a decision concerning whether to bear a child. If the girl is too immature to make the decision concerning abortion, how can becoming a mother be good for her or the child? For those who suggest that adoption is the easy answer, how can a minor give valid consent to such a life-altering decision as the surrender of a baby for adoption? It is not a satisfactory reply to say that states permit even very young girls to give valid consent to adoption.
Planned Parenthood League v. Attorney General, involved a challenge solely on state constitutional grounds to the statutory requirement that, with certain exceptions, a pregnant unmarried minor may not obtain an abortion unless both parents consent or a judge authorizes the medical procedure. The plaintiffs averred that the requirement both on its face and in operation violated due process, equal protection, and the equal rights provisions of the Massachusetts Declaration of Rights. Since there was no specific pregnant minor or class of pregnant minors involved, the court ruled only on the question whether the provision “without justification … unavoidably creates undesirable delay and emotional tensions that burden a minor’s constitutional right to choose.” The court rejected the broad attack on the parental consent requirement, holding that “[al minor does not have the same freedom to act on her constitutional right to choose to have an abortion as does an adult woman.” The court did, however, hold that the two-parent consent requirement lacked “sufficient justification to overcome the burden that … [it] place[d] on the minor’s constitutional right to choose.” The court mentioned specific instances—such as where the father has impregnated his minor daughter—in which the two-parent consent requirement applies without any justification for the burden it imposed. Although the burden imposed might be less onerous in other instances, the court concluded that the requirement was unconstitutional in every instance.
The fact that the Supreme Court of the United States had upheld a two-parent notification statute with a judicial bypass in Hodgson v. Minnesota was not dispositive. The Massachusetts court noted that “[p]arental consent may be constitutionally required not to satisfy any interest of the parent but [rather] to protect the minor’s best interests.” Accordingly, the purpose of parental consent is met by the one parent consent with a judicial bypass, and there is no justification for the additional burden imposed by a two-parent consent requirement. In sum, the Massachusetts court held that the parental consent and judicial approval requirements did not violate the due process or equal protection provisions of the state constitution, but that the two-parent requirement did in fact violate due process.
Not every state constitutional challenge to a parental involvement law has been successful. In Pro-Choice Mississippi v. Fordice, the Mississippi Supreme Court addressed the validity of the state’s requirement of two-parent consent to an unemancipated minor’s abortion. A federal court, analyzing the provision’s validity under the Federal Constitution, had previously determined that the two-parent consent requirement did not unduly burden a minor’s right to seek an abortion. After the federal constitutional challenge failed, a new group of plaintiffs brought suit in state court, contending that certain Mississippi abortion laws, including the two-parent consent requirement for the unemancipated minor’s abortion, violated rights guaranteed by the Mississippi Constitution of 1890, “including the right to privacy, the right of bodily integrity, the right to make medical decisions free from governmental interference, freedom of conscience, the right to due process of law, and the right to safety.” The plaintiffs also argued that the two-parent consent law (and the mandatory delay/state mandated information law applying to all females seeking abortions) violated the right to free speech and the guarantee against vague punitive laws.
At the trial court level, the chancellor determined that the state constitution provided for the right to an abortion under its article protecting the right to privacy. Nevertheless, she granted the state’s motion for summary judgment after finding that all of the challenged provisions of the abortion law were constitutional. The Mississippi Supreme Court agreed that abortion is protected under the privacy provision of the state constitution, stating “that autonomous bodily integrity is protected under the right to privacy … [and] [p]rotected within the right of autonomous bodily integrity is an implicit right to have an abortion.” The court, however, rejected the contention that a higher standard of review is mandated when the court determines whether the state’s abortion laws violate the state, rather than the federal, constitution. The plaintiffs argued for a “compelling interest” standard; the state contended that the “undue burden” standard was sufficient. The court noted that in other cases involving privacy rights it had required the state to prove a compelling interest of “great and imminent public danger.” However, viewing the abortion issue as more complex than other privacy issues, it adopted the Casey decision’s undue burden standard solely for laws restricting abortion.
The plaintiffs made every available argument against the parental consent requirement: that abortion is safer than childbirth for minors; that minors have the cognitive ability to give fully informed consent; that other provisions of the state’s law allow minors to give consent for all medical procedures regarding pregnancy except abortion; that an unemancipated minor may consent to surgical and medical treatment if the minor is able to understand and appreciate the procedure; and that a minor may give medical consent for her own child and that a minor may consent to adoption, a step that “has at least as much impact on a mother’s emotional and family welfare as the decision to obtain an abortion.” They also argued that the law did not serve the state’s interests because minors simply will not involve their parents if they do not want to; instead, they will go out of state to obtain an abortion, or delay the abortion to the point that there is a greater risk of medical complications. If the girl is from an abusive family, the law puts her in a dangerous position. They contended that the judicial proceeding did not cure the difficulties inherent in the law. Many minors are either unwilling or unable to navigate the court system, which forces them “to reveal intimate information in a stressful and humiliating setting.” Nevertheless, having declined to give privacy interests regarding abortion more searching scrutiny under the state constitution, the court had little trouble finding the Mississippi two-parent consent law combined with a judicial bypass procedure to be valid.
The Mississippi court relied completely on federal precedents rather than following In re T.W. and American Academy of Pediatrics v. Lungren (Lungren I), as urged by the plaintiffs. The court noted that both Florida and California had, in the cases cited, invalidated parental consent provisions under explicit right to privacy clauses, whereas there is only an inferred right to privacy in the Mississippi Constitution. Accordingly, the court found that the two-parent consent law served a legitimate interest in protecting the health of minors and ensuring that their abortion decisions are well-informed. The court also opined that it is parents rather than physicians or clinic workers who “can provide the emotional and moral support that a minor needs in making the important decision of whether to have an abortion.” Any problems with abusive parents the court deemed cured by the judicial bypass.
Congressional Proposals to Curtail Minors’ Reproductive Rights
The Child Custody Protection Act (CCPA) would make it a federal crime for a non-parent to take a pregnant minor across state lines to obtain an abortion in order to avoid laws in her home state requiring the involvement of parents in abortion decisions. It has already passed the House of Representatives and is expected to be voted upon in the Senate in 1999. This new federal offense is punishable by both fines and imprisonment and contains no exemption for relatives, such as grandparents or adult siblings. The law also provides for a civil action on behalf of the minor’s “parent or [legal] guardian who suffers legal harm from a violation of [this statute].”
The CCPA’s supporters argue that the Act is necessary to prevent older men who have impregnated young girls from taking them across state lines for abortions to hide the evidence of their misdeeds. It is quite evident, however, that its true purpose is to deny access to abortion services to young, pregnant women. Since the chances of enacting a ban on all abortions are slim to nonexistent, particularly because it would take a constitutional amendment to do so, abortion opponents have concentrated on smaller measures involving issues which have popular appeal, such as parental rights in their children’s upbringing.
The CCPA raises difficult issues concerning the meaning of our federal system of government and its dual sovereignty. State laws that would seek to interdict their citizens from traveling to other jurisdictions to obtain abortions would raise serious constitutional questions about our “commitments to national union and national citizenship” and arguably would be “barred by the citizenship clause of the fourteenth amendment, the commerce clause, and the privileges and immunities clause of article IV of the Constitution.” If Congress acts, however, there are issues of whether the Privileges and Immunities Clause or the right to travel doctrine limit the actions of Congress. The fact that minors are involved may well change the analysis, since minors do not have the same freedom of movement as adults. In upholding suspicionless random urinalyses of student athletes, the Court wrote:
Traditionally at common law, and still today, unemancipated minors lack some of the most fundamental rights of self-determination—including even the right of liberty in its narrow sense, i.e., the right to come and go at will. They are subject, even as to their physical freedom, to the control of their parents or guardians.
Another troubling aspect of the CCPA is whether its enactment violates principles of federalism by encroaching upon the states’ traditional supremacy in the area of morals legislation. Given that Congress has no sweeping authority to enact legislation providing for the general welfare, there is some question concerning the constitutional authority of Congress to enact a criminal statute prohibiting conduct traditionally within the police powers of the states. It is true that, until 1995, the Supreme Court’s jurisprudence upheld federal enactments reaching purely intrastate activity so long as the federal enactments were remotely linked to the Interstate Commerce Clause’s grant of Congressional authority to regulate commerce among the several states. However, a recent Supreme Court decision, United States v. Lopez, has called into doubt the Court’s modern recognition of broad congressional authority to enact laws dealing with issues traditionally within the states’ domain. In Lopez, the Court held that the federal Gun-Free School Zones Act of 1990, which made it a federal offense to possess a firearm within a school zone, lacked any connection to interstate commerce. Consequently, Congress lacked the authority to legislate concerning local gun safety.
Lopez does not offer a complete answer to the question of whether Congress has the power to criminalize the act of taking a pregnant minor across state lines to seek an abortion. There is another strand of Supreme Court Commerce Clause jurisprudence recognizing the power of Congress to protect interstate commerce from contagion even though the perceived harm was local. Accordingly, the Court has upheld federal enactments prohibiting the interstate transportation of lottery tickets, and the carrying of obscene literature and articles designed for indecent and immoral use across state lines. The Court has also treated the movement of people as interstate commerce, upholding the federal Mann Act’s ban on the transportation of women in interstate or foreign commerce for “an `immoral purpose.”
The Court later upheld the Mann Act’s application to the transportation of plural wives by their polygamous husbands across state lines in an opinion which linked plural marriage to prostitution and other forms of commercialized vice. Although “the regulation of marriage is a state matter,” that fact alone did not “make the Mann Act an unconstitutional interference by Congress with the police powers of the States.” The Court reiterated that “[t]he power of Congress over the instrumentalities of interstate commerce is plenary; it may be used to defeat what are deemed to be immoral practices; and the fact that the means used may have `the quality of police regulations’ is not consequential.”
However, even if Congress has the power under the Commerce Clause to enact such legislation, there are still unresolved issues under the Privileges and Immunities Clause and the right to travel doctrine. Moreover, the activity sought to be regulated by the CCPA proposal involves a minor’s right to abortion, a right that has been protected, although in a limited way, under the Due Process Clause of the Fourteenth Amendment.
Senator John Ashcroft’s proposed legislation, the Putting Parents First Act of 1998, would require minors to obtain parental consent for abortion referrals or contraceptives in any facility receiving federal funds. Senator Ashcroft has been quoted as saying that “[p]arents must not be reduced to the status of mere bystanders when their children are facing these difficult decisions.” Since the vast majority of health clinics, schools, and hospitals receive federal funds, at least in the form of Medicaid, the bill arguably imposes a new national parental consent requirement not only for a minor’s access to an abortion, but also for any access by a minor to contraceptives available at a health facility. This proposal flies in the face of long-standing federal policy concerning family planning services. Presently, both Title X of the Public Health Service Act of 1970 and Medicaid (Title XIX of the Social Security Act of 1965) mandate the confidential provision of contraceptive services to all those who seek them regardless of marital status or age. Furthermore, the proposal undermines public health policies that seek to encourage adolescents to protect themselves from unwanted or premature parenthood and sexually transmitted diseases. Many states have medical consent laws that permit minors to obtain contraceptive services without parental participation. There is little reason to believe that ending confidentiality will discourage teenagers from engaging in sexual activity as studies indicate that most teenagers have been active for nearly a year before obtaining family planning services. While there are policy reasons to protest this measure, so long as it is tied to a spending bill, it is probably within the bounds of congressional authority as the Court has greatly expanded federal authority by upholding conditions of compliance with congressional dictates in spending bills, even though they require the sacrifice of protected rights.
Critique of Parental Involvement Laws
Parental involvement laws are designed to deter minors from exercising the right to choose to terminate a pregnancy rather than to police the medical profession. Nevertheless, one of the least remarked upon features of parental involvement statutes is their intrusion upon medical judgment. A common feature of these laws is the use of the criminal law to prevent physicians from exercising their medical judgment concerning the minor’s termination of her pregnancy without involving either parents or other adult decisionmakers. Unlike the California Supreme Court, which has found that parental consent is not necessary when considering a physician’s capability to determine whether a minor has the capacity to consent to the procedure, the Supreme Court has operated on an unstated assumption that the physician will behave in an unethical or unprofessional manner in this context. In fact, in Bellotti II, the implicit assumption was made explicit when the Court stated that even seventeen-year-olds
are less likely than adults to know or be able to recognize ethical, qualified physicians, or to have the means to engage such professionals. Many minors who bypass their parents probably will resort to an abortion clinic, without being able to distinguish the competent and ethical from those that are incompetent or unethical.
Justice Stewart, speaking of a “girl of tender years” has also denigrated the counseling available, stating that “[i]t seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.” This same statement can be made about parents, although the Court prefers to think that the reaction of parents is “compassionate and supportive.” The irony surrounding all of this lies in the distrust of physicians treating abortion-seeking minors, whereas when adult women are involved, the Court has deferred so markedly to medical judgment. Roe v. Wade and its progeny have established that the state may mandate that the abortion provider be a licensed physician.
The judges who hear minors’ petitions for bypasses of parental participation in abortion decisions have a great deal of discretion under the Supreme Court’s jurisprudence regarding parental involvement statutes. Thus, judges are free to make rulings based on unarticulated factors, including jurists’ views of adolescent sexuality, the need for babies to supply the adoption market, the protection of fetal life, or assumptions about parental wisdom and benign control. Furthermore, the members of the Supreme Court that support parental involvement laws have turned a blind eye to a number of truths. One is that parental notification is tantamount to a parental veto in many cases. A second truth is that parental involvement statutes are not primarily about the well-being of the pregnant minor or even about her parents’ authority; rather, they represent a means of curtailing abortion in a way that has proven to be politically feasible. Third, minors in general have the ability to make reasonable decisions. Fourth, minors also have the ability to make moral judgments. A fifth truth is that parents do not always act in the best interests of their children, particularly on an issue such as abortion where there may be deep divisions about its morality and justification. Sixth, the best interest standard, so widely used when dealing with children, is an amorphous, indeterminate standard particularly susceptible to the judge’s biases and predispositions. While an overwhelming majority of pregnant minors do consult with their parents, those who do not know their family situation far better than the judge or other third party decision-maker. Seventh, parental involvement statutes do not promote the interests of minors and do not result in better family communication or a more reasoned decision-making process.
Furthermore, there is no way for the State to guarantee that parents will make the decision or counsel their daughters in ways that comport with her best interests. The late Judge Nanette Dembitz observed that mothers who opposed their daughters’ abortions have expressed a vengeful desire to punish the daughter for her sexual activity by making her suffer [an] unwanted child, a fervor to impose a religious conviction the mother has failed to instill in her daughter, a hope of caring for her daughter’s baby as her own because of an inability or unwillingness to bear another child herself, a defensive or resentful attitude because she bore illegitimate children without seeking or being able to secure an abortion, or a general distaste for abortion.
Reconceptualizing Minors’ Abortion Issues
In holding that parental involvement in a young woman’s abortion decision is constitutionally permissible, the Supreme Court has focused on the need for parental guidance and support, as well as the need to uphold parental authority and control over their offspring. It has ignored the reality that “[t]here is a very thin line between counsel and coercion, especially when they originate from a relationship as special as that of parent-child.” Factors such as guilt, loyalty, and fear may dictate the minor’s decision. Assuming, therefore, that a notification requirement is tantamount to giving parents the power to veto their daughter’s abortion decision, what has not been made clear is the nature or source of the interest parents have in forcing their daughter to continue her pregnancy to term. Likewise, if a judicial bypass is involved, what is the State’s interest?
The father of the fetus, one of the people with the closest link to the fetus, does not have an interest sufficient to override the wishes of the pregnant female concerning the termination of the pregnancy. Not only does the father not have a right to veto the woman’s decision, he also does not have the right to be notified of her choice. Whether anyone has an affirmative right to procreate is a matter of debate. It is beyond debate, however, that there is no recognized right to have grandchildren. In fact, in recent years some states have acted to discourage the birth of children to unwed pregnant minors by imposing financial responsibility on the parents of the minor who bears the child. The United States Congress followed suit by allowing states to impose financial responsibility for children born to an unwed minor upon the grandparents.
In H.L.v. Matheson, the Court ruled that although a “blanket, unreviewable power of parents to veto their daughter’s abortion” is unconstitutional, a “`mere requirement of parental notice'” is valid as to immature minors. The Court relied on its abortion funding jurisprudence and concluded that the State is not required to “finetune” its statutes in order to promote abortion—that the state action encouraging childbirth is “‘rationally related to the legitimate governmental objective of protecting potential life.'” It is perverse to grant to the state a greater interest in the fetal life of a pregnant minor than to an older, pregnant female who is better able to withstand the pregnancy and childbirth and the rigors of unwed motherhood.
The State has a “legitimate interest” in the health of a pregnant woman. Parents also have a recognized interest in their children’s health and well-being. However, it is difficult to see how forcing a minor daughter to go through pregnancy and childbirth fosters the daughter’s health. The risks of childbirth are much greater for the young mother than are the risks associated with abortion but the law shields the daughter’s decision to maintain the pregnancy from the parent’s control. Not only do most states allow the pregnant minor to seek medical treatment regarding the pregnancy without parental notification and consent, but also there is no reported decision in which parents have been able to enlist the aid of the courts in directing the unwilling minor to have an abortion. In fact, there are only two reported cases in which a parent sought to use a court’s jurisdiction over delinquent or incorrigible minors to force a minor daughter to have an abortion.
One of these cases was decided solely on statutory grounds. In a ruling that antedated Roe v. Wade, a Maryland appellate court reversed a trial judge’s order in a juvenile delinquency proceeding mandating that a pregnant sixteen year old submit to an abortion. The Maryland Court of Special Appeals held that, although the evidence supported the finding that Cindy Lou was a minor in need of supervision, the juvenile court had exceeded its powers in seeking to compel Cindy Lou to submit to medical procedures relative to termination of her pregnancy.
In In re Mary p., the court rejected the mother’s petition to have her fifteen year old pregnant daughter declared a person in need of supervision in order to force compliance with the mother’s demand that the daughter submit to an abortion. Instead, the court issued an order of protection against the mother, mandating that the mother not interfere with the daughter’s decision to carry the child to term. The Mary P. court reasoned that “if the right to abort is within the zone of privacy protected by the fourteenth amendment, the right to give birth exists there as well,” and further stated that “[i]t should be beyond question that the decision to give birth is `fundamental’ and `implicit in the concept of ordered liberty.'”
The Mary P. court’s reasoning concerning the role of parental counseling, if applied to the decision to seek an abortion rather than to continue the pregnancy, suggests that the minor’s decision to abort should be given equal protection:
[A] minor’s decision on whether or not to abort is of such far reaching consequence and sensitivity as to cry out for the understanding counsel of parents who care. And yet, such counsel must originate from the premise that it is the child who has the ultimate right to decide. Children are not the chattel of their parents. Rather, they are citizens in their own right, endowed with certain fundamental freedoms of which they may not be divested by parental fiat.
Unfortunately, the entire structure of constitutional analysis is based primarily on notions of capacity to consent to an abortion and secondarily, on the need to uphold parental authority. Within that framework, courts weigh and measure a minor’s privacy rights against the need to protect children from their immaturity and vulnerability. Even as to those minors who are fully able to understand the consequences of and weigh alternatives to abortion, it is constitutionally permissible that the state require an adult to determine whether the young woman should be allowed to choose to terminate her pregnancy without parental involvement. The entire focus is on the abortion and its consequences for the minor. When parental involvement statutes are challenged as unconstitutional, it is clear that the petitioning minor has the burden of proof and must convince the court by clear and convincing evidence that her parents need not or should not be involved.
Imagine, instead, a scheme to protect young women facing the decision of whether to terminate a pregnancy which mandates that those who oppose the minors’ choice, whether parent or judge, demonstrate with clear and convincing evidence that bearing a child is in the girl’s best interests, medically and psychologically, and comports with her value system and religious beliefs. Perhaps then these difficult decisions would be made in the best interests of the young woman rather than in the best interests of the parents or the judge. Perhaps then the young woman will not be viewed as someone who has no right to self-determination, whose body can be conscripted as a means of expression for the views and beliefs of others.