Defending Life 2008
Table of Contents
Parental Involvement Laws:
Protecting minors and furthering parental rights
By Mailee R. Smith
Staff Counsel, Americans United for Life
In February 1994, 15-year-old "Sarah"1 visited abortionist Moshe Hachamovitch's "A to Z Women's Services" clinic in Houston, Texas.2 Without her parents' consent or notice, Hachamovitch performed an abortion on Sarah, tearing the right side of her cervix. Unaware of this complication, Sarah suffered blood poisoning, fever, chills, abdominal pain, and nausea for four days before finally being admitted to a hospital. When hospital personnel discovered the tear and a post-abortion infection, they placed Sarah in the intensive care unit, but the infection was far too advanced and Sarah died on March 2, 1994. Hospital physicians reported that had Sarah received prompt medical care, she would still be alive today.
Sadly, Sarah's story is not unique. Minors are at risk in every state in which parental involvement laws have not been enacted.
Issues
In 1992, a plurality of the United States Supreme Court (USSC) ruled that a state may constitutionally require a minor seeking an abortion to obtain the consent of a parent or guardian.3 Specifically, the USSC held that certain provisions, such as a required reflection period and a chance for parents to privately discuss with their daughters the values and moral principles in the situation, carry particular force with respect to minors.4 Based upon the Court's decision and subsequent lower federal court decisions, a parental notification law is constitutional and does not place an undue burden on minors if it contains the following provisions:
- No physician may perform an abortion upon a minor or incompetent person unless the physician performing the abortion has given 48 hours notice to one parent or the legal guardian of the minor or incompetent person.
- An exception to the notice requirement exists when there is a medical emergency or when notice is waived by the person entitled to such notice.
- A minor may bypass the requirement through the courts (i.e., judicial bypass).
The purpose behind parental involvement laws is clear. Immature minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences. Yet the medical, emotional, and psychological consequences of abortion are often serious and can be lasting, particularly when the patient is immature. Moreover, parents usually possess information essential to a physician's exercise of his or her best medical judgment concerning the minor. Parents who are aware that their minor has had an abortion may better ensure the best post-abortion medical attention. As such, parental consultation is usually desirable and in the best interest of the minor. For these reasons, parental involvement laws protect the health and welfare of minors, as well as foster family unity and protect the constitutional rights of parents to rear their children.
Key Terms
- Parental involvement laws are those laws requiring parental consent or notification prior to the performance of an abortion on a minor. Parental consent laws require a parent or legal guardian to consent to the abortion, while parental notification laws simply require that a parent or legal guardian be notified that a minor will be having an abortion.
- A medical emergency occurs when a patient has a condition which, on the basis of the physician's good faith medical judgment, so complicates the medical condition of the patient as to necessitate an immediate abortion in order to avert the patient's death. A medical emergency also exists if a delay will create a serious risk of substantial or irreversible impairment of a major bodily function.
- Judicial bypass is the means by which a minor can petition a circuit court for waiver of the parental consent or notice requirements. Such court proceedings are confidential. If a court finds that the minor is sufficiently mature and well-informed to decide on her own whether to have an abortion, the court issues an order authorizing the minor to have the abortion without parental consent or notice. A court may also issue such an authorization if it finds that a pattern of physical, sexual, or emotional abuse by a parent necessitates a bypass of the parental consent or notice law.
Talking Points
- Parental involvement laws advance key state interests of protecting the health and welfare of minors and protecting the constitutional right of parents to rear their children.5
- Parental involvement laws increase teenage sexual responsibility and reduce teenage demand for abortion.6
- Parental involvement laws are supported by the majority of Americans, regardless of their positions on abortion.7
- Parental involvement laws ensure that parents have the opportunity to discuss their daughter's medical history with a physician and that they in return have their questions answered about the abortion procedure and follow-up care.
- Parental involvement laws recognize the traditional rights of parents to direct the rearing of their children. Ironically, notification is required before virtually all non-emergency procedures except abortion.
Myths & Facts
Myth:
An estimated 12 percent of teens do not even live with their parents. Notifying the parents of these teens will be impossible and totally unrelated to the teen's health.
Fact:
Parental involvement legislation recognizes that many family situations are less than ideal. In most states, alternative procedures are available through judicial bypass, and some states allow notification or consent of another family member.
Myth:
Mandatory parental involvement and notification laws will force many teens to go out of state to obtain an abortion.
Fact:
As more states enact and enforce parental involvement laws, the option to go out of state will cease to exist, and parental rights and minors' health protection will continue to expand. Migration to other states is a reason to pass parental involvement laws, not to avoid them.
Myth:
Parental involvement laws simply delay teens from getting abortions until the second trimester, when abortion is more dangerous.
Fact:
This myth is directly contrary to data from both Minnesota and Missouri.8
Additional Facts:
- Studies indicate that less than half of teenagers inform their parents of their abortions, and many of those teenagers who do not inform their parents exaggerate their parents' reactions.9
- There is evidence that abortion results in serious psychological problems for both minor and adult women.10 Moreover, due to their more immature developmental stage, adolescents are at a higher risk of suffering severe psychological problems from abortion, possess an elevated risk of suicide, and are even more likely to enter into a cycle of deliberately seeking replacement pregnancies.11
- Teens are even more at risk of developing breast cancer from having an abortion than are adult women.12
- Parental involvement laws result in lower birthrates among teens.13
State of the States: Where Are We Now?
Current Law:
Thirty-six state parental involvement laws are currently in effect:
- Twenty-five states have enacted parental consent laws: Alabama, Arizona, Arkansas, Idaho, Indiana, Kentucky, Louisiana, Maine, Massachusetts, Michigan, Mississippi, Missouri, North Carolina, North Dakota, Ohio, Oklahoma, Pennsylvania, Rhode Island, South Carolina, Tennessee, Texas, Utah, Virginia, Wisconsin, and Wyoming.
- Parental consent laws in three states are enjoined, in litigation, or not enforced: Alaska, California, and New Mexico.
- Eleven states have enacted parental notification laws: Colorado, Delaware, Florida, Georgia, Iowa, Kansas, Maryland, Minnesota, Nebraska, South Dakota, and West Virginia.
- Parental notice laws in seven states are enjoined, in litigation, or not enforced: Alaska, California, Illinois, Montana, Nevada, New Mexico, and New Jersey.
What Happened in 2007
At least 31 parental involvement measures were considered in 20 states:
- Indiana enacted a measure requiring written consent from one parent before an abortion is performed on a minor. The consent requirement can be waived in cases of medical emergency, rape, incest, or if a judicial order is obtained.
- Mississippi enacted a measure imposing a stricter standard for judges to use when deciding judicial bypass petitions.
- Oklahoma amended its existing parental involvement law to require a parent or guardian to sign a consent form and to provide photo identification before an abortion is performed on a minor. The abortion provider must sign a document attesting to the quality of the identification provided by the parent or guardian. In cases of a medical emergency, abortion providers must notify a parent or guardian of the minor's abortion no less than 24 hours after the procedure. The measure also imposes a stricter standard for judges to use in deciding judicial bypass petitions.
- New Hampshire repealed its parental notification statute (the subject of litigation in Ayotte v. Planned Parenthood and a 2006 USSC decision, remanding the case for further consideration).
- Thirteen states considered measures involving parental consent for minor abortions, including Arizona, Indiana, Mississippi, New York, North Carolina, North Dakota, Oklahoma, Rhode Island, Texas, and Vermont.
- Sixteen states considered measures involving parental notification for minor abortions including Arizona, Connecticut, Florida, Idaho, Kansas, Montana, New Hampshire, New Mexico, New York, Oklahoma, Oregon, Texas, Utah, Vermont, Washington, and West Virginia.
- Two states considered measures criminalizing a third party transporting a minor over state lines to obtain an abortion: Mississippi and West Virginia.
What To Do In 2008
- States without parental involvement laws, such as Connecticut, New York, and Washington, should, in the best interest of minors and their families, strongly consider at least requiring parental notice for minors seeking abortions.
- States already requiring parental notice, such as Georgia, Kansas, and South Dakota, should consider amending their existing laws to require parental consent.
- States with parental consent laws should ensure that their judicial bypass provisions comply with existing requirements and do not contain unnecessary loopholes that may be abused. Such states should also consider requiring notarized consent and/or positive identification of the parent or guardian to avoid fraud in the completion of parental consent forms.
Common Questions and Answers
Question:
Won't parental involvement laws force many teens to obtain dangerous illegal abortions?
Answer:
No. Thirty-five states have working parental involvement laws. Only one case -- that of Becky Bell in Indiana -- has been suggested to involve an unsafe abortion, and even that case is wholly undocumented. The autopsy report failed to show any induced abortion. It is terrible public policy to fail to enact a law on the basis of an isolated, unproven case.
Question:
Won't parental involvement laws expose teens to the anger of abusive parents?
Answer:
No. Under the parental involvement laws in most states, a teen who states that she has been abused or neglected will be exempted from the laws' requirements. In addition, the laws make it more likely that a minor who is being abused or neglected will get the help she needs; under most state laws, doctors who become aware of abuse claims must report the abuse allegation to public officials who conduct an anonymous investigation. Such teens also have the option of utilizing the judicial bypass.
Question:
Aren't most teens mature enough to make their own decisions?
Answer:
Young teens often have difficulty assessing long-term consequences and generally have narrow and egocentric views of their problems.14 Parental involvement is needed to give teenagers some perspective. Moreover, the question is not simply of maturity, but of responsibility. As long as a teenager is not emancipated, a parent is responsible for her medical care and upbringing. When a teen in injured by an abortion, it is the parent -- not the teen -- who is responsible for the teen's care and health costs.
Endnotes
1 The true identity of the minor is concealed in court records.
2 See, e.g., Steckner et al., Clinic Head Faces Complaints, Arizona Republic, July 15, 1998, for facts related to this story.
3 Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992).
4 Id.
5 See generally Casey, 505 U.S. 833 (affirming States' interests in the protection of minors and upholding Pennsylvania's parental consent law).
6 James Rogers et al., Impact of the Minnesota Parental Notification Law on Abortion and Birth, 81 Am. J.Pub. Health 294 (1991). During the four and one-half years that the Minnesota parental notice law was in effect and enforced, teen abortion and pregnancy rates dropped substantially and the teen birth rate continued to decline. Id.
7 According to a Harte-Hanks Inc. survey conducted by the University of Texas in April 1995, 73 percent of Texans favored the passage of parental notification legislation. In addition, 79 percent of Republicans, 70 percent of Democrats, and 68 percent of Independents supported parental notice. In fact, 62 percent of liberals polled in Texas answered that they supported a parental notification law. Similar findings have been revealed by polls in Iowa and Colorado.
8 Rogers, supra, at 196; Jacot et al., A Five-Year Experience with Second-Trimester Induced Abortions: No Increases in Complication Rate as Compared to the First Trimester, 168[2] Am. J. Obstet. Gynecol. 633 (Feb. 1993).
9 For example, in one county in Minnesota, only four percent of minors who used the judicial bypass in a 16-month period feared physical abuse, and only 5 percent expressed fear that their parents would prevent their abortions. Brief of Cross-Petitioners at 9-10, nn.5, 7, Minn. v. Hodgson, 497 U.S. 417 (1990). The most common objection minors had to informing their parents was "not wanting to ruin a good relationship." Id.
10 Catherine Barnard, The Long-Term Psychological Effects of Abortion (Inst. for Abortion Recovery & Research 1990) (finding that no less than 19 percent of women suffer from post-traumatic stress disorder (PTSD) after having an abortion).
11 Franz, Differential Impact of Abortion on Adolescents and Adults, Adolescence, 27(105):161-72 (1992); Campbell, Abortion in Adolescence, Adolescence, 23:813-24 (1988).
12 Daling et al., J. Nat'l Cancer Inst., 86:505-14 (1994). Daling, an abortion supporter, found that teenagers with a family history of breast cancer who obtained an abortion before the age of 18 had an incalculably high risk of developing breast cancer. Id. Every single female under the age of 18 in the study who obtained an abortion and had a family history of breast cancer developed breast cancer by the age of 45. Id.
13 See Rogers, supra, at 294. During 1981 to 1986 when the Minnesota parental notification law was in effect, the pregnancy rate, the abortion rate, and the birth rate for teens fell dramatically. Id.
14 See generally J. Piaget & B. Inhelder, The Psychology of the Child (1969).
