By Margaret Datiles
AUL Staff Counsel
The on-going court battle in Illinois over the state’s permanently-enjoined parental notification law has once again brought parental involvement laws to the forefront of the cultural and legal fight against abortion. Accompanying the increasing cultural acceptance of abortion is a proportionate increase in the necessity for parental involvement laws. The promotion of sex-with-no-consequences in America has generated a high demand for abortion, including abortions for minors. These abortions present a host of issues not present in adult abortions: (1) the state’s interest in protecting the health and welfare of minors; (2) the state’s interest in protecting the constitutional rights of parents to raise their children; (3) immature minors’ lack of ability to make fully-informed decisions that take into account both immediate and long-range medical, emotional, and psychological consequences of abortion;1 and (4) ensuring care that takes into account her medical history.
In light of the differences between minor and adult abortions, how important are parental involvement laws? How have the courts and legislatures treated parental involvement laws? And in the absence of parental involvement laws, what is at stake for minors and parents?
Are Parental Involvement Laws Constitutional?
The two forms of parental involvement laws for abortion are parental notification laws and parental consent laws. Parental notification laws typically require abortion providers to give 48 hours notice of a minor or incompetent person’s abortion to a parent or legal guardian. Parental consent laws, on the other hand, require abortion providers to secure the actual consent of a parent or legal guardian before performing an abortion.
The United States Supreme Court (USSC) has consistently held that both parental notification and consent laws are constitutional and do not impose an undue burden on a woman’s right to abortion when such laws contain (1) an exception for medical emergencies or when notice is waived by the person entitled to such notice; and (2) a confidential judicial bypass procedure.2 A judicial bypass is, in essence, the substitution of court’s permission for the abortion for the requisite parental or guardian involvement. Such bypasses are generally granted when a court finds that a minor is mature and well-informed enough to make the abortion decision, or when a court finds that the minor has been subject to physical, sexual, or emotional abuse by the parent or guardian. For example, a judicial bypass may be granted if a court finds that the pregnancy is a result of incest by the parent who is to receive notice, or if the minor is in danger of physical abuse by the parent who is to be notified. Moreover, some states even have specific exceptions within the statute itself for cases of incest and physical abuse.3
The most common argument against parental involvement laws is that parental involvement laws could put certain minors in danger of abuse by their parent(s) or guardian(s), and would force such minors to seek out illegal abortions. The exception to the parental involvements laws for cases of sexual, physical and emotional abuse clearly anticipates and rebuts this argument.
Further argument against parental involvement laws are that such laws assume that all minors are immature and unable to make decisions in their own best interests, and that parental involvement laws will be unnecessarily applied to mature minors who are capable of making their own. These arguments are easily countered by the existence of confidential judicial bypass provisions which allow a court to authorize a minor’s abortion without parental notice and/or consent upon a finding that a minor is mature and able to make a fully-informed decision that takes into consideration the physical, mental and emotional consequences of abortion.
Are Parental Involvement Laws Necessary In The Abortion Conversation?
Parental involvement laws are clearly necessary for the health, safety and welfare of minors. Indeed, on several occasions, the USSC has recognized that minors seeking abortions presents a unique set of concerns that are not present with adults and that special legal protections are necessary to address these concerns.4
One issue specifically implicated is access to the minor’s medical records and other important health information. Parental involvement statutes provide parents the opportunity to supply the abortion provider with the minor’s medical and health information, as well as an opportunity for the parents to discuss and arrange adequate post-abortion care. Without these opportunities for parent-physician consultation and cooperation, the health of minors is put at serious risk. An abortion provider should know the medical history and background of the woman seeking an abortion, to make the best medical judgment regarding whether or not an abortion would be in the best interests of the woman, as well as any special health needs or accommodations the woman will need prior to, during, and after the abortion.
Parental involvement laws guarantee that parents will be available to help their daughters in cases of medical emergencies arising from an abortion. In February 1994, 15-year-old “Sarah”5 had an abortion at the hands of Moshe Hachamovitch at “A to Z Women’s Services” in Houston, Texas, without her parents’ notice or consent. Hachamovitch tore the right side of her cervix during the abortion. For four days, Sarah suffered at home from blood poisoning, fever, chills, severe abdominal pain, and nausea. She was completely unaware of the tear in her cervix, and her parents had no idea that she had had an abortion. She died in a hospital intensive care unit on March 2, 1992. The hospital physicians reported that if Sarah had received prompt medical care, the tear and post-abortion infection would have been detected immediately, and she would not have died. Had Sarah’s parents been aware of her abortion and given the opportunity to arrange adequate post-abortion care, Sarah would still be alive today.6 Thus, it is clear that parental involvement laws directly serve the state’s legitimate interest in protecting the health and safety of minors.
Parental involvement laws are also necessary for truly informed consent to be obtained. Parental advice and emotional support is irreplaceable for a minor’s abortion decision. The USSC has emphasized that “[a]s immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor.”7 Indeed, the Court has recognized that the state’s legitimate interest in ensuring that a minor’s abortion decision is informed justifies the enactment of parental involvement laws, as the abortion decision “is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support.”8
Lastly, parental involvement laws are necessary for the protection of parental rights. Parents have a right to know if their minor child will be undergoing an abortion, an invasive and often dangerous surgical procedure. The constitutional and traditional right of parents to rear their children has long been acknowledged by the courts. The USSC states that “constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic in the structure of our society.”9 In the same vein, the Court has also stated that: “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.”10
The fundamental right of parents to raise their own children can be directly applied in the context of minors seeking abortions. The Court has interpreted the right of parents to raise their own children to include the right of parents to counsel their children on important decisions, such as the decision as to whether to carry a pregnancy to term or to terminate the pregnancy by abortion.11 It is clear that parental notification and consent laws for minor abortions directly serve the state’s legitimate interest in protecting parental rights.
Where Do States Stand On Parental Involvement?
Currently, the majority of the states have parental involvement laws in effect.12 Twenty-five states have enacted parental consent laws in effect,13 and three states have parental consent laws that are enjoined, in litigation, or not enforced.14 Eleven states have parental notifications laws in effect,15 and seven states have parental notification laws that are enjoined, in litigation, or are not enforced.16
On March 13, 2008, Illinois State Attorney General Lisa Madigan filed an appeal to the U.S. Court of Appeals for the 7th Circuit to review the holding of the recent case Zbaraz v. Madigan, which denied Madigan’s request to lift the permanent injunction on the state’s parental notification statute. The Illinois Parental Notice of Abortion Act was enacted in 1995, but has never been enforced. Section 25(f) of the Act states: “An expedited confidential appeal shall be available, as the Supreme Court provides by rule, to any minor or incompetent person to whom the circuit court denies a waiver of notice.” Section 25(g) of the Act further states: “The Supreme Court is respectfully requested to promulgate any rules and regulations to ensure that proceedings under this Act are handled in an expeditious and confidential manner.”
The Act is constitutional, as it contains the necessary exceptions (for medical emergencies, waiver, and abuse) and a judicial bypass procedure. However, the Act was permanently enjoined simply because the Illinois Supreme Court refused to promulgate the administrative rule(s) necessary to implement the judicial bypass procedure of Section 25(f). The Court refused to implement the judicial bypass procedural rules, as was required of them by law in Section 25(g). To enjoin a parental notification statute for this reason is odd; no other state parental notification statute is not being enforced because a state supreme court refused to issue the required procedural rules for judicial bypass.
In her January 19, 2008 Press Release, Attorney General Madigan stated that the Illinois Supreme Court unanimously adopted judicial bypass procedural rules through the adoption of Rule 303A, Expedited and Confidential Proceedings Under the Parental Notification Act. Despite this, on February 28, 2008, the district court judge ruled (in Zbaraz v. Madigan) that the Parental Notification Act will remain permanently enjoined. With the appeal pending and the parental notification law still not enforced, the safety of minors and the rights of parents in Illinois remain in serious danger.
In order to protect the health and safety of minors and the constitutional rights of parents to rear their children, it is essential for the states to enact parental involvement laws. The USSC has made it abundantly clear that such laws are constitutional when drafted properly and further important legitimate state interests. The safety of minors and the rights of parents demand no less.
Originally published by the Culture of Life Foundation.
1. Mailee R. Smith, “Parental Involvement Laws: Protecting minors and furthering parental rights,” in Defending Life 2008: A State-by-State Legal Guide to Abortion, Bioethics, and End-of-Life Issues, published by Americans United for Life.
2. Planned Parenthood v. Casey, 505 U.S. 833 (1992) (upholding a one-parent consent PA law); H.L. v. Matheson, 442 U.S. 622 (1970) (upholding a one-parent notification law); Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983) (upholding a one-parent consent law); Ohio v. Akron, 497 U.S. 502 (1990) (Akron II) (upholding a one-parent notification and consent law); Lambert v. Wicklund, 520 U.S. 292 (1997) (upholding a one-parent notification law). The Court in Casey 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. Casey, 505 U.S at 899.
3. See e.g., Utah Code Ann. §76-7-304(3)-(6):
(3) Subject to Subsection (4), at least 24 hours before a physician performs an abortion on a minor, the physician shall notify a parent or guardian of the minor that the minor intends to have an abortion.
(4) A physician is not required to comply with Subsection (3) if:
(a) subject to Subsection (5)(a):
(i) a medical condition exists that, on the basis of the physician’s good faith clinical judgment, so complicates the medical condition of a pregnant minor as to necessitate the abortion of her pregnancy to avert:
(A) the minor’s death; or
(B) a serious risk of substantial and irreversible impairment of a major bodily function of the minor; and
(ii) there is not sufficient time to give the notice required under Subsection (3) before it is necessary to terminate the minor’s pregnancy in order to avert the minor’s death or impairment described in Subsection (4)(a)(i);
(b) subject to Subsection (5)(b):
(i) the physician complies with Subsection (6); and
(ii) (A) the minor is pregnant as a result of incest to which the parent or guardian was a party; or
(B) the parent or guardian has abused the minor; or
(c) subject to Subsection (5)(b), the parent or guardian has not assumed responsibility for the minor’s care and upbringing.
(5) (a) If, for the reason described in Subsection (4)(a), a physician does not give the 24-hour notice described in Subsection (3), the physician shall give the required notice as early as possible before the abortion, unless it is necessary to perform the abortion immediately in order to avert the minor’s death or impairment described in Subsection (4)(a)(i).
(b) If, for a reason described in Subsection (4)(b) or (c), a parent or guardian of a minor is not notified that the minor intends to have an abortion, the physician shall notify another parent or guardian of the minor, if the minor has another parent or guardian that is not exempt from notification under Subsection (4)(b) or (c).
(6) If, for a reason described in Subsection (4)(b)(ii)(A) or (B), a physician does not notify a parent or guardian of a minor that the minor intends to have an abortion, the physician shall report the incest or abuse to the Division of Child and Family Services within the Department of Human Services.
4. See e.g., H.L. v. Matheson, 442 U.S. 622, 404 (1970); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976); Carey v. Population Services International, 431 U.S. 678 (1977); and Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II).
5. The true identity of the minor is concealed in confidential court records.
6. Supra at note 1.
7. Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II).
8. Danforth, 428 U.S. at 91.
9. Ginsberg v. New York, 390 U.S. 629, 639 (1968); see also Quilloin v. Walcott, 434 U.S. 246 (1978) (“We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected.”).
10. Prince v. Massachusetts, 321 U.S. 158, 166 (1944); see also Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972); Stanley v. Illinois, [405 U.S. 645 (1972)]; and Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923).
11. See e.g., Bellotti II, supra, 443 U.S. 622, 633-639 and H.L. v. Matheson, 442 U.S. 622, 405 (1970).
12. See generally, Mailee R. Smith, “Parental Involvement Laws: Protecting minors and furthering parental rights,” in Defending Life 2008: A State-by-State Legal Guide to Abortion, Bioethics, and End-of-Life Issues, published by Americans United for Life.
13. AL, AZ, AR, ID, KY, LA, ME, MA, MI, MS, MO, NC, ND, OH, OK, PA, RI, SC, TN, TX, UT, VA, WI, and WY.
14. AK, CA, and NM.
15. CO, DE, FL, GA, IO, KS, MD, MN, NE, SD, and WV.
16. AK, CA, IL, MT, NV, NM, and NJ.
Originally published by the Culture of Life Foundation.