Parental Consent Laws: What’s best for the minor girl? By Katherine Slye

This is the second in a series on abortion laws in the United States.

Parental consent and notification laws were once often challenged in court and declared unconstitutional (Merz, Jackson, Klerman 1995). However, the Supreme Court ruled in the 1992 Casey decision that restrictions placed on abortion, including parental consent/notification laws as well as others, were not an undue burden on a woman and were thus constitutional. Despite this, and the fact that some research shows the passage of such laws decreased a state’s minor abortion rate, they are still being debated in our state legislatures. But the question still remains: are these laws in the best interest of the minor girl seeking the abortion?

Currently, 37 states require minors to involve their parents in some way with their decision to have an abortion; 26 of those require consent for the procedure, often in writing, while the remaining 11 only require the doctor send a notice to one or both parents, usually about 24-hours before the procedure. Judges have determined that these laws are constitutional so long as they have a judicial bypass, meaning that if a young woman can demonstrate her ability to make such a decision on her own, parental involvement is not required.

Many states are currently considering legislation that would establish, or further clarify, parental consent laws. Illinois is adding layers to their law “by adding new restrictions to the judicial bypass option and authorizing civil lawsuits if a relative or friend poses as a parent to satisfy the mandate.” Indiana now requires that a minor girl either receive consent from her parents or, if she seeks a judicial waiver, her parents will be informed she is seeking an abortion without their consent and give them an opportunity to object to the judicial bypass in court; this, however could lead to problems if a girl is a victim of incest or rape. West Virginia removed the ability of physicians to determine whether a minor girl is able to make the decision on her own.

In a policy brief submitted in West Virginia’s most recent battle, The American Academy of Pediatrics’ Committee on Adolescence, the American Public Health Association, and the American Medical Association said that forcing communication between a girl and her parents does more harm than good, and in fact most adolescent abortions in 2015 were done with the parents awareness anyway. “…[L]egislation mandating parental involvement does not achieve the intended benefit of promoting family communication, and it increases the risk of harm to the adolescent by delaying access to appropriate medical care.”

These types of laws stand on the assumption that either parents want to, or should, be involved in a minor girl’s decision to end a pregnancy and/or a minor is unable to make such a large decision alone. As research has shown, most young women do involve their parents when deciding whether to have an abortion. However, alternative paths, such as physician or judicial bypass procedures, can help girls who are unable to talk to their parents for whatever reason.

The goal of these laws is usually to increase communication among families, but if a family member is the cause of the pregnancy, that might not be a safe option for a young woman. The most important consideration when making these laws is that it’s not about whether a minor girl is “hiding” an abortion from her parents, but about ensuring the safety of the young woman during what is often already a difficult decision. And given recent research that says even the judicial bypass procedure can have negative ramifications, it is unclear what the best path forward actually is.

As with most policy, it probably lies somewhere in the middle, not with forcing young women to plead their case in front of a judge, or involving their parents, or with having complete autonomy without any guidance on their decision.

A possible “middle of the road” solution might be to offer some sort of counseling or information to young women about how to talk to their parents and explaining why that might be in their best interest. As with most things, forcing a person to do something does not lead to the best results; actions are often taken reluctantly and thus lead to less open communication. It can also lead to minor girls trying to find ways around the law, such as traveling to a nearby state.

If young women are given the tools they need to make a decision about whether to involve their parents, and how to have that conversation, more young women would probably talk to their parents on their own, thus negating the need to force them into that conversation.

Katherine Slye, MA is a PhD Candidate at the University at Albany working on her dissertation, which examines the past lobbying strategies of abortion interest groups, "How Choice is Made in the Choice Debate."