Teenagers, Abortion, and Government Intrusion Laws

Of all the abortion-related policy issues facing decision-makers in this country today, parental consent or notification before a minor may obtain an abortion is perhaps the most difficult. Few would deny that most teenagers, especially younger ones, would benefit from adult guidance when faced with an unwanted pregnancy. Few would deny that such guidance ideally should come from the teenager's parents. Unfortunately, we do not live in an ideal world.

In the 30 states with laws in effect that mandate the involvement of at least one parent in the abortion decision, teenagers who cannot tell their parents must either travel out of state or obtain approval from a judge — known as a "judicial bypass" procedure — to obtain an abortion. The result is almost always a delay that increases both the cost of the abortion and the physical and emotional health risk to the teenager, since an earlier abortion is a safer one (Paul, et al., 1999).

Currently, anti-choice members of Congress are seeking to make it even more difficult for minors living in states with mandatory parental consent laws to obtain an abortion with the so-called "Child Custody Protection Act" (CCPA). The bill would make it a federal crime to transport a minor across state lines for an abortion unless the parental involvement requirements of her home state had been met. If the bill were enacted, persons convicted would be subject to imprisonment, fines, and civil suits (H. R. 1218, 1999; S. 661, 1999).

Requiring Parental Consent for Abortion Is Not Consistent with State Laws Regulating a Range of Medical Services for Minors

Parental involvement proponents contend that parents have a right to decide what medical services their minor children receive. However, states have long recognized that many minors have the capacity to consent to their own medical care and that, in certain critical areas such as mental health, drug and/or alcohol addiction, and treatment for sexually transmitted infections (STIs) and pregnancy, entitlement to confidential care is a public health necessity (Donovan, 1998).

The informed consent of a patient, if competent, has always been a prerequisite to medical treatment. The common law assumed that a minor was not wise enough or mature enough to determine his or her medical needs and gave the right to consent to the parent or guardian. However, except in the area of abortion, there have never been criminal penalties for treating a minor on her own consent.

Various exceptions to the common law rule currently exist. In fact, many states have passed laws that protect providers from civil liability for providing care in specific areas. Implicit in the passage of these laws is the recognition that a minor can give an informed, competent consent. For example:

• Approximately 23 states and the District of Columbia grant minors the authority to consent to contraceptive services.

• Approximately 27 states and the District of Columbia authorize a pregnant minor to obtain prenatal care and delivery services without parental consent or notification.

• Forty-nine states and the District of Columbia give minors the authority to consent to the diagnosis and treatment of sexually transmitted infections. (Donovan, 1998)

Many of these laws allow minors to give consent to treatments that involve greater medical risk than a first-trimester abortion, such as surgical interventions during pregnancy and Caesarean sections. Nevertheless, many of these same states require parental consent for abortion.

Most Teenagers Having Abortions Already Involve Their Parents, Even When Not Required To Do So By Law

A minority of teenagers do not involve their parents. They make this decision because such involvement would not be in their best interests. A 1991 study of unmarried minors having abortions in states without parental involvement laws found that:

• Sixty-one percent of the respondents reported that at least one of their parents knew about their abortion.

• Of those minors who did not inform their parents of their abortions, 30 percent had histories of violence in their families, feared the occurrence of violence, or were afraid of being forced to leave their homes.

• Minors who did not tell their parents were also disproportionately older (aged 16 or 17), white, and employed.

• Among the respondents who did not inform their parents of their pregnancies, all consulted someone in addition to clinic staff about their abortions, such as their boyfriend (89 percent), an adult (52 percent), or a professional (22 percent). (Henshaw & Kost, 1992)

• In 1998, approximately 19.8 million children under the age of 18 lived with only one parent (U.S. Census Bureau, 1998).

• In 1993, 31 percent of all births occurred out of wedlock. One study found that 20 percent of unmarried fathers had little to no contact with their children (Doherty et al., 1998).

• An even greater number of children live with a single parent subsequent to divorce — 6.6 million in 1994. A 1990 study found that one-third of divorced fathers had no contact with their children during the previous year (Doherty et al., 1998).

• In Minnesota, more than one-quarter of the teenagers who sought judicial bypass were accompanied by one parent, who was most often divorced or separated. According to the federal district court that reviewed Minnesota's law, many of the custodial parents feared that notification would "bring the absent parent back into the family in an intrusive and abusive way" (Hodgson v. Minnesota, 1986).

Even if a teenager is able and willing to involve one or both parents, the procedures required by some state parental consent or notification laws make compliance impossible for some, if not most, teenagers.

• Requiring that teenagers either obtain notarized evidence that parents have been notified, or present a death certificate for a deceased parent may present impossible logistical barriers for a young teenager or cause serious delay.

• A requirement that the physician personally locate and notify the parents could easily both delay the procedure and increase the cost.

Parental Consent Laws Cause Dangerous Delays for Teens Seeking Abortion

Experience shows that most teenagers who feel they cannot involve their parents still manage to obtain confidential abortion services. Whether they travel to other states or obtain judicial approval, the results are the same: delays that can greatly increase both the physical and emotional health risks as well as the costs.

• The manner in which each state enforces its judical bypass laws is erratic. In Minnesota, the federal district court found that the state courts "denied only an infinitesimal proportion of the petitions brought since 1981" (ACLU, 1986). A study in Massachusetts found that only nine of the 477 abortion requests studied had been denied (Yates & Pliner, 1988). However, a Ohio report found that the percentage of waivers denied ranged from 100 percent to 2 percent, depending on the county in which the petition was filed (Rollenhagen, 1992).

• While nationwide most minors seeking judicial approval receive it, the process is unwieldy and, most importantly, time-consuming. Court proceedings in Minnesota routinely delayed abortions by more than one week, and sometimes up to three weeks (ACLU, 1986).

• In Minnesota, the proportion of second-trimester abortions among minors terminating their pregnancies increased by 18 percent following enactment of a parental notification law. Likewise, since Missouri's parental consent law went into effect in 1985, the proportion of second-trimester abortions among minors increased from 19 percent in 1985 to 23 percent in 1988 (Donovan, 1992).

The Child Custody Protection Act Harms Children

In March 1999, the Child Custody Protection Act was reintroduced in the House of Representatives (H.R. 1218) and the Senate (S. 661). The bill would make it a federal crime to transport a minor across state lines to obtain abortion services without fulfilling the parental consent or notice requirements of her home state. Last year, the House of Representatives passed the bill by a vote of 276 to 150, but President Clinton threatened to veto it, and the Senate never took it up for consideration (Eilperin, 1999). On June 23, 1999, the House Judiciary Committee passed the CCPA, defeating five proposed amendments including those that would create exceptions for grandparents, siblings, aunts and uncles, and religious leaders who assist minors in obtaining abortions (Superville, 1999). On June 30, the legislation passed in the House of Representatives again, this time by a vote of 270 to 159 — a differential not sufficient to override a presidential veto (Eilperin, 1999). Although, if passed, the Act would only affect a small percentage of women seeking abortion services — minors account for fewer than one in 10 abortions performed — the impact of the Act would be dramatic.

• The Child Custody Protection Act would subject to criminal penalties anyone — a grandparent, sibling, member of the clergy, or medical professional — who assists a minor in traveling across state lines to receive an abortion. Because 86 percent of U.S. counties lack an abortion provider (Henshaw, 1998), many minors cross state lines to obtain, from the nearest provider, basic abortion services they require. Whether the issue is convenience or avoidance of parental consent laws, however, the CCPA is designed to impede access to safe and legal abortion services by forcing a young woman to deal with a crisis pregnancy on her own, rather than seeking the support of a trusted friend or family member.

• Because the Act would impose fines, imprisonment, and/or civil suits on those found in violation of it, it would deter responsible, caring adults from assisting a minor out of fear of prosecution.

• The CCPA also raises a number of constitutional and legal questions, particularly those related to issues of federalism. The legislation effectively requires the federal government to take sides on policies that are made by individual states - policies on which states are diametrically opposed. Such action on behalf of the federal government would be unprecedented, and raises serious implications for states' rights. (Saul, 1998)

Cited References
ACLU — American Civil Liberties Union Foundation Reproductive Freedom Project. (1986). Parental Consent Laws: Their Catastrophic Impact on Teenagers' Right to Abortion. New York: ACLU.

Child Custody Protection Act, H. R. 1218, 106th Cong., 1st Sess. (1999).

_____, S.661, 106th Cong., 1st Sess. (1999).

Doherty, William J., et al. (1998). "Responsible Fathering: An Overview and Conceptual Framework." Journal of Marriage and the Family, 60(2): 277-292.

Donovan, Patricia. (1992). Our Daughters' Decisions: The Conflict in State Law on Abortion and Other Issues. New York: Alan Guttmacher Institute.

_____. (1998). "Teenagers' Right to Consent to Reproductive Health Care." Issues in Brief. Washington, DC: Alan Guttmacher Institute.

Eilperin, Juliet. (1999, July 1). "House Acts to Bar Interstate Transport of Teens to Evade Abortion Laws." Washington Post, p. A06.

Henshaw, Stanley K. (1998). "Abortion Incidence and Services in the United States, 1995-1996." Family Planning Perspectives, 30(6): 263-270 & 287.

Henshaw, Stanley K. & Kathryn Kost. (1992). "Parental Involvement in Minors' Abortion Decisions." Family Planning Perspectives, 24(5): 196-207 & 213.

Hodgson v. Minnesota, 648 F. Supp. 756 (D. Minn. 1986).

Makinson, Carolyn. (1985). "The Health Consequences of Teenage Fertility." Family Planning Perspectives, 17(3): 132-139.

Paul, Maureen, et al. (1999). A Clinician's Guide to Medical and Surgical Abortion. New York: Churchill Livingstone.

Rollenhagen, Mark. (1992, June 18). "Clinics Fight Notification Rule By Filing Suit." Plain Dealer, p. 1C.

Saul, Rebekah. (1998). "The Child Custody Protection Act: A 'Minor' Issue at the Top of the Anti-Abortion Agenda." Guttmacher Report on Public Policy, 1(4): 1-2 & 7.

Superville, Darlene. (1999, June 23, accessed 1999, July 1). "Teen Abortion Bill Clears House Committee." Associated Press [Online].

U.S. Census Bureau. (1998). "Marital Status and Living Arrangements: March 1998." Current Population Reports, Series P-20, No. 433.

Yates, Suzanne & Anita J. Pliner. (1988). "Judging Maturity in the Courts: The Massachusetts Consent Statute." American Journal of Public Health, 78(6): 646-649.