By Jessica Goldberg, J.D.
Welcome to Judicial Bypass Week at If/When/How! We’re highlighting the excellent work of attorneys, advocates, academics, and youth around the country who are working to make mandatory parental involvement laws a thing of the past, ensuring that young people who can’t, or can’t safely, involve their parents in their abortion decisions are able to access the care they need swiftly and without shame or stigma.
Forced parental involvement laws are not only bad law, creating real and significant barriers to abortion access for many young people – they are also complete bunk.
These laws disregard young people’s moral agency and decision-making abilities while placing enormous burdens — undue burdens! — on those who do not want to or cannot involve their parents in their abortion care decisions.
Since Roe v. Wade in 1973, anti-abortion groups have used incremental, targeted laws at both the state and the federal levels to restrict access to abortion, and forced parental involvement laws have always been part of that framework. The first significant challenge to parental involvement came before the U.S. Supreme Court in 1976 in Planned Parenthood of Central Missouri v. Danforth. In that case, the Court found the law unconstitutional because it gave absolute veto power to a parent concerning a young person’s abortion decision — more power, the Court noted, than the state had.
Three years later, in 1979, the U.S. Supreme Court case Belotti v. Baird upheld parental involvement laws generally, but established the standards for judicial bypass, the legal mechanism for bypassing these requirements. In the opinion, delivered by Justice Powell and joined by Chief Justice Burger, Justice Stewart, and Justice Rehnquist, the Court cited “an important state interest in encouraging a family rather than a judicial resolution of a minor’s abortion decision,” as well as a parent’s interest in the welfare of their children – an interest, the Court says, “that is particularly strong where a normal family relationship exists….” [Emphasis added while rolling my eyes.] From a reproductive justice perspective, of course, this isn’t necessarily a decision for the family, per se, to resolve. It is a decision for the person who is pregnant to approach with the consultation and support of whoever that pregnant person trusts and chooses to include in the decision. And not to mention – who is Justice Powell to say what constitutes a “normal” family relationship? Is that something we want to enshrine in precedent? But the bottom line is that even with the bypass process, the decision to get an abortion does not rest solely in the hands of a young person who is pregnant – that young person must still get permission from some adult, leaving open the door to a complete veto for young pregnant people.
More recently, you may be familiar with the case of Garza v. Hargan, or the “Jane Doe” case involving a young immigrant woman who U.S. officials sought to force to remain pregnant against her will while in the custody of the Office of Refugee Resettlement. D.C. Circuit Court judge Brett Kavanaugh – now nominated for a seat on the United States Supreme Court – penned a deeply patronizing dissent in Garza. In it, Kavanaugh threw a kind of judicial temper tantrum, in which he repeatedly states that the majority created a new right to “an immediate abortion on demand,” while also expressing concern that Jane Doe might be forced to make an abortion decision while being held in a detention center, a place, he wrote, that was “foreign” to her, rather than waiting to be transferred to a sponsor who might be a family member or relative. (Does that mean Kavanaugh will come out strongly against the separation of immigrant families? We could speculate. We certainly could.)
I do not believe Kavanaugh is concerned for the young woman in Garza, nor do I believe that Kavanaugh really thinks the majority decision carves out a new right to “abortion on demand” for immigrant minors. Here’s why: By the time this case came before the D.C. Circuit Court, Jane Doe had already gone through the judicial bypass process required by Texas law, so a judge had already ruled that she was mature and well enough informed to make this decision for herself, or that attempting to obtain consent from a parent or guardian would not be in her best interest. Kavanaugh acknowledges that if Jane Doe had been transferred to a sponsor, she still would not be required to consult the sponsor in her abortion decision, or even be required to obtain the sponsor’s consent in order to get the abortion. Nothing would change, except that Jane Doe would be in a sponsor’s custody instead of in the custody of the U.S. government. Thus, it doesn’t seem to me that Kavanaugh’s true goal is to protect Jane Doe. What is more likely, in my view, is that Kavanaugh wished to delay Jane Doe’s abortion as long as possible, ideally past the point of viability, because if the court could ultimately block Jane Doe’s access to abortion (by any means necessary), then anti-abortion activists could claim that some ground had been won in the seemingly never-ending fight to completely block access to abortion.
Even with the bypass process, the decision to get an abortion does not rest solely in the hands of a young person who is pregnant – that young person must still get permission from some adult, leaving open the door to a complete veto for young pregnant people.
The ruling in Bellotti was paternalistic, but Kavanaugh’s dissent in Garza shows how parental involvement laws are used as an essential arm of the wider movement to end legal abortion care for all, not good-faith efforts to protect young people. Proponents of these laws make claims about decreasing abortion rates among teens, protecting the best interest of minors, and safeguarding cohesion of the family unit. But what we know – from medical providers, advocates, and peer-reviewed research – is that the laws actually have the opposite effect.
All of this patronizing hand-wringing might be tolerable (well, probably not) if the necessity of it were borne out by the facts. But alas, it is all, as I said before, bunk.
The truth is, the majority of young people already involve a parent in their abortion decisions, or already have a network of support they can lean on, even If that network is not recognized by proponents of parental involvement laws’ narrowly tailored, thinly veiled attempts to maintain control over young people’s bodies. According to the American Academy of Pediatrics Committee on Adolescence, forced parental involvement laws actually “have the opposite effect” than those claimed by proponents of the law. And according to a 2009 literature review by Guttmacher: “The clearest documented impact of parental involvement laws is an increase in the number of minors traveling outside their home states to obtain abortion services in states that do not mandate parental involvement or that have less restrictive laws.” Forcing minors to cross state lines where laws are less restrictive does not protect the best interest of the minor or protect the cohesion of the family unit. Instead, it delays access to health care and forces young people who likely have a network of support in their home to state away from that support system.
What isn’t bunk? Well, comprehensive, medically accurate sex education, for a start. Along with access to contraception, quality sex-ed has been proven to reduce the likelihood that teens will experience unwanted pregnancies. How about concrete support, practical resources, and inclusion, not ostracization, for LGBQ and trans youth? The best way to project young people is to accept and support them, and to give them places and people to turn to if their own families turn them out. And, of course, we must support immigrant youth and fight the separation of immigrant families – because tearing parents from their children actually is a threat to family cohesion, and it is in our power to make sure it stops.
Indeed, there are many, many ways to make sure parents and their kids have strong relationships with each other, and to show that, as a country, we support healthy, empowered families of all shapes and sizes. But there’s no evidence at all that shows forced parental involvement laws are how to do it. They’re just, you know, bunk.