Minors Also Have a Right to Reproductive Choice

A bill to restrict minors’ access to legal abortions has once again surfaced in the California Legislature. This rider to a child-abuse bill would prohibit minors from obtaining abortions unless they had parental consent or a court order.

It is not surprising that those fundamentally opposed to abortion would welcome such a law as an important step in their long march to reverse Roe vs. Wade. What is more troubling is that this proposal also has the support of many pro-choice advocates who believe that the right of minors to abortion ought to be restricted. This position seems to be grounded in assumptions that do not stand up to critical analysis and that should be rejected as unsound bases for public policy on abortion.

Advocates of parental-consent rules assume that the right of reproductive choice does not extend to minors because minors’ constitutional rights are more limited than those of adults. While it is true that the U.S. Supreme Court has upheld narrowly drawn parental-consent laws on abortion, it has been able to do so only by ignoring the standards ordinarily applied to restrictions of minors’ fundamental rights.

A survey of the development of the constitutional rights of minors during the past three decades suggests that restrictions of those rights must be based on a very significant state interest and that the state’s identified interest actually must be furthered by the policy in question. Can the state meet this burden of proof in this proposed abortion law? Is the state’s interest sufficiently serious and will it truly be significantly furthered by the parental-notification law?

Supporters of SB 7 or AB 2459 (as it was amended to incorporate the principles of SB 7) argue that the law would promote communication between children and their parents. They assume that the law would encourage pregnant minors to talk to their parents about their plight. While a family environment that fosters such openness certainly is desirable, it is not one that the legal system can bring about, nor is it clear that this is what the law actually is designed to accomplish.

What available statistics do demonstrate is that the law would be unable to improve familial openness on the abortion issue. Slightly more than 50% of pregnant teenagers who seek abortions have discussed their decision with their parents--whether or not the state requires parental consent; the figure rises to 75% for girls under 15. Those who reside in states with restrictions on access to abortion for minors, and who do not or cannot seek parental consent, either obtain abortions in less restrictive neighboring states or carry unwanted pregnancies to term. Familial closeness cannot be brought about by state law. But is that really the goal of this proposal?

Since 1953 minor females in California have been able to seek maternity care without parental permission or notification. This bill would not change that. Minors would still be able to obtain prenatal medical services while carrying a pregnancy to term; only a decision to terminate the pregnancy would trigger the legally mandated family communication and parental consent. The law would distinguish between access to maternity care and access to abortion. Thus, preventing abortions, not familial communication, is the goal. Is the prevention of abortion for minors a legitimate and significant state interest?

That the state may not enforce a preference for childbirth over abortion when dealing with adult women is clear from 13 years of legal precedents, and was most recently reiterated by the U.S. Supreme Court on June 11. Can the state nevertheless enforce this preference out of paternalistic concern for the welfare of minors? Even if arguably within the constitutional power of state government, there is grave evidence that encouraging childbirth over abortion is not in the best interests of the health and welfare of pregnant teen-agers.

Aside from the long-term socioeconomic and emotional consequences of having an unwanted child, there is the fact that the mortality rate is 16 times greater in childbirth than in abortion. And for girls under 15 the mortality rate in childbirth is 2 1/2 times greater than for women 20 to 24. When combined with the myriad other dangers to mother and child inherent in teen pregnancy, it is clear that there is no public health justification for limiting minors’ access to abortion.

The bill’s supporters believe that the pregnant teen-agers’ rights are sufficiently protected by a provision that would allow minors unable to obtain parental consent to seek permission through the courts. This is simply not an effective or a rational role for the judiciary. Available data from states with parental-consent laws show almost no resort to the courts. Those who support judicial-consent laws should be aware that in the rare instances in which pregnant teen-agers have gone to court, judges rarely have refused the request.

The judge’s role is to determine whether the youngster is mature enough to make the abortion decision on her own. It would be perversely ironic for a judge to conclude that the petitioner is too immature to terminate her pregnancy of her own volition but mature enough to become a mother against her will. That is precisely what SB 7/AB 2459 would support. The proposal would make bad law and bad public policy, and it deserves to be defeated.