The Instinct Is Fine--It’s Deeply Parental : But consent laws are not a cure for teen abortion

On an instinctive level, parental consent laws that require that parents or, in lieu of parents, a judge, give permission for a minor to obtain an abortion seem appropriate. But in California, the parental consent law for abortion--on the books since 1987 but never enforced--runs counter to evolving state tradition and law. That law, which requires a minor to get parental consent or court approval before having an abortion, is now under legal challenge.

The law is certainly well-intentioned and taps an emotional chord in every parent. But the real-life consequences of that law--government intervention in the decision over whether a child should be forced to have a child she does not want or cannot care for--present an unacceptable trade-off. Teens should inform their parents if they are pregnant. Studies indicate most do. But the state should not attempt to legislate family communication and then punish those who cannot or will not comply.

The 1987 parental consent law is, in effect, a departure from California’s evolving legal tradition over the last 40 years. That tradition is deeply grounded in a respect for privacy, even minors’, as well as in a healthy pragmatism about the ineffectual nature of laws that seek to govern sex between two mutually consenting persons.

Californians have a history of resisting government intrusion into sexual matters, even when the political climate might have suggested otherwise.

That’s why even in 1953 the state allowed pregnancy-related hospital, medical and surgical care for an unmarried minor without the consent of a parent. In the 1960s and 1970s, the state Legislature allowed adolescents access to “sensitive health care,” including contraceptives, venereal disease testing and treatment, without consent of parents.

Federal courts have upheld parental consent laws in other states, most recently in Pennsylvania. But California, with its explicit, constitutional protection of the right to privacy, could set a precedent for states to invoke their own constitutions to strike down such laws.

California’s protection of privacy is seen as broader than the privacy right implicit in the U.S. Constitution that formed the basis for the 1973 Roe vs. Wade decision legalizing abortion.

But beyond the solid legal argument, there’s another one that touches closer to home for most families. The fact is that studies show that 54% of unmarried minors who attend family planning clinics and 55% of those having abortions do so with parental knowledge. Younger teens are even more likely to tell a parent about a pregnancy.

Without parental consent, a girl would go to court in what is called judicial bypass; studies indicate that the courts, uncomfortable playing any role in this private decision, have usually granted the teen-ager’s wish to have an abortion. Often, what would have been an early abortion in the home state becomes either an abortion in another state or a later, riskier abortion.

While one study indicates that a similar law in Minnesota has led to a drop in abortion and birthrates among some teens, other studies from other states don’t support a link between a parental consent law and a decline in abortion.

Parental consent opens up other disturbing possibilities. If a parent could forbid a minor to have an abortion, could a parent force a minor to have an abortion?

Common sense and empirical data leave little doubt that good communication between parents and children leads to more responsible sexual behavior by adolescents. Would that the government could mandate both. It cannot.

The government should remain neutral in the choice between childbirth and abortion; it must stay out of this agonizing family matter.