On July 14, 2009, the Seventh Circuit Court of Appeals issued a ruling in Zbaraz v. Madigan, lifting the injunction of the 1995 Illinois Parental Notice of Abortion Act. Public discourse about parental involvement laws for minors seeking abortions has been quiet in recent years. Many believe that such statutes are common place and the U.S. Supreme Court ruling that set out the requirements for such laws to be constitutional, Bellotti v. Baird, is settled law, just like Roe v. Wade.

In the 1970s, Supreme Court decisions resulted in case law allowing state legislatures to enact parental involvement statutes mandating notification or consent of at least one parent by the clinic performing an abortion of a minor. The seminal case, Bellotti v. Baird II (1979), mandates that such laws must include alternative medical consent mechanisms to allow a minor the constitutional right to seek her desired medical care, so that such measures do not create an absolute veto by a parent or legal guardian. The legal intent was to balance the rights of parents in the pregnancy decision making of their daughters while guaranteeing an alternative for those minors unable to feasibly or safely seek parental involvement. In order for such statutes to be constitutional, 34 states have enacted laws allowing judges to rule on whether a pregnant minor can obtain an abortion without parental consent through a process known as judicial bypass. A minor can choose to seek a court order waiving the parental involvement requirement if she can prove that she is either mature enough to make the abortion decision independent of parental involvement or that it is in the minor’s best interests to not involve either of her parents.

Proponents of parental involvement statutes claim that minors need to be protected from any possible harm that might come from the abortion decision through mandated consultation with their parents. They insist that such statutes encourage consultation between minors and their parents regarding pregnancy decision making and assume that minors should always confide in their parents about their pregnancies, no matter the outcome of the communication. Opponents argue that such laws actually harm minors who have adverse relationships with their parents or legal guardians and should not be denied the right to choose when to parent or add to their existing families. They counter that communication between parents and daughters cannot be legislated, especially in families where there is a significant degree of separation, dysfunction and abuse.

Along with protecting parental authority, the legislative intent of many states that chose to pass parental involvement laws was to decrease the number of abortions of minors as well as reduce the number of unintended pregnancies due to concerns that minors were engaging in unprotected sex while counting on abortion as a method of birth control. However, the majority of studies show that these laws have not resulted in any significant impact on pregnancy rates, nor has the recent national decline in minors’ abortions been significantly attributed to the enactment of such laws. Other arguments against parental involvement laws involve unequal application of health law.  If minors can legally self-consent to the range of pregnancy-related medical care which includes amniocentesis, fetal surgery and cesarean sections, there should be no reason to not allow a minor to self-consent to abortion. Research has shown that there is no increased medical risk associated with abortion based solely on the age of the patient.  Just like adult women, abortion is ten times safer than childbirth in terms of medical risks. [Note: see also CDC’s Abortion Surveillance System: FAQs.]  Adding to the debate are various research studies conducted in the fields of social science, health care and law that examine factors that influence pregnancy decision making among minors. The majority of these studies show that the capacity for mature and competent decision making of pregnant minor women is equal to that of pregnant adult women. Minors and adults are also similar in their confidence in pregnancy decision making and comfort with their pregnancy outcomes. Some argue that the law cannot continue to ignore this body of research and illogically assume that if adults do not experience poor psychological outcomes after abortions, minors somehow will. Citing that the intentions of these laws violate the rights of minors in obtaining confidential services and achieving self-determination, many researchers suggest that these statutes and their judicial bypass mechanisms create an unnecessary burden.

The majority of studies about the impact of parental involvement laws regarding minors’ access to abortion conclude that there is little empirical data to prove that the benefits outweigh the costs of mandated involvement. The majority of minors consult their parents in their pregnancy decision.  A parental involvement law does not change the consultation patterns of pregnant minors nor does it encourage communication as intended.  It is the long standing relationship factors that promotes or inhibits parental consultation. If they do not consult with their parents, minors consult with a trusted adult – most likely someone with whom they have had previous discussions regarding sexual health issues. The majority of parental involvement laws also do not recognize the number of important caregivers of these minors who are not parents or legal guardians and are prohibited from serving in alternative notification or consent roles, such as grandmothers, uncles, brothers-in-law, sisters, etc.  

There are also concerns that the mechanism of bypassing parental involvement through the courts has not met expectations in implementation. There have been issues raised related to how minors are affected by negative experiences in the judicial bypass process when confidentiality, expediency fair access and due process are denied due to active bias or passive aggressive tactics by court actors opposed to abortion or the notion of minors acting independently of their parents. One of the commonly reported unintended impacts of these statutes is the delay minors experience in seeking medical care due to the complicated process of complying with notification, consent and judicial bypass procedures or traveling out of their home states when access to fair hearings has been proven difficult or impossible.

What recommendations do opponents of parental involvement laws have of alternatives to mandated parental involvement or judicial bypass? Many suggest alternative notification or consent of other trusted adults of minors such as relatives. Others offer that specified health professionals such as counselors should serve as an alternative to parental involvement for minors unable or willing to confide or inform their parents about their pregnancies. Some desire more straight forward approaches such as making parental involvement laws apply to minors under 15 years in age or that all pregnant minors should be deemed legally competent to consent to all medical treatment. Others think that the right of privacy should be clearly afforded to minors through federal measures or legal rulings using the 14th Amendment.

Meanwhile, physicians are recommended by the American Medical Association to 1) encourage minors to discuss their pregnancy options with their parents, 2) not require their parents be involved in the decision and 3) rely on data that shows decision making capacities should be trusted enough to treat the minor as mature enough to make the pregnancy decision as an adult. Judges are recommended to decide judicial bypass cases using research on how competency and maturity has been evaluated by the social sciences. One approach is for judges to use an "Informed Consent Framework" which outlines elements necessary to evaluate informed consent: voluntariness, understanding of terminology, and ability to make decisions rationally and intelligently. Finally, there is a call for the Supreme Court to re-examine its assumptions regarding the decision-making capacities of pregnant minors in light of the growing body of knowledge showing that pregnant minors exhibit adult-level reasoning. Courts should consider and acknowledge studies that do not support the notion that abortion causes long-term emotional damage, that minors are incapable of adult-level decision making when seeking pregnancy-related medical treatment, and that parental involvement laws are functioning as they were intended.

While the Obama administration has been holding meetings to seek "common ground" on abortion, I have been wondering who was at "the table" and how the agenda was being shaped. Does this notion of common ground include the pregnancy rights of minors? Will this White House take the opportunity to review available literature that explores whether the compromise between parental authority and minor’s reproductive autonomy in the form of abortion parental involvement laws has been working as intended? Youth advocates in Illinois are now worried about the law’s affect on pregnant minors in their state. Does the political leadership in Washington, D.C. understand why?  Pro-choice is the common ground.  Women and girls need not compromise their reproductive health anymore than they have been enduring in the last 30 years.  In fact, perhaps it is time that national leaders engage in discourse about how parental involvement laws do more harm than good. If minor women are as a competent in their pregnancy decision making capacity as adult women, why should they continue to compromise their reproductive health?