Mandatory Parental Consent and Notification Laws
03.01.01 - Although the U.S. Supreme Court recognized the right to choose abortion in Roe v. Wade in 1973, and reaffirmed that right in June 1992 in Planned Parenthood v. Casey, the Court has permitted states to dramatically restrict the ability of young women to obtain abortion services. More than half of the states in this country are currently enforcing laws that require a young woman seeking an abortion to notify or obtain the written consent of one or both of her parents prior to the procedure (see Restrictions on Young Women's Access to Abortion Services). Some states also impose a mandatory delay of twenty-four hours or more after notification has been made. At a time when the rate of teenage pregnancy continues to rise in the United States, mandatory parental involvement laws effectively deny young women access to the full range of reproductive choices.
Supporters of mandatory parental involvement assert that such measures will protect the health and promote the best interests of young women - and improve family communication. In reality, these laws threaten the health and well-being of young women. Although abortion is one of the safest surgical procedures, the medical risks and expenses of abortion increase significantly after the first trimester. Parental involvement laws force young women who are unable to comply with notice or consent requirements to delay obtaining appropriate medical care. For those who are fearful of the consequences should their parents learn of their pregnancies or abortion decisions, the resulting delays may be much longer as they seek court approval or travel out of state to obtain abortions. Some young women, unable to meet or avoid the requirements of the law, will attempt to self-abort or seek dangerous illegal procedures. Others will be forced to carry unwanted pregnancies to term.
Some proponents of parental involvement promote notification rather than consent requirements in an effort to appear more supportive of young women's health needs and family circumstances. But for the vast majority of young women, notification and consent are essentially the same. If a young woman is afraid to discuss her pregnancy and abortion choice with a parent, there is no difference between having to "tell" her parents or being required to obtain their consent for the procedure. Moreover, in most instances, mandatory notification poses as much of a danger as mandatory consent. A parent who is opposed to a young woman's abortion choice can prevent her from obtaining the medical care she needs even if consent is not required.
Regardless of state mandates requiring disclosure, most young women discuss their pregnancies and choices to have abortions with at least one of their parents; studies show that the younger the woman, the more likely she is to involve her parents in her decision. In addition, whether or not they are required to do so by law, health care providers routinely suggest that a young woman involve her parents if possible. When young women avoid parental involvement in their abortion decision, the choice is usually well justified. Even in the best of circumstances, candid communication about sexuality and reproductive issues may not take place in families. Mandatory notification and consent requirements are not an effective means of encouraging more open discussion and can actually damage relations among family members.
In families where abusive relationships or other problems prevent good communication between parents and their teenage daughters, state-mandated discussions can exacerbate existing problems. For battered teenagers and incest survivors in particular, mandatory parental involvement laws increase the risks in an already dangerous situation. Domestic violence affects as many as four million women a year in the United States. Fifty-five percent of children in families where the adult woman is battered also suffer from physical violence. In addition, one female child in five is sexually assaulted - and many become pregnant. Fear of additional violence may prevent these young women from informing their parents of their abortion decisions.
Parental involvement laws also fail to recognize that many young women live in nontraditional family situations - with one parent, stepparents, other relatives, or on their own. In such cases, laws that require them to contact both biological parents make it difficult, if not impossible, to obtain abortion services. Also, numerous young women involve other adults - grandparents, siblings, teachers, social workers, or the parents of their boyfriends - in their decisions. Narrowly defined parental involvement laws ignore the importance of such supports in young women's lives.
The Supreme Court has ruled that parental consent and two-parent notification laws may be constitutional if they include an "alternative," such as a judicial bypass procedure, to waive the requirement for young women who cannot involve their parents. To take advantage of a court bypass, a young woman must appear before a judge and prove either that she is mature enough to decide whether to have an abortion or that permitting her to obtain the procedure without involving her parents would be in her best interests. Requiring a young woman to discuss her pregnancy and personal details about her life before strangers in a courtroom adds unnecessary delays and further stress. Many young women do not have access to transportation to get to the courthouse and find it difficult to take time off from school or work in order to appear at a hearing. Although the Supreme Court requires that bypass procedures be confidential and expeditious, many young women may find their confidentiality threatened, especially if they live in rural areas or small towns. In some instances, judges arbitrarily reject young women's petitions based on their personal views about abortion. Even though it is clear that physicians are better able than judges to consider the circumstances a pregnant young woman faces, only a handful of states allow a physician to waive the parental involvement requirement if it is not in the young woman's best interests.
In order for young women to obtain the health care they need, mandatory parental involvement laws must be substantially modified or repealed. Rather than imposing restrictions on young women's access to a certain health care procedure, policymakers and advocates should work to ensure that all young people can obtain accurate sex education and comprehensive, confidential health care services.