Bypassing Young Women's Abortion Rights

Girls on the Stand: How Courts Fail Pregnant Minors by Helena Silverstein (NYU Press, 239 pages)

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Especially since the Supreme Court signaled in Planned Parenthood v. Casey that it would give the states broad leeway to regulate abortion, there has been a proliferation of abortion regulations that, while not banning first trimester abortions, make them more difficult to obtain. Among the most popular of these are parental involvement laws, which require minors to either obtain the consent of or (in weaker versions) inform their parents before obtaining an abortion.

More than 30 states have such laws, although in the past year attempts to institute parental involvement legislation in California by referendum failed and the New Hampshire law that was challenged in Ayotte v. Planned Parenthood for lacking a health exemption was repealed entirely by the legislature. A new study of parental involvement laws by Helena Silverstein, Girls on the Stand: How Courts Fail Pregnant Minors, suggests that it would be better if this recent trend against such laws were much more widespread.

Silverstein's book is an especially welcome addition because, rather than focusing on normative debates about abortion that almost anyone interested in the question is already familiar with, she focuses on how parental notification laws actually work on the ground. The book is judicious and moderate in tone; indeed, I can imagine some who agree with her conclusions wishing she had been more forceful in her criticisms of the policies she studies. But the book would not be as powerful as it is if it were not also a first-rate work of social science.

Silverstein begins the book by expressing sympathy for the goals of parental involvement laws (regulations, she notes, that are supported by many who consider themselves to be pro-choice). All things being equal, it is not illogical to assume that parental involvement will be beneficial to young women making the extremely difficult decision about whether to continue a pregnancy. The objection to such regulations, however, is equally obvious: Young women in loving families are likely to discuss the decision with a parent without state intervention, while getting the state involved may create serious risks for women in abusive or potentially abusive families. The compromise endorsed (and required) by the Supreme Court in Hodgson v. Minnesota permits the state to mandate parental involvement, but only if a judicial bypass is available for young women who would be endangered by parental involvement or who can demonstrate sufficient maturity to choose without it.

Such a compromise, on its face, is not unreasonable. The state has a greater interest in intervening on behalf of minors, which makes the paternalism of such laws less transparently odious than similar regulations applied to adult women. Silverstein begins her empirical argument by assuming for the sake of argument that such a compromise is potentially legitimate. Such an assumption, however, is the beginning rather than the end of an argument defending such regulations. Even if we grant that the objectives are desirable, does such legislation achieve these objectives?

Silverstein focuses in particular on the operation of judicial bypass provisions, without which such legislation is much less defensible. To fulfill their function, such provisions have to be accessible, subject to a transparent process, and be applied fairly and in good faith. But as Girls on the Stand demonstrates, in practice, these regulations routinely fail to meet any of these criteria. Obtaining a bypass often requires navigating a bewildering bureaucratic maze: vague standards permit state officials to substitute their own opposition to abortion and religious values for a fair consideration of a young woman's rights, and are subject to egregiously arbitrary application even when applied in good faith.

The problems of transparency are particularly striking. Careful attempts by Silverstein and her research assistants to obtain the necessary information to secure a bypass in three different states frequently resulted in scenes out of Kafka. Silverstein found that "some 51 percent of courts in Alabama, Pennsylvania, and Tennessee proved absolutely or materially ignorant of their responsibilities under their states' judicial bypass provisions." Given the time-bound nature of the abortion decision and the fact that most young women cannot afford legal counsel, for many young women the right to obtain a bypass is meaningless.

Even if young women are able to obtain the relevant information and get a court hearing, the impediments often remain formidable. The standards for issuing a bypass -- which generally give judges extremely wide discretion to apply such criteria as whether a young woman is sufficiently "mature" or whether obtaining an abortion would be in her "best interests" -- ensure highly arbitrary application in practice. Silverstein notes that as a trial court judge in New Hampshire, future Supreme Court Justice David Souter argued that "a principled and consistent" application of the state's typical bypass provision would be "impossible." Souter's argument has proven to be correct. A young woman's ability to obtain a bypass depends not on any objective necessity but on whether she is in the right jurisdiction and get the right judge.

Such arbitrariness is inevitable even if judges are acting in good faith. In some cases, however, judges make little effort to conceal their hostility to a woman's legally protected rights. In one bypass hearing, for example, a judge appointed a lawyer to argue on behalf of the fetus, earning a rebuke from the far-from-liberal Alabama Supreme Court. (A subsequent legislative attempt to require legal representation for the fetus was endorsed by future Bush judicial nominee William Pryor.) Since parental involvement laws are often part of a carefully coordinated strategy on the part of abortion rights opponents to incrementally accomplish what they can't do explicitly, this is hardly surprising.

Even more striking is the extent to which young women are subjected to the religious values of justices when they try to seek a bypass. A particularly common tactic is for women to be required to visit "crisis pregnancy centers" in which they are subject not only to anti-choice propaganda but to sectarian religious proselytizing. At "Sav-A-Life" centers, Silverstein found "saving the spiritual life of the mother" was as important a goal as saving fetal life. Such centers, of course, are free to advocate for these values, but it is unacceptable for women to be required to be subject to other people's religious values in order to obtain an abortion. As applied, then, judicial bypass provisions raise not only serious concerns with respect to a woman's privacy and equality rights but also potentially violate the establishment and free exercise clauses of the First Amendment.

The particularly salient lesson to draw from Silverstein's book is that it's important to ask whether abortion regulations actually accomplish anything, even on their own terms. "Basing a policy that regulates the right to abortion on confidence that the law stands outside of politics and free of bureaucratic red tape," writes Silverstein, "is a mistake fraught with consequences for those whom the right ostensibly protects."

Support for these laws is often more about the assumption that compromise on abortion is inherently desirable rather than arguments about what benefits will come from the legislation. Is there any evidence, for example, that the lack of abortion regulation makes the decisions of Canadian women less responsible? Whatever their merits in the abstract, in practice "centrist" abortion regulations do little but put up obstacles in the path of the most vulnerable women while not accomplishing any useful objective. Parental involvement laws -- which are largely superfluous for young women in good family situations and potentially dangerous for young women in bad situations -- are a case in point, especially since the safeguards intended to protect the latter don't work. Silverstein makes a careful, meticulous, and ultimately powerful case that even those who support the ends of parental involvement laws should reject them in practice.

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