JUST POSTED ON TAP ONLINE: JUSTICE BYPASSED. On Tuesday, the Senate passed a bill making it illegal to take a minor across a state border for the purposes of evading parental consent and notification laws regarding abortion. If you think parental consent regulations are reasonable in the first place, this measure will of course seem like a common-sense way to bolster those state laws. And one reason those parental consent laws do strike so many people as reasonable is that they all have built-in judicial bypass procedures for minors who truly can't tell their family about their pregnancy without risking abuse or some other problem. But as Wayne Fishman and Helena Silverstein (a political scientist who has done extensive research on judicial bypass mandates) point out, on the ground, in state after state, that bypass process is either dysfunctional or simply non-functioning:
So the argument for the CCPA goes like this: Parental involvement is generally a good thing. Parents know things about their daughter�s medical history and are better equipped to deal with post-abortion complications. Parents can shield their daughter from the older boyfriend who might be pressuring her to terminate the pregnancy. Moreover, parents are responsible for their children, and this responsibility comes with rights that deserve regard. States have recognized these facts and have taken steps to respect them. Additionally, states appreciate that parental involvement is not always a good thing and have adopted procedures to handle these cases. Thus, the CCPA merely reinforces perfectly reasonable, indeed commonsensical, state laws.
If state parental involvement laws actually functioned the way they are supposed to, then the CCPA might be a logical way to support sensible state interests. But state involvement laws do not so function. There is a tendency to think that laws are dutifully executed by those charged with their implementation. After all, it�s the law. But this faith in the seamless translation of law on the books to law in practice is misplaced, both in general and in the particular case of parental involvement mandates.
The palatability of involvement mandates rests on the supposed effectiveness of the judicial bypass process. But the actual functioning of this process does not come close to resembling what is imagined. For example, research we conducted in Alabama and Tennessee shows that nearly half of the courts charged with implementing the bypass mechanism were unprepared to do so. In an even worse showing, more than two thirds of Pennsylvania courts were unprepared.
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