Justice Bypassed

The Senate decided Tuesday that it should be a crime to take a minor out of state for an abortion in contravention of state laws mandating parental involvement in the abortion decision. This action follows House passage of a similar measure last year, and the president will surely sign the product of House/Senate reconciliation.

With all that is going wrong for Republicans these days, it is perhaps too obvious to point out why the so-called Child Custody Protection Act (CCPA) is being advanced at this time. (Hint: It's not due to a new epidemic of cross-border incursions by pregnant-minor-toting hooligans.) But whatever shameless change-the-subject, rally-the-base, embarrass-the-Democrats politics may be in play, there remains the question of CCPA's substantive merits. As it happens, there are fewer of those than appear at first glance.

Thirty-four states have laws in effect that require either parental consent or notification before a minor can get an abortion. The official purpose of the CCPA is to bolster these state laws. After all, what good is it for, say, Pennsylvania to require parental consent if grandma or boyfriend can just take missy to New Jersey? It's a fair enough point.

But here's another fair point: Not all families are well functioning, and missy might have very good reason to think that dad would unleash some righteous whoop-ass on any daughter of his who is even sexually active, never mind one who wants an abortion. So a minor's wellbeing can be put at risk by making it more difficult for her to get an abortion without parental involvement -- for instance, by going out of state.

Not to fear, though, because all states with involvement requirements also provide a statutory safety valve for cases like this. If a minor wants to avoid mandated parental involvement, all she has to do in most states is convince a judge that she is mature enough to make the abortion decision on her own or that the abortion is in her best interest. Moreover, state laws stipulate that the judicial bypass process will be expeditious and confidential. Missy even gets fast-track appellate consideration and, in most instances, a court-appointed lawyer.

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.

The reasons for these implementation failures vary. Courts often are ignorant of their responsibility. Sometimes judges refuse to hear bypass petitions on ideological grounds. Other times, court personnel are unavailable. Courts occasionally seek to convince minors that abortion is morally wrong. Whatever the reason, there is in fact an enormous disconnect between what parental involvement laws promise and what implementers of such laws deliver.

Thus, the CCPA bolsters laws that don't work and, in doing so, potentially endangers minors who have legitimate reasons to avoid parental involvement and who are poorly served by states' false promises. If the CCPA becomes law, some teens will continue to go out of state for abortions, either subjecting a trusted relative or friend to the risk of a jail term or making the trip alone. Others will face the prospect of being forced by a parent to carry an unwanted pregnancy to term.

If the federal government really cared about protecting vulnerable teens, it would pursue prosecutions under the CCPA only after states have proven the reliability of their bypass processes. But, of course, this isn't going to happen -- the primary impetus behind the CCPA and state involvement mandates has little actually to do with protecting minors' interests, pious rhetoric notwithstanding.

Helena Silverstein is professor of government and law at Lafayette College in Easton, Pennsylvania. Wayne Fishman is a freelance writer.

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