Decisional dignity: teenage abortion, bypass hearings, and the misuse of law.

AuthorSanger, Carol

I. INTRODUCTION II. JUDICIAL BYPASS HEARINGS A. Origins B. Operation 1. The Petition 2. Procedural Features 3. Maturity and Best Interest Standards 4. Burden of Proof and Standard of Review C. Outcomes and the Nature of Harm III. HARM TO MINORS A. The Risks of Delay B. The Risk of Public Exposure C. Humiliation, Dread, and the Demands of Dignity 1. Humiliation 2. Terror and Testimony 3. Dignity 4. The Indignity of Exclusion IV. COMPELLING NARRATIVE A. Pardon Tales B. Bypass Hearings and the Constraints of Genre 1. Manner and Maturity 2. The Structure of Stealth 3. Gender and Narrative Demand C. The Expression of Remorse V. PURPOSE AND PUNISHMENT A. Deterrence B. Counseling and Consent C. Bypass Symbolism D. Punishment VI. HARM TO THE LEGAL PROCESS A. Fault-Based Divorce: Hearings as Sham B. HUAC and Shame C. Fairness and Legitimacy D. The Dignitarian Luck of the Draw E. The Illegitimacy of Forum Exclusion VII. ABORTION POLITICS AND BYPASS PROCESSES VIII. CONCLUSION I. INTRODUCTION

How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wade (1) no longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health of Supreme Court justices (although we wish them well). As Senator Obama said in 2008 on the 35th anniversary of Roe:

With one more vacancy on the Supreme Court, we could be looking at a majority hostile to a woman's fundamental right to choose for the first time since Roe v. Wade. The next president may be asked to nominate that Supreme Court justice. That is what is at stake in this election. (2) It appears that since January 20, 2009, Justice Stevens may, if he wishes, hang out rather than hang on, and the rest of us may now be more confident that vacancies on the court are less likely to put the basic right to abortion in jeopardy. President Obama's first Supreme Court appointment, Sonia Sotomayor, characterized the Court's decision in Planned Parenthood vs. Casey as "settled" and "the precedent of the court" during her confirmation hearings. (3) While confidence in a justice's future decisions is never assured, it seems, for the moment anyway, that Roe will not be overturned. (4)

Despite the relief that flows from this greater sense of reproductive security, much legal work still needs to be done to secure healthier reproductive lives for women. Some of that work will remain constitutionally focused. Without the prospect of overturning Roe in the immediate future, pro-life legislators may focus ever more vigorously on whittling down women's access to abortion through the targeted hyper-regulation of abortion provision, access, and consent. (5) Ever since the stingy affirmance of Roe in Planned Parenthood v. Casey, (6) the Supreme Court has affirmed the constitutionality of almost every regulatory requirement imposed by states on abortion patients, clinics, and doctors. (7) Constant vigilance over Roe may no longer be required, but lawyers still have plenty to do defending its current boundaries.

Yet constitutional advocacy is only part of the project for a pro-choice post-Roe agenda. (8) This Article considers the possibilities for statutory abortion reform and seeks to extend the audience to include legislatures in addition to courts. Are there arguments that have been obscured or overlooked in recent years but that, when brought more clearly to light, might appeal to those who enact statutes or to the citizens who vote for them? The possibilities for reform seem especially exciting right now. Not only has Roe's reversal become less likely, but a number of Bush-era anti-abortion policies have already been countermanded by President Obama. These include the ban on aid to family planning programs abroad, (9) prohibitions on stem cell research, (10) and a last-minute conscientious objection opt-out for health care providers. (11) Once the subject of abortion is freed from the pervasive demonization expressed in the policies and politics of the last several years, we might be able to consider its regulation more reflectively.

Indeed, there have been recent signs that electorates, when more directly involved in reproductive issues, do not in every instance vote to make abortion less accessible. In November 2008, the voters of South Dakota rejected Measure 11, a comprehensive abortion ban; (12) Colorado voters rejected the Definition of Person Initiative, which would have defined a "person[]" as "any human being from the moment of fertilization"; (13) and, importantly for the present discussion, Californians voted against Proposition 4, the Waiting Period and Parental Notice Before Termination of Minor's Pregnancy Initiative. (14) These developments suggest that now may be the time to take a breath, "dust ourselves off," in President Obama's inaugural phrase, (15) and consider anew the values and topics that constitute "talking about abortion."

What then might a public conversation about abortion look like--what topics might we collectively rethink--once the overturn of Roe is taken off the table? This article suggests a revision in the terms of the debate. As we know, supporters of legal abortion have long been on the linguistic defensive, as the vocabulary of "life" and "unborn children" has framed how people have come to think about abortion: what it is, whose interests are at stake, and whose are incidental. (16) There are, however, other concepts that might forcefully frame the discussion, I have in mind dignity and respect--concepts that in other legal contexts are taken quite seriously but that seem to have fallen to the side with regard to women in the context of abortion.

In putting the dignity of women on the table, I recognize that there is also ongoing discussion about the dignity of fetus, and that for some this is a source of opposition to abortion. (17) But the attribution of dignity to fetuses and embryos should not undermine the importance of securing dignity for women as they exercise their rights under existing law. Abortion is a legal medical procedure in the United States and legislation criminalizing it is constitutionally prohibited. Yet abortion regulation too often proceeds as though this were not quite the case. It is as though abortion's legality is somehow up for grabs and burdening women's dignity in each individual case remains fair game. I am particularly concerned with the use of legal processes in this enterprise, and therefore focus on the law's subversion of dignity in connection with a woman's decision to have an abortion. I take as my example a particular category of women--pregnant minors--and look at their treatment under a regulatory scheme known as the judicial bypass process. This is the requirement that teenagers who want to have an abortion without notifying or getting consent from their parents must first go to court and convince a judge that they are sufficiently mature and informed to make the decision themselves.

Much current legislation seems premised on the assumption that women--both young women and older ones--make decisions about abortion lightly, or impulsively, and that if only they were made to reflect just a bit longer and with a bit more information, they would change their minds. The "bit more" which legislators have sought to convey is a bundled set of propositions: that human life begins at conception, that an embryo or fetus at any stage of development is "a whole separate, unique, living human being"; (18) that women who abort will suffer emotional damage for the rest of their lives; (19) and that women must grasp all of this before they can consent to an abortion. This information is relayed through a variety of verbal and visual means including scripted physician disclosure statements, illustrated brochures of fetal development, and, most recently, the requirement that women undergo an ultrasound and "complete a required form to acknowledge that she either saw the ultrasound image of her unborn child or that she was offered the opportunity and rejected it" before consenting to an abortion. (20)

The discussion here is guided by a very different premise: that women, even young women, understand very well what an abortion is. Women understand that abortion ends pregnancy and that if they have an abortion, they will not have a baby; that is its very point. The significance of this decision may differ from woman to woman and girl to girl. In deciding whether or not to continue a pregnancy, each will draw upon her own sensibilities, circumstances, and beliefs. But I accept that, as with other deeply intimate decisions and commitments--who to marry, whether to pray, how to vote--women themselves are able and best positioned to decide what is at stake. Of course, leaving the choice to women does not mean that abortion decisions are "law-free." Like other medical decisions and like the exercise of other constitutional rights (for abortion distinctively partakes of both), abortion decisions are certainly regulated and regulable by law. But there are also limiting principles as to how the law should intervene, and these include respecting the dignity of she who decides.

What exactly do I mean by dignity? The term has a variety of definitions and uses in constitutional law, (21) moral philosophy, (22) and in the theory and practice of human rights. (23) These share in common the general view that people "possess an intrinsic worth that should be recognized and respected," and that they should not be subjected to treatment by the state that is inconsistent with their intrinsic worth. (24)...

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