Who are the parents? In loco parentis, parens patriae, and abortion decisionmaking for pregnant girls in foster care.

AuthorPedagno, Amy T.


A fourteen-year-old resident of the State of Arizona was accompanied by a Planned Parenthood volunteer as she flew from her home state to Wichita, Kansas. (1) She was twenty-eight weeks pregnant. (2) The young girl, known to the courts as "Jackie Doe," was not only a ward of the State of Arizona, but also a juvenile detainee. (3) Too pregnant to obtain a legal abortion in Arizona, she "sought an order from the juvenile court permitting her to travel to Kansas ... to obtain such medical treatment as may be appropriate ... including a therapeutic abortion." (4) Though the trial judge approved the flight to Kansas, (5) the public soon learned that a judge had permitted a minor to leave the state to have a late term abortion, using public monies. "The public outcry [was] incredible." (6) The appellate court temporarily stayed the order. Nevertheless, the Supreme Court of Arizona heard oral arguments by telephone conference call at 9:30 on a Sunday morning. The girl was on a flight to Kansas later that same day.

Arizona Supreme Court Vice Chief Justice Jones' dissent raised critical concerns over such an order. He pointed out that "the state has a vested interest in her behavior and whereabouts and a responsibility at all times for her protection and care." (7) In response to the public outcry over the use of state funds, the trial judge, after reconsideration, ordered that state funds not be used in either transportation or performance of the abortion. The result, Vice Chief Justice Jones noted, was that a "critical dilemma" was presented "for the Department of Economic Security, for state agencies charged with care and maintenance of juvenile detainees and for the people of Arizona." (8)

The concerns raised by Vice Chief Justice Jones are not unfounded or even unique to the State of Arizona. The U.S. Department of Health and Human Services reports that approximately one-half million children are currently living in foster care in the United States. (9) Forty-seven percent of those children are girls. (10) One study has found that "by age 17, 33 percent of girls in foster care had been pregnant at least once. The proportion of girls in foster care who had been pregnant at least once increased to 48 percent by age 19, and 71 percent by age 21." (11) The statistics for these young girls are disheartening. Studies show that "[t]een girls in foster care are 2.5 times more likely than their peers not in foster care to get pregnant by age 19." (12) Considering that

[y]oung teen mothers (aged 17 and younger at the time of birth) are 2.2 times more likely to have a child placed in foster care than mothers who delay child-bearing until age 20 or 21, and they are twice as likely to have a reported case of child abuse or neglect compared to mothers who delayed, (13) it seems almost inevitable that a child born to a mother in foster care will also end up in the foster-care system. Indeed, "[n]ot only are adolescents in foster care more likely to become parents in their teen years, children born to teen parents are more likely to end up in foster care or have multiple caretakers throughout their childhood." (14)

When the topic shifts from births to children in foster care to abortions, the conversation meets an abrupt end. No one collects data on this topic. The Guttmacher Institute (15) reports that "[e]ach year, almost 750,000 women aged 15-19 become pregnant," and nearly twenty-seven percent of those pregnancies (200,420) end in abortion. (16) However, the Institute does not track whether the girls soliciting abortion services each year are juveniles under the care of the state. Absent hard data, legislators and policy-makers must work with logical inferences and anecdotal information about the prevalence of abortion among minors in foster care. Perhaps because of the absence of such data, very little research has been done across the nation to determine the overlap of abortion and teenagers in foster care. Using parental involvement for abortion laws as an example, this Note highlights marked areas of absent information and suggests questions which can be used to start a policy discussion about how best to fill in those "gaps."

This Note recognizes four cognizable interests, which may or may not be competing, that are relevant to the abortion/foster-care discussion: (i) the fetus'; (ii) the pregnant minor's; (iii) the minor's parents'; and (iv) the State's. Since it is well known that the Supreme Court has denied recognition under law of any rights of the nonviable fetus,(17) this Note focuses on the rights of the last three parties, and, where relevant, highlights competing tensions and conflicts of interests. Part I of this Note lays a foundational basis for parental-involvement laws, including their constitutional evolution and their current status. Part II looks at the associated rights surrounding children in foster care, including the duty of the State towards its child citizens and its authority to delegate decision-making power, particularly as it relates to health care. Part III analyzes the overlap between the rights and obligations of parental-involvement laws and laws pertaining to children in foster care. Each section individually raises questions that should be used in evaluating and implementing policy on this sensitive issue, including asking which of the three parties (the state, the pregnant minor, or her parents) mentioned above is the relevant parent about whom the law is concerned.


    Since the United States Supreme Court legalized abortion in the 1973 abortion case, Roe v. Wade, (18) the Court has dealt with a number of issues incident to the abortion decision. (19) Because abortion is deemed a fundamental right under the U.S. Constitution, (20) the Court has seemed loathe to uphold as constitutionally valid certain state provisions which seek to limit abortion access. However, the Court has recognized that states have more leeway when it comes to regulating minors' access to abortion. The primary mechanism for achieving this end has been to mandate parental involvement in a minor's decision to acquire an abortion. Such laws have met with widespread public support, (21) and indeed, "the Supreme Court has ruled consistently that states can require minors either to obtain consent or to notify their parents before obtaining an abortion." (22) State restrictions are not without limitations, of course, and the Court has simultaneously ruled that any parental-involvement provision must allow for a judicial-bypass procedure. Ostensibly, "[j]udicial bypass provisions are designed to give minors in abusive family situations the ability to receive permission to obtain an abortion from a judge." (23) In reality, such provisions shield from parental scrutiny any minor capable of demonstrating sufficient maturity or that an abortion would be in her "best interest."

    A majority of states require some degree of parental involvement in a minor's decision to obtain an abortion. State laws must fall within the parameters laid out by the Supreme Court's jurisprudence, but even within those limitations, the varied laws of the states run the gamut. For example, on the more stringent end of the spectrum, "a handful of states require the [consent or] involvement of both parents .... On the other hand, several states allow grandparents or other adult relatives to be involved in place of the minors' parents." (24) Nevertheless, a state's parental-involvement laws can generally be grouped into three categories: requiring parental consent, requiring parental notification, or requiring both parental consent and notification.

    Currently, thirty-seven states require some parental involvement in a minor's decision to have an abortion. (25) Twenty-two states require parental consent only, (26) three of which require both parents to consent. (27) Eleven states require parental notification only, (28) one of which requires that both parents be notified. (29) Four states require both parental consent and notification. (30) Six of the thirty-seven states permit a minor to obtain an abortion if a grandparent or other adult relative is involved in the decision. (31) Consistent with the Supreme Court's orders, thirty-six of the thirty-seven states that require parental involvement have an alternative process for minors seeking an abortion, including a judicial-bypass procedure, which allows a minor to obtain approval for the abortion from a court. (32)

    1. The Constitutional Evolution of Parental-Involvement Laws

      Parental-involvement laws have been contested in both state courts and inferior federal courts. This is unsurprising, considering that the Supreme Court itself has dealt with this issue no fewer than five times. The first time this issue was addressed was in Planned Parenthood of Central Missouri v. Dandorth, (33) where the Court ruled that, notwithstanding laudable intent, a State may not use parental-involvement laws as an absolute bar to a minor's abortion. (34) However, the Court acknowledged that the State has more leeway with regards to regulating the rights of minors and thus left open the question of "whether there is any significant state interest in conditioning an abortion on the consent of a parent or person in loco parentis that is not present in the case of an adult." (35) Unfortunately, the Court dismissed the proffered policy reason for the state law (encouraging family unity) with nary an examination into its possible consequences. The Court made an assumption that a girl's unwillingness to tell her parents about her pregnancy is indicative of a fracturing of the family structure. It did not seem to take into account that parents" interest in the health and well-being of their daughter and grandchild may override any disappointment and consternation they feel as a result of the unplanned pregnancy. (36) Additionally, and perhaps more importantly as...

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