The pregnant child's right to self-determination.

• Author: Katz, Katheryn D.
• Position: Symposium on abortion

1. INTRODUCTION

   This Article examines the constitutional parameters of reproductive autonomy, particularly as they pertain to a pregnant minor's access to abortion. Both the United States Supreme Court's jurisprudence in this area and the effect of laws designed to curtail the access of unmarried pregnant minors to safe and legal abortions are surveyed. Also discussed are the current efforts at the federal level to impose national parental involvement requirements when minors seek access to contraceptives or abortion. Finally, a new standard for addressing a minor's constitutional claims to reproductive freedom is proposed.

   As soon as the Supreme Court announced its decisions in Roe v. Wade(1) and Doe v. Bolton,(2) invalidating most existing abortion laws, anti-abortion activists unleashed a firestorm of activity seeking either to outlaw abortion entirely by constitutional amendment or to restrict access to abortion through legislative proposals. The legislative activity has continued unabated since 1973 and much of it has been productive.(3) Two of the most successful efforts have been measures aimed at the least powerful categories of pregnant females--poor women and unmarried minors. Congress and many state legislatures enacted prohibitions on the use of public funds for the abortion expenses of poor women(4) and states targeted unmarried pregnant minors' access to abortion through the enactment of parental notification and consent laws.(5) State parental involvement statutes are now widespread.(6) The laws typically provide criminal penalties for the physician who performs an abortion upon a minor without the requisite parental notification or consent.(7) The Supreme Court has upheld parental involvement statutes where they provide for bypass procedures by which the young woman may petition a third party decision-maker and demonstrate that she is mature enough to decide whether to terminate her pregnancy.(8) If she is found to be immature, she still must be given the chance to demonstrate that an abortion is in her best interest.(9) Therefore, when a minor chooses to terminate her pregnancy, the state may, consistent with the United States Constitution, place the abortion decision in the discretion of a judge or some other government official as well as her physician.(10) If she is immature and unemancipated, arguably there is no constitutional necessity of a bypass procedure for a parental notification law.(11)

   More recently, anti-abortion forces succeeded in having two pieces of anti-abortion legislation introduced in Congress.(12) Both federal proposals are directed at a minor's ability to obtain an abortion. One, entitled the Child Custody Protection Act (CCPA), makes it a federal crime for a non-parent to take a pregnant minor across state lines to obtain an abortion for the purpose of avoiding laws requiring the involvement of parents in abortion decisions.(13) In effect, this proposal will give extraterritorial force to state laws that mandate parental involvement in the minor's abortion decision. The other proposal, the Putting Parents First Act (PPFA), requires minors to get parental consent for abortion referrals or contraceptives obtained at any facility receiving federal funds, thus reversing years of public health policy.(14)

   Parental involvement statutes are not the only legal means used to try to deny or limit a minor's access to abortion. A recent North Carolina case involved a civil suit for assault and battery against a physician and clinic for performing an abortion upon a sixteen-year-old who had forged her mother's signature on a consent form and stated that she was seventeen on a patient information record.(15) The plaintiffs, the girl and her parents, alleged that the defendants intentionally or negligently inflicted emotional distress upon the girl and her parents; they sought compensatory and punitive damages.(16) The appellate court affirmed the trial court's order dismissing the complaint, agreeing that there had been compliance with the parental consent law,(17) and that the abortion providers had no affirmative duty to determine the validity of the purported written consent.(18) Other states, however, have included requirements in their parental consent laws that are intended to prevent forgery of the parent's signature.(19) Louisiana, for example, has adopted a law requiring parental consent to be notarized.(20) Until the courts invalidated South Dakota's parental involvement statute, it provided that parents of a minor, upon whom an abortion had been performed that was not in compliance with the statute, could sue the physician for treble damages and be awarded punitive damages in the amount of $10,000.(21)

   Although supporters of parental involvement laws claim that they are justified by the need for parental wisdom and counsel when an unmarried minor faces an undesired pregnancy, there are anti-abortion activists who do not hesitate to take action when the parents' decision is to permit an abortion. In Michigan, a state that bans almost all abortions past twenty-four weeks, a twelve-year-old Detroit girl who had been impregnated by her older brother was taken into state custody when authorities learned that the parents planned to take her out of state for a late term abortion.(22) The court originally granted a petition preventing the parents from carrying through with their arrangements for medical assistance.(23) The judge eventually relented and returned her to her parents custody after her doctor argued that the pregnancy could imperil her physical and mental health, and a psychologist testified that a Hindu who had a non-marital child would be considered an outcast, unfit for marriage.(24) Abortion opponents offered the family money if the girl would continue the pregnancy, and stated that the girl's age and alleged incest did not sway them from their position.(25) "The best interests of the young mother would be served by delivering this child alive," stated Erin Wilson of Right to Life of Michigan.(26)

   The parents of a pregnant girl's sexual partner may also seek to play a role in the abortion decision.(27) In a notorious Nebraska abortion prevention case, the parents of a male who had impregnated a fifteen-year-old girl learned of her appointment at an abortion clinic, and interfered with the abortion decision made by the pregnant girl and her family.(28) The partner's mother obtained a letter from a physician (who had not examined the girl) stating that an abortion at twenty-three weeks could be risky.(29) Shortly after midnight, three police officers with possession of the letter took the girl from her parents' home.(30) She was detained in police custody for thirty-six hours and then sent to a foster home.(31) The police initiated judicial proceedings to determine whether she was in danger or neglected.(32) When the police determined that she was twenty-seven weeks pregnant, they released her after her parents promised in a court hearing that they would not obtain an abortion for her without a court order.(33) In fact, the girl and her family decided against an abortion when they realized the advanced stage of her pregnancy.(34) Four years later the girl's family settled the lawsuit they had filed against the ex-boyfriend's family and local officials for interfering with the family's decision concerning the pregnancy.(35)

   In addition to the state-created obstacles to abortion, pregnant minors face the same shortage of abortion providers that adult women face. Abortion, although one of the fundamental aspects of reproductive freedom, is increasingly unavailable to poor and disadvantaged women.(36) Clinic violence, harassment, and social stigma has led to a marked shortage of physicians willing to perform abortions.(37) Approximately eighty-four percent of American counties have no abortion provider.(38) Further, there are fewer trained providers, and doctors who are willing to perform abortions are becoming scarce outside of urban areas.(39) For example, when the constitutionality of South Dakota's parental notice statute was challenged, the court noted that the physician who was involved in the challenge was the only doctor who performed abortions in the state.(40) There is such a paucity of medical school education and training in abortion procedures that the accrediting authorities have had to promulgate a requirement that hospitals training residents in obstetrics and gynecology include abortion skills in their programs.(41) Critics charge, however, that hospitals now provide so few abortions that doctors in training will have difficulty learning the necessary procedures.(42)

   Driven by political and financial considerations, many hospitals have gradually withdrawn from providing abortions, a change that critics charge leaves "abortions outside the protective aura of established medical centers, creating delays for women who need abortions and leaving the independent clinics ever more susceptible to violence."(43) The isolation of abortion services in free standing clinics has lead to life-threatening delays in finding abortion providers for women who rely on hospitals for their medical care, as well as made it easier for anti-abortion groups to identify and to beleaguer doctors and patients.(44) In fact, in some states there is as few as one provider of abortion services.(45) The mergers that are taking place between private or municipal hospitals and Catholic hospitals mean not only that abortion services are no longer avail-able, but family planning and sterilization services are also disappearing.(46)

   My primary purpose is to examine the tension between parental rights and adolescent autonomy, particularly reproductive autonomy. Accordingly, I address the constitutional boundaries of parental control and the evolution of minor's reproductive rights.(47) I also consider the conflicts generated by a tradition of governmental limitations on a...