Utah's Parental Involvement Law: Minors' Access to Abortion

• Publication year: 2007
• Pages: 25
• Citation: Vol. 20 No. 4 Pg. 25

Utah Bar Journal Volume 20.

Vol. 20, No. 4, 25. Utah's Parental Involvement Law: Minors' Access to Abortion

Utah Bar Journal
Vol. 20, No. 4
May/June 2007

Utah's Parental Involvement Law: Minors' Access to Abortion

Utah's Parental Involvement Law: Minors' Access to Abortion

by Margaret D. Plane

During the 2006 General Legislative session, Utah amended its laws requiring prior parental notification for minors seeking abortions.1 Utah lawmakers passed House Bill 85 S1 "Abortion by a Minor - Parental Notification and Consent," which requires, except in limited circumstances, that minors both notify and receive consent from a parent or guardian before obtaining an abortion. See H.B. 85, 56th Leg., 2006 Gen. Sess. (Utah 2006). The amended Utah Parental Consent Act (the Act), Utah Code Ann. § 76-7-304.5, took effect on May 1, 2006

After passing the Act, Utah became one of 34 states currently enforcing laws that require a minor to notify and/or obtain the consent of a parent or guardian before an abortion.2 Ten states have laws that are either enjoined by a court, largely because of constitutional infirmities, or not enforced.3 Although the laws differ from state to state, they can be generally categorized into two, non-equivalent types parental consent and parental notice. Parental consent is often considered a legal bar to a minor's access to abortion, whereas parental notice may be a de facto bar to access. In legal challenges to these laws over the decades, courts have tried to balance the reproductive rights of teens, the interest of the state in the health and welfare of teens, and the rights of parents to direct their children's upbringing. This article will provide the legal framework for mandatory parental involvement laws and then outline the provisions and implementing rules of the Utah Act.

Legal Framework

A series of judicial decisions concerning the validity, construction, and application of statutes requiring parental consent or notification before a minor obtains a first-trimester abortion began in the United States Supreme Court more than thirty years ago. The landmark case, Bellotti v. Baird, 443 U.S. 622 (1979),4 started with the premise that minors possess constitutional rights, although they are not equal to those of adults. In Bellotti the Court reviewed a Massachusetts statute that required parental consent for a minor to obtain an abortion. The law gave a young woman the right to bypass parental consent by demonstrating to a court that she is mature and well-enough informed to make the abortion decision on her own, or that an abortion would be in her best interest. However, the statute also required that an available parent be given advance notice of any judicial proceedings brought by a minor to obtain a judicial bypass of parental consent. This provision essentially amounted to required parental consultation before a minor could seek a judicial bypass. Additionally, the law allowed a judge to disregard a well-informed minor's maturity if the judge determined that an abortion would not be in the minor's best interest.

The Supreme Court invalidated the Massachusetts statute, holding that, although a state may require parental consent, the state must afford the minor an alternative by which she may bypass the requirement, without first notifying her parents. The Court's decision was partially based on the fact that the statute indirectly gave parents veto power over their daughter's abortion decision. Three years earlier, the Court had held unconstitutional a blanket parental consent requirement because it amounted to giving a third-party "an absolute, and possibly arbitrary" veto over the minor's abortion decision. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75 (1976). The Massachusetts law in Bellotti was also invalidated because it allowed judges to withhold consent independent of a minor having established her maturity or that an abortion was in her best interest; essentially, the statute also gave judges veto power over the minor's decision. See Bellotti, 433 U.S. at 650.

The Bellotti Court recognized that, like adults minors possess constitutional rights, including the right to seek an abortion. The Court did not equate the rights of minors with the rights of adults because of concerns about the "vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing." Id. at 634. Nevertheless, the Court acknowledged the unique nature of the abortion decision, noting that the "potentially severe detriment" facing a pregnant woman is not mitigated by her minority, and that unwanted motherhood may be especially burdensome for a minor in light of...