For states considering how to best protect minors from the harms of abortion, the answer is enacting parental involvement statutes—those laws that require either parental consent or parental notice before a minor can have an abortion.
In the Supreme Court case Bellotti v. Baird (Bellotti II), the Court held that a State which requires a pregnant minor to obtain one or both parents’ consent to an abortion must “provide an alternative procedure whereby authorization for the abortion can be obtained.” This is commonly referred to as a “judicial bypass.”
Because Bellotti II involved a parental consent statute—and the Supreme Court has never explicitly stated that judicial bypass is necessary for parental notice statutes—it is being debated in some circles whether states should consider pursuing basic parental notice statutes (without judicial bypass) instead of parental consent statutes (with judicial bypass). However, statistics and common sense demonstrate that parental consent laws (with judicial bypass) are always more effective in reducing abortion among minors than parental notice statutes.
First, the statistics are clear: parental consent laws reduce the minor abortion rate by 18.7 percent, while parental notification laws reduce the abortion rate by about 5 percent.
In fact, when these percentages are fleshed out in terms of the age of the minor, the effect of parental consent statutes is even more apparent. In states with parental consent laws, the abortion rate declines by 23.1 percent for 17-year-olds, by 19.9 percent for 16-year-olds, and by 16.6 percent for 15-year-olds.
Second, given the language used by the Supreme Court in previous parental involvement cases, a parental notice law that does not contain a judicial bypass mechanism likely would be immediately challenged and enjoined. It would therefore leave the state’s minors temporarily unprotected while the case is litigated, and potentially permanently unprotected if the court struck the law.
Third, minors can more easily outmaneuver a parental notice statute. For example, in the case Roe v. Planned Parenthood Southwest Ohio Region, parents sued the abortion provider because it did not properly follow the state’s parental notice law. Instead of providing notice to the minor’s father, Planned Parenthood used a telephone number provided by the minor and instead notified the minor’s soccer coach—the very person who had impregnated her. Likewise, minors can outmaneuver parental notice statutes by providing incorrect contact information, and abortion providers can then “notify” the wrong person with the alleged belief that they are contacting a parent.
To date, 26 states maintain parental consent requirements. The remaining states are encouraged to consider and pass similar laws. For those states already maintaining parental consent laws, enhancements can be made to make those laws even more effective.
For example, AUL maintains a “Parental Involvement Enhancement Act” model which outlines a variety of provisions enhancing parental consent statutes, such as required notarization of parental consent, proof of identification, and a comprehensive disclosure and consent form requirement.
Experience proves that carefully drafted and enhanced parental consent statutes are the best mechanism states can use to protect minors from the harms inherent in abortion.
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[i] See Michael J. New, The Effect of Parental Involvement Laws on the Incidence of Abortion Among Minors, Insight 16-18 (Sept 24, 2008).