Parental Consent Doesn’t Save Babies From Abortion if Bypasses Abused

Opinion   |   Mary Balch   |   Jan 31, 2013   |   11:51AM   |   Washington, DC

Questions have arisen over whether a parental consent law with the judicial bypass (which the U. S. Supreme Court requires in the case of consent) or a parental notice law with no judicial bypass is likely to save more children.  This was prompted by Texas Right to Life considering how to change Texas’ parental consent with bypass law so as to be more effective.

There will, of course, at times be differences of opinion on legislative strategy.   But be assured that Texas Right to Life, National Right to Life and other state right to life affiliates carefully weigh every decision and seek to provide the maximum protection possible for unborn children in the wisest possible manner.  This truth holds in the area of parental involvement where the goal is to maximize parental intervention that will lead to the saving of children who would otherwise be killed by abortion.

Please read the memorandum below on this question.  It is a serious one.  In one state with a judicial bypass, in a period of approximately four and one half years, there were 3,573 judicial petitions to bypass parents – only nine were denied.   It is very legitimate to ask if more lives would have been saved if all 3,573 sets of parents had been notified under a notification law with no bypass.  Given the facts and circumstances it  would be irresponsible not to seek a more effective means to gain parental involvement knowing that the more parents who have the opportunity to intervene the more babies will be saved.


By Mary Spaulding Balch, J.D.
Director, Department of State Legislation
National Right to Life Committee

All current parental consent laws dealing with abortion are seriously flawed. Instead of ensuring that parents are involved, these laws allow pregnant minor girls to obtain abortions without ever notifying a parent. How is this possible? Isn’t the purpose of these laws to ensure a minor girl has the guidance and counsel of her parent prior to making this life or death decision?

The reason this is so is because over thirty years ago the U.S. Supreme Court required that, for  parental consent  laws to be constitutional, they had to provide the girl with an opportunity to avoid getting her parent’s consent by going to a judge for a so-called “judicial bypass” of parental involvement.

This judicial option turned the consent portion of the law on its head.

Parents are, for the most part, not given the opportunity to consent, they are not given the opportunity to be consulted, they are totally bypassed. Their minor daughter is given a secret abortion and they are then left in the dark trying to pick up the pieces of their injured daughter’s life not knowing where to begin. The abortion industry masterfully manipulates this judicial bypass loophole by getting their own attorneys appointed by the court to shepherd pregnant minors through the intimidating judicial system and the abortion is performed before anyone can take a breath.

Activists on both sides of the abortion issue recognize that, in practice, the judicial bypass is nothing more than a rubber stamp proceeding in which abortions are kept secret from parents and are almost invariably authorized. In Minnesota, interviews with minors at four abortion clinics revealed that 43% of the girls used the court bypass option that is part of that state’s parental notification statute.[1]  Of the 3,573 bypass petitions filed in the Minnesota courts when the parental notice law was in effect from August 1, 1981 to March 1, 1986, 3,558 were granted.  Six of those petitions were withdrawn before decision; only nine were denied.[2]  Judge Allen Oleisky has heard over 1,000 of these petitions.  He describes his role at the bypass hearing as “a routine clerical function on my part, just like putting my seal and stamp on it.”[3]

The bypass serves no useful function and merely undermines the object of parental consent laws by ensuring that virtually any minor who doesn’t want to tell her parents won’t have to do so.



On the other hand, the Court has never ruled whether a “judicial bypass” is necessary to uphold the constitutionality of a law that requires only the notification–as opposed to the consent–of one parent.  Justice Kennedy, writing the dissent in Hodgson v. Minnesota, 110 S.Ct. 2926, 2965 (1990), said of Minnesota’s parental notice law, “Given the substantial protection that minors have under Minnesota law generally, and under the statute in question, the judicial bypass provisions of the law are not necessary to its validity.  The two-parent notification law enacted by Minnesota is, in my view, valid without the judicial bypass provision….”

If a state were to pass such a notification law, to get the parents truly involved, more girls would be protected because their parents would, by law, be notified.

[1] Robert Wm. Blum, Michael D. Resnick, and Trisha Stark, “Factors Associated with the Use of Court Bypass by Minors to Obtain Abortions,” Family Planning Perspectives, vol. 22, no. 4, (July/August 1990), p. 158.  The four clinics that participated in the study account for more than 75 percent of the abortions in Minnesota.

[2] Hodgson v. Minnesota, 648 F.Supp. 756, 765 (D. Minnesota 1986).

[3] Hodgson v. Minnesota, 648 F.Supp. 756, 766 (D. Minnesota 1986).

LifeNews Note: Mary Spaulding Balch, J.D., is the director of state legislation for the National Right to Life Committee.