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Debate Club
DEBATE CLUB 3/13/06

Parent-Free Abortion?

Kimberly Mutcherson and Teresa S. Collett debate.

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Laws requiring that young women notify or get the consent of their parents before ending pregnancies are fiercely debated on the perimeter of the controversy about the constitutional right to abortion. Supported in the landmark case of Planned Parenthood v. Casey in 1992, these limits either reduce abortion rates or not, depending on the study, but whatever their statistical effect the laws implicate personal rights.

Should parents have the right to prevent their daughters from having abortions?


Kimberly Mutcherson is an Associate Professor of Law at Rutgers School of Law in Camden. Teresa S. Collett is Professor of Law at the University of St. Thomas School of Law.

Mutcherson: 3/13/06, 12:45 PM
There are many reasons to think that the Supreme Court gets it wrong when it comes to young women and abortion rights. While an adult woman may choose an abortion based solely on consultation with her healthcare provider, the Supreme Court allows states to require young women to notify a parent of their highly personal decision about whether to carry a pregnancy to term. For the time being, states may not allow parents to veto a young woman's abortion decision, though recent modifications to the composition of the Supreme Court may signal changes on this front. Even under the present legal standard, for some young women, forced parental involvement presents a significant barrier to the right to make a decision about ending an unwanted pregnancy. Unfortunately, the justices of the Supreme Court believe that whatever difficulties a parental notification requirement may cause, those requirements do not place an undue burden on a young woman's right to choose abortion and, therefore, they do not violate the Constitution.

Undoubtedly, for most adolescent women, there is great value in consulting with a trusted adult when deciding how to cope with an unwanted pregnancy. In the vast majority of cases, even without a legal requirement, young women seek parental guidance when making this tremendously challenging decision. However, in some set of cases, pregnant adolescents have entirely valid and rational reasons to avoid sharing news of a pregnancy and a planned abortion with their parents. Perhaps they fear violent reprisals; perhaps the pregnancy results from incest. For these women, parental consultation not only lacks value, it puts them at risk for harm. Further, consultation with a trusted adult need not mean consultation with a parent. Some young women seek the counsel and advice of relatives, family friends, teachers, and others who provide the type of mature guidance that the pregnant adolescent desires.

Some argue that the Court protects young women by requiring states to include a judicial bypass option in their laws so that a young woman may seek judicial permission for an abortion if she does not wish to consult with her parent. While this loophole serves a useful purpose, it highlights the fact that the Supreme Court does not think much of young people in general and young women in particular. The Court dismisses studies showing that when it comes to making difficult abortion decisions adolescent women are as developmentally capable as adult women. The Court denies this reality and, as a result, it fails to protect the rights of young women in favor of protecting parental control over children.

Collett: 3/13/06, 04:55 PM
Opponents of parental involvement laws, like Kim, often claim that a majority of minors consult with their parents prior to obtaining an abortion. The claim originates from a study by Stanley Henshaw and Kathryn Kost. While it is true that according to the study, 61% of minors surveyed claimed a parent knew of their decision to obtain an abortion, only 45% of the minors had informed a parent of their pregnancy and abortion plans. The remaining parents had learned of the pregnancy and abortion plans from someone other than their daughters.

The study is subject to several criticisms. The survey included only minors who obtained abortions—there is no information from adolescents who decided to continue their pregnancies. Also there was no attempt to gain information from the parents of the minors. Without information obtained directly from parents of those adolescents who responded to survey, there is no basis for assessing the accuracy of the adolescents' perceptions regarding their parents' knowledge, behavior, and attitudes.

Researcher bias is most evident in the design of the survey by its exclusion of any possible of positive effects of parental involvement. Minors whose parents knew of their pregnancy were asked whether they experienced any of eleven possible "adverse" consequences from their parents finding out, but were not asked about any possible positive outcomes. At a minimum, balanced research would require asking minors to also report benefits of involving parents in the decision-making process.

Contrary to Kim's concerns, the Henshaw and Kost study found that the primary reason minors avoided telling their parents was not fear of physical violence or abandonment, but a desire to avoid parental disappointment:
The minors' most frequently cited reasons for not telling their mother were the desire not to disappoint her (73%), the fear that she would be angry (55%) and not wanting her to know that they had had sex (32%). The proportions who cited those reasons for not telling the father were 60%, 51% and 38%, respectively.
Teens are often reluctant to inform their parents about any action that they know would displease or disappoint them.

So how did parents respond? Henshaw and Kost report "[P]arents whose daughters told them about the pregnancy were understanding and supportive as often as they were upset and disappointed." In fact, when parents were told about the pregnancy by their daughter, 87 percent of mothers and 77 percent of fathers were supportive of an abortion, while only 5 percent of the mothers and 6 percent of the fathers were not supportive.

This is hardly a record that supports excluding parents from such a critical decision in the lives of their daughters.

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Mutcherson: 3/14/06, 08:31 AM
Teresa's post highlights some potential limitations of studies that attempt to gather information about various aspects of the contentious abortion debate in this country. While I accept that Teresa questions study methodology and finds bias, I continue to believe that the overall claim is sound. Specifically, I do not doubt that in most cases parents know of a young woman's decision to have an abortion even without a legal requirement of parental involvement. Again, this type of notification, indirect though it may be at times, indicates that young women do not make abortion decisions in a bubble. Instead, they reach out to those whom they trust, whose opinions they value, and whose aid they desire.

Furthermore, abortion, like any medical procedure, requires that young women participate in an informed consent process before having the procedure done. Twenty-eight states mandate specific counseling for women before an abortion procedure. Some of these states go so far as to require that healthcare providers give women information about a claimed link between abortion and breast cancer, the ability of a fetus to feel pain, or potential long-term mental health consequences for women who have had abortions. Twenty-four states require that a woman wait for a period of time, usually twenty-four hours, between receiving counseling and having an abortion procedure performed. In the presence of such regulation, specious though some of it may be, even if a young woman wanted to make an impulsive and isolated abortion decision, the law severely curtails her ability to do so.

The last sentence of Teresa's post implies that I seek to exclude parents from abortion decisions made by young women. In fact, as I wrote in my initial post, I do not doubt that consultation with trusted adults, parents or otherwise, is frequently a good thing for most young women who are contending with an unanticipated pregnancy. Frankly, I think that any woman benefits from the presence of a community to assist her when she faces the challenge of an unplanned pregnancy. Importantly, I also believe that young women, like their adult counterparts, appreciate the value of support and guidance from friends, family, and other members of their communities. That consultation with others has value, however, does not mean that the law should require it.

On a more global level, while I appreciate Teresa's response, I fear that it does not shed much light on the purpose served by parental involvement laws. I think that our discussion would benefit from a clear articulation of the goals of these statues. In light of the fact that minors account for fewer than one in ten abortions performed in this country and in the face of a declining overall rate of abortion in the United States, one marvels at the time and legislative effort spent on laws that impact a relatively small, though certainly not insignificant, number of women. I fear that this agenda reflects a larger campaign against legalized abortion in this country instead of a narrow focus on the needs of young women.

I hope that Teresa will share her ideas on the goals of parental involvement laws; therefore, I will end this post with a brief discussion of one often-cited rationale for this type of legislation. This is the claim that these laws support and encourage good family communication. In fact, it is entirely unclear that a law of this kind creates optimal opportunities for parent-child communication especially about issues of sexuality. For those parents who have already cultivated strong relationships with their daughters, a parental involvement law is unnecessary. For those families in which communication is lacking, there is no evidence that a parental involvement law improves the family dynamic.

Collett: 3/14/06, 03:26 PM
Kim characterizes abortion as "any other medical procedure." We require parental consent with almost every other medical procedure involving minors. And for good reason—because we believe that parents are in the best position to insure that young people receive appropriate medical care. The legal assumption about abortion should be no different.

Medical care for minors seeking abortions is improved by parental involvement in three ways. First, parental involvement laws allow parents to assist their daughters in selecting the abortion provider. One of the most important guarantees of patient safety is the professional competence of those who perform the medical procedure. In Bellotti v. Baird, the United States Supreme Court acknowledged the superior ability of parents to evaluate and select appropriate healthcare providers.
In this case, however, we are concerned only with minors who according to the record range in age from children of twelve years to 17-year-old teenagers. Even the latter are less likely than adults to know or be able to recognize ethical, qualified physicians, or to have the means to engage such professionals. Many minors who bypass their parents probably will resort to an abortion clinic, without being able to distinguish the competent and ethical from those that are incompetent or unethical.
A parent seeking to guide her daughter is more likely to inquire regarding the licensing of the facility as well as the provider than a panicky teen who just wants to no longer be pregnant.

Second, parental involvement laws insure that parents have the opportunity to provide additional medical history and information to abortion providers prior to performance of the abortion. Abortion providers have the opportunity to disclose the medical risks of the procedure to an adult who can advise the girl in giving her informed consent to the procedure.

The third way parental notification improves medical treatment of pregnant minors is by insuring that parents have adequate knowledge to recognize and respond to any post-abortion complications that may develop. While it is often claimed that abortion is one of the safest surgical procedures performed today, the actual rate of many complications is simply unknown because there is no coordinated national effort to collect and maintain this information.

Many minors may ignore or deny the seriousness of post-abortion symptoms or may lack the financial resources to respond to those symptoms. Some of the most serious complications are delayed or only detected during the follow-up visit; yet only about one-third of all abortion patients actually keep their appointments for post-operative checkups. Absent parental involvement laws, teens who obtain secret abortions may fail to get the timely care that they need.

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Mutcherson: 3/15/06, 08:39 AM
Teresa is correct that the law requires parental consent for most medical care provided to minors. However, the exceptions to this general rule are instructive and explain why forced parental involvement in abortion decisions is problematic. All states allow minors to consent to testing and treatment for sexually transmitted infections. Similarly, most states allow young women to consent to prenatal care. Almost half of the states and the District of Columbia explicitly allow all minors to consent to contraceptive services, and the bulk of the remaining states extend these rights to certain categories of minors.

These exceptions directly respond to the reality that young people deem confidentiality to be a vital element of their decisions to access care for pregnancy or sexually transmitted infections. Rather than risking situations where minors unnecessarily delay care or avoid the healthcare system altogether, lawmakers protect adolescents by granting them limited access to reproductive health care without the knowledge or consent of their parents. Professional organizations committed to the good health of young people, such as the Society for Adolescent Medicine and the American Academy of Pediatrics, have long advocated for confidentiality in providing reproductive health services—including abortion—to young people.

The vagaries of our legal system are such that the choice that a young woman makes of how to respond to her pregnancy implicates oddly divergent legal standards. There is something incongruous about a regime in which a pregnant adolescent can get regular prenatal care and carry a pregnancy to term without notification to her parents, while she would need permission from her parents or a judge if she wants to have an abortion. Is it the case that an adolescent woman can be mature enough to bear the physical and emotional burdens of becoming a mother, but too immature to decide that an abortion is in her best interest?

In my zeal to respond to Teresa's first point, I have given myself little room to tackle her other claims about the benefits of parental involvement in adolescent choices about abortion. I will make just a few brief points and perhaps I can add a bit more to this part of our discussion in my next post.

Teresa seems concerned with issues of the safety of abortion procedures and the quality of abortion providers. If there are indeed reasons to be concerned about the quality of care provided by abortion providers—and I am unconvinced that this is the case—requiring adolescents to involve their parents in abortion decisions has no real connection to dealing with this perceived problem. The best way to protect all women is to ensure that they have access to safe and legal abortions. The greatest risk to women seeking to end an unwanted pregnancy is to subject them to a system in which they must access healthcare in secret.

Collett: 3/15/06, 03:53 PM
I look forward to Kim's response to the clear medical benefits that parental involvement laws provide to minors. In addition to improved medical care for minors, parental-involvement laws also protect minors against sexual exploitation of minors by adult men. In 1995 the Department of Health and Human Services reported to Congress that "data indicate that, among girls 14 or younger when they first had sex, a majority of these first intercourse experiences were nonvoluntary. Evidence also indicates that among unmarried teenage mothers, two-thirds of the fathers are age 20 or older, suggesting that differences in power and status exist between many sexual partners." In a study of over 46,000 pregnancies by school-age girls in California, researchers found that "71%, or over 33,000, were fathered by adult post-high-school men whose mean age was 22.6 years, an average of 5 years older than the mothers. . . . Even among junior high school mothers aged 15 or younger, most births are fathered by adult men 6-7 years their senior." Other studies including those relied on by Jocelyn Elders, past Surgeon General of the United States, have found that most teenage pregnancies are the result of predatory practices by men who are substantially older.

Abortion providers are reluctant to report information indicating a minor is the victim of statutory rape, as evidenced by the current case in Kansas where a group of clinics are suing to have the abuse reporting statute declared unconstitutional. Failure to report may result in the minor returning to an abusive relationship. For example, a Planned Parenthood affiliate in Arizona was found civilly liable for failing to report the fact that the clinic had performed an abortion on a 12-year-old girl who had been impregnated by her foster brother. The abortion provider did not report the crime as required by law and the girl returned to the foster home where she was raped and impregnated a second time. Or consider the case of the Connecticut ten-year old girl impregnated by a 75-year-old man. The child was examined by two physicians who failed to report the sexual abuse to public authorities, as is required by Connecticut law. Furthermore, by failing to preserve fetal tissue the abortion providers may make effective prosecution of the rape impossible, since the defendant's paternity cannot be established through the use of DNA testing.

States adopting parental involvement laws have come to the reasonable conclusion that secret abortions do not advance the best interests of most minor girls. This is particularly reasonable in light of the fact that most teen pregnancies are the result of sexual relations with adult men, and many of these relationships involve criminal conduct. Parental involvement laws insure that parents have the opportunity to protect their daughters from those who would victimize their daughters again and again.

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Mutcherson: 3/16/06, 08:32 AM
Unlike Teresa, I do not see a clear medical benefit to parental involvement in a young woman's abortion decision unless the young woman has voluntarily chosen to include her parents in that decision. I return to my earlier assertion that most young women do not make isolated decisions to have abortions. When adolescents involve a trusted adult in the abortion decision, the adult brings to bear her own experience to help the young woman navigate the medical system. Even without an adult on hand, I have sufficient faith in young women to believe that they are capable of providing a medical history and seeking follow-up care when needed. As to worries about a young woman's ability to select a reputable and safe provider, I think that we can best address this concern in two ways. First, we can ensure that there are ample facilities and healthcare providers to perform abortions in all parts of the country. Second, we can widely disseminate clear and accurate information about the availability of confidential reproductive health services, including abortions, so that young women know where they can safely access care.

Furthermore, whether or not there is an adult involved in the process, healthcare providers have an ethical and, I would argue, legal obligation to ensure that an adolescent patient fully understands any risks of the abortion procedure. One drawback of our general rule of parental consent for medical procedures for minors is the extent to which it acts as a disincentive to actively involving young people in their own healthcare. The abortion arena is one of many in which the law should strive to banish that disincentive.

As for concerns about the safety of abortion procedures and the qualifications of abortion providers, Teresa well knows that several states regulate the practice of abortion more stringently than they do the general practice of medicine. Examples of heightened regulatory requirements include mandates on the training of medical staff and requirements of accessibility for inspection by health departments. In these states, at least, the claim that unscrupulous or poorly qualified physicians will bear the burden of onerous and expensive regulatory requirements and risk civil or criminal penalties all in a quest to provide substandard reproductive health services strikes me as highly unlikely.

The sexual exploitation issues that Teresa raises are disturbing, and I agree that protecting young women from sexual abuse is a necessary goal and one that the law too frequently fails to achieve. I cannot respond to each of Teresa's examples suggesting that abortion providers are reluctant to report abuse of their clients, but I would be remiss if I did not refute her implication of bad motives on the part of the plaintiffs in the Kansas lawsuit that she references.

In 2003, the Kansas attorney general issued an opinion in which he called for child abuse investigations in all cases where physicians, school counselors, teachers, and other mandated child abuse reporters suspected sexual activity by anyone under the age of 16. This interpretation, described by the presiding district court judge as "a monumental change in policy," would have required suspected abuse reports even when the sexual activity took place between young people of similar ages and when the healthcare provider had no reason to suspect abuse or injury to the young person. None of the plaintiffs in this lawsuit balked at reporting suspected abuse of young women. Instead, the plaintiffs recognized that the attorney general's actions sought to strip young people of a right to access confidential reproductive health services in many situations in which there was no abuse or exploitation. As I wrote yesterday, the loss of access to confidential reproductive healthcare care is a significant impediment to the well-being of young people. When those in power use roundabout methods to undermine important public health goals, I am glad that there are people who stand against such blatant abuses of position.

Collett: 3/16/06, 06:06 PM
Kim's confidence that a minor who refuses to involve a parent in her decisions regarding her pregnancy will have the counsel of another trustworthy adult is not borne out by the research in this area. A survey of 1500 unmarried minors having abortions revealed that among minors who reported that neither parent knew of the abortion, 89% said that a boyfriend was involved in deciding or arranging the abortion (and 93% of those 15 and under said that a boyfriend was involved). Further, 76% indicated that a boyfriend helped pay the expenses of the abortion. Clearly, a number of young girls who obtained abortions without their parents' knowledge were encouraged to do so by a sexual partner who could be charged with statutory rape. Secret abortions do nothing to expose these men's wrongful conduct.

As for the counseling women receive by the abortion providers, abortion providers have testified in a Texas federal district court that "[u]nfortunately in clinics sometimes there is the cattle herd mentality" and that "quality medical care may be sacrificed to the bottom line" in some abortion clinics. In Florida, in litigation regarding statutory informed consent requirements, abortion providers testified that they rarely saw women more than a few minutes before the women were sedated for the abortion procedures. There have been numerous cases in which abortion provides have been found guilty of fraud or medical malpractice. In the 1989 Washington, D.C., case of Sherman v. District of Columbia Board of Medicine, for example, a doctor risked his patients' lives by using nonsterile instruments. He also intentionally performed incomplete abortions, necessitating later surgeries, in order to increase his fees. Four years later, a New York court in Terra v. Department of Health upheld a medical board's decision to revoke the license of an obstetrician / gynecologist. The board had found, amongst other things, that of 24 abortions he performed, only two were on patients who were actually pregnant.

Finally, Kim may be relying upon news reports for her understanding of the Kansas case. Unfortunately, as is too often the case, the press has not accurately reported the attorney general's opinion. The opinion only requires the reporting of pregnancy of minors who are 15 or younger since (absent artificial insemination) the girls are presumptively victims of statutory rape. This reporting duty is far narrower than "any sexual activity," and does not necessarily mean that the state will intervene. It does, however, mean that state officials will have the necessary information to decide whether this is a case that should be investigated.

So, knowing what we know about the exploitation of minors and their natural reluctance to involve the people who care the most about them—their parents—do we now exclude both their parents and law enforcement?

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Mutcherson: 3/17/06, 09:25 AM
I take issue with the unsupported inferences Teresa draws from data about the involvement of boyfriends in the abortion decisions of young women. She is correct that many young women who do not consult with parents about an abortion decision seek counsel from their sexual partners. At the same time, 52% of the young women in one study conferred with an adult other than clinic staff— frequently a relative or step-parent—and 22% with a professional from another clinic, office, or from school. Further, the participation of a sexual partner in an abortion decision need not mean that the partner pressured a young woman into choosing to terminate her pregnancy. In fact, in the study from which Teresa draws her statistics, the percentage of young women reporting that a boyfriend attempted to persuade them to have an abortion (27%) is on par with the percentage of young women whose mothers urged them to have an abortion (26%). Similarly, a full 20% of young women reported that their boyfriends attempted to persuade them to continue their pregnancies.

Teresa resorts to citing extreme cases of bad actors to cast aspersions upon an industry that each year provides a needed and desired medical procedure to thousands of women. No segment of the medical profession is immune from occasional malpractice. I would no more condemn the entire realm of abortion providers based on the actions of the few than I would condemn the entire field of obstetrics because some providers cause bad pregnancy outcomes. The men and women who regularly face harassment and threats to their personal safety in order to ensure that women have access to safe abortions deserve better than to be judged by the behavior of the most reprehensible members of the medical profession.

I do not doubt that where there are few resources, as is the case in many jurisdictions where access to abortion providers is slim, those that are available may experience occasional strain. This, again, speaks to the need to ensure wide access to the panoply of reproductive health services, including abortion and contraception, so that no single resource is stretched to its capacity.

Before I close, I must briefly return to Teresa's comments about the Kansas case. I had no need to resort to news reports for my interpretation of the sweeping consequences of the opinion of the Kansas attorney general. In the words of that opinion, "We are aware that although this opinion is limited to the question posed, the consequences of the conclusion reach further. Other situations that might trigger a mandated reporter's obligation, because sexual activity of a minor becomes known, include a teenage girl or boy who seeks medical attention for a sexually transmitted disease, a teenage girl who seeks medical attention for a pregnancy, or a teenage girl seeking birth control who discloses she has already been sexually active." In the words of the district court judge who issued a preliminary injunction in the case, "The 2003 advisory opinion, by its terms, construes the reporting statute to mean any sexual activity by an unmarried person under the age of 16 must be reported to the State Department of Social and Rehabilitation services ... or other appropriate state officials."

I have appreciated the opportunity to trade posts with Teresa this week. I hope that she agrees with me that a declining pregnancy rate among young women in this country, mostly attributable to improved contraceptive use, is a positive development as early motherhood has the potential for several negative consequences for young women. Rather than pursuing legislation to impair a young woman's ability to access abortion services, a better tactic is to continue to fund programs, including comprehensive sex education and access to confidential reproductive health services, that allow young women to avoid unwanted pregnancies in the first instance.

Collett: 3/17/06, 12:54 PM
Kim began our dialogue by charging that parental involvement laws "reflect a larger campaign against legalized abortion in this country instead of a narrow focus on the needs of young women." She concludes by reproving me for "citing extreme cases of bad actors to cast aspersions upon an industry that each year provides a needed and desired medical procedure to thousands of women." In fact, I have attempted to provide statistics, studies, and cases to show how parental notice or consent laws are primarily directed at protecting the health and well-being of young girls. Polls show that such laws are supported by 70% to 80% of Americans.

Experience in states having parental involvement laws has shown that, when notified, parents and daughters unite in a desire to resolve issues surrounding an unplanned pregnancy. If the minor chooses to terminate the pregnancy, parents can assist in selecting competent abortion providers, and abortion providers may receive more comprehensive medical histories of their patients. In these cases, the minors will more likely be encouraged to obtain post-operative check-ups, and parents will be prepared to respond to any complications that arise.

If the minor chooses to continue her pregnancy, involvement of her parents serves many of the same goals. Parents can provide or help obtain the necessary resources for early and comprehensive prenatal care. They can assist their daughters in evaluating he options of single parenthood, adoption, or early marriage. Perhaps most importantly, parents can provide the love and support that is found in the vast majority of American families.

Whether the girl chooses to continue or terminate her pregnancy, parental involvement laws have proven desirable because they afford greater protection for the many girls who are pregnant due to sexual assault. By insuring that parents know of the pregnancy, parents are empowered to protect of their daughters from future assaults.

Kim argues that the attack on the Kansas sexual abuse reporting statute is evidence of abortion providers' concern for the privacy rights of their patients, and she quotes the trial court in support of her claim. What she fails to reveal is that the trial court was reversed by the Tenth Circuit Court of Appeals, which held that any privacy right that minors have does not extend to illegal conduct, like statutory rape.

I appreciate Kim's passion for abortion rights, but this issue is not about ensuring the availability of abortion. It's about ensuring that young girls get the support they need from the people most likely to provide it—their parents.

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