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Shelby Jennett is a neuroscience major minoring in philosophy and is a 2022-23 health care ethics intern at the Markkula Center for Applied Ethics. Views are her own.
In August 2022, a Florida appeals court denied a 16-year-old an abortion after deeming she was not “sufficiently mature” to make the decision. The minor, who was ten weeks pregnant when she filed her petition to waive the state’s parental consent and notification requirement, was parentless and living with a relative. The court decided that her case could be re-evaluated later despite the inability to prove maturity. However, this ruling raises concerns about delays in abortion care, as Florida laws only allow abortions up to 15 weeks gestation.
This case is not unique. Minors who live in states with restricted access to abortion have no choice but to involve their parents or file for a judicial bypass to get a legal abortion. While most minors choose to involve their parents or other trusted adults, some choose not to as they fear it will increase the risk of violence at home, coercion to continue their pregnancy, and rejection by family members. A judicial bypass is an order from a judge that allows a minor to get an abortion without parental notification or consent. This procedure is entirely confidential and keeps the applicant’s name anonymous. The issue with judicial bypass is that adolescents must be aware of their rights and have an understanding of the court system.
Although it may seem simple, judicial bypass places an undue burden on adolescents and is a barrier to receiving abortion care. Judges seem to use arbitrary evidence to determine whether an adolescent is competent to make medical decisions, such as asking questions about GPA, for evidence against the minor’s competency. While evaluating maturity does not require medical training, it is the deciding factor for whether an adolescent has access to medical treatment and can lead to negative health outcomes. Allowing judges to decide whether adolescents should have access to abortions is problematic and creates a system that can lead to outcomes in which adolescents cannot consent to an abortion and are forced to continue the pregnancy.
Judicial Bypass Laws in the U.S.
Currently, 36 states have laws mandating minors to obtain parental consent for a legal abortion. This is concerning because, according to data published in 2021, states with abortion restrictions have a maternal mortality rate 34% higher than non-restrictive states. In Florida, around 15% of minors seeking abortions request judicial bypass, and over 12% of those requests were denied between 2020 and 2021. In comparison, minors in states like California do not experience this barrier because the laws are not as restrictive, allowing minors to obtain abortions without parental consent.
Evaluating Adolescents’ Competency for Decision-Making
Deciding to have an abortion is a difficult decision for anyone–one that requires careful consideration and thought. Making medical decisions demands that a person understands a procedure's risks and benefits. Hence, it may seem natural to invoke parental involvement laws to provide minors with informed consent. However, according to the American Medical Association, “parental involvement, consent, or notification should not be a barrier to care.” Despite the legal age of consent being 18, no evidence indicates that individuals become competent decision-makers at this age. Cognitive research shows that between ages 14-17 adolescents are just as capable as adults of making rational decisions, understanding the risks and benefits of those decisions, and consenting to abortions. If parental consent laws were truly put in place to safeguard against violations of informed consent, then why doesn’t the law require parental involvement in cases where a minor continues her pregnancy?
Minors who continue their pregnancies are treated with the same maturity standard as adults in most states, allowing them to legally consent to prenatal and medical care for their child without third-party involvement. Furthermore, in judicial bypass hearings, the legal criteria in which judges allow adolescents to have an abortion without parental consent is that they are “mature enough and well enough informed to make her abortion decision in consultation with her physician, independently of her parents' wishes, or that, even if she is not able to make this decision independently, the desired abortion would be in her best interests.” This vague language leaves too much room for a judge's discretion and runs the risk of using highly subjective metrics to evaluate maturity. Putting an adolescent's fate in the hands of a judge, a non-medical professional, is dangerous. Although a physician typically provides their expert medical opinion on whether providing an abortion is appropriate for the adolescent, judges have the power to override medical authority. Therefore, these private decisions must be protected against government involvement to preserve minors' best interests, such as their physical and emotional well-being, health, and bodily autonomy.
Unnecessary Barriers and the Right to Privacy
Judicial bypass violates the right to privacy and is an invasive process because it requires adolescents to disclose intimate details about their private life to the courts (witnesses, clerks, bailiffs, etc.) which can be psychologically traumatizing. The right to privacy in an individual’s personal life is a right all people have established by Griswold v. Connecticut (1965) and is protected by the 1st, 3rd, 4th, 5th, and 9th Amendments. This right extends to a person’s decision to have an abortion and should be trusted with health care providers, whose duty it is to maintain their patient’s confidentiality, rather than the courts. Confidentiality leads to better patient care and health outcomes. For minors, even a perceived lack of privacy can deter them from seeking care regarding sexual health.
In addition, parental consent and notification laws delay medical care. Several studies have shown how implementing parental involvement laws increases the rates in second trimester abortions. Delays in medical care are dangerous because they increase the risk of complications in a second-trimester abortion. As a result, the lack of privacy has adverse downstream effects, and patient health outcomes must be prioritized.
Deciding to terminate a pregnancy is not easy; adolescents should be encouraged to talk to trusted adults. However, there are cases where involving parents does more harm than good. Minors who do not inform their parents often do so for good reasons. More than four in ten minors who choose not to inform their parents have already experienced family violence and fear it will happen again.
It is essential to recognize that every situation is unique, and while it may be valuable to consult with a parent, it is crucial to respect a minor’s autonomy, especially when family dynamics are unsafe. In these cases, parental notification laws only create unnecessary barriers for minors seeking abortions, such as traveling extensive distances to their court hearing and waiting a week on average to attend a court hearing and another 6.3 more days to schedule an abortion appointment. Thus, this delays their procedure nearly two weeks, which can cause a person to surpass the legal timeframe for an abortion in more restrictive states. Although there may be concerns about a total lack of communication if parental notification laws were to be removed, the rate of parent-child communication has not changed significantly since enacting these laws. Most minors consult with at least one parent or another trusted adult when deciding to have an abortion. In fact, the younger the minor is, the more likely they are to consult with their parents before an abortion. As a result, these laws have not had their intended effect, and better solutions should be implemented.
Potential Solutions
Solving this issue seems challenging. We must start by addressing systemic barriers such as financial burdens, lack of transportation, limited access to confidential care, and the opacity of legislative procedures. One small step we can take is supplying minors with better resources through schools or health care providers to make navigating judicial bypass less daunting. Furthermore, streamlining the process can help reduce and simplify judicial bypass.
A possible solution at a systemic level is allowing minors to consent through another trusted adult, like a relative or teacher, rather than strictly parents. Expanding the scope of people able to provide consent for minors allows for the exception of unique situations and may reduce the need for judicial bypass altogether. Overall, we must do better and create a just system where all adolescents have equal access to abortion care.