In the complex web of restrictions on abortion access, parental consent laws and judicial bypass mechanisms play a small, but hugely significant part. States are entitled to enact parental consent and notification laws in relation to abortion care for minors, as long as they allow minors to ‘bypass’ this requirement judicially, an attempt to account for the myriad circumstances in which it will be impossible, difficult or dangerous for teens to tell their parents about their pregnancy and their wish to end it. Finding different justifications in different contexts, some laws appeal to the perceived immaturity of the individual in arriving at a decision without adult intervention; other legal schemes emphasize the critical importance of respecting the family unit, and by extension, the ability of parents to determine the medical treatment their child will receive. The exact stats, state by state, are available here.
The patchwork regime which governs the US rules on abortion access, administered by local courts presiding over the individual applications of pregnant teenagers, is a highly dysfunctional one, where standards of judgment can be entirely capricious. Judges are, after all, not medical professionals, nor are they therapists, health experts or developmental psychologists. The standard criteria pronounced upon by a judge at a bypass hearing is whether the minor is ‘mature enough, and well enough informed to make her abortion decision, in consultation with her physician, independent of her parents knowledge’ or that ‘even if she is not able to make this decision independently, the desired abortion would be in her best interests’. The gateway for unchecked judicial discretion is gaping. Markers of maturity are wholly subjective determinations, as are the metrics to determine whether a minor is sufficiently informed, or where her best interests lie. After all, for a staunchly anti-abortion judge, it is entirely possible that no-one could be informed about the process of abortion and yet rationally seek it, or that it could never be in an individual’s best interests to receive abortion care as a minor. The controlling law doesn’t foreclose on these possibilities.
The markers of maturity can shift with whatever evidence is presented to the judge at hearing. In a chapter of her most recent book About Abortion: Terminating Pregnancy in the 21st Century, Carol Sanger has reported on a number of cases where opposite evidence result in the same determination, namely that a minor is not entitled to consent to an abortion, for example, because her answers were monosyllabic and so seemed unconsidered; because her answers were multi-syllabic and seemed rehearsed; because she relied on material factors to ground her decision, like not being able to go to college if she had a child; because she was unable to ground her decision in some concrete reason why a child would impede her life decisions. Girls who present evidence that the plan they have for their life would be destroyed by a child are considered calculating; girls who present no such evidence of calculation seem to have made a decision on a whim. In a hearing notionally enacted to test a minor’s maturity, attorneys may be appointed for the fetus and may name their ‘client’ in the proceedings in certain states, including Florida and Alabama. Sexual histories are combed through. A girl may be quizzed on how she could have arrived at the decision to seek an abortion if she is religious, and pressed on her spiritual commitments. In a stunning display of circularity, some examples of reasons why bypasses have been refused include that simply becoming pregnant by accident proves a girl’s immaturity, as does the precariousness of a girl’s financial position.
Contrastingly, most states allow a minor to consent to all medical care for their own (born) child, creating a strange nesting of rights within the same individual, who can seemingly be presumed to maturely conceptualise and weigh complex medical choices for a separate individual, but not for themselves. Even more unsettling is the degree to which pregnant minors may consent to other medical care during pregnancy, including consenting to procedures which are far more medically risky than abortion, including surgical delivery (or when compared with early abortion, any form of delivery).
Perhaps the greatest complication in the conceptual weighting engaged in by the court in a bypass proceeding is the fact that unlike many judicial refusals, a rejection of a minor’s application will not preserve the status quo, a scenario the court was not complicit in bringing about and responsible for; rather, a rejection of a minor’s application here sets her on a trajectory where she must bear a child she does not want and which constitutes a nightmarish reality for her. This concern is deepened by the demographic who will attempt to surmount the hurdles presented in acquiring a judicial bypass. Multiple studies attest that in the majority of teenage pregnancies, the pregnant minor does involve a parent in the decision-making process, and that a majority of teens who do not involve their parent turn to a different trusted adult instead. The bypass procedure involves a high degree of secrecy, and the emotional and material costs of appearing in front of an effective morality tribunal which may quiz her on her sexual history, her educational background, her spiritual commitments and in some case confront her as an adversary to attempt to ‘persuade’ her to continue a deeply unwanted pregnancy. These are often not minors for whom a parental discussion is safe, or even possible.
Envisaged as a safety-catch for individuals who have lost their parents, or been driven away by abuse if parents discover the pregnancy, the law has instead erected a series of near-insurmountable, and systematically humiliating challenges for incredibly vulnerable minors. As is common with abortion regulation, the burden overwhelmingly falls on the individuals least capable of vindicating their rights alone.