Parental Notification and Consent Laws for Teen Abortions: Overview and 2006 Ballot Measures

Martin Donohoe, MD, FACP

Disclosures

February 09, 2007

Overview

Abortion is a common, safe, legal, and often necessary procedure. More than 30 million American women have had an abortion since it was legalized in 1973.[1] In 2000, there were 1.3 million abortions in the United States.[2] In 2000, 25% of all pregnancies (excluding miscarriages) ended in abortion.[3] The abortion rate has decreased 11% since 1994.[3] Of those obtaining an abortion, 48% are older than age 25, 20% are married, and 56% already have children. By age 45, the average woman in the United States will have had 1.4 unintended pregnancies, and 43% will have had an induced abortion.[4]

Barriers to abortion in the United States include cost, inadequate insurance coverage, legal barriers such as waiting periods and parental consent laws, limited access to medical abortion, lack of qualified providers, harassment of patients and providers, Targeted Regulation of Abortion Providers (TRAP) laws, refusal clauses, anti-choice laws, and the fetal legal rights movement.[5,6,7,8] The policies of the federal administrations of the past 20 years, especially those of the current administration, have strengthened many of these barriers.

This column will provide an update on the current status of parental consent and notification laws. The most recent initiatives will be reviewed and data related to notification and effects of existing consent laws will be described.

On November 7, 2006, voters in California and Oregon rejected ballot initiatives that would have required parental notification for teens aged 15-17 years seeking to obtain an abortion. In South Dakota, citizens voted down Referred Law 6, a measure that would have made it a felony for doctors to perform any abortion, except to save a woman's life.[9] This measure included no exception to preserve a woman's health, or for victims of rape and incest. It was resoundingly defeated (56% to 44%).

Both the Oregon and California measures included a judicial bypass option which would have allowed a hearing before an administrative law judge for teens wishing to avoid mandatory notification. Oregon's Measure 43 would have required physicians to notify a parent or legal guardian of teens aged 15-17 at least 48 hours before an abortion could be performed. It was defeated 54% to 46%. California's Proposition 85 would have amended the state constitution to require a similar 48-hour notification period.[10] It failed by a similar margin -- 54% to 46%.

In 1987, the California legislature approved -- and then-Governor George Deukmejian signed -- a parental notification law. However, after a decade of litigation, the California Supreme Court struck the law down on privacy grounds.[10] California voters also rejected a ballot initiative similar to Proposition 85 (Proposition 73) 1 year ago, by a margin of 53% to 47%. Measure 73 defined abortion as "the death of the unborn child," wording that opponents said would, by defining a fetus as a child, be used as a stepping stone to help overturn Roe v. Wade, the 1973 US Supreme Court decision that protects the privacy and availability of abortion procedures at less than 24 weeks' gestation, the point of legal viability.[11]

Currently, 34 states require some type of parental involvement in a minor's decision to have an abortion. Twenty-one states require that 1 or both parents consent to the procedure, 12 require that a parent be notified, and 1 requires both parental consent and notification.[12] All of the 34 states requiring parental involvement provide an alternative process for minors seeking an abortion.[13] Thirty-four states include a judicial bypass procedure allowing minors to obtain approval from a court. Six states also permit a minor to obtain an abortion if a grandparent or other adult relative is involved in the decision. Twenty-eight states permit a minor to obtain an abortion in a medical emergency; 12 permit abortion in cases of abuse, assault, incest, or neglect.

Purported Benefits, Risks and Potential Harms of Parental Consent Laws. Proponents of parental notification and consent laws argue that the decision to have an abortion is perhaps the biggest decision a minor can make, and that minors lack the emotional development to make such a decision without parental advice. They also contend that parents may be a significant source of support for teens undergoing an abortion, and that they may be able to talk a teen out of a decision she may later regret by advising to continue the pregnancy and give the resulting child up for adoption.[14] For teens with supportive parents, these arguments make sense, although one would hope that for those who communicate openly and honestly about reproductive matters with their parents, these laws would be unnecessary.

In states that do not have mandatory parental consent or notice requirements, data have shown that 61% of parents knew about their daughters' pregnancy.[15] Among minors who did not tell a parent about their abortion, 30% had experienced violence in their family, or feared violence or being forced to leave home.

Whether or not parental involvement laws reduce overall abortion rates remains controversial. Some data support a reduced rate in the state with a consent law but an increased rate in neighboring states, suggesting that teens travel outside their state of residence for the procedure.[15] A recent study from Texas[16] showed that its parental notification law was associated with a decline in abortion rates among those aged 15-17 years not accounted for by cross-border travel for abortion. However, the law was also associated with increased birth rates and rates of abortion during the second trimester of pregnancy among a subgroup aged 17.50-17.74 years at the time of conception. These findings suggest an increase in both unwanted childbearing and later-stage abortions (associated with a higher rate of complications) among older teens.

The notification required by Measure 43 and Proposition 85 could have placed teens in danger, and further limited access to other reproductive health services. If the father was a relative or parent, or the teen's home life was otherwise abusive or unstable, requiring parental notification could increase the risk for violence.[14] It has been shown that nearly 50% of teens with a history of abuse reported being assaulted during their pregnancy, most often by a family member.[15]

These initiatives could have also increased the number of unwanted pregnancies, as well as rates of sexually transmitted infections (STIs). Reddy and colleagues[17] found that parental consent and notification laws for contraception could prevent as many as 50% of teens from using Planned Parenthood services, including counseling, contraception, and STI testing and treatment, while stopping only 1% from having sex. Mandatory parental notification for abortion, a related but somewhat different issue, could have a similarly chilling effect on teens' willingness to access a variety of reproductive health services.

Finally, Proposition 85 and Measure 43 could have been costly to taxpayers. On the basis of projected increases in pregnancies, births, abortions, untreated STIs, and resulting pelvic inflammatory disease, Franzini and colleagues[18] estimated the annual cost of parental consent and law enforcement reporting requirements in Texas at $43.6 million per year for adolescent girls using publicly funded services. However, Texas requires parental notification and consent for both contraception and abortion. Therefore, the cost associated with a law covering just abortion would likely be much lower, but still not insignificant.

Backers of Measure 43 and Proposition 85 suggested that girls wishing to avoid parental notification could have found an administrative law judge, who might have granted a request, through contacting "pregnancy crisis centers." Such "clinics", of which there are over 4000 nationwide, are supported in part through state and federal funding and are listed in the phone book under "pregnancy services" or "abortion services."[19] "Clinic" staff attempt to dissuade clients from having abortions through exaggeration of risks, myths, and fetal photographs/body scans. They often employ scare tactics to convince teens that abortion is dangerous, causes infertility and breast cancer, and is associated with severe psychological consequences, none of which is true.[5,6,7,8] Instead, teenagers and adults denied abortions often experience resentment and distrust, and their children may face social and occupational deficiencies.[20] Finally, "pregnancy crisis center" staff have claimed that fetuses suffer pain, despite growing evidence that they do not have this capacity prior to the third trimester.[21]

Teens already confront biased information when seeking an abortion in the more than 20 states that have biased counseling laws.[22,23] These initiatives, often labeled "Mandated Informed Consent" or "Women's Right to Know" laws, employ similar scare tactics to convince women that abortion is much more dangerous than it really is.[24] Prior to consent, women are read a lengthy list of possible but very rare complications from abortion; they are not read a corresponding list of benefits of abortion.

Backers of Oregon's Measure 43 and California's Proposition 85 supported placing increasing limits on a woman's right to control her reproductive health, a right many cannot exercise already due to low provider availability, cost, lack of insurance coverage, clinic closures consequent to burdensome and medically unnecessary regulatory measures, harassment, and even threats of violence. Opponents of parental consent and notification measures include the American Medical Association (and respective state medical associations), the American Academy of Pediatrics, and the American College of Obstetrics and Gynecology. These ballot initiatives constituted poor public health policy and represented another step toward state-sponsored control of women's reproductive health. Fortunately, these misguided measures were defeated, although no doubt similar initiatives will resurface in the next election, requiring vigilance on the part of those concerned about safeguarding reproductive freedom.

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