Even casual readers of this blog will not be surprised that I think that Matt’s unequivocal opposition to laws requiring that adolescents notify their parents in order to procure an abortion is correct. In comments, a couple of readers have argued that the ability to get judicial waivers eliminates the potential problems. Theoretically, I think this is wrong, because of course it cuts both ways. Young women in stable families and who have good relationships with their parents will not require legal coercion to inform them. For the most part, these laws are only relevant to young women in the worst family situations; there is no legitimate purpose fulfilled by forcing them to go through an intimidating process to waive parental consent requirements.
In addition, however, there is the question of how waivers to parental notification laws work on the ground, and here the picture is even more dismaying. The political scientist Helena Silverstein was written a series of terrific articles studying how these laws–which inevitably give a great deal of discretion to judges–are actually applied on the ground. Studying the application of these laws in Pennsylvania and Alabama, she found courts that were ill-equipped to enforce the statutes, unwillingness to provide necessary information to young women who wanted to exercise their rights, extremely wide disparities in how the laws were applied, and a number of judges who simply refused to apply the law and grant waivers. Nearly half of the juvenile courts in Alabama were unable or unwilling to grant waiver hearings. Here, for example is what one juvenile probation officer told Silverstein and her co-author:
But I can promise, unless you have some serious medical condition, it won’t be granted. My judge is anti-abortion, and he doesn’t believe a child should have this done without her parents. You have the right to file, and the right to file in your initials; your name won’t even be on the petition. But that doesn’t mean he will grant it. We had one [case] one time … and her doctor advised her to have an abortion for medical reasons, and [the judge] still would not grant it.*
Moreover, even in the courts that were theoretically willing to issue waivers, large numbers of roadblocks–bad information, games of telephone tag, an unwillingness to disclose necessary information–were placed in the path of young women seeking them.
It should be emphasized, as well, that this is the issue with many of the judges currently being filibustered in the Senate. As many of you know, Priscilla Owen is one of the two judges that the Bush Administration plans to use to bring the filibuster issue to a head. She also willfully misapplied a parental notification statute, and in a manner so egregious that Alberto Gonzales called her reading an”unconscionable act of judicial activism.” In particular, Owen would have effectively required–without any authorizing language in the statute–minors seeking an abortion to obtain religious counseling. So, in other words, Owen distorted a statute not only to deny both the privacy rights of young women but to violate the Establishment and free exercise clauses of the 1st Amendment as well–and this is the key issue. The problem isn’t that Owen opposes abortion as a policy matter, but that she willfully distorts statutes in order to force her religious convinctions on others. There’s religious discrimination here, alright, but it sure isn’t coming from people who oppose Owen. And as Silverstein has noted#, judges creating requirements for religious counseling is not uncommon.
Parental notification requirements, therefore, are bad on paper and worse in practice . And the way these laws are applied makes is clear why Kevin Drum’s comparison of abortion with other surgical procedures won’t fly. The purpose of parental notification statutes with respect to abortion is to prevent abortions; this is not the case with other surgical procedures. Of course, progressives should strongly oppose judges who will not enforce waiver requirements properly, but these judges should not be given the chance in the first place.
* Helena Silverstein and Leanne Speitel, “‘Honey, I Have No Idea': Court Readiness to Handle Petitions to Waive Parental Consent for Abortion,” Iowa Law Review, 88:75 (2002).
# Silverstein and Kathryn Lundwall Alessi, “Religious Establishment in Hearings to Waive Parental Consent for Abortion,” University of Pennsylvania Journal of Constitutional Law, 7: 473 (2004).