PROTECTING OUR DAUGHTERS: THE NEED FOR THE VERMONT PARENTAL NOTIFICATION LAW
Teresa Stanton Collett*
Introduction
For several years, lawmakers in the Vermont House of Representatives have filed bills that would require a minor to notify a parent of her intent to obtain an abortion.1 Routinely these bills have been assigned to committees where they languished or died.2 In contrast, House Bill 218 received a favorable vote of seventy-eight to fifty-five in the House of Representatives in 2001.3 The State Senate is expected to consider this bill in the spring.
While Vermont statutes permit minors to make a limited number of medical decisions without parental involvement,4 the general rule is that a parent must consent to all medical procedures performed on his or her child due to the legal incapacity of minors.5 House Bill 218 places abortion within this general rule. The bill creates a legal duty on the part of abortion providers to comply with existing professional codes regarding information and counseling given to a minor prior to performance of an abortion.6 Abortion providers must also notify a parent or guardian forty-eight hours prior to performing an abortion on an unemancipated minor.7 A minor desiring to avoid notification may petition a court for an order exempting her from the notification requirement.8
This article outlines the provisions of House Bill 218, describes the current national consensus regarding parental involvement laws, and examines the arguments relating to the proposed passage of this law. A careful examination of the arguments reveals that parental notification benefits Vermont minors through improved medical care and protection from sexual assault. Notification also insures that Vermont parents are able to assist their daughters in responding to an unplanned pregnancy. In the rare cases where parental involvement is not appropriate, the judicial bypass contained in House Bill 218 provides a safe and effective means of protecting a girl who wishes to obtain a secret abortion.
I. Overview of House Bill 218
Under House Bill 218, abortion providers must furnish minors information and counseling regarding their options in responding to their pregnancies to the extent the providers= codes of professional conduct already require.9 When originally introduced as an alternative to parental notification,10 this provision failed. However, supporters of parental notification recognized the merit of creating an enforcement mechanism for professional codes directed at insuring informed consent by minors. Therefore, they reintroduced the language as an addition to parental notification, rather than its alternative, and the amendment passed on a voice vote.11 The exact meaning and effect of this provision is somewhat unclear, because the duty to provide information and counseling is Ato the extent already required by the providers= code of professional conduct.@12 Few, if any, codes of professional conduct address the counseling of pregnant adolescents to the level of detail provided in House Bill 218, although many professional groups have policy statements or practice guidelines related to this matter.13
The original and primary goal of the bill, found in the first section of the bill, requires written notification to a parent or guardian of a minor=s intent to obtain an abortion at least forty-eight hours prior to performing the procedure.14 The provider or his/her agent may deliver this notice in person, or it may be mailed to the parent=s or guardian=s usual place of abode.15 A medical emergency may operate to waive this requirement,16 as may certification by a parent, in writing, that he or she has been notified.17 If a girl wishes to obtain an abortion without parental notification, she may seek judicial authorization to bypass this requirement.18 The girl may initiate this process by filing a petition stating that: (1) she is an unemancipated minor who is pregnant; (2) she wishes to obtain an abortion without notifying either of her parents; (3) notification has not been waived; and (4) she has not previously petitioned any court for judicial bypass of notification relating to this pregnancy.19 Upon receiving the petition, the bill requires the court to appoint an attorney ad litem and an appropriately-trained guardian ad litem to represent the girl.20
House Bill 218 requires the court to hear and rule on the application within three business days of the application=s filing, subject to any postponement the minor requests.21 The bill permits the hearing to be held in chambers, or some setting other than a traditional courtroom.22 In camera hearings have the advantage of diminishing the formality of the proceedings, which may reduce a girl=s anxiety about appearing before a judge. The hearing must be informal and closed to the public.23
During the hearing, the minor, through her attorney, must present evidence that she is entitled to bypass parental notification because she satisfies one of the following conditions: (1) she is sufficiently mature and well-informed to consent to the abortion without parental involvement; (2) notification would place her at substantial risk of physical or emotional harm from a parent or guardian; (3) parental notification would cause irreparable harm to the minor=s relationship with her parent or guardian; or (4) notification is not in her best interest.24
The hearing is ex parte, attended only by the minor, her representatives, and the witnesses called to testify.25 This appears to be required under current judicial interpretations of the United States Constitution.26 Nonetheless, in reflecting upon the ex parte nature of a similar bypass procedure one justice of the Texas Supreme Court observed:
Unlike virtually any other judicial proceeding I am aware of, this proceeding is not only Anon-adversarial,@ but notice to the very persons (besides the minor) likely to have the most interest in the outcome of the hearingCthe parents who stand not to be notified of their minor child=s decisionCis prohibited. And the secrecy of the proceeding assures that the hearing will be entirely one-sided.27
Judges in other states have echoed these concerns.28
House Bill 218 requires the minor to show by clear and convincing evidence that she is entitled to bypass parental notification. The United States Supreme Court approved this standard in 1990:
A State does not have to bear the burden of proof on the issues of maturity or best interests. The principal opinion in Bellotti indicates that a State may require the minor to prove these facts in a bypass procedure. A State, moreover, may require a heightened standard of proof when, as here, the bypass procedure contemplates an ex parte proceeding at which no one opposes the minor=s testimony. We find the clear and convincing standard used in [Ohio=s] H.B. 319 acceptable.29
The heightened evidentiary standard compensates, in part, for the hearing=s ex parte nature and its increased risk of misjudgment due to inadequate factual development. It also provides a small measure of protection against exaggerated or false claims of prospective harm from parental notification, or of the minor=s maturity and understanding of the options related to her pregnancy.
The court must issue a written entry order reflecting its judgment within three business days of the filing of the petition.30 The bill does not permit appeal of a bypass order.31 A minor denied a bypass, however, may seek de novo review by the presiding judge of the family court in the county in which the original order was sought.32
House Bill 218=s description of the bypass process may confuse an unfamiliar reader. The sheer number of paragraphs explaining the bypass procedure might lead one to believe that the thrust of the legislation is judicial, rather than parental, involvement. One witness, in fact, made this claim before the House Health & Welfare Committee.33 Such claims, however, are incorrect.
The general rule the bill embodies is simple. It takes but one sentence to state. ANo abortion shall be performed upon an unemancipated minor or upon a pregnant minor for whom a guardian has been appointed because of a finding of incompetency, until forty-eight hours after written notice of the pending abortion has been delivered to at least one parent of the unemancipated minor or to the guardian of the incompetent minor.@34 The remainder of the three-page bill defines the judicially-created exception to the rule, and the unique procedures attendant to the exception. Nonetheless, the purpose for and general rule established by House Bill 218 is that parents are legally entitled to notice before their minor daughter undergoes an abortion.
II. Parental Involvement: The National Consensus
Laws requiring parental notification or consent prior to the performance of an abortion upon a minor (collectively known as Aparental involvement laws@) are the product of widespread agreement that parents should be involved in their minor daughter=s decision to continue or terminate an unplanned pregnancy. Neither abortion rights activists nor pro-life advocates dispute this point.35 The fact that parental involvement laws exist on the books in forty-three of the fifty states illustrates a national consensus on this issue.36 Of forty-three state statutes requiring parental involvement, seven have been determined to violate state or federal constitutional provisions.37 Nine of the remaining states have laws that are substantially ineffectual in assuring parental involvement in a minor=s decision to obtain an abortion.38 However, laws in twenty-seven states virtually guarantee the right to parental notification or consent in most cases.39
This consensus in favor of parental involvement is also reflected in the decisions of the federal courts. In Planned Parenthood of Central Missouri v. Danforth, the first of a series of United States Supreme Court cases dealing with parental involvement laws, Justice Stewart wrote, AThere can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision of whether or not to bear a child.@40 Three years later, in Bellotti v. Baird,41 the Court acknowledged that parental consultation is critical for minors considering abortion because Aminors often lack the experience, perspective and judgment to recognize and avoid choices that could be detrimental to them.@42 The Bellotti Court also observed that parental consultation is important because the situation raises profound moral and religious concerns.43 More recently, in Planned Parenthood v. Casey, Justices O=Connor, Kennedy, and Souter observed that parental consent and notification laws Aare based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart.@44
Notwithstanding the value of parental involvement in a minor=s decision to obtain an abortion, the Supreme Court has placed some limits on the traditional authority of parents to consent to medical intervention on behalf of their minor children.45 In Danforth, the Supreme Court struck down a statute requiring parental consent in all cases,46 observing that Athe State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient=s pregnancy, regardless of the reason for withholding the consent.@47 The Court retained this rule in Bellotti v. Baird,48 while providing guidance to state legislatures regarding the requirements for a constitutionally valid parental consent statute:
We therefore conclude that if the State decides to require a pregnant minor to obtain one or both parents= consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained.
A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents= wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.49
Thus, a consent statute must include a process for judicial bypass in situations where a minor is well-informed and mature, or where a court finds an abortion is in the minor=s best interest.
The Supreme Court has recognized that notification laws do not, however, give parents the legal authority to prevent their daughter=s abortion. In Hodgson v. Minnesota, Justice Stevens observed, AAlthough the Court has held that parents may not exercise >an absolute, and possibly arbitrary, veto= over that decision [by a minor to terminate her pregnancy], it has never challenged a State=s reasonable judgment that the decision should be made after notification to and consultation with a parent.@50
To date, the Court has explicitly declined to rule on the question of whether a judicial bypass process is required to preserve the constitutionality of notification statutes, absent a case presenting such a statute.51 Lower federal courts are split on this issue.52 Due to this unresolved constitutional question, and to varied political judgments regarding the issue,53 state legislatures typically include a judicial bypass process to insulate the statute from constitutional attack. House Bill 218 follows this conventional wisdom.
III. The Benefits Of Parental Notification
The national agreement that parents should be involved in their minor daughter=s decisions regarding an unplanned pregnancy is mirrored by an overwhelming consensus among the people of Vermont in favor of parental involvement laws.54 According to a poll conducted in January of 2000, seventy-two percent of Vermonters support parental notification prior to performance of abortion on a minor.55 On an issue as contentious and divisive as abortion, it is both remarkable and instructive that there is such firm support for laws requiring parental involvement.
Various reasons underlie this broad support. Foremost among the reasons are the potential benefits to the girl responding to an unplanned pregnancy. Parental involvement leads to improved medical care for minors seeking abortions and increases their protection from sexual exploitation by adult men.
A. Improved Medical Care for Minor Girls
Parental notification ultimately improves medical care for minors seeking abortions in three ways. First, parental notification will allow parents to assist their daughter in the selection of an abortion provider. As with all medical procedures, one of the most important guarantees of patient safety is the professional competence of those who perform the medical procedure. In Bellotti v. Baird,56 the United States Supreme Court acknowledged the parents= superior ability to evaluate and select appropriate healthcare providers:
In this case, however, we are concerned only with minors who, according to the record, may 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.57
The Court=s concern for the ability of minors to distinguish between competent and ethical abortion providers is particularly well-justified in Vermont where non-physicians perform abortions.58 According to Clinicians for Choice, a national organization of midwives, nurse practitioners, and physician assistants, Anurse practitioners and physicians assistants perform about 80% of the abortions provided by the Planned Parenthood affiliate in Vermont,@ sometimes with no doctor even on site.59 The National Abortion Federation (NAF) has recommended that patients seeking an abortion confirm that the abortion will be performed by a licensed physician in good standing with the state Board of Medical Examiners. The NAF has also recommended that the doctor have admitting privileges at a local hospital not more than twenty minutes away from the location where the abortion is to occur.60 A well-informed parent is more likely to inquire into the qualifications of the person performing the abortion, and the availability of a physician with local admitting privileges, than is a panicky teen who just wants to no longer be pregnant.
Second, parental notification will insure that parents have the opportunity to provide additional medical history and information to abortion providers.61
The medical, emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician. Parents can provide medical and psychological data, refer the physician to other sources of medical history, such as family physicians, and authorize family physicians to give relevant data.62
Abortion providers, in turn, will 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. Parental notification insures that the abortion providers will inform a mature adult of the risks and benefits of the proposed treatment, after having received a more complete and accurate medical history of the patient.63
The third way parental notification will improve medical treatment of pregnant minors is by insuring that parents have adequate knowledge to recognize and respond to post-abortion complications.64 While it is often claimed that abortion is one of the safest surgical procedures performed today, the actual occurrence rate of many complications is simply unknown.65 In part this is due to the fact that the vast majority of abortions occur in abortion clinics.66 Women typically have no pre-existing relationship with an abortion provider,67 and only about one-third return to the provider for their post-operative exam.68 Teens are even less likely to return for post-operative exams.69 Arguably, therefore, failure to return for post-operative exams prevents providers from discovering post-abortion complications. Other healthcare providers may be reluctant to report any complications for fear of compromising the secrecy that often surrounds abortions.
While abortion rights activists characterize abortion-related complications as rare or unusual, at least one American court has held that a perforated uterus is a Anormal risk@ associated with abortion.70 Untreated, a perforated uterus may result in an infection, complicated by fever, endometritis, and parametritis.71 Moreover,
The risk of death from post-abortion sepsis [infection] is highest for young women, those who are unmarried, and those who undergo procedures that do not directly evacuate the contents of the uterus. . . . A delay in treatment allows the infection to progress to bacteremia, pelvic abscess, septic pelvic thrombophlebitis, disseminated intravascular coagulophy, septic shock, renal failure, and death.72
Even with the present limited knowledge of complications, there is a medical consensus that the number of complications increases the later in the pregnancy the abortion occurs.73 An online medical treatise on emergency medicine indicates a fifty percent or greater complication rate accompanies abortions performed in the second trimester.74
Legislators witnessed the human dimension of abortion complications in the testimony of two Vermont mothers whose names were not included in the public record in order to protect their childrens= privacy. In the first instance, a mother described the high fever and hemorrhaging her sixteen-year-old daughter experienced, as well as the girl=s attempts to cope with suicidal impulses following a secret abortion.75 When the girl sought the assistance of the abortion provider, she was given the name and fee structure of a mental health counselor. Her suffering continued since she had exhausted her financial resources by paying for the abortion, and was unable to access her parents= health insurance without their knowledge.76 Only after the parents insisted that their daughter reveal the reason for her changes in behavior did the girl obtain professional counseling through which she is learning to deal with the emotional aftermath of her abortion.77
A second mother and father provided a written account of their teenage son=s struggle to overcome depression following his girlfriend=s secret abortion, as well as her hospitalization for infection following the failure to remove all fetal parts during the abortion. The sixteen-year-old girl had revealed the abortion to her mother, and they had sought post-abortion help from the clinic, but the clinic Adismissed her symptoms as normal, and sent them along.@78 Two days later the girl collapsed, was rushed to the hospital, and emergency surgery was performed.79 Both the pregnant girl and her boyfriend are healing from the after-effects of the abortion through the loving intervention and support of their parents.
These stories are not unique. Testimony of similar experiences persuaded a Florida appellate court to uphold that state=s parental notification law:
The State proved that appropriate aftercare is critical in avoiding or responding to post-abortion complications. Abortion is ordinarily an invasive surgical procedure attended by many of the risks accompanying surgical procedures generally. If post-abortion nausea, tenderness, swelling, bleeding, or cramping persists or suddenly worsens, a minor (like an adult) may need medical attention. A guardian unaware that her ward or a parent unaware that his minor daughter has undergone an abortion will be at a serious disadvantage in caring for her if complications develop. An adult who has been kept in the dark cannot, moreover, assist the minor in following the abortion provider=s instructions for post-surgical care. Failure to follow such instructions can increase the risk of complications. As the plaintiffs= medical experts conceded, the risks are significant in the best of circumstances. While abortion is less risky than some surgical procedures, abortion complications can result in serious injury, infertility, and even death.80
Without knowledge of their daughters= abortions, parents cannot insure that their children obtain necessary post-operative care or provide an adequate medical history to physicians called upon to treat any complications that may arise. The first omission may allow complications such as infection, perforation, or depression, to continue untreated. The second omission may be lethal. When parents do not know that their daughter has had an abortion, ignorance prevents swift and appropriate intervention by emergency room professionals responding to a life-threatening condition.
Opponents of House Bill 218 argue that mandatory parental notification causes girls to delay their decisions to obtain abortions, thus increasing the risks attendant to the procedure.81 While it is true that the risks of abortion increase as the pregnancy progresses,82 there is little evidence that parental involvement laws actually result in medically significant delays in obtaining abortions. Researchers reviewing the effects of the Minnesota parental consent law concluded:
Regardless [of the reason], the claim that the law caused more minors to obtain late abortions is unsubstantiated. In fact, the reverse is true. For ages 15-17 the number of late abortions per 1,000 women decreased following the enactment of the law. Therefore, an increased medical hazard due to a rising number of late abortions was not realized.
Assuming arguendo that parental notification delays performance of the abortion by one week, any slight increase in risk to the girl is more than offset by the enhanced safety due to the provider=s enhanced knowledge of the minor=s medical history and the parents= ability to facilitate postoperative care for their daughter.83
B. Increased Protection from Sexual Assault
In addition to improving the medical care young girls receive in dealing with an unplanned pregnancy, parental notification will provide these minors with increased protection against sexual exploitation by adult men. Of the minors who have not told their parents of their pregnancy, fifty eight percent are accompanied by their sexual partners when seeking abortions.84 This is significant since a substantial number of teen pregnancies are the result of sexual assault.85
National studies reveal that A[a]lmost two thirds of adolescent mothers have partners older than twenty years of age.@86 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. Men aged 25 and older father more births among California school-age girls than do boys under age 18.87
Other studies have found that most teenage pregnancies are the result of predatory practices by men who are substantially older.88
While no comparable studies of pregnant Vermont teens exist, public records relating to minors giving birth in Vermont in 1999 raise troubling questions.89 Of the eight babies born to mothers under the age of fifteen, two fathers were identified as being ages fifteen to seventeen, one was between the ages of eighteen and nineteen, and five were not identified by age.90 Of the 156 babies born to mothers who were between the ages of fifteen and seventeen, ten of the fathers were between fifteen and seventeen years of age, ninety fathers were identified as eighteen or older and fifty-six of the fathers were not identified by age.91 This means that only six percent of the males impregnating minors were known to be under the age of eighteen. The remaining ninety-four percent were adults or of unidentified age.
A 1989 study of coercive sexual experiences among teenage mothers found that, of the pregnant teens that had had unwanted sexual experiences, only eighteen percent of the perpetrators were within two years of the victim=s age.92 Another eighteen percent were three to five years older than the victim.93 Seventeen percent were six to ten years older, and forty-six percent were more than ten years older than their victims.94 If all fifty-six fathers whose ages were not reported to the Vermont Health Department are more than ten years older than the minors they impregnated, when added with the three fathers known to be thirty or older, the Vermont statistic of thirty-nine percent would almost mirror that of the 1989 study.
Vermont law criminalizes sex with a child under the age of sixteen.95 Healthcare providers in Vermont learning of such conduct must report it to the state welfare authorities.96 Abortion providers have resisted any reporting obligation designed to insure that men who unlawfully impregnate minors are identified and prosecuted.97 For example, a lawsuit recently filed in Arizona alleges that Planned Parenthood=s failure to report the sexual molestation of a twelve year-old led to her continued molestation and impregnation.98 If these allegations are proven, this conduct is consistent with the position taken by many abortion providers that encouraging medical care through insuring confidentiality is more important than insuring legal intervention to stop the sexual abuse.99
The practice of Vermont abortion providers regarding the reporting of sexual assault is unclear. Testimony before the Judiciary Committee of the Vermont House of Representatives established that Planned Parenthood of Northern New England, the largest abortion provider in the state, recognizes a legal obligation to report instances of sexual assault.100 According to testimony before the committee, twelve girls under the age of sixteen obtained abortions in 2000 from Planned Parenthood. These pregnancies were presumptively the result of criminal conduct, yet the organization representative testified that Planned Parenthood had not notified the authorities in any case.101 Nor could she identify any instances of reported abuse during the year 2000.102 This is troubling since cooperation by abortion providers in reporting is especially important for the successful prosecution of sexual abuse cases. At least one appellate court has thrown out a sexual assault conviction because the fetal tissue that would have provided DNA evidence related to the perpetrator=s identity was destroyed.103
Secret abortions do not advance the best interests of minor girls.104 Experience in other states suggests that sexual predators take advantage of their victims= ability to obtain an abortion.105 The proposed parental notification law would insure that Vermont parents have the opportunity to protect their daughters from those who would victimize their daughters again and again.
C. Improved Parental Right to Control Minors= Medical Care
In addition to the benefits directly enjoyed by minors in the form of better medical care and increased protection against continuing sexual abuse, House Bill 218 provides parents the necessary information to fulfill their responsibility to care for their minor children. Just this past year, the United States Supreme Court described parents= right to control the care of their children as Aperhaps the oldest of the fundamental liberty interests recognized by this Court.@106 Contrary to the claims of House Bill 218 opponents,107 Vermont law recognizes the responsibility and right of parents to make medical decisions for their minor children in various statutes and cases.
The general law of Vermont surrounding medical care of children was summarized by the authors of a 1998 Vermont Bar Journal article:
Prior to treating their patients, health care providers must obtain informed consent. One of the general rules of informed consent, with, of course, several exceptions, is that minors are not able to give legally binding consent to medical treatment. Accordingly, health care providers who treat minors must obtain the consent of the minor=s parent or guardian or must find a basis to rely on the minor=s consent either under statutory or common law.108
A parent=s right to consent to a minor=s care derives from the parent=s duty to provide medical care to his or her child. This duty arises from the relationship of parent and child, rather than from any affirmative acts of the parent.109 In describing the rights of parents, the Vermont Supreme Court has stated:
Parental rights and responsibilities are defined as those rights and responsibilities related to a child=s physical living arrangements, parent child contact, education, medical and dental care, religion, travel, and any other matter involving a child=s welfare and upbringing. Rights and responsibilities are comprised of Aphysical responsibility,@ and Alegal responsibility,@ which is defined as the rights and responsibilities to determine and control various matters affecting a child=s welfare . . . includ[ing] but . . . not limited to education, medical and dental care, religion and travel arrangements.110
Numerous Vermont statutes evidence the parents= right to control the medical care of their children.111
Not only is this right recognized under Vermont law, but the parents= right to control the care of their children is also protected by the U.S. Supreme Court=s interpretation of the United States Constitution:
Our jurisprudence historically has reflected Western civilization concepts of the family as a unit with broad parental authority over minor children. Our cases have consistently followed that course; our constitutional system long ago rejected any notion that a child is Athe mere creature of the State@ and, on the contrary, asserted that parents generally Ahave the right, coupled with the high duty, to recognize and prepare [their children] for additional obligations.@ Surely, this includes a Ahigh duty@ to recognize symptoms of illness and to seek and follow medical advice. The law=s concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life=s difficult decisions.112
Opponents of House Bill 218 claim that AParental consent or notification requirements for ear piercing, school trips and getting aspirin from the school nurse are based in policy, not law. Individual policies are generally developed to guard against lawsuits.@113
The need to Aguard against lawsuits@ arises because parents have the legal right to control the care of their children. Ignoring or violating parents= legal right to direct the upbringing of their children, including the right to direct the medical care those children receive, can result in liability. For example, unauthorized medical examinations of minors have resulted in liability.114 House Bill 218 simply places abortion within the general rule that parents have the legal right to be involved in medical decisions relating to their minor children.
IV. Effectiveness of Judicial Bypass Under House Bill 218
In those few cases where it is not in the girl=s best interest to disclose her pregnancy to her parents, House Bill 218 allows the pregnant minor the option of seeking a court determination that either notification of her parent is not in her best interest or that she is sufficiently mature to make decisions regarding the continuation or termination of her pregnancy. Opponents have argued that House Bill 218 will not increase the number of parents notified of their daughters= intentions to obtain abortions, since minors will commonly seek and obtain judicial bypass of the notification requirement.115 Assessing the accuracy of this claim is difficult, since parental notification or consent laws rarely impose reporting requirements regarding the use of judicial bypass.116
The Idaho parental consent law enacted in 2000 is one of the few exceptions to this general rule.117 Based upon the reporting required under that law, only two of the fifty-eight minor abortions in Idaho were obtained pursuant to a judicial bypass order from September 1, 2000, when the reporting requirement went into effect, through August 31, 2001.118 Fifty-four abortions were performed after obtaining parental consent.119 One minor was legally emancipated, and did not need parental consent, and one report did not indicate the nature of the consent obtained prior to performance of the abortion.120 After implementation of the Idaho parental involvement law, ninety-three percent of the minors obtained parental consent.
Obtaining comparable information in states having parental involvement laws with no mandatory reporting requirement is difficult. State agencies will not accumulate such information absent a legislative mandate. Nonetheless, it is safe to say that the use of judicial bypass to avoid parental involvement varies significantly among the states. While reported to be commonly used in Massachusetts,121 judicial bypass is seldom used in many states.122 An Alabama newspaper reported that A[f]ew girls turn to the courts. In 1999, 1015 girls got abortions in Alabama with a parent=s approval.@123 Indiana also conducts few bypass proceedings according to an informal study.124 Texas implemented its Parental Notification Act in 2000. While no official statistics regarding the number of judicial bypass proceedings are available, the Texas Department of Health compiles statistics regarding the payment of attorneys ad litem in judicial bypass proceedings.125 Based on the number of claims for payment, it appears that ninety-five percent of all minors in Texas now notify a parent prior to the performance of an abortion.126 This represents up to a twenty-six percent increase in parental involvement over the rate of involvement prior to passage of the Texas Parental Notification Act.127
V. Opponents= Constitutional Challenges to Parental Notification
Unable to argue against the obvious benefits of parental involvement in most minors= decisions to obtain abortions, opponents of House Bill 218 have sought to defeat its passage with claims of constitutional infirmity.128 The federal constitutional claims are contrary to the holdings of the United States Supreme Court, and the state constitutional claims are speculative at best.
A. House Bill 218 Comports with Federal Constitutional Requirements
House Bill 218 meets all federal constitutional requirements. The United States Supreme Court has repeatedly stated that states are free to require parental involvement in a minor=s decision to obtain an abortion.129 While the United States Supreme Court has not ruled on the question of whether judicial bypass is required in a parental notification law,130 House Bill 218 meets the Court=s requirements for a constitutional parental consent law. House Bill 218 offers a minor unwilling to involve a parent a judicial process during which the minor may establish that she is entitled to consent to the abortion without parental notification.131 The bill also insures the minor=s anonymity in the proceedings,132 and guarantees that the proceedings are expeditious. Thus, there can be little doubt that the bill satisfies federal constitutional requirements.
B. The Absence of Vermont Constitutional Limitations on Parental Notification
Recognizing that federal constitutional law may provide no impediment to the passage and enforcement of House Bill 218, opponents have argued that A[t]here is good reason to expect that legislation like House Bill 218, whatever its fate under federal constitutional analysis, would likely be held unconstitutional under the Vermont Constitution.@133 Citing Baker v. State134 and In re G.T.,135 opponents have argued that House Bill 218 could run afoul of Astate constitutional privacy rights of minors@ since the Vermont Supreme Court is Areceptive to expanding state constitutional protections beyond those afforded by the federal constitution.@136 This objection is speculative at best.
In Baker v. State, the Vermont Supreme Court recognized a legal status comparable to marriage for same-sex couples. In explaining its reasoning, the court expressed its view that such a status was needed to protect the relationship of gay or lesbian parents to their children.137 The Vermont Legislature echoed this concern in its findings relating to the recognition of civil unions.138 Parental notification required under House Bill 218 advances this same interest in protecting the relationship between parents and children.
In re G.T. similarly fails to establish the likelihood that House Bill 218 is unconstitutional as a matter of state constitutional law. The Vermont Supreme Court explicitly declined to find a state constitutional right for teens to engage in consensual sex.139 Citing State v. Barlow,140 the court reiterated its opinion that the state had a compelling interest in protecting minors from statutory rape by adults:
We noted [in Barlow] concerns about the dangers of pregnancy, venereal disease, damage to reproductive organs, the lack of considered consent, heightened vulnerability to physical and psychological harm, and the lack of mature judgment among the many significant interests of the state. We also stressed our concern for protecting the well-being of minors from exploitation.141
The U.S. Supreme Court expressly relied on three of the last four factors in upholding parental involvement laws more stringent than House Bill 218,142 and the fourth factor is particularly supportive of parental notification in light of contemporary research establishing that a substantial number of teen pregnancies are the result of sexually predatory practices by adults.143
The New Jersey case of Planned Parenthood v. Farmer144 is the primary case opponents of House Bill 218 cite as support for their claim that an activist court might strike down the proposed law.145 In Farmer, the New Jersey Supreme Court ruled that a minor=s right to obtain a secret abortion outweighed the state=s interest in requiring parental notification.146 This case is sui generis in that it is the only case in the country to find that a properly-crafted parental notification law containing a judicial bypass offends the state or federal constitution. The opinion is even more peculiar in that the New Jersey Supreme Court rendered its opinion without the benefit of a trial on the merits, and overturned the law on the basis of what the court itself characterized as Aadvocates= affidavits.@147 This unprecedented New Jersey opinion hardly seems compelling evidence of what the Vermont Supreme Court would do if asked to determine the constitutionality of House Bill 218.
In short, opponents of House Bill 218 have no persuasive evidence that parental notification violates the Vermont constitution. The Vermont Supreme Court=s willingness to afford constitutional protections to same-sex unions has little predictive value in assessing the outcome of any prospective ruling on House Bill 218. Baker nonetheless suggests that the court will sustain legislative efforts to protect and promote the parent-child relationship.
VI. Nonconstitutional Objections: Evading Parental
Notification by Seeking Illegal or Out-of-State Abortions
During testimony before the House Health and Welfare Committee, an opponent of House Bill 218 argued that passage of parental notification would lead girls to Arisk their lives attempting an illegal abortion.@148 This is a phantom fear. Parental involvement laws are on the books in over two-thirds of the states, some for over twenty years, and there is no evidence that these laws have led to an increase in illegal abortions.149 Similarly, no case has established that these laws lead to parental abuse or to self-inflicted injury.150
Opponents also have argued that House Bill 218 will prove ineffective since teens will travel to neighboring states to avoid complying with parental involvement laws. Researchers have reached varied conclusions on how frequently this occurs.151 A comprehensive national study found Acrossing state borders to avoid parental involvement does not appear to be a common phenomenon.@152
Conclusion
This spring, the Vermont Senate will have the opportunity to capitalize on a rare piece of common ground between those who believe that human life should be legally protected from the moment of conception, and those who believe that abortion is a tragic, but necessary, choice that must remain available to women if sexual equality is ever to be achieved. A substantial majority of both groups in Vermont are confident that girls facing unplanned pregnancies will benefit from parental involvement. Their confidence is not misplaced. Medical research establishes that abortion is not a risk-free procedure. It can result in infection, physical injury, and emotional trauma. Parental involvement reduces each of these risks by insuring adequate medical care before and after the abortion. Parental notification also gives parents the necessary knowledge to intervene and protect their daughters when the girls are being sexually victimized. If enacted into law, House Bill 218 will insure that when their daughters face unplanned pregnancies Vermont parents will be among the first to help, instead of the last to know.
* Professor of Law, South Texas College of Law, Houston, Texas. The author testified in favor of House Bill 218 before the Health and Welfare Committee and the Judiciary Committee of the Vermont House of Representatives.
1. H. 363, 1993-1994 Leg. Sess. (Vt. 1994), http://www.leg.state.vt.us/docs/1994/bills/ intro/h%2D363.htm; H. 479, 1997-1998 Leg. Sess. (Vt. 1998), http://www.leg.state.vt.us/docs/1998/ bills/intro/h%2D479.htm; H. 450, 1999-2000 Leg. Sess. (Vt. 1999), http://www.leg.state.vt.us/docs/ 2000/bills/intro/H-450.HTM; H. 218, 2001-2002 Leg. Sess. (Vt. 2000), http://www.leg.state.vt.us/docs/ 2002/bills/house/H‑218.HTM.
2. Tracy Schmaler, Hard to Peg: Flory takes her own approach, Rutland Herald, Feb. 5, 2001, rutlandherald.nybor.com/To_Print/19729.html (AThe [parental notification] bill failed, though it is expected to be revisited by lawmakers this year.@). See also Letter from David Millson, Addison Eagle, October 21, 1999, www.addisoneagle.com/Archive/Comment/1099/Letters1021.htm (Awhy is the House Health and Welfare Committee waiting to bring the parental notification bill (H. 450) to the floor for full debate?@).
3. H. 218, May 11 at 16 (Vt. 2001), www.leg.state.vt.us/docs/2002/journal/hj010511.htm. For the favorable report of the Health & Welfare Committee, see House Calendar, March 1, 2001 (Vt. 2001), www.leg.state.vt.us/docs/2002/calendar/HC010301.htm (reporting favorable vote of 6-5-0). For the favorable report of the Judiciary Committee, see House Calendar, May 8, 2001 (Vt. 2001) at www.leg.state. vt.us/docs/2002/calendar/hc010508.htm (reporting favorable vote of 6-4-1). For an unfavorable report issued by the House Ways & Means Committee, see House Calendar, May 9, 2001 (Vt. 2001), www.leg.state.vt.us/docs/2002/calendar/hc010509.htm (reporting by vote of 7-4-0 that the bill ought not pass).
4. See Vt. Stat. Ann. tit. 18, ' 4226 (2000) (allowing a minor over twelve years of age to consent to medical treatment and hospitalization for alcoholism, drug, addictions, or sexually transmitted diseases unless immediate hospitalization is required); Vt. Stat. Ann. tit. 18, ' 9 (2000) (allowing blood donation by minors seventeen years of age).
5. In describing the rights of parents the Vermont Supreme Court has stated:
Parental rights and responsibilities are defined as those Arights and responsibilities related to a child=s physical living arrangements, parent child contact, education, medical and dental care, religion, travel, and any other matter involving a child=s welfare and upbringing.@ Rights and responsibilities are comprised of Aphysical responsibility,@ and Alegal responsibility,@ which is defined as Athe rights and responsibilities to determine and control various matters affecting a child=s welfare . . . includ[ing] but . . . not limited to education, medical and dental care, religion and travel arrangements.@
Shea v. Metcalf, 167 Vt. 494, 497-98, 712 A.2d 887, 889 (1998) (discussing the allocation of parental responsibilities in a divorce proceeding) (emphasis added) (citations omitted).
10. Journal of the House, May 10, 2001 (Vt.), http://www.leg.state.vt.us/docs/2002/journal/ hj010510.htm.
11. Journal of the House, May 11, 2001 (Vt.), http://www.leg.state.vt.us/docs/2002/journal/ hj010511.htm. Interestingly, the representatives initially proposing the idea of insuring adequate information and counseling of minors opposed the amendment to add the requirement to parental notification. ARepublicans responded later with an amendment identical to one offered the day before by Democrats. That amendment would effectively require health care and mental health providers to give objective advice and explanation to a teen-age girl seeking an abortion, even though health care professionals already do so under professional guidelines. The measure passed on a voice vote, even though the original sponsor of the bill, Rep. Margaret Hummel, D-Underhill, called for its defeat.@ Mike Eckel, House Passes Parental Notification Bill, Burlington Free Press, May 12, 2001 http://www. burlingtonfreepress.com/bfpnews/local/2000h.htm.
13. E.g., Planned Parenthood Federation of America, Policy Statement on Patients= Rights (adopted 1984), http://www.plannedparenthood.org/about/thisispp/mission.html; American Academy of Pediatrics, Committee on Adolescence, Counseling the Adolescent about Pregnancy Options, 101 Pediatrics 938 (1998), http://www.aap.org/policy/Re9743.html; Clinicians for Choice, Options Counseling: An Important Skill for All Clinicians, Clinicians for Choice Newsletter, (Aug. 2000), http://www.cliniciansforchoice.org/cfc/aug00.htm.
21. H. 218 ' 5278. The three business days requirement for ruling is more restrictive than the requirement of ruling within five business days approved by the United States Supreme Court in Ohio v. Akron Center for Reproductive Health (Akron II), 497 U.S. 502 , 513-14 (1990).
26. See Akron II, 497 U.S. 502 at 513 (anonymity of judicial bypass proceedings required); Causeway Medical Suite v. Ieyoub, 109 F.3d 1096 (5th Cir. 1997) (rejecting power of courts to notify parents of proceedings) overruled on other grounds by Okpalbi v. Foster, 244 F.3d 405 (5th Cir. 2001).
28. The judicial bypass process in Nebraska has Ano adversarial aspect@ as noted by the Nebraska Supreme Court. See Orr v. Knowles, 337 N.W.2d 699, 706 (Neb. 1983). AThis statute does not provide that the state or anyone else will contest the minor=s claim that she is mature enough to make the abortion decision herself. Rather, she will present evidence, and the judge will then make the decision as to her maturity.@ Id. See also Wallace J. Mlyniec, A Judge=s Ethical Dilemma: Assessing a Child=s Capacity to Choose, 64 Fordham L. Rev. 1873, 1891-92 (1996):
Because such a scenario does not involve judges= employing normal rules concerning proof in the litigation process, the result of these hearings is practically preordained: no opposing party challenges the evidence and the court, thus, bases its finding regarding the minor=s maturity either on the one-sided evidence presented, or on idiosyncratic biases.
Id. A trial judge in Nebraska observed:
There is nobody on the other side, unless a judge takes it on himself. Now I know of no other case that is like that, where it is truly one-sided. If after that one-sided hearing, the judge finds that the girl is mature and can give an informed consent, then the judge is required to authorize the abortion physician to perform the abortion.
Joseph W. Moylan, No Law Can Give Me the Right to Do What is Wrong, in Life and Learning V: Proceedings of the Fifth University Faculty for Life Conference 234, 235 (Joseph W. Koterski ed., 1995) (explaining Judge Moylan=s decision to resign from the juvenile court bench he had occupied for more than twenty years).
29. Akron II, 497 U.S. at 515-16 (italics and internal citations omitted). See also Lambert v. Wicklund, 520 U.S. 292, 294 (1997); State of Florida Dep=t of Health v. N. Fla. Women=s Health and Counseling Service, Nos. 1D00-1983, 1D00-2106, 2001 WL 111037 (Fla. App. 1 Dist., Feb. 9, 2001). Nebraska adopted the clear and convincing standard by judicial interpretation of the statute. In re Petition on Anonymous 1, 558 N.W.2d 784, 787 (Neb. 1997). Cf. Santosky v. Kramer, 455 U.S. 745, 748 (1982) (requiring clear and convincing evidence prior to termination of parental rights); Addington v. Texas, 441 U.S. 418, 423 (1979) (requiring clear and convincing evidence where possible injury to the individual is significantly greater than any possible harm to the state).
33. Parental Notification of Abortion: Hearings on H. 218 Before the House Comm. on Health and Welfare, 2001-2002 Legis. Sess. (Vt. 2001) [hereinafter Health Hearings] (testimony of Jamie Sabino, on February 20, 2001) (characterizing bill as a Ajudicial notification bill@).
35. AResponsible parents should be involved when their young daughters face a crisis pregnancy.@ National Abortion Rights Action League, Minors= Issues, www.naral.org/issues/issues minors.html (last visited Sept. 11, 2001). AFew would deny that most teenagers, especially younger ones, would benefit from adult guidance when faced with an unwanted pregnancy. Few would deny that such guidance ideally should come from the teenager=s parents.@ Planned Parenthood Federation of America, Inc., Teenagers, Abortion, and Government Intrusion Laws, Fact Sheets, at http://www.plannedparenthood.org/library/ ABORTION/laws.html (Aug. 1999).
Physicians should strongly encourage minors to discuss their pregnancy with their parents. Physicians should explain how parental involvement can be helpful and that parents are generally very understanding and supportive. If a minor expresses concerns about parental involvement, the physician should ensure that the minor=s reluctance is not based on any misperceptions about the likely consequences of parental involvement.
Council on Ethical and Judicial Affairs, American Medical Association, Mandatory Parental Consent to Abortion, 269 J. Am. Med. Ass