J ennifer Dalven, the American Civil Liberties Union attorney who will argue for Planned Parenthood in the New Hampshire parental-notification case that hits the Supreme Court today argues that the case for parental notification “is a radical argument with dangerous consequences for women’s health,”
The “radical argument,” however, is on Dalven’s side.
In an amicus brief written for the Family Research Council on the New Hampshire parental-notification case the U.S. Supreme Court hears today, Notre Dame’s Gerard V. Bradley and Princeton’s Robert P. George take a look at a fundamental problem in a circuit court’s nixing of the Granite State’s sensible law: The (first Circuit) court, they write, “closed its eyes to the radical difference between minors and adult women.” They note that “It is the difference which this Court has on many occasions endorsed as the basis for abortion regulations which discriminate sharply between girls and women. Casey upheld parental notice and consent provisions, because they are “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. We cannot adopt a parallel assumption about adult women.”
What if there is a “medical emergency” though? All the more reason for a parent to be at least notified.
To give a clearer picture of who this New Hampshire law is dealing with and why, Bradley and George introduce “Jane,” a pregnant teenager who would need parental permission to go on a field trip. So, of course, she would at least have to notify her parents before making the life-changing decision to end her pregnancy. (And, as Bradley and George write, if the Supreme Court pays attention to its own Casey precedent, they’ll agree.)
Here’s a portrait of Jane from the brief. The whole thing is worth reading, though, and can be here.
“Jane”–The Typical Unemancipated Teenage Girl at the Heart of This Case—Described
So far we have not really described the lead character in this story. So far we have referred to her generically as an “unemancipated minor” or as a “pregnant teen.” We can, however, put a more human face on our subject. We can flesh out the characteristic person that the New Hampshire statute covers.
Let us call her “Jane.”
Jane is close to her sixteenth birthday, or has just turned sixteen. She is beginning her sophomore year of high school. She is most likely to live with her two parents at home. She is probably a low achiever in school, and a serious dropout risk.12 Due to the recent downturn in the teenage job market, Jane is unlikely to be employed during the school year or even be able to find a summer job at the end of her sophomore year. If Jane is lucky 1enough to find employment, her earning potential as a high school student will be very low: even with full-time employment Jane will be unlikely to bring in more than $1300 a month, or $15,600 a year. Finally, Jane is likely to believe that she does not have the ability to change her circumstances and will fail to understand how her personal choices affect her quality of life.
Here is Jane, as our law sees her.
Jane is free to entertain the opinions and to hold the convictions of her choosing. But her actions upon them are limited by laws which either require her parents’ consent before acting, or deny her the freedom to act altogether. In these situations the rest of the adult world acts at its legal peril. With prescription drugs, alcohol, sexual relations, financial transactions, medical treatment, and more: the law’s message is unmistakable: Jane is no free agent. No solo flights allowed. Caveat maiores. This customer (patient, seller) operates under parental supervision–or not at all.
Jane’s body is not entirely her own. Even with activities just slightly dangerous to her health–such as providing an aspirin or transporting her on a field trip–school officials across the nation must obtain the consent of her parents before acting. Laws throughout the country require parents’ consent to such activities as body piercing or tattooing. Many states prohibit Jane from using artificial sun tanning facilities without her parents’ written consent. In at least one state, school administrators must have a parent’s note before they are allowed to apply sunscreen to Jane. Regarding abortion–a surgical procedure involving a much greater health risk to Jane than sun tanning or providing an aspirin–at least forty-four of the fifty states have laws which require some form of parental involvement.
The law presumes Jane’s immaturity in many other areas, too. All 50 states and the District of Columbia deny Jane the ability to make a valid will and will allow her to void an otherwise valid contract. Forty-seven states and the District of Columbia prohibit her from participating in lotteries, bingo games and/or pari-mutual betting, while ten states prohibit Jane from engaging in many other forms of gambling. The use of alcohol and tobacco by Jane is prohibited in all 50 states. Forty-six states and the District of Columbia restrict the delivery of many types of firearms and/or prohibit the possession of certain firearms by Jane. Jane cannot drive a car free of all restrictions in 42 states until she is 18, and many states also prohibit transactions between pawnbrokers and Jane.
The law’s wariness of Jane’s decision-making extends to constitutionally protected activities. Forty-seven states either absolutely prohibit the sale or delivery of pornography to Jane or only allow sale or delivery if her parents consent. Her ability to freely associate is significantly curtailed, as four out of five U.S. cities with a population of more than 30,000 impose a nighttime curfew for anyone under 18.
All these laws illustrate what this Court has often recognized: compared to adults, Jane’s capacity for reasoned judgment and for understanding and appreciating the full consequences of her choices is much diminished. As this Court has reaffirmed just recently, “any parent knows [that a] ‘lack of maturity and an underdeveloped sense of responsibility are found in youth more often than in adults and are more understandable among the young. These qualities often result in impetuous and ill-considered actions and decisions.’ “
Common sense confirms the law’s tutelage of Jane. (Ask any parent.) Science confirms the law’s wisdom as well. Recent studies comparing teenage and adult decision- making have found that when asked to evaluate hypothetical decisions, teenagers were less likely than adults to mention possible long-term consequences, to evaluate both risks and benefits, and to examine possible alternative options.32 In these studies adults performed significantly better regarding the ability to weigh options available and resolve an issue than teenagers like Jane.
Jane’s reduced ability to assess probability is one factor in her poor decision-making.34 Her lack of life experience is another. She habitually fails to see the consequences of a particular course of action. The ill-effects of her shortsightedness are aggravated by Jane’s typically high sensitivity to peer influences. State parental notification laws, then, just make compulsory what science and common experience already tell us: the best interests of Jane lie in having her parents involved in her decision-making process.
V. “Jane” Faces the Decision of Her Life.
Now Jane faces the most difficult and unnerving decision of her young life. She is pregnant, perhaps “surprisingly” so. She is by definition unmarried; a teenager who marries is thereby “emancipated” under the New Hampshire law. No spouse is on hand with whom Jane can share her thoughts. None is there to care for Jane, or for the child. Jane is considering abortion; at least she is in touch with a doctor willing to perform one on her. But no matter what she thinks or feels or says, she has not chosen to abort. For she cannot: the law treats her desire for an abortion as tentatively as it does her wish for a tattoo, for her own checking account, for surgery: none of these can she choose for herself. Her parents must be involved.
Doctors inform Jane that her pregnancy and expectant motherhood–challenging and rattling as they are–are complicated by a serious health risk which, doctors say, has to be dealt with now. Delay of even two days, they say, is dangerous. Though she is free to call out to her parents for help, Jane does not wish to do so, at least not
yet.
The doctors keep telling her to choose now. They are not proposing only a major medical procedure on her. That would be a big enough deal. If that were all there was to it, there would be no interesting legal question: in any other medical context, the doctors would have to obtain her parent’s consent, or submit their best medical judgment to the tender mercies of emergency treatment laws. The distinguishing factor which takes this decision so utterly beyond her ken is that it will kill the child in utero. Jane carries a life within. She now holds it in her hands. In this unsurpassably portentous setting, fraught with danger to mind, body and spirit what is the outer limit of the law? What help for Jane and her family does the Constitution permit? What assistance is absolutely ruled out? Is New Hampshire’s handling of it within the field of acceptability? Or without?
Once the phony comparison to adult women is abandoned, and when we accept that abortion jurisprudence swings at an oblique angle from the case of the pregnant minor, one thing is for sure: comparisons to the adult world have nothing to say about it.
When you get beyond the hot-button abortion issue packaging in today’s news coverage, you realize why a majority of Americans when polled tend to embrace parental-notification laws. It’s just good sense that folks on both sides of the abortion debate can see it as–especially parents.