Repro Justice Lawyering in Action: How Gender Justice is Challenging Forced Parental Involvement Laws in Minnesota

Welcome to If/When/How’s fourth annual Youth Abortion Access Week! For the past few summers, we’ve been highlighting the excellent work of youth activists, legal professionals, clinic workers, and supporters around the country who are working to make forced parental involvement laws a thing of the past, mitigate the harms done by the judicial bypass process, and ensure that young people are able to access abortion care without barriers, shame, or stigma. 

If/When/How asked Jess Braverman, Legal Director at Gender Justice, to tell us how her organization is challenging forced parental involvement laws to ensure young folks in Minnesota have access to the care they need. For more background, check out our interview with The Lawyering Project, and read If/When/How’s latest state report on Minnesota’s forced parental involvement laws. 

If/When/How: Can you tell us a little bit about the cases you have that challenge forced parental involvement laws? 

Jess Braverman: Gender Justice and the Lawyering Project [editor’s note: read more about the Lawyering Project’s work with Gender Justice  on improving young people’s abortion access here] are challenging the constitutionality of Minnesota’s forced parental notification law. Minnesota requires all young people to notify both parents 48 hours prior to their abortion regardless of whether they know or have a relationship with both parents. A young person who does not want to notify both parents, or cannot do so, must go to court and ask permission from a judge before getting an abortion. This is part of a broader lawsuit challenging a number of Minnesota’s abortion restrictions, including a law that prohibits non-physician health care providers from providing abortions, a law that requires physicians to provide medically irrelevant information to patients seeking abortion care, and a law that singles out fetal tissue for mandatory burial or cremation.

If/When/How: Why include forced parental involvement laws in your legal challenges? 

JB: Young people need and have abortions, and should be able to do so without unnecessary stress, stigma. and harm. There are attacks on youth raging throughout the country right now. People are rioting at school board meetings because they don’t want youth to learn about racism and oppression. They don’t want young people to be transgender or nonbinary, so they are trying to make gender-affirming care for youth a crime. Minnesota doesn’t have comprehensive sex ed requirements for young people in schools to learn about their own bodies and sexuality, and many kids are given an abstinence-based education. Adults cannot control young people in this way without causing them serious harm – it is a recipe for disaster. In good news, Gender Justice recently won a ruling that, under the Minnesota Constitution, schools must allow young people to access locker rooms and bathrooms consistent with their gender identity. This is a huge win for Minnesota youth when it comes to bodily autonomy and fighting back against laws and policies intended to shame kids. Winning on the parental notification and judicial bypass law would be a great way to keep this momentum going for Minnesota youth.

If/When/How: What, if anything, is particularly challenging about including forced parental involvement laws in these suits? 

JB: I think the state will have a difficult time proving that this law successfully serves any compelling government purpose without being overly restrictive. At the same time, as a society we are so used to the idea that it is appropriate for adults to act as gatekeepers for young people when it comes to their bodies and their sexuality, rather than giving them the knowledge, tools, and emotional support they need to make decisions. When you couple this gatekeeping instinct with the idea that abortion is negative or shameful, you end up with a law that requires a young person to either track down an adult they have never met to tell them about their upcoming abortion appointment, or go in front of a complete stranger in a courthouse and ask for permission to access healthcare. When it comes to this law in particular, we really want to show how it is a reflection of the view that abortion is bad or shameful coupled with this misguided gatekeeping. This gatekeeping is fairly ingrained and it rears its head in areas outside of abortion care too. It leads us as a society to do harmful things to youth while claiming that what we are doing is in their “best interest.”

If/When/How: What is the advantage of challenging these laws in state court, like the case in Minnesota? 

JB: The Minnesota Supreme Court has ruled that the Minnesota Constitution provides stronger protections for abortion than the federal constitution. By bringing our lawsuit under our state constitution rather than the federal constitution, we continue to strengthen abortion protections at our state level and keep Minnesotans somewhat insulated from the abortion litigation that is constantly taking place at the federal level. When the Minnesota Supreme Court first ruled that our state constitution provides stronger abortion protections than the federal constitution, the judges said they were choosing to protect pregnant people in the state because “Minnesota has an interest in assuring those within its borders that their disputes will be resolved in accordance with the state’s own concepts of justice.” Through this lawsuit we can further establish that reproductive freedom is a Minnesota value and we can hold the court to its word.

If/When/How: What about forced parental involvement laws and the judicial bypass process are ripe for legal challenges? 

JB: Under the law, young people have to either notify one or both parents even if they know that doing so would compromise their emotional or physical safety, or go through the stress of standing in front of a stranger in a courthouse, who may not know much about abortion care or the young person’s personal life, and either explain themselves or be denied medical care. This causes unnecessary stress and delay during what is already a stressful time. We believe forcing youth to involve both parents in their decision to have an abortion is unnecessary, harmful, and unconstitutional. Young people are capable of making informed decisions about their own bodies, and of assessing the pros and cons of bringing one or both parents in on that decision. While young people often seek input from at least one parent when it comes to the decision to have an abortion, those who don’t have sound reason for not doing so.

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