Repro Justice Lawyering in Action: How the Lawyering Project is Challenging Forced Parental Involvement Laws in Courts Across the Country

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 Melissa Shube to tell us how she and her colleagues at The Lawyering Project are challenging forced parental involvement laws and TRAP laws, and helping to build a world in which everyone, including young people, has access to the care they need.

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

Melissa Shube: On behalf of our clients, the Lawyering Project has brought what we refer to as “comprehensive cases” in Minnesota, Texas, and Indiana that include challenges to forced parental involvement laws as well as targeted regulation of abortion providers (“TRAP”) laws, laws that deny abortion patients the benefit of scientific progress, biased counseling and waiting period laws, and laws that impose criminal penalties on abortion providers. 

In Minnesota, the Lawyering Project and Gender Justice represent an abortion provider, an advanced practice clinician, an abortion fund, and a religious congregation in a case filed in state court in Ramsey County that includes a challenge to Minnesota’s two-parent notification law. The two-parent notification law requires pregnant young people to notify both parents that they intend to obtain an abortion, even if they live with only one parent or have a relationship with only one parent. In practice, this forces some young people in Minnesota to obtain a judicial bypass even if they have the support of one parent. The case is ongoing, and we expect that it will go to trial next summer. 

In Texas, the Lawyering Project represents abortion providers and a coalition of Texas abortion funds in a comprehensive case filed in federal district court in Austin. The lawsuit includes a challenge to Texas’ parental consent requirement, parental notice and 48 hour waiting period requirements, as well as restrictions that make it more difficult for young people to obtain a judicial bypass. We are waiting for the court to issue a decision on the Defendants’ motion to dismiss. 

In Indiana, the Lawyering Project represents abortion providers and a pro-choice pregnancy resource center in a case filed in federal district court in Indianapolis. The case included challenges to Indiana’s parental consent requirement and restrictive judicial bypass requirements. Unfortunately, the judge granted summary judgment on our claims involving forced parental involvement, which means they are no longer part of the case. But we were able to go to trial on our remaining challenges to other abortion restrictions and are expecting a decision within the next few months. 

The Lawyering Project also represents Jane’s Due Process, an organization that helps young people navigate parental consent laws and access abortion and contraception in Texas, as well as a number of abortion funds, in a challenge to a Texas abortion law, that, among other things, would ban abortions after six weeks and prohibit aiding and abetting such abortions. Although this is not technically a forced parental involvement law, the Texas law would have a devastating impact on young people seeking abortion care.    

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

MS: Youth access is an important part of abortion access. Forced parental involvement laws delay access to abortion care and make it more difficult, and sometimes impossible, for young people to access abortion care, without providing any benefits. This is because most young people voluntarily involve a parent or trusted adult in their decision to have an abortion. And we know that those who don’t involve their parent or parents usually have good reasons not to do so, including that their parents are not involved in their lives or they reasonably fear violence or abandonment by their parents. 

Although the laws we are challenging have judicial bypass provisions, judicial bypasses pose additional barriers to abortion access. Having to navigate the court system and ask a judge for permission to have an abortion can be very difficult and for some pregnant people, traumatizing and stigmatizing. This is true even though there are organizations that do incredible work helping pregnant young people navigate the judicial bypass process. 

In addition, as with all of the laws we challenge, the burden of forced parental involvement laws falls disproportionately on pregnant people who are also low-income, people of color, immigrants, and who experience other forms of marginalization. 

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

MS: A few things come to mind. 

First, in all of our cases, we want to make sure we are lifting up the perspectives of the people who are most impacted by the challenged laws. Here, that would be young people who are impacted by forced parental involvement. But we are very wary of the burdens that providing this kind of testimony or getting involved in this litigation requires of young people, so it can be tricky to meaningfully engage young people in litigation without jeopardizing their privacy or asking them to relive a difficult experience. 

Another challenge involves messaging around parental involvement. Some people who may otherwise oppose abortion restrictions support forced parental involvement. Perhaps they have a hard time imagining that a parent would be unsupportive or violent, or perhaps they do not realize how difficult and traumatic it can be for a young person to have to go in front of a judge in order to obtain judicial bypass. For this reason, we want to show that even though many young people voluntarily involve a trusted parent in their abortion decision, laws that force this involvement are harmful. And we can point to research on parental involvement laws and to the many prominent medical organizations that oppose these laws.  

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

One advantage is that Minnesota has stronger state constitutional protections for the right to abortion than the federal constitution. This means the court has to take a harder look at abortion restrictions, including the forced parental involvement law that we’ve challenged in Minnesota. This is an advantage both because of how protective the Minnesota constitution is, and because it means that the litigation may be less impacted by any potential setbacks in federal law. 

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

MS: There’s been a lot of research and advocacy in this space, including by If/When/How and many other organizations that help young people access abortion care. The research demonstrates in concrete ways that these laws are harmful. It gives us a really strong jumping off point to show the courts that these laws are unconstitutional and have to go.

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