Caroline Reilly, If/When/How Intern
The foundational principle of reproductive justice is intersectionality. This means that in our efforts to fight for reproductive rights, we must ensure that our work addresses the needs of the most marginalized populations in society, and that it fully appreciates the way class, race, religion, disability, sexuality, and gender identity intersect and impact access to things like abortion and contraceptive care. It also includes addressing the ways in which minors are marginalized.
Parental involvement laws exist in 37 states. This means if you’re one of the half a million minors who experience a pregnancy every year in the United States and you want to terminate your pregnancy, there’s a good chance you either have to notify or obtain consent from a parent, or go to court for judicial bypass – arguing that you should be able to terminate your pregnancy without parental oversight. These laws enjoy support from the courts, Congress, and voters on the right and the left side of the aisle.
The Supreme Court has long upheld parental involvement laws, as long as they allow for a judicial bypass option, arguing that minors lack the capacity to make abortion decisions, and that these laws ensure familial cohesion. They also argue that parental involvement laws safeguard minors from what the justices see as the medical and psychological “consequences” of abortion.
However, it is arguable whether familial cohesion is at risk and minors must be shielded from consequences. Most minors discuss their abortion decisions with their parents. A study of minors living in states without parental involvement laws found that over 60% of those surveyed discussed their abortion decisions with at least one of their parents. Minors who don’t tell their parents about their abortion decisions often do so because they are afraid of abuse or other kinds of repercussions. Additionally, statistics show that abortion is an incredibly safe medical procedure, and no provable correlation between abortion and mental health issues exist in minors or adults.
Judicial bypass, which is many minors’ only option, can be a cumbersome and humiliating process for a young person experiencing an unwanted pregnancy. They can be incredibly confusing and courts are often not prepared to handle the cases. These laws can also force minors to travel out of state for their abortions, which can delay access to the procedure.
Parental involvement and judicial bypass laws not only disadvantage all minors; they further burden those who are marginalized in other ways. For example, minors living in foster care experience confusion about whether the state or the foster parents can provide consent or notification, meaning that many automatically default to the judicial bypass process. Additionally, not only are bypass laws and procedures confusing and difficult to navigate for all minors, they can be impossible for those who don’t speak English.
Parental involvement laws are framed as child protection laws, but this couldn’t be further from the truth. At their most innocuous they are an unnecessary nuisance, but at their worst they put minors in harm’s way. This issue is integral to reproductive justice, because these laws place burdens on minors not only because of their age, but also because of other ways in which they are marginalized.
If/When/How is committed to mobilizing its network of law students and attorneys to work on issues related to parental involvement laws and judicial bypass. To find out more about our program and how you can get involved, click here.