We Must Use Every Tool at Our Disposal to Ensure Abortion Access for Young People.

Welcome to our third annual Youth Abortion Access Week at If/When/How! We’re 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, ensuring that young people are able to access abortion care without barriers, shame, or stigma. 

By: Jessica Goldberg, J.D., If/When/How Youth Access Counsel, and Sara Ainsworth, J.D., If/When/How Senior Legal & Policy Director

Today, 37 states require a young person under 18 to get consent from or notify a parent before they can access abortion care. For those who cannot or choose not to involve a parent, there is the judicial bypass, a court process where a young person goes in front of a judge to argue for permission to get an abortion without involving a parent. 

For too long, the judicial bypass has been presented as a reasonable alternative to forced parental involvement laws. It is not. Young people need and deserve access to comprehensive health care, including abortion care. They need and deserve medically accurate information, support, and resources when they are faced with an important life decision – not barriers and delays. Unfortunately, when it comes to protecting abortion access, young people have for far too long been subjected to compromises and half-solutions, such as the judicial bypass — which is itself a barrier to abortion care which forces young people to navigate a labyrinthine legal system, share the most intimate details of their lives with strangers, and hope that the judges and lawyers they encounter use their best legal judgment, rather than use their religious or political beliefs to deny a young person the care they need. 

Young people have been demanding change — to have their bodily autonomy recognized not just by anti-abortion politicians but even by those who support abortion access who have too long relied on the courts alone to rule on matters of reproductive self-determination.. The unfortunate truth is that courts play an inappropriate gatekeeping role in determining whether an individual young person can access abortion, and have, for far too long, denied young people access to the care they are constitutionally entitled to either outright or in practice, because the judicial bypass system itself is so obfuscative, inconsistent across counties and states, and onerous.

Forced parental involvement in a young person’s abortion, and the use of “judicial bypass” to supposedly protect young people’s constitutional rights, dates back to 1976, when the U.S. Supreme Court decided in Planned Parenthood of Central Missouri v. Danforth that the state could not give a third party “an absolute, and possibly arbitrary, veto” over any person’s abortion decision. The judicial bypass was the Supreme Court’s “solution” in Belotti v. Baird (1979) to the problem of an absolute veto identified by the Court in Danforth.  But the reality is that forced parental involvement laws have always, and to this day, create real and significant barriers to abortion access for many young people, and the judicial bypass process does not mitigate that burden. In fact, the judicial bypass is itself a burden and barrier to abortion access. 

For too long, the judicial bypass has been presented as a reasonable alternative to forced parental involvement laws. It is not.

While the Supreme Court’s recent decision in June Medical v. Russo (2020)  was of course a relief and a reprieve to the immediate needs of people in Louisiana, the decision maintains a problematic status quo, including the multiple restrictions and barriers imposed on people under 18 who need abortion care. In fact, just two days after the June Medical decision, Florida became the sixth state to require both parental consent and notification. Now, young people who need an abortion in Florida must face not only a parent being notified, which can often have the effect of a veto, but also are subject to that parent’s actual veto over their decision to have an abortion — unless they can find their way to a courthouse and file a petition for a judicial bypass, a process now made even more convoluted and difficult by the new law. At the same time Florida’s expanded forced parental involvement requirements were going into effect, Tennessee passed sweeping abortion restrictions (which have already been enjoined by a court) that include the potential unraveling of a legal requirement that courts provide help to young people who need to navigate the judicial bypass process. 

We are also waiting for the first application of the ruling in June Medical to parental involvement laws in Box v. Planned Parenthood of Indiana and Kentucky, a case that includes a challenge to an Indiana law designed to significantly complicate the judicial bypass process while expanding the reach of forced parental involvement in a young person’s abortion decision. The Supreme Court remanded the case to the Seventh Circuit Court of Appeals for “further consideration in light of June Medical . . . .” 

While maintaining the broad status quo of abortion access, it is of particular concern with regard to young people’s access that Chief Justice Roberts’ concurrence in June Medical explicitly calls out and highlights forced parental consent and the judicial bypass process as within the bounds of reasonable restrictions. For the record, we disagree. Much of Justice Roberts’ concurrence is dedicated to reviewing the abortion restrictions upheld in Planned Parenthood v. Casey (1992), including parental consent. In Casey, the Supreme Court stood by its 1970s-era reasoning that parental consent laws are constitutional as long as there’s a meaningful judicial bypass process. 

But another aspect of Casey — where the Court looked at abortion restrictions in the context of the realities of people’s lives — serves as a much better model for understanding how parental involvement laws actually violate young people’s constitutional rights, and shows us how important it is that we all demand a culture change in favor of young people’s autonomy and human rights. In Casey, the Court did strike down one aspect of the challenged restrictions, a law that required spousal notification before a person could access abortion care. In holding that restriction unconstitutional, the Court considered social science research on the dynamics of intimate partner violence and the ways in which a spousal notification requirement would amount to an abusive spouse having effective veto power over a woman’s decision to have an abortion. The Court took pains to distinguish between the “dominion” parents have over their children and stressed that such dominion could not constitutionally be permitted by one adult over another, but the better analysis is that everyone — no matter their age — is unconstitutionally burdened by laws that ultimately give a family member veto power over their bodily autonomy and important life decisions. The fact that the Supreme Court in Casey centered its analysis of that restriction on the growing understanding of intimate partner violence gives us a glimpse into the pivotal role culture shift can play in changing the law. 

We cannot and we should not rely on the Supreme Court or any other court to protect abortion access for young people. Challenging parental involvement through litigation is a necessary tool, but it alone is insufficient without a cultural movement to demand abortion access for everyone. And sending young people to court to request abortion access when they cannot inolve a parent is not a meaningful workaround for young people — it’s another barrier that effectively gives a third party veto power over another person’s abortion decision. 

The courts are not the answer, but we the people can be the answer. Courts have denied young people’s equality of rights in practice, if not in name, for decades. So what can we do? First, we must shift culture to recognize the autonomy of young people. Second, we must understand that the courts are a place of meaningful change only if they too see young people as capable moral decision makers for whom forced parental involvement is an actual barrier. By- infusing social science research into these cases, we can potentially improve courts’ understanding of young people’s barriers, in the same way that social science about domestic violence helped the Court recognize what was wrong with the spousal notification requirement at issue in Casey. And public opinion and the leadership of lawmakers needs to shift too — which is why If/When/How is also working as part of the Youth Abortion Access Table with URGE and Advocates for Youth to build movement support to shift young people’s access from a neglected third-rail issue to a priority, leveraging our collective resources to make real gains in policy change, culture shift, and base-building.

Challenging parental involvement through litigation is a necessary tool, but it alone is insufficient without a cultural movement to demand abortion access for everyone.

Finally, but most importantly, we need to look to young people to lead in advocacy, rather than treating young people as a separate constituency who must be advocated for instead of with

At If/When/How, you can join us in shifting culture while supporting the young people who need support right now to navigate the barriers of parental involvement laws. Attorneys can join us in demanding an end to parental involvement laws by signing on to our open letter supporting young people’s abortion access. If you’re a lawyer, legal professional, or law student who wants to learn more about how to help young people seeking a judicial bypass, join the If/When/How RJ Lawyers Network here. If you’re a lawyer who already represents young people in court, reach out to us at [email protected] to become a contributor to our Judicial Bypass Wiki, our resource for young people and advocates. The movement to end forced parental involvement laws and support young people in getting the care they need needs all of us. 

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