In 1987, the California legislature enacted a bill allowing minors to give consent to medical care related to the prevention or treatment of pregnancy. The bill contained a concluding clause that prevented the bill from being construed as authorizing minors to receive an abortion without parental consent of at least one of her parents, her legal guardian, or the juvenile court. The court was charged with the responsibility of ensuring that the minor is "sufficiently mature and sufficiently informed to make the decision on her own regarding an abortion."
The American Academy of Pediatrics challenged the constitutionality of the provision shortly after the statute was enacted. Thus began a ten-year legal struggle in which every lower court that considered the validity of the statute determined that it violated the right of privacy guaranteed by the California Constitution. In the interim, the bill was not enforced and minors were free to obtain abortions without parental or judicial consent.
At the first trial, a superior court heard testimony from 25 witnesses concerning health care, adolescent development and the application of the judicial bypass procedure in other states. The Attorney General's Office argued that the state had a compelling interest in protecting the psychological and emotional health of minors and furthering the parent-child relationship.
The court found that the judicial bypass procedure inevitably delayed the minor's access to an early abortion, thus further jeopardizing her safety. Furthermore, the court found the evidence overwhelming that the legislation was counterproductive and detrimental both to the health of pregnant minors and to the parent-child relationship. A minor who chose not to tell her parents often had a valid reason to fear the consequences of disclosure.
The state of California appealed the decision, and it was upheld by the Court of Appeal. The Attorney General carried his long-term constitutional argument to the highest court in California, thus bringing the long-running conflict to its finale.
Holding: The legislation was struck down as being unconstitutional because "[t]he privacy interest in procreative choice does not vary based on the age or maturity of the pregnant woman whose choice is at issue." Health care providers should be trusted to determine whether the minor was capable of giving informed consent to an abortion.
The requirement that a minor go to court and reveal her condition to a judge imposed a substantially greater intrusion on her privacy than a requirement that she consult with her physician. The court also noted that nearly 98% of all judicial bypass requests were granted.
The state of California failed to show an adequate justification for its intrusion upon the privacy of its minors. However, the Court refrained from applying its holding to girls under the age of 14.
Editor's Note: According to Stephanie Wald, assistant attorney general, the case is over. No further appeals are planned. In contrast, the federal courts have upheld the state's right to compel minors to obtain parental or judicial permission in at least eight cases.
The privacy interest in procreative choice does not vary based on age.
| Rayna Rogers, D.O. Associate Professor of Child Psychiatry Univeristy of California |
Dr. Rogers comments: Though it validated the important psychiatric point that minors tend to vary a great deal in their cognitive capacities, the Court overlooked a critical issue: Most teenagers lack the capacity to consent to parenthood. By comparison, consenting to a medical abortion requires a fairly low level of understanding.
The vast majority of teenagers can comprehend the physical and psychological consequences of abortion. Much more difficult is the capacity to knowingly accept the risks of childbirth, including subsequent parenthood. Most adolescents do not have the ability to comprehend what it means to subsume one's own desires and interests in favor of their offspring for two to three decades in the future. Even those girls who have provided child care for their siblings or neighbors cannot usually conceptualize the notion of continuous responsibility for a very demanding creature.
Many adolescent girls over-value the idea of having a baby because they think of it as a way to guarantee love. The baby is seen as someone who will love them and meet their needs, instead of the other way around. These young girls often believe that being pregnant and giving birth is a way to secure their boyfriend's allegiance, to get "one up on their own mothers, to obtain status in a delinquent gang by producing a child for one of the dominant male gang members, and sadly, often as a "way out" of a life of dependency on family members who may be quite toxic. Many girls of limited intellectual or socioeconomic means learn to see motherhood as the only "career" for which they will ever be qualified. As they experience more and more failure in school, work and social settings, the idea of becoming a mother appears irresistibly attractive.
I propose that parental consent be required for minors who choose to carry their pregnancies to term, but not for those who choose abortion. In most cases it is the teenager's mother or grandmother who will have to raise the baby produced by an incompetent teenager. The parents of the pregnant teen should at least have a fair warning that their daughter is about to deposit a grandchild in their laps. If the teenager feels that notification of her parents might jeopardize her, then she should have the option of a judicial bypass. The judge can then make a determination as to whether the adolescent is competent to consent to parenthood.
It is sadly ironic that girls who are competent to understand what parenthood truly entails are the ones who choose abortion or adoption. Teen mothers who blithely proceed from one pregnancy to another can safely be assumed to lack the capacity to be an adequate parent. The courts must begin to realize that it is motherhood, not abortion, which requires the greater decisional competence.
