Parental notice and consent for abortion: Out of step with family law principles and policies. (Comment).

In 1990, the U.S. Supreme Court in Hodgson v. Minnesota (1) allowed a state to require, with limited exceptions, notification of both parents before a young woman under 18 has an abortion, as long as the law provides a judicial bypass procedure. The judicial bypass permits the minor to petition a judge to authorize the abortion without her parents' involvement if the judge finds that she is mature enough to give informed consent or that notification is not in her best interests.

This article compares the requirement of parental involvement in a minor's abortion decision with family law and policies in other, related situations. It will show that the requirements regarding abortion are out of step with many of the general principles of family law.

Background

The Minnesota statute (2) upheld in Hodgson requires physicians to notify both parents of a minor's intention to have an abortion, unless the procedure is necessary to save the young woman's life, both parents have given their written consent to the procedure or the minor reports to the authorities that she has been sexually or physically abused by a parent. Notice to one parent suffices only if the other parent is dead or cannot be located after a "reasonably diligent effort." Thus, a divorced or separated parent, a noncustodial parent or even one who has never known the minor must be notified, unless the minor opts to use the judicial bypass.

The Supreme Court's opinion in Hodgson has two separate rulings. First, a majority that included Justices John Paul Stevens, William Brennan, Harry Blackmun, Thurgood Marshall and Sandra Day O'Connor struck down the law's absolute requirement that both parents be notified. This majority held that the blanket two-parent rule conflicted with the best interests of the minor, infringed on family autonomy and failed to foster the state's alleged goal of improving parent-child communication. In her concurring opinion, O'Connor noted that "Minnesota had offered no sufficient justification for its interference with the family decision-making processes." (3)

O'Connor, however, then joined the Court's other four members--Chief Justice William Rehnquist and Justices Anthony Kennedy, Antonin Scalia and Byron White--to produce the second ruling, namely, that with a judicial bypass the two-parent notice requirement is constitutional. She concluded that with the bypass, the statute did not so severely harm minors and their families as to be unconstitutional.

As Table 1 (page 32) indicates, 41 states have laws on the books addressing the issue of parental involvement in a minor's abortion. Only 17 states currently have laws in effect, (*) however; in the other states, the statutes have been enjoined or are not enforced. (The legal status of some of these unenforced laws may be reconsidered in the wake of the Hodgson decision.) Nine of the laws that are enforced require parental consent and five mandate parental notification. In addition to the Minnesota statute, laws in Arkansas, Massachusetts, North Dakota and Utah (+) require the involvement of both parents.