Pregnancy, teenagers and the law, 1976.

A number of significant developments have occurred since June 1974, when the authors last reviewed state laws and policies affecting the right of teenagers to obtain sex-related medical care on their own consent. (1) At that time, liberalization of state laws to affirm the right of young people to consent for their own contraceptive and other medical care, and, in particular, reduction of the age of majority to 18 in most states had established the right of 18-year-old unmarried women to consent for most aspects of their own medical care, including contraception, in at least 45 states and the District of Columbia. In 48 states and the District, they could consent for most pregnancy-related health services and for abortion.

Young people under 18, however, still faced considerable difficulty in obtaining medical contraceptive services, and even greater difficulty in terminating an unwanted pregnancy without parental consent. Only 23 states and the District of Columbia had specifically affirmed the right of these younger teenagers to obtain contraceptive care; 16 states and the District had affirmed their right to consent to abortion; and 11 states had affirmatively established their right to consent to medical care in general.

The past 18 months have seen a continuation of the trend toward liberalization of laws that affirm the right of young people to consent for their own contraceptive care, as well as the trend toward reducing the age of majority from 21 to 18. State legislatures have not looked with equal favor upon the right of minors to consent for their own abortions, and seven states have enacted new legislation requiring parental consent for abortions for unmarried minors. Courts all over the country, however, have (with one exception) invalidated such legislation, holding that a pregnant minor has a constitutional right to make the decision, in consultation with her physician, whether to terminate a pregnancy or carry it to term (see discussion below, p. 19).

Thus, by the end of 1975, it was established that an 18-year-old unmarried woman could consent for all aspects of her own medical care, including contraception, in 46 states and the District of Columbia. (*) In 48 states and the District, she could consent for most pregnancy-related health services and in 49 states and the District, for abortion. (+) (See Table 1.)

Twenty-six states and the District of Columbia explicitly affirm by statute or court decision the right of young people under the age of 18 to consent for contraceptive care; and in 25 states and the District, girls under 18 may obtain abortions without parental consent. With passage of legislation in Wisconsin in 1975, (2) all 50 states and the District now have statutes that establish the right of persons younger than 18 to consent for treatment of venereal disease (see Table 1). Of course, as pointed out in our previous article, the fact that there is no specific affirmative statute or decision in any state does not mean that minors in that state cannot consent to contraception, abortion and other pregnancy-related treatment. Indeed, in many if not most of these states, there is reason to believe that teenagers who have the capacity to give informed consent may consent to all sex-related medical care.

Informed Consent

In our earlier article, we stated that the problem faced by minors seeking medical services stems mainly from physician anxiety concerning the old common law (or judge-made) rule that the consent of a parent or guardian is required before a doctor may provide any kind of medical treatment for a minor. We pointed out that there have always been exceptions to that rule, such as treatment in cases of medical emergency and treatment of minors who are legally emancipated. We discussed the development in recent years of a new exception for the minor who is sufficiently intelligent and mature to understand the nature and consequences of a treatment which is for his or her benefit; and we pointed out that this exception, commonly called the "mature minor doctrine," may be viewed as a logical corollary of the requirement of informed consent for medical care. Before a patient makes a decision about medical treatment, he or she is entitled to a full explanation of the nature of the proposed treatment, its risks, its lim itations and its alternatives. A minor cannot give informed consent unless he or she is sufficiently intelligent and mature to understand the explanation. This may depend in each case on the nature and seriousness of the medical treatment involved. For example, a federal judge recently pointed out that "many girls of childbearing age are undoubtedly sufficiently aware of the relevant considerations to use temporary contraceptives." Such girls, he pointed out, are legally competent to use contraceptives even though they may lack the knowledge, maturity and judgment to consent to a permanent sterilization operation. (3)