A Democrat and a Republican Ignore Science to Mandate Ill-Conceived Parental Consent for Abortion

Two governors, a Democrat and a Republican, have signed ill-conceived laws mandating parental consent for abortion.

West Virginia Gov. Jim Justice (D); Indiana Gov. Eric Holcomb (R) Scott Halleran/Getty Images, Scott Olson/Getty Images

Last week, the governors of both Indiana and West Virginia signed legislation making it harder for people under 18 years of age to access abortion by mandating parental consent. Approval for these bills came just four months after the American Academy of Pediatrics (AAP) released a policy statement strongly opposing these and other restrictions on adolescent access to abortion care because of the well-documented adverse health and social consequences of such laws.

That a Republican (Indiana) and a Democrat (West Virginia) signed these bills shows that neither party can be trusted to adhere to evidence and facts when it comes to reproductive health care. Each of these bills became law despite the weight of public health and medical evidence against them, despite evidence of social costs imposed upon and human rights concerns for teens implicated by them, and despite opposition to such laws by major medical bodies, lawyers, and advocates for teens.

Parental consent laws represent a solution to a problem that does not exist and are thinly veiled efforts to erect higher barriers to timely abortion care. AAP states, for example, that while most adolescents do involve their parents and other trusted adults in decisions regarding pregnancy termination, and most do so voluntarily, there is no research to support the notion that “forced disclosure results in improved parent-child relationships, improved communication, or improved satisfaction with the decision about the pregnancy outcome.” Research cited by AAP does show that in most states without parental involvement laws, the majority of teens seeking abortion did confer with at least one parent. Among minors who did not involve a parent in their decision-making about their pregnancy, virtually all involved at least one responsible adult other than clinic staff (e.g., another relative, or a teacher, counselor, professional, or clergy person).

Research also shows that voluntary communication between teens and parents about reproductive health decisions involves many factors, including a lifelong foundation of good communication between parents and children, family structure, class, income, and educational attainment. In other words, you can’t mandate communication if the foundations of trust have not been built over time.

Assumptions inherent in these laws about who conveys “authority” in the life of a teen also are often wrong. A study cited by AAP, for example, among Black pregnant teenagers younger than 18 years living in racially segregated communities, showed that over 91 percent of these teens voluntarily consulted a parent or “parent surrogate” about pregnancy decisions. In this study the “parent surrogate” figures were most often a grandmother, aunt, or other relative who had in fact parented and raised the teen or with whom she lived. AAP states:

The importance of parent surrogates and extended families is significant when assessing the impact of attempts to legislate family communication. Most notification clauses are restricted to traditional definitions of biological parents or legal guardians and fail to address the complexity and diversity of modern family structures and adult support systems relevant to adolescents. For a minor who is willing to involve parents or parent surrogates in her abortion decision, legislation adds no benefit and actually may impede appropriate family communication channels if, for example, a parent is notified before the adolescent has a chance to raise the issue with her parent(s).

Although non-parental adult figures—such as aunts, uncles, cousins, or grandparents—may be the most likely confidant in the life of a teen, these surrogates are not included among those with legal authority to consent under laws like those in Indiana and West Virginia.

“Legislation mandating parental involvement does not achieve the intended benefit of promoting family communication,” AAP states. These laws do, however, increase “the risk of harm to the adolescent by delaying access to appropriate medical care.” The longer someone is forced to wait to terminate a pregnancy, the longer they have to wait for care and advice from a health-care professional and the further along they are when they do have an abortion. Compounded by the fact that young people often realize later than adults that they are pregnant, time is often of the essence: Studies increasingly show that being denied or being forced to delay an abortion can negatively affect emotional and psychological health. Such requirements also may put the teen at risk of violence from a family member.

Those teens who do avoid consulting a parent on intimate and life-changing decisions often have good reason. They may have experienced violence in their homes; may be disconnected from their parents due to abandonment, parental addictions or imprisonment; may be victims of sexual abuse, sometimes at the hand of a parent; or otherwise justifiably seek to make this decision without the involvement of their natal parents.

AAP’s findings are supported by the American Medical Association, the Society for Adolescent Health and Medicine, the American Public Health Association, and the American College of Obstetricians and Gynecologists, all of which strongly support confidential health care for minors and oppose parental consent mandates.

Irrespective of these realities, two prominent narratives have been used to garner support for these laws. One claims that young people are not competent or mature enough to make this decision on their own. As AAP points out, generally speaking teens are not legally required to involve a parent or guardian in the decision to continue a pregnancy, give birth, or parent a child, no matter the age of the teen in question and despite the lifelong implications of such responsibilities for the teen and their educational and economic prospects.

The second argues that family communication will be improved if parents are required to be involved in this decision. As the AAP review shows, these assumptions have been disproven by research.

Still, despite all this, on April 26, West Virginia Gov. Jim Justice (D) signed the new law, further restricting the rights and health of pregnant teens in his state. Under previous state law, physicians could use their judgment to waive parental consent for teens seeking an abortion. The new law requires instead that parents or guardians be notified at least 24 hours before an abortion. Minors who choose not to involve their parents now must appear before a judge to seek a waiver. A compromise to include psychologists and psychiatrists among those who could provide a waiver failed, though advocates were able to prevent amendments imposing legal penalties on physicians deemed not to have followed the law.

In a telephone interview with Rewire, Margaret Chapman Pomponio, executive director of West Virginia FREE, a reproductive rights organization that opposed the bill Justice signed into law, noted that attorneys and judges in the state agreed that the physician waiver was critical because it “is much more appropriate in protecting the health and safety of women.” Chapman Pomponio also stated:

The reason the physician waiver needed to be protected was because a physician can meet with a young woman in a private personal setting and really have the skill set to assess her record and personal situation in a way that a judge is not equipped to do …. By removing the physician safeguard and subjecting a young woman to the judicial system, she could end up before a judge who is politically motivated to deny any waiver request.

In telephone interviews with Rewire, women’s rights advocates in West Virginia voiced deep dismay that the governor signed the bill. In a meeting she was invited to by the governor, Chapman Pomponio said, advocates were assured by Justice of his support for a woman’s decision making about reproductive health care without government interference. Moreover the same anti-choice groups that attacked him during his gubernatorial campaign actively supported this legislation.

Signed by Gov. Eric Holcomb (R) on April 25, Indiana’s new law is even more onerous than West Virginia’s. Existing Indiana law requires that a parent or guardian provide written consent for a teen to get an abortion. Currently, in order to avoid this consent, young people are allowed to get a waiver from a judge through a process known as a “judicial bypass.” However, when the new law takes effect on July 1, even if a judicial waiver is sought and granted the parent still needs to be notified. In a phone interview, Shelly Dodson, center director at All-Options Pregnancy Resource Center in Bloomington, Indiana, told Rewire “It’s undoing the very thing that it’s supposed to do by providing minors a safe and additional option to access the abortion care they need when they don’t feel they can for a variety of reasons tell their parent or guardian …. you’re providing a judicial bypass option but then you’re telling the parents, which nullifies the whole point of having a judicial bypass option.”

Indiana’s law does not provide exemptions for minors experiencing medical emergencies or pregnancies that were a result of rape, incest, or abuse. Further, physicians who refuse to comply with this law in Indiana would be charged with a class A misdemeanor and could lose their medical license.

Beyond this, the possibilities for moving forward with confidential abortion care are grim and force young adults to seek judicial bypass. Obtaining a judicial bypass is a long process that involves requiring the minor to navigate the court system. In doing so, they must divulge private information about themselves to a judge and to court staff as well as undergo a court proceeding. This creates significant hurdles particularly for low-income and LGBTQ teens, and undocumented people, who often find it difficult to access abortion care even without a state-mandated court visit.

While ultimately, a judge can decide if the minor is mature enough to make the decision without parental involvement, all of these steps require lawyers, documentation, and time during which the pregnancy advances and the teen’s prospects are affected. Beyond the numerous examples where minors have ultimately been denied bypass, in some cases because of a judge’s own beliefs, the American Academy of Pediatrics warns that seeking and receiving a judicial bypass comes with its own health risks due to mental health and other concerns, as well as increased costs and increasing risks to teens. Many legal experts believe that judicial bypass requirements ultimately fail the “undue burden” legal test. These laws often have the effect of delaying what might have been a very early abortion—say before six, eight, or ten weeks—into the second trimester.

Access to abortion in West Virginia and Indiana is already highly restricted. For example, a waiting period is required in both states, and each also prohibits abortion past 20 weeks unless the pregnant person’s health or life is in danger. Former West Virginia Gov. Earl Ray Tomblin vetoed the ““Pain-Capable Unborn Child Protection Act” bill, a 20-week ban based on false claims about so-called fetal pain by anti-choice groups; the veto, however, was overridden by the state legislature and the law is currently in effect. While governor of Indiana, Vice President Mike Pence also further restricted access to abortion in his state. As Rewire noted last year, he “eagerly signed laws aimed at criminalizing abortion, forcing women to undergo unnecessary ultrasoundsbanning coverage for abortion care in private insurance plans, and forcing doctors performing abortions to seek admitting privileges at hospital.”

Just like other laws promoted by anti-abortion legislators and organizations—such as forced waiting periods, forced ultrasounds, and forced counseling (which new research shows don’t work as ostensibly intended)—mandatory parental involvement laws and their accompanying judicial bypass process force delays in timely medical care for no other purpose than to promote forced gestation. According to AAP, “Once the minor presents for pregnancy counseling, mandatory parental involvement laws can delay medical care further. For example, after enactment of such statutes in Texas, second-trimester abortion rates among 17-year-old adolescents increased by 21%.”

Now with even more states attempting to or already passing bans on abortions after 20 weeks, young people hoping to obtain confidential abortion care face increasingly restrictive timelines to jump through the multiple hurdles put in their way and receive timely abortion care.

Ultimately, the American Academy of Pediatrics has found that most adolescents are happy and content with their abortion decision if they can make it on their own or under the supportive circumstances of their choice. Nonetheless it is clear that junk science continues to inform legislation supported by leaders of both parties, and neither party can be trusted to ensure policies are based on the overwhelming weight of public health, medicine, or social science evidence.