Comparisons between today’s political climate and Margaret Atwood’s The Handmaid’s Tale are frankly overwrought. The realities of Gilead are already very much the realities for many marginalized communities in the United States, and we don’t need some fictionalized society to remind us that the powers that be are horny for the subjugation of women.
But every once in a while, some anti-abortion politician does something that’s almost too on the nose in its Gilead-like quality—the kind of scenario that would feel heavy-handed if it were scripted.
Spousal consent laws for abortion are that kind of scenario. Just ask lawmakers in Tennessee.
Last week, state assembly members introduced a bill that would give men who get someone pregnant veto power over the pregnant person’s abortion. And if the pregnant person goes ahead with that abortion anyway? They could be held in criminal or civil contempt of court. There are no exceptions for rape or incest—because what could be more pro-life than that?
Roe has collapsed and Texas is in chaos.
Stay up to date with The Fallout, a newsletter from our expert journalists.
Laws like this are unequivocally unconstitutional. And sure, it’s annoying that anti-abortion lawmakers keep trying with these draconian laws, over and over and over. But the good news for abortion providers and patients is that means there are decades of precedent in place to ensure such laws will never pass constitutional muster.
In 1976—just a few years after Roe v. Wade was decided—the Supreme Court struck down a spousal consent law in Planned Parenthood v. Danforth, arguing that such a provision was unconstitutional because the state cannot delegate veto power for abortion to anyone but the pregnant person and their physician. The Supreme Court affirmed this ruling again in Casey v. Planned Parenthood, the 1992 case in which the Court created the “undue burden” standard, which is still used today to determine which abortion restrictions are constitutional and which are not.
This makes sense, right? But while the Supreme Court has long struck down spousal consent and notification laws, young people seeking abortion have not been so lucky in the eyes of the law.
Both Danforth and Casey contained parental consent laws. In Danforth, the Supreme Court found the law to be unconstitutional. But in 1979, the Court ruled that parental involvement laws for abortion could be constitutional, in the landmark decision Bellotti v. Baird. While the Court in Baird agreed that it was unconstitutional to give veto power to anyone other than the pregnant person, it allowed for a workaround: a judicial bypass. The Court said parental involvement laws could be deemed constitutional as long as they allowed young people the option to seek consent from a judge if they didn’t want to go to a parent.
Over a decade later, the Court affirmed this ruling in Casey, upholding a parental consent law with a judicial bypass provision and setting the precedent that such laws are not an undue burden.
But here’s the thing—parental involvement laws are, in a word, bullshit.
Decades of research show that the vast majority of young people consult a parent before having an abortion, regardless of the law. That number gets even higher the younger the teen is: Over 90 percent of young people age 14 and below consult a parent before having an abortion.
What’s more, virtually all—yes, 99 percent—of young people consult a trusted adult outside of clinic staff before having an abortion: someone like an older sibling, a trusted neighbor, or a teacher.
For young people who can consult a parent, these laws are essentially a moot point. For young people who don’t have the safety or support required to involve a parent in their abortion decision, these laws can be catastrophic.
For young people living with abuse, in poverty, or with another kind of marginalization, parental involvement laws are at best a harmful barrier. At worst, they can mean the difference between accessing abortion and being forced to carry a pregnancy to term.
And judicial bypass is not the functional workaround the court deemed it to be. Bypass hearings involve a judge determining if a minor is mature enough to make the abortion decision alone. If the judge decides the minor is not, they have to decide if an abortion would be in the minor’s best interest. Bypass hearings are an often dehumanizing and terrifying ordeal—forcing young people to go to court and lay bare what can be an intensely personal decision. They are also logistical nightmares: Young people have to take off school and find transportation to and from court, all without their parents finding out. Research shows that using judicial bypass delays abortion access, which is even more critical for young people who tend to detect their pregnancies later.
Despite all that, parental involvement laws enjoy support from both sides of the aisle and are among the most common abortion restrictions in the nation—over 35 states have some form of parental involvement law in place. But they are as useless and harmful as any garden variety abortion ban.
The bottom line: Consent laws are consent laws are consent laws, whether they grant veto power to a spouse, or a parent, or a judge. Giving anyone veto power over someone else’s pregnancy decisions is overtly dystopian, no matter how old the pregnant person is.