A Common Abortion Restriction You’ve Probably Never Heard of Targets Teens

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Analysis Abortion

A Common Abortion Restriction You’ve Probably Never Heard of Targets Teens

Rewire News Group Staff

So-called parental involvement laws exist in 37 states. So why isn't more being done to help teens access abortion?

For more on teen rights, check out our special edition.

Take a moment and think about the political landscape in your state. What is abortion access like? Is it hostile, or a haven? Now consider what abortion access looks like for young people in your state. Do you know?

Chances are you don’t. The national discourse on abortion often centers on laws like Texas SB 8—which bans nearly all abortions after embryonic cardiac activity can be detected, typically around six weeks’ gestation—or targeted regulation of abortion providers, aka TRAP laws, such as mandatory waiting periods or ultrasounds.

And chances are you live in a state where access for young people is severely restricted.

Twenty-one states require minors to obtain a parent’s consent to have an abortion. Some states require parental notification before the procedure. If a minor cannot involve a parent in their abortion decision, they are required to obtain a judicial bypass, a process that requires going to court and asking a judge to find them mature enough to make the choice on their own. If a judge decides the minor is not sufficiently mature, they then have to consider whether it’s in the minor’s best interests to have the abortion.

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Despite these laws’ egregious harms and nearly singular prevalence, youth access is all too often absent from larger conversations about abortion access in the country.

The judicial bypass is born

Abortion restrictions in 37 states are aimed specifically at minors. These so-called parental involvement laws are among the most ubiquitous abortion restrictions in the country, existing in blue and red states alike and enjoying support from both sides of the political aisle.

The laws vary somewhat by state: Some require the permission of one or both parents, others require a minor to notify their parents of their intention to have an abortion, and still others require both. Though parental consent laws are considered more stringent, the logistical practicality of consent and notification is effectually the same—to force a young person to involve a parent in their abortion decision. Some restrictions include exceptions for rape, incest, and the health of the pregnancy and/or pregnant person, but some do not. In every state with a parental involvement law, minors who do not want to include a parent in their abortion decision have the option—if you can call it that—to endure the judicial bypass process and get permission from a judge instead.

In 1979, six years after the Roe v. Wade decision, the Supreme Court ruled in Bellotti v. Baird that giving one person total veto power over another’s decision to have an abortion was unconstitutional, resulting in the judicial bypass process. The case set the precedent that states with parental involvement laws must also offer a judicial bypass option for the law to pass constitutional muster.

Judicial bypass has long been legally framed as both a concession by anti-abortion advocates who argue for parents to have total control of their teens’ abortion decisions and a compromise to satisfy judicial scrutiny. It’s also wrongly presumed to be a viable solution to the challenges parental involvement laws present to minors who cannot involve a parent. Instead, judicial bypass ensnares the most vulnerable and marginalized young people in a carceral justice system, compromises their privacy and safety, and dehumanizes them.

I’ve heard harrowing stories about seeking a judicial bypass: a guidance counselor calling a parent to tell them their teen is having an abortion and missing school for their hearing, a teen running into her classmates on a field trip at the courthouse.

The majority of young people involve a parent in their abortion decision, and virtually all young people involve at least one trusted adult, like an older sibling, an aunt or uncle, a teacher, or a guidance counselor. The younger a minor is, the more likely they are to include a parent in their decision. Young people who don’t include a parent often live in abusive homes or in an environment where disclosing a pregnancy would be unsafe. Parental involvement laws automatically relegate young people living in foster care to the judicial bypass process because they do not account for minors under the care of someone other than their parents.

The logistics of judicial bypass present their own challenges. Teens must take time off from school or work without a parent finding out. They have to secure transportation to and from court, as well as legal representation. And while many states have attorneys who handle these cases specifically, young people must find them first, typically through an abortion clinic or abortion fund referral.

I’ve heard harrowing stories over the years about seeking a judicial bypass: a guidance counselor calling a parent to tell them their teen is having an abortion and missing school for their hearing, a teen running into her classmates on a field trip at the courthouse, humiliating lines of questioning by judges. For young people in foster care, often their only association with the court system is when they’re separated from their families, putting them at risk of being retraumatized by the judicial bypass process. Furthermore, many of the ways in which a judge measures so-called “maturity”— a young person’s job stability and grades, for instance—are areas where foster teens can struggle because of the transient nature of living in state care.

And remember that on top of all this, minors in states with parental involvement laws must still abide by any other abortion restriction in place, such as mandatory waiting periods, forced ultrasounds, and 15- (or even six-week) bans. Now consider that statistically, young people detect their pregnancies later than adult women.

What results is a perfect storm of barriers.

‘Set up to fail from the beginning’

“I think [the] mainstream repro [movement] avoids talking about young people,” said Rosann Mariappuram, executive director of Jane’s Due Process (JDP), a nonprofit that helps young people access abortion and other reproductive health-care services.

The Texas-based organization provides direct services to minors navigating parental involvement laws and the judicial bypass system and also works in advocacy and legislative spaces to fight for young people’s reproductive rights. Mariappuram said she often feels youth access is left out of national conversations about abortion rights and the fight against tightening restrictions.

“I would say some people just don’t even know how bad the laws are,” she said.

Photo of three older teens holding signs at an abortion rally

Joshua Roberts/Getty Images

Mariappuram credits much of the reticence to include youth access in national advocacy to a discomfort surrounding “talking about sex and teens and abortion and pregnancy,” she said, citing the abysmal state of sex education for young people in Texas, as well as the parental consent requirement to access birth control in addition to abortion.

“There’s all of this judgment on a teen who gets pregnant, but they’ve been denied basically at every step of health care,” Mariappuram said. “So I think the movement also often isolates abortion just to when the person’s pregnant and needs help. But teens have been set up to fail from the beginning.”

I’ve worked in the reproductive justice space in some capacity for more than a decade. I wrote my undergraduate thesis on youth access, and my writing on the topic in law school earned national recognition. I’ve written countless articles on youth access and the impact abortion restrictions have on the most marginalized teens, including those living in abusive homes or foster care. I’ve spent hours talking to attorneys who handle judicial bypass cases and advocates who help minors access the critical health care to which they’re entitled.

I’ve spent just as much time being told by advocates at national organizations and legal scholars who purport to care about reproductive rights that youth access is too incendiary a topic to speak about loudly. I’ve been instructed to sanitize my coverage to capitulate to the anti-abortion right because talking about young people having abortions might scare away moderates, and I’ve been reprimanded for covering youth access and told my drawing attention to it was a detriment to the cause. The argument goes that by keeping quiet about youth access, we’re actually protecting it—and to draw attention to it would create too much volatility.

I’d believe these folks had I not spent the last ten years seeing little change in the youth access space as far as legislation is concerned. And as restrictions tighten nationwide, young people’s access to abortion suffers even more.

Roe v. Wade’s impending reversal—and beyond

It’s only getting worse.

As the country waits for a decision in Dobbs v. Jackson Women’s Health Organization, the Supreme Court case expected to be the official end of Roe v. Wade, anti-abortion politicians have shown they won’t wait for permission to start gutting access and evading the constitutional protections enshrined in the landmark 1973 ruling.

Texas SB 8 has been in effect for more than seven months, and copycat laws are popping up all over the country. It’s all but certain that when the Court’s conservative supermajority reverses Roe, the decision will set off a wave of restrictions around the country, creating abortion deserts where pregnant people won’t be able to access care.

This fate will inevitably fall the hardest on the most marginalized groups: people of color, people who live in rural communities, poor people, disabled people.

And young people.

“The stat I keep repeating is: In the first month of SB 8, abortion dropped by 60 percent across the state, but it dropped by 70 percent for youth between the ages of 16 and 17 and by 90 percent for youth younger than 16,” Mariappuram said. “So [when] we talk about vulnerable population margin[s], a young person is the example of someone who cannot leave the state and who is under a full abortion ban.”

Mariappuram added that it’s predominantly the young people of color JDP serves who suffer the most under these conditions, as they lack the resources to travel out of state to get an abortion.

“If the movement doesn’t center young people, they’re going to get silenced and left out of the fight to get abortion back,” she said.

The harm blueprint

As more and more states pass restrictions that force people to travel out of state to access abortion care, lawmakers are increasingly eyeing legislation that seeks to restrict the ability to do just that. And while this may seem like a radical and likely ill-fated initiative (banning interstate travel is so egregiously unconstitutional, it’s possible even the Supreme Court’s current bench would see it as a bridge too far, so to speak), the concept will not be new for anyone who has paid attention to youth access over the last few decades.

Lawmakers have been trying for years to pass laws that prevent adults from transporting minors across state lines to access abortion, albeit with little success, though that may change as the climate around abortion becomes more and more hospitable to restrictions and bans.

But it’s not only travel bans that foretell restrictions on youth access to abortion, as many of the laws that restrict LGBTQ rights for young people are built directly on the backs of parental involvement laws.

“A lot of the anti-trans youth bills, they’re just adding to the bypass law that just happened to us in Texas,” Mariappuram said. “They already have the plan in place, so we have to be careful.”

A chasm in telemedicine

As the ability to access abortion in the United States becomes increasingly fraught the prospect of travel is widely tenuous, the availability of telemedicine becomes more critical—arguably even more so for the demographic group of patients who are least likely to be able to travel out of state for care.

“Young people are no different and deserve access to accurate information to allow them to fully participate in their plan of care,” said Melissa Grant, the chief operations officer at carafem, which provides medication abortion to patients through the mail. (It also performs in-office abortions.) “At carafem, we focus on providing care that is tailored to the needs of the individual client, and this includes people who are under the age of 18.”

Grant said young people contacting carafem can take advantage of a broad range of services. The organization ensures that teens understand the parental involvement laws in their state (if applicable) and walks them through any information they need regarding the judicial bypass process. Carafem can also help young people prepare for how to best communicate with a parent about their abortion decision.

“Whether a younger person seeks care through telemedicine or in person, it is critical that they receive accurate information about their rights and legal responsibilities,” Grant said. “As part of that, teens need to be supported in [choosing] when and how to involve family members in the care setting.” And carafem sees providing telemedicine care to young people as part and parcel of that mission.

But young people are still often overlooked and deprioritized when it comes to accessing telemedicine.

While some providers, like carafem, offer their telehealth services to minors, others do not. The reasons for not doing so vary, from concerns about young people’s ability to pay for care (most online credit providers require users to be over 18) to risk and liability implications at organizations that say they lack the infrastructure to properly verify consent or bypass authorization remotely.

It’s hard to argue that clinics should take on even more liability than they already do, but it’s even harder to concede that young people should be collateral damage in navigating the current political climate. And it’s inevitably the fault of leaders and organizations that siphon off youth access to the point that care is so restricted these complications arise in the first place, that parental involvement laws are so common and so underreported that clinics feel they must decide between incurring more risk and providing care.

Still, as Mariappuram pointed out, leaders like her need to be troubleshooters, ready to deal with these problems with the same urgency they present.

“Let’s figure out a solution, not just cut young people out of getting this type of care,” Mariappuram said. “We are creative. We can figure this out. We are happy to strategize with you [the] ways that you can adhere to all the requirements you have but still get a young person access to abortion.”

The future is young people

Jane’s Due Process has been on the frontlines of the fight for youth access, and no one knows better how to strategize—and win—when it comes to these issues. The best way to do that? Let young people lead, Mariappuram said.

“They’re the ones who know what it’s like to live through these laws,” she said. “And then you also are giving the power back to people who’ve been disempowered by these laws, which at its heart is such a key value and something that we’re all striving to do.”

Putting young people in the room also holds leaders accountable: It’s harder to infantilize young people or bargain away their rights when they sit at the table with you.

“They’re not at the table now … but the more young people we get at the table, as a movement, the more we’ll center them,” Mariappuram said.

Behind all that political posturing, all the strategizing and rooms filled with middle-aged advocates debating the most palatable way to package their abortion access provisions, are real young people—teens who are pregnant right now, at this very moment, and who are suffering because leaders are more concerned with keeping attention away from youth access instead of fighting for it.

And it’s easy to think about teen access, even teen pregnancy and sex education, as hypotheticals or line items in an advocacy plan when people aren’t being affected by these policies. That’s why leaders and advocates need to humanize these issues and ensure they are confronted with the real people behind their decisions.

It’s fundamental that the people fighting for abortion access look like the people they’re fighting for—notably the most vulnerable patients, including young people.

Because of all the logistical nightmares and overwrought posturing I’ve witnessed over the years regarding youth access, what always seems to get lost is the issue’s fundamental simplicity. Like all matters of reproductive rights and justice, it comes down to autonomy and safeguarding people’s self-determination, especially marginalized individuals.

“If we really believe in centering the people most impacted, young people, especially minors, suffer under the most severe abortion restrictions,” Mariappuram said. “If people really believe in bodily autonomy, it has to be for everyone, including youth. You don’t lose your rights because you’re under 18. If anything, you should be some of the most protected people who have the most autonomy and freedom.”