Bench Memos

Law & the Courts

Restatement—No, Misstatement—of the Law on Access of Minors to Abortion, Part 2

For the reasons set forth in my Part 1 post, I think that the project of “restating” the laws governing access of minors to abortion is a strange exercise. But if that exercise for some reason had to be carried out, the obvious way to do it would be to present the statutory texts from different states, compare and contrast them, and discuss how judges have interpreted them. Instead, as I explain at the end of my Part 1 post, the authors of the section in the draft Restatement of the Law on Children and the Law take a confusing backwards approach in which they purport to divine a governing principle that is divorced from, and contradicted by, statutes in the majority of states.

The authors’ explanations only compound the confusion. In a comment a titled “Constitutional background and rationale” (pp. 326-329), they present a rambling discussion of supposed “constitutional doctrine.” To the authors, parents are little more than “obstacles” to a minor’s getting an abortion. Never mind that the controlling joint opinion in Planned Parenthood v. Casey (1992) explained that “parental notification or consent requirements” (and the Court’s judgment that they are constitutionally permissible) “are based on the quite reasonable assumption that minors will benefit from consultation with their parents and that children will often not realize that their parents have their best interests at heart.” (Emphasis added.)

To be sure, the authors pay lip service to “the assumption that parents generally aim to promote their children’s best interest, according to the parents’ values and beliefs.” But that assumption, they immediately clarify, should not apply to decisions about abortion, “which are adult choices that can involve personal moral values in ways which are less likely to arise in other medical decisionmaking contexts.” My point here is not to dispute their view (though I certainly do), but merely to point out that what they disguise as “constitutional doctrine” is nothing of the sort.

The authors’ hostility to parental-involvement statutes that the Supreme Court has approved of is even clearer in the 22-page long “Reporters’ Note.” Citing a grand total of two cases over the last decade, they purport to discern a trend in which “[i]n recent years, courts have been hostile to parental notification statutes.” They cite “critics” who “have argued that parental notification constitutes a substantial deterrent for many minors,” and they observe:

Scholars have criticized the requirement that a minor be required to demonstrate maturity in a by-pass hearing. For example, Elizabeth Scott points to the lack of any evidence that the by-pass proceeding promotes the interest of the teen.

Guess who Elizabeth Scott is? The lead “reporter” for this Restatement! (See page v here.)

The authors further endorse the argument that bypass hearings “are punitive, and damage the dignity of teenage women.” (The ordinary term for “teenage women” who are minors is girls.) This, they assert, “is borne out in part by the fact that almost all petitions for judicial by-pass are approved.” This is a baseless argument: What possible ground do the authors have for knowing which petitions should have been approved? It’s also a “heads I win, tails you lose” argument, as it’s clear that the authors would be complaining vociferously if bypass petitions were often denied.

What’s clear, more broadly, is that the authors strongly oppose statutes that seek to ensure the involvement of parents in a daughter’s decision whether or not to have an abortion. They of course are entitled to their policy views. But their presentation of the issue in the draft Restatement is deeply flawed.

While I’m at it, permit me a couple of other observations. I find it curious that the two paragraph-long “Illustrations” on informed consent (p. 331) both use Hispanic names for the hypothetical pregnant girls: Maria and Elena, who we are also told is “a devout Catholic.” I also find it odd that the authors refer at one point (p. 327) to “the emerging personhood of the mature minor.” Obfuscation about “personhood” is routinely used to obscure the biological reality that the organism gestating in the womb of a pregnant woman is a human being. Is that obfuscation going to be compounded by maintaining that even a “mature minor” doesn’t have “personhood”?

In my next post, I’ll offer some closing observations on the Restatement enterprise generally.

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