American Civil Liberties Union Briefing Paper Number 7
Reproductive Freedom: The Rights of Minors
A pregnant woman's constitutional right to choose between childbirth and
abortion was established in 1973 by the Supreme Court's landmark ruling in
Roe v. Wade ruling. All women, including those under 18, are entitled to
a safe, legal abortion. But in many states, a young woman may have a
very difficult time exercising that right because laws require that she
first notify her parents or obtain their consent.
Of the more than one million teenage pregnancies that occur in the United
States each year, over 80 percent are unintended. Nearly all pregnant
teens are unwed, and some 40 percent of them choose abortion.
Ideally, a teenager should be able to tell her parents about her
pregnancy, obtain their love and support and arrive at critical decisions
about her future through family discussions. The majority of pregnant
teenagers do tell at least one parent about their pregnancies. However,
some teenagers cannot tell their parents. Some are members of broken
families; some are victims of incest or other forms of family abuse; some
have run away from home, often for good reason.
The need to reinforce family relationships is the reason most often cited
to justify state laws requiring parental notification or consent before
abortion. But such laws are unnecessary for stable and supportive
families, and they are ineffective and cruel for unstable, troubled
families. Such laws cannot transform abusive families into supportive
ones, nor can they reduce the alarmingly high rate of teenage pregnancy.
Instead, they only add to the crushing problems faced by pregnant
teenagers: They create delays that increase the medical risks of abortion
and effectively eliminate the option of abortion for many minors.
Tragically, those minors in greatest need of confidential medical care are
often the very ones whose access to care is delayed.
The American Civil Liberties Union opposes parental consent and
notification laws on the grounds that they infringe upon minors'
constitutional rights and serve no useful purpose. To prevent unwanted
pregnancy from being a dangerous condition for teenagers, we must ensure
that young women have access to confidential counseling, contraception and
abortion services, as well as prenatal care. At stake are young women's
lives, safety, health and dignity.
Here are the ACLU's answers to questions frequently asked by the public
about the reproductive rights of minors.
How many states have passed laws that restrict teenagers' access to
Thirty-one states have passed legislation, as of 1989, restricting
teenagers' access to abortion. These laws require teenagers under 18 to
either notify their parents before seeking an abortion or obtain parental
consent. Some states do not currently enforce the laws because they have
been ruled unconstitutional by a federal or state court, or they resemble
laws declared unconstitutional.
Eleven states continue to enforce parental notification or consent laws,
and others are considering enacting new laws.
How do these laws work?
The laws vary. Some states require a physician or a physician's agent to
notify at least one parent of a minor seeking abortion, either in person,
by telephone, or in writing. Other states require a physician or his/her
agent to obtain parental consent. Health care providers who fail to meet
state requirements can lose their licenses to practice or even face
What's the difference between a consent and a notification law?
*Parental consent* laws require one parent or both parents to give written
permission before their daughter can obtain an abortion. *Parental
notification* requires that one or both parents be notified in advance of
their daughter's abortion. Although notification laws technically do not
permit parents to veto their daughter's decision, some states either
require that one parent sign a form or impose a waiting period between
notification and the abortion. While consent and notification
requirements differ, the result is the same: Young women's abortions are
delayed or obstructed because of governmental interference.
What's wrong with parental notification or consent laws?
Parental notification or consent laws can expose a teenager from an
abusive or otherwise dysfunctional family to emotional trauma and physical
danger, and many young women who avoid telling their parents about their
plans to terminate an unwanted pregnancy come from such families.
Courts have found that teenagers who want to keep their pregnancies a
secret almost always have sound reasons. And family counseling experts
have testified that forced communication frequently has disastrous
results. Indeed, where abortion is concerned, privacy can be a life or
death matter for teenagers.
Confidentiality has also proven crucial to the effective delivery to
minors of several other health care services, including treatment for
venereal disease and drug and alcohol abuse, prenatal care and
contraception. Minors often shun such services if they fear that their
privacy will not be respected. Thus, most states have passed laws
guaranteeing a minor's right to receive confidential care in these areas.
Whatever parents' reactions might be, it's *their* daughter -- so don't
they have the right to be involved?
No. Although parents have interests in their children's well-being, in
the case of pregnancy a teenager's privacy rights must be paramount. When
there is a reason to expect an extremely abusive parental reaction to a
young woman's unplanned pregnancy, her right to privacy must come first
since she is in the best position to know whether she is in danger. A
legislature that is unfamiliar with a young woman's particular situation
is *not* in a position to force her to involve her parents.
What types of family situations lead teenagers to seek a confidential
The situations are well documented and surprisingly common. Some
teenagers fear that a parent will respond to the news of her pregnancy
with physical or sexual abuse. Sometimes, the news could place both a
mother and daughter at risk of violence by an enraged father. Some young
women fear the news will exacerbate a parent's psychiatric or physical
illness, drug or alcohol abuse, or troubled relationships with other
family members. Some teenagers are runaways and dare not risk returning
to their troubled homes.
Can a teenager, suddenly faced with the choice between childbirth and
abortion, really make a responsible decision?
Yes. The American Psychological Association has found that minors are
usually able to make intelligent, informed decisions about pregnancy.
Even young women from severely troubled families often show great maturity
and sensitivity when seeking confidential birth services. During one
abortion rights trial, clinic and court personnel testified that minors
accurately assess their family circumstances and base their decisions on
mature analysis and judgement.
In any event, doctors are required to obtain informed consent from every
patient facing surgery, which ensures that an abortion would not be
performed on any woman incapable of giving consent.
Don't laws restricting abortion also contain alternatives for mature minors
or those who fear parental reprisals?
Yes. Most state laws requiring parental notification or consent allow a
pregnant minor to go to court and request permission for a confidential
abortion (that is, without parental involvement). But this process
usually requires a teenager to make an appointment with the court, travel
some distance, and either find an attorney or plead her own case before
one or more court officials.
This procedure, called a judicial bypass, is costly and humiliating and
traumatizing. Teenagers must reveal detailed personal information to as
many as 20 or more strangers on staff in the court system. In small
communities, word may get back to parents, thus defeating the purpose of
the bypass, which is to ensure privacy. This anxiety-producing judicial
process is a heavy burden to place on young women who are simply seeking
Another problem is that the bypass discriminates against the poor. Young
women who lack financial resources and supportive families -- that is,
those most in need of help -- are the least likely to be able to navigate
the complicated bypass process. For such teenagers, the complexities and
delays involved may cancel out the option of safe and legal abortion.
Aren't legal delays justified when a teenager might risk physical and
emotional harm by having an abortion?
Actually, delays increase the risk of harm. The longer a teenager waits
to terminate a pregnancy, the greater the risk to her health.
Furthermore, childbirth is more risky at all stages of pregnancy than
abortion. Statistics compiled by the federal Centers for Disease Control
and other sources indicate that the risk of death from childbirth is, on
average, 24 times higher than the risk of death from abortion at up to 12
weeks of pregnancy. Teenagers are more likely than adults to suffer
medical complications attributable to childbirth.
Access to legal abortion in the United States has dramatically improved
women's health. Abortion is not only one of the safest surgical
procedures available, it is generally safer for teenagers than for adults.
Moreover, a recent government study found that unmarried, sexually active
teenage girls who chose abortion experienced no emotional damage; rather,
they gained a sense of control over their lives.
What are the consequences, besides increased health risks, of restricting
teens' access to abortion?
Laws that restrict access to abortion by requiring parental involvement
increase teenage birth rates. For example, according to testimony in the
reproductive freedom case, Hodgson v. Minnesota, the Minneapolis birthrate
rose 38.4 percent among mothers aged 15 to 17 after enforcement of a
parental notification law. The birthrate for 18 to 19 year-old women, who
were not affected by the law, rose only .3 percent during the same
Having little education, few skills and responsibility for a child they
may not have wanted, teenage mothers and their children are seven times
more likely to slide into poverty. According to national estimates,
children born to teenage mothers in 1987 will receive more than $5.5
billion in federal welfare payments over a 20-year period. And because
children born to teenagers are often unwanted, those children may suffer
severe psychological and educational disadvantages. As for the minors
themselves, their entire adult lives are often limited, if not ruined, by
government laws that effectively force them into motherhood.
Do restrictions on minors affect the reproductive choices of other women?
Yes, abortion restrictions directed at minors affect the reproductive
rights of all women. These rights are rooted in the privacy principle --
that is, choices about childbearing are personal, private, and none of the
government's business. When government invades the realm of privacy to
limit the reproductive freedom of teenagers, it undermines the privacy
principle and threatens the privacy rights, not only of all women, but of
What can be done to provide genuine help for teenagers and, thus, reduce
their need for abortion?
States can and should provide confidential reproductive health services
and counseling programs that are accessible to teenagers before they
become pregnant. These programs should dispense candid information about
sexuality, reproduction, contraception, and the importance of family
support and communication. Such programs could not only reduce the number
of unwanted teen pregnancies, but they could also strengthen family bonds
and prevent family crises that are precipitated by teenage pregnancies.
Most important, a teenager should be afforded the security of knowing she
can assume the adult role of motherhood if and when she, not the
government, chooses. Reproductive freedom -- including the right to
confidential contraception, abortion and prenatal care services -- is
essential to this goal. Intrusive state laws that claim to encourage
family communication, while clearly undermining the best interests of
families, ill serve teenagers. Those laws interfere with the right of
private decision-making and do nothing to stem the high rate of unwanted
The ACLU, in cooperation with other organizations, will continue to
provide legislative advocacy and information to the public, aimed at
securing reproductive freedom for all women. This includes minors, who
are entitled to the same rights of privacy guaranteed to all citizens by
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