Requiring Parental Involvement in a Pregnant Minor's Abortion Decision: State Laws and Recent Developments
Requiring Parental Involvement in a Pregnant
Minor’s Abortion Decision: State Laws and
Recent Developments
Updated January 9, 2007
Jon O. Shimabukuro
Legislative Attorney
American Law Division
Tara Alexandra Rainson
Law Librarian
Knowledge Service Group
Requiring Parental Involvement in a Pregnant Minor’s
Abortion Decision: State Laws and Recent
Developments
Summary
State laws that require parental involvement in a pregnant minor’s abortion
decision have gained greater visibility in light of recent attempts by Congress to
criminalize the interstate transport of a minor to obtain an abortion. At least forty-
three states have enacted statutes that require a minor to seek either parental
notification or parental consent before obtaining an abortion. This report discusses
the validity of state parental involvement laws in the context of Planned Parenthood
of Southeastern Pennsylvania v. Casey, Ayotte v. Planned Parenthood of Northern
New England, and other U.S. Supreme Court cases that address a minor’s right to
choose whether to terminate her pregnancy. The report reviews the various state
parental involvement law provisions, such as judicial bypass procedures and
exceptions for medical emergencies. The report also highlights recent federal
parental involvement legislation and provides a survey of current state parental
involvement laws.
Contents
In troduction ..................................................1
Planned Parenthood of Southeastern Pennsylvania v. Casey and Ayotte
v. Planned Parenthood of Northern New England................1
Parental Notification and Parental Consent..........................3
Judicial Bypass Procedure...................................3
Medical Emergency Exception...............................4th
Federal Legislation in the 109 Congress...........................5
List of Tables
State Parental Involvement Statutes ...................................7
Requiring Parental Involvement in a
Pregnant Minor’s Abortion Decision: State
Laws and Recent Developments
Introduction
State laws that require parental involvement in a pregnant minor’s abortion
decision have gained greater visibility in light of recent attempts by Congress to1
criminalize the interstate transport of a minor to obtain an abortion. At least forty-
three states have enacted statutes that require a minor to seek either parental
notification or parental consent before obtaining an abortion. This report discusses
the validity of state parental involvement laws in the context of Planned Parenthood
of Southeastern Pennsylvania v. Casey, Ayotte v. Planned Parenthood of Northern
New England, and other U.S. Supreme Court cases that address a minor’s right to
choose whether to terminate her pregnancy.
In Casey, the Court upheld the right of a woman to choose whether to terminate
her pregnancy, but permitted certain restrictions on a minor’s ability to obtain an2
abortion, such as state parental consent requirements. In Ayotte, the Court reiterated
that a state may require parental involvement in a pregnant minor’s abortion3
decision.
In addition to examining the relevant abortion decisions, this report reviews
common state parental involvement law provisions, such as judicial bypass
procedures and exceptions for medical emergencies. The report also highlights
recent federal parental involvement legislation and provides a survey of current state
parental involvement laws.
Planned Parenthood of Southeastern Pennsylvania v. Casey
and Ayotte v. Planned Parenthood of Northern New England
In Roe v. Wade, the U.S. Supreme Court held that a woman has a constitutional
right to choose whether to terminate her pregnancy.4 The Court in later cases has
affirmed the basic right to an abortion, but also permitted restrictions on a woman’s
1 See S. 403, 109th Cong. (2005); H.R. 748, 109th Cong. (2005).
2 505 U.S. 833 (1992).
3 126 S.Ct. 961 (2006).
4 Roe v. Wade, 410 U.S. 113 (1973). For additional information on abortion, see CRS
Report RL33467, Abortion: Legislative Response, by Karen J. Lewis and Jon O.
Shimabukuro.
access to an abortion. Casey established that a state may require parental
involvement in a pregnant minor’s abortion decision if the involvement does not
unduly burden the minor’s right to choose whether to obtain an abortion. In that
1992 case, the Court considered a constitutional challenge to five provisions of the
Pennsylvania Abortion Control Act of 1982. One provision required a pregnant
minor seeking an abortion to obtain consent from one parent or guardian before the
procedure.5 The Court upheld the parental consent provision and also affirmed that
a state law that banned abortion completely would be unconstitutional. In its holding,
the Court shifted away from the trimester-based strict scrutiny standard of judicial
review it used in Roe and articulated a new “undue burden” analysis. Courts will
now invalidate a state-imposed abortion restriction if it imposes an “undue burden”
on a woman’s right to obtain an abortion.6 Applying the new standard, the Casey
Court held that the parental consent provision did not unduly burden a pregnant
minor’s right to obtain an abortion because it included exceptions in the event of a
medical emergency and when the minor demonstrates to a court that parental consent
is not in her best interests.7
In January 2006, the Court reiterated the validity of state laws that place certain
restrictions on a pregnant minor’s right to obtain an abortion. In Ayotte, the Court
considered a constitutional challenge to a state statute requiring parental notification
before a minor may obtain an abortion. The plaintiffs argued that the New
Hampshire Parental Notification Prior to Abortion Act violates the right of a woman
to obtain an abortion because it does not contain an exception to allow a pregnant
minor to obtain an abortion without parental notification when the procedure is
necessary to preserve the minor’s health. In writing for an unanimous Court, Justice
O’Connor stated explicitly that the holding did not revisit Court precedent regarding
abortion.8 Rather, the Court addressed the relatively narrow issue of remedies. It
held that only certain applications of the act would violate a woman’s constitutional
right to an abortion, and remanded the case with orders for the lower courts to
consider whether the act could be interpreted in a manner consistent with the judicial
5 The other provisions required spousal consent, a 24-hour waiting period, the pregnant
woman’s informed consent before she could obtain an abortion, and certain reporting for
facilities that provide abortions. The plurality upheld the informed consent, waiting period,
and reporting requirement provisions, finding that they did not impose undue burdens. It
struck down the spousal consent provision, however, holding that it gave husbands too much
control over their wives and could contribute to spousal abuse, thus imposing an undue
burden on a woman’s abortion decision.
6 The plurality opinion defined “undue burden” as a “substantial obstacle in the path of a
woman seeking an abortion of a nonviable fetus.” Casey, 505 U.S. at 877. Casey was not
the first judicial instance in which the Supreme Court held that a state cannot place a
parental involvement restriction on a minor’s right to obtain an abortion so that her parent
or parents have absolute veto power over the decision. In Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (1976), the Court held that a state may not require the
consent of parent or guardian of a pregnant minor seeking an abortion if such consent will
unduly burden the minor’s right to seek an abortion.
7 Casey, 505 U.S. at 899.
8 Ayotte, 126 S. Ct. at 965.
precedent that a state may not restrict access to an abortion when the health of the
woman seeking the abortion is at issue.
Despite its narrow holding, the Court in Ayotte expressly affirmed two legal
propositions relating to pregnant minors’ access to abortions: states have the right to
require parental involvement in a minor’s abortion decision, and a state may not
restrict access to an abortion that is necessary to protect the life or health of a woman
seeking an abortion.9
Parental Notification and Parental Consent
Fourteen state parental involvement statutes require the consent of one parent
before a pregnant minor may obtain an abortion, while twelve state statutes require
only that the minor notify one or both parents that she intends to obtain an abortion.
As discussed, the Court has held that a state law that requires parental involvement
in a minor’s abortion decision is unconstitutional if it unduly burdens the minor’s
right to terminate her pregnancy.
Several Court cases preceding Casey and Ayotte expressly established that a
state parental involvement statute that permits a parent to unilaterally prohibit a
minor from obtaining an abortion would be unconstitutional. In Planned Parenthood
of Central Missouri v. Danforth, the Court held that a state parental involvement
statute must provide an alternate procedure for a minor to obtain authorization for an
abortion.10 In Belotti v. Baird, the Court reiterated the Danforth holding and stated
that such an alternative must provide a pregnant minor the opportunity to
demonstrate that she is “mature enough and well enough informed” to make an
abortion decision without parental involvement, or that the abortion is in her best
interests. 11
Judicial Bypass Procedure. Thirty-four state laws that require parental
involvement in a pregnant minor’s abortion decision provide for a judicial bypass
procedure as the alternate means for a minor to obtain permission for an abortion.
A judicial bypass procedure allows a minor who seeks an abortion to obtain
permission from a court to waive the relevant parental involvement requirement. In
cases preceding Casey, the Court held that adequate judicial bypass procedures are
constitutional alternatives to state parental involvement statutes. Both Danforth and
Belotti, for example, involved judicial bypass procedures that the Court upheld as
valid safeguards of a pregnant minor’s right to obtain an abortion.
While the Court has invalidated state parental consent laws that do not include
judicial bypass procedures, it has not determined whether a state law that requires
9 Ayotte, 126 S. Ct. at 966-67.
10 428 U.S. 52 (1976). Minnesota, Mississippi, and North Dakota have laws that require the
parental consent of both parents before a pregnant minor may obtain an abortion. The Court
has held that a state law that contains a two-parent consent provision is unconstitutional
unless it contains an alternative for parental consent, such as a judicial bypass procedure.
11 443 U.S. 622, 642 (1979).
parental notification must contain a judicial bypass procedure. In Ohio v. Akron
Center for Reproductive Health, et al., the Court held that the Ohio parental
notification statute at issue was constitutional, suggesting that the statute’s judicial
bypass procedure adequately protected a pregnant minor’s right to obtain an
abortion.12 The Court expressly declined, however, to decide whether a state parental
notification law that did not include a judicial bypass procedure would per se violate
the Constitution. In Lambert v. Wicklund, the Court similarly declined to reach the
question of whether a state parental notification law must contain a judicial bypass
procedure.13 Rather, the Court held narrowly that the Montana parental notification
law at issue, which contained a judicial bypass procedure, did not place an undue
burden on a pregnant minor’s right to obtain an abortion.14
Although the Court has refused to address directly whether a state parental
notification law must contain a judicial bypass procedure, Court precedent appears
to suggest that a parental notification law would be unconstitutional if it did not
provide a pregnant minor with some alternative to parental notification. In H.L. v.
Matheson, the Court upheld as constitutional a state statute that requires an
unemancipated minor who lives with her parents to notify them, “if possible,” before
she obtains an abortion, but includes exceptions for a minor who demonstrates that
notification is not in her best interests.15 Moreover, in Belotti, the Court indicated
that a parental notification law would be unconstitutional if it did not provide an
alternative to notification for a “mature” minor or when notification would not be in
a minor’s best interests.
The Court has declined to establish specific parameters for the adequacy of
judicial bypass procedures in the context of state parental involvement laws. In
writing for the majority in Akron, Justice Kennedy rejected the dissenting opinion’s
call to articulate specific procedural thresholds for the constitutionality of a judicial
bypass alternative, such as whether it must be anonymous or only confidential, or
how quickly a state must provide a pregnant minor with the opportunity for a court
proceeding. He stated only that the Ohio judicial bypass procedure contained
“reasonable steps” to protect the identity of pregnant minors seeking a judicial bypass
and that the procedure included adequate provisions to expedite a pregnant minor’s
request for a proceeding.16 The Court majority also held that a state may validly
require a pregnant minor to establish “by clear and convincing evidence” during a
judicial bypass hearing that she is mature enough to make an abortion decision
without parental involvement.17
Medical Emergency Exception. State parental involvement statutes in
Louisiana, Maryland, Massachusetts, and Ohio contain no express exception to
12 497 U.S. 502 (1990).
13 520 U.S. 292 (1997).
14 Id. at 295.
15 450 U.S. 398 (1981).
16 Akron, 497 U.S. at 513.
17 Akron, 497 U.S. at 515.
protect the life or health of the pregnant minor. In Ayotte, the Court expressly
reiterated its prior holdings in Roe and Casey that a state may not restrict access to
an abortion that is necessary to preserve the life or health of the pregnant woman.18
The Court also stated the factual proposition that in a small number of cases a
pregnant minor requires an immediate abortion to prevent serious health
consequences.19 Therefore, a state statute that restricts a pregnant minor’s access to
an abortion likely must include an exception for medical emergencies involving the
minor’s health or life.
Federal Legislation in the 109th Congress
During the 109th Congress, legislation that would have prohibited the knowing
transport of a minor across state lines with the intent to obtain an abortion was passed
by both chambers. Senator John E. Ensign introduced S. 403, the Child Custody
Protection Act, on February 16, 2005. The measure passed the Senate on July 25,
2006 by a vote of 65-34. Violators of the act would have been subject to a fine under
title 18 of the U.S. Code, imprisonment for not more than one year, or both. The act
included an exception for abortions that are necessary to save the life of the minor
when endangered by a physical disorder, physical injury, or physical illness.
Representative Ileana Ros-Lehtinen introduced H.R. 748, the Child Interstate
Abortion Notification Act, on February 10, 2005. The measure passed the House on
April 27, 2005 by a vote of 270-157. The act would have also prohibited the
interstate transport of a minor with the purpose of obtaining an abortion. In addition,
H.R. 748 would have required a physician performing an abortion on a minor outside
the minor’s state of residence to notify her parents of the intended abortion at least
24 hours before the procedure. The act included exceptions to the notification
provision for abortions necessary to save the minor’s life.
On September 26, 2006, the House considered an amendment in the nature
of a substitute to the version of S. 403 that was passed by the Senate. Voting 264-
153, the House passed S. 403, now titled the Child Interstate Abortion Notification
Act. Like H.R. 748, the House-passed version of S. 403 would have required a
physician who performs or induces an abortion on a minor who is a resident of a state
other than the state in which the abortion is performed to provide actual notice to a
parent of the minor at least 24 hours before performing the abortion.
The House-passed version of S. 403 would have made additional changes not
considered by H.R. 748, including a prohibition on the transportation of a minor
across a state line and into a foreign nation in circumvention of a law requiring
parental involvement in a minor’s abortion decision; the denial of a civil action to a
parent who has committed an act of incest with the minor; and the establishment of
18 Ayotte, 126 S. Ct. at 967. In Doe v. Bolton, 410 U.S. 179 (1973), the Court held that, to
determine whether an abortion is necessary to protect a woman’s “health,” a doctor may
exercise his or her judgment based on various factors, such as a woman’s physical,
emotional, psychological, and familial well-being, as well as her age.
19 Ayotte, 126 S. Ct. at 967.
penalties for the transport of a minor across a state line for the purpose of obtaining
an abortion by someone who has committed an act of incest with the minor.
Efforts to reconcile the differences in the Senate-passed version of S. 403 and
the House-passed version of the measure were not successful.
The following table provides citations to state parental involvement statutes.
Information concerning whether the applicable statute requires parental consent or
notification is included in the table. Statutes that include judicial bypass provisions,
medical emergency exceptions, and/or exceptions for a pregnant minor who is the
victim of parental abuse or neglect are marked accordingly.
State Parental Involvement Statutes
P arental Judi ci al Medical Abuse/
State andInvolvementBypassemergencyIncest
St at ut e Requi red Availabl e exception Exc e pt i o n
Alabama, § 26-Consent; one parent X XX
Alaska, §§Not enforced:
18.16.020,permanently enjoined
18.16.030by judicial order
Arizona, § 36-Consent; one parent XXX
2152
Arkansas, §§ 20-Consent; one parentXXX
808, 20-16-809
California HealthNot enforced:
& Safety Code, §permanently enjoined
123450by judicial order
Colorado, §Notification; oneXXX
12.37.5.101 etparent
seq.
DelawareNotification; oneX X
(applies toparent (or adult
minors underrelative)
Florida, §Notification; oneXXX
390.01114parent
Georgia, § 15-Notification; oneXX
11-110 et seq.parent
Idaho, § 18-609AConsent; one parent
(Not enforced:
temporarily enjoined
by judicial order)
Illinois, ch. 750,Notification; one
§ 70/1 et seq.parent (Not enforced:
enjoined by judicial
order)
Indiana, § 16-34-Consent; one parent XX
2-4
Iowa, § 135L.1 etNotification; oneXXX
seq.parent (or adult
relative)
Kansas, § 65-Notification; oneXXX
6705parent
P arental Judi ci al Medical Abuse/
State andInvolvementBypassemergencyIncest
St at ut e Requi red Availabl e exception Exc e pt i o n
Kentucky, §Consent; one parentXX
311.732
Louisiana, §§Consent; one parentXX
40:1299.35.5
40:1299.35.7
MarylandNotification; oneX
Health-General parent
Code, § 20-103
Massachusetts,Consent; one parentX
ch. 112, § 12S
Michigan, §Consent; one parentXX
Minnesota, §Notification; bothXXX
144.343 subd. 2parents
Mississippi, §Consent; both parentsXX
Missouri, §Consent; one parentX
188.028
Montana, § 50-Notification; one
enjoined by judicial
order)
Nebraska, § 71-Notification; oneXXX
6901 et seq. parent
Nevada, §Notification; one
enjoined by judicial
order)
New Hampshire,Notification; one
§§ 132:2b,parent (Not enforced:
132:25enjoined by judicial
order)
New Jersey, §§Notification; one
9:17A-1.12enjoined by judicial
order)
New Mexico, §Consent; one parent
enjoined by judicial
order)
North Carolina, §Consent; one parentXX
90-21.6 et seq.(or other adult
relative)
P arental Judi ci al Medical Abuse/
State andInvolvementBypassemergencyIncest
St at ut e Requi red Availabl e exception Exc e pt i o n
North Dakota, §§Consent; both parentsXX
02.1-03.1
Ohio, §§Consent; one parentXXX
2919.121
Oklahoma, § 1-Notification; oneXXX
740.1 et seq.parent
Pennsylvania, 18Consent; one parentXX
§ 5206 et seq.
Rhode Island, §§Consent; one parentXX
6
South Carolina, §Consent; one parentXXX
41-36
South Dakota, §§Notification; oneXX
34-23A-7, 34-parent
23A-7.1
Tennessee, § 37-Consent; one parentXXX
Texas, Fam CodeConsent; one parentXXX
§ 33.002 et seq.
Utah, §§ 76-7-Consent andX (forX (forX (for
parent provision) notification cation
provisions) provision)
Virginia, § 16.1-Consent; one parentXXX
241(V)(or other adult
relative)
West Virginia, §Notification; oneXX
16-2F-1 et seq. parent
Wisconsin, §Consent; one parentXXX
48.375(or other adult
relative)
Wyoming, § 35-Consent; one parent XX
6-118