When Whole Women’s Health Kicked Antichoice Butt
June of this year marked the anniversary of the Supreme Court case Whole Women’s Health v. Hellerstedt, arguably the most consequential ruling on abortion access in the United States in decades. On June 27th, 2016, the court said, in effect, that lawmakers must put forth actual scientific research and empirical data in order to pass any restriction on abortion.
Abortion restrictions and TRAP laws are largely, if not entirely, the work of anti-choice legislators who cloak their hatred for abortion and desire to make it inaccessible in disingenuous language about the wellbeing and care of people who need abortions.
Take for example ambulatory center requirements – which were at issue in Whole Women’s Health. Lawmakers trying to pass these laws argue that clinics should meet certain standards for patient safety or face closure, but in reality what these laws do is hold clinics to unnecessary and impossible standards with the intention to close them. And they have long done so by relying on bogus, or completely nonexistent research. Whole Women’s Health set the precedent that this is no longer okay, and Ruth Bader Ginsburg later said that she penned her own scathing concurring opinion in the case to warn courts and lawmakers – don’t try this anymore.
Needless to say, it was a huge ruling with the potential to drastically shift the ways in which abortion regulations are legislated. It invalidated the basis that so many, if not all, standing abortion restrictions are founded on, including parental involvement laws.
Parental involvement laws exist in 37 states. They require minors, usually under the age of 18, to notify or get consent from a parent or guardian in order to obtain an abortion. Minors who cannot involve a parent in this decision, or who do not want to, must go to court to argue their case. A judge then -- basically acting as a guardian -- must decide whether they are mature enough to make the decision on their own, and if they are not, if it would be in their best interest. It can be a torturous and humiliating process, and often puts teens in danger, or makes teens more vulnernable to abuse.
The Supreme Court has long upheld parental involvement laws arguing that they are necessary for three predominant reasons: first that minors lack the capacity to make the abortion decision, second that they encourage familial cohesion, and third that they protect minors from what they Court sees as the mental and physical harms of abortion.
Let’s get one thing straight: these laws have always been based on pseudoscience and anti-choice political framing of abortion, not on medical facts, practical realities or the well-being of people who become pregnant. But the precedent set in Whole Women’s Health means that there were finally grounds for overturning them.
See, in order for lawmakers to pass parental involvement laws in a post-Whole Women’s Health world, they should have to provide proof of their necessity in the form of reliable sources that back up their reasoning. But there’s just one problem – there is no existing research that backs up the rationale for parental involvement laws, and what’s more, the existing research that does exist on parental involvement laws and teen abortion all points to how unnecessary and even harmful these laws are.
Let’s break it down:
First, let’s look at the argument that legal minors lack the capacity to make the abortion decision. This argument informs the rest of the rationale for these laws, because without the capacity argument, lawmakers and courts would not be able to argue that minors need their parents to help them with these decisions, or that they cannot fully understand the medical or psychological consequences of abortion.
When it comes to capacity, the American Academy of Pediatrics argues that there is no reason why minors under the age of 18 should lack the capacity to have an abortion on without parental oversight, and they point out that the cutoff age of 18 is totally arbitrary, not based in scientific research or fact. It's not like everyone gets a shiny package full of maturity on their 18th birthday, after all.
In fact, the AAP says teens as young as 14 are competent enough to make the abortion decision. Supporters of these laws argue that minors need a parent’s medical consent for lots in lots of cases, and abortion should be no different; essentially trying to frame these laws as child protection laws. But like all abortion restrictions, they are not in the interest of the person having the abortion. Instead they are pro-birth, and in the case of parental involvement laws, pro-natalist.
One need not look further than what minors are allowed to consent to, to understand why, and to see how flimsy the capacity argument really is. Minors may not be allowed to have an abortion without parental or judicial oversight, but they can choose to give birth, and make all other pregnancy related decisions, including having a C-section, a far riskier procedure than abortion. They can choose circumcision, or to have amniocenteses, and in most states can put their child up for adoption without consent or oversight from a parent. In other words, they can make even bigger decisions, that carry bigger health and other risks, including some that impact a child's life as well.
It’s baffling to think that these lawmakers truly believe that minors lack the capacity to make the abortion decision, but not to make any other pregnancy related decisions.
When we look at the ways in which minors are rightly allowed to make pregnancy and parenting decisions, it’s clear that parental involvement laws are not about capacity; they are thinly veiled attempts at limiting abortion access and pushing teens into carrying their pregnancies to term.
Next, let’s look at the argument that these laws encourage familial cohesion. Lawmakers argue that minors benefit from the counsel of their parents, and that without these laws, they might go through the abortion procedure alone without consulting them. And while this argument may seem innocuous on its face, it is not only ignorant of reality, it puts minors in danger.
The majority of minors involve a parent in the abortion decision when they are not required to. So, laws mandating that they do, are wholly unnecessary. Studies show that over 60% of teens involve a parent in the abortion decision, and practically all teens – 99% – involve an adult. What’s more is, there is no existing research that proves these laws actually encourage teens to consult with their parents.
For teens who can’t consult with parents -- or can, but for their safety, really shouldn't -- these laws are at best incredibly inconvenient, and at worst downright dangerous.
Most teens who choose not to involve a parent in the abortion decision do so for one common, sound reason; their parents are or will probably be abusive. Many of them say they validly fear being kicked out of their home, or that they will face violence from family members who disagree with their decision to have an abortion. Some teens fear that their parents will force them to carry their pregnancy to term. And studies show that minors are most often correct in predicting how their parents will react to their decision to have an abortion.
It’s clear then, that while the familial cohesion argument is designed to sound well-intended, it really does not have the best interest of teens, or the facts about what an abortion decision looks like for them, in mind. If lawmakers truly understood how teens make the abortion decision, they would know that requiring parental involvement is unnecessary, and does not actually encourage teens to consult with their parents where they wouldn’t have already. Instead it puts the teens who cannot talk to their parents at risk.
Finally, let’s look at the argument that parental involvement laws safeguard teens against the psychological and medical risks of abortion.
Studies show that abortion, including for teens, is an incredibly safe, low risk medical procedure. It is safer than childbirth, and a cesarean, which again, teens can consent to on their own. The risks for abortion only increase in the later stages of pregnancy, but this is crucial to consider in this context since teens may detect their pregnancies later than adults, and parental involvement laws can cause further delay. So when it comes to medical risks, these laws don’t protect teens. If anything, they put them at a higher risk for needing a later term procedure.
The argument that abortion comes with psychological risks is a common one from the anti-abortion, anti-choice movement, who argue the existence of what they call “post-abortion syndrome,” a kind of PTSD for abortion, is a scourge that affects people who choose to terminate their pregnancies. But American Psychological Association disputes the existence of such a condition, and state that abortion does not carry any more mental health risks than pregnancy. But post-abortion syndrome isn't real and has been debunked by many studies.
Studies show that teens who choose abortion do not face more adverse mental health outcomes than teens who choose to carry their pregnancies to term, and in fact one study found that teens who choose abortion have better financial and educational outcomes. This is of course likely due in part to the lack of resources and support for parenting teens, which is in itself, an important and dire issue.
It’s clear then, that the entire base for parental involvement laws is rooted in falsehoods and pseudoscience. They are at best unnecessary and at worst, harmful. While this might have passed legal muster before Whole Women’s Health, the precedent set in Whole Women’s Health, should mandate a stricter scrutiny of the rationale behind parental involvement laws. This means that advocates and lawmakers would have to come up with support for these laws other than the argument that they encourage familial cohesion, safeguard teens from risks, and that minors are not competent enough to make the abortion decision. Unfortunately for them, there exists no real evidence that these laws are beneficial in any way.
And while so much is uncertain and so scary right now, when it comes to the Supreme Court and the country, and while it is unlikely parental involvement laws will be going anywhere any time soon in the current political climate, it’s important, in the spirit of Whole Women’s Health, to point out the facts. It’s important to champion abortion access for teens and challenge parental involvement laws, not only because doing so is right and just, but also because it’s what science and empirical research tells us to do.