Teen Access to Abortion: An Interview with Carol Sanger

Carol Sanger is the Barbara Aronstein Black Professor of Law at Columbia Law School, and one of the foremost scholars on reproductive rights and abortion law in the nation. She has written extensively on the issue of teen access to abortion, including in her new book, About Abortion, and I got the chance to pick her very brilliant brain about why this issue matters, what teens should know going into it, and how they can better advocate for reproductive justice for their peers and themselves.

 Tell us a little bit about what first drew you to writing about teen access to abortion.

As a Family Law teacher, I began to notice pretty early on that one particular category of family members — teenagers — seemed to get the short end of the stick in terms of their rights and their position within our legal system. The problem for lawmakers has been the “in-between” status of teenagers: they are certainly not children who must do everything their parents say, but they are not quite adults either. This puts minors (anyone under 18 years of age) in a kind of legal limbo with regard to the kinds of decisions they might want to make for themselves.

One of the clearest examples of this is a pregnant girl who wants to end her pregnancy. In most cases parents get to make medical decisions for their teenage children. But abortion is more than a medical decision; it is also a right under the U.S. Constitution that the Supreme Court has held applies to teenagers as well. As a law professor, I want those under 18 to be able to make this deeply personal decision, involving a parent if they want to, but being absolutely able to make it for themselves if there are reasons they don’t want to involve parents. I believe the law shouldn’t make life harder for pregnant adolescents — to do so is a misuse of law — and that is why I turned my attention to this issue.

Can you give us a quick overview of what teen access to abortion looks like right now in the U.S.?

I would say I am delighted to give you an overview, except there is nothing too delightful about the overall picture. Thirty-seven states now require that a pregnant minor must either get the written consent of their parents (one or both depending on the state) before they can themselves consent to an abortion, or they must notify them and bring a signed notification to the clinic before they can consent. If they don't want to involve them, they can instead go before a local judge and at a hearing, convince them they're mature and informed enough to make the decision by themselves. The Supreme Court has approved this system because it first acknowledges that parents have authority over what their children do, but it offers an “end-run” around the parents if the minor chooses not to involve them. In this way, the hearing “bypasses” the parents: that is why it is called a “judicial bypass hearing.”

On the brighter side, some states, like New York, treat pregnant minors like adults for purposes of consenting to abortion, and others like Delaware provide for an alternative to involving one’s parent. Teens there can notify a grandparent or a health care professional; pregnant teens in Maine can get consent from a parent or another adult family member or from clergy. Adults can be involved in meaningful ways without igniting whatever issues concern a minor about their parents.

Why do you think people, even liberals, are so reluctant to talk openly about why teens should have unrestricted access to abortion?

I think the answer has to go with attitudes about sex rather than with attitudes about abortion. To grant minors unrestricted access to abortion in the United States is taken as an indication that lawmakers think minors should be out there having sex, and this will only encourage them to do so, since it removes one of the wages of sexual sin. We should of course remember that there is no sin in the Constitution.

There are other examples where medical decision making is derailed on account of its relation to sex. Consider the HPV (human papilloma virus) vaccine, which prevents cervical cancers and is most effectively administered in the preteen years. A fair number of parents in the U.S. refuse to consent to the vaccine out of concern that even just explaining what the vaccine does introduces the idea of sexual intercourse to their kids. For these parents, the matter is moral and not medical.

A second ground of opposition to unrestricted abortion access is that some people — even liberals like Bill Clinton, who as Governor of Arkansas signed that state’s parental involvement law — say young people should have a caring adult involved in their decision or some adult should know in case medical complications arise. This is why, the argument goes, there should be restrictions on abortions for sexually active teens.

There are a few things wrong with this. First, abortion is astonishingly safe, and should any complications arise, the minor should go straight to an emergency room, as she will be advised before leaving the clinic. Second, in a lovely world brought to us by Hallmark Cards and the Disney Channel, parents would be involved because they love their children and open communication flows. But families are not uniformly supportive of their children when they become pregnant; some think they should live with the consequences of their behavior (that is, they should be punished by motherhood). Other parents hold, mostly on religious grounds, that no one should ever have an abortion no matter what the circumstances and with no exceptions. Still other parents have their own problems — depression, immigration status, disagreement between parents on abortion — that make a teenager’s decision not to include them in the matter a rational, sensible decision.

Lawmakers, who must all have perfect parent-teen communications within their own families, pass laws that assume this is true for all families, even though we know this isn’t the case (probably even for all “perfect families”). This leads back to the first part of my answer. Many girls don’t tell their parents about an abortion because that is proof of pregnancy and that in turn is proof of sex. And that is what they don’t want to their parents to know about.

Why do you think the issue of teen access to abortion is so crucial?

Deciding whether or not to become a mother is always an important decision and one that for many reasons a pregnant person may want to think about. After all, parenthood, especially motherhood, is an enormous, long-term commitment that necessarily changes the shape of one’s life. This is true even when a pregnancy and the eventual child are totally wanted. When a pregnancy is unplanned or unwanted (and these are two different things), the decision to become a parent may become harder because, as nice as babies may be in the abstract, the reality of parenthood [again, especially motherhood] may mean putting aside plans someone already has for themselves that they know will improve their life and perhaps make them a better parentin the future, if that is what she wants. In this way, teens have much more at stake in making this decision than older people. They are only now setting their adult path.

Once a teen has thought the decision over, talked to people they trust, made up their mind, and even gone through a bypass process in states that require it, the next step is actually getting the abortion and this too takes planning, time, helpers, and money. In this way, access has two parts. The first is the legal part of getting permission from a judge or your parents (should you want to involve them) and consenting to the procedure.

The second crucial part to access is practical. Where is the nearest clinic or doctor who performs abortions? How do you get there? Where do you come up with the money? How do you take time off from school? Depending on your state, there may be online resources to guide you, like Jane’s Due Process in Texas or Women’s Law Project in Pennsylvania or a regional Planned Parenthood office.

But to go back to your main question. Access to abortion services is crucial because teenagers have the same interests as those18 and over in deciding the shape of their lives and the composition of their families — when, with whom, and how often they want to have a child. The Supreme Court of the U.S. recognized this in 1979 when it said: “There are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.” It specially noted that: “Considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor.”

Access to abortion is also important as a matter of gender equality. Some man or boy has [typically] participated in bringing about this pregnancy [in someone else's body]. Compared to the person who is pregnant [most often a woman or girl] unable to access abortion care, he can go to college, join the army, or get a job without having to give any thought at all to her situation. In the 21st century, we think men and women have the same talents and potentials. Access to abortion makes this possible in fact and not just in theory.

What is one piece of advice you, as a lawyer with an understanding of the legal landscape of the law, would give to a teen facing the judicial bypass process?

Great question. I would say first of all, take a deep breath. Going to court for almost anything can be scary, even for adults. Just going to the courthouse alone can be intimidating: people with briefcases and clipboards running around who seem to know what they are doing and benches filled with nervous-looking people on them. People usually don’t associate good things with court houses (except maybe getting married or renewing a fishing license). You might also want to think of some reason you can say you are there (working on school report; social studies assignment; getting forms for a work permit; just looking around) just in case you bump into someone you know who asks why you are there. In the back of your mind, keep hold of the thought that you are there because the United States Supreme Court says you have the right to be.

You aren’t doing anything wrong: pregnant people in the United States may legally choose to terminate a pregnancy. Third, you will have a lawyer to guide you through the process. This is good and makes things much easier. Look over the questions your lawyer plans to ask you ahead of time. Practice your answers out loud, so you won’t be saying them for the first time in court. (It isn’t always easy to say personal words like “cervix” or “pregnancy” or “intercourse” or “condom” in front of other people, should any of these be part of your answer.)

Depending on your state and your judge, the hearing might be over within ten minutes and even if it takes longer, just stay cool, listen carefully, and speak as clearly as you can. In a week, this will be history and you will be your normal self again, ready to move forward with your life. Remember that the law in your state is making you go through this process, but a bunch of other states think the whole thing is unnecessary and a pregnant teen ought to be able to make this decision by herself. Finally, remember that by filing the papers and getting yourself to court, you have demonstrated a lot of maturity already and that is what the judge is looking for.

What can teens to do advocate for better access to abortion?

Advocating for better access to abortion is a process that is going require a lot of patience and some degree of bravery. Bravery might include going on a public march, which helps underscore that you are certainly not alone in this. But bravery also comes in quieter forms, say, simply by talking to people you trust. Abortion talk doesn’t have to be in the context of an actual abortion decision either. But it is important to educate yourself about how pregnancy occurs and how to prevent it as well as what one’s options are if you or a sexually active friend is faced with an unwanted pregnancy. That means investigating the laws in your state and the available resources.

At a more personal level, it may mean not to turn your back on someone who has made this decision. The point here is that lots of people think they don’t know anyone who has ever had an abortion. Considering that 700,000 women a year have abortions, everyone probably does know someone; they just don’t think they do and that is because women keep abortions very quiet. One way to think about abortion access is to imagine what it would be like if [cisgender] men got pregnant. Doing that little thought experiment (the “what if”) clarifies that as a society we can surely do better.

In an ideal world, what do you think teen access to abortion looks like?

I like this question because it shows that the promise of an ideal world, or at least a more compassionate world, still exists. So, ideally, I would first get rid of the strict parental notification requirement and follow New York’s “treat girls like women” scheme or Maine and Delaware’s “other trusted adult” model. If legislators can’t get their heads around that, then they should at least lower the age of parental involvement laws to 15 so that they no longer apply to 16- and 17-year-old teens (who constitute the great majority of girls who seek bypass hearings).

Second, I would get rid of many of the regulations that now apply to minors and adults alike. I have in mind special scripts that physicians must read to abortion patients telling them the fetus feels pain (neurologists believe the fetal nervous system does not “gel up” until around 26 weeks) or that there are links between abortion and suicidal thoughts, or between abortion and breast cancer. I would get rid of 72 hour waiting periods and treat abortion like all other medical services that take a patient’s consent seriously. Oh yes, and let’s get rid of the requirement that Texas put into play that fetal remains must be buried or cremated.

Third, I would urge young people to inform others that most pregnant teens already discuss their decision with at least one parent. In this way, the statutes are particularly cruel because they rope in only those girls who legitimately feel they cannot. The moment of a teen’s pregnancy diagnosis in hardly the time to work on better communications in the family, if it isn’t already in place.

How can teens spread understanding of parental involvement laws and why they aren’t necessary?

First, it is legal in most states for minors to have sexual intercourse with other minors at age 16. If we let them make that decision, it seems peculiar and cruel not to let them make decisions regarding the possible outcomes of sex. We also let pregnant minors at any age decide to keep their pregnancy and have a baby. Fifteen-year-old mothers face a significant amount of challenges, but we treat that as an acceptable decision that requires neither parental consent nor a judge’s permission.

Legislators pass parental involvement statutes because it is one of the few places where the Constitution gives them some wiggle room around Roe. Almost all bypass hearings end up approving the minor’s petition because judge finds them mature and informed enough to decide what is best for them to do. Thus, the statutes don’t really accomplish anything except to make vulnerable girls (vulnerable because they are pregnant and isolated in this process) suffer more in resolving this common reproductive problem. Remember, people become pregnant for all sorts of reasons — including coercion and bad luck — and making a decision that is best for themselves, their existing children, and their future children is nothing to be ashamed of.