A bit more on Girls On the Stand: How Courts Fail Pregnant Minors, Helena Silverstein's book on how parental bypass policies in the abortion arena work in the real world.
Most abortion cases tend to be class actions and/or facial challenges. Some are brought before the laws ever went into effect or criminal/civil burdens inflicted. See, e.g., the declaratory judgment nature of Poe v. Ullman, an early contraceptives case. The nature of the controversy and the people involved make it hard if not impossible for full appellate review to deal with cases of individual litigants in this context, Griswold v. Connecticut (contraceptives) showing the acceptance of using things like third parties (e.g., doctors) as surrogates of sorts. Roe v. Wade itself was a class action. When the representative of the state noted he did not think it might not be possible for a litigant to bring such a case, one justice quipped he figured there was at least one member of the class that could serve that function.
All the same, the Roberts Court is no fan of facial challenges, especially since few laws are trouble in every possible application. Thus, we had a voter id case (plurality by Stevens) that held -- for now -- an id law that clearly would be discriminatory as a general matter was legitimate. In limited areas, especially those involving free speech (but also things such as executing minors), a substantial threat of unconstitutional consequences will lead to the whole law being struck down. In practice, the risk is just too great, rights held in abeyance until a successful lawsuit is held. There are pluses and minuses to this policy, but if the interest is great enough, I'm with those who be wary of overbroad laws that sweep too many rights away.
After Casey, with some exceptions, this all the same is often the result of facial challenges of abortion laws. Most recently, the second 'partial birth' abortion case, which with all the noise, still left open some room for an "as applied" challenge. Another technique, which arguably has its own problems, is for the courts to hold that parts of the law are unconstitutional, and shave those parts off. Since laws are passed as balls of provisions, with various political reasons for doing so, this can be troubling in various ways. If "x" is not in a law, perhaps some might not have voted for it. It also allows legislators a free pass; for instance, some said not to worry about a problematic part of the McCain/Feingold campaign finance law, the courts will handle things. They did not hold it unconstitutional; it would be troubling even if they did.
Justice O'Connor's last opinion, the rarity of an unanimous abortion ruling (I know of one without dissents, but even there, three only concurred in judgment), covered just such ground. It held that a NH parental notification law need not be totally overturned if the only problem was a lack of a medical emergency exception. For our immediate purposes, its only substantive footnote is rather telling:
It is the sad reality, however, that young women sometimes lack a loving and supportive parent capable of aiding them “to exercise their rights wisely.” Hodgson, 497 U.S., at 444; see id., at 450—451 and n. 36 (holding unconstitutional a statute requiring notification of both parents, and observing that “the most common reason” young women did not notify a second parent was that the second parent “was a child- or spouse-batterer, and notification would have provoked further abuse” (citation omitted)). See also Department of Health and Human Services, Administration on Children, Youth and Families, Child Maltreatment 2003, p. 63 (2005) (parents were the perpetrators in 79.7% of cases of reported abuse or neglect).
Hodgson is a case where the Court did have the benefit of how the two parent notification/bypass law worked in practice. For instance:
During the period between August 1, 1981, and March 1, 1986, 3,573 judicial bypass petitions were filed in Minnesota courts. All but 15 were granted. [n.28] The judges who adjudicated over 90 of these petitions testified; none of them identified any positive effects of the law. [n.29] The court experience produced fear, tension, anxiety, and shame among minors, causing some who were mature, and some whose best interests would have been served by an abortion, to "forgo the bypass option and either notify their parents or carry to term." Finding 44, 648 F. Supp., at 763. Among parents who supported their daughters in the bypass proceedings, the court experience evoked similar reactions.
The footnotes provide more detail. See also, Justice Marshall's partial dissent. Silverstein notes that there are various arguments in support of parental involvement, especially in the more prevalent one parent consent or notification context. In fact, if a teenage girl has an abortion without telling her parent, in a few cases her very life might be in danger, since negative consequences without parental knowledge can lead to tragedy. All the same, not only does this only suggest the need of some sort of support, there are negatives all the same. Sometimes, it can be downright dangerous to force parental involvement. Many are nearly adults already. Thus, the Supremes set up the judicial bypass option, though (currently) it is not totally clear if it is constitutionally required in the case of one parent notification.
Silverstein's book provides a snapshot at the problems of the bypass option in practice. The quote suggests an anomaly in itself: judicial bypass might be seen as an end around of the parent, but this does not mean the judge would necessarily always agree to supply the okay. The rule is if the minor is mature/informed and/or it is in her best interests. The numbers suggest, even in rather conservative states or in front of various clearly pro-life judges, most petitions are granted. Still, you might say there is a point here, since the teen is provided with some guidance, one might assume by a party more neutral than abortion providers. And, many states have policies setting up child welfare officials to provide guidance to the teen as well.
And, some guidance is probably a good idea. A unique example that might be the best policy is Maine's law that (quoting Marshall's opinion) "requires that a minor obtain the consent of a parent, guardian, or adult family member; undergo a judicial bypass; or receive counseling from the physician or a counselor according to specified criteria." He also notes Wisconsin sets up a possibility of abortion providers determining the teen should notify "another family member, close family friend, school counselor, social worker or other appropriate person." Silverstein unfortunately does not cover this ground, but problems with current bypass laws does leave open some procedure to provide some (mandatory) assistance for teens outside of biased (if still bound by ethical and legal rules) abortion providers.
Silverstein covers the "myth of rights" and the "gap" between what is ideally the law, as in what is in the statute book or constitutions, and the practice on the ground. This includes ignorance, inefficiencies/negligence, bias, and blatantly illegitimate (if, under Casey, at times "constitutional") practices. This includes forcing teens to go to sectarian pro-life counselors (trouble on First Amendment grounds, as informed consent laws in general sometimes are, including those that require doctors to speak of unborn "children" and the like), use of fetal advocates that often browbeat the teens involved, and judges who refuse to take part in carrying out the law on moral grounds. Time often is an enemy here -- weeks of delays can push the abortion to late in the second trimester, especially given teens for various reasons wait longer any way.
The dangers of trusting laws you know are likely to be trouble in practice (see Justice Stevens' concurrence) is shown in Justice Blackmun's dissent of a Ohio law, outside the main scope of the book (which focuses on Pennsylvania, Tennessee and Alabama in particular). The excited tone of such opinions might trouble some, but Silverstein's book suggests is earned.* In summary:
The pleading requirements, the so-called and fragile guarantee of anonymity, the insufficiency of the expedited procedures, the constructive-authorization provision, and the "clear and convincing evidence" requirement singly and collectively cross the limit of constitutional acceptance.
The majority, though O'Connor and Stevens didn't join this part, declared that it would "deny all dignity to the family" to overturn a law that would "give a lonely or even terrified minor advice that is both compassionate and mature," especially one with a legitimate bypass option. The real world can be a bit more messy. A lesson touched upon in the abortion context here, but one with wider lessons in the policy and legal arena as well. A suitable shot at CJ Roberts' comment on his role as an "umpire" is included ... that is as faulty as these laws in practice.
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* Justice Marshall truly was harsh here, as a biographer noted, reflecting his anguish of where the country was going. In one dissent, he (probably illegitimately) not only said Roe was obviously good law, but obviously good policy. Here is a taste of his anger back in 1977, involving a funding ban [cites removed]:
The enactments challenged here brutally coerce poor women to bear children whom society will scorn for every day of their lives. Many thousands of unwanted minority and mixed-race children now spend blighted lives in foster homes, orphanages, and "reform" schools. Many children of the poor, sadly, will attend second-rate segregated schools. And opposition remains strong against increasing Aid to Families With Dependent Children benefits for impoverished mothers and children, so that there is little chance for the children to grow up in a decent environment. I am appalled at the ethical bankruptcy of those who preach a "right to life" that means, under present social policies, a bare existence in utter misery for so many poor women and their children.
Likewise, he noted there seemed no reason, except for opposition to abortion, to deny a bypass for teenagers. Surely, there are a few cases where teens are in effect coerced (including by their parents) or truly did not fully contemplate the situation. We can be talking about twelve or thirteen year olds in some cases, though here the "best interests" prong seems to kick in. All the same, even taking into consideration this subset, the current regime is a poor way to handle them.