Last week, the U.S. Supreme Court heard arguments in Ayotte v. Planned Parenthood, a case concerning the right of parents to be notified on abortions given to minor children. The case is seen as a bellwether on the court's shifting majority on abortion as well as the future of parental notice and consent laws in 43 states.
Cases like Ayotte are produced by a collision of two powerful interests: The right of parents to participate in major medical and moral decisions affecting their minor children vs. the right of children to have abortions.
Pro-choice advocates have opposed parental notice and consent laws with unbridled passion that often seems more a matter of blind faith than reasoned principle. Recently, Becca Pawling, who heads a women's group in Portsmouth, N.H., explained that opposition is based on the simple fact that "any limitations put on (abortion) is heading backward in time."
Pawling's comment captures how abortion has become a zero-sum game for pro-choice groups: Every curb on abortion is seen as an equal loss for women's rights. It is a view that is not shared by most citizens, who see abortion in the context of other legitimate interests not some absolute right that trumps all other rights.
Polls have consistently shown that a vast majority of Americans, including pro-choice citizens, favor either parental notice or consent for abortions performed on minors. Last week, a USA TODAY/CNN/Gallup Poll showed that 69% of citizens favored requiring minors to get parental consent. Polls routinely show that 75%-80% of citizens favor parental notice.
NO ABSOLUTE RIGHT
The absolutist view is equally at odds with our constitutional traditions. There are no absolute individual rights in our Constitution. The Framers forged a system protecting individual rights while recognizing legitimate countervailing interests of the state. In that balanced system, even such fundamental rights as the freedom of speech and free press, association and religion have been subject to some limitations.
For example, when states prohibit screaming "fire" in a crowded theater, they are not diminishing free speech. Such reckless conduct is not part of any reasonable definition of the right to free speech, just as the categorical exclusion of required parental participation is not part of any reasonable definition of the right to an abortion.
Pro-choice advocates would make abortion the only absolute right in our Constitution, even though it was not fully recognized by the Supreme Court until 1973. Conversely, parental rights have been recognized since the founding of our Republic but are routinely dismissed when they collide with the almighty right to an abortion.
As a pro-choice law professor, I was astonished to find myself on opposite sides with groups such as the ACLU when I helped draft Florida's parental notice amendment to its constitution. In Florida, a child could not get a tattoo or take an aspirin in school without parental consent, but any 12-year-old could walk into a clinic and demand an abortion without notifying her parents of a major medical procedure.
The amendment contained a requirement that any law would include a standard judicial bypass provision. Such bypass provisions allow courts to forgo parental notification for any number of reasons, including rape, incest, risk to the child, or where notification was not in the best interests of the child.
Pro-choice groups in Florida rallied against parental notice, even with a judicial bypass. As I sat in those hearings, I kept wondering whom these groups represent. Most pro-choice Americans favor parental involvement in abortions for minors. It is a hard-core minority that resists any and all limitations. Yet, those are the zealots that tend to give money and seek positions in advocacy organizations. The result is that both the pro-life and pro-choice movements tend to be led by the most extreme, not the most representative, voices of their respective constituencies.
Pro-choice groups generally cite anecdotal accounts of girls who are made pregnant by their fathers or have a history of abuse ignoring the exceptions for such cases under bypass provisions. The fact is that most fathers are not incestuous rapists. Likewise, most parents are not unhinged throwbacks who simply cannot handle juvenile pregnancies. Indeed, parents know a lot more about their children than do abortion advocates or judges. They have the history and connection with their kids to help them get through the trauma of such a pregnancy. Even in the most caring families, though, children often try to hide misconduct rather than face recrimination or embarrassment. The law should not reinforce those inclinations by allowing minors to bar parental knowledge or consent.
What these groups fail to recognize is that the rights of speech, association and religion mean little if parents cannot teach and reinforce moral choices within their families. Family values and integrity are not the enemies of the right to privacy but the very things that privacy is meant to protect.