Although minors do not have the same legal capacity as adults, they still have full legal rights under the United States Constitution. However, minors do not have the same abortion rights as an adult. Simply put, abortion laws are a set of laws that control the availability of an abortion procedure for women.
According to the Supreme Court’s decision in Roe v. Wade, the Constitution protects a woman’s right to obtain an abortion without excessive government restrictions or legal barriers. The Supreme Court’s decision was based on the constitutional right to privacy. However, although the right of a pregnant woman to choose an abortion is a legal right under the Constitution, states may still restrict the right for a woman to seek out an abotion to some degree.
One such state restriction is the requirement of parental notification for minors seeking an abortion. The majority of states (currently 37 as of 2019) require parental involvement of some sort in a minor’s decision to obtain an abortion. However, the amount of parental involvement in a minor’s decision to obtain an abortion varies by state.
For example, some states are strict and require that a minor provide both of their parents advance notification of their decision to obtain an abortion and obtain written consent from both parents. In comparison, some states are less strict and only require parental notification, but not parental consent. Additionally, numerous states also offer the option of seeking a judicial bypass, in order for a minor to not have to first notify or obtain their parents’ consent.
Therefore, if you are a pregnant minor and are considering an abortion, it is necessary for you to understand how the laws of your state regulate your legal right in obtaining an abortion.
As noted above, a judicial bypass is an alternative option for a minor that allows them to obtain a judge’s consent, rather than their parents’ consent, to get an abortion. The option for a judicial bypass arises from the Supreme Court’s ruling in which they stated that states may not grant parents the absolute right to veto their child’s decision to seek out an abortion.
In order to utilize a judicial bypass, the minor seeking the judicial bypass must file an application with their local state court. Generally, the judicial bypass procedure is completely confidential and free for the minor seeking the order. When considering whether or not to grant the judicial bypass, a judge will consider a variety of factors, including:
- Whether or not the minor has given informed consent to obtaining an abortion;
- Whether the minor is mature enough to have an abortion procedure without the involvement of their parents or legal guardian;
- Whether the minor is emancipated;
- Whether the minor has been informed of all of their pregnancy options; and
- Whether it is in the minor’s best interests to obtain an abortion.
It is important to remember that the judge involved in your case has the sole discretion of whether or not to allow you to have an abortion procedure. If your petition for a judicial bypass was denied, you do have the right to appeal, and the court must reconsider their decision within a short period of time.
Typically the entire process of obtaining a judicial bypass takes less than a couple of weeks. Further, it is important to note that under the constitutional right to privacy, a minor seeking an abortion does not have to inform or obtain the consent of the father of the fetus, whether known or not.
The following is a summary of the minor abortion laws organized by state and the requirement of parental notification and consent.
States that require a minor to obtain the consent of a parent or legal guardian:
- Kansas (requires a minor to obtain permission from both parents, or the parent with primary custody);
- Mississippi (requires a minor to obtain permission from both parents, or the parent with primary custody);
- North Carolina;
- North Dakota (requires a minor to obtain permission from both parents, or the parent with primary custody);
- Ohio (a minor may obtain permission from a parent, step-parent, grandparent, or sibling age 21 or older);
- Rhode Island;
- South Carolina;
- Texas (requires both that a parent be notified at least 48 hours before the procedure and that at least one parent provides consent);
- Utah (requires both that a parent be notified at least 24 hours before the procedure and that at least one parent provides consent);
- Virginia (requires both that a parent, grandparent, or adult sibling be notified at least 24 hours before the procedure and that at least one of the aforementioned people provides consent); and
- Wisconsin (requires a parent, grandparent, aunt, uncle, or adult sibling over the age of 25 provide consent).
States that require a minor to notify their parents or legal guardian of their decision to seek an abortion:
- Delaware (If you are under 16 you must notify a parent, grandparent, or mental health physician, at least 24 hours before your procedure);
- Montana (If you are under 16 you must notify one parent at least 48 hours before your procedure);
- New Hampshire;
- South Dakota;
- West Virginia; and
States that do not require a minor to notify or obtain consent from their parents or legal guardian:
- District of Columbia;
- New Jersey;
- New Mexico;
- New York;
- Vermont; and
As can be seen, the process for obtaining an abortion as a minor may be complicated at first glance, due to the variation of state laws. However, in all states, pregnant minors do have the constitutional right and different options to obtain an abortion. Further, there are numerous different state organizations and programs that allow a minor to confidentially obtain a judicial bypass order at no cost.
Thus, although you do not necessarily need to hire an experienced family law attorney to obtain a judicial bypass or abortion, they may help to make the entire process easier for you. Additionally, many family law attorneys may even take your case pro bono (i.e. work your case for free), depending on their practice and the particulars of your case.