by Joni Baird
A new law in Utah, approved in March, offers one of the latest examples of the anti-abortion effort to limit access to family planning services and thus chip away at a woman’s right to choose. This law requires young women under eighteen who seek an abortion to first secure at least one parent’s permission. Although an exception to this can be sought in juvenile court (on grounds of a doctor’s determination regarding life or health, or in cases of incest, abuse, or estrangement from parents), there is no exception for the law’s parental notification requirement.
This latter provision may be the law’s undoing. In one of
the majority opinions of the U.S. Supreme Court’s eight-to-one ruling in Baird
v. Bellotti (1979), four of the justices found a Massachusetts law
unconstitutional in part because it required “parental consultation or
notification in every instance, whether or not in the pregnant minor's best
interests, without affording her an opportunity to receive an independent
judicial determination that she is mature enough to consent or that an abortion
would be in her best interests.” Because this case is so crucial for defending minors’
abortion rights, concerned activists need to understand its history and
meaning.
Baird v. Bellotti began when the Massachusetts legislature, overriding the governor’s veto, passed a law in 1974 requiring all minors, unless married, to obtain written consent of both parents or, if neither would do so, of a superior court judge. Abortion rights pioneer Bill Baird (who two years earlier had achieved a Supreme Court victory in Baird v. Eisenstadt that secured the right of unmarried people, including minors, to birth control) instituted an immediate legal challenge. He obtained a temporary restraining order from a federal judge so that his and all Massachusetts family planning clinics could continue providing abortions to minors. His case involved three teenage patients: Mary Moe I, II, and III.
What followed was a five-year uphill battle. In the
beginning of the challenge a district court invalidated the Massachusetts
statute. This led to the first round of Baird v. Bellotti being heard on
appeal by the U.S. Supreme Court. In 1976 the justices remanded the case to the
lower court in order to give the legislative body a chance to make the statute
more flexible. But the legislature didn’t so act because the Massachusetts
Supreme Judicial Court upheld the law’s constitutionality, holding that the
issue before a superior court judge isn’t whether a minor is capable of giving
informed consent but if an abortion is in her best interest.
The case was then returned to the district court, a three-judge panel which held, in October 1977, that the statute was unconstitutional because of its absolute requirement of parental consultation, placing an improper burden on the right of a mature or immature minor. This led to the case eventually reaching the U.S. Supreme Court again, which on July 2, 1979, declared the statute unconstitutional, concluding that “every minor must have the opportunity—if she so desires—to go directly to a court without first consulting with or notifying her parents.” The Court also provided an overriding principle, and a bold rebuke to the Massachusetts legislature, when it stated: “The Bill of Rights is not for adults only.”
But the struggle wasn’t over. In the wake of the case, a controversy developed because the Court had applied the right to bypass parental involvement only to one who was a “mature minor”—though the Court provided a vague leniency when it said that if a “pregnant girl fails to show she is competent to make the abortion decision, she must be permitted to show that an abortion nevertheless would be in her best interest.” This led the National Abortion Rights Action League to declare in the July 2, 1979, Boston Globe that the ruling took “a step backward” and was “burdensome to teenagers.” Baird himself asked how one would define a mature minor, arguing that it was ludicrous that one so designated should be granted an abortion while an “immature minor” would be forced to have a baby and become a parent. Even more absurd was that, once she gave birth, the minor became emancipated and therefore legally “mature.” As a mother she no longer needed permission for an abortion!
Since the 1979 decision was handed down, however, the High Court has revisited parental consent and notification cases, mostly reaffirming or fine-tuning the Baird v. Bellotti decisions. States have followed suit. On March 6, 2006, the New York Times was able to say: “Nearly all state parental involvement laws allow for minors to bypass their parents by going through a judge.”
Thus, through a pair of Supreme Court victories--Baird v. Bellotti I in 1976 and Baird v. Bellotti II in 1979--Bill Baird won for minors the right to seek abortion without parental notification or veto. This means that any state with a parental involvement law affecting a teen seeking an abortion must establish a separate procedure through which parental involvement can be waived.
We’ll no doubt soon see what that means for Utah.
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Joni Baird is the co-director of the Pro Choice League (www.prochoiceleague.org) a nonprofit, tax exempt organization through which she and her husband Bill Baird lecture on this and related issues. Both have written frequently for the Humanist and can be reached at bbaird322@aol.com.