This week’s column is one that may be controversial to some, as it involves the issue of abortion. Although controversial, I feel that it is important to answer this question posed by a minor regarding her legal rights to obtain reproductive health services. Everyone has the right to receive accurate legal information despite the lawyer’s personal perspective or beliefs.
Q: Alicia (name changed to protect identity) asks: “I am 16 years old and I am pregnant. I am afraid to tell my parents as they are very conservative Christians. I want to speak with a doctor about an abortion, but I am afraid that they will tell my parents. My dad gets really angry and I am afraid that he would flip out and beat the crap out of me and make me have the baby. It was a terrible mistake, but I am too young to be a mom. If I go to the doctor and do decide to proceed with an abortion, do I have to have my parents’ permission?”
A: Alicia, this must be a very difficult time for you. This is a hard question for me to answer as I am a father as well as a lawyer. Although my daughter is only 6, I find myself torn by your question. As a father, it saddens me that your relationship is so strained that you fear violence if you reach out to your parents. I hope that I can develop and maintain a relationship with my daughter where she could feel comfortable telling me anything — even this. This is a decision you should make carefully and, no matter what your decision is, I hope there is someone whom you can reach out to for support at this time.
California law is very strong in the area of personal privacy, especially in the area of reproductive rights and choice. The California Constitution Article 1 Section 1 sets forth the constitutional right to privacy, which includes informational privacy and privacy over medical decisions and information. In 1987, the California Legislature passed a law requiring parental consent by minors before they could receive abortions. The law never went into effect because it was stayed pending various challenges in the appellate courts.
In 1997, the matter finally came before the state Supreme Court in the case of American Academy of Pediatrics v. Lungren. The court, in preamble to its decision, recognized the controversy surrounding abortion, stating: “We emphasize at the outset that the morality of abortion is not at issue in this case. The morality of abortion is not a legal or constitutional issue; it is a matter of philosophy, of ethics, and of theology. It is a subject upon which reasonable people can, and do, adhere to vastly divergent convictions and principles.”
The court indicated that while it would indeed be desirable for a minor to be able to have parental involvement in making such a significant decision, the law would have its most significant impact in those instances in which a pregnant minor was too frightened or too embarrassed to disclose her condition to a parent (or to a court).
The court stated that while, generally, medical treatment should be provided to a minor only with the consent of his or her parent or guardian, there are a number of medical emancipation statutes that permit minors to obtain medical care without first obtaining parental permission. Recognizing that the California Constitution provides an express right of privacy not so stated within the U.S. Constitution, the court stated that a state constitutional right to privacy and choice are broader and more protective of privacy rights than federal laws. Although the proposed law contained a proposed judicial bypass process where a minor could seek to go to the court, instead of her parents, to obtain permission, the Supreme Court held that resorting to such a judicial procedure inevitably would delay a minor’s access to a medically safe abortion, thereby increasing the medical risks The final ruling of the court was that the parental-consent law was unconstitutional as a violation of a minor’s constitutional right to privacy.
So, Alicia, a minor female in California has the same rights to have an abortion as an adult. If upon examination and consultation with a physician you are deemed competent to make this decision, then you are legally capable of making it. I hope that you can get guidance and support from some adults whom you do not feel threatened by as you make this decision.
Christopher B. Dolan is owner of the Dolan Law Firm. Email questions to firstname.lastname@example.org.