Published 12/5/2005
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.
Hard-core minority
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.
Jonathan Turley is the Shapiro Professor of Public Interest Law at George Washington University, consultant to the Legislature on the Florida Parental Notification Amendment, and a member of USA TODAY’s board of contributors.
nschultz:
Interesting analysis.I can honestly say I have never seen an argument made that the root cause of the teen pregnancy problem lies at the door of poor sentence diagramming, but perhaps you have a philosophical point. What you don’t have is an historical point since your statement that you will never permit a child of yours to set foot in a public school stands in diametric opposition to your concluding line that you will “stick with the Founding Fathers, thank you very much.”
No less a mind than Mr. Jefferson himself full well understood the absolute need for public education:
A system of general instruction, which shall reach every description of our citizens from the richest to the poorest, as it was the earliest, so will it be the latest of all the public concerns in which I shall permit myself to take an interest.
–Thomas Jefferson to J. Cabell, 1818.
It is highly interesting to our country, and it is the duty of its functionaries, to provide that every citizen in it should receive an education proportioned to the condition and pursuits of his life.
–Thomas Jefferson to Peter Carr, 1814.
By… [selecting] the youths of genius from among the classes of the poor, we hope to avail the State of those talents which nature has sown as liberally among the poor as the rich, but which perish without use if not sought for and cultivated.
–Thomas Jefferson: Notes on Virginia, 1782.
Instead of an aristocracy of wealth, of more harm and danger than benefit to society, to make an opening for the aristocracy of virtue and talent, which nature has wisely provided for the direction of the interests of society and scattered with equal hand through all its conditions, was deemed essential to a well-ordered republic.
–Thomas Jefferson: Autobiography, 1821.
I do most anxiously wish to see the highest degrees of education given to the higher degrees of genius and to all degrees of it, so much as may enable them to read and understand what is going on in the world and to keep their part of it going on right; for nothing can keep it right but their own vigilant and distrustful superintendence.
–Thomas Jefferson to Mann Page, 1795.
Above all things I hope the education of the common people will be attended to, convinced that on their good sense we may rely with the most security for the preservation of a due degree of liberty.
–Thomas Jefferson to James Madison, 1787.
The same sentiment was expressed by Madison, Mason, Franklin, and scores of other patriots who fully understood the basic premise that Jefferson so eloquently stated in 23 words:
“If a nation expects to be ignorant and free, in a state of civilization, it expects what never was and never will be.”
–Thomas Jefferson to C. Yancey, 1816.
The question asked “Does a minor have the right to say ‘no’ to an abortion?” is actually a legitimate question. Legally, of course she may say “no,” however the moral hazard with abortion and birth control laws that give minors full consent without any parental notification is that in such a situation the girl will be persuaded by peers and or teachers and doctors to have an abortion.
This came to the fore when Portland Maine allowed 12-year olds to go on the Pill wihout parental consent. Children in public schools are taught that having sex is ok, but teen pregnancy is not. Therefore, a 13-year old who becomes pregnant and wants to have the baby will most definitely be persuaded by her teachers and doctors to have an abortion because, according to Planned Parenthood, “Abortion is safer than childbirth.” Plus, she will be well aware that having a baby at that age is socially unacceptable. Pregnant teenagers give school districts a bad reputation, therefore the school authorities will do everything they can to prevent such a situation.
Obviously, the problem here is that the schools and abortion crusaders, have a “feminist” agenda that declares women, including children, have a “right” to great and “natural” “fulfilling” sex lives. The problem is that they do everything in their power to take away the rights of parents to influence their own childrens’ moral upbringing.
Honestly, the best solution to preventing teen pregnancy is to let kids be kids and parents be parents. I graduated high school in 1994. Did kids in high school have sex? Yes, to some extent, but mostly kids in 11th and 12th grade, definitely NOT 12 year-olds. I know for a fact that I didn’t even know what sex was at age 12 (I only had a vague concept before 9th grade – age 14). When I was 12 years old we still rode our bikes around the lakes; oral sex wasn’t even a concept back then.
By the time my brother graduated 4 years later, though, the whole school system had fallen apart; half his class didn’t graduate on time. Then news stories started coming out about 12-year olds actively engaging in oral sex, as if it was as common as riding their bikes around the lakes. It has consistently gone downhill since then.
Why the change? I’m not sure, but I do know that they did change the style of teaching sometime between when I entered Kindergarten (~1981) and when my brother entered Kindergarten 4 years later. I know because I learned to read and write proper English right away, but when my brother’s teacher showed my mom his “Wonderful, creative, expressive” writing assignment, my mom flipped out at the teacher for showing her a piece of paper displaying absolute gibberish. The teacher told her that the new style of teaching was to allow children to “express themselves.” Thanks to that nonsense, my parents forced both my brother and me into some rigorous private tutoring sessions and we were subjected to what I refer to as Grammar-Nazi flashcard sessions every night for years.
The point is that the whole notion of teaching children to “express themselves” instead of reading and writing proper English, is the same mindset that suggests that children (now including Kindergarteners) are “sexual beings” who must be allowed to “fulfill their desires” without having to face the consequences of their actions.
Although, I must say, the whole Lewinsky scandal must have had some influence, since the news stories of 12-year olds having oral sex began occurring while I was in college, and, well, guess who was President back then?
I’m personally pro-choice, but I must say that if I ever have children, the very LAST place I would ever allow them to set foot would be in a public school. I would NEVER allow anyone else to control and mis-educate my children just for the sake of a warped special-interest group’s need to push their agenda on a Liberty-loving, Constitution-abiding society. I’ll stick with the Founding Fathers, thank you very much.
sorry meant inbred. ps you sicken me. tom, hows your son? x
just putting it out there but are you and your sister imbread? how did the birth go in the end, she must have had it by now?
Thomas:
She always has a right to say “no” to any medical procedure. I know of no physician who would attempt a procedure with clear evidence of the patient’s opposition. The question seems to be does she have a right to say “yes” or maybe I am missing your point?
I have a 13 year old sister who is two weeks pregnant and does she have a right to say no for a abortion.