More than a Minor Burden: A Post-Whole Women's Health Analysis of Parental Involvement Laws

Abstract

In 2016, the Supreme Court heard Whole Women’s Health v. Hellerstedt, arguably the most consequential abortion case in decades. The ruling set an important precedent by requiring stringent attention be paid to the body of evidence needed to prove a law does not pose an undue burden on abortion access. The Court, in its decision, stressed the importance of relying on empirical evidence and research, and disregarding pseudoscience, or arguments that lacked sufficient factual support. In doing so, they allowed for a challenge to parental involvement laws. Parental involvement laws currently exist in 37 states, and require minors to either notify or obtain consent from a parent before having an abortion. If notice or consent is not feasible, a judicial bypass option must also be available, where a minor can go to court to obtain consent from a judge. These laws have been long upheld by the Supreme Court, which argues that they are necessary for three reasons: that minors lack the capacity to make the abortion decision, that they encourage familial cohesion, and that they safeguard minors from what they argue are the medical and psychological consequences of abortion. But empirical evidence, and long-standing research shows that minors have the capacity to make the abortion decision, and that the majority of them do so with a parent, without states mandating they do so. Abortion is an incredibly low-risk procedure, and study after study proves that abortion does not lead to mental health issues. The precedent set forward in Whole Women’s Health brings into question the Court’s long-held justifications for parental involvement laws. Should a challenge to parental involvement laws come before the Court, it would require the Court to consider the existing research and empirical evidence on what the abortion decision looks like for minors, which would effectively delegitimize their current arguments in favor of parental involvement laws. This Note examines the Court’s arguments for parental involvement laws, and lays out the evidence to the contrary, proving that the Court’s support for parental involvement laws is not grounded in research, empirical evidence, or reality. It will also look at anti-choice pseudoscience and the inherent harms of parental involvement laws and judicial bypass. Thus, this Note will illustrate how a post-Whole Women’s challenge to these laws might succeed.