Parental Notice and Consent for Abortion: Out of Step with Family Law Principles and Policies

Abstract

In 1990, the US Supreme Court in Hodgson v. Minnesota allowed a state to require, with limited exceptions, notification of both parents before a woman under 18 has an abortion, as long as the law provides a judicial bypass procedure. If the judge finds that she is mature enough to give informed consent or that notification is not in her best interest, judicial bypass permits nondisclosure to the parents. The notification requirement is contrary to many of the general principles to family law. The Minnesota statute requires physicians to notify both parents; notice to merely one parent is permissible only if the other parent is dead or cannot be located after a "reasonably diligent effort." Without the judicial bypass procedure Justice O'Connor would have invalidated the statute as unconstitutional, for conflicting with the best interests of the minor, infringing on family autonomy, and failing to foster the state's alleged goal of improving parent-child communication. We are left with a ruling that fails to protect the privacy of family decision making from government interference, fails to uphold court-ordered custody and parental decision making arrangements, fails to recognize state laws allowing minors access to medical services relating to sexual activity, and conflicts with the general rule of requiring only 1 parents' consent before a minor receives medical treatment. The parental notification law can cause serious harm, precipitating a dangerous family crisis where physical, psychological, or sexual abuse is present, and can cause delay in pursuing and abortion until it is too late to get one, causing life-long repercussions. The best interests of minors strongly argue against mandatory parental consent and notification laws.