Debunking Abortion Talking Points

Earlier this week, I read an article stating that Alaska Governor Sarah Palin was poised to sign a bill requiring parental notification when minors receive abortions.   It did not seem particularly newsworthy to me at the time – the law as it stands contains a judicial bypass provision, and the Court has ruled on both consent and notification.   One part of the article struck me, however.   In support of the act, a state legislator stated, “‘You want an aspirin, you want to go on a field trip, you need parental consent to do this. This is the only area, because of the constitutional struggle, that we come down to where the parent has no right . . . I so disagree with that.”    I let the idea rest until later that evening when I encountered a piece that repeated the same phrase word for word.   At that point, it occured to me that this is a talking point.   Indeed, if you google the words “consent aspirin field trip abortion” you will see that this chestnut is frequently invoked in support of these laws.   So, I devote this post to debunking the talking point with a point by point critique.

First, the legal points.   While the legislator at least recognizes the “constitutional struggle,” the constitutional issue is rarely mentioned by others and almost never discussed.   Legislators on these topics (and parents) may wish to believe that a person’s constitutional rights begin when that person reaches the age of majority.   This is simply not true.   Minors have a First Amendment right to engage in free speech.   Minors have a Fourth Amendment right to be free of unreasonable searches on school grounds.   The Supreme Court decided that since minors do possess Constitutional rights in these areas, it would be unfair and inconsistent to hold that minors do not have a right to privacy under the due process clause of the Fourteenth Amendment.   Thus, the Supreme Court is merely being consistent in holding that minors possess the same consitutional freedoms as adults.

Now, some may say, “Yes, but this is different!   This is an abortion!”   Parents want to feel that their children will not be having sex and getting pregnant behind their backs.   They’d like to know the facts, presumably to help.   However, this does not mean that all parents want to help.   Some children could be victims of child abuse and reasonably fear that their parents will abuse them physically or psychologically if they reveal their sexual activities.    If the child is a victim of incest, the parent may also be the grandparent, and as horrific as that may be it does happen. The Court seemed to be sensitive to these factors when it ruled.   Moreover, there is a wisdom in the Court’s decision that even anti-choice advocates should appreciate.   If the Court had ruled that a parent had the unchecked ability to consent to an abortion, the necessary corollary to such a ruling would have been that a parent also had an unchecked right to require a minor to have an abortion.   I’m sure that ruling would not be favorable to anyone.

Now, onto the non-legal arguments. First, a field trip is in no way similar factually or legally to abortion or contraception.   A field trip is not a medical procedure of any type, so it’s a false analogy.   Schools require children to get permission slips for field trips and sports and other activities so the school will not incur liability if a child is injured.   It’s a way for the school to argue – “Hey, it’s not my fault your kid got hurt playing dodge ball – you knew the risks and you said ‘okay.'”   There is no similar issue with respect to abortion.   If a judge determines the minor is mature enough for the procedure, then that means she is mature enough to understand the risks and consent to them unaided by an adult.   So, that is an entirely different issue.

Second, the aspirin argument seems closer because administering medicine has a medical component.   However, the aspirin argument is not true – at least not totally true.   While it is the case that parental consent is required for medical treatment of a minor in many states, nearly as many states will allow a minor of a certain age to consent to a medical procedure.   In some states, a child can consent to general medical care – even surgical care – as young as age 14.   (For a detailed report, see here.)   If this is true, then why require the parental permission slip for the nurse’s office?   The same reason the schools require parental consent prior to the field trip – to avoid liability.   If little Karla or Khalil is allergic to aspirin, they don’t want to administer the medication without that knowledge.   So, this assertion is also not what it seems.

In sum, the point is while this line is oft repeated, it is not fully accurate.   As is frequently the case, there is more the matter once one scratches the surface beneath the soundbite.

–Nareissa L. Smith

Cross-posted from the Constitutional Law Prof Blog