In the companion cases of Roe v. Wade and Doe v. Bolton, the United States Supreme Court acknowledged that a woman has the right to terminate an unwanted pregnancy. This right is fundamental and is encompassed within the constitutional right to privacy. Despite the Court's definitive position, many tangential issues regarding abortion remain unresolved. One such issue which the Court raised but did not decide in Roe concerns the constitutionality of statutes requiring parental consent in addition to the minor's consent before the minor can have an abortion. Of all the decisions handed down by state and federal district courts on this issue, only one, Planned Parenthood v. Danforth, has held that such statutes are constitutional. All others have found them to be unconstitutional. Since certiorari has been granted in Danforth, it is assumed that the Supreme Court will soon speak definitively on whether a parental consent provision in an abortion statute is constitutionally permissible. This Comment analyzes the constitutional question presented by these consent statutes. The analysis requires a multi-tiered approach. Initial focus is on the individual's right to decide to have an abortion, with a concomitant examination of the Roe and Doe decisions and their implications. The next area of consideration is whether a minor enjoys this same constitutional right. If she does have the right to decide to terminate her pregnancy, does the state have an interest in this matter that is sufficiently compelling to justify infringing on this fundamental right? Furthermore, if the state does have such an interest, are such restrictive state statutes necessary to achieve the state's objectives, or can the result be achieved by a less onerous means? This Comment examines the two objectives, which usually are espoused as justifying the consent statutes: preserving parental control over children and thereby solidifying the family unit, and ensuring that the minor's decision is intelligently made. To understand this latter objective better, the Comment discusses the issue of a minor's ability to consent to medical treatment. From the foregoing analysis, the conclusion is that parental consent statutes in the abortion area, as presently drafted, do not pass the constitutional test. The final section of this Comment considers whether a statute can and should be drafted that will satisfy the state's interest and yet not place unconstitutional constraints on a minor seeking an abortion.
Roberta S. Stick,
Abortion: An Unresolved Issue—Are Parental Consent Statutes Unconstitutional?,
55 Neb. L. Rev. 256
Available at: https://digitalcommons.unl.edu/nlr/vol55/iss2/4