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Judges deny 25% of abortions for minors

Regarding your Aug. 9 piece on the Juvenile Court’s treatment of petitions from minor girls seeking permission to obtain an abortion: I think the real news is not that most girls receive permission, but that one-fourth or so do not.  I find that surprising.  My guess is that it says something about the extraordinary caution, perhaps political caution, of our state’s judges.  Let me explain why I make that guess.

The law here all comes from a 1979 decision of the U.S. Supreme Court called Bellotti v. Baird, involving a Massachusetts law that required parental consent. Bellotti held that minor girls who were mature enough to make a decision for themselves had the same constitutional right to do so as adult women.  It also held that if the girl did not want to ask her parents, she had a constitutional right to ask a judge instead.  That is, the constitutional rule is that:

1. If the judge decides the girl is mature enough to decide, she gets to decide.

2. If the judge decides the girl is not sufficiently mature to decide for herself, then the judge must decide whether allowing her to get an abortion was in her interests.  Not whether it was right or wrong, etc., but simply whether it was in the girl’s interests.

This result was supported by the two most conservative members of the court at that time, Justice William Rehnquist and then-Chief Justice Warren Burger.  The more liberal justices disagreed because they believed it was too burdensome to require the girl to go to court before proceeding without her parents’ consent.

In 1985, after Bellotti was decided, Professor Robert Mnookin, then at Stanford, did a study of the impact of the Bellotti decision in Massachusetts.  Here’s an excerpt from his published study:

Every pregnant minor who has sought judicial authorization for an abortion has secured an abortion. Between April 1981, when the statute first went into effect and February 1983, approximately 1,300 pregnant minors sought judicial authorization. In about 90 percent of these cases, the Superior Court simply found the minor was “mature” and therefore allowed her to decide for herself. Where the judge concluded the girl was not mature, the court found the abortion to be in her best interest in all but five cases. But even in these five, the girl secured an abortion. In three instances, when the Superior Court judge initially refused to authorize the abortion, the minor simply went to a neighboring state for the abortion rather than appeal the decision.  

What is the explanation for this rather surprising result?… The basic explanation… is that the Superior Court judges realize that it would be impossible as a legal proposition to justify a finding that a pregnant minor was too immature to decide whether to have an abortion for herself, but that it was in her best interests to bear the child.

So, I think it’s important to put what’s happening in Arizona in this context.

Ira Mark Ellman is Charles J. Merriam Distinguished Professor of Law and Affiliate Professor of Psychologyat Arizona State University’s Sandra Day O’Connor College of Law

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