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Priscilla Owen's Confirmation Battle


Wednesday, Jul. 31, 2002

Last week, the Senate held hearings on whether to confirm Priscilla Owen, a Texas Supreme Court Justice, for a position on the U.S. Court of Appeals for the Fifth Circuit. Owen holds an extremely narrow view of a minor's right to abortion--one that a majority of her colleagues on the Texas high court have rejected as inconsistent with state law. In part for this reason, her nomination has provoked considerable controversy.

As Edward Lazarus observed in his column last week, President Bush probably chose to nominate Owen precisely because of her politics. Accordingly, her politics--and especially her views on abortion--are relevant to the confirmation process.

Regardless of its outcome, the fight over Justice Owen will have been worthwhile if it motivates the nation to confront a question it has often seen fit to ignore: how important is a minor's right to terminate a pregnancy?

The Pro-Life Answer: Minors Should Not Have Abortions At All

We have Justice Owen's answer to that question, but how far outside the mainstream is it? Many Americans share the intuition that minors ought to consult with their parents before obtaining an abortion. But there is a crucial and often-overlooked distinction between believing that girls ought to talk to their parents, and supporting a law that requires them to.

For a person who holds the view that all abortions should be illegal, the parental consent issue is easy. If a minor must ideally be forced to carry her pregnancy to term, then it follows that she should not be allowed to abort without her parents' input. Short of an outright ban, in other words, a substantial obstacle is better than nothing.

The Argument That Minors Have Less Autonomy Across the Board

For anyone who supports an adult woman's right to abortion, however, the question of minors might seem especially difficult. After all, minors live in the custody of other people who make all sorts of significant decisions for them. Parents may choose where to send their children to school, whether to permit grandparents to visit with them, and what types of friends they may have.

Furthermore, and perhaps most pertinently, parents can decide for a sick child which medical procedures she will undergo or whether to consent to treatment at all. A child who prefers to keep his swollen tonsils may have them forcibly removed, if a parent agrees, on the advice of a physician. And an overweight child who wants liposuction may be barred from the surgery by a parent's refusal to consent. We generally presume that parents will act in the best interests of their children in such matters.

Abortion might seem similar to other important decisions that minors are not empowered to make for themselves. A fourteen year old boy or girl, for example, can be criminally punished for having sex--through statutory rape laws--because we believe that only adults are entitled to sexual autonomy. The decision to have an abortion, once pregnant, may strike many as a logical extension of the decision to have sex. Though adults have a right to do it, children do not.

Although superficially appealing, this reasoning is flawed, for both philosophical and practical reasons.

The Abortion Decision Differs Fundamentally

Consider the circumstances of a pregnant minor who wishes to abort. The burden of carrying a child in her body against her will is just as great as, if not greater than, the analogous burden on an adult woman. (Indeed, the possibility of an unplanned pregnancy is one of many reasons to prohibit minors from engaging in sexual relations in the first place.)

Pregnancy draws nutrients such as calcium out of the still-maturing young mother's body, and the emotional costs of being forced to remain pregnant against her will may be inestimable. To that extent, the youth of the petitioner--rather than undermining her interest in self-determination, as it normally would--enhances the strength of her claim.

To compare an abortion to an appendectomy or adenoid removal, moreover, is to miss perhaps the most important feature of the burden faced by a minor who wishes to terminate a pregnancy but cannot: her body is subjected to a severe and major intrusion in order to give life to someone else.

Remaining pregnant against her will is therefore more like a nonconsensual organ donation or nonconsensual surrogate motherhood than it is like an unwanted throat culture that parents elect for their child's own good.

The Organ Donor Analogy

Imagine a fourteen-year-old boy whose father requires a kidney transplant. Assume that the adolescent, after learning the pros and cons of the procedure, refuses to give consent. Without the transplant, his father will die.

Is this decision one that we would want the father to force upon his son? Would we not consider such an imposition tantamount to child abuse?

Keep in mind, moreover, that this analogy assumes an existing man (the father) whose status as a person is uncontested. At least in the early stages of pregnancy, the same cannot be said of the developing embryo or fetus.

The Surrogate Motherhood Analogy

Now assume that a married couple creates four frozen embryos with the intention of implanting them in the uterus of the wife. Unforeseen circumstances, however, make it physically impossible for her to become pregnant. Her fourteen-year-old daughter, on the other hand, could carry a pregnancy to term and is fertile enough to make implantation extremely likely.

What if the parents in these circumstances were to force surrogate motherhood on their unwilling daughter? That would clearly constitute child abuse, despite the fact that the alternative for the embryos is a certain death. In fact, it may be that even if the girl did consent, the physical and emotional burdens of pregnancy at the age of fourteen would be too great to justify.

These analogies illustrate why parents should not be in a position to make a choice on a child's behalf when two conditions are present: first, the choice categorically runs counter to the child's interests; and second, others--whether her parents, a fetus, or someone else--stand to gain from that choice. The risks to the child are too great under these circumstances to allow parents to discount her interests in favor of another's. In the abortion context, both conditions obtain: pregnancy is against the teen-ager's interests but may benefit the embryo or fetus.

Practical Reality

Though the abstract arguments for a minor's right to abortion are strong, the practical ones are even stronger.

The Supreme Court has held that states may require minors seeking an abortion to notify a parent, as Texas law requires, or to obtain a parent's consent, as Pennsylvania law does. There is one caveat, however. To pass constitutional scrutiny, such requirements must provide for what is called a judicial bypass, and that is where the controversy over Justice Owen comes in.

A judicial bypass hearing provides an opportunity for the minor who prefers not to tell her parents about a planned abortion to convince a judge that she is mature enough to make the decision on her own (or that an abortion would be in her best interests).

At such hearings, judges often ask girls irrelevant questions about their grades at school or embarrassingly unnecessary questions about how the girls became pregnant.

As Columbia Law Professor Carol Sanger has said, a girl's appearance at the hearing is a ritual of humiliation, one which a girl will choose over a conversation with her parents only if she is frightened of what they might do upon learning of her pregnancy.

Given this reality, Justice Owen's desire to block the girls who appear in court from obtaining an abortion is truly alarming. It necessarily entails a decision that a girl who has managed to find her way to court to petition for her rights is too immature to decide that she should not have a child.

And under Supreme Court precedent, it must also reflect a finding that being forced to carry a pregnancy to term and give birth against her will is in the best interests of the immature teenager.

In the real world, such a girl can be expected to turn next to a substantially less reputable source of assistance than Justice Owen.

Our Ideals and Reality Clash When It Comes To Minors' Right to Choose

The notion of pregnant minors consulting with their parents is unquestionably appealing. No one--whether pro-choice or pro-life--likes the idea of a child going by herself to an abortion clinic. Ideally, a girl can depend on a parent at a time like that. Unfortunately, however, the law only comes into play in situations far from ideal.

To a girl who naturally goes to mom about an unwanted pregnancy, the law of parental notification is irrelevant. And to a girl who does not, the law cannot forcibly create the warmth and trust that are absent. Though many minors will seek guidance from their parents, regardless of the law, as the Court has held with respect to an analogous spousal notification provision struck down in Planned Parenthood v. Casey, "The proper focus of constitutional inquiry is the group for whom the law is a restriction, not the group for whom the law is irrelevant."

The truth is that few minors in this situation have the wherewithal to find their way to court to petition for an abortion. For a judge to look those who do in the eye and say "No; you must carry your pregnancy to term" is to speak volumes about that judge's ability to exercise empathy and compassion, a capacity that is rightfully considered a hallmark of an enlightened and fair judiciary. If Justice Owen lacks that quality, then she does not belong on the federal bench, and the Senate should say so.

Sherry F. Colb, a FindLaw columnist, is a Professor at Rutgers Law School in Newark.

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