This week marked the 49th anniversary of Roe v. Wade (1973), the landmark opinion in which the U.S. Supreme Court first recognized constitutional protection for the right to have an abortion up to a certain point in pregnancy. Big anniversaries often present an auspicious time to reflect on important precedents—the history that preceded them, the changes they wrought or reflected, and the often head-spinning ways in which society has changed in the intervening decades.
The 50th anniversary of Griswold v. Connecticut (1965), in which the Supreme Court recognized a fundamental right of married couples to access and use contraception, was an occasion to note that the Court had started a revolution in sexual and reproductive autonomy but that access was newly threatened by the rise of religious conservatism and rollbacks to family planning programs designed to ensure broad access to contraception.
The 40th anniversary of Loving v. Virginia (1967), in which the Supreme Court held that bans on interracial marriage were unconstitutional, was an occasion to note the importance of the Court’s recognition of marriage as a fundamental right but also the persistence of strong cultural norms against interracial romantic relationships.
Roe is unlikely to reach its 50th anniversary intact. As many have noted with dismay, the Supreme Court is poised to overturn the entire body of constitutional law related to abortion rights. As unimaginable as it seems, it is time to plan for the end of constitutional abortion rights—and the end of federal constitutional protection for women’s bodily autonomy and reproductive decisionmaking, and the end of a constitutional commitment to ensuring women’s equal equal opportunity to capitalize on their natural talents and abilities.
The short-term impact of eliminating federal constitutional protection for abortion will be devastating for many individuals, especially those who live in states like Texas, where abortion will instantly become a felony when and if Roe is overturned. It would be hard to overstate the harm that will flow from such a decision. But while abortion advocates are hard at work figuring out how to support people immediately affected by the deprivation of abortion rights, they are also hard at work building the future. And as they do this important work, it bears noting that the problem with Roe was never that it went too far but that it did not go far enough. As a recent Florida case involving a pregnant minor who was initially denied access to abortion because her high school grades were too low, many pregnant women already face significant barriers to abortion care despite the existence of constitutional protection. This column will explore those barriers as a reminder that we need to work towards a future that is more protective and more equal rather than just trying to claw our way back to the bare minimum provided by Roe v. Wade.
The End of Roe v. Wade
Abortion rights turn on the Supreme Court’s pending decision in Dobbs v. Jackson Women’s Health Organization. In that case, which was argued on December 1, 2021, the Supreme Court is considering the validity of a Mississippi law that bans all abortions after fifteen weeks. Specifically, the Court agreed to consider the question whether all pre-viability abortion bans violate the Fourteenth Amendment. Under current precedents, including but not limited to Roe, the answer is clearly yes. Yet, the Court agreed to hear this case.
At stake in Dobbs is the constitutional right of abortion. The Court first recognized that right in 1973 in Roe v. Wade and reaffirmed but revised it in Planned Parenthood v. Casey in 1992. (A more detailed analysis of these cases can be found here, here, and here.) Thus, the Court has recognized and enforced a right to abortion for almost fifty years.
As I wrote in a previous column, the justices made quite clear during oral argument in Dobbs that they are planning to dismantle the abortion precedents—most likely in full. That prediction seems all the more solid given that the Supreme Court has allowed the most extreme unconstitutional abortion ban in the country, Texas’s SB 8, to remain in effect for almost five months. It has weighed in on the case three different times and, each time, declined to block the law even though it cannot be reconciled with the Court’s existing abortion precedents. (Some background on SB 8 can be found here, although much has happened since. The bottom line: SB 8 is still in effect.)
Reproductive Rights Without Reproductive Justice
The abortion rights framework recognized in Roe and revised in Casey gave pregnant women rights against undue state interference into their decision whether to have a pre-viability abortion. But this right meant nothing for many people who lacked the resources, information, mobility, transportation, personal safety, childcare, sick leave, or the many other things that are necessary to access abortion care. The Court ensured that abortion rights would benefit some people more than others when it upheld the constitutionality of the Hyde Amendment, a longstanding restriction on federal funding of abortion.
The focus post-Roe needs to embrace the reproductive justice framework, which seeks to ensure that every individual has the right to have a child, every individual has the right to decide not to have a child, and every individual has the ability to raise their children in a safe and healthy environment. (Loretta Ross, one of the founders of the reproductive justice movement, explains its tenets here, among other places.) In the abortion context, this requires that we remove the barriers to abortion care that so many women face. Repealing the Hyde Amendment is a necessary but not sufficient step in this direction.
Abortion Rights for Minors
One group that has fared especially poorly under the Roe/Casey framework is pregnant minors. The recent case out of Florida, which is getting a lot of national media attention, is illustrative of some of their challenges.
In that case, In re Jane Doe, a seventeen-year-old young woman petitioned the court for permission to terminate her pregnancy without parental consent. A high school junior, Doe testified in the hearing that she has a 2.0 grade point average (mostly Cs), but was currently making B grades. She testified about her future plans to graduate high school, enter the military, go to college, and eventually pursue a career in nursing. She also testified that she had been working for the last year and had held three jobs during that time—two at the same time over the summer. Doe has two credit cards and $1,600 in a savings account. As she told the court, her mother pays for her cellphone, but she uses the money she earns “to pay for everything else for me, like clothes, nails, and all the other necessities.” She testified that does not have a driver’s license because her parents will not put her on their insurance nor permit her to pay for her own.
Doe’s testimony was not limited to her education and work experience. She also testified about her relationship to each of her parents (though her mother lives out of state and Doe lives only with her father) and about their opposition to abortion. She testified about how she got pregnant, whether she had used birth control, why she wanted an abortion, and whether her boyfriend or anyone else had pressured her to terminate the pregnancy. She also testified about the risks of abortion, her plans for financing it, and whether she anticipates she will have experience adverse emotional consequences from the decision.
To understand why a high school junior would end up in a court of law discussing both the most intimate and the most mundane aspects of her life with a judge, we must first introduce the Supreme Court precedents that specifically involve the abortions rights of minors.
Under Roe v. Wade and Planned Parenthood v. Casey, the state can regulate abortion from the outset of pregnancy as long as it does not impose an undue burden on the right to terminate a pregnancy. Before viability, it can impose a variety of requirements under the guise of informed consent such as waiting periods, mandatory ultrasounds, prescribed counseling, and so on. After viability, the state can prohibit abortion unless necessary to preserve the woman’s life.
The Court at various points considered the abortion rights of minors. In Bellotti v. Baird (1979), the Court concluded that a woman does not forfeit her abortion rights simply because she is a minor but that the right can be adjusted to reflect “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.”
The Court considered these factors before settling on the constitutional parameters of a parental notification and consent law, which must not be constructed in such a way as to unduly burden the minor’s right to terminate a pregnancy. According to the opinion in Bellotti, a state may only require parental consent or notification for abortion if it also makes available a “judicial bypass” option that allows the pregnant minor to seek judicial rather than parental approval for her decision to have an abortion. The Court in Belotti went beyond simply requiring the existence of a bypass option in every state that requires parental consent or notification; it specified the exact legal standard to be applied in such a proceeding.
To be constitutionally sufficient under current precedents, a state’s judicial bypass procedures must be confidential and expeditious. More importantly, they must use the constitutionally approved standard. A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or 2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. If either prong is satisfied, the court must grant the judicial bypass.
About three quarters of the states currently have parental consent or notification laws for minors who seek abortion care; of constitutional necessity, they also have a bypass procedure. A pregnant minor like Jane Doe in the Florida case would contact an abortion clinic seeking to make an appointment—and would then be told that she needs either to bring a parent who can sign the consent form for medical treatment or that she needs to file a petition for a judicial bypass. Depending on the state, the fluidity of this process can vary quite a bit. In Texas, an organization called Jane’s Due Process coordinates the legal representation and provides other services necessary to help pregnant minors obtain abortions without parental consent. But in other states, pregnant teens might be turned away by clinics and left to navigate the legal process alone.
Florida Jane Doe
Let’s return to the Florida Jane Doe. She had gone to a women’s health clinic in Tampa, where she lived, but was told they could not even talk to her until she obtained a judicial bypass. She filed the petition necessary to start the bypass process and attended the hearing described above. The Florida bypass statute requires the trial court to determine whether there is clear and convincing evidence “that the minor is sufficiently mature to decide whether to terminate her pregnancy.”
In her petition, Doe asserted that she was mature enough to decide to have an abortion but that she was “way too young” to be a parent, did not have enough income to support herself and a child, and was worried about having her plans to enlist in the military derailed by the pregnancy. The court held the hearing as required by the statute but denied her request for a judicial bypass.
Florida law requires the trial judge to weigh several factors deemed relevant to the minor’s maturity—age, overall intelligence, emotional development and stability, credibility and demeanor as a witness, ability to accept responsibility, ability to assess immediate and long-range consequences, and ability to understand and explain the medical risks of terminating a pregnancy. The law also requires the trial court to make factual findings and legal conclusions in view of these specific factors, rather than simply ruling “granted” or “denied” without explanation.
The judge in this case found that although she is seventeen—and therefore almost the age at which she would be permitted to make all medical decisions on her own—her intelligence is below average. Addressing her “overall intelligence,” the judge wrote that “[w]hile she claimed that her grades were ‘Bs’ during her testimony, her GPA is currently 2.0. Clearly a ‘B’ average would not equate to a 2.0 GPA.” Thus, the court concluded, “Petitioner’s testimony evinces either a lack of intelligence or credibility, either of which weigh against a finding of maturity pursuant to the statute.”
The trial judge made other findings to support the conclusion that she was insufficiently mature to make the abortion decision without parental involvement. He noted, with seeming disapproval, that Doe’s only responsibilities were household chores and that she has no responsibility for younger family members. The court also noted that her lack of a driver’s license suggested a lack of emotional stability or development and concluded that she “has never had any financial responsibilities, even so much as paying for her own cell phone bills.” The court therefore concluded that she had not presented sufficient evidence to meet the legal standard—that she is mature enough to make a decision about abortion without parental involvement.
A fundamental oddity of the bypass standard is that a pregnant minor who is deemed insufficiently mature to have an abortion will likely continue her pregnancy and give birth (unless she can obtain parental consent after the bypass is denied or she finds another way around the parental involvement law such as leaving the state or having a self-managed abortion). And once she gives birth, the law recognizes her right to be a mother from the moment of the child’s birth. She would have the legal authority to consent to medical care for her baby, as well as to leave the hospital unsupervised with the baby in tow. Or she could decide to place the baby for adoption and would have the legal power to consent to an irrevocable relinquishment of her parental rights. So the Florida Jane Doe’s grades are too low to consent to abortion care but just fine for motherhood or consent to adoption? It doesn’t make any sense.
Moreover, as this case illustrates, pregnant minors seeking a judicial bypass are left to the whims and biases of the judges assigned to their cases, who aren’t accountable to anyone because the hearings are held in secret. The Supreme Court’s reasoning in Bellotti for insisting that parental involvement laws be paired with judicial bypass procedures was that a pregnant minor’s parents should not be given arbitrary veto power over their child’s abortion decision. Yet, for many bypass petitioners, that power rests with the judges who preside over their cases.
Studies of judicial bypass cases have demonstrated that the system leaves much to be desired. The judges who preside over bypass hearings are often biased against abortion, as might be the attorneys and guardians ad litem who may be involved in their cases. The hearings themselves often reinforce stereotypical attitudes about girls and their sexuality—and force them into a situation where they have to beg an authority figure for autonomy while promising to be a “good girl” going forward. Research also shows that many individuals who go through the bypass process find it humiliating and traumatic.
For this Jane Doe, petitioning for a bypass meant sharing intimate details of her life with a male authority figure who sized her up after a brief interaction and then handed her an official piece of paper saying, in essence, “you’re too dumb to have an abortion.”
Doe appealed this ruling, and the appellate court ruled 2-1 that the trial court’s ruling should be reversed. She is entitled to obtain an abortion without parental involvement. The majority found that the trial court had abused its discretion in denying her petition. It criticized the court’s reading of the GPA testimony, noting that a person with a C average in high school is an average rather than a “below average” student and also noting that Doe’s testimony about her current grades was not inconsistent with the evidence of her overall average. Moreover, the appellate court found no evidence linking Doe’s lack of a driver’s license to her emotional development or stability. Doe testified that she would like to drive but that her parents would not allow her either to use their insurance or buy their own. That testimony was unrebutted. The court found similar fault with the trial judge’s assessment of the evidence about Doe’s financial independence. He criticized her for having “never had any financial responsibilities” and yet ignored her testimony about her work history, her possession of credit cards, and her considerable savings. Finally, the appellate court found it odd that the trial court criticized Doe for not having any responsibilities pertaining to younger family members when she testified that her youngest sibling is thirty and that no one younger than she lives in the home.
The appellate court then considered whether there was sufficient evidence in the record to show that she was mature and well-informed enough to make the decision about abortion on her own. It found ample evidence that the standard was met. She understood the nature of the procedure she was seeking to obtain, along with its risks. She discussed her decision with other people, including adults—just not her own parents. She researched issues relevant to the decision in the same way that an adult might. And she was thoughtful about the demands of parenthood and why she did not feel prepared to meet them at this point in her life. The majority concluded that she met the statutory standard set out in Florida law—but mandated by the Supreme Court in Bellotti—and was entitled to consent to her own abortion care.
One judge, John Stargel, dissented from the ruling. As noted by many media outlets, he is married to Kelli Stargel, a Republican Florida state senator who sponsored a recent bill to require parental consent before a minor can obtain an abortion. Given that this is the very issue at stake in the case, Stargel was criticized for not recusing himself. He argued that the trial court had properly applied the standard—and that there was sufficient evidence to support the conclusion that Doe was not intelligent enough to make this decision. He noted, in addition to Doe’s GPA, that there were allegedly spelling errors in her petition.
Although the Florida Jane Doe ultimately got the court order she needs to obtain abortion care without parental involvement, the system imposed burdens on her that are not even remotely outweighed by what the state claims to gain from parental involvement laws. The bypass process caused significant delays in her ability to seek abortion care and was demeaning, to say the least.
Many pregnant minors discuss abortion decisions with their parents—and those that don’t usually have a good reason for foregoing such discussions. We need to trust teens to make the best decisions for themselves, rather than vesting the decision in a stranger who knows little or nothing about the minor (and maybe even less about abortion) and is given the veil of secrecy to cover their biases. The decision whether to bear or beget a pregnancy has been recognized by the Supreme Court as fundamental for a reason—it has serious consequences for the individual. That is true not just for adults, but for minors as well, maybe even more so.
This case is just one example of the ways in which a system that purports to offer robust constitutional protection for abortion rights still fell short for many pregnant individuals. And now that system is about to be dismantled, leaving us all without the protections necessary for human dignity, autonomy, and flourishing. As we recover from what the Supreme Court is about to do to us—unabashedly, and without regret—we need to reframe abortion as just one of many aspects of reproductive justice that should be shared by all.