Protect Our Daughters: Support Proposition 73 | Valerie Schmalz | October 30, 2005

Harlon Reeves didn’t learn his 13-year-old daughter had received two coerced abortions–or that she had been repeatedly raped by her mother’s live-in boyfriend–until Texas child protective services notified him.

This is a situation that is not confined to Texas - as a series of call-in radio interviews in California this fall show, parents whose daughters are coerced into abortions are apalled, saddened and helpless.

In the Reeves family case in Texas, the abortion clinic had contacted the state with its suspicions after performing the second abortion on the developmentally delayed young girl, who was brought to the clinic by her molester.

Reeves’ story spurred passage of Texas’s parental notification law in 1999, and the girl’s rapist was sentenced to 30 years in prison. Reeves’ daughter is now in her 20s, but Reeves, who has another young daughter, has lent his name to a friend-of-the-court brief filed by Liberty Legal Institute in support of a New Hampshire case, Ayotte v. Planned Parenthood of New England, to be heard by the US Supreme Court November 30.

"It’s one of those things where if just one parent would have been notified, all of this would have been exposed," said Jonathan Saenz, one of the Liberty Legal attorneys representing Reeves. "You would think if a little girl, who’s 13 years old, comes in to have an abortion, something is going on. These child predators are taking advantage of a system that is broken. It is a real assault on parental rights; it’s a real assault on young children."

Both pro-abortion and pro-life forces believe the New Hampshire appeal will have far-reaching consequences on all abortion law. In accepting the case, the Supreme Court indicated it would rule on the nature of the health exception and on the existing situation where different Supreme Court decisions have applied different standards to judge abortion laws.

Although more than 30 states have some form of parental notification or consent law in effect, there are huge portions of the country where no statute is in effect. Thus, in most Western states, in Illinois, and along much of the East Coast, a young girl can obtain an abortion–often with the complicity of her school counselor or other school officials, during school hours–without the knowledge of a parent or guardian, according to Americans United for Life and its ideological opponent, Planned Parenthood Federation of America.

Parental rights

That may change in California where an independent group of pro-life advocates led by Jim Holman, publisher of a string of small California Catholic newspapers and of a San Diego alternative newspaper, placed Proposition 73 on the ballot, which the California bishops endorsed in a September 1 letter. Now, Holman is trying to raise awareness by linking to the call-in radio interviews of distraught parents (LINK)on the Yes on Proposition 73 website, even as Planned Parenthood has launched a series of ads blasting parental notification in the final weeks leading to the November 8th election.

The Parents’ Right to Know initiative would reduce under-age abortions by 25 percent, according to an impartial voter information report by the state fiscal analyst.

Polls show the public supports parental notification and parental consent laws by large margins. In a national Quinnipiac University poll, conducted in March 2005, seventy-five percent of 1,534 registered voters supported parental notification, according to the National Right to Life Committee. Most support parental notice as long as a judicial bypass is included, as required by past Supreme Court rulings, California initiative spokesman Albin Rhomberg said. A judicial bypass means the girl may ask a judge to allow her to obtain an abortion without telling her parents.

Only five states have not enacted any parental notice or consent law, although many of those have been found unconstitutional, said Teresa Stanton Collett, law professor at University of St. Thomas in Minneapolis, Minnesota.

Collett, who is the attorney of record for two friend-of-the-court briefs filed in the New Hampshire Supreme Court case, was the key advisor in preparing what backers hope will be appeal-proof language for the California parental notification initiative.

The New Hampshire law under challenge contains a provision that allows an emergency abortion to be performed without parental notice if the girl’s life is threatened, but it contains no general health exception. The law was challenged by three abortion clinics and a physician who performs abortion because they said the medical emergency exception does not allow them to skip notification where delay would result in serious risk of injury to the minor. A federal district court declared the law invalid and enjoined enforcement, a ruling that was upheld by the appeals court.

The Supreme Court’s ruling "will apply to all abortion cases," said Collett, who is representing 49 New Hampshire legislators. In addition, Collett represents the governors of North Dakota and Minnesota whose long-standing parental notification laws could be invalidated by an adverse ruling.

Likewise, the NARAL Pro-Choice America Foundation states on its website that the New Hampshire ruling "could affect virtually every abortion-related case and statute in the country."

Conflicting standards

Since Roe v. Wade, Supreme Court justices have used three different and conflicting standards to decide the constitutionality of abortion statutes when the statutes are challenged before they go into effect. The first is the traditional Salerno standard that requires the statute be invalidated only if the plaintiffs can show it would be unconstitutional in every way it can be applied. This is very rare, so usually the law will be allowed to go into effect, and someone has to show injury and then appeal to the courts for remedy.

Then, in the 1992 ruling on Casey v. Planned Parenthood of Southeastern Pennsylvania, the Supreme Court justices employed different standards in their plurality opinion, where a majority of justices reached a judgment, but disagreed on their legal reasoning.

In that case, Justices Sandra Day O’Connor, Anthony Kennedy and David Souter introduced the Casey standard to review abortion legislation, "what they call ‘an undue burden’ upon women subject to law," Collett said. Under this standard, a law will be ruled unconstitutional if the plaintiffs can show that it will apply unconstitutionally even if only for a large fraction of the cases. The justices used that argument in ruling a spousal notification requirement unconstitutional, but also upheld Pennsylvania’s parental notification law.

Finally, in 2000 a majority of the court in Stenberg v. Carhart invalidated the Nebraska partial-birth abortion law, using a third standard which lower federal courts have interpreted to mean that any hypothetical adverse health consequence invalidates the abortion law.

"The Supreme Court has not given any guidance as to which of these three standards it will apply to various types of abortion laws and why," said Collett. "The New Hampshire case should provide some answer to that question."

A related issue the Supreme Court may decide is who can challenge an abortion law. The Thomas More Society, a pro-life legal charity, argues in its amicus curiae filing that the abortion clinics and the abortion doctor have no standing in the New Hampshire case–because they do not show they have ever performed emergency abortions on minors, despite decades of performing abortions. In addition, the More Society notes statistics from states with long-standing parental consent and notification statutes, such as North Dakota, Minnesota, Missouri, and Arkansas that show "medical emergency abortions involving minors are so rare as to be almost non-existent."

Stopping predators

When parents can be kept out of the picture, older men have a license to prey on young girls, said Michaelene Fredenburg, president of San Diego, California-based Life Perspectives, a pro-life high school outreach program.

Parental notification will give girls "some power" to say no, said Fredenburg, who herself had an abortion: "Teen-age girls are extremely vulnerable."

In a study of more than 46,000 pregnancies by school-age girls in California published in the British medical journal The Lancet in 1995, researchers found 71 percent or 33,000 were fathered by adult post-high-school men whose mean age was 22.6 years, an average of five years older than the mother.

Young girls tend not to realize abortion is a serious medical procedure that requires post-operative care and observation, Collett added.

"Many minors may ignore or deny the seriousness of post-abortion symptoms or may lack the financial resources to respond to those symptoms," Collett told a US House of Representatives committee during hearings on the Child Custody Protection Act. The act is stalled in the Senate Judiciary Committee, where it was referred in January after passing the House of Representatives for the third time, according to the National Right to Life Committee. It would bar an unrelated adult from taking a minor across state lines to evade state parental notice or consent laws.

Some of the most serious abortion complications are delayed complications, yet, only about one-third of all patients actually keep their appointments for post-operative checkups, Collett said.

"Absent parental notification, hemorrhaging may be mistaken for a heavy period and severe depression as typical teenage angst," Collett said.

In California, backers of Proposition 73 are hoping Diana Lopez’s story will help convince voters. Ms. Lopez’s 13-year-old daughter was picked up from school during school hours by her boyfriend’s mother for an abortion. When Ms. Lopez learned of this and raced to the clinic, the clinic personnel barred her from seeing her daughter.

"What? She’s only 13 and I’m her mother! I want to be there with her!" Lopez reportedly told the clinic employees.

A weak statute

The California initiative is exceptionally weak–it is a constitutional amendment without criminal penalties, which NARAL Pro-Choice California says on its website would make legal challenges "not an option."

Rather than impose criminal penalties, Proposition 73 would empower parents to sue abortionists in civil court and require abortion clinics to report abortions for minors in statistical form, without the girls’ identities.

Because the state would be required to comply with its own law, it would also eliminate under-age Medi-Cal abortions, which comprise about a third of minor abortions, according to Proposition 73 spokesman Rhomberg. The number is high because the state imposes no income, age, or residency requirement to qualify for state-funded abortions, Rhomberg said.

A June 22, 2005, Field Poll found 48 percent of likely California voters in favor and 43 percent opposed, but so far Proposition 73 has received very little publicity.

The California initiative is "very unlikely" to be affected by the Supreme Court’s ruling on disputes over the New Hampshire case because it contains a medical emergency exception in full compliance with all of the existing US Supreme Court decisions, Rhomberg said.

As for those who oppose the initiative, pro-abortion arguments against parental notification center around studies that allegedly show most kids already talk to their parents if they are going to get an abortion, and pro-abortion groups say if the kids don’t talk to their parents, it is not the place of the law to force families to communicate. They also claim that even with a judicial bypass, minors could be abused by their parents or put in danger by parental notification and thus some would resort to "back alley" abortions.

The most cited study by pro-abortion advocates is one by the Planned Parenthood Federation think tank, the Alan Guttmacher Institute, and Collett said that its findings support those who advocate parental notification. The study found 45 percent of minors notify parents, although 61 percent of parents know of the decision to abort. The study found that "the number one reason that teens do not tell their parents is because they are afraid their parents will be disappointed–hardly a reason for family dysfunction," Collett said.

"The second reason is they are afraid their parents are going to require them to stop seeing their sexual partners," Collett noted.

The most important reason to support parental notification is that it works, Collett said. "North Dakota and Minnesota currently have the nation’s first and fourth lowest pregnancy rate among minors, respectively," according to the North Dakota and Minnesota brief. "In recent decades, Minnesota has reduced the rate of pregnancies among girls aged 15 to 17 by nearly 50 percent. This decline is due in part to the state’s parental notice law, which is similar to the New Hampshire statute."

The track record indicates that for those concerned about teen pregnancy, parental notification can be part of the solution. But even without those numbers, it also keeps parents involved in the most important and consequential decision a girl may face–literally one that balances life and death.

(This article originally appeared in the October 2005 issue of Catholic World Report.)

Important Links:
• Yes On Proposition 73 site
• "They say, we say" chart from the California Catholic Conference (PDF file)
• California Catholic Conference page dedicated to "Promoting Parental Responsibility/Vote Yes For Proposition 73"

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Valerie Schmalz is a writer for IgnatiusInsight. She worked as a reporter and editor for The Associated Press, and in print and broadcast media for ten years. She holds a BA in Government from University of San Francisco and a Master of Science from the School of Foreign Service at Georgetown University. She is the former director of Birthright of San Francisco. Valerie and her wonderful husband have four children.

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