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AAP v Lungren (1994)

Originally printed in Lifeline Fall 1994

THE ADULTIFICATION
OF CHILDREN SEEKING ABORTIONS

The only surgical procedure that can be performed on a minor in California without parental consent is abortion. Approximately 30,000 abortions are performed on teenagers here every year. In 1995, the California Supreme Court will have the opportunity to reduce that number.

American Academy of Pediatrics v. Lungren (1994) 26 Cal. App. 4th 479, 32 Cal.Rptr.2d 546, review granted S041459, deals with the parental consent law passed by the California Legislature in 1987. The law amended Civil Code section 34.5 to prevent an unemancipated, unmarried minor from obtaining an abortion without the written consent of one of her parents or a legal guardian. If she was unable to obtain the consent, or desired not to, she could petition the juvenile court for permission to consent to the procedure. This law was immediately challenged, not by outraged teens and their parents, but by Planned Parenthood and the ACLU, and it has been stuck in the judicial system ever since.

Similar parental consent laws have been upheld numerous times by the United States Supreme Court. Hodgson v. Minnesota, 110 S.Ct. 2926 (1990); Planned Parenthood of Southeastern Pennsylvania v. Casey, 112 S.Ct. 2791 (1992); Ohio v. Akron Center for Reproductive Health, 110 S.Ct. 2972 (1990). Under the U.S. Constitution, the California parental consent law would clearly be constitutional. But in California we have a problem. In 1972, the state constitution was amended, through the initiative process, to add “privacy” to the list of inalienable rights. It is clear that the purpose of this amendment was to protect people from unwarranted and oppressive gathering and misuse of information about their private lives and business.

Unfortunately, under Chief Justice Rose Bird, the right to privacy was expansively interpreted to protect people’s right to engage in certain types of behavior, including obtaining abortions. CDRR v. Myers, 29 Cal.3d 252 (1981) Furthermore, the state right to privacy has been held to be “broader” than the federal right to privacy; therefore, it is argued, the U.S. Supreme Court precedents do not apply.

Judge Maxine Chesney of the Superior Court in San Francisco struck down the parental consent law as unconstitutional under the state constitution and enjoined the law from being enforced. She found that the evidence was uncontradicted that minors rarely, if ever, experience physical or emotional complications following abortion. In fact, she found that minors who choose to undergo abortion experience a sense of self-esteem and a sense of control. The judge even found that parental involvement can have an adverse psychological or emotional effect on minors. Judge Chesney stopped just short of saying that abortion is good for minors and parental involvement is not!

Judge Chesney was convinced by the testimony of Planned Parenthood’s medical director who stated that minors are making informed decisions regarding abortions. He testified that counselors at all the abortion facilities that he knows of are instructed to provide objective information and nondirective counseling with respect to the alternatives of carrying a pregnancy to term and abortion. He also testified that no abortionist would perform an abortion on a minor unless he was convinced that she made the decision as a result of informed consent. (Another abortion provider testified that he had never, not once, encountered a minor seeking an abortion who was not, in his opinion, capable of giving informed consent; this bit of information did not make it into the court’s findings of fact.) One would think that the judge should have recognized that Planned Parenthood is the largest abortion provider in the nation and may have a conflict of interest that affects its credibility. If minors don’t choose abortion, Planned Parenthood doesn’t get paid.

The court stripped away the long-standing right, and duty, of parents to control the upbringing of their children. Unfortunately, on appeal the First Appellate District Court agreed with the trial court.

Attorney General Dan Lungren appealed the case to the California Supreme Court and a decision is expected by Spring of 1995.

To put this case in perspective, compare the following: An unemancipated minor may not marry, have sex with someone over age eighteen, vote, drink alcohol, buy a gun, join the military, receive non-emergency medical treatment, buy pornography, watch an X-rated movie, or hold public office until she reaches the age of eighteen. Some of these activities she may participate in with parental consent. In addition, she may not drive or work until she is sixteen. These rights are limited regardless of the maturity of the minor. The justification for limiting these rights are several: to protect the minor and society from the minor’s poor judgment, to protect the minor from exploitation by others, and to allow the family, rather than the state, to control the upbringing of children.

Recently, I overheard a sixteen-year-old complaining about a parking ticket. Convinced she was innocent, she called to inquire about fighting the citation. She was told that she could appear before the judge, but that one of her parents had to be with her. She paid the fine because it wasn’t worth the parent’s loss of a day’s work. It is inconceivable that a sixteen-year-old must have parental involvement to fight a parking ticket, but for her abortion, parental responsibility and involvement suddenly becomes unnecessary, and the minor is permitted to consent to a surgical procedure that will probably have grave consequences.

Why are we “adultifying” minors when it comes to abortion? It’s the “abortion distortion”: decisions relative to abortion are calculated to support it. Parents are given the right to know about and consent to the treatment of their children in matters of less importance such as physical exams or common illnesses, but not to the treatment of conditions as complex, morally and medically, as abortions. This is illogical and inconsistent. To add insult to injury, parents, whether they know about the abortion or not, are legally responsible for the payment of the medical bills incurred for their minor daughter’s abortion. See 57 A.G.Op. 28 (1974).

Teen abortion and pregnancy are reduced by parental consent laws. Approximately 25 states enforce parental consent laws similar to the one at issue in California. Statistics from those states show a striking decrease in teen abortion and pregnancy. In Minnesota, the teen pregnancy rate declined 20.5% and the teen abortion rate fell 27.4%. In Massachusetts, the teen abortion rate fell 43% and the teen pregnancy rate declined 16.6%. In Michigan, the teen abortion rate fell 17.6%, and in Georgia, the abortion rate for minors between the age of fifteen and seventeen dropped 15%. Parental consent laws obviously work well in decreasing teen pregnancy and abortion.

Americans overwhelmingly support parental consent laws as evidenced by the public opinion polls taken over the years. According to the 1990 New York Times/CBS poll, 76% of those surveyed believed that both parents should be notified before their teenage daughter obtained an abortion.

If you are a parent in California, you should be aware that, as the law stands today, your daughter can go to school, be excused for an abortion, and return home on the school bus later that day without your ever knowing what she’s been through. Unless, of course, you receive a bill for the treatment of the complications brought about in the termination of your grandchild’s life. In one case in Southern California, the parents found out about their minor daughter’s abortion when they were called to the morgue to identify her body.

AAP v. Lungren will be a very important benchmark for abortion laws in California. Pro-life groups are working on legislation that will restrict abortion and a lot will depend on how the supreme court rules in this case. Life Legal Defense Foundation is filing an amicus brief in support of the parental consent law on behalf of members of the California legislature. If you would like to obtain a copy of the brief, please call our office.

Anne Kindt has served as an LLDF Board Member and legal counsel for the National Institute of Family and Life Advocates, a public interest law firm for Crisis Pregnancy Centers.

EXCERPTS FROM DECLARATIONS
FILED IN AAP V LUNGREN.

“[The counselor] quickly asked me various questions from a form, none of which I understood and none of which she explained. I do recall that the only alternative we even discussed was abortion. She never explained the alternatives of childbirth and adoption, except to say that ‘childbirth was much more painful than abortion.’ She also told me that an abortion was free while having a baby would cost more money than I’d ever have.”

“Randy [the Planned Parenthood counselor] spoke to me as though I was a middle-aged adult. I lied to her when I said I was 16. The truth was that I was only 14. I was scared to death, I was desperate and I was panicking. My mind could not grasp the seriousness of my situation and I could not understand the reality of my unborn baby. Randy made my pregnancy sound like a disease and abortion was a simple cure . . . That night [after the abortion] the baby’s head passed into the toilet. I was told the baby was ‘nothing’. But this head was definitely a tiny baby’s head. . . I looked at the tiny face in my hands and wanted to go to my parents, I had done such a horrible thing. But it was too late, it was all my fault. . . . I turned to drugs and used them daily. I would do anything to get drugs and my problems just got worse. My parents couldn’t figure out what was wrong with me. Too much time had gone by, I couldn’t tell them now. I tried to kill myself twice—first on December 4, the anniversary of the abortion, and again on Christmas Eve.”

“I began to tell all my friends about Planned Parenthood. I took them there to get on the pill or to get an abortion. Each time we were excused from school without our parents knowing. After some time I began to see a change in my friends’ lives and attitudes, but I did not understand until I was in their shoes and needed an abortion myself . . . I went for the counseling that they normally give before abortion and they suggested that abortion would be best for me, not mentioning any alternatives. I was never told of the mental stress or the physical damage I would suffer.”

“On the date of my abortion I arrived at the clinic and was immediately given a number and a sheaf of papers to sign. I recall that these papers told me something about potential problems of having an abortion and the drugs used. I guess I waived all liability from injury from the abortion and the drugs. I filled out a form which advised them that I was under 18 years old. However, no one from the abortion clinic even talked to me about these papers, nor about my age nor about anything else . . . In February 1983 I had a miscarriage. I was informed by my doctor that the doctor who performed the abortion had scraped away part of my cervix which probably caused the miscarriage.”

“I personally watched hundreds of such counseling sessions, and I examined hundreds of pregnant teenagers after such sessions, and I never saw an instance where a counselor encouraged parental involvement . . . It was my observation while employed by Planned Parenthood that it favors and unduly encourages the abortion alternative over the other two alternatives in their counseling and in their clinical practices. For example, the alternatives are presented by the counselor by asking the pregnant minor if she has $250,000 to raise the child. Moreover, in my experience, the childbirth and adoption alternatives would not be presented at all to a pregnant teenager who say she wants an abortion, except to say in a quick fashion words like, ‘Well, I suppose you have decided against adoption or carrying to term.” Indeed, the childbirth alternative was so discouraged that words like ‘childbirth,’ ‘birth,’ ‘child,’ ‘baby,’ and ‘father,’ were expressly prohibited by Planned Parenthood policy.”