Legislators in Illinois are set to decide in May whether to reverse a state law that mandates minors notify their parents of an intended abortion procedure. Advocates say the law creates abortion restrictions that limit a young person’s bodily autonomy, forces potential court intervention in health care decisions, and potentially endangers a young person’s life.
Introduced in the state House and Senate, the new law would reverse the 2013 legislation that first put the mandate on the books. Often, parental notification and consent laws are not even viewed as abortion restrictions, said Emily Werth, a staff attorney at the ACLU of Illinois. They aren’t commonly perceived by the public as similar to six-week abortion bans or TRAP laws (targeted restrictions on abortion providers) that force clinics to close down.
“We’ve had to educate legislators and the public about the fact that mandatory parental involvement laws make it harder for people to access abortion,” Werth said. “They are targeted at a particular population, that is people under the age of 18, but their effect is to place barriers in the way of people who need abortion care.”
Legislators will often claim that parental involvement laws protect young people, though advocates say the law itself is what harms a young person seeking abortion care. Restrictions on abortion that mandate some form of parental notification or consent are on the books in 37 states, per The Guttmacher Institute, a sexual and reproductive health research and policy organization.
The Illinois Caucus for Adolescent Health (ICAH) has worked to dismantle the parental notification law since legislators put it on the books eight years ago. Brie Garrett, digital media organizer at ICAH, argued that it’s more important to view young people as autonomous people, rather than fixate on their legal status as minors.
“It always comes down to young people realizing that it’s not really a law that was put into place for their safety, it’s more so put in place for control,” Garrett said. “In order to protect young people, we have to also give them the chance to be empowered and have that bodily autonomy.”
Even in a relatively abortion-tolerant state like Illinois, the presence of a parental involvement law signals that some legislators will still tolerate restrictions on abortion based on something as arbitrary as age, Garrett said. For some minors, those restrictions could put them at further risk from harm, even within their own families.
In 1979, the Supreme Court ruled that states could institute parental notification or parental consent laws (broadly known as parental involvement laws) regarding abortion proceedures so long as there existed a backstop for youth who did not feel safe informing a parent. Research shows that a young person seeking abortion declines to inform their parents of the procedure for a number of reasons, ranging from fear of sexual or physical abuse to fear that they might be kicked out of their home. For young people who became pregnant by someone living in their home, mandatory notification laws pose an even greater threat to their wellbeing.
The workaround to parental involvement laws is called a “judicial bypass,” in which a minor must stand in front of a judge and present their case as to why they are mature enough to decide for themselves to access abortion. Some states, like Illinois and Texas, offer nonprofit legal and support services for navigating this process, but many minors go through the process alone.
“The vast majority of young people do actually bring their parents into decision making around abortion care,” said Elisabeth Smith, chief counsel of state policy and advocacy at the Center for Reproductive Rights. “When we talk about judicial bypass we are talking about a minority of young people who feel that they cannot bring their parents into this conversation.”
Like most other abortion restrictions, parental notifcation laws pose disproportionately adverse impacts on poor youth, youth of color, and those who suffer from state racialization and criminalization. There are also instances where a young person doesn’t have access to a parent because that parent is incarcerated. For these young people, parental notification is near-impossible.
The vast majority of judicial bypass cases are granted, which advocates say further disproves the need for parental notification laws in the first place.
“Judges are not doctors,” Smith said. “They are not counselors, and they are not experts or in youth development.”
Not only do judges overwhelmingly find that a minor is able to make their own healthcare decisions, but advocates say the combination of parental notification laws and judicial bypass systems disinclines a young person from seeking abortion in the first place, further stigmatizing the routine healthcare procedure. And regardless of a judge’s ruling, advocates say, the bypass process nonetheless relies on the arbitrary nature of their decision influenced by biases and our political climate.
Entering the court space can contribute to young people feeling less secure about their decision to seek abortion. Werth adds that the process can be stressful and traumatizing for a minor, who is often forced to “share very intimate details of their life with a complete stranger—a judge—who has all this power to control.”
Judicial bypass proceedings can also have a material impact on a patient’s abortion care. Given that abortion is a time-sensitive procedure, a delay of even seven days can impact what kind of abortion a patient receives and how much their health care costs. One study found that in Illinois, care was delayed by nearly one week. Although Illinois doesn’t have a 20-week abortion ban on the books, a young person pursuing a judicial bypass in states that do would have to reckon with this.
Advocates argue that a judicial bypass is not a solution to a lack of parental consent, but another abortion restriction disguised as concern. “The [judicial] bypass process itself is an unfair and unnecessary burden on access to abortion care,” Werth said. “It delays people in their ability to actually see the healthcare provider [and] get the health care they need.”
Rosann Mariappuram, the executive director of Jane’s Due Process (JDP), a legal aid and advocacy organization for minors in Texas seeking access to abortion care and contraceptives, said that JDP is one of the largest nonprofit networks for connecting minors with legal representation and support navigating the judicial bypass process.
“A lot of young people are doing it entirely on their own and figuring it out ourselves,” Mariappuram said. “Particularly when you took all the abortion restrictions together, it can push abortion out of reach for young people, especially in the South and the Midwest.”
Minors aren’t even able to vote on the abortion laws that restrict their access to care, yet they’re subject to them. That, Mariappuram said, is on the adults who vote in the disinterest of a young person’s agency.
“We have to own that we think we can speak for young people,” Mariappuram said.
To Smith, what parental involvement legislation really comes down to is a discomfort in addressing the reality of young people, sexuality, and sexual activity. While that discomfort might be understandable, it doesn’t justify legislation that limits the bodily autonomy of young people and their access to health care.
“In legislative decision making I think there is a different set of considerations when talking about adults and when talking about young people … I would suggest that the time has come where we no longer separate access to care into these groups,” Smith said.