This year has seen a flurry of state-level legislative action on abortion, initiated by both pro-life and pro-abortion advocates. The catalyst for much of this action has been hope (or fear) that the U.S. Supreme Court might modify, if not reverse, the unrestricted abortion liberty found in Roe v. Wade.
Fear of Roe’s reversal propelled Governor Andrew Cuomo’s effort to create a New York statutory right of abortion throughout pregnancy. Since what one legislature does another can undo, however, the same fear may very well be used to attempt to immunize the abortion liberty by inventing abortion “rights” under state constitutions (see the Kansas Supreme Court’s ruling in Hodes and Nauser v. Schmidt). The extremism of some of this legislation—e.g., no protection for infants that survive abortion procedures in New York—is having the effect of alienating the “mushy middle” of Americans from pro-abortion orthodoxy.
Hope for Roe’s reversal has also propelled states like Georgia, Alabama, Ohio, and Missouri to enact “heartbeat” bills, banning abortion once a fetal heartbeat is detectable (about six weeks after conception). Whether such legislation may alienate that “mushy middle” is also a question. It is already the object of pro-abortion obfuscation—advocates now maintain that it is “medically inaccurate” to call a fetal heartbeat a heartbeat. The pro-abortion American College of Obstetricians and Gynecologists, for instance, argues “what is interpreted as a heartbeat in these bills is actually electrically induced flickering of a portion of the fetal tissue that will become the heart as the embryo develops”. And in a recent article, the New York Times referred to the fetal heartbeat as “embryonic pulsing”.
One area where modification of Roe may find support among the broader section of Americans is the question of parental consent and notification laws. Florida tried this year to pass legislation to replace parental notification with a parental consent requirement. The bill died in a state senate committee.
A little history might help.
In the first years after Roe, states attempted to identify just how much they could still limit abortion. Roe in theory paid lip service to state interest in “the potentiality of human life” (410 U.S. 113 at 154, 156). In those early years, many observers simply did not want to believe—and press coverage promoted the view—that the abortion liberty in Roe (and Doe v. Bolton, a companion case decided the same day)—extended through nine months of pregnancy and was practically unlimited. While there were indications, the full flowering of abortion as the uber-right to which all other general principles of law, precedent, and even common sense had to conform, was not yet on view.
Missouri, reasoning that all other medical procedures performed on a minor require parental consent, adopted a law requiring minors to have such consent for abortion. The law also required spousal consent, the reasoning being that it took two people to conceive a child and thus both had a stake in the child’s future.
Parental (and spousal) consent were among the first limits on abortion tossed out by the Supreme Court. Just three years after Roe, the Court struck down the Missouri law in Planned Parenthood of Central Missouri v. Danforth (428 US 52 .
Many commentators, including me, were bothered by the Danforth decision, in which the Court reasoned that Missouri could not afford parents of a minor a decisive role in whether the minor obtained an abortion, or fathers a decisive role in a wife’s decision to obtain an abortion because, it declared, the state did not have that right and thus could not “delegate” it to parents or fathers (at 70, 71).
Consider Harry Blackmun’s audacious (and mendacious) claim. A father or a parent has no say in a wife’s or minor daughter’s abortion because they are not “delegates” of the state. Blackmun’s logic betrays the absolute illogic that has governed abortion politics ever since his opinion was issued. Although he claimed in Roe that “a woman cannot be isolated in her privacy,” that is exactly what he does. For him, there are no natural rights that come from the family and pre-exist the state. The only “rights” are those the state confers (or cannot confer). And, according to Blackmun, it could not confer a role in preventing an abortion.
In the years following the Danforth decision, the issue of minors and abortion remained a fraught one. Some states, observing that a child couldn’t be given an aspirin in most places without parental consent, insisted that neither should she be given an abortion without it. Other states sought to compromise, passing laws that simply required parents to be “notified” if their daughter was seeking an abortion.
Planned Parenthood, of course, would have none of that.
In subsequent litigation, Planned Parenthood prevailed in getting courts to force states to incorporate exceptions in parental consent/notification laws, allowing someone in lieu of parents to grant approval for a minor’s abortion. In most cases, it was a judge. (When young girls were injured in abortion procedures, I wonder how many of those judges were at their side.) As Charles Dickens puts it in A Christmas Carol, these exceptions were broad enough “to drive a coach and six up a good old flight of stairs.”
The bill that died in the Florida legislature would have turned the Sunshine State into a “consent” state. Mainstream media sought out poster children to portray just how “radical” the proposed change was. As usual, despite the injunction that “hard cases make bad law,” the most egregious examples—such as a minor who had had multiple pregnancies, one of which allegedly was due to rape—were cited to oppose any parental consent provision.
Pro-abortionists would like to befuddle people into believing that for-profit businesses like abortion clinics have a more realistic view of “the best interests of a child” than the child’s mother or father. Abby Johnson alluded to this in her book Unplanned, noting that she never told her mother about her two abortions, and, as she wrote, “there’s probably something not good or right about not being able to tell your mother something.”
Florida and other states want to re-involve parents in these life-changing decisions. (For a survey of states on parental involvement laws, see here: https://www.nrlc.org/uploads/stateleg/PIFSLegalwithMap.pdf) In enacting these laws, they rightly challenge the flawed and erroneous logic of Danforth that a woman has an absolute right to abort her child, and that the state’s sole responsibility is to facilitate that abortion. This is exactly what is at stake in legislation like New York’s, which pretends that neither parents, nor spouse, nor society—can have any legitimate response to abortion other than to “shout” about what a great “choice” it is.
Most Americans will likely agree that, hard cases aside, parents have a right to be involved in a minor child’s decision to abort or not—and the law should not be putting its finger on the scale to make that right optional or waivable. After all, the paradox is that under Roe, a girl in Florida can obtain an abortion without her parent’s consent, but under theater policies, could not see the movie Unplanned without a parent accompanying her, ostensibly because the depictions of surgical and chemical abortions are considered “too violent” or “too graphic.”
The King of Siam summed it up well: “It’s a puzzlement.”