| |
Return to Law & The Courts Page
Testimony For Delaware House Bill 288:
Parental Notice of Abortion Act
By
Dr. Peter A. Lillback
October 6, 1993
As we meet today, Roe v. Wade is the law of the land. And it must be kept clear that the proposed law before our attention today is not about a woman's right to an abortion. What this bill is about, however, is the right of minors to have informed parental guidance and the right of parents to be knowledgeable care-providers and moral instructors for their children.
It is indeed significant that more than thirty states have already enacted parental notification or consent statutes. And even more importantly, on June 25, 1990 the US Supreme Court upheld Minnesota and Ohio laws which acknowledge the right of parents to be informed of their daughter's intention to undergo an abortion. Delaware may be the "First State" but is not the first state to consider this issue.
Whether one believes in a woman's right to an abortion or not, it should be self-evident that teen-pregnancy is a social problem that must be solved. And that is the significance of the Minnesota parental notice law. During the first five years in which it was in effect, the teen pregnancy rate declined at the substantial rate of 20.5%. Pro-choice and pro-life proponents alike should be able to laud the increase in responsible teen behavior prompted by this statute. (See: Brief of the Association of American Physicians and Surgeons as Amicus Curiae, Hodgson v. Minnesota, 1989.)
I believe that the time has come for Delaware to follow the example of such successful statutes. And I would like to add, that it is clearly the popular view of America's voters that such parental notification statutes be enacted. In late 1989, the Democratic National Committee helped finance a poll that found that 68% of voters supported parental notice--and that an abortion-rights Democrat who opposes the concept "runs even" with an anti-abortion Republican who backs it. (Source: The Philadelphia Inquirer, "Parental Notice a Chink in 'Choice'"; Thursday, June 14, 1990, p. 10A.)
I would like to make my remarks under three headings: I. Constitution Concerns for Parental Rights; II. The Law's Concern for legal Age; III. Public Policy concerns Favoring Parental Notification of Abortion.
- Constitutional Concerns for Parental Rights.
Black's Law Dictionary defines parental rights as follows:
The sum total of the rights of the parent or parents in and to the child as well as the rights of the child in and to the parent or parents. The following are 'parental rights' protected to varying degrees by constitution: physical possession of child, which in case of custodial parent, includes day-to-day care and companionship of child; right to discipline child, which includes right to inculcate in child parent's moral and ethical standards; right to control and manage minor child's earnings; right to have child bear parent's name; and right to prevent adoption of child without parents' consent. (Abridged 5th ed., p. 579.)
It is significant to note that parental rights includes "day-to-day care" and "to inculcate in child parent's moral and ethical standards." Moreover, our definition says that such rights are "protected in varying degrees by constitution." In point of fact, the constitutional protection of parental rights is born out in the 1972 Wisconsin v. Yoder case. There, the US Supreme Court declared that parental liberty is not just an ordinary constitutional right, but is a fundamental constitutional right.
This case involves the fundamental interest of parents, as contrasted with that of the State, to guide the religious future and education of their children. The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in upbringing of their children is now established beyond debate as an enduring American tradition. (406 US at 232.)
It is, then, this fundamental right of parents that is being protected by House Bill Number 288. If at present a child without the notification of her parents may secure an abortion simply by the counsel of a state school employee, then what has become of the parental rights of "day-to-day care" and the "inculcation of the parent's moral and ethical standards?"
The Fourteenth Amendment of the US Constitution says, "No state shall make or enforce any law which shall abridge the privileges or immunities of the citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." It is particularly important for us to recall here the due process clause. An important legal concept is "substantive due process." This means that governmental power must not be used against American citizens arbitrarily or unreasonably to deny basic constitutional freedoms. It is my belief that when the state permits abortions to be done without the knowledge of the parents, the state has used its power to unreasonably deny a fundamental constitutional right of parents to know of the care needs and the ethical views of their children.
If our criminals are afforded by the High Court's Miranda decision the privilege of having their rights read to them at the point of arrest, should not the parents of Delaware be afforded the right to know the medical state and moral conduct of their children? To deprive Delaware's parents of such knowledge is to place them on a lower level of constitutional respect than that given Delaware's criminals!
I am prepared to admit that there are legitimate times for the state to act in loco parentis, or, in the place of the parent. The concept of "surrogate parent" stems from the English common law doctrine of "parens patriae", or, that the king may act as the parent of the country on behalf of persons with legal disabilities such as infants, idiots, and lunatics.
But in affirming this right of the state, I must hasten to add that such freedom to act must accord with the 14th Amendment's due process clause. For the state to have due process right to act in loco parentis or as a surrogate parent, there must be a dependency proceeding, wherein the state demonstrates that the parent has not provided proper care for his child. And patently, therefore, the parent must by the very nature of the case be notified that is the state's intent to act in the place of the parents. It is my claim, then, that should the state permit abortion counseling and performance of abortion in loco parentis, then at the very least it must maintain the right of the parents to know that certain of their rights are being performed by the state as a surrogate parent.
The Law's Concern for Legal Age.
Our law does not define womanhood as the ability to conceive children. Instead, our law defines adulthood in terms of legal age. The concept of legal age or arrival at majority is an ancient legal doctrine. A minor is one who has not reached legal age and is therefore unable to act with legal competence. The age of 18 is most often established as legal age. Thus we find countless examples where our law requires the knowledge of the parent before a child can act. These things include: receiving aspirin from school nurse, having her ears pierced; going on a school field-trip; the purchase of a fire-arm; the purchase of tobacco or alcohol; working in certain jobs; to discontinue her education; to marry; to hold public office; to secure a driver's license; to join the military; to enter into contract; to stand trial as an adult; and to have surgical procedures performed.
It is the genius of the law to aim at consistency. This is the point of the stare decisis doctrine wherein courts stand by precedent and attempt not to disturb a settled point of law. House Bill number 288 is in fact standing upon the settled fact of a well-defined legal-age.
Many other examples of our law declare the fact of special treatment of minors. The existence of juvenile courts attests to this. Another example is the fact that laws declare parental liability for damage caused by their children to the property of others if such damage is found to have resulted from negligent control of parent over the action of their children. The very notion of an "emancipated minor" indicates that children are not fully free to be independent from their parents until such freedom is accorded them.
Public Policy Concerns Favoring Parental Notification of Abortions.
It is in the state's interest to have parents knowledgeable of their children's actions. What is good for the families of Delaware is good for the State of Delaware. Allow me to list several common sense reasons why parents should know of their daughter's intent to have an abortion.
- Without notification, the child is deprived of the wisdom, the care and the support of her parents just when she needs them most for post-surgical care, medical history information, and emotional and psychological support.
- Without notification, parents are deprived of the right of being effective parents toward their children.
- Without notification, the state assumes that a third-party non-family member knows more about the child's physical needs, medical and emotional state, than the girl's own family.
- Without notification, the girl will probably lose the benefit of contact with the family physician since the abortion will likely be done in an outpatient clinic.
- Without notification, the state actually encourages a division in the family structure by tolerating secrecy and perhaps even fostering deception between family members.
- Without notification required, the children are taught they do not have to face legitimate authority in a responsible manner. If children are taught that they do not have to tell their parents about their abortions why should they later feel compelled to tell the state about their income for income tax purposes?
- Without notification, the state assumes the very worst about families. It is true that abuse does occur. But we must not correct an abuse by the denial of a fundamental right. Prohibition did not solve alcoholism any more than the removal of hand guns from American life will stop crime. The reality of abuse should be addressed in some other manner such as through judicial exemption of notification by a lawful hearing.
- Without notification, the legal recourse and remedy for medical mal-practice and/or counselor mal-practice is threatened by the parents' ignorance of the child's abortion.
- Without notification, post-abortion medical complications are only worsened due to non-parental involvement.
Conclusion:
Without notification of parents of an abortion for a minor, the state in essence makes her own daughters orphans. By not requiring parental knowledge of the minor's abortion, the child is deprived of her parents and is made a ward of the state. History demonstrates that parents are far more likely and far more able to seek the best interests of the child than any agency or counselor ever could. The State of Delaware has a compelling interest in seeing that its own daughters are not deprived of their parents' knowledge of their physical and emotional needs just when they need them most. House Bill number 288 ought to be the law of Delaware because Delaware's daughters need their parents in the midst of an abortion even more than they need them when they are having their ears pierced.
ProLifeForum.org
A Ministry of Proclamation Presbyterian Church
278 Bryn Mawr Avenue
Bryn Mawr, PA 19010
Voice: 610-520-9500
Fax: 610-520-5240
|
|
