NARAL Pro-Choice Missouri : Issues : Fact Sheets

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Tell Gov. Nixon to Raise the Standard of Care for Rape Victims!

Tell the Obama Administration Its Decision on Plan B® Is Unacceptable

End the Discrimination of Raped Servicewomen

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2/1/2012
Pfizer Recalls Birth Control Pill Packets

1/20/2012
Obama Administration Approves Rule That Guarantees Near-Universal Contraceptive Coverage

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2/1/2012
Statement Regarding Komen Foundation and Planned Parenthood

1/20/2012
Obama Administration Ensures Access to Contraceptive Coverage for Millions of Women

1/19/2012
New Report Shows State-Level Attacks on Choice Skyrocketed in 2011;Analysis Shows 2012 Could Be Even Worse for Women’s Freedom and Privacy

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A Legislative Analysis of H.B. 1316

Modified: 06/03/2010

A Legislative Analysis of H.B. 1316[1]

Prepared by Pamela L. Sumners, Esq.

SUMMARY: The legislation is a direct attack on Missouri’s Judicial Bypass Option and is accordingly unconstitutional under leading Supreme Court precedents.

I. A JUDICIAL BYPASS OPTION FOR MINORS SEEKING ABORTIONS IS CONSTITUTIONALLY REQUIRED IN STATES THAT, LIKE MISSOURI, HAVE MANDATORY PARENTAL CONSENT LAWS.

H.B. 1316, Section 210.890.1 recites:

Notwithstanding any other provision of law to the contrary, a parent or legal guardian of an unemancipated minor less than eighteen years of age shall have the following rights:

(1) The right to make all health care decisions for such unemancipated minor. Such right of the parent or legal guardian shall supersede all other state laws regarding health care decisions for unemancipated minors; except that, no parent or legal guardian shall have the authority to require an unemancipated minor to have an abortion.

The two clauses establishing supremacy over existing laws (“notwithstanding” clause and supersession clause) purport to repeal Mo. Rev. Stat. Sec. 188.028 (2007), the statute providing that a minor may ask a judge to grant her technical emancipation (“majority rights”) for the limited purpose of consenting to an abortion or give judicial consent for her to have an abortion. The emancipation option is limited to the medical decision to have an abortion, not a universal emancipation from the minor’s parents. The judicial consent option obviously places the determination with a court, at the minor’s request. H.B. 1316 would impliedly repeal or statutorily supersede these provisions of Missouri law and in doing so, violate minors’ Fourteenth Amendment rights.

Over 30 years of Supreme Court precedent holds that states that mandate parental consent for minors seeking abortions must provide an alternative. The genesis for the rule was a Missouri case, Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976). The Court ruled that Missouri could not universally require parental consent for minors seeking abortions because the state may not delegate veto power over one’s health care decisions to any other person, particularly in the first trimester, where the state has no power to regulate abortion consistent with Roe v. Wade. In Belotti v. Baird, 443 U.S. 622 (1979), the Court ruled that Massachusetts could not constitutionally enforce its parental consent law unless it also provided the minor with the ability to petition a judge for permission to have an abortion (judicial bypass). The Court’s concern in these cases was that absent the minor’s ability to petition a disinterested court, parental consent could become an “absolute, and possibly arbitrary, veto” over the minor’s health-care decisions. Danforth, 428 U.S. at 72-75.

No state may constitutionally enforce a parental consent provision that lacks a judicial bypass option. All 24 states with some species of parental consent law, accordingly, also provide for judicial bypass. To the extent that H.B. 1316 would eviscerate and supersede the provisions of Mo Rev. Stat. Sec. 188.028, providing for the judicial bypass option, it is unconstitutional.[2]

[1] This analysis does not treat Section 210.890.1 (2) of the bill, related to reimbursement of real-estate taxes paid by home-schooling parents.

[2] The bill’s provision that parents and legal guardians may make all health-care decisions for a minor except requiring her to have an abortion is inconsistent. The premise of the bill is that minors are not competent to make their own health-care decisions and that parents must. Accordingly, allowing minors to make the decision not to have an abortion, but not allowing them to make the decision to have one, is inconsistent with the premise that minors simply lack the appropriate tools to make decisions.