Analysis of H.J.R. 16
ANALYSIS OF H.J.R. 16
By Pamela L. Sumners, Esq.
Rep. Davis has sponsored legislation to prefer to the voters in 2010, for the general election or at a special election set by the governor, a constitutional amendment that would divest minors of the ability to obtain contraception or to obtain judicial consent (rather than parental consent) to an abortion. HJR 16 would amend the Missouri Constitution to add: [P]arents and legal guardians have a natural and fundamental right to direct the care, education, and upbringing of their children, and . . . no government action shall burden, abridge, or hinder this natural, fundamental right unless it is in furtherance of a compelling governmental interest and is the least restrictive means of furthering that compelling governmental interest. The proposed amendment is contrary to 30 years of settled constitutional law. In Bellotti v. Baird II, the Supreme Court held that states with parental consent statutes must provide minors with the option of getting a judge’s rather than a parent’s permission. 443 U.S. 622 (1979). Any state law that fails to provide an alternative to parental consent is unconstitutional. Missouri currently has a judicial-bypass law, Mo. Rev. Stat. Section 188.028 (2007). (A copy of the comprehensive study of the efficacy of Missouri’s law prepared under the auspices of NARAL Pro-Choice Missouri Foundation and the ACLU of Eastern Missouri is included in this binder.) HJR 16 would effectively repeal the statute. HJR 16 would also make it impossible for minors to obtain contraception without parental consent. Federal law requires all Title X clinics to make contraception available to minors on a confidential basis. By virtue of the Supremacy Clause of the federal Constitution, federal law trumps all contrary state laws. While it could be argued that the state’s interest in providing abortion care and contraception to minors is a compelling governmental interest and that, e.g., the judicial-bypass statute is the least restrictive means of furthering that compelling state interest, it could also be argued that protecting parental rights and family life are compelling governmental interests. These rights are of course subject to limitations to protect the interests of children. Based on current law, when weighing these two sets of competing interests against each other, the rights of minors to get abortions without parental permission is the interest that will prevail. If the General Assembly passes HJR 16, litigation will surely result, with fees and costs taxed to the state pursuant to 42 U.S.C. Section 1988 (fee-shifting statute).
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