Wednesday, September 2, 2009

On Parental Consent

On this blog, I have not always ventured into the controversial. I feel that it is important, though, that certain issues be discussed. The topic of abortion is a touchy subject to most. It is a topic that divides the American public fairly evenly - with nearly as many in favor as against.

Maryland has very permissive abortion laws. In fact, our ranking by NARAL Pro-Choice America is higher than generally viewed as liberal areas such as New York, Vermont, and the District of Columbia. As one who's views on this issue tend to fall to the right, I can't help but wonder what that means.

As I began to delve deeper into this, I noticed one of the simplest and most clear cut in my mind aspect of abortion regulations: parental consent. Parental consent for abortion for minors is an unnecessarily controversial issue. If an abortion is to be viewed as those on the left would have us view it - abortion is merely a medical procedure. If that is the case, then abortions must be treated as any other medical procedure. In Maryland, a minor is unable to get a tattoo even with parental consent. Why then should a potentially invasive, damaging, and emotionally strenuous medical procedure be allowed to be performed on a minor without no notification of a parent if a physician feels that "...[t]he minor is mature and capable of giving informed consent to an abortion." It may not be perfect, but parental notification and consent is the current standard for medical procedures. To feel we must treat one controversial procedure differently, which the many on the left want us to view clinically as a medical procedure, is inconsistent and illogical.

As such, I would propose the following to adjust Maryland law with regards to parental consent. I would propose to amend General- - Health Section 20-103 to read as follows -
(a) Except as provided in subsections (b) and (c) of this section, a physician may not perform an abortion on an unmarried minor unless the physician has first gives consent from a parent or guardian of the minor.
(b) The physician may perform the abortion without consent of a parent or guardian if the minor does not live with a parent or guardian.
(1) The physician may perform the abortion, without consent of a parent or guardian of a minor if, in the professional judgment of the physician notice to the parent or guardian may lead to physical or emotional abuse of the minor.
(2) The physician is not liable for civil damages or subject to a criminal penalty for a decision under this subsection not to request consent.

(d) A signed statement granting consent for the procedure from the parent or guardian of the minor will be considered conclusive evidence of consent.
Please review my proposal and consider this option. It provides regulations requiring parental consent as required for all other medical procedures. It allows a physician who truly believes that the minor's life is in danger if consent is sought to perform the procedure without consent and protects those doctors under the law.

Those on the left will say that I have gone too far, those on the right will say that I have not gone far enough. Yet, I think this minor reform would be a positive step forward. As always, opinions are always welcome.


Anonymous said...

Sadly your proposal would most likely be found to be unconstitutional under the precedent set by Planned Parenthood of Central Missouri v. Danforth.

Your reasoning is problematic and seems to lack a fundamental understanding of minors who are faced with unwanted pregnancies. In fact a majority of minors who chose to have an abortion notify their guardians and those who don't site concerns such as fear of physical abuse and abandonment.

The Only Sensible Man Alive said...

Are you really suggesting that a minor who fears for their health and/or safety should have the additional burden of having to prove to somebody with no prior knowledge of their situation that they have good cause to fear for their health and/or safety if they don't get an abortion?

I'm not sure what qualifies a gynecologist or an obstetrician or in fact any doctor to make that sort of "professional evaluation" without exposing the minor to the same sort of risk the section purports to avoid.

The crux here is that well over 90% of minors tell their parents anyway--far from improving safety, this would impose additional barriers to abortion for those minors who can least afford to have such barriers.

Other problems that immediately show up: There is no requirement that a physician undertake steps to determine whether it would be a hazard to the child to notify or obtain consent of the parent even in the face of a claim by the minor; even if there were, it would be practically unenforceable.

The way this is structured, at worst it gives a bazooka to law enforcement to harass abortion providers, at best it has no real effect.

The provider's opinion of what constitutes a hazard is vague and subjective, and would thus be subject to only the most capricious of jurisprudence.

The case to make an exception for minors seeking abortion is not so much that the abortion itself is more than a clinical procedure, but that having a pregnancy to terminate in the first place creates additional social considerations that other conditions requiring treatment do not. Lest we compare pregnancy with other medical conditions, it is much more unlikely that parental consent, say, for a patient seeking appendectomy is likely to result in being disowned, abused, pressured out of a procedure, pressured into a procedure, or pressured into a social institution. If it were the case that appendectomies were looked down upon in many families and minors were going into sepsis from pressure not to have an appendectomy, or were at risk of abuse for it, there would be a similarly strong case for exceptions to parental consent or notification as appropriate for that procedure, as well.

Incidentally, I notice that you mention that it's potentially invasive, damaging and emotionally strenuous. It may not have occurred to you that pregnancy treatment and giving birth also potentially invasive and damaging, and on the whole have been conclusively shown to produce more consistent emotional side-effects than abortion--not to mention that the rate of threatening complications from pregnancy is far higher than the rate of threatening complications from abortion--yet neither of these things require parental consent or notification. (Care provided for minors in labor who haven't set up treatment ahead of time [and often can't afford to] is considered emergency treatment, and thus not subject to parental consent/notification laws by law.)

M.R. Newman said...

No, I'm not stating they have to prove their case to someone. I actually left that wording with regards to fear for health / safety verbatim as it currently states in Maryland law.

If the physician feels that the person's health / safety is at risk if they seek notification, they can perform the procedure without consent under the proposal I made. They also, the way I left it worded, can not be held liable for civil damages / be sued for their professional judgement. (Section c).

The Only Sensible Man Alive said...

But then they do have to prove their case--to the physician. Otherwise, how is the physician capable of making a judgment?

Irrespective, you haven't responded to the broader point that parental notification provides an extra barrier first and foremost to those people who need unrestricted access the most--those who have a reason to fear for their own health and safety, something even a minor is capable of determining on their own.

They don't need a physician to make that judgment for them, and the physician shouldn't need to have any sort of reason to err on the side of caution for the minor's sake. Any arbitrary minor might be at risk, and not wish to disclose that information to their physician.