Utah’s Parental Involvement Law: Minors’ Access to Abortion
by Margaret D. Plane
During the 2006 General Legislative session, Utah amended its laws requiring prior parental notification for minors seeking abortions.1 Utah lawmakers passed House Bill 85 S1, “Abortion by a Minor – Parental Notification and Consent,” which requires, except in limited circumstances, that minors both notify and receive consent from a parent or guardian before obtaining an abortion. See H.B. 85, 56th Leg., 2006 Gen. Sess. (Utah 2006). The amended Utah Parental Consent Act (the Act), Utah Code Ann. § 76-7-304.5, took effect on May 1, 2006.
After passing the Act, Utah became one of 34 states currently enforcing laws that require a minor to notify and/or obtain the consent of a parent or guardian before an abortion.2 Ten states have laws that are either enjoined by a court, largely because of constitutional infirmities, or not enforced.3 Although the laws differ from state to state, they can be generally categorized into two, non-equivalent types: parental consent and parental notice. Parental consent is often considered a legal bar to a minor’s access to abortion, whereas parental notice may be a de facto bar to access. In legal challenges to these laws over the decades, courts have tried to balance the reproductive rights of teens, the interest of the state in the health and welfare of teens, and the rights of parents to direct their children’s upbringing. This article will provide the legal framework for mandatory parental involvement laws and then outline the provisions and implementing rules of the Utah Act.
A series of judicial decisions concerning the validity, construction, and application of statutes requiring parental consent or notification before a minor obtains a first-trimester abortion began in the United States Supreme Court more than thirty years ago. The landmark case, Bellotti v. Baird, 443 U.S. 622 (1979),4 started with the premise that minors possess constitutional rights, although they are not equal to those of adults. In Bellotti the Court reviewed a Massachusetts statute that required parental consent for a minor to obtain an abortion. The law gave a young woman the right to bypass parental consent by demonstrating to a court that she is mature and well-enough informed to make the abortion decision on her own, or that an abortion would be in her best interest. However, the statute also required that an available parent be given advance notice of any judicial proceedings brought by a minor to obtain a judicial bypass of parental consent. This provision essentially amounted to required parental consultation before a minor could seek a judicial bypass. Additionally, the law allowed a judge to disregard a well-informed minor’s maturity if the judge determined that an abortion would not be in the minor’s best interest.
The Supreme Court invalidated the Massachusetts statute, holding that, although a state may require parental consent, the state must afford the minor an alternative by which she may bypass the requirement, without first notifying her parents. The Court’s decision was partially based on the fact that the statute indirectly gave parents veto power over their daughter’s abortion decision. Three years earlier, the Court had held unconstitutional a blanket parental consent requirement because it amounted to giving a third-party “an absolute, and possibly arbitrary” veto over the minor’s abortion decision. See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 75 (1976). The Massachusetts law in Bellotti was also invalidated because it allowed judges to withhold consent independent of a minor having established her maturity or that an abortion was in her best interest; essentially, the statute also gave judges veto power over the minor’s decision. See Bellotti, 433 U.S. at 650.
The Bellotti Court recognized that, like adults, minors possess constitutional rights, including the right to seek an abortion. The Court did not equate the rights of minors with the rights of adults because of concerns about the “vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” Id. at 634. Nevertheless, the Court acknowledged the unique nature of the abortion decision, noting that the “potentially severe detriment” facing a pregnant woman is not mitigated by her minority, and that unwanted motherhood may be especially burdensome for a minor in light of her “probable education, employment skills, financial resources, and emotional maturity.” Id. at 642.
While the Bellotti Court held that minors must be able to bypass parental consent and consultation, it acknowledged that the bypass need not be a judicial process in a court of general jurisdiction. For instance, the state could delegate the bypass procedure to a juvenile court or an administrative agency or officer. However, because the challenged Massachusetts law included a judicial process, the Court set forth the standards a judicial bypass procedure must satisfy if a parental consent law is to survive constitutional scrutiny. Under a judicial bypass alternative, the minor must be given the opportunity to show that she is mature enough and well informed enough to make the decision whether to have an abortion on her own. If maturity5 is established, the court must permit the minor to bypass the parental consent requirement. The minor is then entitled to make her own decision; the court cannot make it for her. Id. at 643-44, 647. The minor must also be given the opportunity to show that the abortion is in her best interest.6 If she makes this showing, the court must grant her bypass petition. Id.
Importantly, the Bellotti Court also held that a judicial bypass hearing and any appeals that follow must “be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.” Id. at 644. In mandating expedition, the Court recognized that the minor’s opportunity to have an abortion, should that be her choice, expires in a matter of weeks. The bypass process must therefore be expedited, or it will fail to protect the minor’s right. Id. at 642.
Parental consent laws continue to be measured against these standards. See, e.g., Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992) (reaffirming Bellotti standards). Since the Bellotti decision, no court, looking to the merits, has upheld a parental notice statute that lacks some form of a bypass. See, e.g., Hodgson v. Minnesota, 497 U.S. 417, 460-61 (1990) (holding two-parent notification law without bypass unconstitutional); Planned Parenthood v. Miller, 63 F.3d 1452, 1460 (8th Cir. 1995) (holding one-parent notification law without bypass facially unconstitutional); Zbaraz v. Hartigan, 763 F.2d 1532, 1536, 1539-44 (7th Cir. 1985) (holding unconstitutional parental notice law whose bypass did not meet previously established requirements), aff’d by equally divided Court, 484 U.S. 171 (1987); Indiana Planned Parenthood v. Pearson, 716 F.2d 1127, 1132 (7th Cir. 1983) (same); Akron Ctr. For Reprod. Health v. Slaby, 854 F.2d 852, 861 (6th Cir. 1988) (same), rev’d on other grounds; Ohio v. Akron Crt. For Reprod. Health, 497 U.S. 502 (1990).
Utah’s current parental involvement law is unique because of its provisions requiring both the notice and the consent of a minor’s parent or guardian, with limited exceptions. During legislative deliberations, questions were raised as to the constitutionality of requiring both notice and consent with only limited waiver provisions. The law’s permissibility is at least suspect, although the Supreme Court has reiterated that it has not decided whether parental notice provisions require bypass provisions. See Lambert v. Wickland, 520 U.S. 292 (1997).
Utah’s law applies to all minors under eighteen years of age, except those who are married or emancipated. See Utah Code Ann. § 76-7-304(1)(b). There are two essential requirements under the Utah statute: first, the minor either must obtain the informed written consent of a parent or guardian, or the minor must, through a judicial bypass proceeding, obtain a court order waiving this requirement. Id. § 76-7-304.5(2). Second, the physician must notify the minor’s parent or guardian at least twenty-four hours in advance of the abortion. Id. § 76-7-304(3). There are limited exceptions to the 24-hour advance parental notification requirement, including when the minor is pregnant “as a result of incest to which the parent or guardian was a party,” “the parent or guardian has abused the minor,” or “the parent or guardian has not assumed responsibility for the minor’s care and upbringing.” § 76-7-304(4). If the minor has another parent or guardian who does not fall under one of the notice exemptions, then that individual must be notified. Because the notice provision is not affected by the implementing rules, it will be discussed before turning to a discussion of the bypass provision and the implementing rules.
Utah’s notice provision differs from the Bellotti provision discussed above in several ways. First, the provision at issue in Bellotti essentially made parental consultation a precondition to a minor’s obtaining a judicial bypass. There were no exceptions to the notification requirement. In contrast, under the Utah notice provision, notice must be given at least twenty-four hours before the abortion occurs, rather than at some point before the bypass hearing. The Utah Act does not provide a mechanism for a waiver of the notice requirement, although it does allow for limited exceptions; the limited exceptions do not include an opportunity for a minor to demonstrate either that she is mature or that an abortion would be in her best interests.7 See Planned Parenthood, Sioux Falls Clinic v. Miller, 63 F.3d 1452 (8th Cir. 1995) (affirming decision that provision requiring parental notification except in specified cases was unconstitutional because it failed to provide bypass mechanism to allow mature minors or best-interest minors to proceed without notification). Further, the Utah notice provision may violate the minor’s confidentiality and anonymity.
Since the Bellotti decision, the Supreme Court has reiterated that it has not decided whether statutes requiring parental notification must include some sort of bypass provision in order to be constitutional. See Lambert v. Wickland, 520 U.S. 292 (1997). The Court has stated, however, that statutes merely requiring notice are not constitutionally obliged to include the full panoply of safeguards required for parental consent statutes. See Hodgson v. Minnesota, 497 U.S. 417 (1990). The lower courts are divided about whether a mature minor, or one for whom an abortion is in her best interest, is unduly burdened by a statutory requirement that her physician notify one of her parents before performing an abortion.
The second statutory requirement under the Utah Act is that the minor obtain either the informed written consent of a parent or guardian, § 76-7-304.5(3)(a), or a court order waiving the informed written parental consent requirement, § 76-7-304.5(3)(b). Informed consent is statutorily defined and includes requirements to obtain various categories of information at specified times, from specified people, before an abortion may be performed. See § 76-7-305. If a minor seeks a waiver of the parental consent requirements, she may file the petition in a juvenile court in any Utah county. See § 76-7-304.5(4); Utah R. Juv. P. 60(a), (b).8 There is no filing fee. The filing of the petition, the petition itself, all hearings, proceedings, and records are confidential under the Act and the implementing rules. Any hearings are closed to the public, and court personnel are explicitly prohibited from notifying the minor’s parents, guardian, custodian, or any member of the public that she is pregnant or wants an abortion. See Utah Code Ann. § 76-7-304.5(6)(c); Utah R. Juv. P. 60 (g); Utah R. App. P. 60(h).
A minor may file the petition either on her own or through an attorney. If the minor is not represented by a private attorney, the juvenile court “shall consider appointing an attorney under Utah Code Ann. § 78-3a-913 and/or the Office of Guardian ad Litem under § 78-3a-912.”9 Utah R. Juv. P. 60(c). Providing for the appointment of counsel in a judicial bypass procedure is not unique to Utah. Courts have considered provisions for the appointment of counsel to be critical “to ensure that the waiver hearing becomes an effective opportunity for the minor to obtain an abortion upon the proper showing.” Indiana Planned Parenthood Affiliates Ass’n v. Pearson, 716 F.2d 1127, 1138 (7th Cir. 1983). Under Utah rules, if an attorney or guardian ad litem was appointed at the trial level, the appointment continues through any appeals. See Utah R. App. P. 60(i).
Because of the time-sensitive nature of a minor’s abortion decision, the juvenile court must schedule a hearing and resolve the petition within three days of receipt. See Utah R. Juv. P. 60(d). The hearing may be continued for no more than one day. Notably, there is no provision in the rules for additional continuances or to remedy a court’s inaction or delayed action.10 Many states include provisions to account for such delays in order to safeguard the minor’s right to an expeditious bypass proceeding. Expedition is vital because “[a] pregnant adolescent . . . cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy.” Bellotti, 433 U.S. at 642. If a juvenile court failed to act on a petition, a minor would presumably have a right to seek an expedited writ of mandamus from the Utah Supreme Court.
The bypass proceeding itself is an informal hearing, conducted by the court, to hear evidence relating to the minor’s maturity and best interest. It is a non-adversarial hearing. The court hearing the waiver petition must grant the petition if it finds one of two things. A court may find, by a preponderance of the evidence, that the minor has given her “informed consent to the abortion” and “is mature and capable of giving informed consent to the abortion.” Or, the court may find, again by a preponderance of the evidence, that “an abortion would be in the minor’s best interest.” See § 76-7-304.5(5)(b); see also Utah R. Juv. P. 60(e). Under either of these findings, the court is not requiring a minor to seek an abortion; rather, the court is granting the minor the right to make that decision without the consent of her parents. The order must be entered immediately after the conclusion of the hearing. I
f the court denies or dismisses the petition, it must inform the minor of her right to an expedited appeal. Utah R. Juv. P. 60(e). The notice of appeal is filed with the clerk of the juvenile court, who must “immediately” notify the Court of Appeals. Under the rule, the juvenile courts will make available blank notices of appeals; there is no filing fee. The record on appeal, including a recording or transcript of the proceedings below, must be transmitted to the Court of Appeals within 48 hours after notice of appeal is filed. No brief is required, although a memorandum in support of the appeal is discretionary. If the Court of Appeals orders oral argument, the argument must be held within three days after notice is filed; a decision must be issued immediately after the argument. If oral argument is not held, an order stating the decision must be issued within three days after the notice of appeal is filed. As with the hearing below, all documents and proceedings are confidential.
If the Court of Appeals affirms the juvenile court’s denial of the bypass petition, there is no appeal as of right to the Utah Supreme Court. See Utah R. App. P. 46(a). However, under Utah Rule of Appellate Procedure 46, a minor may ask the Utah Supreme Court to review her case under its discretionary jurisdiction. The Supreme Court has discretion to hear cases by a writ of certiorari, but review “will be granted only for special and important reasons,” most relevantly, “[w]hen a panel of the Court of Appeals has rendered a decision that has so far departed from the accepted and usual course of judicial proceedings or has so far sanctioned such a departure by a lower court as to call for an exercise of the Supreme Court’s power of supervision,” or when the Court of Appeals has decided “an important question” of law that should be settled by the Utah Supreme Court. Id. If a writ of certiorari is sought, it would likely need to be done under the appellate rule for emergency relief. See Utah R. App. P. 8A. As there are no rules specifically in place guaranteeing expedition or confidentiality at the Supreme Court level, a minor or her counsel would need to take affirmative measures to ensure these, if review is sought.
When Utah enacted its parental consent and notification statute, it joined the majority of states with similar laws. Still, Utah’s law is slightly different than any tested in court to date, primarily because of its notification provisions. The Supreme Court and lower courts have accepted that a parental notification statute, applied to immature minors who are dependent upon their parents, does not give parents the type of absolute veto power over a minor’s decision that the Supreme Court has rejected. However, it remains an open question whether Utah’s notification requirement violates federal constitutional requirements based on its lack of exceptions for minors who establish their maturity or best interest and its apparent violation of minors’ confidentiality and anonymity.
1. Utah’s previous parental involvement statute, Utah Code Ann. § 76-7-304(2) (1978), required a physician to “[n]otify, if possible, the parents or guardian” of the minor upon whom an abortion is to be performed. In H.L. v. Matheson, 450 U.S. 398 (1981), the statute was upheld. In a class action, the plaintiff, an unmarried minor dependent upon and living with her parents, did not allege that she or any member of the class was mature or emancipated. As a result, the statute, as applied to an immature, unemancipated minor, dependent upon and living with her parents, passed constitutional scrutiny, and plaintiff lacked standing to assert a facial challenge.
2. The 34 states are: AL, AZ, AR, CO, DE, GA, IN, IA, KS, KY, LA, ME, ME, MA, MI, MN, MS, MO, NE, NC, ND, OH, OK, PA, RI, SC, SD, TN, TX, UT, VA, WV, WI, WY.
3. The 10 states are: AK, CA, FL, IL, MT, NV, NH, NJ, NM, OK.
4. This case is often referred to as “Bellotti II,” as it is the second of two Supreme Court decisions in this case. In the first, Bellotti v. Baird, 428 U.S. 132, (1976), the Court vacated the district court’s judgment, holding that the federal court should have abstained from a decision until the Massachusetts courts had ruled on the construction of the statute.
5. There is no set definition of “maturity.” To establish maturity, cases have considered activities such as good grades and school involvement; church or other community activities; responsibilities in her home; jobs, including baby sitting; money management; future educational, work, and family plans; relationships with adults; an understanding of her decision, and of the medical and court processes; and whether the minor already has a child.
6. If the court does not find that the minor is sufficiently mature to make the abortion decision or that she has not given her informed consent, the court separately must consider whether an abortion is in her best interest. This inquiry may consider the consequences for the minor if she is required to go through full-term pregnancy and childbirth, including factors like disruption to her education; burden on future plans; and inability to support a child.
7. Under this provision, a minor’s parent might be notified of the abortion because the limited exceptions are not met, despite the fact that a court has determined, through the consent bypass procedure, that it is not in the minor’s best interest to obtain her parent’s consent. Because notice, while not a legal bar to obtaining the abortion, may act as a de facto bar, the minor may be put at risk where family violence, for example, is present.
8. The implementing rules, Utah Rule of Appellate Procedure 60 and Utah Rule of Juvenile Procedure 60, were issued under the Supreme Court’s emergency rule making authority on the effective date, May 1, 2006. (Thereafter, the rules were open for public comment.) In an amendment on May 10, 2006, a requirement that a minor state she is a resident of Utah, suggesting that non-Utah residents may be unconstitutionally barred from seeking medical care in Utah, was deleted from Utah Rule of Juvenile Procedure 60(a). Both rules were amended on January 31, 2007.
9. It is unclear how the language providing for the appointment of an attorney and/or a guardian ad litem will be applied. The roles of an attorney-advocate and a guardian ad litem are markedly different. Indeed, the Utah Supreme Court has recognized, “that the role of a guardian ad litem is to represent the best interests of those not legally competent to represent themselves, primarily children . . . . [T]he duties and responsibilities of a guardian ad litem are not always coextensive with those of an attorney representing a party in an action.” State v. Harrison, 24 P.3d 936, 942 n.4 (Utah 2001).
10. Before the rules were amended on January 31, 2007, Utah Rule of Juvenile Procedure 60(f) provided that if no hearing is held within three days, “the petition shall be deemed granted.” This provision was deleted.