The law has long acknowledged that minors do not have the same maturity and capacity as adults to make many decisions. Areas where a minor's rights traditionally have been limited include: voting, driving an automobile, drinking alcohol, getting married, obtaining a tattoo, body piercing, and entering into contracts. In the area of health care, a parent of a minor must usually consent before medical services can be provided to the minor. In the area of pregnancy policy, however, some exceptions have been made.
Pregnancy help centers/clinics have traditionally provided pregnancy-related services to minors without being required to first contact the parents of the minors. Since the issuance of Roe v. Wade and subsequent Supreme Court decisions that allow minors to obtain abortions without parental consent, states have allowed pregnancy-related services to be provided to minors without requiring consent or notification of the minor's parents.
According to a December 1, 2006, study by the Guttmacher Institute,1 most states currently have laws that allow minors to obtain confidential prenatal care, including pregnancy testing and ultrasound services, without obtaining parental consent or notification.
I. States that Authorize a Minor to Consent to Prenatal Care
A minor may consent to prenatal care services in the District of Columbia and the following 27 states: Alabama, Alaska, Arkansas, California, Colorado, Florida, Georgia, Idaho, Kentucky, Maryland, Massachusetts, Michigan, Minnesota, Mississippi, Missouri, Montana, New Jersey, New Mexico, New York, North Carolina, Oklahoma, Pennsylvania, Tennessee, Texas, Utah, Virginia, and Washington.
If you operate in one of these states, a minor is deemed legally capable of consenting for and receiving a pregnancy test and ultrasound test from your clinic.
II. States that Authorize a Minor to Consent to Prenatal Care under Certain Parameters
The following eight states allow a minor to consent to prenatal care under certain parameters:
• Delaware - she must be 12 years or older;
• Hawaii - she must be 14 years or older;
• Kansas - she must be "mature;"
• Nevada - she must be "mature" or married;
• New Hampshire - she must be "mature;"
• Oregon - she must be 15 years or older;
• South Carolina - she must be 16 years old or "mature;"
• Illinois - a minor may consent to medical services if her physician believes there is a probable health hazard, when she is a parent, or when she is being referred by a professional such as a physician or clergyman.
Providing prenatal care without parental consent to minors in these states is problematic because the definition of "mature" is subjective and has no definitive meaning. In addition, any limitation on a minor's right to receive pregnancy-related services creates, in our opinion, serious constitutional issues. (We address this constitutional issue further below.)
III. States That Allow a Minor to Consent to Prenatal Care If She Is Married
The following nine states allow a minor to consent to prenatal care if she is married, otherwise, these states have no explicit policy: Connecticut, Indiana, Iowa, Louisiana, Maine, South Dakota, Vermont, West Virginia (if she is 16), and Wyoming.
It is important to note that a minor normally needs to obtain parental consent to get married.
IV. States with No Explicit Policy
The following six states have no explicit policy: Arizona, Nebraska, North Dakota, Ohio, Rhode Island, and Wisconsin.
V. States That Allow a Parent to Be Notified
Medical services provided to minors who are capable of consenting should remain confidential. However, in the following 12 states, a physician may inform parents of the services being provided if he/she feels it is in the minor's best interest: Delaware, Hawaii, Kentucky, Maryland, Michigan, Minnesota, Missouri, Montana, New Jersey, Oklahoma, Oregon, and Texas.
VI. Constitutional Issue
The state of Oregon has a statute that, on its face, prohibits the provision of ultrasound to a minor under the age of 15 without parental consent. Other states may have similar restrictions. It is NIFLA's (National Institute of Family and Life Advocates) opinion that such restrictions are unconstitutional. This opinion is grounded in Supreme Court cases that deal with the constitutional right to privacy. In Roe v. Wade, 410 U.S. 113 (1973), the Court concluded that this right of privacy is broad enough to encompass a woman's decision "whether or not to terminate her pregnancy." Such a right to privacy, while usually cited to argue for a woman's right to have an abortion, also includes the right of a woman in a crisis pregnancy to carry her baby to term. Any laws that "unduly burden" this right are unconstitutional. Planned Parenthood v. Casey, 505 U.S. 833 (1992).
The Supreme Court has further recognized that a minor has the same right to privacy under Roe v. Wade that an adult woman has. According to the Court, "constitutional rights" do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution, and possess constitutional rights. Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976).
In Danforth, the Supreme Court struck down a law that required parental consent before a minor could obtain an abortion. The Court required that for such laws to be constitutional they must contain a judicial bypass provision that bypasses parental consent if the minor can prove to a court that she is mature enough to proceed without her parent's consent or, in the alternative, the abortion is in her best interests.
Logically then, if a minor's ability to obtain an abortion cannot be restricted by parental consent, then her ability to obtain prenatal care, including ultrasound, also cannot be restricted by parental consent. In those states that do not have an explicit policy about a minor consenting to prenatal care, or have a policy that puts some parameters on her ability to consent to prenatal care, there is a strong constitutional argument that supports the right of the minor to consent to the prenatal care without parental consent. The law cannot impose a special consent provision, exercisable by a person other than the woman and her physician, as a prerequisite to a minor's continuation of her pregnancy. It violates the strictures of constitutional right to privacy.
In Oregon, a minor 15 years and older can consent to medical treatment, including prenatal care and ultrasound. May a clinic in Oregon perform an ultrasound without parental consent if the patient is under 15? The face of the Oregon law says, "No." But NIFLA believes that such a provision is unconstitutional. It makes no sense that a minor in Oregon under the age of 15 may obtain an abortion without parental consent or notification, but must obtain parental consent or notification to have an ultrasound examination. Both cases deal with the right of privacy of a minor to determine "whether or not" to terminate a pregnancy.
The issue of the Oregon statute, and other laws like it, has not yet been litigated. Thus, it would appear that pregnancy centers/clinics from states like Oregon are between a rock and a hard place. The board of directors of each center in these states must decide whether or not it should abide by the face of the law, as written, or ignore the law and be prepared to challenge its constitutionality if they face legal problems from disregarding the statute. The boards of directors of centers/clinics in these states need to decide whether the benefit of empowering a minor to choose life is worth the risk of litigation and a constitutional challenge.
If your center/clinic faces a law of the kind in Oregon and needs to discuss a response, please call the NIFLA office and talk to Thomas A. Glessner, JD, president, or Anne J. O'Connor, general counsel.
1. Guttmacher Institute, State Policies in Brief, "Minors Access to Prenatal Care," December 1, 2006.
Thomas A. Glessner and Anne J. O'Connor can be reached at NIFLA by calling 540-372-3930.