Chanakya National Law University, Patna
The US state of Illinois mandates parental involvement for young people under 18 seeking abortion care as per the Parental notice of abortion act which is in effect since 2013[i]. This act requires a healthcare provider to notify an “adult family member” of any patient under 18 at least 48 hours in advance of providing an abortion. This law specifies that a parent, grandparent, step-parent living in the home, or other legal guardians over the age of 21 qualify as an “adult family member” to be notified. Through this article, the author will scrutinize the parental notice of the abortion act. The author through this article has tried to express the ordeal faced by the young generation due to this law. The Author has also expounded on the international standards and commitments that are being breached under the abortion law of Illinois.
One is sufficiently mature and well enough informed to make an abortion decision without parental involvement.
Parental involvement is not in one’s best interests.
Even though, abortion is a safer option[iii] than continuing a pregnancy or childbirth yet parental involvement is necessary as per the abortion law of Illinois. The 47-year old case of Roe vs Wade[iv] legalized abortion in the USA. The two mainstream issues arising from this law are:- the cumbersome and delayed process of judicial bypass and dereliction of privacy. The young people who get daunted by the thought of a delayed judicial bypass may be compelled to continue unwanted pregnancies or pushed to involve unsupportive or even abusive parents who threaten their safety, interfere in their decision-making, or humiliate them. Even if someone decides to go through this process, appearing before a judge to request permission to see through an abortion decision is highly stressful for young people, and even traumatizing for some. Participating in the process also risks violating their[v] privacy and confidentiality.
Scrutiny of Parental Notice of Abortion Act:-
Illinois’ Parental Notice of Abortion Act (PNA) of 1995 states that[vi] in order to provide an abortion for a young person under 18, a healthcare provider must notify an “adult family member” of the patient at least 48 hours in advance. A person who is under the age of 18 and has got married or has been emancipated under the emancipation of minor’s act[vii] can be a stakeholder of PNA, 1995. In case of a medical emergency or if the young person declares in writing that they are a victim of sexual abuse, neglect, or physical abuse by an adult family member, the requirement of notice can be neglected[viii].
Young people under 18 who do not want to involve one of these specific adult family members in their abortion decision may seek permission from a judge to obtain an abortion without notification through a “judicial bypass” process. The bypass process in Illinois is governed by federal constitutional standards established by the US Supreme Court in its 1979 Bellotti v. Baird[ix] decision. In Bellotti[x], the Supreme Court reviewed a Massachusetts parental consent law and affirmed that young people under 18 have a constitutional right to seek an abortion. The Court articulated a set of minimum standards for this alternative process, including that young people must have an opportunity to demonstrate that they are mature and well enough informed to make an abortion decision without parental involvement or that an abortion without parental involvement is in their best interests, and that the process should be confidential and expedited.
The Ordeal of the young generation:-
The abortion law of Illinois puts the young generation in a situation of quagmire and pandemonium as they have to choose between Scylla and Charybdis i.e., telling an adult family member or going through the tedious and fear-mongering process of Judicial bypass. Under this heading, the author will expound on the ordeal caused to the young generation due to the abortion law of Illinois.
Young people don’t want to involve an adult family member in the process of abortion as they fear the emotional or physical abuse[xi] they have to face due to such involvement. Some young people are faced with the fear of being kicked out of home or getting isolated financially[xii] when they tell an adult family member about their will to abort a child. The young generation refrains from involving their parents or guardian in the process of abortion as they anticipate that they will squander the family relationships and create an unstable situation in the family. Such fears put the young generation in a position where they are forced to continue an unwanted pregnancy.
Even if a young person decides to go through the process of judicial bypass instead of telling an adult family member about their will to abort a child, the situation will not be hunky-dory for that person. Despite the strenuous efforts of a compassionate and dedicated network of care providers, attorneys, and volunteers, young people face[xiii] formidable logistical hurdles throughout the process, particularly around accessing information, communicating safely, scheduling hearings, and securing transportation. Many young people are understandably overwhelmed by the process, and some are unable to navigate it. The highly challenging[xiv] part of the judicial bypass process for many young people is scheduling a hearing at court and travelling to and from the hearing. Before the Covid-19 pandemic, hearings were held exclusively in person during regular business hours, and young people had to secure transportation to the courthouse and arrange time away from school, work, or other obligations without their parents being alerted. Though the online hearings have eased the logistic barriers but escalated the risk of breach of confidentiality and safety since most of the young people rarely leave their homes due to the Covid-19 restrictions.
Non-Observance of the International Legal Standards:-
The international human rights law provides for the right to life, health, privacy, non-discrimination among others to all people irrespective of their caste, religion, and sex. The abortion law of Illinois is in contravention to the Convention on the Rights of the Child, which the United States has signed but not ratified. This convention states that[xv] “in all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative authorities, the best interests of a child shall be a primary consideration, “ and establishes the right of everyone under 18 to be heard.” Article 24[xvi] of this convention protects the right to physical as well as mental health of children and the fear instilled by the abortion law of Illinois in the youth is utter opprobrium of this article.
In General Comment No. 15[xvii] on the right of the child to the enjoyment of the highest attainable standard of health, the UN Committee on the Rights of the Child (CRC) noted, “States should ensure that health systems and services can meet the specific sexual and reproductive health needs of adolescents, including family planning and safe abortion services.”In its General Comment No. 20[xviii] on the implementation of the rights of the child during adolescence, the CRC emphasized, “All adolescents must have access to confidential adolescent-responsive and non-discriminatory reproductive and sexual health information and services, available both on and off-line, including safe abortion services.
The Committee on the Elimination of Discrimination Against Women (CEDAW) identified[xix] “the denial or delay of safe abortion” and “forced continuation of pregnancy” as “forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment.” Article 7[xx] of the International Covenant of Civil and Political Rights (ICCPR) which is both signed and ratified by the USA, prohibits torture or cruel, inhuman, or degrading treatment.
The author strongly recommend that the Illinois General Assembly should repeal the Parental Notice of Abortion Act, 1995 in order to ensure that the youth populace under the age of 18 can access abortion care without being forced to involve an adult family member who can hinder their decision.
Through this article, the author wants to urge the Illinois Department of Public Health to address the stigma around abortion and organize awareness-raising campaigns to make sure that young people under 18 can access proper sexual and reproductive health services without parental involvement.
The Way Forward:-
Forcing young people who choose not to involve a parent in their abortion decision to go through the judicial bypass process risks exposing them to a loss of confidentiality. Though not a frequent occurrence, young people pursuing judicial bypass have been found out or exposed. Illinois legislators should affirm the human rights and dignity of young people under 18 by repealing the parental notice of abortion act and ensuring young people under 18 can access safe and timely abortion care. Lawmakers have a responsibility to keep Illinois youth safe, and that requires removing unnecessary and dangerous hurdles that interfere with their access to abortion care.
[i] Planned Parenthood of Illinois, https://www.plannedparenthood.org/planned-parenthood-illinois/patient-resources/abortion-services/parental-notification-abortion-law, (last visited June 22, 2021). [ii] Mary F. Petruchius, The ACLU’s Illinois Judicial Bypass Coordination Project, isba.org, (June 22, 2021, 10:03 AM), https://www.isba.org/committees/women/newsletter/2015/04/aclusillinoisjudicialbypasscoordin. [iii] Jamie Munks, Illinois House passes Sweeping Abortion rights bill after emotional floor debate, Chicago tribune, (June 22, 2021, 10:03 AM), https://www.chicagotribune.com/politics/ct-met-illinois-abortion-bill-house-20190528-story.html. [iv] Jane ROE, et al ., Appellants, v Henry WADE, 410 U.S. 113. [v] Chicago Sun Times, https://chicago.suntimes.com/2021/2/7/22268858/abortion-minors-parental-notification-law-illinois-legislature-editorial, (last visited June 22, 2021). [vi] Illinois General Assembly, https://www.ilga.gov/legislation/ilcs/ilcs3.asp?ActID=2103&ChapterID=59, (last visited June 22, 2021). [vii] Id. at 6. [viii] Id. At 7. [ix] Bellotti v. Baird, 443 U.S. 622 (1979). [x] Id. At 9. [xi] Bixby centre for Global Reproductive health, https://bixbycenter.ucsf.edu/news/parental-notification-law-illinois-has-troubling-consequences-minors, (last visited June 22, 2021). [xii] Id. at 11. [xiii] Chicago Sun Times, Supra Note at 5. [xiv] Lauren J. Ralph, Reasons for and Logistical Burdens of Judicial Bypass for abortion in Illinois, Journal for Adolescent health,(June 22, 2021, 10:03 AM), https://www.jahonline.org/article/S1054-139X(20)30508-5/abstract. [xv] United Nations Human Rights office of High Commissioner, https://www.ohchr.org/en/professionalinterest/pages/crc.aspx, (last visited June 22, 2021). [xvi] Convention on the rights of the child § 24(1990). [xvii] Refworld, https://www.refworld.org/docid/51ef9e134.html, (last visited June 22, 2021). [xviii] Refworld, https://www.refworld.org/docid/589dad3d4.html, (last visited June 22, 2021). [xix] Jessica Pierson, Why the US needs CEDAW: Abortion as a human in United States, Global Justice Centre Blog, (June 22, 2021, 10:03 AM), https://globaljusticecenter.net/blog/1001-why-the-us-needs-cedaw-abortion-as-a-human-right-in-the-united-states. [xx] ICCPR § 7(1976).