On November 30th, the Supreme Court heard oral arguments in the case of Ayotte v. Planned Parenthood. This case concerns the constitutionality of a New Hampshire law that prohibits performing an abortion of a minor until 48 hours after the parents had been notified at the earliest. This law is being debated because no provision is made to consider the health effects on the minor. As long as the minor does not die, she may be required to suffer any number of non-life-threatening effects and doctors can do nothing.
My standard caveat applies. In this blog, I am not concerned about what the law says, but about what the law ought to be. Therefore, I am not at all concerned with whether the New Hampshire law violates the Constitution. I am concerned with whether morally decent people would support or reject such a law.
I believe that it is safe to assume that, for many of those who support this law, the welfare of the child is of secondary importance. Their goal is to make sure that the fetus gets born as a living child and, compared to that, all other interests (including the interests of people who already exist) have little significance. After all, in the eyes of most of those who support this law, the pregnant minor has already sinned by having sex. She is no longer 'innocent' -- implying, of course, that she must be ‘guilty’ and, as such, has given up her right that her interests be considered.
Their decision to provide NO provision for the health of the minor tells us the level of regard these lawmakers had for the minor's well-being.
In addition, these people have set up an entity that has no interests of its own (a fetus that has not yet developed a brain capable of housing those interests) as an idol. The purpose of the law is to compel all citizens to make the relevant sacrifices to this idol. Where it is determined that the well-being of a minor is to be sacrificed to this idol, then these people are determined to make it the law of the land that the sacrifice be made.
In an earlier blog entry, I presented my case that a fetus without a brain has no interests, and an entity that has no interests cannot be harmed in any morally relevant sense.
Yet, these facts do not prove that the law is an unjust (immoral) law. The fact that immoral people (with limited concern for the well-being of the child and willing to use the law to force people to make sacrifices to their religious idols) support a law does not imply that moral people cannot also find reason to support it.
One of the central principles that must enter into this discussion is whether a parent has a right to compel a minor to allow another person to use her body without her consent.
Note that, in this argument, I am challenging the claim that the fetus is a person at any age (though I think that a challenge would be justified). The argument works even if we allow the assumption that the fetus is a person. No person has the right to use another person’s body – particularly the body of a minor – without her consent.
On this issue, I would argue that society would be well served to have a strong, nearly inviolable prohibition agaisnst the use of a child's body without her consent. The message to minors should be clear and consistent. "Your body is yours and yours alone. Nobody -- not even the state or your parents -- may violate your right to the control and use of your own body by another person."
With this in mind, parents and the state still have the authority to prohibit uses of a minor's body in ways that the minor might otherwise allow. We are justified in assuming that the minor may make some poor choices in this regard, and we have a responsibility to prevent them from making those poor choices. As such, the child seeking to have anything done to his or her body -- from getting a tattoo to getting her ears pierced -- may be required to get parental consent. Cases that prohibit the use of a minor’s body by another person are relevantly different from cases that compel the use of the minor’s body by another person.
In addition, parents may require that a minor sacrifice personal autonomy where it is deemed necessary to protect the interests of that minor. A minor has no right to refuse a visit to the dentist or an immunization shot or surgery to remove a cancer. Even though these actions may invade the minor's body without his or her consent, they are done for the explicit purpose of providing the minor with a benefit that he or she may not fully appreciate. Requiring that a minor go through a pregnancy is not an example of requiring a minor to undergo a procedure for her own benefit.
Parental Consent vs. Parental Notification
The arguments that I have raised so far apply to the issue of parental consent. However, these arguments have nothing to say about parental notification. Even if we do not grant anybody the right to demand that the minor give the use of her body to somebody else without her consent, this does not imply that parents have no right to know what is going on with their children.
One argument that I have heard against parental notification is that some parents may become abusive towards the child once they discover that the child has gotten pregnant. However, we have no right to make that assumption. We should assume that a parent is a decent and loving guardian of the child's welfare unless we have evidence to the contrary. A decent and loving guardian of another individual has a right to relevant information about that individual's health and choices.
Minors have a certain right to privacy, but that right ends where the minor is engaging in dangerous or destructive behavior. If the minor has gotten herself pregnant, that is a good sign that the minor is taking risks with her health and well being. Concerned parents or guardians should be made aware of the fact so that they can deal with it.
Where there is evidence that the parents are abusive, we can make an exception. However, the default view should be to inform the parents.
There is one significant counter-weight to this. If a minor knows that her parents may be notified, this could cause her to put off seeking an abortion or any kind of professional help. This not only puts the minor’s own health at risk, but increases the possibility that the minor will not seek an abortion until the fetus has a developed brain and, with it, morally relevant interests.
I wrote in my earlier essays on the ethics of abortion that if a woman is not able to acquire an abortion before the fetus develops its own set of interests, she retains the right to refuse consent to the use of her body. The pregnant woman may be assumed only to have given consent if she had the option before the fetus matured and refused it.
The minor that is put under duress (as a result of knowing that her parents would be notified) who procrastinates seeking an abortion will still have a right to terminate the pregnancy, even if the fetus develops to the point that it acquires morally relevant interests.
If the parents in a state vote to forego their right to be notified, in the hopes that this will help their children pursue the healthier option of seeking assistance earlier rather than later, they may do so., they are free to make private arrangements for their child to have consultations with somebody instructed to keep their privacy. However, these are family matters and not matters for the state. Whereas a child's right to refuse to allow another person to use her body to serve its interests without her consent is a matter for the state.
As I stated near the start of this essay, this argument allows us to assume that the fetus is a “person” in a morally relevant sense. I believe that this assumption is false. An entity without desires does not have morally relevant interests. However, we need not dispute a premise that can be denied without affecting the argument. No person has the right to the use of a minor’s body without her consent. This, alone, says that whether the minor has an abortion is up to her, and not her parents.
Parental consent laws are immoral.
Parental notification laws, on the other hand, may be justified. They do not violate the principle that nobody may use the body of a minor without her consent. They respect the rights and the duties of a parent or guardian to care for the minors in their charge. They cannot do this effectively if important information can be kept from them.
This does not mean that the law should require parental notification. A society may decide that it is better if minors be allowed to make some choices without involving their parents. It might be safer if minors are given a way to talk about important issues that they cannot talk about with their parents. This is up to individual societies to decide.