A Review of State Laws.

To clarify the issues surrounding parental involvement for abortion, the AGI examined the state statutes that affect the right of an unmarried or otherwise unemancipated minor to obtain certain types of medical care. These are contraceptive services; prenatal care and delivery services; the diagnosis of and treatment for an STD, or venereal disease (VD), and human immunodeficiency virus (HIV) infection; treatment for drug and alcohol abuse; treatment for emotional problems; general medical and surgical care in nonemergency situations; and abortion services. The AGI also reviewed laws dealing with other areas in which a young person might have to make important or life-changing decisions--namely, dropping out of school, getting married, consenting to any medical care that a child might need and placing a child for adoption. The review involved analysis of two types of laws: statutes that might authorize a minor to make independent decisions in any of these areas, and statutes requiring parental involvement. Th e laws that were examined generally affect both boys and girls; the exceptions are those dealing with reproductive health services (in which states have traditionally been more restrictive than they have in other aspects of health care for minors) and those applying to a minor parent's decisions on behalf of a child. In these two areas, a teenage girl is probably more affected than a teenage boy.

Where the state has no law, there may have been relevant federal or state court decisions (or opinions of state attorneys general) that affect whether or not a minor can make confidential decisions without consulting or gaining permission from his or her parents. For example, under the Supreme Court rulings recognizing that minors have a fundamental constitutional right to privacy, (36) there is a presumption that a minor may make her own decision about abortion, unless the state has enacted a law that specifically requires parental consent or notification (and provides for a confidential alternative to parental involvement). Even when there are no relevant statutes or case law, physicians may commonly provide medical care to a mature minor without parental consent, particularly if state law authorizes a minor to consent to related services.

We summarize the major findings of the review of state laws in the next sections. More detailed information about the specific laws of each state and of the District of Columbia is presented in Appendix Table 1; the text of the appendix contains a description of the methodology used to collect this information.

Medical Decisions

The findings of the AGI review suggest that states understand that confidentiality is a critical factor if young people are to be encouraged to seek treatment for sensitive health problems. As Table 1 indicates, most states have laws authorizing a teenager to consent to medical treatment for STDs and substance abuse. About half have authorized a minor to consent to contraceptive services and prenatal care and delivery services. Moreover, no state mandates parental involvement for any of these services. In addition, more than one-third of the states have statutes that authorize a minor to consent to general medical and surgical care, at least under some circumstances.

Contraceptive Service

By law, a minor in 24 states and the District of Columbia may give informed consent to contraceptive services. These services might include the provision of birth control pills, the insertion of an IUD, the prescription of a diaphragm, and the insertion of Norplant, the new long-acting contraceptive method. (*) In three of these states, the law specifies that a doctor may provide contraceptive services if he or she believes that without them, a teenager is likely to suffer a serious health problem. This condition is unlikely to constitute a barrier to the provision of services to a sexually active minor, in view of the well-documented health benefits that are associated with the use of contraceptives. (37)

Prenatal Care and Delivery Services

A pregnant minor in 27 states and the District of Columbia may obtain prenatal care and delivery services without parental consent or notification. (+) The laws in these jurisdictions authorize regular medical visits during pregnancy and the routine services needed during normal labor and delivery. They also appear to permit a minor to consent to prenatal genetic screening (including amniocentesis and chorionic villus sampling, which involve a small risk to the fetus) and, except in Hawaii (where the law specifically excludes surgery), delivery by cesarean section and in utero procedures to treat a life-threatening condition of the fetus.

Treatment for STDs and HIV

The District of Columbia and every state except South Carolina (++) authorize a minor to consent to the diagnosis and treatment of STDs.[section] These diseases (syphilis, gonorrhea, chlamydia, and genital herpes, among others) afflict an estimated three million teenagers every year. (38) If untreated, STDs can lead to cancer, infertility pelvic inflammatory disease, ectopic pregnancy and death. (39) The states that have enacted these statutes generally impose no restrictions on a minor's authority to consent to hospitalization, to the use of antibiotics and other prescription medications or to any other medical care needed to treat infection; the exceptions are a prohibition against consent to surgery in Hawaii and a parental notification requirement if a minor needs emergency hospitalization in Vermont.

Because HIV, the virus that causes AIDS, can be transmitted through sexual contact, laws permitting a minor to consent to STD services would appear to cover diagnosis of and treatment for HIV infection as well. (**) To avoid any ambiguity in this area, 11 states have explicitly authorized a minor to consent to HIV-related services, but in seven of these states, the statute covers only testing for the virus. In the remaining four, the law also applies to medical care for HIV infection. In these states, a teenager who is HIV-positive presumably may consent to the continuous testing that is needed to monitor the status of the infection, as well as to drug therapies such as AZT that are believed to slow the onset of AIDS.

(*.) The law in one state-Oregon-permits a minor to consent to surgical sterilization if all other methods of contraception have proved unsuccessful or are not appropriate for some reason. Four other states-Florida, Maryland, North Carolina and Virginia--specifically exclude sterilization from the contraceptive services to which a minor may consent. However, it is extreme]y unlikely that any state statute authorizing a minor to consent to contraceptive services would be interpreted as including sterilization. Unlike other methods, tubal occlusion is usually irreversible, and it has been linked to the abuse of minors and of the mentally incompetent. For these reasons, federal regulations impose a number of restrictions on sterilizations carried out with federal funds, including a prohibition against sterilization performed on anyone under the age of 21, a 30-day waiting period and a detailed informed consent procedure. (See: Federal Register, 43:52146 [1978].)

(+.) New York law authorizes a minor to consent to "medical, dental, health and hospital services relating to prenatal care." (See: N.Y. Public Health Law, sect. 2504(3) [McKinney 1985].) We have assumed that the law allows a minor to consent to child-birth services.

(++.) However, South Carolina law permits a minor 16 or older to consent to general medical care, which would include treatment for an STD.

([section].) Some state statutes use the term "venereal disease" rather than "sexually transmitted disease." Idaho does not have a statute pertaining expressly to STD or VD services, but does have a law authorizing minors to consent to treatment for infectious, contagious or communicable diseases.

(**.) In addition to STD laws, 10 states (including Idaho) have statutes that authorize a minor to consent to diagnosis of and treatment for contagious, infectious or reportable diseases (not shown in Table 1). These laws also presumably allow a minor to consent to treatment for HIV infection.

Services for Substance Abuse

The District of Columbia and all but four states--Alaska, Arkansas, Utah and Wyoming--have laws that authorize a minor who abuses drugs or alcohol to consent to (or obtain) confidential medical care and counseling. In 36 states and the District of Columbia, an adolescent may obtain services in connection with both alcohol and drug abuse; in 10 other states, a teenager may consent to treatment for one of these addictions.

Mental Health Services 

Laws in 20 states and the District of Columbia authorize a minor to consent to outpatient mental health services; in 18 states and the District of Columbia, a minor may apply for hospitalization to receive treatment for mental health problems. About half of the statutes in the latter group specify that a minor must be at least 16 years old to be admitted for such treatment without parental knowledge or consent. If inpatient and outpatient services are grouped together (not shown in Table 1), 28 states and the District of Columbia authorize a minor to consent to treatment for mental health problems.

In six states, a minor may obtain inpatient services, but parents must be notified upon their child's admission. One state requires parental consent for admission.

General Nonemergency Medical Care

Statutes in 21 states authorize a minor to obtain general medical care in nonemergency situations. (As was pointed out earlier, states commonly permit a doctor to treat a minor in an emergency without obtaining parental consent.) In 10 of these states, the law applies to a minor who has reached a certain age (ranging from 14 to 16) or to a minor of any age who is sufficiently mature to understand the nature and consequences of the proposed treatment. In eight other states, a minor who is a parent may obtain general medical care. In the remaining three states, a minor may consent to general medical care if she is pregnant (Illinois), has ever been pregnant (Pennsylvania), or is either pregnant or a parent (Massachusetts).

These laws appear to authorize a minor to consent to virtually any type of medical and surgical treatment, except in South Carolina, where the law bars consent to operations. In the other states, the only statutory restrictions are a prohibition against consent to sterilization in Massachusetts and Nevada, and to brain surgery to relieve the symptoms of mental problems in Massachusetts. Nevertheless, it bears emphasizing that in states that both authorize a minor to consent to surgical care on her own and require parental involvement in the abortion decision, the laws clearly conflict.

Abortion Services

As Table 1 suggests, states make a sharp distinction between abortion and other medical services related to reproduction and other sensitive health concerns. Whereas substantial numbers of states authorize a minor to make her own decisions about these latter services, only three states and the District of Columbia have statutes that permit a minor to obtain an abortion without parental involvement. Moreover, 18 states have laws mandating the involvement of at least one parent in the abortion decision: In 10 of these, a minor must have the consent of one or both parents; in the other eight, one or both parents must be notified prior to the abortion.

Nine states have parental consent or notification laws with a judicial bypass whose enforcement is under injunction (see Appendix Table 1). Some of these statutes, which were enacted within the last few years, are still on appeal and could go into effect in the future; others may never be enforced. We mention them because they reflect the states' view at the time the laws were passed--namely, that where teenagers are concerned, the abortion decision should be treated differently from decisions regarding other medical services needed in connection with pregnancy and its prevention.

Decisions on a Minor's Own Behalf

Some people consider abortion less a medical choice than a major life decision that can have a significant long-term impact on a woman's psychological and emotional well-being. For purposes of comparison, the AGI also examined state laws that affect a minor's authority to make other types of decisions- decisions that in some cases might have a dramatic and long-lasting effect on the course of a young person's life, decisions such as whether to quit school and whether to marry.

Dropping Out of School

Most states allow a teenager to drop out of high school before graduation, despite strong statistical evidence that failure to earn a high school diploma can have long-range adverse consequences in terms of the ability to earn a living, find employment, maintain a stable marriage and have the number of children couples say they want, when they want them. (*) Although many teenagers probably do not fully understand the negative consequences that are associated with dropping out of school, 34 states and the District of Columbia allow a 16-year-old to leave school without any statutory requirement that the parents be involved in or approve of the decision. In eight other states, a teenager may drop out of school at age 17; in Washington, a minor may leave school at age 15 if he or she has a job.

Getting Married

The District of Columbia and 40 states require parental consent before a minor may marry, and most states establish an age--usually 16--below which a minor generally may not marry even with parental consent. However, although early marriages are often unstable, (+) 10 states have statutes that permit a minor to marry without parental consent, at least under certain circumstances, such as pregnancy or the birth of a child.

(*.) In 1988, for example, 20 percent of families in which the head of household had had on]y 1--3 years of high school had incomes below the federal poverty level--more than twice the proportion of families in which the household head had earned a high school diploma but had not gone on to college. (See: U.S. Bureau of the Census, Statistical Abstract of the United States, 1990, U.S. Government Printing Office, Washington, D.C., 1990, Table 749.) High school dropouts also are more likely to be unemployed than are individuals whose education ended with high school graduation. (Ibid., Table 654.) And they are more likely to experience marital disruption: Women who fail to finish high school are more likely than those who graduate to divorce or separate within five years of marriage. (See: T.C. Martin and L.L. Bumpass, "Recent Trends in Marital Disruption," Demography 26:37, 1989.) On the other hand, the more years of school a young woman has completed, the more likely she is to delay childbearing and, therefore, to avoid the adverse consequences of adolescent childbearing. Teenage mothers are disproportionately poor and dependent on public assistance. (See: National Research Council, Risking the Future: Adolescent Sexuality, Pregnancy and Childbearing, National Academy Press, Washington, D.C., 1987, pp.126, 129 and 132.)

(+.) The younger a woman is when she marries, the greater the chance that she will divorce or separate within five years of marriage. Women who marry as teenagers are twice as likely to separate as those who marry after the age of 22. (See: T.C. Martin and L.L. Bumpass, "Recent Trends in Marital Disruption," Demography, 26:37, 1989.)

Decisions on Behalf of a Minor's Child

To a remarkable degree, if state laws can be interpreted as anything to go by, most states consider a minor who is a parent to be fully competent to make major decisions affecting the health and future of his or her own child.

Medical Care for a Child

The District of Columbia and 28 states, for example, have laws that authorize a minor parent to consent to medical care for his or her child. Since none of these statutes sets any limit on the type of services that a minor may authorize, a young parent presumably may consent to anything for an infant or child from routine monthly pediatric visits to open heart surgery. In principle, no state requires the involvement of the teenager's parents in any of these decisions; in practice, however, it is likely that without consulting or informing some older responsible adult, some physicians might be reluctant, for example, to perform major surgery on an infant whose mother is herself a teenager.

Placing a Child For Adoption

Even more striking is the fact that in 46 states and the District of Columbia, a minor mother may place her child for adoption without her parents' permission or knowledge. (*) Specifically, 33 states and the District of Columbia have enacted laws that allow a teenage mother to make this decision without having to consult or obtain consent from her own parents. Only one of these states--Oklahoma--requires that a mother be a certain age (16) before she can decide by herself to relinquish her parental right to a child. In 13 other states, where the adoption laws make no distinction between minor and adult parents, it appears that the decision to place her child for adoption rests with the young mother.

Only four states--Michigan, Minnesota, Pennsylvania and Rhode Island--mandate that a teenager's parents either consent to the adoption of their grandchild or receive notice of a hearing on their daughter's decision to relinquish her child. (Whether the mother is a minor or an adult, all adoptions must be approved by a court, after the judge is satisfied that the mother's consent has been obtained without duress or fraud and that a home study of the adoptive parents has been properly carried out. (40)

In practice, it is likely that some adoption agencies require that a young woman's parents be involved in the adoption decision. In principle, however, virtually all states consider a teenage mother capable of making an independent decision about whether or not to place her child for adoption.

(*.) The states handle the role of the unmarried father in the adoption process in a variety of ways. Some require the consent of both teenage parents, unless one cannot be located or has not voluntarily supported the child; others require the father's consent only if paternity has been established; some provide that an unmarried father is not entitled to be notified of the adoption hearing; still others specify that the putative father can be notified of a hearing, but that such notification is not required.

References

(36.) Carey v. Population Services International, 1977, op. cit. (see reference 16); Planned Parenthood of Central Missouri v. Danforth, 1976, op. cit. (see reference 17); and Bellotti v. Baird, 1979, op. cit. (see reference 17).

(37.) S. Harlap, K. Kost and J. D. Forrest, Preventing Pregnancy, Protecting Health: A New Look at Birth Control Choices in the United States, AGI, New York, 1991.

(38.) Center for Prevention Services, 1990 Division of STD/HIV Prevention Annual Report, Centers for Disease Control (CDC), Atlanta, 1991, p.3.

(39.) F. A. Althaus, "An Ounce of Prevention... STDs and Women's Health," Family Planning Perspectives, 23:173, 1991.

(40.) National Committee for Adoption, Adoption Fact book, Washington, D.C., 1989; and M. B. Cedar, National Committee for Adoption, personal communication to P. Donovan, AGI, July 15, 1991.

Table 1

Number of states having laws affecting an unmarried, unemanipated
minor's right to make decisions about medical care, abortion and other
important issues

STATE LAW                           MEDICAL CARE

                    Contraceptive   Prenatal care and   STD/VD
                       services     delivery services  services

Minor may consent
or decide                25                28             50

Parent must
consent                   0                 0              0

Parent must
be notified               0                 0              0

No law found or
not applicable (6)       26                23              1

Total (7)                51                51             51

STATE LAW                               MEDICAL CARE

                     HIV testing   Treatment for durg  Out services (1)
                    and treatment  and alcohol abuse      Inpatient

Minor may consent
or decide                11                47                 19

Parent must
consent                   0                 0                  1

Parent must
be notified               0                 0                  6

No law found or
not applicable (6)       40                 4                 25

Total (7)                51                51                 51

STATE LAW                MEDICAL CARE       ABORTION SERVICES

                    General nonemergency
                     medcical care (2)

Minor may consent
or decide                    21                 4

Parent must
consent                       0                10 (5)

Parent must
be notified                   0                 8 (5)

No law found or
not applicable (6)           30                29

Total (7)                    51                51

STATE LAW              DECISION ON MINOR'S OWN BEHALF

                        Dropping out        Getting
                          of school         married

Minor may consent
or decide                    44                10

Parent must
consent                       0                41

Parent must
be notified                   0                 0

No law found or
not applicable (6)            7                 0

Total (7)                    51                51

STATE LAW              DECISION ON BEHALF OF MINOR'S CHILD

                        Medical care       Placing child
                         for child        for adoption (3)

Minor may consent
or decide                    29                47 (4)

Parent must
consent                       0                 3

Parent must
be notified                   0                 1

No law found or
not applicable (6)           22                 0

Total (7)                    51                51

(1)In Alabama, the District of Columbia, Maine, and Maryland, where the
law does not distinguish between outpatient and inpatient services, it
was assumed that minors may consent to both.

(2)States with no law relating specifically to unmarried and
unemancipated minors may have a law authorizing married and emancipated
minors or teenagers over the age of majority to consent to general
medical care that, by implication, requires unmarried and unemancipated
minors to have parental consent.

(3)In addition to the consent of the minor mother, some states require
the consent of the unwed father if he can be located or if paternity
has been established, but others do not require the father to be
informed of adoption proceedings.

(4)Includes the 13 states where the adoption laws make no distinction
between adult and minor parents, and where it was therefore assumed
that a minor parent may give legally binding consent to the adoption
of her child.

(5)Includes only parental consent and notification laws that are
currently being enforced.

(6)"Not applicable" refers to the seven states that have laws requiring
young people to be 18 (the age of majority) before they drop out of
school.

(7)Includes the District of Columbia.