When Yamani Hernandez, executive director of the Illinois Caucus for Adolescent Health, is asked what motivated her to get into her line of work, she always tells the same story. Several years ago she worked for a summer art program for youth, and she overheard a pregnant 14-year-old offering $10 to anyone willing to kick her in the stomach. The teen already had one child and couldn’t afford an abortion. “She lives at home, and she’s saying she doesn’t have access to birth control,” Hernandez says. “Her parents don’t believe in birth control. They also don’t believe in abortion. And they told her that if she gets pregnant again, they’ll kick her and her baby out of the house.”
Hernandez gave the young woman the phone number for the Chicago Abortion Fund, but doesn’t know what happened to her after that. Today, that teenager would face an additional roadblock to getting an abortion even if she were able to come up with the money: last August the Parental Notice of Abortion Act, which requires women in Illinois under the age of 18 to notify a parent or guardian before having an abortion, was put into effect for the first time in Illinois. It’s the 39th state to require parental notification or consent for minors seeking an abortion.
Laws governing parental involvement for minors seeking abortions have been on the books in Illinois (but not enforced) for 40 years—and have been disputed for just as long. The first of these laws, passed in 1975, required the consent of both parents for a minor to have an abortion; the ACLU of Illinois challenged it on constitutional grounds, preventing it from going into effect. In 1983, Illinois passed a law requiring, instead of parental consent, the notification of both parents. That case went all the way to the U.S. Supreme Court (again with the ACLU litigating against it), which resulted in an injunction that barred it from being implemented. Over the years the state legislature tried to pass new laws mandating parental involvement. Finally, in 1995, the governor signed a law with a one-parent notice requirement, which is the one that went into effect last year, after the Illinois Supreme Court upheld it.
The Illinois Parental Notice of Abortion Law says that a doctor must notify an “adult family member” (parent, grandparent, stepparent who lives in the same household, or legal guardian) of the minor at least 48 hours before performing the abortion. The Guttmacher Institute, a nonprofit that works to advance abortion rights, estimates that nationally, 60 to 70 percent of minors tell their parents when they’re pregnant—even in states without parental notification laws.
“Bypass hearings serve less to evaluate the quality of a young woman’s decision than to punish her for making it.”—Columbia Law School professor Carol Sanger
There’s no consensus on whether parental notification laws reduce the incidence of teen abortions. A study published in 2006 in the New England Journal of Medicine tracked abortion rates in Texas before 2000, when the state’s parental notification law went into effect, and after. The research showed that after the law went into effect abortion rates dropped 11 to 20 percent more among 15- to 17-year-olds than among 18-year olds, but the rate of second-trimester abortions increased by a third among minors who were 17 and a half or slightly older at the time of conception—possibly because they waited until they turned 18 to avoid parental notification. An analysis by the New York Times of data gathered from six states (Arizona, Idaho, South Dakota, Tennessee, Texas, and Virginia) that enacted parental notification laws between 1995 and 2004—released the same week as the NEJM study—”found no evidence that the laws had a significant impact on the number of minors who got pregnant, or, once pregnant, the number who had abortions.”
For minors who are unwilling or unable to inform a parent, there is a loophole: a process called judicial bypass, in which the court issues an order saying that the minor does not have to notify a family member. (There are also exceptions in case of a medical emergency; if the minor is married, divorced, widowed, or emancipated; or if she provides a written statement that she’s a victim of sexual abuse, neglect, or physical abuse.) It’s intended to allow the teen to demonstrate either that she is mature and well-informed enough to make a decision independently or that notification of a family member would not be in her best interest.
Navigating the judicial system isn’t necessarily easy for minors. In a 2009 article in the Columbia Journal of Gender and Law, Columbia Law School professor Carol Sanger cites examples of judges who appointed counsel for the fetus, and others who asked petitioning minors whether they understood that abortion is murder, whether they would kill their own three-year-old child, and whether they would decide not to have an abortion if they were given $2,000.
Sanger concluded: “Bypass hearings serve less to evaluate the quality of a young woman’s decision than to punish her for making it.”
After the parental notification law passed in Illinois, the Thomas More Society, a pro-life law firm, sent the chief judges of all the Illinois circuit courts a copy of an article by pro-life lawyer Teresa Collett that was published in the Baylor Law Review in 2000. “Courts should be reluctant to allow girls to avoid parental involvement,” the article states, followed by a long list of suggested questions for the judges to ask—which the Thomas More Society suggested that Illinois judges use as guidelines.
Questions range from the condescending (“Do you understand the difference between a truth and a falsehood?”) to the old-fashioned (“Have you informed the father of your pregnancy? Did he offer to marry you?”) to the terrifying (asking whether the woman has been told of the risks to her of hemorrhaging, infection, uterine perforation, bowel injury, or death—despite the fact that childbirth is 14 times more likely than an abortion to result in the mother’s death, according to a 2012 study published in Obstetrics and Gynecology).
It’s impossible to say how many judges in Illinois have followed the advice of the Thomas More Society. But Lorie Chaiten, director of the Reproductive Rights Project for the ACLU of Illinois and head of the Illinois Bypass Coordination Project—which provides pregnant teens with a hotline to call for information and connects them with a free lawyer if they decide to go to court—has represented a number of young women in court since the parental notification law went into effect here. She says that court is “kind of a scary place to be.” The minor’s lawyer asks her questions in front of the judge, and then the judge asks his own questions. “With some judges it’s just some follow-up, but there are judges that ask every question they can think of, and the most intrusive,” Chaiten says. “This young woman has to sit there and reveal the most intimate details of her life.”
In Illinois, all of the women the ACLU has helped represent so far have been granted judicial bypass (none of the judges who’ve ruled on bypass cases in Cook County could be reached for comment, and a request to the Cook County Circuit Court for the total number of bypass cases in the county was not answered). There are no statistics, though, on the number of minors who never made it to the judicial bypass process because of misinformation or a lack of information.
Tony Rothert, legal director for the ACLU of Missouri, says he hears at least once a week from young women under the age of 18 who can’t get parental consent (the law there says that one parent must consent before a minor can have an abortion). Usually, he says, it’s not that they don’t want to tell their parents, but that the parents are unable to give written consent because they’re in jail, dead, or the woman doesn’t know her parents. Missouri’s judicial bypass system, which has been in effect since 1979, works pretty well, according to Rothert. “The barrier,” he says, “is getting to court.”
In 2007 the ACLU of Missouri had interns call county clerk’s offices in the state to assess how helpful they were in giving information about the judicial bypass process for minors. “The plan was to identify the counties that were really a problem,” Rothert says. “What we didn’t anticipate was that it wasn’t just some counties that were failing, it was the entire system.” Not only were the people who answered the phones at the courts generally unfamiliar with judicial bypass, many denied it existed altogether (one even “spoke to the judge and he’s never heard of that”). Several respondents told callers that abortion wasn’t legal in Missouri. One court official’s response: “Never heard of that. Never heard of that in my life. . . . I don’t think anybody around here would do that. . . . Don’t just make a split-second decision about that. Have you thought about adoption? . . . Just don’t do what you’re thinking about doing.”
Historically, abortion laws in Illinois have been the most liberal in the midwest, making the state what Peter Breen, vice president and senior counsel for the Thomas More Society, refers to as “a dumping ground for abortions.”
According to statistics from the Illinois Department of Health, in the last five years an average of 8.4 percent of abortions performed in Illinois have been on women from out of state. A report released in February by the Guttmacher Institute found that in 2011 (the latest year for which data was available) Illinois did in fact have the highest abortion rate in the midwest, though not by much: 1.7 percent of women in Illinois had abortions that year, followed by 1.5 percent of women in Michigan, and 1.3 percent in Ohio and Kansas. In 2010 the numbers were similar. Illinois, while slightly higher than surrounding states, almost exactly matched the U.S. average.
In the U.S., more restrictions on abortion were enacted from 2011 to 2013 (a total of 205) than in the entire previous decade (189), according to a January report by the Guttmacher Institute. The same report found that in 2000, 31 percent of women of reproductive age lived in one of the 13 states considered hostile to abortion—meaning that the state had at least four types of major abortion restrictions. By 2013 the number of hostile states had increased to 27 and included all the midwestern states except for Illinois, Iowa, and Minnesota. Also by 2013, 56 percent of women in the U.S. were living in a hostile state.
While Illinois is still relatively nonrestrictive when it comes to abortion laws, there are a number of abortion-related laws on the books that currently aren’t being enforced. If those laws went into effect, there would be waiting periods, spousal notification requirements, and bans on sex selection, among other restrictions. “We have provisions in the Illinois abortion law that say essentially that life begins at fertilization, and that’s [currently blocked],” Chaiten says. “We have a provision that actually would make it unlawful for pregnant women to have CVS and amnio [prenatal diagnostic procedures to detect fetal abnormalities] because it’s a provision that defines fetal experimentation in a way that actually prohibits certain kinds of genetic testing.”
Nationwide the abortion rate is dropping fairly quickly, but researchers don’t believe it’s a result of antiabortion laws. Liz Carroll, vice president of patient services for Planned Parenthood of Indiana and Kentucky—both states that require parental consent for minors—says that a major impact of parental involvement laws is that teens delay seeking services or resort to unsafe methods for abortion. “It may push them to looking on the Internet to see if there’s any kind of home remedy that they can try or pharmaceuticals they can purchase from other countries,” she says. “Every once in a while I will get a call from a teen wanting to know, ‘I found this on the Internet; will it work?’ And the answer is no. That won’t work.”
According to Breen, however, parental notification protects the parent as well as the minor. “This is such a basic, basic thing,” he says. “The prospect of a 14-year-old going in for an abortion without the involvement of a parent is something that should frighten every Illinoisan. Laws like this give comfort to Illinois parents.”
The hypothetical 14-year-old came up often during our interview—but statistics suggest that few of them exist. Nationally, the Guttmacher Institute reports, 6 percent of abortion patients in 2011 were between the ages of 15 and 17 (Illinois’s 6.8 percent is slightly higher than the national average); 0 percent were under 15 (which doesn’t mean that zero patients were under 15, but that the percentage is vanishingly small).
Hernandez, of the Illinois Caucus for Adolescent Health, says she realizes that the idea of allowing minors to not inform their parents of an abortion is a polarizing one. “I have a 13-year-old myself, so it’s not something that is abstract for me,” she says. “I definitely would want to know. And I have worked really hard to create a relationship where I probably would know. I think most people can agree that 14 years old is really young to be navigating any of these issues, but we also know that 14-year-olds are being abused by their fathers, uncles, brothers, cousins. For certain communities, young people of color and any gender-nonconforming young people, we already have a difficult relationship with the court system. We have to protect everybody, not just the people who have ideal relationships with their parents.”
Correction: This story has been amended to correctly reflect that under the Illinois Parental Notice of Abortion Law, a doctor must notify an adult family member of a minor at least 48 hours before she has an abortion (not 24, as the article originally stated).