High court gives states more freedom to require consent in teen abortions

November 16, 1993|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- The Supreme Court gave state legislatures new, broader discretion yesterday to put limits on teen-agers' right to abortion by giving both parents a role in the decision.

In a brief order, the court turned aside without comment a constitutional challenge to a 1986 Mississippi law that goes the farthest of any state to prevent minors' abortions by requiring the written consent of both parents.

The action marked the first time that new Justice Ruth Bader Ginsburg had voted on a significant abortion case.

No dissents

Although the court does not disclose all the votes when the justices deny review of a case, the order yesterday showed no dissents.

Both sides in the abortion controversy, in an unusual display of agreement, saw the court's action as a new sign that the justices are willing to let states go farther in regulating pregnant minors, under abortion law, than adult women.

"The reason the court did not take this case is because it involved minors," said Catherine Albisa, a staff attorney for the Center for Reproductive Law and Policy who handled the Mississippi case for two doctors and three abortion clinics. "They treat young women differently -- that's the only explanation I can come up with."

Clarke Forsythe, vice president and general counsel of Americans United for Life, said the court order "gives the state legislatures across the country greater breathing room when designing laws on parental consent or notice." The action, he said, means the court will not police such laws closely.

Evolving parental role

In a series of eight decisions over the past 17 years, the court has upheld a variety of laws that give parents some role when a pregnant daughter wants to have an abortion. But none of those had gone as far as the Mississippi law at issue in the new case.

The least restrictive law gives one parent a right to be told. From that, restrictions under state laws have next risen to a right of both parents to be told, then to a right of one parent to consent, and finally to a right of both parents to consent.

Now, the court appears to have acted to allow laws in each of those categories -- with one proviso. Repeatedly, the court has ,, stressed that minors must have the option to avoid contacting their parents or asking their permission by going to a state judge to get consent. Mississippi's law has such a "bypass" option.

'Bypass' option

Activists on opposite sides of the abortion controversy dispute the effect of the judicial alternative. Planned Parenthood Federation of America, echoing complaints of abortion rights groups in general about the "bypass" technique, has just filed a separate, new case in the Supreme Court claiming that judges operating under Ohio's bypass law for minors "engage in a pattern of denials."

By contrast, Burke Balch, state legislative director of the National Right to Life Committee, said that "the judicial bypass is essentially a rubber stamp" in practice. In fact, he said, his organization is beginning to focus its lobbying to get new state laws that require that parents be told but give the minor no bypass option.

Public opinion polls regularly show that significant majorities favor some role for parents. "You'll get approval as high as 80 percent," Mr. Balch noted. As a result of that popularity, legislatures have tended to pass new parental role laws without as much difficulty as in enacting laws restricting abortions for adult women.

In its first ruling on the issue in 1976, the Supreme Court decided that parents may not be given an absolute veto, but since then it has upheld laws on parental notice or consent -- provided a judicial alternative was attached.

Fits the pattern

Yesterday's action, while not a ruling directly upholding a two-parent consent law, fit into that pattern.

There was another significant aspect to the Mississippi case rejected by the court: The doctors and clinics had urged the court to rule that no new abortion law should be allowed to go into effect unless those challenging it first had a chance to show the burdens it could put on the right to abortion.

Judge as written

That plea had been rejected by a federal appeals court, which said that a law must be judged, in the first challenge, only on the way it is actually written, not how it would work in practice. Thus, under the lower court ruling, new laws generally would go into effect, with challenges postponed until after women, doctors and clinics had had actual experiences under the restrictions.

But the same plea had appeared to gain the support of four Supreme Court justices, at least in a preliminary way, in April. But the law at issue then involved restrictions on abortions for adult women, not minors, and some abortion rights activists speculated yesterday that that is what had drawn the four justices' sympathy then.

'Baby Bells' are cleared

In another significant order yesterday, the court gave what appears to be final legal clearance for the seven "Baby Bell" telephone companies to enter freely into vast new "electronic publishing" opportunities.

Those seven companies were created when the former "Bell System" -- American Telephone & Telegraph Co. -- was broken up in 1984 in a settlement of a major government antitrust lawsuit. Until the summer of 1991, the "Baby Bells" had been barred from engaging in any practice of originating or distributing news and other information over telephone lines.

A federal judge in July 1991 lifted that restriction, under orders from a federal appeals court. Then, in May, the appeals court gave final legal approval for "electronic publishing" by the regional telephone companies. The Supreme Court left that decision intact yesterday.

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