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Should We Obstruct Or Facilitate a Minor's Abortion?

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Should We Obstruct Or Facilitate a Minor's Abortion? SHOULD WE OBSTRUCT OR FACILITATE A MINOR’S ABORTION? AN INTERNATIONAL COMPARISON OF JUDICIAL BYPASS AND CONSENT LAWS REGARDING ACCESSIBILITY TO ABORTION FOR MINORS IN THE UNITED STATES, CANADA, AND MEXICO Mario Rios* TABLE OF CONTENTS I. INTRODUCTION ........................................................................................... 346 II. PATIENT SCENARIO ................................................................................... 347 III. LEGAL BACKGROUND OF ABORTION IN THE UNITED STATES ..... 348 A. The Right to an Abortion ........................................................................... 348 1. Abortion Rights for Minor Girls ............................................................. 351 B. Competing Interests ................................................................................... 352 C. Judicial Bypass Differences Among States ............................................... 355 1. California ................................................................................................ 356 2. Texas ...................................................................................................... 357 IV. LEGAL BACKGROUND OF ABORTION IN CANADA ........................... 358 A. The Right to Abortion ............................................................................... 358 1. Abortion Rights for Minor Girls ............................................................. 360 B. Competing Interests ................................................................................... 361 C. Abortion Access Among Provinces ........................................................... 363 1. Quebec .................................................................................................... 364 2. New Brunswick ...................................................................................... 365 V. LEGAL BACKGROUND OF ABORTION IN MEXICO ............................. 366 A. The Right to Abortion ............................................................................... 366 1. Abortion Rights for Minor Girls ............................................................. 369 B. Competing Interests ................................................................................... 370 * J.D. Candidate, University of Arizona, May 2021. I would like to thank Professor Barbara Atwood at the University of Arizona for her helpful feedback at every step of the writing and research process. I would also like to thank my kids Aaron, Jocelyn, and Justin Rios, and my spouse Diana Rios. This is another reason why I was never home, but our hard work and sacrifices will pay off. 346 Arizona Journal of International & Comparative Law Vol. 37, No. 3 2020 C. Abortion Access Differences Among States and the Federal District ....... 372 1. Mexico City ............................................................................................ 372 2. Queretaro ................................................................................................ 374 VI. APLYING THE PATIENT SCENARIO TO EACH STATE ........................ 375 VII. INTERNATIONAL COMPARISON AMONG THE COUNTRIES ........... 377 A. Minor’s Access to Abortion in the United States Versus Canada ............. 377 B. Minor’s Access to Abortion in the United States Versus Mexico ............. 378 VIII. CONCLUSION .......................................................................................... 379 I. INTRODUCTION Throughout the United States’ history, abortions have been completed, allowed, criminalized, and legalized.1 That order depends greatly on the time period and state; in 1850 many states formally criminalized abortion, making it illegal for women to obtain an abortion.2 Today, the right to abortion is available to all adult women and in some instances to girls under the age of 18.3 In 1973, the US Supreme Court ruled that a woman’s right to an abortion was constitutionally protected under the right to privacy, “founded in the Fourteenth Amendment's concept of personal liberty” and in the “Ninth Amendment's reservation of rights to the people.”4 Abortion is legal in the US, but abortion regulations vary by state, including stages during the pregnancy when an abortion is legal, certification of medical facilities and personnel, and more.5 What happens, though, when that woman seeking an abortion is perhaps by definition not a woman, but a fifteen-year-old girl? What if she is younger? Does she have a right to an abortion? Does she need parental consent? If so, does 1. See Roe v. Wade, 410 U.S. 113, 158 (1973) (“All this, together with our observation, supra, that throughout the major portion of the 19th century prevailing legal abortion practices were far freer than they are today . .”); History of Abortion, NATIONAL ABORTION FEDERATION, https://prochoice.org/education-and-advocacy/aboutabortion/ history-of-abortion/ (last visited Oct. 11, 2019) [hereinafter History of Abortion]. 2. Roe, 410 U.S. at 129 (“It perhaps is not generally appreciated that the restrictive criminal abortion laws in effect in a majority of States today are of relatively recent vintage. Those laws, generally proscribing abortion or its attempt at any time during pregnancy except when necessary to preserve the pregnant woman’s life, are not of ancient or even of common- law origin. Instead, they derive from statutory changes effected, for the most part, in the latter half of the 19th century.”); see also History of Abortion, supra note 1. 3. See Roe, 410 U.S. at 165; Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976). 4. Roe, 410 U.S. at 153-54. 5. See generally Planned Parenthood v. Casey, 505 U.S. 833 (1992). Should We Obstruct or Facilitate A Minor’s Abortion? 347 she need consent from one or both parents? What happens when she wants an abortion, but cannot bear to tell her parents? Is her option an illegal, unsafe, or self- induced abortion? Or should she have unimpeded access to a safe and legal abortion? These are complicated questions, but they are not just theoretical; these are real-life questions many young girls face. In the US, Canada, and Mexico, there are laws or case law that govern abortion, but few of those specifically mention minor girls; minors may or may not have an opportunity for a legal abortion depending on judicial bypass or consent laws.6 “A judicial bypass abortion is an order from a judge that allows a minor to get an abortion without [parental] notification or consent.”7 Minors’ consent laws can require parental notification or consent prior to an abortion.8 This Note will explore and compare judicial bypass and consent laws in the US, Canada, and Mexico that enable or hinder minor girls when seeking an abortion. Part II of this Note will cover a patient scenario that will later be applied under each country’s/state’s laws. A reader should keep this scenario in mind when reading through Parts III-V. Part III will discuss and analyze US abortion law specifically focusing on judicial bypass statutes from California, the least restrictive state in the country, and Texas, the most restrictive. Part IV will discuss and analyze abortion laws in Canada, specifically minor consent laws, as Canada does not have judicial bypass statutes, from Quebec, the least restrictive, and New Brunswick, the most restrictive. Part V will discuss and analyze abortion laws in Mexico, specifically Mexico City, the least restrictive district, and Queretaro, the most restrictive state. Part VI will apply the patient scenario to each of the six states. Part VII will then provide an overview and compare abortion laws in the US with Canada and Mexico. Part VII will conclude with a ranking of the countries based on accessibility. II. PATIENT SCENARIO9 Bee just turned 16 and is eight weeks pregnant. She is scared. She does not want to tell her parents about her pregnancy. Bee attends high school and works 6. See Roe, 410 U.S. 113 (1973); Danforth, 428 U.S. 52 (1976); R. v. Morgentaler, [1988] 1 S.C.R. 462 (Can.); Codigo Penal Federal (CPF), cap. VI, art. 330 Diario Oficial de la Federación [DOF] 14-05-1931, ultimas reformas DOF 24-01-2020 (Mex.). 7. What is a Judicial Bypass for Abortion?, JANES DUE PROCESS, https://janesdueprocess.org/judicial-bypass-abortion/ (last visited Nov. 10, 2019); see also Bellotti v. Baird, 443 U.S. 622, 649 (1979). 8. Planned Parenthood Ass’n v. Ashcroft, 462 U.S. 476, 491 (1983); see also J.S.C. v. Wren, [1986] 35 D.L.R. 4th 419 (Can. Alta. Q.B.). 9. This patient scenario is based on a case that occurred in Arizona in 2003. In re Matter of B.S., 205 Ariz. 611 (2003). 348 Arizona Journal of International & Comparative Law Vol. 37, No. 3 2020 part-time in a retail store. Bee wants an abortion because she knows she cannot afford to raise a child. She does not want the child to have a difficult life. To her knowledge, the only way she can obtain an abortion is with parental consent, but she is unwilling to tell her parents her secret because she knows it will destroy their relationship, and they may even kick her out of the home. She searches online and comes across her local Planned Parenthood or abortion clinic, assuming there is one. There, she receives pregnancy, adoption, and parenting counseling. She still feels an abortion is in her best interest. Is Bee mature enough to make this decision? Considering her age, should she be required to provide notice to her parents? Should she be required to obtain parental consent? Is an abortion really in her best interest, and who decides that: Bee, her parents,
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