Case Western Reserve Law Review Volume 23 Issue 4 Article 6 1972 Abortion and the Rights of Minors Harriet F. Pilpel Ruth J. Zuckerman Follow this and additional works at: https://scholarlycommons.law.case.edu/caselrev Part of the Law Commons Recommended Citation Harriet F. Pilpel and Ruth J. Zuckerman, Abortion and the Rights of Minors, 23 Case W. Rsrv. L. Rev. 779 (1972) Available at: https://scholarlycommons.law.case.edu/caselrev/vol23/iss4/6 This Symposium is brought to you for free and open access by the Student Journals at Case Western Reserve University School of Law Scholarly Commons. It has been accepted for inclusion in Case Western Reserve Law Review by an authorized administrator of Case Western Reserve University School of Law Scholarly Commons. 19721 Abortion and the Rights of Minors Harriet F. Pilpel and Ruth I. Zuckerman I. INTRODUCTION URING THE PAST SEVERAL YEARS, lawyers, legislators, and social agencies have shown a remarkable upsurge of in- terest in the legal rights of minors - both in a general context and particularly in connection with the receiving of medical ser- vices without parental consent. At common law minors were THE AuTHoRS: HAmuUET P. PILPEL (B.A., Vassar College; M.A., Columbia said to lack the capacity to con- University; LL.B., Columbia Law School) sent to medical treatment.1 is a member of the New York Bar and Thus, unless one of the excep- is a senior partner in the New York City Law firm of Greenbaum, Wolff & Ernst. tions to the common law was She is a vice-chairman of the National applicable, physicians who un- Board of the ACLU and is a member of the National Board of Planned Parent- dertook the examination or hood-World Population. treatment of minors without RUTH J. ZUCKERM" (B.A., Mount first obtaining parental consent Holyoke College; LL.B., Columbia Law School) is a member of the New York were subject to civil liability on Bar and is presently a practicing attor- the theory that any touching by ney in New York City. In the summer of 1972 she will join the faculty of Rut- the physician of the minor was gers Law School (Newark) as an Assis- done without "legal" consent rant Professor. and thus technically constituted a battery. - Although the rule was intended at least in part to protect minors, the practical result often was that the medical needs of minors were unmet. This was especially true in cases involving medical care or treatment con- nected with sexual activity, drug addiction, and alcoholism - med- ical problems which minors are often reluctant to reveal to a parent or guardian. The question of permitting minors to obtain one particular type of medical treatment - abortion services - without parental con- sent has been brought into sharp focus by recent dramatic changes in the abortion laws of several states3 and by a number of federal 1 See, e.g., Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941). 21d.; Zoski v. Gaines, 271 Mich. 1, 260 N.W. 99 (1935); Perry v. Hodgson, 168 Ga. 678, 148 S.E. 659 (1929). 3 See notes 14-22 infra & accompanying text. CASE WESTERN RESERVE LAW REVIEW [Vol. 23:779 and state court decisions recognizing a constitutional basis for the right of women to terminate unwanted pregnancies.' With respect to abortion, the problems caused by a requirement of parental con- sent are exacerbated by: (1) the relatively short period of time within which abortions can be safely performed; (2) the serious danger to the minor's health if she - unable to obtain a safe, legal abortion from a competent medical practitioner - resorts to the services of an unlicensed, incompetent abortionist or to the hazard- ous techniques of self-abortion; (3) the deleterious effect on the minor, the unwanted child, and society at large if she is forced to bear an unwanted child; and (4) the conflict between parent and child in values and beliefs which may be present where the medical treatment in question is abortion. Superimposed upon these related problems, and pervading every aspect of their resolution, are the philosophical-legal questions regarding the rights of the parent and the child vis-a-vis one another, and the state's role both as the arbiter of conficts in those rights and as parens patriae or the guardian of the child's best interests. The critical concern of this article is the right of a minor to obtain, without parental consent, an abortion in those states in which abortions are available to adult women as a result of liberal- ized legislation, therapeutic abortion provisions, or judicial man- date. Although the discussion is necessarily confined for the mo- ment to those states, a Supreme Court decision as to a constitutional right to abortion is pending. At such time as that issue is decided in the affirmative by the United States Supreme Court, the question of the minor's rights will be of even greater significance. The first portion of this article will explore general statutory and common law rules on parental consent to medical treatment in general and to abortion services in particular. It will then focus on the constitutional framework of the problem. Finally, it will propose a legislative reform which would permit a minor to obtain abortion services without parental consent in appropriate circum- stances. II. THE STATE LAW FRAMEWORK A. Parental Consent and Medical Treatment of Minors at Common Law As a general proposition no state has by statute specifically pro- hibited the medical treatment of minors without parental consent. 4 See notes 50-58 infra & accompanying text. 19721 ABORTION AND THE RIGHTS OF MINORS However, under the common law rule mentioned above, a physi- cian who treated a minor without parental consent could be liable for damages, unless the facts brought the situation under an ex- ception to the rule.5 Liability did not rest on any actual harm to the minor - if such harm occurred it could be redressed in an ac- tion for malpractice or negligence. Rather, liability was grounded on the legal fiction that, because a minor was incapable of consent- ing to the treatment, the touching which occurred in the course of treatment was non-consensual and therefore constituted a tech- nical battery. There are, however, a number of exceptions to the common law rule requiring parental consent to a minor's medical treatment. The first of these exceptions, emancipation, focuses upon objective factors in the circumstances of the minor's life. The second, emerg- ency, focuses upon the conditions requiring immediate treatment and the nature of that treatment. A third more recently recognized exception, the mature minor doctrine, involves consideration of both the nature of the treatment and subjective factors, such as the minor's capacity for understanding the nature and consequences of the treatment. A minor who is legally emancipated may give effective consent to medical treatment provided the minor understands the nature of the treatment in question and has requested it.6 The question of what constitutes emancipation at common law is answered differ- ently from state to state. For example, one circumstance which has commonly resulted in a finding of emancipation is a minor's mar- riage.7 In addition, a minor will generally be deemed emancipated if he or she is living apart from his or her parents, is self-support- ing, and is generally in control of his or her own life.8 Other bases 5 For a statement of the general rule on liability of physicians who treat minors without parental consent see Bonner v. Moran, 126 F.2d 121 (D.C. Cir. 1941) and Younts v. St. Francis Hospital & School of Nursing, Inc., 205 Kan. 292, 469 P.2d 330 (1970). 6 See, e.g., Smith v. Selby, 72 Wash. 2d 16, 21, 431 P.2d 719, 723 (1967). 7 E.g., Bach v. Long Island Jewish Hosp., 49 Misc. 2d 207, 267 N.Y.S.2d 289 (Sup. Cr. 1966). See also In re Palumbo, 172 Misc. 55, 14 N.Y.S.2d 329 (Dom. Rel. Ct. 1939). 8 See, e.g., Cohen v. Delaware Lackawanna & W. R.R., 150 Misc. 450, 269 N.Y.S. 667 (Sup. Ct. 1934). It is unclear whether financial dependence on parents would by itself totally undercut a claim of emancipation. See Tremper v. Tremper, 35 Misc. 2d 846, 848, 231 N.Y.S.2d 430, 433 (Sup. Ct. 1962). Case law also indicates that a minor, while in military service, is considered emancipated. Swenson v. Swenson, 241 Mo. App. 21, 25, 227 S.W.2d 103, 105 (1950). There is also case authority which indicates that a minor who is still living in the parental home may be considered eman- cipated if he or she pays living expenses to the parents and has full discretion with CASE WESTERN RESERVE LAW REVIEW [Vol. 23: 779 for a finding of emancipation are judicial decree and parental con- sent, express or implied.9 Finally, emancipation by operation of law can occur where the parent's conduct is inconsistent with his parental obligations.1" The rule with respect to emergency treatment1 constitutes an- other common law exception to the requirement of parental con- sent. Courts have defined an emergency, within the meaning of this rule, as existing when impending danger to life and limb would occur if treatment were not to begin immediately. 2 In addition to the emergency and emancipation exceptions, there is developing in the case law of a number of jurisdictions a "mature minor" exception to the common law rule. The judge-made ex- ception, in any particular case, will be based on the maturity and intelligence of the minor as well as his or her age and the nature of the treatment - i.e., is it a simple procedure and is it for the minor's benefit? The cases so far indicate that when the minor has sufficient mental capacity and maturity to understand the nature respect to the rest of his or her earnings.