Last year I read a piece written by a woman who worked in a court system in her state. It was an eye-opener for me, because it laid out in detail how apparently small single requirements could in fact be huge multiple barriers. She has since taken the post down, and when I inquired, someone who knows her told me that she took it down for “personal reasons”. I wanted to link to that post, but it’s not there anymore. I saved a copy for my own reference, but I won’t post it or even quote from it, because I do not want to cause the author problems. I do not want to risk a threat to her health, safety, or life. I don’t know what her personal reasons were, but I’m going to respect her decision to take it down.
So I’m going to do my best to express, in my own words, some thoughts on access to abortion services, including some of what I learned from that post. This is me speaking, with my voice, expressing my own opinions. So if you don’t like something in what I write here, argue with me. If you think I’m plagiarizing, two points:
1. I’m writing my own thoughts in my own words.
2. When the person I learned from tells me that she wants me to do so, I will happily link to her post, where you can read better writing than mine. It’s either this or be silenced in this discussion because someone else talked about something first.
Conversely, if you find what you read here interesting, educational or mind-blowing, don’t credit me. Credit her. You’ll just have to be abstract about it until she decides to respond, if she does.
Small-government conservatives are wont to tell us that one of the best reasons to keep governments small is that governments inevitably screw things up, and by limiting the size of government, we limit the size of the damage. Given that the default alternative to Big Government is not EqualityHappyLandForEveryone, I don’t necessarily agree. But I will agree with this general principle: If you give a government a task to do, a government will implement that task sub-optimally. In fact, a government will often execute its mandate in a way which bears little resemblance to the original intent of the legislation, especially if the legislation was a difficult compromise in a heated debate between bitter opponents.
Cue abortion legislation, entering Stage Right.
It’s easy to assert that, generally speaking, pregnant girls should consult with their parents before they make ethically difficult decisions with long-ranging effects. Someone has to raise them, and Western society broadly insists that, in the absence of overwhelming evidence to the contrary, the parents are the best people to do that. The problem, of course, is that pregnant girls individually do not get to benefit from being a statistical amalgamation. Each individual doesn’t get an average result. She gets a hand-crafted, individualized result.
So, I sympathize with people who assert that, broadly, pregnant girls should seek the advice of their parents. But that’s a different thing from legally mandating that all pregnant girls everywhere should always do so. Let’s look at some of the ways in which such a mandate can go wrong when it get implemented by Government, and by a Society which is deeply divided over what to do about unwanted pregnancies.
Meet Jane. Jane is 15. She started having periods when she was 13, and they have not yet become regular at all. She is pregnant, but she doesn’t know it yet. Seven weeks into her hidden pregnancy, she starts throwing up in the morning. She thinks nothing of it until it lasts for over a week. Then she puts the morning sickness together with not having had a period for the last nine weeks, together with her breasts feeling tender and fuller in a different way from normal tender, growing breasts. She realizes that she might be pregnant. Four days later, she gets past the denial and decides to buy a home pregnancy test. She waits two days for the weekend and takes a bus a couple of towns over so that she does not have to buy them in her town. She buys two. She finds a public restroom, locks the door, and takes them.
Now Jane knows she’s pregnant. She does not yet know that she is nine weeks pregnant.
Jane lives with one parent, and the other parent is across the country, in another state.
It is Saturday. Jane is smart and purposeful. She uses the weekend to think about it, and decides that she wants an abortion.
On Monday, Jane goes to school as usual. She skips her first class. She has a cell phone, but she does not want the call to show on her bill, which she knows her parent sometimes reads. Fortunately, she has a few dollars of cash and her school still has a couple of pay phones. One is at the end of a hall where she can keep her voice low. Jane stuffs quarters into the phone and calls a medical provider.
She asks how to get an abortion. Maybe it’s a hospital, maybe it’s a free clinic like Planned Parenthood, maybe it’s a doctor’s office; doesn’t matter. The medical provider tells her that they don’t provide abortions. They also inform her that she lives in a parental notification state. The state says she can choose to abort but only after she notifies her parents that she is doing so. She explains that she does not want to tell her parents. They tell her that she needs to go to court and get a judicial bypass.
Jane calls the local court. The clerk confirms that Jane cannot get an abortion without either parental notification or a judicial bypass. She asks how to get a judicial bypass. They don’t know, because they’ve never done one.
They do not tell this to Jane, but in fact most of their judges refuse to hear such cases. Some of them have personal pro-life convictions which prevent them from being able to rule impartially. Some simply don’t want to do them because it will hurt their chance of re-election; in places where judges are elected, it’s not surprising that judges might shy away from being tagged politically as abortion providers.
Turns out that just because the law requires something doesn’t mean that government has to provide that thing.
That requires that the legislature set up a structure and allocate funds, which is complicated in this case by the fact that they’re telling the Judicial branch how to run things, always a dicey proposition.
If you’re about to reply that such people shouldn’t be judges, yeah, no kidding. But let me welcome you to a little thing I like to call Reality, where judges and police officers and court clerks and lawyers all must come from the available pool of actual human beings, who are sometimes flawed, and who sometimes get scared, and who sometimes make compromises in order to get that political sausage made.
So Jane asks if there is any court anywhere which has actual judges who hear such cases. The court refers her to such a court. It’s on the other side of the state.
Jane cannot get across the state on her own; she has no car, no driver’s license, and does not have cross-state bus fare or enough free time where she can skip school and take a bus across the state without raising questions anyway. She decides that she must notify her parents. She lives with her … (I rolled actual dice for this, and considered same-sex parents while doing it) … father. He has divorced from her mother, and has custody. Her mother has visitation rights, though she has not exercised them in several years.
She tells her father. They discuss it. He disagrees that an abortion is the best course, and refuses to drive her anywhere to get one.
Parents have tremendous power to restrict children.
Parents can’t keep children from having sex, by they can certainly limit their options afterward. Jane now has notified her father, but still cannot get anywhere to get an abortion.
Over the next few days, Jane and her father have further discussion, and after long discussion, her father reluctantly agrees that an abortion is the best course. He can get time off from work two days from then, and they find a clinic which provides abortions and drive there.
At the clinic, a staffer listens to their account. They do a basic medical exam. The clinic does not do ultrasounds, and there’s no reason to do an ultrasound on a healthy teenager anyway, so the best data for estimating the date of the pregnancy would be … her last period. (Remember, it is pretty routine for a 15-year-old not to have a regular period. Also, it sometimes happens that a teenager has a period while pregnant. Such periods are typically short and spotty … which also isn’t unusual for any teen period.) They tell her that they can’t know for sure, but based on her period, she’s around five to ten weeks pregnant, and probably isn’t further along than ten.
The staffer explains that Jane will need proof of identity, and proof that Jane’s father is in fact Jane’s father. Jane’s father has his driver’s license. Jane has no state-issued ID; she is not yet driving. The staffer asks if they have her birth certificate. Although birth certificates are laughable as identification because they contain no biometric data to match an individual human to that birth certificate, government bureaucracy will nonetheless accept one as identification. Jane’s father is not sure where her birth certificate is. They have moved several times since she was born. It might be with Jane’s mother. He asks how they can get a duplicate. The staffer tells him that he must apply for that in the county of Jane’s birth, which happens to be in the state across the country where Jane’s mother lives.
Can you prove your relationship to the person standing next to you, to the standard required by civil servants who will be in VERY hot water if they get it wrong?
The law, as written, does not require proof of identity or say what that proof might be. But the law, as implemented, requires both proof of identity and sets a bar for it, all to protect the people who must implement the law.
The staffer also tells Jane and her father that the law requires that both parents be notified. Her father explains that he has custody. The staffer explains that custody status is not mentioned anywhere in the law, which requires that both parents be notified. Her father does not have her mother’s current address and phone number with him. He uses his credit card to make a bunch of cross-country calls, and eventually he manages to get Jane’s mother on the phone. He explains the situation to her. She hangs up.
What constitutes notification?
Saying that you notified someone? An affidavit from each parent? Each parent’s signature on a form? The law does not say. There are people out there looking for the smallest excuse to shut the clinic down. For the protection of their staff and the clinic’s ability to operate, the clinic’s procedure prudently requires something more than someone’s say-so.
The father calls the mother’s number again, on speakerphone, from the staffer’s office. An answering machine picks up. He leaves a message. Jane’s mother does not call back. Even if they can “prove” Jane’s identity and her relationship to her father by finding a copy of her birth certificate, they are out of luck on notifying the parentS.
In other words, Jane cannot legally notify her parents, even though her father is standing next to her and her mother just heard the situation direct from her father.
Jane needs a judicial bypass. Her father drives her across the state, to the court which does those. They get passed around to three different departments to find the one which does them. The law says nothing about which department will provide this service, and as a political hot potato, it ended up in a department which is not immediately obvious. That department does them, but it tries to keep quiet about it, because come budget time they could find that their budget is slashed after protesters picket their department, and that would mean that the department could not fulfill its actual, intended, primary purpose.
By midafternoon, Jane and her father are in the right department. A staffer there tells them that judicial bypasses happen on Monday, Wednesday, and Friday. It is Tuesday. They can drive back across the state and return on Wednesday, or find a hotel for the night. Jane’s father arranges for another day off from work, and they find a motel.
The fact that a service is theoretically available does not mean that it is actually available in practice.
Under the law, Jane has a right to seek a judicial bypass. The law says nothing about speed or ease of access.
On Wednesday, Jane and her father sign the forms and start the legal process rolling. That afternoon, the case is called and the judge hears them. [Coin flip] … She is puzzled about why they are wasting taxpayer money in the court system. Were both parents not notified, one in person and one by phone? She declines to rule, since there is no necessity for a judicial bypass.
The clinic which provides the abortion is not a part of the court system in any way. They do not coordinate. The court may regard the clinic’s precautions as paranoid, and refuse to aid their paranoia.
I, personally, have watched judges express puzzlement from the bench about why we took a precaution in a criminal case. They seem not to understand sometimes that if we hadn’t taken that precaution, we ran the risk of being ruled against by another judge, or by that same judge on another day in a different mood. Judges strive for consistency, but they’re human, and it’s an impossible target.
Jane and her father ask the clerk of court how to appeal the judge’s ruling. They are referred to the public defenders’ office. They call that office. The paralegal who answers the phone explains that there are no public defenders who take such cases. Yes, they defend rapists and murderers, and they receive the occasional death threat, but to date, none of them has been sniped from a distance or had their house firebombed, and they’ve seen the news coverage on abortion providers. They did have one who used to do it, an experienced attorney who worked pro bono on these cases, but he had to stop after his private practice fell off when he became known as the attorney who helped kill babies.
Also, the public defenders’ office is buried in casework, and if they hire a fresh-faced young attorney tomorrow who would be glad to take such a case, between case preparation, filing times, docket procedures, and other high-priority cases, it will be at least a month before their case can be heard. By that time, though she cannot know it for sure, Jane’s pregnancy is out of the first trimester and into the second. That will complicate the procedure if she manages to get access to an abortion, and also could complicate simply getting access.
The law permits and requires that Jane make use of a service, but it does not mandate the existence of that service, or access to it.
I could go on. There were other barriers mentioned in the post I am thinking of as I write this. But they were more specific, and I don’t want to get specific without the writer’s permission. Suffice it to say, that in that person’s actual experience with the court, there were further barriers to implementation of a system which could actually serve the person seeking the service.
You might protest that this is all very specific, very particular, and that while it might be true in one or two cases, certainly most cases differ in the details. Sure, that’s true. But I have read the accounts from enough people to know that there are many, many scenarios which lead down this road to disaster: familial rape, or one parent in jail, or both parents in jail, or paternity unknown, or mother kicked the kid out for being sinful, or, or, or… One attorney I read commented that familial abuse was not the exception in such cases, but the rule (which should come as no surprise in bypass cases, that families with serious problems are overrepresented among pregnant girls who don’t want to talk to their parents about being pregnant).
Parental notification laws restrict access to medical services. They do not ensure good parenting. They do not mandate a streamlined, responsive government. They restrict access to medical services.
If that’s your objective, to restrict access to medical services, then carry on. Advocate for parental notification laws. But don’t pretend that you just want parental involvement. Because you can’t legislate parental involvement. You can’t even effectively legislate parental knowledge.
All you can really do, ultimately, is legislate governmental involvement.
Good luck with that.
[edited for formatting]