With the exception of Helena Silverstein’s “Girls on the Stand: How Courts Fail Pregnant Minors”, J. Shoshanna Ehrlich’s book “Who Decides?: The Abortion Rights of Teens" is the only other about minors, abortion, and judicial bypass of which I am aware. The first volume in the Praeger Series On Reproductive Rights and Policy, Ehrlich lays out the evolution of abortion rights, minors’ Constitutional rights, and the alternate joining and cleaving of the two over time, sharing observations and insights gleaned from her in-depth interviews with 26 young women who had chosen to seek the option of judicial bypass rather than parental disclosure in order to obtain abortions in their home state of Massachusetts. For anybody curious about the current rights held by minors to access abortion, or those wondering why teens might choose to bypass their parents for permission, this book is absolutely indispensable.
I was initially somewhat disappointed that “Who Decides?” wasn’t an all-encompassing book about parental notification and consent laws across the U.S.; as someone who answers plenty of online questions minors have about obtaining abortion, I was quite eager for a comprehensive pan-national investigation into such laws. Upon further examination, that was probably unfair; after all, the laws are most definitely still in-flux: according to the Guttmacher Institute, 5 states have laws whose enforcement has been permanently or temporarily enjoined by a court order, and states have been trying to pass new laws even very recently. To expect a book to delve adequately into the laws of 50 states and remain current in spite of changes taking place as we speak would be a challenge, indeed.
What the book lacks in minute detail about each state’s laws, though, it more than makes up for by delving into the court decisions that govern the constitutionality of minors’ consent laws. Anybody whose knowledge of abortion-related court cases extends only so far as Roe v. Wade (or the holy trinity of which I was previously aware, Griswold v. Connecticut, Roe v. Wade, and Planned Parenthood of Southeastern Pennsylvania v. Casey) will have their eyes opened immensely to other significant but unknown judicial decisions regarding abortion; Ehrlich’s writing is simultaneously brief but comprehensive and functions well as a crash course in lesser-known court cases, as well as the motivations of the Supreme Court and their evolution on abortion with time and changes in membership.
The main, overarching theme of the book is that the 1979 Supreme Court decision in Bellotti v. Baird, often praised as a wise compromise between protecting teens’ right to an abortion and protecting them from their youth by requiring the option of judicial bypass for any parental consent law, was in fact wrong and hardly a compromise, simultaneously failing to take into account the ability of teenagers to make competent, informed decisions and departing from the abortion-as-a-medical-procedure decree of Roe to imbue teen abortion with religious and moral implications. The hypocrisy with which the Supreme Court treats teen abortion compared to teen motherhood, as well as teens’ ability to consent to any medical care other than abortion, is laid out bare in an incisive indictment. Ehrlich makes an incredibly strong case that is hard to dispute, thoroughly supplementing her thesis with respected research about teenage decisional capacity, the rich context of the lives of the young women with whom she spoke, historical analysis, and the words of the Supreme Court itself.
In her conclusion, Ehrlich notes that while there is little to no evidence that judicial bypass has any positive effects, the trend seems towards more and more strict parental consent laws. In that light, she makes a few suggestions that are relatively mild- liberalization of the laws to allow other relatives or professionals to give permission, for example- rather than an all-out call to return the decision to minors. It is perhaps not very heartening to read (particularly when it follows a few brief but heartbreaking tales of the judicial bypass option failing perfectly mature teenagers in other states), but the book is an important one nonetheless. Any pro-choicer who advocates against parental notification or consent laws would do well to read it, the better to understand how such laws have come to be, how they affect the teens who must abide by them, and to gain a more nuanced understanding of the reasons why some teenagers choose non-disclosure.