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Red Families v. Blue FamiliesLegal Polarization and the Creation of Culture$

Naomi Cahn and June Carbone

Print publication date: 2011

Print ISBN-13: 9780199836819

Published to Oxford Scholarship Online: April 2015

DOI: 10.1093/acprof:osobl/9780199836819.001.0001

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Abortion, Law, and the Cognitive Map

Abortion, Law, and the Cognitive Map

(p.92) Chapter 6 Abortion, Law, and the Cognitive Map
Red Families v. Blue Families

Naomi Cahn

June Carbone

Oxford University Press

Abstract and Keywords

While contraception is the vital aspect of the blue family model, abortion is the unfortunate yet essential backup. This is in contrast with the red family model wherein the issue of abortion paved the way for the reinforcement of traditional values. The status of abortion as a symbol of cultural dispute stemmed from the inclusion of religious teachings opposing the transformation of family morals, making it difficult to determine the political and legal grounds of abortion. This chapter looks at the abortion debate as likely a division between the absolutist and contextualist views in relation to the red-blue dichotomy, as well as its relevance in deciding about political preferences. It also discusses the issue of parental involvement in decisions regarding teen abortion as it is an important element in the distinction between the family paradigms and the regulation of abortion rights.

Keywords:   abortion, blue family model, red family model, cultural disputes, traditional values, moral absolutism, moral contextualism, abortion rights

CONTRACEPTION IS THE indispensable element of the blue family paradigm; abortion, in contrast, is the regrettable but necessary fallback. Yet, within the red family paradigm, abortion is the issue that has galvanized the reassertion of traditional values. The issue is intrinsically divisive. Either the fetus is a human life, as certain religious teachings maintain it is, and abortion is therefore murder, or the fetus is potential life, deserving perhaps of enhanced respect, but subject to the same balancing tests of advantages and disadvantages as other more prosaic decisions. Yet, the divisions over abortion have not always been political. The issue emerged as an emblem of cultural conflict only when religious opposition combined with anxiety about changing family mores to crystallize resentment about the perceived societal indifference to the loss of traditional family values. In that context, the very difficulty of crafting a middle ground on the permissibility of terminating a pregnancy has contributed to its political potency.

A growing literature describes the emergence of abortion as a defining political issue with the creation of the Reagan coalition. Before the 1980s, Catholics led the opposition to abortion. The Catholic Church staked out a strict position on conception as the beginning of life, and Catholic churches then and now have made the subject a frequent topic of Sunday sermons. Protestant churches, in contrast, paid less attention (p.93) to the issue. Indeed, Harold O. J. Brown, editor of Christianity Today, observed: “At that point, a lot of Protestants reacted almost automatically—‘If the Catholics are for it, we should be against it.’ … The fact that Catholics were out in front caused many Protestants to keep a very low profile.”1

What changed, according to Yale law professors Robert Post and Reva Siegel, was the identification of the abortion issue with feminism and the perceived threat to traditional family values. They observe that, by the end of the ’70s, “conservatives mobilized against abortion in order to protect traditional family roles.”2 The Christian Harvest Times in 1980, for example, denounced abortion as part of a parade of secular evils. In “A Special Report on Secular Humanism vs. Christianity,” it explained, “To understand humanism is to understand women’s liberation, the ERA [Equal Rights Amendment], gay rights, children’s rights, abortion, sex education, the ‘new’ morality, evolution, values clarification, situational ethics, the loss of patriotism, and many of the other problems that are tearing America apart today.”3 Ronald Reagan ran for the presidency in 1980 on a Republican Party platform that pledged to “work for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.”4 The attack on “activist judges” merged with the protection of traditional gender roles as the basis for family stability and with opposition to abortion not just as a violation of religious teachings, but also as a symbol of public condoning of nonmarital sexuality.

Since the 1980s, the identification of the Republican Party with traditionalist values and forms of expression has deepened. Moreover, the partisan identification with family values has also been couched in language designed to appeal to those who prefer more absolutist to more contextualist expression. Drew Westen, echoing linguist George Lakoff, observes that, as a matter of political strategy, the Republicans have been “unequivocal” in conflating abortion and murder, setting out “an uncompromising stance as the only moral stance one could take, get[ting] the 30 percent of Americans with the least tolerance for ambiguity on moral questions to the polls,” and allowing the Democrats to splinter in their approach to the issue.5 Aligning opposition to abortion and more general support for the right kind of family values reinforces the political nature of the red-blue division.

First, to the extent that political views reflect personality types, the abortion debate is likely to divide along absolutist-contextualist lines. Thus, the researchers who found a genetic basis for conservative views distinguished between those who have “a desire for clear, (p.94) unbending moral and behavioral codes (strict constructionists) [and] a fondness for swift and severe punishment for violations of this code” versus those who prefer “a context-dependent rather than rule-based approach to proper behavior” and have “a distaste for preset punishments (mitigating circumstances).”6 Moreover, other studies indicate that, over the three presidential elections from 1996 to 2004, personality factors that predict ideological orientation strongly correlated with the state-level support for the two parties, even controlling for other factors such as population density, income, minority composition, and the percentage of the vote cast for the same party’s candidate in the previous election.7

Second, the discussion of abortion in all-or-nothing terms can thus be expected to reinforce identification of the abortion issue with the underlying cultural orientation, whether the values preferences derive from innate personality differences or differences in regional cultural expression. Lakoff, for example, emphasizes that, within a conservative world view, abortion for the purpose of ending an inopportune pregnancy may not be appropriate for reasons independent of religious views on the beginning of life. He observes: “According to Strict Father morality, an unmarried teenage girl should not be having sex at all She has to be responsible for the consequences of her actions if she is to learn from her mistakes. An abortion would simply sanction her immoral behavior.”8

Third, abortion views replicate the devotional divide. Of white evangelical Protestants who attend church at least once a week, 71% believe that abortion should be illegal in most or all cases compared to less than half of white evangelicals who attend church less often and 22% of mainline Protestants who attend church less than once a week. Catholics are in between. Among those who claim no religious affiliation, 7% believe that abortions should be illegal in all cases, and 16% in most cases for a total of 23%.9

Fourth, views on abortion, at least in recent years, correspond with political preferences more generally. Thus, 60% of liberal Democrats believe that abortion should be widely available in comparison with only 17% of conservative Republicans, while 50% of conservative Republicans believe that abortions should be illegal with few exceptions compared to only 13% of liberal Democrats.10

Voters tend overall to be more moderate in their views than party activists, and the majority of Americans continue to prefer a middle ground on abortion, one in which abortion would continue to be legal in at least some circumstances. Nonetheless, when the question is framed (p.95) to give voters an opportunity to identify themselves as “strongly prolife,” “strongly pro-choice,” or something in between, those choosing the “strong” positions make up 70% of the electorate.11

Given the power of the issue, political strategists have worked to keep abortion in the forefront of the public mind. Both in Congress and in state legislatures, anti-abortion activists have introduced ever more conservative measures, the Republican Party platform has moved ever further to the right—calling in 2008, for example, for a ban on somatic cell nuclear transfer, a form of stem cell research—and anti-abortion legislators have scheduled as many as 80 votes a year on the subject. These efforts have hardened positions over time. In 1980, there was relatively little divergence between Republicans and Democrats on the issue, with both groups rating their support for abortion at approximately 2.8 out of a 4.0 scale. After 1990, Democratic support for abortion rights moved up (closer to 3.0), and Republican support moved down (toward 2.5).12 The percentage of the public describing themselves as “pro-life” has increased from approximately 32% in 1994, to 44% in 2008, to 51% in 2009.13 And “pro-life” advocates are much more likely to say that a political candidate must share their views, though much more so in 2004 than 2008.14 Moreover, while the majority of Americans favor intermediate positions on the issue, two-thirds of those who think abortion should always be illegal oppose any possible compromise.15

Abortion has long been a polarizing debate where neither side accepts the legitimacy of the other’s position. This division, between those who equate abortion to murder and those who see traditionalist religious beliefs as hostile to women’s equality, undermines protection for the most-vulnerable groups (poor women and minors). Legislators vie to prove their bona fides on the issue rather than to craft workable solutions. This chapter focuses on the issue of mandated parental involvement in teen abortion decisions because it goes to the heart of the symbolic divisions between the family paradigms and to the fracturing of the legal regulation of abortion rights. The marital and motherhood expectations of young women speak volumes about the lives their communities expect them to lead.

Parental Authority or Teen Autonomy?

The continuing fight over abortion focuses on the validity of both Roe v. Wade,16 the 1970s Supreme Court decision that guaranteed a woman’s right, under at least some circumstances, to elect termination (p.96) of her pregnancy, and on the privacy cases that established a constitutional basis for the rights recognized in Roe. This line of cases, as discussed in chapter 5, began with Griswold and the recognition of a right to use contraception. Roe extended this right so that it included a woman’s ability to choose to terminate her pregnancy, recognizing that the birth of an unwanted child may force upon a woman “a distressful life and future.”17 The 7-2 decision was not a partisan one. The two dissenters were a Republican (William Rehnquist) and a Democrat (Byron White). The majority included justices appointed by Republican presidents (Harry Blackmun, Warren Burger, Lewis Powell, Potter Stewart) and Democratic (Thurgood Marshall, William Douglas, William Brennan) ones.

In Casey, decided in 1992, the Supreme Court reaffirmed Roe, albeit somewhat more narrowly defining the rights at stake. Casey emphasized a mother’s unique role in carrying a child to term and specifically rejected a state’s ability “to insist … upon its own vision of the woman’s role, however dominant that vision has been in the course of our history and our culture.”18 Justice Sandra Day O’Connor’s opinion for the Court acknowledged that Roe, the 1973 decision legalizing abortion, and earlier Supreme Court opinions regarding contraception are “of the same character.” Indeed, her description of the differences underlying the positions on abortion captures the divisions between the two family paradigms we have described in this book. O’Connor observed that both the cases on contraception and those on abortion “involve personal decisions concerning not only the meaning of procreation but also human responsibility and respect for it.” She described one view as “based on such reverence for the wonder of creation that any pregnancy ought to be welcomed and carried to full term no matter how difficult it will be to provide for the child and ensure its wellbeing.” The other view “is that the inability to provide for the nurture and care of the infant is a cruelty to the child and anguish to the parent.”19 She thus identified the pro-choice position with the idea of responsibility, linking readiness for pregnancy and childbearing with the ability to provide for the child. She described the pro-life position in terms similar to Luker’s description of sex as “sacred.” In accordance with this world view, a person should not engage in sex unless she is willing to accept the child that might result, and thus the obligation to provide for the child follows from the nature of that child as a gift from God. In Casey, O’Connor concluded that the choice between these two visions (which clearly echo red and blue world views) must be that of the individual.

(p.97) The division between these positions is particularly acute on the question of whether states can require parental involvement in the form of either notification or consent for teen abortion decisions, bringing to the fore the issue of parental authority over teen sexuality. To be sure, much of the political activity surrounding the parental notification issue is a subterfuge for the larger fight about the acceptability of abortion, but the issue also has independent significance for understandings about family formation. Indeed, a majority of those who favor abortion rights also supports some form of parental involvement, and each state has had to address the issue of what type of involvement to mandate. To a greater degree than the larger question of abortion, therefore, parental involvement laws provide a window on the construction of family law paradigms, with particular salience in the cultural conflict between family systems.

The idea that parents should be involved in a medical decision concerning a minor child has, after all, intuitive appeal and a long history. Advocates emphasize the benefits of improved parent-teen communica- tion,20 including the protection of sexually active teens from predatory partners. New Hampshire, for example, justified its parental notification statute as serving “several compelling state interests, including protecting the emotional and physical health of the pregnant mother, vindicating the importance of the parent-child relationship, and promoting the family unit.”21 Senators who proposed the Child Interstate Abortion Notification Act (also called the Teen Endangerment Act) in 2006 “conjured up images of lascivious older men ferrying off their sexual prey to out-of-state abortion clinics”22 and emphasized the importance of parent-child communication.23 At the core of the issue—as both a cultural and constitutional matter—is deference to parental authority.24 Interestingly, in an example of how rhetoric can be turned around, prochoice advocates in Missouri appealed to parental authority in an effort to defeat a bill providing penalties for anyone who coerces a woman into an abortion: one member of the Missouri legislature argued that “parents of minors who are raped by a friend or family member would be criminalized for suggesting that their daughters have abortions.”25

At the same time, empirical studies show that teens overwhelmingly do consult their parents when they are considering abortion.26 Opposition to mandatory parental involvement focuses on the reasons a minority of teens does not consult, and the potential effect on this requirement on the timing of abortions. An early study by Planned Parenthood found that, of those minors who did not inform their parents of their abortions, 30% had histories of violence in their families, (p.98) feared the occurrence of violence, or were afraid of being kicked out of their homes.27 Other studies have found that parental notification laws delay medical treatment, turning otherwise routine abortions into riskier procedures.28 Moreover, opponents maintain that, in the polarized climate of abortion politics, such laws are often intended to frustrate access to abortion services altogether.29

Judicial Abdication

In the period immediately following Roe v. Wade, parental involvement laws swept the country.30 By 1988, over 20 states had enacted legislation, though about half were subject to court orders enjoining their enforcement.31 Relatively liberal Massachusetts enacted one of the first (and strictest) statutes in 1974.32 Forty-three states have at one time or another enacted such laws, and 36 states have them in force as of 2009.33 Politically, such legislation seems like a good compromise because politicians can claim that, while they may support the right to abortion, they are also pro-life and pro-family. Although initially neither abortion nor parental notification laws split the states along lines of red state-blue state polarization, more recent developments echo this split as positions and political lines have hardened.34

The litigation over the constitutionality of the laws captures some of the shift. In 1976, the Supreme Court first considered parental involvement laws, striking down a Missouri statute that required parental consent unless the abortion was necessary to save the life of the pregnant child.35 In subsequent cases, the Court has upheld statutes requiring parental consent, so long as they include a judicial bypass procedure that would allow a mature minor to make her own abortion decision or that would permit an abortion to occur if it were in the pregnant child’s best interest.36 These early cases balanced protection of the constitutional right to abortion with the recognition ordinarily granted to parents’ interest in supervising their teens. In the Court’s 1979 decision in Bellotti v. Baird,37 for example, which struck down the Massachusetts statute, Justice Powell observed that the abortion decision was crucial to a minor’s future and that the state must have important interests when seeking to restrict a minor’s choice.38 In contrast to later decisions, the Court in Bellotti focused on the right to an abortion, the potential impact of parental notification on deterring abortion, and what it clearly viewed as the negative consequences, “grave and indelible,” of “unwanted motherhood” balanced against the (p.99) parents’ interest in supervising their children.39 While the justices disagreed about the reasoning for the opinion, eight of the nine found the Massachusetts statute as written to be wanting. The Court suggested that, for such restrictions to pass constitutional muster, the state must provide for a judicial bypass procedure that could “be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained.”40

By 1990, however, the Court had become warier of overturning state decisions, and it fractured badly in Hodgson v. Minnesota.41 The decision addressed a law that Justice John Paul Stevens described as “the most intrusive in the Nation” because it was the only one of the 38 state laws at the time to specifically mandate that both parents be notified and that the notification occur whether or not each parent wished to be notified or had participated in the girl’s upbringing.42 The trial court in Hodgson, after lengthy hearings on the effects of the legislation, had found that the two-parent notification requirement served no rational state purpose, the bypass procedures were terrifying to the petitioners, and many of the judges presiding over them had concluded that they were pointless. The court held further that the two-parent requirement was “particularly harmful” for a family “when the parents were divorced or separated, especially in the context of an abusive or dysfunctional family,” and the requirement would have a negative effect even on an intact family where domestic violence was a serious problem.

Despite the strength of the trial court’s findings, the justices could agree neither on methodology nor result. The Court accordingly issued five different opinions, with the justices variously concurring, dissenting, and joining parts of the other opinions. Taken together, four of the justices found the two-parent notification unconstitutional in any circumstances, though for differing reasons; four found it constitutional with or without judicial bypass; and one, Justice O’Connor, split the difference by finding it constitutional so long as judicial bypass provided sufficient protection. Six of the justices in contrast upheld single-parent notification with judicial bypass, though again without agreement on the reasoning and with significant dissent.43 Later courts would find the result “impenetrable,”44 and Justice Antonin Scalia used what he termed the “random and unpredictable results of our consequently unchanneled individual views” to “dissent from this enterprise of devising an Abortion Code, and from the illusion that we have authority to do so.”45 The Supreme Court could no longer reach agreement either on the substance of the parental involvement issue or on the judicial role in managing the litigation it produced.

(p.100) By 2006, the Court withdrew from the field. In Ayotte v. Planned Parenthood of New England,46 a unanimous Court declined to invalidate a New Hampshire statute that required parental notification without a judicial bypass, a law that seemed to stand in clear violation of earlier Supreme Court precedents. Instead, the Court emphasized that relatively few applications of the statute would raise constitutional issues, and the Court should “try not to nullify more of a legislature’s work than is necessary, for we know that ‘[a] ruling of unconstitutionality frustrates the intent of the elected representatives of the people.’ ”47 In the Roe era, legislatures often passed abortion measures of dubious constitutional validity, relying on the courts to take the political heat of striking down the laws and defusing the political pressure to adopt more-aggressive legislation.48 As partisanship intensified around the issue of abortion, however, the Court signaled that the issue is better left to the political branches of government.

State of Division

Within the U.S. federalist system, states have experimented with various approaches to parental involvement in the teen abortion decision. Enforcement of parental notification laws bears more relationship to the red-blue split we have documented than to the earlier importance of Catholic voters. Six states, all of which voted Democratic in 2004 and 2008—Connecticut, Hawaii, New York, Oregon, Vermont, and Washington—do not require any form of parental involvement in minors’ abortion decisions.49 New Hampshire, the battleground New England state, became the first state to repeal a parental notification act (during the summer of 2007).50 The 2007 repeal came after Democrats swept into office in the 2006 election, replacing the Republican legislature that had passed strict—and arguably unconstitutional— parental notification laws only a few years before.51 West Coast blue California and Oregon had passed parental involvement laws in earlier eras. The California legislation had been struck down on the basis of the California constitution in 1997, and the legislature has not acted since. Oregon had a relatively mild provision, mandating parental involvement only for those under the age of 15. Disgruntled conservatives in both states placed initiatives on the ballot that would have mandated parental notification. California voters defeated the initiative in a special election in 2005 and again in the regular elections of 2006 and 2008,52 and Oregon did so in 2006 with 54% opposed.53

(p.101) Some states, while mandating notification or consent, are quite liberal in making exceptions in appropriate cases. The majority of these states are blue. Maine, for example, allows a physician to override the parental involvement requirement and permits other family members to be notified in lieu of a parent.54 Other states have relatively broad waiver provisions. Delaware, a blue state, allows notice to be given to a grandparent or a mental health professional, while Maryland, another blue state, and West Virginia, a red state, are like Maine in allowing a physician to waive parental notice in the best interests of the pregnant child.55 A few states, blue and red, have also broadened the class of adults who can consent or to whom notice must be given in lieu of a parent.56 Finally, some states have taken no state action in the wake of older decisions invalidating parental notification statutes.57

Taking these developments together, the blue states as a whole look different from the red states. Of the 19 states that voted for Kerry in 2004, almost a third (6) have no parental involvement statutes.58 A seventh, New Hampshire, repealed its law, the only state to do so. Three others have had their state statutes declared unconstitutional and have declined to enact alternative measures (with California having defeated propositions that would do so three election cycles in a row), for a total of 10 with no enforcement whatsoever.59 Four additional states have adopted more workable parental involvement statutes through physician waivers or an expansion of the adults who can act in place of parents.60 This leaves 5 of the 19 states with relatively strict laws intact: Massachusetts,61 Minnesota,62 Rhode Island,63 Pennsylvania,64 and Michigan.65 None of these more-restrictive statutes, however, has been enacted since 2000.

All of the 31 states that were red in 2004, in contrast, have at some point enacted parental notification statutes. Twenty-five of these states have strict parental notification or consent statutes, while 6 have less-stringent laws.66 Moreover, 2 red states, Mississippi67 and North Dakota,68 mandate that both parents consent.69 Oklahoma, Texas, Utah, and Wyoming require both parental notification and consent.70

Cynicism in Action

Parental notification statutes—and the fight to enact or repeal them— reinforce the symbolic distinctions between the two paradigmatic family systems, but their implementation often bears little relationship (p.102) to the legislation’s stated objectives. Law professor Carol Sanger suggests that “parental involvement statutes, while often couched in the language of family togetherness and child protection, are less concerned with developing sound or nuanced family policies in the area of adolescent reproduction than with securing a set of political goals aimed at thwarting access to abortion, restoring parental authority, and punishing girls for having sex.”71 Empirical research, while imperfect, concurs that parental involvement laws are more important in discouraging abortion or increasing the number of pregnant teens who obtain abortions outside of their home states than in promoting individual teen health or family communications.72 The symbolic fight, however, often obscures the law’s practical effects. The bypass is difficult to navigate, even for the most mature and well-resourced teens, and operates in ways that further marginalize poor, very young, and geographically isolated minors.

First, parental involvement that occurs when a teen voluntarily initiates it is a very different matter from parental involvement imposed by law. Adolescents by and large tell their parents about their abortion decisions; when they do not or cannot, the consequences of mandating parental involvement may be severe. Parental consent laws, accordingly, have the harshest consequences on those who may be victimized (1) inside their families, where, because of domestic violence or other problems, they have a bad relationship with their parents; and (2) outside of their families, where the lack of ready access to abortion may persuade them to delay, try riskier alternatives, or give birth to a child they would prefer not to have. The law is out of step with the recommendations of health providers; indeed, in the less politically charged arenas of prenatal care and sexually transmitted disease testing, most states provide medical services without mandating parental notification or consent.

Second, judicial bypass, the Supreme Court’s preferred safety valve for those who cannot realistically rely on parental support, has been largely ineffective in either protecting teens or encouraging more reflective abortion decisions. While teens often find such procedures to be terrifying, punitive, costly, and difficult to navigate, the courts also dislike overseeing the requests. The result presents two unsatisfying alternatives. In some jurisdictions, the judges are either highly likely to grant the requests, believing that any teen who opposes the pregnancy enough to request a hearing should not be required to bear an unwanted child, or they routinely oppose approval, trying to make it as difficult as possible to secure an abortion.73 In other jurisdictions, (p.103) the courts enter into fairly detailed factual findings that proceed from intrusive inquiry into the teen’s circumstances, resulting in a process that is much more unpleasant for the teen and time-consuming for the court. Individual judges have enormous discretion to determine whether a pregnant teen satisfies the maturity or best interests standard, making it very hard to predict what the bypass will look like in any particular courthouse without knowing the predilections of the sitting judge. The bypass procedures place a strain on the judiciary’s resources, reduce the availability of abortion for the teen who may be most burdened by an unwanted pregnancy, and make access less predictable, especially in rural areas where securing a bypass hearing is more difficult.74

Third, the statutes that appear to be more effective at protecting teens while also ensuring effective communication have allowed for alternative decision makers, such as grandparents or doctors. If an adolescent can substitute a trusted adult or seek counseling from a neutral third party such as a doctor, then the adult can help to provide support for the ultimate decision, including advice about abortion providers, information about adoption or other alternatives, or assistance in establishing constructive lines of communication with the parents.

So long as voters have more interest in affirming restrictions on adolescent sexuality than in teen well-being, however, legislatures and courts have little incentive to seek compromise solutions. The states that have moved toward these pragmatic measures, such as Maine and West Virginia, remain relatively few. In the meantime, however, parental involvement laws disproportionately affect the most vulnerable adolescents in ways that may affect the rest of their lives.

Cynicism Magnified

The availability of abortion, for both teens or adults, magnifies the consequences of lack of access to contraception. It therefore has a particularly critical impact on the life chances of poor and minority women, the victims of sexual assault, and those from abusive and dysfunctional families. The Guttmacher Institute reports that between 1994 and 2001, the “unintended pregnancy rate rose 29% among women living below the poverty level and 26% among women living between 100% and 200% of the poverty level, but fell 20% among more affluent women.”75 It increased as well for high school dropouts and women (p.104) between the ages of 19 and 24, while declining for adolescents and college graduates. The poorest 30% of women of reproductive age in the United States obtained 57% of the abortions in 2000. During this period, white women had the lowest abortion rates (1.3%) while black women had the highest (4.9%). For whites, only 18% of conceptions ended in abortion compared to 43% of black conceptions and 25% of Latina conceptions.76 Even when they are able to obtain abortions, two-thirds of poor women report that they would have liked to have undergone the procedure at an earlier point.77 Abortion has accordingly become increasingly important for poor and minority women’s reproductive autonomy even as it recedes in importance for affluent whites.

Yet, poor women are disproportionately affected by the practicalities of obtaining an abortion. New legal restrictions, which unnecessarily complicate the provision of abortion services, also make them more expensive and emotionally trying. When the New York Times reported in early 2009 that abortion was “safe, legal, and inexpensive,” the directors of the Abortion Access Project and the National Latina Institute for Reproductive Health wrote in to protest: “An abortion at 10 weeks’ gestation costs $523 on average, often out of pocket. To term this ‘inexpensive,’ especially in the current economy, is ludicrous.”78 For minors, cost further exacerbates their difficulties with access to abortion; they are often too young to have jobs, and if they are trying to avoid parental involvement, they cannot ask their parents for money.

Medicaid, the federal program which provides funding for health care for very poor Americans, provides no funding for abortion except, according to the 1977 Hyde Amendment, in cases of rape, incest, or life endangerment to the mother. The Supreme Court has repeatedly upheld indirect restrictions on poor women’s ability to obtain abortions, first deciding in 1977 that a state need not pay for medically necessary abortions and then upholding the Hyde Amendment three years later.79 Somewhere around one-fifth to one-third of women on Medicaid who want an abortion cannot afford to obtain one.80 Some of these women are, however, more fortunate than others, if they live in one of the 13 states that covers medically necessary abortions with state funds: Arizona, California, Connecticut, Hawaii, Illinois, Maryland, Massachusetts, Minnesota, Montana, New Jersey, New Mexico, New York, and Oregon. Leaving aside the battleground state of New Mexico, the only red states on this list are Arizona and Montana.

(p.105) Blurring the Distinctions

Ultimately, restrictions on abortion access for teens and poor women are cynical attempts to “do something” about abortion by picking on constituencies who have little voice in the public policy debates. Because of the difficulties of reversing Roe entirely, anti-abortion advocates have pursued an incrementalist strategy of making abortion more difficult to obtain. For example, three states (all red) now require doctors to do ultrasounds on women seeking abortion, and then offer women the opportunity to view the images of the fetus before the abortion; eight states (all red except for Minnesota) require that a woman receive information on the ability of the fetus to feel pain; and five states (all red) prohibit private insurers from covering abortion, except in cases of life endangerment, rape, or incest.81 A full assault on Roe has yet to be successful, and the election of Barack Obama means that the Supreme Court is unlikely—for the moment—to add another antiabortion justice to its members. Nonetheless, abortion politics retains its ability to rally the red paradigm base.82 Conservatives can’t stop talking about abortion; abortion is “their meal ticket.”83 It remains the family values issue least amenable to compromise.


(1.) WILLIAM MARTIN, WITH GOD ON OUR SIDE: THE RISE OF THE RELIGIOUS RIGHT IN AMERICA 193 (1996) (quoting Brown), quoted in Robert Post & Reva Siegel, Roe Rage: Democratic Constitutionalism and Backlash, 42 HARV. C.R.-C.L. L. REV. 373, 415 (2007).

(2.) Post & Siegel, supra note 1, at 420.

(3.) A Special Report, CHRISTIAN HARVEST TIMES, June 1980, at 1, quoted in MARTIN, supra note 1, at 196.

(4.) See Republican Party Platform of 1980, American Presidency Project, available athttp://www.presidency.ucsb.edu/showplatforms.php?platindex=R1980 (last visited Mar. 21, 2009). In 1984, the Republican Party reaffirmed its “support for the appointment of judges at all levels of the judiciary who respect traditional family values and the sanctity of innocent human life.” See Republican Party Platform of 1984,American Presidency Project, available athttp://www.presidency.ucsb.edu/showplatforms.php?platindex=R1984 (last visited Mar. 21, 2009).


(6.) John R. Alford, Carolyn L. Funk, & John R. Hibbing, Are Political Orientations Genetically Transmitted? 99 AM. POL. SCI. REV. 153, 164-65 (2005).

(7.) John T. Jost, The End of the End of Ideology, 61 Am. Psychol. 651, 666 (Oct. 2006).


(9.) Gregory Smith & Allison Pond, A Slight but Steady Majority Favors Keeping Abortion Legal, Pew Forum on Religion in Public Life (Sept. 16, 2008), available athttp://pewforum.org/docs/?DocID=350.

(10.) Pragmatic Americans: Liberal and Conservative on Social Issues, Pew Center for the People & the Press (Aug. 3, 2006), available athttp://people-press.org/report/283/pragmatic-americans-liberal-and-conservative-on-social-issues.



(13.) Stephanie Simon, Abortion Foes’ Dilemma: Confront or Cooperate? WALL ST. J.( Nov. 11, 2008), at A6, see also Lydia Saad, More Americans “Pro-Life” than “Pro-Choice” for First Time, Gallup (May 15, 2009), available athttp://www.gallup.com/poll/118399/More-Americans-Pro-Lfe-Than-Pro-Choice-First-Time.aspx?CSTS=tagrss.

(14.) Lydia Saad, Abortion Issue Laying Low in 2008 Campaign (May 2008), available athttp://www.gallup.com/poll/107458/Abortion-Issue-Laying-Low-2008-Campaign.aspx (in October 2004, 20% of pro-life voters compared to 10% of pro-choice voters said that a candidate must share their views on abortion for the voters to be able to vote for that candidate; in May 2008, it was 15% and 11%).

(16.) 410 U.S. 113 (1973).

(17.) Id. at 152.

(18.) Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 852 (1992).

(21.) Brief of Petitioners at 10-12, Ayotte v. Planned Parenthood, 546 U.S. 320 (2006). Professor Teresa Collett notes that parental notification laws can benefit minors through improving medical care and providing protection from sexual assault. Teresa Stanton Collett, Protecting Our Daughters: The Need for Parental Notification Laws, 26 Vt. L. Rev. 101, 102 (2001).

(22.) Editorial, Parental Notification, N.Y. TIMES (July 27, 2006), available athttp://www.nytimes.com/2006/07/2 7/opinion/27thu4.html?pagewanted=print.

(23.) For a comprehensive statement of the benefits of parental notification laws, including claims that such laws help to reduce teen pregnancy, see Teresa Stanton Collett, Transporting Minors for Immoral Purposes: The Case for the Child Custody Protection Act & the Child Interstate Abortion Notification Act, 16 HEALTH MATRIX 107 (2006). For a discussion of the methodological issues underlying such claims, see Theodore Joyce, Silvie Colman, & Robert Kaestner, Methodological Issues in the Evaluation of Parental Involvement Laws: Evidence from Texas ( Nat’l Bureau of Econ. Res., Working Paper No. 12608, 2006), available athttp://papers.ssrn.com/sol3/papers.cfm?abstract_id=929171.

(24.) See George Lakoff, DON’T THINK OF AN ELEPHANT! KNOW YOUR VALUES AND FRAME THE DEBATE 104-5 (2004). Professors Robert Post and Reva Siegel note more generally that “[t]he antiabortion backlash that has so traumatized liberals reflects a constitutional vision that would preserve traditional family roles and resist secularization of the American state.” Post & Siegel, supra note 1, at 423.

(25.) Chad Livengood, House Bill Would Criminalize Coercion of Abortion, NEWS- LEADER.COM, Mar. 4, 2009, available athttp://www.news-leader.com/article/20090304/NEWS06/903040462.

(27.) Stanley K. Henshaw & Kathryn Kost, Parental Involvement in Minors’ Abortion Decisions, 24 Fam. Plan. Persp. 196, 207 (1992).

(28.) Auriana Ojeda, Should Abortion Rights Be Restricted? Introduction, ENOTES.COM, 2002, http://www.enotes.com/should-abortion-article/39731; see also Rachel N. Pine, Speculation and Reality: The Role of Facts in Judicial Protection of Fundamental Rights, 136 U. PA. L. REV. 655, 687-93 (1987) (summarizing research that shows ineffective parent-teen communications about matters of sexuality and that assumptions underlying parental notification laws are unrealistic); J. Shoshanna Ehrlich, From Age of Consent Laws to the “Silver Ring Thing”: The Regulation of Adolescent Female Sexuality, 16 HEALTH MATRIX151, 169-72 (2006).

(29.) See Carol Sanger, Regulating Teenage Abortion in the United States: Politics and Policy, 18 INT’L J.L. POL’Y & FAM. 305 (2004) (statutes serve, inter alia, to make access to abortion more difficult for minors).

(30.) For further discussion of the Roe backlash, see Post & Siegel, supra note 1.

(31.) Theresa N. Walker, Note, California’s Parental Consent Statute: A Constitutional Challenge, 40 HASTINGS L.J. 169, 169 n.4 (1988) (23 states had enacted either parental notification or consent laws; 9 were subject to injunction, and 3 had been declared unconstitutional).

(32.) MASS. GEN. LAWS ANN. chap. 112, § 12P (West 2003). The Massachusetts statute required the consent, not just the notification, of both parents.

(33.) See Planned Parenthood, Laws Requiring Mandatory Parental Involvement for Minors’ Abortion,http://www.plannedparenthood.org/issues-action/abortion/mandatory-parental-involvement/reports/laws-requiring-mandatory-parental-involvement-minors-abortion-6132.htm (last visited Mar. 21, 2009).

(34.) See H. W. Perry Jr. & L. A. Powe Jr., The Political Battle for the Constitution, 21 CONST. COMMENT. 641 (2004) (summarizing the political shifts and timing the start of the political polarization on the issue to the Reagan years); see also Post & Siegel, supra note 1, at 409-25.

(35.) Planned Parenthood v. Danforth, 428 U.S. 52 (1976).

(36.) Bellotti v. Baird, 443 U.S. 622, 643-44 (1979); Planned Parenthood of S.E. Pa. v. Casey, 505 U.S. 833, 899-900 (1992).

(37.) 443 U.S. 622.

(38.) He noted:

(39.) Id. at 642-43 (opinion of Powell, J.).

(40.) Id. at 644.

(41.) Hodgson v. Minnesota, 497 U.S. 417 (1990).

(42.) Id. at 425 n.5 (discussing the varying requirements from state to state for a woman who seeks an abortion).

(43.) Id. at 421.

(44.) See, e.g., Planned Parenthood v. Camblos, 155 F.3d 352, 364 (4th Cir. 1998) (“The Court in Hodgson was so fractured as to render its opinions collectively all but impenetrable, with five different Justices filing opinions variously concurring and dissenting in other opinions and parts of other opinions.”)

(45.) Hodgson, 497 U.S. at 480 (Scalia, J., concurring in part and dissenting in part).

(46.) 546 U.S. 320 (2006).

(47.) Id. at 329 (citations omitted).

(48.) See, e.g., Perry & Powe, supra note 34, who observed that legislatures in the era immediately after Roe sometimes passed legislation with the expectation that the Court would invalidate it, taking the political heat away from the legislature for the decision.

(p.235) (49.) Planned Parenthood, Laws Requiring Mandatory Parental Involvement, supra note 33 - Connecticut provides for counseling the teen about the possibility of parental notification, but does not mandate it. CONN. GEN. STAT. ANN. §§ 19a-600 to -601 (West 2007).

(50.) Pam Belluck, New Hampshire to Repeal Parental Notification Law, N.Y. TIMES (June 8, 2007), at A22, available athttp://www.nytimes.com/2007/06/08/us/08parental.html.

(51.) Id. The Ayotte Court observed that the failure to provide an exception to the parental notification provision to protect the life or health of the mother raised potential constitutional issues, and it remanded for a determination of whether an injunction would cure the problem. Ayotte v. Planned Parenthood of New England, 546 U.S. 320 (2006).

(52.) The California legislature had enacted a parental involvement statute in 1987, which was declared unconstitutional in 1997 pursuant to the state’s constitutional right to privacy. See Am. Acad. of Pediatrics v. Lungren, 940 P. 2d 797, 800 (Cal. 1997) (striking down California’s law because it offended the minor’s right of privacy guaranteed by the California constitution). The proposition failed in 2006 by a vote of 46% to 54%. America Votes 2006, State Races: California, CNN.COM, http://www.cnn.com/ELECTION/2006/pages/results/states/CA.

(53.) America Votes 2006, State Races: Oregon, CNN.COM, http://www.cnn.com/ELECTION/2006/pages/results/states/OR.

(54.) ME. REV. STAT. ANN. tit. 22, § 1597-A(2)(A) (West 2007).

(55.) DEL. CODE ANN. tit. 24, § 1783(a) (2009); MD. CODE ANN., HEALTH-GEN. § 20–103(c) (West 2007) (allowing a physician to determine that parental notice is not in the minor’s best interest); W. VA. CODE § 16-2F-1 (2009) (stating that a physician not affiliated with an abortion provider may waive the notice requirement). Kansas also permits physician waiver but only in the event of a medical emergency. KAN. STAT. ANN. § 65–6705Q (2007) (allowing a physician to bypass parental notice in cases where the physician determines that an emergency exists that threatens the “well-being” of the minor).

(56.) See, e.g. , WIS. STAT. ANN. § 48.375(2)(b) (West 2005) (in lieu of parental consent, a grandparent, aunt, uncle, or sibling who is at least 25 years old may provide consent; Wisconsin is also interesting because it allows a clergy member to consult with a minor and appear on her behalf before a judge); OHIO REV. CODE ANN. § 2919.12 (Anderson 2007) (stating that notice may be given to a brother, sister, step-parent, or grandparent if certain qualifications are met). Some states broaden the class of adults to include other family members, such as grandparents, with whom the teen is living, but we view the purpose of these laws as less about parental authority. See Planned Parenthood, Laws Requiring Mandatory Parental Involvement, supra note 33.

(57.) Planned Parenthood lists nine states where courts have issued injunctions against enforcement of parental notification laws. Of these states, four (California, Illinois, New Hampshire, and New Jersey) are blue, though New Hampshire is a battleground state, and the remaining five are red (Alaska, Idaho, Montana, New Mexico, and Nevada), with Nevada and New Mexico battleground states. In the four blue states, none of the state laws has been reinstated through (p.236) legislative action, despite the fact that the injunctions were issued some time ago. Indeed, California voters rejected a parental notification proposition, and New Hampshire repealed its parental notification law after the Supreme Court decision in Ayotte. See Belluck, supra note 50. In the five red states, three (the battleground states of Nevada and New Mexico, which went blue in 2008, and Mountain West Montana) have taken no further action; Alaska moved promptly to reinstate the law, and Idaho is appealing the injunction. The Alaska Supreme Court found the statute to be unconstitutional in 2007. State v. Planned Parenthood, 171 P. 3d 577 (Alaska 2007). In March 2007, Idaho enacted a new parental consent law to replace previous versions of the statute which the courts had held were unconstitutional and unenforceable. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F. 3d 908, 926 (9th Cir. 2004) (unconstitutional and unenforceable because the statute contained an inadequate medical emergency exception to protect a young woman’s health), cert. denied, 544 U.S. 948 (2005). In Florida, by contrast, following a decision that an earlier parental notification statute was unconstitutional in N. Fla. Women’s Health & Counseling Services v. State, 866 So.2d 612 (Fla. 2003), the state amended its constitution to reinstate such a requirement. FLA. STAT. ANN. § 390.01114 (West 2006) (enacted following a constitutional amendment by referendum that would permit parental notification without violating the minor’s state constitutional right of privacy, as long as the parental notification requirement contained certain exceptions and a judicial bypass).

(58.) These states are Connecticut, Hawaii, New York, Oregon, Vermont, and Washington.

(59.) California rejected such a proposition at the polls, Illinois has yet to adopt a judicial bypass process a decade after the original ruling, and New Jersey has taken no action after seven years.

(60.) The four states are Maine, Delaware, Maryland, and Wisconsin. Delaware, however, only requires parental involvement for teens under 16. Planned Parenthood, Laws Requiring Mandatory Parental Involvement, supra note 33. Carol Sanger emphasizes that the contrast between nuanced consent laws for medical care, including receiving contraceptives, and the blanket consent or notification requirements for abortion underscores the politicized nature of these enactments. Sanger, supra note 29, at 307 (“The sweep of coverage suggests from the start that parental involvement statutes focus not on adolescence as a stage of development but rather on minority as a site of control”).

(61.) The Massachusetts law, which originally required the consent of both parents, was limited to one parent and upheld in Planned Parenthood League of Massachusetts, Inc. v. Attorney General, 677 N.E.2d 101 (Mass. 1997).

(62.) Minnesota’s restrictive law was partially upheld in Hodgson v. Minnesota, 497 U.S. 417(1990).

(63.) R.I. GEN. LAWS § 23–4.7–6 (2004).

(64.) The state’s parental consent law was upheld in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

(65.) Michigan’s parental consent law was upheld in Planned Parenthood of Mid- Michigan, Inc. v. Attorney General, No. D 91–0571 AZ (Mich. Cir. Ct. Apr. 29,

(p.237) (66.) In three states that voted red in 2004—Montana, New Mexico, and Nevada—the laws have been enjoined and no further action has been taken. Two more, West Virginia and Ohio, permit waivers or the expansion of the adults who can act in lieu of parents. South Carolina lowers the age of mandatory parental involvement to teens younger than 17 and permits grandparents acting in loco parentis to take the place of the parents. S.C. CODE ANN. §§ 44–41-io(m), (n) (original statute enacted 1990), -30 (enacted 1990), -31 to -37 (enacted 1990).

(67.) See Barnes v. Mississippi, 992 F.2d 1335 (5th Cir.), cert. denied, 510 U.S. 976 (1993); Pro-Choice Miss. v. Fordice, 716 So.2d 645 (Miss. 1998).

(68.) N.D. CENT. CODE §§ 14–02.1–03.i (enacted 1981), 14–02.1–03 (enacted 1975), 14–02.1–02 (enacted 1975; last amended 1995), 14–02.1–02.i (enacted 1991).

(69.) Guttmacher Institute, State Policies in Brief: Parental Involvement in Minors’ Abortions (Mar. 1, 2009), available athttp://www.guttmacher.org/statecenter/spibs/spib_PIMA.pdf.

(72.) See Naomi Cahn & June Carbone, Empirical Research on Parental Involvement Laws (2007) (unpublished manuscript on file with authors); AMANDA DENNIS ET AL., THE IMPACT OF LAWS REQUIRING PARENTAL INVOLVEMENT FOR ABORTION: A LITERATURE REVIEW 27 (2009).

(73.) Pine, supra note 28, at 685–87. In many jurisdictions and especially in rural or conservative areas, judges simply refuse to hear the cases, either acknowledging their personal biases or fearing that hearing the case would pose political problems with reelection. See, e.g., Adam Liptak, On Moral Grounds, Some Judges Are Opting Out of Abortion Cases, N.Y. TIMES, Sept. 4. 2005, available athttp://www.nytimes.com/2005/09/04/national/04recuse.html?ex=1146110400&en=ee4519b0fd36675e&e1=5070.

(74.) See Patricia Donovan, Judging Teenagers: How Minors Fare when They Seek Court-Authorized Abortions, 15 FAM. PLAN. PERSP. 259, 264 (1983) (observing that judges in rural areas are most likely to refuse to hear the cases); Lisa Pruitt, Toward a Feminist Theory of the Rural, 2007 UTAH L. REV. 421, 478 (noting spatial and confidentiality issues for minors in rural areas).

(75.) Heather D. Boonstra et al., Abortion in Women’s Lives 26 (2006), available athttp://www.guttmacher.org/pubs/2006/05/04/AiWL.pdf (last visited 08/19/09).

(76.) Rachel K. Jones, Jacqueline E. Darroch, & Stanley K. Henshaw, Patterns in the Socioeconomic Characteristics of Women Obtaining Abortions in 2000–2001, 34 PERSP. SEXUAL & REPROD. HEALTH 226, 228–32 (2002).

(77.) Heather D. Boonstra, The Heart of the Matter: Public Funding of Abortion for Poor Women in the United States, 10 GUTTMACHER POL’Y REV. 12, 14–16 (2007), available athttp://www.guttmacher.org/pubs/gpr/10/1/gpr100112.html.

(78.) Melanie Zurek, Letter to the Editor, N.Y. TIMES, Jan. 12, 2009, available athttp://www.nytimes.com/2009/01/12/opinion/l12abort.html.

(p.238) (79.) Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980). Before the Hyde Amendment, federal funds were available to women whose pregnancies caused them “severe and long-lasting physical health damage.” Dep’t of Labor and Health, Education, and Welfare Appropriations Act of 1979, Pub. L. No. 95–480 (1978).

(80.) See Boonstra, The Heart of the Matter, supra note 77, at 16 (estimating that the number is between 18% and 35%).

(81.) Guttmacher Institute State Center, http://www.guttmacher.org/statecenter/ abortion.html (last visited Mar. 21, 2009).

(82.) Tim Carpenter, Sebelius Vetoes Abortion Bill, TOPEKA CAPITAL JOURNAL, Apr. 24, 2009, available athttp://www.cjonline.com/at_home/2009-04-23/sebelius_vetoes_abortion_bill. See also Thomas Frank, WHAT’S THE MATTER WITH KANSAS? HOW CONSERVATIVES WON THE HEART OF AMERICA 94–96 (2004) (discussing the critical role of abortion in mobilizing the Christian right).

(83.) Mike Whitney, The G.O.P. Is Finished; Let’s Stick a Fork in It (May 6, 2009), available athttp://onlinejournal.com/artman/publish/article_4669.shtml.