Review of Abortion Law To Include Consent Provision

By Mark Walsh — January 29, 1992 3 min read

The U.S. Supreme Court last week announced that it will review Pennsylvania’s restrictive abortion law, including its provision requiring a minor to get either the “informed consent” of one parent or a court order to have the procedure.

The High Court on Jan. 21 agreed to review a ruling by the U.S. Court of Appeals for the Third Circuit that upheld most provisions of the 1989 Pennsylvania law, which requires doctors to inform women about alternatives to abortion and makes women wait 24 hours after receiving such information before having the procedure.

The appeals court struck down a provision that requires a married woman to inform her husband before having an abortion, except under certain circumstances, such as if the husband is not the father of the child.

In their written order accepting the case, Planned Parenthood of Southeastern Pennsylvania v. Casey (Case No. 91-744), the Justices declined to say whether they might use it to reconsider their 1973 precedent legalizing abortion, Roe v. Wade. They simply stated they would review the constitutionality of each of the major provisions of the Pennsylvania law.

Abortion-rights organizations had explicitly asked the High Court to review the Third Circuit ruling in the context of determining whether Roe was still valid.

“Anything short of a resounding reaffirmation of Roe v. Wade” by the Court after its review of the Pennsylvania case “will mean that, for the first time in our history, a fundamental constitutional right will have been taken away,” said Kathryn Kolbert, a lawyer with the Reproductive Freedom Project of the American Civil Liberties Union.

Helen Alvare, an official of the anti-abortion office of the National Conference of Catholic Bishops, said she believes a majority of the public “wants parents involved when a teenager is considering an abortion.”

Parental-Consent Provision

The parental-consent requirement has not been the most controversial provision of the Pennsylvania law, in part because it generally follows recent Supreme Court rulings requiring a “judicial bypass” option for minors to get an abortion without informing one or both parents.

The law states that a woman under 18 and one of her parents must give “informed consent” to the abortion. The federal district judge who first heard the case ruled that the parental-consent provision requires that a parent receive the same “in person” counseling about abortion alternatives that his or her daughter must get from a doctor or a counselor.

If her parents refuse to give consent, or if she chooses not to inform them, a pregnant minor may ask a judge to find her “mature and capable” of giving informed consent to have an abortion.

According to a recent report by the Alan Guttmaeher Institute, 18 states mandate parental consent or notification for abortions by minors. An additional 9 states, including Pennsylvania, have similar laws whose enforcement is currently enjoined by court orders. (See Education Week, Jan. 22, 1992.)

Sales-Tax Revenue

In other action last week, the High Court heard arguments in a case that could have a significant impact on state sales-tax revenues. In Quill Corporation v. North Dakota (No. 91-194), the Court is being asked to overturn a 1967 precedent that has effectively exempted direct marketers from collecting sales taxes except from customers in states where the companies have physical operations.

The National Governors’ Association has estimated that states are missing out on $2 billion to $3 billion annually in sales-tax revenue as a result of mail- and phone-order purchases made by residents from out-of-state companies.

“Direct marketing has become such a big player in the national sales market,” North Dakota’s Attorney General, Nicholas J. Spaeth, told the Justices on Jan. 22. “They have a competitive advantage over their in-state competitors.”

John E. Gaggini, a lawyer for Quill Corporation, an Illinois-based mail-order firm that is the sixth largest provider of office supplies in North Dakota, said one reason the company should not pay taxes is that it does not benefit from North Dakota’s state services.

A decision in the case is expected by July.

A version of this article appeared in the January 29, 1992 edition of Education Week as Review of Abortion Law To Include Consent Provision