Thursday, August 17, 2017

A Pregnant Minor's Best Interests

by Sherry F. Colb

In my Verdict column for this week, I discuss an Alabama law regulating the judicial bypass hearing that minors get if they cannot or will not go to their parents to obtain consent for an abortion. The purpose of the judicial bypass hearing is to allow minors who are uncomfortable approaching their parents about their unplanned pregnancy (or whose parents refuse to consent) to approach a judge instead. The judge will then decide (1) if the minor is mature enough to make the decision on her own, and (2) assuming that the minor is not mature enough, whether an abortion is in the minor's best interests. The Alabama statute was unusual in that it provided that the minor's parents, the local District Attorney, and a Guardian Ad Litem for the embryo or fetus could or would also be parties to the bypass hearing. A federal court held this unusual statute unconstitutional, and I elaborate that holding in my column, which then discusses the communicative significance of inviting a prosecutor, the girl's parents, and a representative of the embryo or fetus into the courtroom. In this post, I want to focus on one of the two questions that a judicial bypass is in place to answer: if the minor is not mature enough to make the decision on her own, then is an abortion in her best interests?

When the judge is in the position of deciding whether an abortion is in the girl's best interests, it means that the judge has determined that the girl is not mature enough to be making such decisions on her own. This in turn means that the question the judge must ask himself is this: is it in the best interests of this immature girl to terminate her pregnancy or is it in her best interests to take the pregnancy to term and give birth to a baby? Unless one takes the view that abortion ought to be out of the question in most or all cases, it seems plain that it is not in the immature minor's best interests to carry an unwanted pregnancy to term and to have a baby. Indeed, if the girl were not yet pregnant and we were to ask pretty much anyone whether it would be in the girl's best interests to become pregnant and remain that way for nine months and then give birth, the answer would be no. No one favors teen pregnancy. The difference is that the girl here already is pregnant, and the question is whether it is best for her to remain that way or to terminate her pregnancy.

How much of a difference should it make that she is already pregnant? For someone who is pro-life, it makes all the difference in the world. The embryo or fetus is a person, and the girl is now carrying a fully entitled person inside her. It could not be in the girl's best interests to kill her own child, regardless of how difficult a pregnancy might be on her body and how painful it would be for the minor to either have to parent at her age or to have to say goodbye to her baby after giving birth to him or her. That is, the difference between not becoming pregnant and not remaining pregnant is the difference between night and day, from the pro-life perspective. If a judge is pro-life, then, he will almost certainly say that if the minor is too immature to make her decision (and the incentive here will be to say exactly that), her best interests lie in remaining pregnant and bearing the child.

If, on the other hand, the judge takes the view that abortion is something distinct from the killing of a fully entitled being, then the difference between whether a minor ought to become pregnant and whether she ought to remain pregnant will not appear to be that great. In both cases, what lies before the minor, if she becomes/remains pregnant, is a highly physically intrusive and health-compromising state for many months, followed by an extremely painful process (labor) or major surgery (C-section), itself followed by the existence of a baby to whom the minor will likely be attached but for whom she is ill-equipped to care. The answer to the best interests question seems obvious now, and it is that continued pregnancy, like an initiated pregnancy, is not in her best interests at all.

There is one scenario in which even a pro-choice judge (or at least one who feels bound by the pro-choice state of constitutional doctrine) would regard the commencement of pregnancy and the continuation of an existing pregnancy as distinct. That is the case in which the pregnant minor wants to remain pregnant.

Now admittedly, a minor girl who wants to remain pregnant does not need to go to a judge to do so, even if her parents want her to have an abortion. It is unlikely that a doctor would perform the abortion without the consent of the girl herself, regardless of the parents' wishes. But as a thought experiment, imagine that the parents of a minor girl go to court seeking an order to compel her to have an abortion. Imagine further that in such circumstances a judge were bound by the same test that applies where the girl seeks the abortion: the judge must decide whether the girl is mature enough to make the decision for herself and, if not, whether an abortion is in her best interest. Finally, suppose that the judge determines that some particular girl who doesn't want an abortion is not sufficiently mature to make that decision for herself.

Despite her immaturity and the burdens that pregnancy imposes on her body, if a minor wishes to remain pregnant, it would be an outrageous intrusion upon her bodily integrity for a judge (or her parents) to force her to have an abortion against her will. On the other hand, if she wanted to become pregnant, either by having sex with a boy or by using reproductive technology, it would seem to most to be completely acceptable for her parents and/or a judge to bar her from engaging in these activities necessary to produce a pregnancy. She would not, in other words, have the right to become pregnant, even though she would have the right to remain pregnant. Because a forced abortion involves the laying on of hands by a doctor (and by the government or her parents, by hypothesis), it seems even more offensive to her autonomy than a refusal to allow her to have an abortion.

But perhaps we should not consider a forced abortion more offensive than a refusal to allow an abortion. Maybe the distinction here relies in part on the view that pregnancy is somehow a passive state, and the government, by refusing to allow an abortion, is simply leaving things where they are rather than affirmatively doing something to the girl in question. But that view of pregnancy is wrong. Pregnancy demands a great deal from the body of the pregnant woman, and insisting on the process that will overtake her if she remains pregnant is anything but "leaving things the way they are." Her being able to terminate the pregnancy is, in some respects, much more like "leaving things the way they are" because a termination will prevent her body from changing in the ways that a pregnancy changes a woman's body.

Yet people generally respond to forced abortion with a visceral reaction that exceeds what they feel about what is essentially forced pregnancy. Similarly, and interestingly, people react very negatively to a forced C-section (which is sometimes ordered by courts when a woman who is due to give birth but is not going into labor refuses a C-section that a doctor believes is medically necessary). This reaction is especially notable, because the C-section is meant to save a baby who is at full term and whose personhood is therefore noncontroversial, and the continued pregnancy will ultimately kill the baby. Furthermore, unlike the woman who wants to terminate her pregnancy, the woman who refuses a C-section that a doctor regards as necessary is not going to be avoiding pregnancy, because she already is pregnant. The right she is asserting, then, is a right to keep a full-term baby inside her body, even though its continued presence there poses a threat to the baby and to her as well. Yet I have spoken to at least two pro-life individuals who regard a forced C-section as an offensive assault on the woman's bodily integrity that should not be allowed.

There is something, then, about the laying on of hands--in a forced abortion and a forced C-section--that offends people, despite the realities of what compelling a pregnancy really means. People ultimately think that in some significant way, it is the pregnancy and not the government that is imposing on the woman if she is not permitted to terminate, in a way that the government is itself imposing on her if it requires an abortion or a C-section. Though I share the visceral reaction to forced surgery, I think a forced C-section presents a very hard case, one that should be more difficult to resolve, in my view, than an abortion case. But it may be that the failure of pro-choice advocates to convince pro-life advocates to come over to the side of the former rests on this distinction between laying on hands and leaving the body to do whatever it will do, assuming other pro-life thinkers share the intuition that forced C-sections are wrong. If no procedure means the pre-term woman remains pregnant and the embryo or fetus lives, then pro-life thinkers say that there should be no procedure. If no procedure means the woman at term remains pregnant and full-term baby dies, then even (at least some) pro-life thinkers say there should be no procedure. So the battle may not be primarily about the status of the embryo or fetus (though one must first grant that status to the embryo or fetus before any of the woman's options seem eligible for refusal) but about the nature of the government's intrusion, whether it is physical and direct, like surgery, or "only" legal and indirect, like prohibiting providers from performing an abortion that they would otherwise be willing to perform. If this is what divides us, then it is hard to see an end to the debate any time soon, at least so long as pregnancy remains something that can happen only inside a woman's body.

1 comment:

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