Letter to Urge Florida Senate to Reject Forced Parental Consent for Abortion

January 14, 2020

Senator David Simmons
Chair, Committee on Judiciary
The Florida Senate
400 S. Monroe Street
Tallahassee, FL 32399

Re: Senate Bill 404 threatens rights and dignity of adolescent girls

Dear Chair Simmons and Members of the Judiciary Committee,

We write to you on behalf of Human Rights Watch to urge you to vote against Senate Bill (SB) 404, which would force adolescent girls to obtain parental consent for abortion. We appreciate Florida legislators’ interests in protecting the health and well-being of adolescent girls and supporting healthy family communication. However, by changing Florida law from its current requirement that girls notify a parent or guardian before an abortion to requiring them to obtain parental consent, SB 404 will undermine those goals. Florida legislators committed to protecting the rights and dignity of adolescent girls should reject SB 404.

Human Rights Watch is a global human rights organization with offices throughout the world, including in Miami, Florida. We have extensively documented how laws and policies that restrict access to abortion threaten women’s and girls’ health and lives and drive abortion underground, making it less safe.[1]

We have examined the effects of laws requiring adolescent girls to obtain parental authorization for abortion in several US states, including Florida. In Florida, we sought to understand the human rights impacts of Florida Statutes §390.01114 (the Parental Notice of Abortion Act), requiring girls to notify a parent or legal guardian prior to an abortion, or obtain a judicial waiver.

We conducted in-depth phone interviews with three Florida-based medical professionals providing adolescent sexual and reproductive health care, and six attorneys with experience representing adolescent girls seeking judicial waivers for Florida’s parental notification requirement.[2] We also analyzed state, national, and international laws and policies and conducted a review of secondary sources, including public health studies, case law, reports by the American Academy of Pediatrics and other health professional associations, and other sources.

Our findings indicate that changing Florida state law to mandate parental consent for abortion is unnecessary given the state’s existing parental notification requirement, and could seriously threaten the health and human rights of Florida’s adolescent girls.

Mandating Parental Involvement Can Hurt Adolescent Girls

Attentive and loving parents typically provide important guidance to their teenage children. Studies have shown that most adolescent girls voluntarily involve a parent or another trusted adult in their abortion decisions, whether or not the law requires parental authorization.[3] In particular, close and supportive family relationships facilitate parental involvement in adolescent girls’ abortion decisions.[4] A Florida counselor who has conducted reproductive health counseling with adolescent patients for 19 years told Human Rights Watch that the vast majority of adolescent girls seeking abortion care at the Florida clinic where she works involve a parent in their decision before learning about Florida’s parental notification requirement.[5] The counselors we interviewed said they consistently encourage girls to seek advice and support from their parents when they can do so safely.[6]

Florida attorneys and medical providers told Human Rights Watch that when girls are unable to involve a parent in their abortion decision, it is often because they fear violence, being kicked out of the home or alienated from their families, or being forced to continue a pregnancy against their wishes, or because their parents are not part of their lives. In some cases, girls are unable to involve a parent because they are pregnant from rape or incest and/or have been removed from their homes. Mandating parental consent under these circumstances would place girls at serious risk of harm.

Fear of Violence or Alienation

Adriane Isenberg, an attorney in Gainesville, estimated that during her legal career she has represented 50 to 60 adolescent girls seeking judicial waivers under Florida Statutes §390.01114(4) (the Parental Notice of Abortion Act). She said that she represented a 17-year-old girl in 2019 who sought a judicial waiver because she feared that if her stepfather learned she was pregnant, he would beat her. Isenberg said,

Her stepfather had beaten her repeatedly over the years, and she was terrified [that] if she did anything that could be remotely considered problematic, that he would take it out on her in a way that was dangerous to her life. And she felt like her mother was not either able or willing to intervene on her behalf. She felt totally unprotected and very likely to be victimized physically.[7]

Bernard Perlmutter, clinical professor and co-director of the Children and Youth Law Clinic at the University of Miami School of Law, said he represented a 17-year-old girl who had faced abuse by her father for many years. “There was a long history [of violence],” he said. “She was tolerating” living in the home with him until she turned 18 and could live independently and pursue a college education. She sought a judicial waiver because she was “deathly afraid” that telling her father that she was pregnant and wanted an abortion would trigger “horrific retaliatory violence.”[8]

A counselor and advocate with a Florida abortion clinic said that she recently counseled a 14-year-old girl facing an unwanted pregnancy. When she informed the girl about Florida’s parental notification requirement, the girl “was very clear that her parents would either beat her or kick her out of the house” if they learned she was pregnant and wanted an abortion.[9]

Benjamin Stevenson, a Pensacola-based staff attorney with the American Civil Liberties Union of Florida, an affiliate of the national ACLU, said he represented an adolescent girl who sought a judicial waiver because she had suffered physical violence by her parents before learning she was pregnant. He said that she was “in an abusive home setting and had experienced abuse before by the parents and was terrified that this [notifying her parents prior to an abortion] would simply bring on more abuse.” Stevenson estimated that he had represented 15 adolescent girls seeking judicial waivers during his legal career: “The fear that they had, by and large, was not only that their parents would possibly kick them out of the house and alienate them financially, but also alienate them emotionally. That it would cause a significant rift within the family structure.”[10]

Isenberg said the same fears drove many of her clients to seek judicial waivers: “A number of them felt like their parents would absolutely turn their backs on them, and they would be out on street.”[11]

A juvenile law attorney who estimated that she’d represented close to 200 adolescent girls seeking judicial waivers in her career had a similar observation, explaining that her clients feared their parents would “disown them and throw them out of the house.”[12]

Fear of Being Forced to Continue an Unwanted Pregnancy

Another attorney told Human Rights Watch that in her career she had represented about 50 adolescent girls seeking judicial waivers. While some feared being kicked out of the home or isolated financially, she said the majority sought judicial waivers because they feared that their parents would force them to continue an unwanted pregnancy against their wishes. “Almost all of them say, ‘[If I tell my parents], they’ll make me have the baby.’ And they don’t want to have the baby wherever they are in life.”[13]

A juvenile law attorney said that many clients she represented believed that their parents “would never permit them to have an abortion, disagree completely with their child’s decision to do that. And girls know they can’t raise this baby.”[14]

Stevenson of the ACLU of Florida said that clients told him that, “When they have a child, they want to be in a place where they can be the good mother they want to be.”[15]

Several attorneys said they represented adolescent girls who hoped to pursue a college education and felt that continuing a pregnancy and giving birth against their wishes would require them to alter their educational and career goals significantly.[16]

Parents Who are Not Involved in a Girl’s Life

Interviewees told Human Rights Watch about cases in which girls’ parents were not involved in their lives, making it impossible to notify a parent before an abortion. An obstetrician-gynecologist said:

I’ve seen a girl come in with her partner, she’s not living at home, they’ve run away, been kicked out, or moved out. She doesn’t have a relationship with her parents, one parent is dead and the other one is not involved…. [For her], parental consent was not even an option.[17]

One attorney said she represented a girl whose mother had kicked her out of the home. The girl’s father was in prison and she had no contact with him. Though she had other supportive adults in her life, she had to go before a judge to seek a judicial waiver of the state’s parental notification requirement.[18]  

A counselor said, “Some patients’ parents don’t live in this country. They’re here without parents and living with an aunt or something. They have to seek judicial bypass.”[19]

Bernard Perlmutter with the Children and Youth Law Clinic at the University of Miami School of Law estimated that he has represented 15 girls seeking judicial waivers since Florida’s Parental Notice of Abortion Act took effect, most of them in foster care. Perlmutter explained that Florida’s Department of Children and Families cannot act as a parent or legal guardian to satisfy the parental notification for abortion requirement, so if girls in foster care feel unable to notify their legal parent or guardian, or if the biological parents’ parental rights have been terminated, they must seek judicial waivers.[20]

Perlmutter said,

Not a single one of the foster care teenagers [I’ve represented for judicial waivers] had an ongoing healthy relationship with her parents. They come into the foster care system very traumatized. Some are victims of severe neglect. Some of them are victims of sexual predation, or victims of sex trafficking at one point or another. Their relationships with their [biological] parents are not wholesome and strong. That’s why they are in state custody.[21]

Consequences for Survivors of Sexual Violence

Notifying a parent before an abortion can be particularly difficult for girls pregnant from rape or incest. Two attorneys said they had represented girls who were pregnant from rape or incest and sought judicial waivers because they had been removed from their parents’ care and were under the care of the state Department of Children and Families. Even in these circumstances, the state is unable to act as a parent or legal guardian to satisfy the parental notification for abortion requirement, so girls are forced to seek judicial waivers.[22]

The Legal Aid Society of Palm Beach County[23] has represented girls in the delinquency or dependency system who sought judicial waivers for Florida’s parental notification for abortion requirement, including a 10-year-old survivor of human trafficking who was pregnant from rape. Kristen Flynn, an attorney with the organization’s Juvenile Advocacy Project, has represented girls who were pregnant from rape or incest and removed from their parents’ care. She said forcing girls in these situations to appear before a judge to seek a judicial waiver of the state’s parental notification requirement can be retraumatizing. She said that any child who has been removed from the home and placed in state care has a high risk of experiencing trauma-related psychological and emotional consequences, such as anxiety disorders. When a girl has been removed from the home due to a pregnancy from sexual violence, appearing in court to answer questions about why they cannot notify their parents can be extremely distressing. “For anyone who is a victim of assault, one of the most difficult things is to relive those moments [of violence],” Flynn said. “You take a child living through such strong trauma and expect them to answer questions [about abortion in front of a judge], … it’s adding insult to injury. We’re continually asking kids to relive the trauma.”[24]

Another attorney represented a 15-year-old girl who became pregnant after being raped by an uncle. Her mother was not part of her life, and her father blamed her for the abuse she suffered. She was removed from her father’s home due to the abuse and forced to seek a judicial waiver in order to satisfy Florida’s parental notification for abortion requirement.[25]

Limits of the Judicial Bypass Process

For an adolescent girl, the judicial bypass process can be overwhelming, frightening, confusing, and time-consuming. Some may be unable to navigate it. “There are lots of hurdles,” one attorney said. “It’s a huge barrier.”[26]

To initiate the judicial bypass process, girls typically have to go in person to the office of their county’s Clerk of Court, find their way to the appropriate division handling these cases, request a court-appointed attorney if they do not already have one, and demonstrate to a judge that they are sufficiently mature to make the decision to terminate an unwanted pregnancy without involving their parents, or that involving their parents is not in their best interest.[27] (In some circumstances, girls are able to find an attorney before approaching the clerk’s office, but attorneys interviewed by Human Rights Watch suggested this was rare.) When girls fear that parental involvement could trigger violence or alienation from their families, they have to find ways to initiate the process without their parents finding out, including securing transportation or arranging time away from school.[28]

Finding accurate information about judicial bypass in Florida is difficult. Stevenson of the ACLU of Florida said that a recent client recounted her struggle to find reliable information about seeking a judicial waiver. She searched the internet, sought information from a health clinic, and contacted the clerk’s office, but she was unable to access complete information from any of these sources. “There was no single place she could get information on what the process was, where to go, and how to go about this,” Stevenson said.[29]

The organization If/When/How: Lawyering for Reproductive Justice recently evaluated the preparedness of Florida’s Clerks of Court to help adolescent girls navigate the judicial bypass process. Researchers called county courts and sought information regarding the judicial bypass process, including questions related to confidentiality, access to court-appointed counsel, and fees, and found that of the state’s 67 counties, only 11 were classified as prepared or knowledgeable about the process. Fifteen counties were classified as semi-prepared, 37 counties were unprepared, and 4 counties were completely unreachable.[30]

A family law attorney described how overwhelming and uncertain the process can be for adolescent girls:

It’s daunting. They don’t know how long it’s going to take. Will they be here an hour, or all day, or will they have to come back? They might be missing school. What if the school calls their parent and the parent asks why they were not at school? There are so many obstacles to figure out how to deal with before they even go before the judge.[31]

A juvenile law attorney described what her clients typically face:

They get there [to the courthouse] and sometimes they have to wait, and either they have to get back to school, or they’re going to be late for school, or they left school early. If the judge can’t see them, they have to come back the next day, and sometimes they can’t miss class again. Scheduling is a problem for them. And a couple of them are trying hard to make up excuses [to explain to their parents] why they’re not home on time from school.[32]

While the overwhelming majority of petitions by minors seeking abortions are granted, according to data from the Office of the State Courts Administrator,[33] adolescent girls may still find the process frightening and be deterred from going through it. The process of appearing before a judge to seek a judicial waiver can be intimidating for an adolescent girl, regardless of the professionalism and sensitivity of Florida’s judges, attorneys, clerks, and court staff. One attorney described the emotional state of her clients as “very anxious. Their overriding fear is that the judge is going to deny it [their petition].”[34]

The process can require adolescent girls to answer intimate and personal questions about their health and lives. “It’s a lot for anyone to be able to do, much less a child,” said Kristen Flynn of the Legal Aid Society of Palm Beach County.[35] Other attorneys said that they believed their clients experienced stress, anxiety, or trauma around the judicial bypass process.[36]

Perlmutter from the University of Miami Children and Youth Law Clinic said his clients were distressed and nervous about the process: “They are terrified. Every single one of them. Even the girls who are used to going to dependency court, which is almost routine in the cases of kids in foster care…. Those [court appearances] are nothing compared to the invasion of privacy and intimate questioning” involved in a judicial hearing for abortion.[37]

Consequences of Mandating Parental Involvement

Public health research in the United States has shown that mandated parental involvement, whether through notification or consent, can push adolescents to delay accessing abortion care, leading to riskier or more complicated abortions. Delays in care can be especially harmful to adolescent girls, as they often suspect pregnancy later than adult women, and take longer to confirm a suspected pregnancy.^[38] The problems accessing the current judicial bypass process, and the psychological and emotional impacts that process inflicts on adolescent girls, suggest that a judicial bypass system does not mitigate the harms caused by mandated parental involvement.

A recent study of the effects of a Massachusetts parental consent for abortion law found that girls who obtained parental consent had an abortion an average of 8.6 days after first calling to schedule an abortion, while girls who obtained judicial waivers had an abortion an average of 14.8 days after initial contact. Though legal induced abortion is very safe – and much safer than childbirth[39] – delaying abortion to later gestational stages can increase the risk of complications.[40] The study found “minors with judicial bypass also had higher odds of becoming ineligible for medication abortion between the day of first call and the day of procedure,” meaning their reproductive healthcare options were limited.^[41] Many women and girls may prefer medication abortion, as it is noninvasive and can allow patients more flexibility and privacy.[42]

Analysis of statewide data in Texas before and after a parental notification law took effect in 2000 found that some girls required to obtain consent would, if possible, wait until they had turned 18 to have an abortion to avoid the requirement, even though later abortions are more complicated and often more expensive and difficult to access. The study found a 6 percent increase in abortions obtained at age 18 by adolescents who became pregnant at 17 years and 8 months, and a 13 percent increase in abortions obtained at 18 by those who became pregnant at 17 years and 9 months. The rate of second-trimester abortion in these groups increased by 21 percent, while there was no increase in second-trimester abortion among younger adolescents who would not have been able to delay abortion until age 18. The study concluded, “Some minors postpone abortion until the second or even third trimester of pregnancy to circumvent parental notification requirements.”^[43]

International Human Rights Standards

Laws requiring parental authorization for abortion pose a barrier to adolescent girls’ access to abortion and may threaten or undermine several rights protected under international human rights law, including girls’ rights to life, highest attainable standard of health, privacy and medical confidentiality, freedom from discrimination and from cruel, inhuman or degrading treatment, as well as their rights to be heard and to decide the number and spacing of children.[44] United Nations treaty bodies and human rights experts have consistently called for the removal of barriers that deny women and girls access to safe and legal abortion and have commented specifically on parental authorization requirements posing a barrier to abortion care.[45] In particular, the UN Committee on the Rights of the Child, which monitors the implementation of the Convention on the Rights of the Child, has noted that “the risk of death and disease during the adolescent years is real, including from preventable causes such as … unsafe abortions,” and urged governments to “ensure that girls have access to safe abortion and post-abortion services, review legislation with a view to guaranteeing the best interests of pregnant adolescents and ensure that their views are always heard and respected in abortion-related decisions.”[46]

Join Medical Experts in Rejecting Forced Parental Consent

Prominent health professionals’ organizations believe that adolescents should not be compelled or required to involve parents in their abortion decisions.[47] Even without a legal requirement, medical providers can encourage parental involvement when it is in a child’s best interests.

In a 2017 literature review and policy statement, the American Academy of Pediatrics stated:

Genuine concern for the best interests of minors argues strongly against mandatory parental consent and notification laws. Although the stated intent of mandatory parental consent laws is to enhance family communication and parental responsibility, there is no supporting evidence that the laws have these effects. No evidence exists that legislation mandating parental involvement against the adolescent’s wishes has any added benefit in improving productive family communication or affecting the outcome of the decision. There is evidence that such legislation may have an adverse impact on some families and that it increases the risk of medical and psychological harm to the adolescent. Judicial bypass provisions do not ameliorate the risk and may delay access to safe and appropriate care, making it a later, more complicated procedure.[48]

We respectfully urge you to consider the cases and evidence described above and the complicated and often dire circumstances that leave some adolescent girls unable to involve their parents in abortion decisions, and to vote “no” on SB 404. Given the onerous parental notification requirement already in effect in Florida, and the evidence that mandating parental involvement can be a serious barrier to timely health care, we urge you to reject forced parental consent and focus instead on enacting policies to facilitate greater access to comprehensive sexual and reproductive health information and services for adolescents.

Voting against SB 404 will affirm the rights and dignity of Florida’s adolescent girls.

We request that this statement be included in the record of the committee’s proceedings.

Sincerely,

Zama Neff
Executive Director
Children’s Rights Division
Human Rights Watch

Carine Chehab
Miami Director
Human Rights Watch