Parental Involvement Laws and New Governance

Abstract

The stated objectives of parental involvement laws are to protect the health and well-being of minors and to encourage dialogue between parents and adolescents about pregnancy options. Yet decades of studies urge that parental involvement laws do not meet these purposes. Adding to this research, a new ethnography of professionals who implement parental involvement statutes seeks to demonstrate how notice and consent laws and the judicial bypass work in practice. Over the last two years, a non-profit organization, the National Partnership for Women & Families, interviewed 155 lawyers, advocates, judges, health care providers, and court clerks who assist minors in every state with parental notice or consent laws and judicial bypass petitions. The National Partnership's final report makes clear that a significant population of minors cannot consult their parents for logistical or personal reasons, and, for that cohort, the judicial bypass is not a meaningful alternative. In only a few places can the judicial bypass system be described as a functional process in which most minors, from any part of a state, can seek a bypass without significant delay, cost, or embarrassment.

This Article explains why typical proposals for reform --to revise statutory language, to change public perceptions of the "good parent" and "bad teen," or to challenge aspects of consent or notice laws in court -- have limited potential. I argue that those interested in easing the burden that parental involvement laws impose on young women might intervene at the level of informal decision-making. Insights from new governance scholarship show how influencing local relationships among gatekeepers of services can help overcome obstacles to reform. Generally, new governance is a method of law reform that "responds to critiques of rights-based, state-centered, top-down litigative and regulatory strategies by turning toward experimental, flexible, collaborative public-private partnerships and by locating lawyers as problem solvers rather than as traditional advocates." The problem-solving method of new governance provides an approach that can address the complex web of state oversight, parental control, social stigma, and the discretion of individuallegal actors. I temper my suggestion that new governance could play a role in reform with an assessment of its risks and limitations. My purpose is not to suggest that new governance is a seamless fit for parental involvement laws or provides a clear, unproblematic path for change. My intent, rather, is to advance the current conversation among those interested in increasing minors' access to reproductive health care services and improving the operation of parental involvement laws.