THE SUPREME Court continues to grapple with various aspects of the abortion question, and a set of decisions handed down last week gives evidence of the deep divisions that still plague the court on this issue. Cases decided in the aftermath of Roe v. Wade have tested the power of states to regulate abortion without violating the constitutional right enunciated in 1973. The earliest statutes were transparent attempts by legislatures to make abortion as difficult as possible. Some, for example, required waiting periods or the consent of spouses. Others imposed unnecessary obligations on clinics, hospitals and doctors. More recently, however, the focus has been on minors seeking abortions, their rights and the rights and responsibilities of their parents.
The court has already ruled out statutes that give parents a veto power over a teenager's abortion, but it has sustained parental consent laws if they give minors a way to bypass the requirement by obtaining consent from a judge. In cases from two states last week, the court considered statutes that require only parental notice -- both one-parent and two-parent notice and notice with and without the alternative of a bypass.
Justice Scalia, in dissent, detailed the complicated divisions among the justices on these rather straightforward issues. But the end result, produced by a series of close votes, is that parental notification laws involving one or both parents are constitutional if they include a judicial bypass; two-parent notification without a bypass is unconstitutional, and the constitutionality of a single-parent notification requirement without a bypass is undecided. Teenagers in trouble, not to mention elected legislators, may have difficulty keeping all this straight, but that is now the state of the law.
We think that these rules are too rigid. Family situations are so diverse that such hard and fast general rules are unwise. Bypass provisions soften these laws but complicate the process. Legislators should forgo this kind of legislation.