No One Knows, Does Anyone Care? Conclusions from an Attempt to Study Parental Consent and Notification Laws from a Functionalist Approach

I am aware that some amount of self-referential legal discourse is inherent in an established legal system. However, I find it problematic when this type of discourse overshadows real-world concerns. I therefore attempted a functionalist study of laws mandating parental consent or notification for minors seeking abortions. I chose to study abortion rights because I find it disturbing that legal decisions surrounding such an important - one-third of women will have at least one abortion by age 45 - and controversial issue are rarely discussed in terms of how they affect people, and are instead often framed in purely legal or moral terms. I chose to examine parental consent and notification laws because, as the states vary in their use of these laws, I thought it might be easier to determine their real-world effects through a comparative approach. My research did not produce a clear picture of the effects of parental consent and notification laws, but it did yield two other conclusions: 1) my education has not equipped me to do this type of research and 2) our government, for whom this research should be most important, does not care to conduct it.

Problems in Applying the Functionalist Approach

The two primary difficulties that I had in finding the effects of parental consent and notification laws were 1) finding data that spoke to these effects and 2) interpreting this data once I found it.

First, it was difficult to find relevant data because I have learned to research through Google. Using Google to find statistics on abortion forces one to wade through a wide variety of utterly worthless rants before arriving at anything useful.

After finding relevant studies through the National Institute of Health, I had to do additional research to understand them. Eventually, I was able to understand the NIH studies, but I realized that others who have studied statistics are probably better equipped to understand this type of information than I am.

The studies on parental consent and notification laws do not indicate what effect they have on people. These studies focus on comparing the minor abortion rate in states with and without such laws, with inconclusive results. Although one study indicates that abortion rates among minors drop after the enactment of a parental consent or notification law, a different study indicates that this is possibly accounted for by minors who leave their state to obtain abortions in a state that does not have these laws.

Beyond failing to show the effects of parental consent and notification laws on abortion rates, the studies that I found did not address the wide range of other effects that such laws may have. To truly understand the consequences of these laws, their economic, sociological, and psychological consequences (on groups as well as individuals) would also need to be studied.

Educational Shortcomings Evidenced

I want my education to teach me how forms of oppression work so that I can push back against them. My struggle to research one small issue brought me to a disappointing conclusion: After five years of higher education, I lack not only substantive knowledge in this area, but also the skills to effectively seek it out. I do, however, retain hope for my educational future: If my classes here fail to teach me what I need to learn, and I am unable to convince the administration to accommodate my needs, I will still be able to seek out lawyers who are already doing the work that I want to do, and ply them with coffee and free labor until they agree to help me begin to develop my practice.

Governmental Shortcomings Evidenced

I am aware that human beings are emotional creatures, and that at this point, it is probably impossible to have a scientific, rational, and depoliticized discussion of abortion regulations. However, I do think it is possible, and necessary, to increase our understanding of the effects of these regulations, and to have that understanding inform our discussions. I would like to see an increased national interest in studying abortion regulations from an economic, sociological, and psychological perspective, and I would like to see our governmental officials forced to consider these studies. Our government’s failure to do this is evidenced by the relative dearth of information about the actual effects of abortion regulation, and by the lack of attempt to acquire more. What we get instead is our nation’s decision makers grounding their discussions surrounding abortion in unsupported assertions. These assertions range from conclusory and offensive (the paternalistic language from the Casey court implying that the state is better equipped to decide what is best for a woman’s emotional and psychological well-being than the woman herself) to outright fabricated and genuinely frightening (Senator John Kyl’s statement that abortion services are “well over 90% of what Planned Parenthood does”). I do not wish to delve too deeply into speculation about what, if not actual information, is guiding these debates, although any such speculation that I would make would not reflect favorably on our government’s alleged commitment to the respectful treatment of women. But regardless of what I think may be going on in the heads of government officials, regulating abortion, or for that matter anything, with a willful ignorance of real world consequences is seriously problematic: is there any set of criteria that would allow for a meaningful evaluation of a regulation without knowing what it does? The answer to this question does not inspire confidence in the decision-making process of our nation’s most powerful officials. In fact, it frightens me so much that I cannot allow myself to think about it for too long.

This rewrite deals straightforwardly with the problems experienced in writing the first draft, and for that reason alone is valuable. It would be useful, I think, to give the reader a little more information about how one does do this sort of research as a law student, including how to use the help provided by reference librarians or other collaborators, rather than stopping with the "I've been mistrained to use Google as my basic research tool and I don't have the necessary statistical skills" observation. That we need a "social cognition for lawyers" course offering at the beginning of law school, teaching students how to find out what law's real consequences are instead of just searching for cases, seems to follow naturally from the basic realistic bent of law school since Holmes, but of course we don't. A look back at the curriculum reform effort of 1988 will show we considered, and rejected, this very important measure.

On the substantive front, I remain less than fully convinced by the argument that more research into actual outcomes will improve policy-making. Here a larger dose of Thurman Arnold seems to me indicated. There are those for whom anything that might reduce the frequency of abortions should be done, because every abortion is the murder of an unborn child, and nothing weighs more heavily than saving the life of the "baby." There are those for whom restrictions on access to abortion represent the conscription of women's bodies and women's choices by a state uncommitted to the women's freedom, under the impulsion of unconstitutional religious influences. These are deontological arguments, not consequentialist ones, more or less completely unaffected by evidence as to the effect of specific regulations. Then there are those, elected officials mostly but not exclusively, who don't actually care at all whether strangers have abortions or are prevented from having abortions—secure in the knowledge that their own wives, daughters, and sisters will be able to get whatever care they need—and who hope to benefit personally by gaining power through adherence to one or another of the positions taken by citizens who care. These people also don't respond to evidence about the effect of restrictions. They respond to evidence about the organizational effect of their pro-choice or anti-abortion rhetoric. So where is the actual demand for this information about the realistic consequences of abortion restrictions?