Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law

I. INTRODUCTION II. JUDICIAL BYPASS HEARINGS A. Origins B. Operation 1. The Petition 2. Procedural Features 3. Maturity and Best Interest Standards 4. Burden of Proof and Standard of Review C. Outcomes and the Nature of Harm III. HARM TO MINORS A. The Risks of Delay B. The Risk of Public Exposure C. Humiliation, Dread, and the Demands of Dignity 1. Humiliation 2. Terror and Testimony 3. Dignity 4. The Indignity of Exclusion IV. COMPELLING NARRATIVE A. Pardon Tales B. Bypass Hearings and the Constraints of Genre 1. Manner and Maturity 2. The Structure of Stealth 3. Gender and Narrative Demand C. The Expression of Remorse V. PURPOSE AND PUNISHMENT A. Deterrence B. Counseling and Consent C. Bypass Symbolism D. Punishment VI. HARM TO THE LEGAL PROCESS A. Fault-Based Divorce: Hearings as Sham B. HUAC and Shame C. Fairness and Legitimacy D. The Dignitarian Luck of the Draw E. The Illegitimacy of Forum Exclusion VII. ABORTION POLITICS AND BYPASS PROCESSES VIII. CONCLUSION I. INTRODUCTION How might we think about reforming abortion regulation in a world in which the basic legality of abortion may, as a matter of constitutional law, at last be relatively secure? I have in mind the era just upon us in which the overturn of Roe v. Wade (1) no longer looms so threateningly over the reproductive rights community in the United States and is no longer necessarily its central concern. There is now a general and seemingly well-founded optimism that under the Obama administration, those who support and rely on reproductive rights will not have to pray nightly for the health of Supreme Court justices (although we wish them well). As Senator Obama said in 2008 on the 35th anniversary of Roe: With one more vacancy on the Supreme Court, we could be looking at a majority hostile to a woman's fundamental right to choose for the first time since Roe v. Wade. The next president may be asked to nominate that Supreme Court justice. That is what is at stake in this election. (2) It appears that since January 20, 2009, Justice Stevens may, if he wishes, hang out rather than hang on, and the rest of us may now be more confident that vacancies on the court are less likely to put the basic right to abortion in jeopardy. President Obama's first Supreme Court appointment, Sonia Sotomayor, characterized the Court's decision in Planned Parenthood vs. Casey as "settled" and "the precedent of the court" during her confirmation hearings. (3) While confidence in a justice's future decisions is never assured, it seems, for the moment anyway, that Roe will not be overturned. (4) Despite the relief that flows from this greater sense of reproductive security, much legal work still needs to be done to secure healthier reproductive lives for women. Some of that work will remain constitutionally focused. Without the prospect of overturning Roe in the immediate future, pro-life legislators may focus ever more vigorously on whittling down women's access to abortion through the targeted hyper-regulation of abortion provision, access, and consent. (5) Ever since the stingy affirmance of Roe in Planned Parenthood v. Casey, (6) the Supreme Court has affirmed the constitutionality of almost every regulatory requirement imposed by states on abortion patients, clinics, and doctors. (7) Constant vigilance over Roe may no longer be required, but lawyers still have plenty to do defending its current boundaries. Yet constitutional advocacy is only part of the project for a pro-choice post-Roe agenda. (8) This Article considers the possibilities for statutory abortion reform and seeks to extend the audience to include legislatures in addition to courts. Are there arguments that have been obscured or overlooked in recent years but that, when brought more clearly to light, might appeal to those who enact statutes or to the citizens who vote for them? …