As news was breaking about the murder of Dr. George Tiller, and abortion provider and pro-choice activist, I sat down to read Helena Silverstein’s Girls On the Stand: How Courts Fail Pregnant Minors.
A professor of government and law, Silverstein details the real-world effects of parental notification and consent laws have on the ability of minors to exercise their rights to abortion access as currently granted under U.S. law. Specifically, Sliverstein is interested in the viability of the “judicial bypass” option that the U.S. Supreme Court requires such parental involvement laws to contain: that is, if a pregnant minor does not wish to inform her parents of her pregnancy, she must have the ability to petition, confidentially and with the help of court-appointed counsel, for an exception. Focusing on the practical workings of the judicial bypass procedure in three states, Alabama, Pennsylvania, and Tennessee, Silverstein found that pregnant minors faced ignorance, bureaucracy and outright ideological obstruction in their pursuit of timely and medically-safe abortions.
For example, after systematically phoning courts in her three targeted states for information on how to initiate a judicial bypass, Silverstein and her research assistants faced a wide range of responses, from the adequate to the under-informed to the intentionally misleading. Whether malicious in intent, answers to an initial query that fail to clearly affirm the minor’s right to confidentiality, a timely hearing, and most importantly free assistance in navigating the court system, “portray the bypass as a road the minor must travel alone and risk sacrificing the minor’s right to her own vulnerability” (61). Even more egregiously, some anti-abortion judges, with the discretion granted to them under current law, have employed such intimidation tactics as requiring pro-life, Christian counseling for all minors seeking the bypass, or even appointing a guardian for the fetus who has the responsibility of challenging the petitioner at the hearing and attempting to persuade her against choosing an abortion.
“The argument of this book,” Silverstein writes, “is directed at those who have made a good-faith compromise on the parental involvement issue,” seeking to ensure that minors wishing to terminate pregnancies are given the information and support they need, both pre- and post-abortion, while still protecting their constitutional rights to privacy and bodily autonomy (157).
Those compromisers, a group to which I once belonged, have in mind a picture of what a world with such mandates would look like. Pregnant minors will be encouraged to seek guidance from parents, and courts will protect those who choose otherwise. We have seen, though [in this book], that many courts are not prepared to do their duty, whether due to ignorance, recalcitrance, or incompetence. We have seen judges who are willing to employ hardball tactics to get minors to bend to their will. Whatever the Supreme Court might decide about how much implementation failure is too much or what obstacles too burdensome, it is up to the good-faith compromiser to decide whether the reality of parental involvement mandates sufficiently approximates her picture [of reality] to warrant continued support. This is a personal decision. To my mind the case is clear. I invite the reader to be her own judge (157).
Sadly, Silverstein’s book is not as narratively compelling as I would have hoped, even to someone like myself whose heart usually quickens a the prospect of a book or an article dealing with the intersection of feminism and the law. Her prose feels clunky, and the reporting of her research — while providing the evidence necessary to make her case — nonetheless caused me eyes to begin glazing over, even at a brief 180 pages (excepting endnotes and bibliography). Given its narrow scope, a meaningful reading likely requires a fair amount of background knowledge in recent abortion politics and law.
Still, I’m glad to add it to my repertoire of resources on reproductive health and rights. The struggle over women’s right to bodily autonomy is not going to disappear any time soon, as Tiller’s murder today dramatically and tragically illustrates — and young women are among those particularly vulnerable to having their reproductive choices taken from them, given their relatively lack of experience and financial resources. Silverstein reminds us not to assume that what looks good on paper will likewise be sound in actual practice.