University of Michigan Law School Scholarship Repository
Abstract
Legally speaking, sexual maturity poses a significant enough liberty interest for a minor to make medical decisions regarding contraceptive medicine or to choose motherhood without parental involvement, but not quite enough for her to obtain an abortion independently. The law incentivizes teenage motherhood by only granting decisional autonomy to those minors who choose to have a child; the minor female\u27s right to procreate vests regardless of her individual maturity. The law discourages teenage abortions by using the choice to terminate a pregnancy to trigger a presumption of immaturity; the minor female\u27s abortion right is pitted against personal autonomy via parental rights. Ultimately, this Article argues that sexually active minors, their children, and their parents all suffer in this reproductive catch-22. This Article contends that the conflict between age of consent laws and minor abortion restrictions is just one illustration of state legislatures\u27 struggles within the greater protecnionist-versus-enablement paradigm. Specifically, this Article argues that laws regulating adolescent sexuality can generally be categorized into one of two types: (1) protectionist, enacting restrictions and protections designed to compensate for minors\u27 categorical immaturity; or (2) enabling, recognizing adult-like capacity and rights in minors as they progress in their overall development. The result of this polarized statutory landscape can only adequately be described as legislative schizophrenia -although devoid of invidious intent, these statutes ultimately hurt minors because they are premised on a flawed paradigm that is unable to coordinate the different political and social goals of state legislatures. This Article argues that by recognizing consensual maturity for intercourse and pregnancy but then rescinding that presumptive maturity only for abortion, states both violate the Constitution and create dangerous public policy. Specifically, states violate legally-consenting minors\u27 substantive due process rights by imposing undue burdens on their abortion access without any legitimate, countervailing immaturity interest. While parental notification and consent laws have been upheld on the grounds of minor immaturity, this Article argues that the recognition of sexual maturity through age of consent laws should also trigger a presumption of maturity for minor abortion rights. This Article further highlights five key policy concerns created by the inconsistent regulation of adolescent sexuality: (1) the encouragement of impulsive adolescent sexual behaviors; (2) the binding of decisional autonomy to pregnancy outcome; (3) the reinforcement of paternalistic gender stereotypes; (4) the punitive, rather than protective, natre of parental involvement and judicial bypass; and (5) the continued hystericization of adolescent sexuality
