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Abstract

The United States Supreme Court discarded five decades of established federal constitutional doctrine with its decision in Dobbs v. Jackson Women’s Health Organization. Following Dobbs, legislators in some states rushed to restrict the decisions of pregnant persons. Litigation, executive actions, and voter initiatives, including attempts to amend state constitutions, quickly followed. At the time of this writing, access to abortion is severely restricted in large swaths of the country. Increasing numbers of pregnant persons have sought out-of-state services through telehealth or cross-border travel. Some states have created new forms of criminal or civil liability in an effort to prevent its residents from accessing these services, while other states have adopted laws to shield persons who seek, or assist those seeking, abortion within their borders.

This Article examines some of the impacts these dramatic changes in the legal landscape are having, or are likely to have, on minors who wish to terminate their pregnancies. Even before Dobbs, it was not easy for minors to access safe and legal abortion. Access has become exponentially more challenging in the past several years.

Decades of health and social science research demonstrate that teen pregnancy, childbearing, and parenthood dramatically alter the lifelong opportunities available to the young parents and their offspring, risking their physical and mental health, their educational options, and their socioeconomic status. These events heighten the likelihood of future involvement of these families with the child welfare and criminal justice systems, and their needs for public assistance.

Relying in part on philosopher Joel Feinberg’s concept of a child’s right to an open future, this Article asserts that state policies that do not provide minors with the option to terminate a pregnancy, or that create insurmountable obstacles to exercising that choice, constitute the types of “crucial and irrevocable decisions,” made “irreversibly” by others, that dramatically foreclose more favorable potential life trajectories for minors and their offspring. As such, these policies are inconsistent with the parens patriae and police power interests that justify empowering adults to govern the lives of minors.

This Article considers legal frameworks governing health care decisionmaking for children’s health, with particular attention to decisions by minors to terminate their pregnancies. It analyzes the pre-Dobbs regulations of minors’ access to abortion, reviewing constitutional doctrine, legal scholarship, and state policies. It examines the post-Dobbs legal landscape affecting abortion access, such as complete bans, gestational limits, targeted regulation of abortion providers, exceedingly narrow exceptions, burdens on out-of-state travel, penalties on persons who provide aid or assistance to persons seeking abortions, and restrictions on telehealth services and medication abortion. It then focuses on abortion restrictions specifically affecting minors’ access, such as laws governing parental consent and notification, and statutory attempts to block or deter assistance to minors.

After presenting initial observations and data on the impacts on minors of post-Dobbs restrictions, this Article concludes that these restrictions are having, or are likely to have, a disproportionately harsh impact on minors due to their physical and psychological vulnerability, their dependencies on adults, their limited information and resources, and the risks and adverse consequences of teen pregnancy, childbearing, and parenthood. It concludes that young persons’ ability to terminate unwanted pregnancies safely and legally is essential to offering them a future with opportunities for good health, basic education, and financial self-sufficiency and to avoiding a range of adverse consequences that may persist for generations.

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