- The Washington Times - Wednesday, September 6, 2000

With unmistakable pro-abortion overtones, the New Jersey Supreme Court held last month in Planned Parenthood of Central New Jersey vs. Farmer (Aug. 15, 2000) that the state constitution prohibited laws offering a parent an opportunity to dissuade an unemancipated daughter from choosing abortion over childbirth.

The army of self-proclaimed "pro-choice" organizations and individuals who successfully assaulted New Jersey's modest Parental Notification for Abortion Act (PNAA) similarly betrayed a "pro-abortion" bias. Isn't the public deceived when these litigants and their soulmates they insist that all they wish to defend is a woman's fully informed right to choose, but are neutral as to the choice?

The PNAA imposed a featherweight burden on the abortion decisions of minors. It required a physician to defer performing the procedure for 48 hours, with the clock beginning to run 24 hours after notice had been sent to a parent by mail. The notice and waiting rules, however, contained broad exceptions: medical emergencies; or a speedy and anonymous judicial certification that the minor was either mature, vulnerable to parental abuse, or would be best served by an abortion. Further, a notarized statement from a parent that he or she had been informed of the abortion choice also overrode the notice and waiting period stipulations.

Extraordinary lengths were taken in the Act to make the judicial certification procedure for the typically inexperienced minor patient friendly. Court-appointed counsel was provided to the mother. Certification applications required decisions within 48 hours, and failure to meet the deadline was treated as approval. Appellate review of denials was comparably supersonic. Fact sheets written in simple language explained the notice and waiver abortion rules. Finally, members of county Judicial Bypass Teams were tasked with shepherding minors through any confusing or intimidating PNAA provisions.

The New Jersey legislature found the Act would protect immature minors from ill-considered abortion decisions and strengthen the parental child-rearing role. As any parent knows, adolescent daughters and sons are ordinarily ill-equipped to make psychologically or emotionally traumatic decisions regarding sex, marriage, abortion or the like. Parental counseling on these matters, whether sought or unsought, may help to save them from their own foolishness or myopia. The New Jersey Supreme Court in Planned Parenthood of Central New Jersey, however, wrote off parental counseling that might dissuade daughters from abortions as an unworthy objective. Writing for a thin 4-3 majority, Chief Justice Deborah T. Poritz maligned the PNAA as "affirmatively tip[ping] the scale against the right to choose" when all the law encouraged was fully informed and considered abortion decisions. The court itself was guilty of tipping the scale against adolescent childbirths and in favor of abortions.

Article I, paragraph 1 of New Jersey's constitution declares in lofty and open-ended language: "All persons are by nature free and independent, and have certain natural and unalienable rights, among which are those of enjoying and defending life and liberty, of acquiring, possessing and protecting property, and of pursuing and obtaining safety and happiness." These words, to judges, are more like musical pitch than libretto, setting a tone favoring liberty but falling far short from particularizing what statutory restraints are reasonable and permissible.

The PNAA undoubtedly pinched a minor's liberty to obtain an abortion, but the justification seemed compelling. At stake is the morally and emotionally wrenching question of taking life or potential life, which agonizes even thoughtful adults. Typically headstrong and immature youths are much less able to cope with abortion decisions, and might thus profit by parental comfort or advice. Minors may find such guidance distasteful when initially offered, but appreciate the abortion encounter after it has concluded. Human nature, especially in youths, instinctively resists opposition to what is desired at the moment.

The PNAA, moreover, only required parental notice and a modest waiting period in non-emergency cases. And even then, notice could be avoided if the minor was mature, or a judge concluded that an abortion would occasion more good than harm, or the adolescent mother risked parental abuse, or a notarized parental affirmation of notice was presented.

Chief Justice Poritz, however, manufactured an abortion burden from trifles light as air to invalidate the Act. It was said that locating a notary, filling in the notice fact sheet, and presenting the document were arduous; that young mothers might be stressed by the difficulty of discussing PNAA procedures with her court-appointed attorney without arousing parental or classmate suspicions; that attorney consultations take time and must be scheduled, even when done by telephone; that arranging travel to a courthouse might be complicated; and that the inevitable delay in obtaining judicial approval for an abortion without parental notice may raise the cost and health risks of the procedure.

But youths surmount these types of trivialities effortlessly when anything they think significant is at issue, like abortion. And the short judicial certification delay before an abortion is performed to ensure informed and voluntary decisions seemed irreproachable because abortions terminate life or potential life which the state has a right to protect.

After the clearing of thick legal fog, the Planned Parenthood of Central New Jersey decision amounts to no more than a conviction, shared by the challengers of the Parental Notification for Abortion Act, that abortions for minors are better than childbirths. Is that attitude pro-abortion or pro-choice?

Bruce Fein is a lawyer and free-lance writer specializing in legal issues.

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