Young women's access to abortion and contraception, 1960-present



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Young women's access to abortion and contraception,

1960-present

Caitlin Knowles Myers

Middlebury College and IZA

December 2014



Introduction
Over the past fifty years, young women have experienced dramatic increases in access to reproductive control technologies. In 1960, the year that the birth control pill was introduced, unmarried women under the age of 21 who had not previously given birth were almost universally denied confidential access to “the pill” as well as other forms of prescription contraception. By 1980, not only had young women gained access to confidential contraceptive services in all states, but abortion also had been legalized, and young women could consent to it in most states as well. Minors’ access to reproductive control has remained a highly charged political issue, however, and between 1980 and 2010 nearly every state enacted one or more laws attempting to limit minors’ ability to obtain reproductive services—usually abortion—without a parents’ involvement.
An expansive empirical literature has attempted to inform the contentious debate surrounding young women’s access to reproductive control by addressing the causal effects of the policy environment on outcomes including sexual behavior, fertility, marriage, educational attainment, labor supply, and earnings. The most careful research designs have been quasi-experimental in nature, relying on state-level variation in reproductive policies to plausibly isolate causal effects. These researchers compare changes in outcomes between one or more “experimental” states that enacted new policies to changes in one or more “control” states that did not, testing the hypothesis that a change in the legal environment resulted in a change in the outcome relative to the control state(s). Particularly when implemented with data spanning many states and years, this approach requires careful and comprehensive coding of state policy environments over time.
To my knowledge, no single researcher has attempted to code young women’s access to both prescription contraception and legal abortion over the past fifty years, and, dismayingly, the snapshots of access to one and/or the other form of reproductive control in individual papers vary substantially. Four papers on young women’s confidential access to the pill in the sixties and seventies, for instance, differ for 35 of 51 states and the District of Columbia on the year in which a legal change first granted teens the right to consent to the pill.1 Researchers also vary in which states they consider “repeal” states that legalized abortion prior to Roe v. Wade, and on whether parental involvement laws were enforced in individual states in more recent decades.2
In this paper I attempt to provide a comprehensive review of the legal environment governing the ability of young unmarried women to consent to the pill and to abortion. I begin in Section I with a broad overview of the legal environment governing the ability of physicians to provide the pill and abortion services legally to adult women and to women under age 21 without parental consent. Because a series of landmark U.S. Supreme Court rulings between 1976 and 1979 served to reverse the previously-governing common law precedent regarding minors’ default rights to consent to reproductive care, I divide the overview of young women’s rights into two periods: 1960-1979 and 1980-2010. In Section II, I describe and present tables summarizing my suggested coding of the years in which legal changes affected adults’ and minors’ ability to access to contraception and abortion. In Section III, I provide more detailed profiles of each state based on my own review of primary and secondary sources related to the legal environment. In Section IV, I attempt to reconcile the differences in coding across several prominent papers in the literature.
Section I: Overview of laws and judicial rulings relating to young women's access to abortion and contraception
The introduction of the birth control pill

The FDA approved Enovid, the first oral contraceptive, for the treatment of menstrual disorders in 1957. Three years later half a million women were already “on the pill” when the FDA approved it for contraceptive purposes on June 23, 1960. By 1962 approximately 1.2 million married women were on the pill, and this grew to 6.5 million married women by 1965.3


The pill was not immediately available in all states. The federal Comstock Act, which had once prohibited the distribution of contraceptives across state laws, had been invalidated by the time that the pill was introduced, but many states continued to enforce “little Comstock” laws that restricted the advertisement, sale, and/or use of contraceptives within those states. On June 7, 1965, the U.S. Supreme court ruling in Griswold v. Connecticut recognized the right of married people to use birth control without government interference.4 Seven years later in Eisenstadt v. Baird the court struck down a Massachusetts law restricting access to birth control for unmarried people, stating that unmarried people have the same right to privacy as married ones.5 The Court's recognition of a constitutional right to privacy in contraceptive decisions altered enforcement of and compliance with state Comstock laws, and in the years following these rulings many states repealed or substantially liberalized their anti-contraception laws. After 1965, new state laws regarding contraception were generally affirmative.6

The legalization of abortion

Abortion became legal nation-wide on January 22, 1973 when the Supreme Court ruled in Roe v. Wade and Doe v. Bolton that women have a fundamental constitutional right to privacy in choosing to abort a fetus.7 Prior to these rulings, abortion had been legalized in five "repeal" states as well as the District of Columbia beginning in 1970.8 In addition, thirteen "reform" states had adopted provisions resembling those set forth by the American Law Institute in the Moral Penal Code (MPC). These reform laws made abortion legal if performed by a physician because of substantial risk that continuing the pregnancy would cause grave physical or mental impairment or death of the woman, or the fetus would be born with a grave physical or mental defect or in cases where the pregnancy resulted from rape or incest.9 In the remaining states, abortion generally was prohibited except to save the life of the mother.


The Centers for Disease Control began collecting abortion surveillance data on legally induced abortions in 1969.10 By the beginning of 1971, the CDC was receiving information from 17 state health departments and from one or more hospitals in 8 other states and the District of Columbia. The reported number of legally induced abortions and the abortion ratio (abortions per 1,000 live births) for these states are presented in Table 1. The variation in reported legal abortions among the reform states is notable; abortion ratios range from 13.7 in South Carolina to 277.1 in Kansas, the latter figure exceeding the abortion ratio in three repeal states. Some of the variation in legal abortion ratios among reform states likely reflects differences in reporting requirements and accuracy as well as inter-state travel from neighboring states. It likely also reflects differences in how leniently the mental health standard was applied by physicians and therapeutic abortion committees. In Maryland, one of the reform states with a high abortion ratio, mental health was the indication for 96 percent of legal abortions performed in the first six months of 1971.11 In Colorado, another reform state with a high abortion ratio, the Denver General Hospital Therapeutic Abortion Board approved 62 percent of applications for therapeutic abortions, the majority for mental health reasons.12
Anecdotal evidence based on providers’ accounts also suggests substantial inter-state and even inter-hospital variation in the ease with which physicians could obtain approval to perform abortions under mental health standards. Victor Black, a physician in California at the time that the state enacted abortion reforms is quoted by Carole Joffe in her book chronicling first-hand accounts of abortion providers as saying that as a result of the reform “the floodgates were opened…We found three of four sympathetic doctors in the area that agreed to see these patients immediately and always agreed that the patient needed an abortion. All had the same diagnosis: `situational anxiety.’ These were normal women, in my opinion, with no psychiatric problems.”13 Other providers, however, indicated to Joffe that dealing with abortion committees was frustrating, time-consuming, and that many boards were extremely reluctant to approve abortions. One physician quoted in Joffe indicated that he was reluctant to perform even approved abortions because he feared a zealous anti-abortion activist might still try to push prosecution jeopardizing his medical license.14


Young women's ability to consent to contraception and abortion, 1960-1979

Under common law, informed consent is necessary for a physician to provide medical services, and minors are generally considered incapable of providing informed consent to medical care, including contraception. Accordingly, at the time of the introduction of the birth control pill, unmarried women under the age of majority—21 in most states— who had not previously given birth generally were denied the right to confidential access to contraception.15 Exceptions arose in states that had enacted medical consent statutes specifically granting minors capacity to consent to medical care and in states in which the legislature or courts had recognized a mature minor doctrine whereby a minor can consent to medical care if she is judged capable of understanding the nature and potential consequences of treatment. 16


By the mid-seventies, most states had lowered the age of majority to 18, permitting women aged 18 and over to consent to contraception and, once it was legalized, to abortion as well. Access to contraception and abortion for women under the age of majority continued to depend

on the presence of state mature minor doctrines or other laws granting minors the right to consent to medical care. By 1979, 27 states had medical consent laws and/or mature minor laws that affirmed minors’ ability to consent to contraception. In contrast to this affirmative trend for contraception, legislation related to minors’ access to abortion was more mixed. While some medical consent laws permitted minors to consent to abortion, many, particularly those passed after 1973, excluded abortion from the services to which a pregnant minor could consent. Other states enacted parental notification and/or consent requirements when abortion became legal, which served to explicitly restrict minors’ confidential access.


Minors also gained increasing access to contraception through federally-funded family planning clinics. On December 24, 1970 Title X of the federal Public Health Service Act was signed into law, establishing a program of federally-funded family planning clinics that were required to make contraceptive services available to "all persons desiring such services…without regard to religion, creed, age, sex, parity, or marital status."17 Program regulations adopted in 1972 expressly protected the confidentiality of patients.18 In 1978, Congress, which was concerned that minors were not taking advantage of the services offered by these clinics, amended the Act to explicitly mandate Title X to provide confidential contraception services to adolescents.19 In 1981 Title X was again amended to "encourage family participation" under the grants. Pursuant to that language and with the encouragement of the Reagan administration, the Department of Health and Human Services adopted regulations mandating that parents be notified with ten days of the prescription of contraceptives to their minor children at Title X clinics. This rule, commonly known as the "Squeal Rule" was challenged The U.S. Court of Appeals and struck down.20 Currently more than 1/3 of teenagers who visit reproductive health clinics obtain services at a Title X clinic.21
As a result of the timing of the introduction of the contraceptive pill, the legalization of abortion and of distinctions made in states laws between minors' ability to consent to each, in a given state in a given year between 1960 and 1976, a minor seeking reproductive services might be legally able to consent to neither contraception or abortion, to both, or to one and not the other. Three Supreme decision in the late seventies—Planned Parenthood v. Danforth (1976), Carey v. Population Services International (1977), and Bellotti v. Baird (1979)—helped to establish guidelines about the types of restrictions that could be imposed on minors seeking reproductive services and to clarify minors' ability to consent absent an enabling statute.
In 1976 in Planned Parenthood v. Danforth, the court ruled that a Missouri parental consent law for abortion was unconstitutional, stating that a state does not "have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of a physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding consent."22 This ruling established that states may not impose a blanket prohibition on minors seeking abortion, nor can they impose parental consent laws that do not have a bypass option. The ruling invalidated parental consent laws in a number of states that did not contain a judicial bypass option, although some of these states did not immediately cease enforcing them.23
The following year in Carey v. Population Services International, the Supreme Court declared a New York State statute that prohibited the sale or distribution of contraceptives to minors under 16 unconstitutional with respect to non-prescription contraceptives. The court affirmed that, like adults, minors have a right to privacy in choosing whether to "bear of beget a child," and that, just as a state could not impose a blanket prohibition on minors seeking abortions, it similarly could not prohibit the distribution of contraception to minors.24 Although the ruling specifically regarded non-prescription contraceptives, which Population Services International manufactured, the court's reasoning suggested that its conclusions would also apply to prescription contraceptives.
In 1979 in Bellotti v. Baird the court offered more detailed guidance on what types of parental involvement requirements could be imposed on minors seeking abortions. It clarified that a bypass procedure must allow the judge to rule in an immature minor's interest or to determine that a minor is mature enough to make her own decision in consultation with a physician.25 The ruling invalidated parental consent laws enacted after Danforth that did not provide a confidential judicial bypass procedure that allowed a judge to determine that a minor was mature enough to make her own decision in consultation with a physician. Bellotti II also established that parental notification laws must meet similar requirements as parental consent laws, invalidating parental notification laws without judicial bypass options. The opinion written by Justice Powell for Bellotti illustrates the court's reasoning in extending the right to privacy in childbearing decisions to minors:
"The abortion decision differs in important ways from other decisions that may be made during minority….The pregnant minor's options are much different from those facing a minor in other situations, such as deciding whether to marry. A minor not permitted to marry before the age of majority is required simply to postpone her decision….A pregnant adolescent, however, cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy."

Young women's' ability to consent to contraception and abortion, 1980-2009

By 1980, following the decisions in Danforth and Bellotti, the rights of minors to consent to abortion absent a parental involvement law had been established. States could limit minor's access by passing statutes requiring parental involvement, but such laws had to include a judicial bypass option whereby a judge could declare a minor competent to consent or make a decision in the minor's best interest. At the beginning of 1980, only 1 state, Utah, had an enforceable parental involvement law on the books, and that law had been ruled constitutional only as applied to immature minors. The number of states that were enforcing parental involvement laws rose to 17 in 1990, 32 in 2000, and 37 in 2010. Abortion-rights advocates frequently filed suit in response to each new parental involvement law, and it was and remains common for enforcement of a new law to be enjoined pending a judicial review process. For instance, Pennsylvania's 1982 parental consent law did not take effect until 1994 when the United States Supreme Court upheld the law.26


In contrast to states' efforts to restrict minors' access to abortion, there have been few efforts to restrict minors' access to contraception. In 1983, Utah attempted to enact a parental notification requirement for minors seeking contraception. Enforcement of the law was enjoined before it could go into effect, and it was stuck down by a district court in Planned Parenthood v. Matheson.27 The court tied its decision to judicial precedent regarding abortion, stating
"The Court acknowledges that a decision concerning the use of contraceptives is not fraught with the time limitations inherent in a decision concerning termination of a pregnancy through abortion. Nonetheless, decision whether to accomplish or to prevent conception are among the most private and sensitive. Moreover, in contrast to the decision to marry, a decision concerning the use of contraceptives is similar to the decision whether to have an abortion in that it cannot be delayed until the minor reaches the age of majority without posting the risk of serious harm to the minor."

At present, no states have laws in place that explicitly restrict the ability of private providers to provide confidential contraceptive services to minors.28 Twenty-one states and the District of Columbia have enacted laws granting all minors the capacity to consent to health care services in general and/or contraceptive services in particular, and all but four states have some type of confirmatory law stating the conditions under which a minor may consent.29 Absent a law explicitly authorizing a minor to consent, the decision to provide confidential contraceptive services rests with the provider. A provider may be encouraged to provide contraceptive services to minors by legal scholars offering advice in medical journals who interpret the Carey decision as affirming minors' rights to consent to contraception.30 The Center for Adolescent Health and the Law advises that the right of privacy extends "protection to contraceptive decisions by minors as well as adult women,"31 and that "even in the absence of a statute authorizing minors to consent for family planning services or contraceptive care, if there is no valid statute or case prohibiting them from doing so, it would be reasonable to conclude that minors may give their own consent for such services."32 In addition, professional organizations such as the American Medical Association, Society for Adolescent Medicine, the American Academy of Pediatrics, and the American Academy of Obstetricians and Gynecologists have issued statements asserting that confidential contraceptive services should be available to minors.33 However, other sources advise providers to exercise caution in providing these services. A 1987 article in the Western Journal of Medicine advises providers that in the absence of a clear consent statute, they should consult legal counsel if they are going to use a mature minor doctrine to provide confidential services.34 Similarly, a Florida lawyer writing in the Northeast Florida Medicine journal advises physicians that minors not explicitly granted capacity to consent by state law "cannot receive birth control without parental consent."35


There is little empirical evidence on whether, in practice, providers typically choose to provide confidential contraceptive services in the absence of state laws expressly authorizing them to do so. The Alan Guttmacher institute states that physicians do often provide medical care without parental consent to minors they deem mature,36 and a reference manual for school health officials advises providers that contraceptive services "are" provided in states without explicit consent laws and that most providers "will use every effort to resist providing information to a parent against the wishes of the minor patient."37

Section II: Summary of dates of legal changes related to young, unmarried women's access to contraception and abortion
Table 2 summarizes the years in which legal changes affected the rights of young, unmarried women to consent to reproductive control at any type of clinic in each state from 1960 to 1979.
With regard to adults' access to the pill, I assume that married women who have reached the age of majority gained access with the FDA approval of Enovid in June 1960 if they lived in a state that did not have a Comstock law banning the sale or use of contraception, or if there was a Comstock law but it contained a blanket exemption for physicians or pharmacists.38 In states with restrictive Comstock laws, I assume that married adult women gained access upon the earlier of (1) the repeal or enjoinment of the law, or (2) the Supreme Court's 1965 ruling in Griswold v. Connecticut.39 I assume that unmarried adult women gained access to the pill at the same time as married adult women unless a state had a Comstock law that differentiated between married and unmarried persons.40 It is likely that, in fact, unmarried women did not gain access at the same pace as married women. Indeed, that the right to privacy in contraceptive choices extended to unmarried women was not firmly established until the 1972 Supreme Court ruling in Eisenstadt v. Baird. Absent a legislative statute, judicial ruling, or attorney general's opinion explicitly denying or affirming the right of unmarried, adult women to consent, however, I assume that the date that birth control became widely available to married adult women also demarcates the date at which it became more available to unmarried adult women, even if the rate of increase in access was lower during subsequent years.
With regard to adults' access to (legal) abortion, I assume that all women who have reached the age of majority gained access to abortion in repeal states upon repeal, and in the remaining states after the Roe v. Wade and Doe v. Bolton decision in January 1973.
In addition to coding adults’ access to the pill and abortion, I indicate the year that a legal change expanded confidential access to women aged 18-20 (who were defined as adults in most states after the lowering of the age of majority) and 15-17 (defined as minors in all states). In establishing the coding in Table 2, I assume that women under 21 could confidentially access reproductive services as soon as those services were available to older unmarried women and a regulatory change affirmed the right of women under age 21 to consent to contraceptive services. I interpret affirmative changes in the legal environment to include age of majority statutes (AOM), medical consent statutes specifically granting all minors capacity to consent to reproductive services (MCL), medical consent statutes granting providers permission to provide confidential services to minors if in the provider's opinion the failure to provide services would be hazardous to a minor's health (HH), legislative or judicial mature minor doctrines (LMM and JMM), affirmative attorney general opinions (AG), and judicial rulings that affirmed minors' rights to consent (J). I do not code laws permitting minors to consent to contraception at state-funded public health clinics as granting broad access, because these legal changes likely did not affect as broad or representative a group of women as those that permitted all types of providers to supply confidential reproductive services to minors.
For an illustrative example of the coding, consider the timing of affirmative legal changes in Kentucky. The pill became available to women aged 21 and over in 1960 with the approval of Enovid. Access to the pill expanded to women aged 18-20 in 1965 when the age of majority was lowered from 21 to 18. Women under age 18 gained access in 1972 with the passage of a medical consent law that explicitly affirmed the ability of minors to consent to contraception. Abortion became available in 1973 to women aged 21 and older and, because the age of majority had already been lowered, to women aged 18 to 20 as well. Women under 18, however, were not affirmed confidential access to abortion with Roe. In fact, in Kentucky they were explicitly denied it because the 1972 medical consent law that granted minors' access to contraception stated that abortion was excluded from the list of services to which minors could consent. The Kentucky legislature further restricted minors' access to abortion in 1974 by passing a statute regulating abortions that contained a parental consent provision. That same year a district court ruled that the parental consent provisions of the law were unconstitutional and invalid, but denied injunctive relief. Upon appeal, enforcement of the law was permanently enjoined by the state supreme court in 1976 following Danforth. I code 1976 as the first year in which a legal change—in this case, a judicial ruling—affirmed the right to minors in Kentucky to consent to abortion. Note that if Kentucky had not had a parental involvement law to challenge, allowing a court to rule on its constitutionality, I would not have coded an affirmative legal change prior to 1980.
Whereas Tables 2 covers confidential access to reproductive services from 1960 to 1979, Table 3 covers the next two decades, summarizing minors’ abilities to consent to abortion services from 1980 to 2010. By 1980 following the resolution of the Bellotti case, minors generally could consent to reproductive services absent a valid restrictive statute. At the beginning of 1980, nearly all such statues had been invalidated, but there was a flurry of legislation over the next twenty years to enact parental involvement laws for minors seeking abortions. There were almost no similar efforts with respect to contraception, and so I report legal changes governing minors’ confidential access to abortion only, reporting the years in which a parental notification or consent law was enforced in each state. The coded laws mandated parental notification or consent for all minors under a certain age (usually 18), and the only bypass option involved consulting a judge, independent health care provider, or other adult family member. The handful of laws that only suggested parental involvement or that permitted the providing physical to determine that the applicant minor met a mature minor standard were not coded as restrictive (though they are noted in the footnotes). Information about laws that were on the books but, as a result of court order, not enforced is available in the detailed state-by-state review in the following section.





Section III: State-by-state review



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