Law Mandates Parental Consent Before Minor's Abortion
Law Feature - August 2005
By Erin Prather
A new law that strengthens the requirements for women younger than 18 seeking an abortion doesn't really change the existing law much, but it could mean more work for physicians.
Texas already had a law requiring physicians to give 48 hours notice to at least one of a minor's parents or guardians or a court-appointed managing conservator before performing an abortion. But Senate Bill 419, passed by the recent session of the Texas Legislature, substituted "consent" for "notification." It prohibits physicians from performing an abortion on a minor unless she has the parent's or guardian's written consent or a judicial bypass order.
And, Texas law has always required parental oral or written consent. But SB 419 says oral consent is no longer acceptable. The bill also bans abortions in the third trimester unless an abortion is needed to save the mother's life or the fetus has "irreversible brain impairment"
The Texas Medical Association's Board of Councilors previously opined that "operative consent" should be obtained in writing from the patient or, when appropriate, from the parent or guardian of a minor who is seeking an abortion.
New Braunfels family physician Beverly B. Nuckols, MD, supported SB 419 and believes parental written consent should be required for all medical procedures performed on minors.
"When physicians perform a procedure, there are side effects. I believe the patient's parent or guardian needs to understand what I am doing and what the effects will be. Parents are typically the best advocates for their children and will be the ones who take care of them after a procedure. This law brings this section of the practice of medicine into compliance with what physicians have done traditionally when treating minors for any invasive procedure."
Physicians who break the new law are guilty of a Class A misdemeanor violation of the Medical Practice Act of Texas. They could be jailed for up to a year and/or fined $4,000.
They also could be subject to Texas State Board of Medical Examiners (TSBME) action, including revocation of their medical license. TSBME is required to suspend the license of any physician while he or she is locked up.
Texas Department of State Health Services (DSHS) records show that 22,911 women between ages 13 and 17 became pregnant in 2003, and 3,560 pregnancies ended in abortion.
Judicial Bypass Right Unchanged
Rita Lucido, JD, a Houston lawyer who represents teenagers in bypass cases, says not much has changed with regard to a court's involvement in minor abortion cases.
"SB 419 did not change the fact that minors are eligible to seek a judicial bypass if they cannot comply with the parental involvement requirement. There is no change to a physician's practice as it relates to girls who are eligible to go to court. What has changed for physicians who provide termination is they can no longer rely on oral consent or constructive notification to a parent or guardian. They must now acquire written consent from that parent and guardian, which will probably cause the number of girls seeking a judicial bypass to rise."
Ms. Lucido cited an example of a teenager whose parent is in prison. Before SB 419, a physician could send a letter to the prison, notifying the parent that his or her daughter wanted an abortion. The physician could also call the parent and ask for oral consent. The physician must now have the parent sign a consent form agreeing to the abortion. If he or she does not sign or if the minor does not receive the returned signed form, she will have to seek a judicial bypass for an abortion.
That possibility concerns John C. Jennings, MD, professor and program director of the Department of Obstetrics and Gynecology at The University of Texas Medical Branch in Galveston, because acquiring a judicial bypass can take time, and situations can vary from woman to woman.
"Delaying an abortion procedure, even for a couple of weeks, can make a difference in the ease of that procedure and the safety for the patient electing to have the pregnancy terminated. Although most women seek to terminate their pregnancy during the first three months, which is medically the safest time, if a woman has to postpone the procedure due to legal issues, the chances of the procedure becoming more complicated increase," he said.
Minors seeking a judicial bypass can acquire the proper forms from their local county or district clerk or from the Texas Judiciary Web site www.courts.state.tx.us. Regarding documentation of parental or guardian consent, at press time, physicians were required to fill out two forms.
Abortions are classified as list "A" procedures by the Texas Medical Disclosure Panel (MDP). To secure the presumption that informed consent was given, a physician must obtain a written form from the MDP and have it signed by a parent or guardian. The form can be downloaded from the TMA Web site.
DSHS provides the parental consent form, which is also required by SB 419, on its Web site, www.dshs.state.tx.us, under "Birth/Death Certificates" and then "Induced Abortions."
With regard to third-trimester abortions, both Drs. Nuckols and Jennings say the procedure is rare. DSHS reports that of 79,166 abortions in 2003, only 107 pregnancies were terminated after 25 weeks.
"It's unusual for a pregnancy to be terminated in the third trimester," Dr. Jennings said. "It only really occurs when there is an immediate threat to the mother's life, the fetus's life, or both. Nowadays if an infant has a fatal condition, the pregnancy is often terminated before it ever reaches the third trimester."
Sarah Wheat, director of public affairs for NARAL Pro-Choice Texas, believes that the legislature spent time and resources on an issue that does not occur often, and says it only makes things more difficult for women already facing hard choices.
"There is a danger in passing laws that legislate the practice of medicine and get into the doctor-patient relationship," Dr. Jennings said. "That's a general statement. It does not pertain to just the abortion issue. Defining things so specifically in the law can interfere with a physician's judgment in managing a patient's condition. Interference can harm trust, confidentiality, and other components of the physician-patient relationship. I believe that is the biggest threat we have from legislation like this."
Erin Prather can be reached at (800) 880-1300, ext. 1385, or (512) 370-1385; by fax at (512) 370-1629; or by email at Erin Prather.
Encourage Communication, Law or No Law
By Herbert Brown, MD
A new state law set to go into effect on Sept. 1 requires physicians in Texas to get written permission from a parent before providing an abortion for a minor. It's not the first time Texas physicians will be legally obligated to communicate with parents whose daughters are seeking abortions. Since January 2000, we've been required to notify a minor's parent (by mail or a phone call) that she is seeking an abortion. But the new law goes much further, requiring physicians to get a parent's consent in writing before providing services to a young woman.
Legally, it may take some time to sort out the contours of this new law. Many physicians already have questions about whether they'll be required to verify the legal status of parent-child relationships and how they can comply with such requirements while running a medical practice. The rules attorney for the Texas Supreme Court recently told the Houston Chronicle that "the court needs to sit down and discuss what modification, if any, it needs to make" to give legal guidance on interpreting the new law.
Regardless of how the new abortion consent requirements are resolved, some critical areas of reproductive health care will not be affected. Minors still have the right to receive pregnancy testing and contraceptives without parental consent from clinics that receive funding for family planning services under the federal Title X or state Title XX programs. For physicians who don't receive this funding, the law doesn't specifically require parental consent for pregnancy testing and contraceptives; physicians can and do provide these services without parental consent. Emergency contraception is a form of contraception and is treated the same for consent purposes.
Even when the law doesn't require parental notification or consent, physicians generally should continue to encourage minors to communicate openly with parents or guardians. Most young people already involve at least one parent when making health care decisions. In my clinics, 90 percent of adolescent patients already talk to their parents before seeking abortion services. Those who don't often can't -- because they come from homes where physical, sexual, or emotional abuse is prevalent or because of other complicated family dynamics. For those patients, the new abortion law still includes a judicial bypass, so that a minor can ask a judge to take into account her family circumstances and determine whether she can consent to services herself.
Still, physicians understand how critical confidentiality is -- in all kinds of health care -- because we've seen firsthand that fear of disclosure sometimes prevents people from seeking services. This is particularly true for minors. As a result, when the law allows a minor to consent to treatment herself, physicians should keep this information confidential.
Based on my years of providing services to adolescents -- and the experiences of other doctors who have helped Physicians for Reproductive Choice and Health develop guidance in other states with notification or consent laws -- the following tips can help physicians ensure confidentiality for minors:
- Explain to the parent that the minor needs privacy and confidentiality, and ask the parent to agree to such an arrangement from the first visit.
- Ask the minor for alternative contact information (address and phone numbers where she/he can be reached) if the patient does not want to be contacted at home.
- Inform the patient that billing or the insurance claims process may compromise confidentiality; discuss alternative forms of payment (cash, payment plan, and others).
- Educate office personnel about minors' rights to confidentiality and investigate ways to create filing and other systems that protect adolescent patients' confidentiality.
- Be aware of situations in which confidentiality is not legally possible; beyond the new consent law, these include cases of suspected abuse or neglect, as well as statutory rape.
- Consult with legal counsel when questions about medical records might result in harm to the adolescent patient.
All of us who have worked with adolescent patients know that communication is critical, but not possible for all families. While the new consent law may be unclear for a while, it's important to know when minors are guaranteed confidentiality and how to build trust with young patients. We owe that to them -- and to our profession.
Dr. Brown is aSan Antonio obstetrician-gynecologist and a member of the Board of Directors of Physicians for Reproductive Choice and Health.
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