Sexual Freedom Versus "Authority in Their Own Household": The Rights of Minors
. . . every human being of adult years and sound mind has a right to determine what shall be done with his own body.
judge cardozo, Schloendorff v. The Society of New York Hospital (1914)
Many minors, like appellant, oppose parental notice and seek instead to preserve the fundamental, personal right to privacy. . . . Involving the minor’s parents against her wishes effectively cancels her right to avoid disclosure of her personal choice.
justice marshall, H. L v. Matheson (1981, dissenting)
The desire to engage freely and comfortably in heterosexual sex is a major reason why women seek reliable birth control and abortion. But the language of medical necessity, individual privacy, and "procreative rights" favored by the courts deliberately avoids acknowledging this fact. They avoid it because they do not wish to seem approving of behavior that the state has never publicly endorsed: sex outside marriage. As a result, legal abortion and birth control were from the start burdened with an ambiguity reflected in various public statements, including judicial opinions, that extended rights in the name of reproductive "privacy" and then restricted them in the name of moral "protection." This pattern was most intense with regard to unmarried minors. As Chapter 6 showed, the legalization of contraception and abortion contributed to the image of a wave of sexual permissiveness, particularly among young unmarried people; this visibility called forth overt political responses from policy makers and judges. As teenage sexuality and pregnancy became the major focus of the abortion debate, so the regulation of teenage sexuality, through the requirement of parental consent or notification for abortion and contraception, became a major focus in the courts.
In Roe v. Wade and Doe v. Bolton, the Supreme Court left undecided whether "unemancipated" (legally dependent) minors could be prohibited from obtaining an abortion without their parents’ knowledge or consent.51 In subsequent cases, however, the Court came up against the conflict between its liberal principles in Roe and the "understood" policy of dis
couraging nonmarital sex. This conflict was always embedded in government-funded family planning programs, particularly for adolescents and unwed welfare recipients, since the prevention of unwanted pregnancies and the prevention of "promiscuous sex" seemed at odds. But through much of the 1970s, state policy leaned toward pregnancy prevention. Title X legislation, enacted in 1970 to make "comprehensive voluntary family planning services readily available to all persons desiring such services," was amended in 1978 by the Adolescent Health, Services, and Pregnancy Prevention and Care Act, through which Congress mandated the executive to provide special services for adolescents—encouraging consultation with parents, but by no means requiring it.52 Almost simultaneously, the predictable sexual control backlash emerged, through an array of state and federal court cases and local ordinances challenging the right of women under eighteen to obtain an abortion or contraceptive services. Couched in terms of parental rights (to know about and administer their children’s "health") and "family integrity," these challenges were brought by the same forces whose stated goals are to recriminalize abortion and legislate "teenage chastity." Their clear purpose is to make abortions harder to get and heterosexual activity penalty-ridden for unmarried teenage girls. Yet the means they use often involve an accommodation of liberal rhetoric about "health reasons" and "consent."
The response of the Supreme Court to this onslaught was cautious at first but gradually has become more receptive. The balance between its position "that minors have rights… to access to sex-related health care"53 and its position that the state should protect "parental consent to or involvement in important decisions by minors"54 increasingly tends toward the latter. In fact, what the Court has done is attempt to accommodate both principles, in a doctrine freighted with ambiguity.
On the one hand, its decisions cast the issue of whether minors ought to decide for themselves about abortion and contraception within the standard legal framework of "informed consent" to medical treatment. Thus, the Court has evolved the notion that, as with any other treatment, informed consent requires that a person be "sufficiently intelligent and mature to understand the situation and the explanation" and that "mature minors" be distinguished, in this regard, from "immature" ones.55 Its recent case law has exempted "mature minors" from statutory requirements of parental consent or notification regarding abortion and has required a speedy judicial or administrative process to determine maturity if it is in question.56 But the emphasis on "informed consent" to abortion contains all the inadequacies of the medical, or therapeutic, model from which it derives. It ignores that the decision whether to get an abortion or have a baby is not only a health issue and that the competence of a teenage girl to make that decision is altogether different from her competence to decide whether to undergo major surgery.
On the other hand, the Court’s increasing deference to "family integrity" and the authority of parents over their children57 cuts in a different direction from the therapeutic model, which implies that children’s interests (health and well-being) supersede parental discretion and may be protected by the state. The "parental authority" principle derives from a moral model of abortion and assumes that abortion is a matter that "raises profound moral and religious concerns" more than medical ones,58 concerns that parents rather than doctors or judges should oversee. In this part of its reasoning, the Court ignores the reality that access to abortion affects women’s health and well-being dramatically, particularly so for younger women. But neither the therapeutic nor the moral model contains much space for the notion that the abortion decision ought to belong to the young woman herself, as a fundamental right "nearly allied to her right to be." What the two approaches have in common is their assumption that dependent minors must, like the mentally incompetent, be protected at any cost.
The tension between a state-oriented and a parent-oriented approach to protecting children has a long history. The doctrine of the state as parens patriae, or its protective role over those unable to care for themselves, predates that of the family as protector, going back to the Middle Ages and the Elizabethan Poor Laws.59 In the United States in the late nineteenth and early twentieth centuries, particularly during the Progressive era, the common-law idea that parents have ownership of their children’s bodies became increasingly subordinate to the power of the state to intervene to protect children when parents were deemed incompetent or the state’s interest paramount. In this period the juvenile justice system was established—to prevent as well as to punish juvenile crime—and child neglect and child abuse statutes were introduced in many states. Numerous laws were passed requiring parents to send their children to school, to provide them with necessary medical care, and not to exploit their labor—laws that the courts upheld in a line of constitutional cases emphasizing the power of the state to protect children even when this interfered with parents’ religious or personal beliefs.60 But these laws and judicial rulings were directed at certain families, those thought to be innately "dependent" and "delinquent" and in need of state supervision—that is, immigrants and the poor in ghetto communities. In practice, the state’s parens patriae control has always been exercised selectively.61
A second line of cases and policies has emphasized the state’s obligation to preserve parental authority and "family integrity," the rights of parents against undue interference by the state in "family privacy," and the relations between parents and children. But these cases, more recent and more limited than the parens patriae cases, also have been applied selectively; a particular kind of family situation or family interest has usually been protected. A classic case cited as precedent for the Court’s concern for "parental authority" is Pierce v. Society of Sisters (1925). This case involved the complaint of two private schools—a Roman Catholic parochial school and a profit-making military academy—against Oregon’s compulsory education statute, which the appellants argued violated their private property rights, including "the right to conduct schools," under the Fourteenth Amendment. In a way that is strikingly reminiscent of right-wing "profamily" legislation in the 1980s, "parental rights" were used here to support a conservative attack by private interests on public education.62 Similarly, the often cited and more recent parental authority case, Wisconsin v. Yoder (1972), which upheld the right of Amish parents to withdraw their children from school after the eighth grade in accordance with their religious beliefs, hinged on an argument, not about "parental rights," but about the rights of a distinct religious subculture to survive.63 Although different from one another, these two cases are not about "a constitutional parental right" but about the rights of private, established religious groups—seen here as agents of order and authority.
Yet in the late 1960s and the 1970s, the Supreme Court came increasingly to pay deference to "the parents’ claim to authority in their own household to direct the rearing of their children."64 The context of this shift was a growing emphasis, not only in appellate briefs but in the country at large, on "children’s rights," the "youth culture," and a widespread student civil rights and antiwar movement that reached even into the high schools. The Court’s initial reaction to this political and social pressure was mixed; it began to acknowledge that minors may have constitutional rights,65 but seemed determined to "balance" this acknowledgment with a repeated invocation of parental authority. The "mature minor" doctrine is an attempt to resolve this conflict; to say that some minors may independently exercise constitutional rights upholds the general principle of parental authority over dependent minors. It is a pragmatic and flexible doctrine because it recognizes that young people have different rates of development and different capacities for handling difficult problems, such as an unwanted pregnancy. At the same time, it is an administrative device that redistributes the jurisdiction over young women’s reproductive decisions between parents and the courts.66
After having held, in Planned Parenthood of Central Missouri v. Danforth (1976), that no "blanket provision" requiring parental consent to abortion or "parental veto" was constitutionally permissible, the Supreme Court developed its position on parental notice and consent in Bellotti v. Baird (known as Bellotti II) in 1979.67 This decision is a masterpiece in the art of the double message. Its holding is far more liberal than the Massachusetts statute, which required all unmarried minors, regardless of maturity or dependency status, to have either the consent of both parents or a court authorization to obtain an abortion. As pointed out in one of the opinions (there was no majority—a further sign of the Court’s ambivalence on this issue), "young pregnant minors, especially those living at home, are particularly vulnerable to their parents’ efforts to obstruct both an abortion and their access to court." Thus, states must allow a teenage girl "to go directly to a court without first consulting or notifying her parents," in order to determine either (1) that she is sufficiently mature "and well enough informed to make the abortion decision intelligently on her own" or (2) that an abortion "would be in her best interests."68 But what this resolution does is to shift the weight of authority from parents to judges. The decision of an unmarried minor woman to seek an abortion is "her own" only after a court determines that she is legally "mature."
Subsequent experience with parental consent provisions has shown that they put a substantial obstacle in the way of young unmarried girls getting abortions safely and promptly. Pregnant teenagers who manage to bring their petition before a court under these restrictions, while they usually succeed, sometimes are faced with offensive or inappropriate questions from judges about their morality, their sexual lives, or the description of the fetus. In a Long Island case, a judge denied the petition of a fourteen- year-old because of her "immaturity," while acknowledging her "lack of significant life experiences, her lack of any understanding of the responsibilities of motherhood and the likelihood that she could be further along in the pregnancy than she suspects." In other words, a girl may be "mature" enough to bear a child, although too "immature" to understand the implications of having an abortion. For many teenagers, the burdens involved in dealing with court appearances and attorneys—costs, transportation, having to maintain secrecy and the appearance of normality at home—are beyond their scarce resources. Thus, the practical impact of Bellotti II is to create not only "a hassle. . . that increases the trauma to the minor"69 but an effective obstacle to her obtaining an abortion.
Apart from putting the abortion decision of unmarried minors in the hands of judges, Bellotti II contains a conservative ideological tone. While rejecting parental consent and notification laws under certain conditions, the Court does so in language that, throughout, strongly affirms the principle of parental authority and "a family resolution" of the teenage girl’s abortion decision. Bellotti II affirms the idea of parental consent; it simply spells out procedural qualifications under which such laws will be valid:
. . . parental notice and consent are qualifications that typically may be imposed by the State on a minor’s right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interests of the minor. It may further determine, as a general proposition, that such consultation is particularly desirable with respect to the abortion decision—one that for some people raises profound moral and religious concerns.70
In its recent decisions regarding teenagers and abortion, the Court has emphasized that the "abortion decision is unique," that it differs from other decisions, including medical decisions, a minor might make. But what exactly is unique about abortion is not made clear. At one point the Court seems to suggest that it is simply the timing factor, the necessity of avoiding delay, the fact that it is too late for preventive methods or high-minded moralizing.71 More often, this sensible approach gives way to a moralistic and implicitly punitive language that rests the denial of decision-making autonomy to young women on "moral" or "religious" issues. Parents should be consulted about abortion, it seems, because of a teenage girl’s moral interests, not her medical interests; it is moral judgments that she is deemed incompetent to make for herself. These two views create a tension in the parental consent and notification cases that one suspects is both deliberate and politically motivated.
Finally, it may be more accurate to describe the tenor of the Court’s ruling in Bellotti II as "profather" rather than "profamily," for it held valid "as a general rule" the Massachusetts requirement that both parents’ consent be obtained. Earlier we saw that teenage girls who confide in a parent about pregnancy are much more likely to tell their mother and are fearful of telling their father. A requirement that both parents be informed affirms paternal authority and power over young women’s sexual lives. In the concrete reality of many family situations, this may amount to undermining the mothers of teenage daughters, including their custody rights.72
Relative to the parental (patriarchal) approach to teenage sexuality and birth control, the state-oriented, or public welfare, approach seems potentially more attentive to young women’s needs, if still in a "protective" mode. This approach directly contradicts the notion in Bellotti and Matheson that "moral and religious concerns" are a special preserve of parental jurisdiction and unlike matters of "health." In Prince v. Massachusetts, the Supreme Court said that "the family itself is not beyond regulation in the public interest, as against a claim of religious liberty. . . that the state has a wide range of power for limiting parental freedom and authority in things affecting the child’s welfare; and that this includes, to some extent, matters of con$cience and religious conviction."73 In this spirit (though unrelated to religion), the Supreme Court of New Jersey denied the view of a lower court and a retarded girl’s parents that "no one has a better right or responsibility and no one is in a better position nor is better equipped than the child’s parents to decide what course to pursue."74 In an important case involving the reproductive rights of retarded minors, that court rejected the ultimate right of parents to decide on the sterilization of their retarded daughter, asserting instead the duty of the state to protect the constitutional right to "personal autonomy over procreation and contraception" that belongs to "all individuals."75 Basing its decision on both the "sordid" history of sterilization abuse in American history and the Supreme Court’s doctrine on privacy as expressed in Eisenstadt, Danforth, Roe, and Doe, the New Jersey court took the position that a decision about reproduction "belongs to the child"; where the child is incapable of exercising choice, her "best interests" must be protected through rigorous "procedural safeguards" under the supervision of the court. But the main emphasis was on personal autonomy: "What is at stake is not simply a right to obtain contraception or to attempt procreation. Implicit in both these complementary liberties is the right to make a meaningful choice between them."76
Though perfectly consistent with its earlier decisions, this liberal direction is not the one the Supreme Court has chosen. Its most recent decision concerning teenagers and abortion illustrates sharply its tendency to abandon or grossly distort issues of health and social needs and to stress the state’s interest in preserving "family integrity" and (in theory) favoring childbirth. In H. L. v. Matheson (1981), the Court followed Bellotti II by issuing a narrowly construed ruling couched in sweeping "profamily authority" antilibertarian ideology. It upheld the constitutionality of a Utah statute requiring a physician to notify "if possible" a minor’s parents prior to performing an abortion on her, only insofar as the minor is "living with and dependent on her parents," "unemancipated," and "immature." But alongside these narrow guidelines, which still involve the formal burdens of securing a court judgment of "maturity" or "best interests," it enunciated principles that in effect reversed the Roe idea, applied so faithfully by the New Jersey Supreme Court, that "all individuals" should have "personal autonomy" over reproduction. The rationale on which the decision turns is that of Bellotti II, upholding the state’s interest in preserving parents’ "authority in their own house"; and the special "moral and religious" connotations of abortion. But the decision goes further and announces that "there is no logical relationship between the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion. "77
This is the true meaning behind the legalism and apparent liberalism of the "mature minor" doctrine. It brings to the abortion conflict an aspect not present in Roe v. Wade, the question of "adequate capacity to give a valid and informed consent." The "right to choose" may exist in principle, but a woman must have not only the material means but also the proven intellectual and moral capacity to exercise it. If the "capacity to choose" may be disqualified by age, however, may it not also be conditioned upon "emotional stability," previous history, or other indicators of "competence"? There is a sharp political edge to the issue of "choice" once particular categories of women are told that they are not sufficiently competent or mature to decide whether to have a child.
Of course the actual formulation in Roe v. Wade and Doe v. Bolton did not stress the woman’s right or capacity to choose so much as the physician’s; they were decisions that relied on and bolstered medical authority. That this was the Court’s intention is affirmed in a footnote in Bellotti //, which reemphasizes "the importance of the role of the attending physician" and even justifies parental notice and consent provisions on the ground that, to the Court’s dismay, physicians actually have little contact with patients and are relatively uninvolved in the "counseling process," in the everyday reality of most abortion clinics.78 Such counseling and auxiliary services are provided ordinarily by nurses and trained paraprofessionals, who may be more skilled and sensitive in this area than doctors, and who often encourage the consultation of a parent or family member in the abortion.79 What the Court is doing here, as it did in 1973 when it denied nurses and counselors standing as litigants, is to discredit not only the capacity of minors to decide on abortion but the capacity of clinic personnel (mainly women and nonphysicians) to provide services.
Unlike the courts, the "right-to-life" movement is suspicious even of doctors, whom they see as accomplices with their patients in murderous acts.80 The image they evoke is one of medical authorities—public school officials, social workers, federal courts, or other state agencies—subverting the traditional family, particularly the authority of husbands over wives and children. Thus the effort to secure parental and spousal consent requirements in state and local abortion laws is aimed not only at women’s decision-making autonomy but at that of doctors. At the same time, antiabortionists have not been able to abandon medical legitimations, for the power of medical discourse and medical authority in the dominant culture, including legal and judicial rhetoric, is much too great. Even "right-to-life"-sponsored legal briefs, which are reflected in court decisions favoring parental consent or notification, contain "medical" arguments. Accordingly, the second justification (after "family integrity") offered by the majority opinion in Matheson is that parental notification is necessary to "protect adolescents" by allowing parents "an opportunity… to supply essential medical and other information to a physician." However, as Justice Marshall wrote in his dissent:
It seems doubtful that a minor mature enough to become pregnant and to seek medical advice on her own initiative would be unable or unwilling to provide her physician with information crucial to the abortion decision. In addition, by law the physician already is obligated to obtain all information necessary to form his best medical judgment, and nothing bars consultation with the parents should the physician find it necessary.81
The "medical" rationale in Matheson is a liberal, benevolent gloss over a conservative ideology. Like many in the organized antiabortion movement, the Court’s majority here uses the argument about "potentially traumatic and permanent [medical, emotional, and psychological] consequences" of abortion for teenage women to prop up an underlying argument about the moral particularly sexual dangers of abortion. This "medical" argument, which implies that abortion is more dangerous to young women’s health than childbearing, is in diametric opposition to medical fact, as well as to the Court’s own recognition of the medical and social consequences of early childbearing in Roe v. Wade. In a recent examination of data comparing mortality from legal abortion and from childbearing in the United States, researchers at the Centers for Disease Control found an almost seven times greater risk of dying as a result of childbirth, for women of all ages.82 While the mortality risks in childbirth and abortion are lower for younger than for older women, teenagers’ childbirth-related mortality is much higher than their mortality from legal abortions, and, as we have seen, they confront more serious life disruptions and social – psychological deficits as a result of early childbearing. Yet in a statement that left some of the justices as well as the medical profession stunned, the Court’s majority declared in Matheson: "If the pregnant girl elects to carry her child to term, the medical decisions to be made entail few— perhaps none—of the potentially grave emotional and psychological consequences of the decision to abort."83
It is important to understand what is going on here, what familiar ideas about women and childbearing are concealed behind the Court’s pretense that parental notification is primarily a medical matter and that immature minors must be protected from their choice not to give birth. For the Court’s concern with the "emotional and psychological consequences" of abortion, and its unfounded assumption that childbearing for a young teenager involves no such problems, rest on deep-lying misogynist and pseudo-biological views about pregnancy and "woman’s nature." Behind the belief that a teenage girl can be too young or immature to understand the implications of abortion but mature enough to bear a child is the ancient patriarchal idea of childbearing as woman’s "natural" biological function, whatever her age or situation; abortion is a violation of her "nature." Obviously, this idea is in tension with the dominant liberal notion of a few years ago, embodied in the federal government’s Adolescent Pregnancy Prevention program, that teenage pregnancies were an "epidemic" and must be halted through public intervention. The Court’s position in Matheson both echoes and reinforces the increasing cult of maternity found in mass media and neoconservative state policies, encouraging childbearing and adoption programs rather than abortion for pregnant teenagers. In this sense the Court has turned dramatically from Roe v. Wade, acting once again as a barometer of rightward political trends. I am not denying that abortion is a health-related issue or that having an abortion or repeated abortions may involve health risks, mental as well as physical, for certain young women.84 Yet, in a society that has vacuum aspiration, antibiotics, and widely dispersed sanitary public health facilities, it is surely even truer than it was in Stella Browne’s day that blocking young women’s access to abortion because of "health hazards" is a red herring.
Another legal doctrine used in defense of parental notification or consent to abortion emphasizes, not the state’s "compelling interests,"85 but the minor’s "best interests." Thus the Supreme Court in Bellotti insinuates that "an abortion may not be the best choice for the minor."86 In what circumstances, we must ask, can it be in an unmarried teenager’s (or any woman’s) "best interests" to go through pregnancy and childbirth if she does not wish to do so? What pretext can justify the attempt to persuade her to become a mother against her will, other than the parents’ sense of moral virtue or religious duty? In an early stage of pregnancy, what "medical" rationale can exist? We may agree that children, including young adolescents, should have "the right not to be forced into self – reliance, the right to be supported [and taken care of] by adults,"87 without this implying a duty to seek such "help" or limiting "helpers" to parents. If consulting parents were meant simply to help a young girl make a difficult decision, then it would seem as important to "consult" them when a minor seeks to have a baby but parents counsel her to get an abortion. This is obviously not the intention of conservatives. The parental notification and consent cases are by definition situations in which a teenager has decided on her own to seek an abortion (hence her visit to a doctor or clinic in the first place), but parents and the state wish to prevent her, or to put serious obstacles in her way.
The insistence on parental notification is connected to sexual, not medical, supervision; parents are to be consulted because of the "moral" nature of the issue. The truth about abortion and teenagers is that being able to get an abortion without one’s parents’ knowledge or consent means being able, even at age twelve, to have sex without their knowledge or consent. Thus, notification and consent provisions are fundamentally sexual deterrents. If deterrence fails, the impact of parental consultation and, possibly, intervention against abortion is to reinfantilize the teenage girl, to increase her dependency on her parents (and her mother’s domestic obligations, if she is the one expected to raise the child); to absorb her sexual "initiation" into the virtues of motherhood or the trappings of shame.
In an earlier case, the Supreme Court conceded that the deterrence strategy in regard to contraceptives for teenagers does not work and may render harm.88 But it never denied—nor has it since denied—that the state may legitimately regulate or "discourage" the "promiscuous" sexual activity of minors. While it affirms in principle (with significant exceptions) that minors share m "the right to privacy in connection with decisions affecting procreation," this does not imply any right to sexual self- determination. The analogy drawn by at least one justice between "young persons" engaging in sex and "young persons" driving motorcycles is revealing of a deep-rooted view of teenage sex as an unredeemably dangerous activity.89 From this standpoint, the state’s posture should be one of either prohibition or cautious protection—surely not permission.
This prohibitive-protective stance emerges most obviously in a cam – panion case to Matheson in which the Supreme Court denied that a California "statutory rape" law was unconstitutional because it discriminated on the basis of gender.90 A statute that "makes men alone criminally liable for the act of sexual intercourse" when both "perpetrators" or the woman alone are under age eighteen, the Court held, is not discriminatory (against men) "because virtually all of the significant harmful and inescapably identifiable consequences of teenage pregnancy fall on the young female." In other words, since men cannot get pregnant, criminal penalties are necessary to deter them from engaging in premarital intercourse; but for minor females, "the risk of pregnancy itself constitutes a substantial deterrence. . . ."91 (Strange reasoning, since the "risk of pregnancy" is supposedly the "danger" from which the Court wishes to "protect" young women!) Of course, the "risk of pregnancy" becomes a "substantial deterrence" in a world where access to legal birth control and abortion services is curtailed. This is the underlying premise of the Court’s decision: Young women become "victims" who must be "protected" from sexual intercourse and its consequences under conditions where such services, particularly abortions, are viewed as an undesirable option; conversely, punishing sexual intercourse among teenagers is a way of preventing abortions.92 Reproductive and sexual policies are thus pushed back twenty years.
In his concurring opinion in Michael M., Justice Blackmun is the most straightforward in pinpointing the common aim of statutory rape laws, parental consent and notification provisions, and the courts that enforce them. "Both Utah’s statute in Matheson and California’s statute in this case are legislatively-created tools intended to achieve similar ends and addressed to the same societal concerns: the control and direction of young people’s sexual activities. "93 As in Carey v. Population Services, the majority of the justices have no objection on constitutional grounds to the state’s authority to exercise such control and the desirability of its doing so. Echoing the position of the California Supreme Court, Rehnquist emphasizes that the main purpose of such control is "to prevent illegitimate teenage pregnancies" rather than to preserve "female chastity."94 Yet this concern to present a "therapeutic" rather than a moralistic purpose cannot conceal the ultimate objective of sexual policing. Indeed, this opinion creates a new category of deviance: "illegitimate pregnancy" (as opposed to the traditional "illegitimate birth"). Abortion is thus implicitly contained in the proscribed behavior, and underneath the "protective" gloss is the assumption, which we meet over and over again, that restricting abortions and restricting heterosexual activity go hand in hand.95
A shift in the dominant sexual discourse reflects, and is a response to, changes in behavior; at the same time, its intention is to contain that behavior within certain limits. The currently prevailing policy among male judges and policy makers, both liberal and conservative, concerning young female sexuality is to attempt its prevention or containment rather than its punishment, but in no way to condone it as a "right." One of the more conservative members of the Supreme Court dissents from its plurality opinion in Michael M. because it does not punish women equally with men, evoking the theme of "equality with a vengeance" that has always been the other face of protective legislation:
. . . as a matter of constitutional power, … I would have no doubt about the validity of a state law prohibiting all unmarried teenagers from engaging in sexual intercourse. … In this case, the fact that a female confronts a greater risk of harm than a male is a reason for applying the prohibition to her—not a reason for granting her a license to use her own judgment on whether or not to assume the risk.96
In fact, however, there is no quarrel between Justice Stevens and his brethren about the end to be achieved, but only about the efficacy of the means.
Neither statutory rape laws nor rules inhibiting teenage girls’ access to abortion and birth control services are likely to stop teenage sex. They are likely to resurrect the climate of guilt, furtiveness, and fear of pregnancy that traditionally infused the experience of sex for unmarried women—and that is their point. Stevens accurately defines what is at issue here: whether women of any age, but especially young unmarried women, are to be granted a "license to use their own judgment" about abortion, sexuality, and how to live their lives. At bottom, the struggle between feminism and the array of rightist political and ideological forces is about the "right to choose," insofar as antifeminism, whether as paternalist "protection" or misogynist punishment, involves the denial of women’s capacity for moral judgment and hence for "choice."
In the period between the first and second editions of this book, the Supreme Court rendered three major decisions on abortion and had three more waiting on its docket. In that brief time it vigorously affirmed women’s constitutional right to abortion, and then just as abruptly eviscerated it. With two new appointments, President Reagan had managed to shrink the Roe majority from 7-2 to 5-4; with a third, the tables turned: the antiabortion dissenters had become the "voice" of the Court.