Judging Girls: Decision Making in Parental Consent to Abortion Cases

Judges make determinations on a daily basis that profoundly affect people's lives. On March 28, 1991, the Michigan legislature enacted a statute entitled The Parental Rights Restoration Act (hereinafter "the Michigan Act" or "the Act"). This statute delegated to probate court judges the extraordinary task of deciding whether a minor girl may have an abortion without the consent of a parent. Nothing in law school and little in an average judge's experience provide a meaningful framework for making such a decision.

Although many commentators, including the authors, argue that decisions about abortion should be left to the woman regardless of her age, or to the judgment of her doctor, or to counselors, this decision now rests with probate judges. As clinical law professors and, thus, practicing attorneys, we have represented several minor girls in their attempts to receive waivers of parental consent to abortion under the Michigan Act. We were also active in developing procedural rules to implement the statute and are involved in training attorneys to represent girls in judicial waiver hearings. Therefore, we have personally witnessed the implementation of the Act thus far in Michigan.

We intend to provide a framework for judicial decision making under the Act by drawing on our personal experiences, reviewing treatment of parental consent cases by other courts, and considering what the discipline of psychology can tell us about adolescents. Ultimately, we offer certain presumptions that Michigan judges should apply, and we delineate those matters that are irrelevant to the inquiry into a minor girl's maturity and best interests.