Abortion Law


Girls on the Stand:  How Courts Fail Pregnant Minors

Silverstein’s recent scholarship concerns the implementation of state laws that mandate parental consent in the abortion decisions of pregnant minors.  According to the U.S. Supreme Court, parental consent regulations are permissible only when they allow minors to petition for a bypass of that consent.  In almost all states, judges are the arbiters of the bypass process.  Silverstein’s 2007 book, Girls on the Stand:  How Courts Fail Pregnant Minors, exposes enormous gaps between the idealizations that tend to emerge from the contemplation of carefully worded bypass provisions and the bypass process as it actually takes shape in a world of politics, religion, and bureaucracy.  The findings speak to the constitutionality of consent requirements and to the public policy justifications that sustain such requirements.

The results of this work have been cited in legal briefs, including in the 2006 Supreme Court case Ayotte v. Planned Parenthood of Northern New England.  In addition, Silverstein have served as a media source on matters pertaining to minors and abortion, appearing on CNN, ABC News, NPR affiliates, other radio programs, and in newspapers such as the New York Times, Los Angeles Times, and Christian Science Monitor.

Reviews of Girls on the Stand:

Law & Society Review, by John Brigham, Vol. 43, Issue 3, October 2009, pp. 701-703

Perspectives on Politics, by Noelle H. Norton, Vol 7, 2009, pp. 675-676

NWSA Journal, by Karyn Valerius, Vol. 20, No. 3, Fall 2008,  pp. 211-214

Political Science Quarterly, Carter Snead, Vol. 123, No. 2, Summer 2008, pp. 343-345

Law & Politics Book Review, by Matthew Wettstein, Vol. 17 No. 10, October, 2007, pp.808-810

The American Prospect, by Scott Lemieux, August 17, 2007

New York Law Journal, by Eleanor J. Bader, July 23, 2007

San Francisco Chronicle, by Michael O’Donnell, July 8, 2007

Choice, by S. Behuniak, September 2008, Recipient of Choice “Outstanding Academic Title for 2008”

The Chronicle of Higher Education, by Nina C. Ayoub, June 8 2007


Additional Research on the Bypass Process:


“Road Closed: Evaluating the Judicial Bypass Provision of the Pennsylvania Abortion Control Act,” Helena Silverstein, Law and Social Inquiry (Vol. 24, No. 1, 1999), pp. 73-96.

Based on a study of how county courts respond to inquiries into the judicial bypass procedure, this article demonstrates that two-thirds of Pennsylvania county courts are not prepared to implement or provide accurate information on bypass proceedings. This lack of readiness, the study suggests, poses a significant threat to the rights of pregnant minors.

“‘Honey, I Have No Idea’: Court Readiness to Handle Petitions to Waive Parental Consent for Abortion,Helena Silverstein and Leanne Speitel. Iowa Law Review (Vol. 88, No. 1, 2002), pp. 75-120.

Based on a study of juvenile court responses to inquiries into the bypass option, this article demonstrates widespread failure to comply with constitutional requirements as well as outright defiance of state law and federal legal mandates. The article shows that juvenile courts in twenty-five of Alabama’s sixty-seven counties are unprepared to handle inquiries into bypass petitions. In addition, six juvenile courts refuse to handle bypass requests despite acknowledging their authority to do so.

Judicial Waivers of Parental Consent for Abortion:  Tennessee’s Troubles Putting Policy into Practice,” Helena Silverstein, Wayne Fishman, Emily Francis, and Leanne Speitel. Law & Policy (Vol. 27, No. 3, 2005), pp. 399-428.

To facilitate the actualization of the bypass process, Tennessee included in its parental consent statute procedural mechanisms that go beyond those in effect in most states.  This study examines whether these additional mechanisms allow Tennessee to succeed where other states have failed.  The findings indicate that these mechanisms mitigate the sort of implementation failure observed in other states. However, the magnitude of this mitigation is not sufficient to establish that parental consent statutes can be implemented in accordance with Supreme Court requirements.

“Religious Establishment in Hearings to Waive Parental Consent for Abortion,Helena Silverstein, Kathryn Lundwall Alessi. University of Pennsylvania Journal of Constitutional Law (Vol. 7, No. 2, 2004), pp. 473-532.

Several judges in Alabama condition bypass grants on the requirement that pregnant minors receive counseling from a pro-life organization called Sav-A-Life.  Based on evidence that shows the religious character of Sav-A-Life counseling, this article argues that judges violate the First Amendment Establishment Clause when they condition the waiver process on a minor’s receipt of such counseling.

“In the Matter of Anonymous, A Minor:  Fetal Protection in Hearings to Waive Parental Consent for Abortion,” Helena Silverstein, Cornell Journal of Law and Public Policy (Vol. 11, Fall 2001), pp. 69-111.

Some judges who handle bypass petitions have adopted the practice of appointing a guardian ad litem to represent the interests of the unborn at bypass hearings. This article examines this act of judicial discretion, arguing that fetal representation is a moral regulation that transforms waiver hearings into adversarial proceedings and increases the burden a minor confronts when seeking an abortion.  However, while the use of guardians raises some troubling constitutional questions, because legal precedent allows states to encourage childbirth over abortion, designating guardians to represent fetuses turns out to be a constitutionally permissible regulation of a woman’s abortion rights.  This article contends that the inadequacy of precedent on abortion is evidenced by the fact that guardianship appointments are likely to pass constitutional muster.

“Inconceivable?” Helena Silverstein, Law and Inequality (Vol. 20, Winter 2002), pp. 141-55.

This essay offers an ironic perspective on state laws that mandate parental consent in a pregnant minor’s abortion decision. It does so by presenting three fictitious judicial opinions based on an equally fictitious state law that requires parental consent when a minor chooses pregnancy rather than abortion.