In her book, Helena Silverstein warns “abortion compromisers” that parental consent laws and judicial bypass procedures are implemented in ways that compromisers will find unacceptable. Noting that Roe v. Wade (1973) has lost its “rock star status” (p. 155) and that Planned Parenthood of South Eastern Pennsylvania v. Casey (1992) is “the new sheriff in town” (p. 154), Silverstein carefully exposes the ignorance, inefficiency, incompetence, and outright defiance of the courts charged with implementing judicial bypass procedures for teens who want to limit parental involvement in their decision to have an abortion. Quoting from Olivier Wendell Holmes, Jr., and frequently citing legal scholar Stuart Scheingold's The Politics of Rights (1974) throughout the volume, she reminds the reader that the law often reflects or reinforces current morality and the prevailing political power, rather than upholding rights.
It is rare to find a book that works as hard to convince the reader that law and public policy are flawed yet still is such a well-balanced and scholarly piece of research. By both reviewing legal precedent and conducting field research, Silverstein presents a strong argument about the ineffectiveness of judicial bypass rules at the same time that she concludes that current bypass practices might be upheld under constitutional inspection. In the final section of the book, she concedes that a “plausible case could be made that minors are only incidentally and not unduly burdened by the magnitude of delay associated with the administrative inefficiencies and judicial recusals” (p. 154). Nevertheless, the result of this balanced but passionate examination of the judicial bypass ends up providing an extraordinary glimpse into the difficulties that young women face when traversing the legal system. Scholars interested in law and society, judicial behavior, public policy, abortion politics, and even methodology will find Girls on the Stand to be a rare treat.
Silverstein uses two methodological approaches to explore the judicial bypass for pregnant minors who do not want to obtain parental consent for an abortion: legal analysis and survey research. In Part I, she thoroughly reviews the legal precedent and statutory rules that have established current bypass procedures in 34 states (p. 4). This section also includes an evenhanded assessment of reasons for and against parental involvement and the judicial bypass. In Parts II and III, the author moves beyond review of legal precedent by reporting the results of a survey and field interviews conducted with a cadre of research assistants who systematically contacted county courts simulating that they were pregnant minors. Silverstein collects survey data in three states with parental consent laws and bypass options—Pennsylvania, Tennessee, and Alabama—in order to evaluate how court gatekeepers, court advocates, and judges handle inquiries into a judicial bypass. Chapters 3, 4, and 5 in Part II show, on the whole, that those charged with implementing a judicial bypass are often ill-informed or completely ignorant of bypass options in their state; Chapters 6 and 7 in Part III show that some court actions can be identified as “misconduct” or “malicious” as judges regularly recuse themselves, require minors to receive Christian pro-life counseling, and appoint guardians to represent the unborn. Silverstein uses the results of her combined legal and survey research to conclude that “minors can be made to bear the weight of the state's moral perspective” (p. 154) and that this reality “dismantles the idealization that surrounds and upholds parental involvement laws” (p. 160). Ultimately, she makes her case loud and clear, disabusing abortion compromisers of the myths surrounding the fairness of parental consent laws.
Although the book is well written, clearly organized, and fascinating to read, some scholars might argue that the empirical data and the research design have some flaws. The author does not present concrete data on the percentage of minors who request and are granted a bypass by state, nor does she present an estimate of those who might be deterred by court gatekeepers or advocates. Further, she only surveys court systems in three states without identifying, in numerical form, the number of court systems surveyed or the raw number of times her research assistants were misinformed, maliciously mislead, or given suggestions to seek counseling.
It is exactly this kind of criticism, however, that makes evaluation of complex public policy almost impossible. Authors hesitate to conduct analyses that cannot be completely verified with extensive empirical support. It is especially difficult to measure rates and percentages when exploring abortion politics simply because the topic is so controversial and the subjects under analysis, whether court employees or pregnant minors in this case, are unlikely to fully disclose the motivations behind their actions or inactions. In fact, young women who decide not to take any action cannot be measured at all.
From the first chapter, and throughout the entire book, Silverstein adequately addresses the methodological difficulty she faces when exploring the implementation of abortion policy. For example, she acknowledges in her last chapter that most pregnant teens who request a bypass are indeed granted one; but she quickly points out, with some supporting evidence, that judges who do not recuse themselves are either overwhelmingly liberal or do not hesitate to grant the request while requiring the minor to attend pro-life counseling. Moreover, she addresses the problem of generalizing from a three-state case study by collecting and presenting information about similar problems with bypass procedures that have been identified in several other states in order to corroborate her findings. The richness of her interviews, seen through the selection of quotes from key bypass participants, is enough to satisfy a political scientist who respects and admires a good case study.
In her conclusion, Silverstein reminds “compromisers” that the existence of bypass options and the anecdotes about high rates of approval should not suggest that pregnant teens are guaranteed efficient or fair implementation of the rules. She points out that only strong-willed young women will ever even make it into the courtroom. In making her case against parental involvement, she essentially concludes, quoting Holmes (The Life of the Law, 1881), that the law reinforces current political and moral perspectives and that “the life of the law has not been logic: it has been experience” (p. 253).
