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The Honolulu Advertiser
Posted on: Monday, February 4, 2002

Hospital abortion policy may be settled in court

By Alice Keesing
Advertiser Health Writer

A new policy at Hawai'i's state hospitals requiring minors to have parental consent before getting an abortion appears likely to push the emotional issue to the courts.

Hawai'i law is unclear on whether minors must have their parents' permission to get an abortion. Observers say a legal fight over the new rule could produce a definitive court ruling.

The Hawai'i Health Systems Corporation, which manages the 12 state hospitals, says it based its new policy on law requiring parental consent for any medical treatment of minors. But others say that violates the U.S. Constitution, which guarantees minors access to abortions.

The new policy, which took effect last month, requires HHSC's hospitals to obtain consent from a parent or legal guardian before performing an abortion on girls younger than 18 who are not married.

That means fewer options for pregnant girls, particularly those on Maui and the Big Island, where HHSC hospitals can be the only choice, said Planned Parenthood of Hawai'i Chief Executive Officer Barry Raff.

Healthcare Association of Hawai'i President Rich Meiers said the state's private hospitals follow a similar policy based on law that requires parental consent for any medical treatment on a minor.

"If you did a medical procedure on a child and didn't have permission of the guardian, you can be sued ... so you have to be very, very careful," Meiers said.

But Planned Parenthood of Hawai'i and the American Civil Liberties Union plan to fight HHSC's policy, which they say is unconstitutional in restricting access to abortions for minors.

"I would say that legal action is not unlikely," said Brent White, legal director for ACLU's Hawai'i chapter.

HHSC legal counsel Alice Hall said that in a recent survey of hospital staff, no one could recall an abortion being given to a minor without parental consent.

In-patient hospital abortions are usually only required when the patient is more than three months' pregnant. Most patients can have an abortion before that in their doctor's office or at planned parenthood clinics.

There were 935 teen abortions in Hawai'i in 2000.

University of Hawai'i law professor Jon Van Dyke sides with those who say the policy violates the federal and state constitutions.

"It's a government hospital and if it's refusing to grant an abortion because of no parental consent, and if there's no other option for the young female to get the abortion, then there's a severe constitutional problem here; that would be in violation of the consistent Supreme Court rulings," said Van Dyke, who specializes in constitutional law.

Federal courts have upheld parental consent laws, Van Dyke said, but only if they contain a "judicial bypass" that allows minors to go to court to get permission for the abortion.

The HHSC policy offers no such exception. HHSC officials on Friday said they will no longer comment on the policy because of the threat of legal action.

HHSC has said it based its policy on state common law that requires parental consent for any medical procedure. Another state law allows minors to consent to medical treatment in certain situations — including venereal disease, pregnancy or family planning — but specifically not for abortions.

At odds with those laws, Van Dyke said, is the state Constitution, which allows minors access to abortions.

The conflicting laws have never been tested in Hawai'i's courts but observers say the brewing debate could push a resolution. The Legislature also could clarify the issue, however lawmakers have indicated they won't tackle the controversial issue this session.

Meanwhile, Gov. Ben Cayetano says he is looking into the matter to see whether parental consent is required by law.

"To be very frank, we have to do some research on it at this particular point," he said. "There is an argument to be made on both sides of the fence, and good arguments. ... It seems to me that the middle ground might be there has to be some kind of family counseling in all of this where a middle party offers help to the young person because, eventually, the parents are going to find out."

Staff writer Lynda Arakawa contributed to this report. Reach Alice Keesing at akeesing@honoluluadvertiser.com or 525-8014.