Demonstrators outside the Supreme Court in December. (Photo by Jane Norman/States Newsroom)
Nevada has been heralded by abortion rights advocates for having enshrined state protections for abortion, but there are still ample battlegrounds available for fights over reproductive rights.
Case in point: Nevada’s on-the-books but unenforceable 1985 statute regarding parental notification before a minor has an abortion, which may be revisited and decided by the state Legislature in 2023 or by voters in the 2024 general election — if a recently filed statutory initiative petition is successful.
That 1985 bill passed the Legislature with bipartisan support and was signed by Democratic Gov. Richard Bryan but never went into effect because it was enjoined by a court after being swiftly challenged by Planned Parenthood and a Reno doctor. It required a custodial parent or guardian of a minor seeking an abortion to be notified prior to the procedure taking place but allowed for a “judicial bypass” in which a minor could make their case to a district court and be granted approval for an abortion without their parents being notified.
In 1991, the Ninth Circuit Court of Appeals ruled the Nevada law was unconstitutional because its judicial bypass provisions were inadequate. Then-Nevada Attorney General Frankie Sue Del Papa opted not to challenge the ruling.
A few years later, in 1997, the U.S. Supreme Court upheld a Montana parental notification law that was similar, but not identical, to Nevada’s.
According to the Guttmacher Institute, as of January 2022, 38 states require parental involvement in a minor’s decision to have an abortion: 21 states require only parental consent, 11 states require only parental notification and 6 states require both parental notification and consent. Nevada is counted among those 11 states that require parental notification although its law is enjoined and not in effect, as is the case in Alaska and New Jersey.
Following those 1990s court rulings, a few bills were introduced in the Nevada Legislature to revise the parental notification statute to make it enforceable, but those efforts fell short. The most promising opportunity was likely in 2015 when Republicans had control of the state Legislature. That year, then-Assemblyman Ira Hansen sponsored a parental notification bill. It cleared the lower chamber but died in a senate committee.
“We have a situation where Nevada has a law on the books that could easily be enforced if they just fixed a few things,” said Melissa Clement of Nevada Right to Life, who is leading the parental notification initiative. “We have been trying to get it fixed, but the Legislature has lacked the will, or the numbers, to get it done.”
Clement says the new proposal, which was filed by the Protect Our Girls PAC, addresses the constitutional issues. The measure would require parental notification at least 48 hours prior to the procedure and in much greater detail than the unconstitutional 1985 law.
The Protect Our Girls PAC filed the parental notification statutory initiative before the last election cycle but failed to gather the required number of signatures, an outcome Clement attributes to the pandemic.
“We filed on March 13, 2020,” she said, referring to the day after Gov. Steve Sisolak declared a state of emergency over the coronavirus and mere days before massive shutdowns and social restrictions were put into place across the state. “That was the only reason it didn’t go any further.”
Clement believes this year’s outcome will be different and that the message will register with voters, even those who support more general abortion rights protections, such as the 1990 referendum that protects a woman’s right to have an abortion up to 24 weeks into pregnancy.
A Gallup poll from May 2021 found 32% of people believe abortion should be legal under any circumstance, 48% believe it should be legal only under certain circumstances and 19% believe it should be illegal in all circumstances. The circumstances that make or break support often come down to things such as gestational age, genetic defects, or cases involving rape or incest.
In 2011, when Gallup last surveyed Americans whether they would favor or oppose a law requiring women under 18 to get parental consent for any abortion, 71% said they would favor such a law. Twenty-seven percent said they would oppose.
“What we’ve been trying to do for decades now is reinstate parents where they should be, which is helping children through a difficult time and being involved in a fairly serious medical procedure,” said Clement.
The proposal is sure to face opposition from pro-abortion rights groups.
“Mandatory notification and consent laws can send young people on a shaming and traumatizing detour through the court that puts their health and well-being at risk,” said NARAL Pro-Choice America Southwest Regional Director Caroline Mello Roberson in an emailed statement. “Not only that, these laws disproportionately harm young people of color, who already face systemic barriers to care. Young people must have the freedom to access the abortion care they need without delay and in consultation with someone they trust—not to be used as pawns for political gain.”
“Let’s be clear, parental notification requirements routinely do more harm than good,” said Lindsey Harmon, executive director of Planned Parenthood Votes Nevada, in an emailed statement.
Harmon went on to note that several prominent medical associations, including the American Academy of Pediatrics, have expressed opposition to mandatory parental notification laws on the grounds they lead to a delay in access to health care.
Teenagers and adolescents make up less than 9% of abortions in Nevada, according to the Centers for Disease Control and Prevention’s most recent Abortion Surveillance report. But that figure includes teenagers who are 18 or 19 and therefore not minors.
In Nevada, adolescents younger than 15 made up 0.2% of abortions and teens aged 15 to 19 made up 8.6%. Both rates mirrored the national rates for those age groups.
Parental rights approach
Clement pushes back on the characterization of requiring parental notification as a women’s rights or abortion rights issue. Instead, she frames it as fundamentally being about parental rights and says that issue goes beyond the issue of abortion.
“I can’t tell you how many calls I’ve gotten from people saying, ‘I have to have my son consent to give me his medical records,’” she says. “Obviously that’s something that needs to be fixed in law.”
That is why, she says, Protect Our Girls PAC filed a second proposed statutory initiative that doesn’t change the state’s abortion statute at all. Instead, it alters a provision in the NRS chapter on parentage and affirms a parent’s “right to access and review all medical records of the child and to make and consent to all decisions regarding the physical and mental healthcare of the child.”
This much shorter and broader change to state statute would be open to interpretation. Absent or in conjunction with the passage of the parental notification initiative, the parentage initiative could potentially limit minors’ access to abortion because it references consent versus simple notification.
“It would probably be decided in a court,” said Clement. “I would hope … a court would say (abortion) is a medical procedure so this would apply. But I don’t know. That’s why we’re hedging our bets.”
To qualify their pair of statutory initiatives, Protect Our Girls PAC must collect and submit valid signatures from 140,777 registered voters in Nevada — 35,195 from each of the state’s four congressional districts — by Nov. 23. Then, the proposals would be sent to the Nevada Legislature for consideration within the first 40 days of the 2023 session. Lawmakers can opt to approve the initiative and make it law. If they choose not to, the initiative would appear on the next general election ballot, in 2024.
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