by Helena Silverstein. New York: New York University Press, 2007. 256pp. Cloth. $32.00. ISBN: 9780814740316.
Reviewed by Matthew Wetstein, Political Science Department, San Joaquin Delta College, mwetstein [at]deltacollege.edu.
In this book, Helena Silverstein, Professor of Government and Law at Lafayette College, attempts to expose how pregnant teenagers navigate the abortion laws intended to provide them a judicial bypass option that avoids parental notification. Her research is designed to challenge the idea that judicial bypass laws represent an effective and rational compromise that gets implemented apolitically (p.16). Silverstein implements a tremendous research design that yields a very well-written book, and the resulting evidence backs up a powerful indictment of street level justice at work.
The book is divided into four main parts. First, Silverstein surveys the legal landscape and the abortion balancing act that parental notification and consent laws reflect. The real heart of the book appears in Parts 2 and 3. Part 2 presents three chapters that examine the implementation of judicial bypass laws in three states: Tennessee, Alabama, and Pennsylvania. In Part 3, Silverstein examines how judicial hearings actually play out, with some particularly harrowing stories recounted in Chapter 7. The book closes with some hypothetical analysis of how the U.S. Supreme Court might analyze some of the judicial work in these three states and closes with a critique of the mythical compromise that judicial bypass laws represent.
The methodology of the book is particularly noteworthy and creative. Silverstein and her team of research assistants made phone calls to courthouses in each of the counties of the states asking a basic question: “I’m calling to find out how a girl who’s not eighteen who wants an abortion can get a judge’s permission to avoid telling her parents” (p.41). From that question, the researchers cataloged a multitude of initial responses, including referrals to a host of pregnancy counseling centers, health departments, legal aid departments, family planning offices, and a series of phone number referrals that produced wild goose chases. On some occasions, the initial phone call yielded an informative and helpful court staffer who could quickly advise the caller on the judicial bypass hearing process. The best performance emerged from Tennessee, a state that has a Court Advocate system in place for pregnant teens, and most of the state workers communicated “detailed and correct information” about the bypass process (p.47).
The bulk of the phone calls, however, led to disquieting results from the perspective of a pregnant teen who fears talking about an abortion with her parents. Many of the court employees who were telephoned either “doubted the existence of or knew next to nothing about the bypass option” in their state [*809] (pp.52-53). According to Silverstein, nearly half of the 222 county courts contacted “demonstrated substantial or complete ignorance about the bypass system” (p.53). In many cases, teens were told they would have to call a lawyer, or would have to call legal aid, even though it is a violation of federal law for such attorneys to handle abortion related cases (p.55). Where court employees demonstrated such ignorance of the bypass route, callers were frequently referred to the phone book to look up their own attorney, to abortion clinics (which typically provided very informed responses about the law), to other states for an abortion, or in some cases, were just simply told there was no bypass option and that the teenager would first have to talk to their parents (pp.53-66).
Chapter 5 reveals that in many cases, court employees and state workers engage in remarkable forms of misconduct that can dissuade a teen from seeking an abortion. Sometimes, callers would require as many 10 contacts over several days to reach an employee for information (pp.74-79). Frequently, callers would get bounced back and forth between different courtrooms, getting the “runaround” from juvenile to probate court and back. Sometimes tracking down an advocate in Tennessee would be difficult because the employees served multiple county courts, or had been on vacation, or recently moved from their post (p.80). Still other calls resulted in a kind of judicial dead end, where a teen might be told the judge does not approve abortion bypass petitions. As one Alabama court employee put it: “you have the right to file [a bypass petition], and the right to file in your initials . . . but that doesn’t mean he will grant it . . . the odds are real slim here” (p.85, italics in the original). As Silverstein points out, such outright judicial defiance is reminiscent of the work of Bradley Canon and Charles Johnson (1999) in their book on judicial implementation.
The lengths to which judges will go to defy implementing bypass laws are exposed in Chapters 6 and 7. It is here that Silverstein catalogs the efforts of Alabama judges to engage in two types of judicial activism that place emotional hurdles in front of pregnant teens who seek abortions. One practice is to require teens to seek pro-life Christian counseling before holding the bypass hearing (pp.100-114). Ostensibly, this is done under the guise of ensuring that a girl engages in informed and rational decision making because they get “both sides” of the abortion debate. However, the reality of “getting the other side” effectively means getting forced religious counseling (p.104). In the cases described in the book, girls are referred to Sav-A-Life Outreach Centers, where they encounter evangelical entreaties along with a strong dose of pro-life messages. In Silverstein’s words, the teens are “subjected to religious interrogation in a setting where proselytizing is the main order of business” (p.113).
The second hurdle that confronts young women in some bypass hearings is the appointment of “guardian attorneys” who represent the interests of the unborn fetus. With the presence of such attorneys, a hearing that routinely takes 30 minutes can stretch as long as four hours (pp.117-119). As such, pregnant teens who might have had to endure a difficult struggle against misinformation [*810] and hostility in getting access to the court, end up facing a hearing that presents hostile witnesses and hostile questioning from an avid pro-life attorney in front of a judge who is willing and ready to voice his/her own pro-life views. In such circumstances, the naked attitudinal behavior, so prominent on the U.S. Supreme Court, is just as vividly on display in a trial court setting.
Silverstein’s work provides a healthy dose of skepticism about the “myth of rights” surrounding bypass laws, and in doing so, echoes the work of Stuart Scheingold (1974) some 30 years ago. The flaw here is that Americans typically think of courts as upholding rights, and that courts help ensure that social change occurs. This mythical understanding gets exposed when examining the judicial bypass as closely as Silverstein has. The reality that pregnant teens often face is different from the perceived objective application of the supposed right to which they are entitled. Faced with hostile judges and ignorant court employees, teens and their attorneys frequently endure outrageous courtroom behavior to “go through the motions” to get the result they want. Pro-choice attorneys and their clients may face an extremely uncomfortable process, lengthy questioning, hostile witnesses and judges, but challenging them and raising constitutional objections would only harm their cause with the next pregnant teen (p.171). The result is that attorneys in such cases choose “pragmatism over principle,” and constitutional challenges to such practices as guardian attorneys or pro-life Christian counseling do not get raised (p.171).
Silverstein’s book should be read by a wide group of scholars and students. The book has obvious appeal for courses in gender studies, law and society, women and the law, and judicial process. The book is a wonderful example of how empirical research techniques can be used to address an emotionally laden topic from a completely new perspective. It is a skillfully executed work that has much to say about abortion policy at the “street level.” I recommend it highly.
Canon, Bradley, and Charles A. Johnson. 1999. JUDICIAL POLICIES: IMPLEMENTATION AND IMPACT (2nd ed). Washington, DC: CQ Press.
Stuart Scheingold. 1974. THE POLITICS OF RIGHTS: LAWYERS, PUBLIC POLICY AND POLITICAL CHANGE. New Haven: Yale University Press.
© Copyright 2007 by the author, Matthew Wetstein.