At some point in the near future the U.S. Supreme Court will rule in the case of Roper v. Simmons, a case which questions whether adolescents ages 16 and 17 convicted of capital crimes can constitutionally be subject to the death penalty. The Supreme Court has already ruled that convicts 15 years old and younger may not be, nor may those older than 15 who are mentally deficient. There are numerous issues in the case, including whether the criminal justice system, in particular the jury system, functions properly and in an unbiased manner for accused adolescents, whether adolescents can receive a fair treatment from arrest through trial and whether execution of adolescents is “cruel and unusual” punishment.
The most serious issue from the point of view of advocates of reproductive freedom is that of adolescent immaturity. Opponents of the death penalty filed an amicus brief in the Court arguing that adolescents aged 16 and 17 have such diminished maturity and judgment that they should not be held responsible for their crimes to the extent that they would be subject to the death penalty.
The amicus brief was filed by the American Medical Association, the American Psychiatric Association, the National Association of Social Workers, the National Mental Health Association and other groups dealing with adolescents and the law.
The brief begins:
“The adolescent’s mind works differently from our. Parents know it. This Court has said it. Legislatures have presumed it for decades or more. And now, new scientific evidence sheds light on the differences.
Scientists have documented the differences along several dimensions. Adolescents as a group, even at the age of 16 and 17, are more impulsive than adults. They underestimate risks and overvalue short-term benefits. They are more susceptible to stress, more emotionally volatile, and less capable of controlling their emotions than adults.
In short, the average adolescent cannot be expected to act with the same control or foresight as a mature adult.”
The brief went on to detail recent research that shows that certain regions of the adolescent brain do not reach maturity until after age 18, these regions being those associated with “impulse control, regulation of emotions, risk assessment and moral reasoning.” The brief argued that these “‘disabilities in areas of reasoning, judgment and control of their impulses’ …categorically disqualify them from the death penalty.”
The following are some additional excerpts from the brief:
“Teenagers are prone to making bad judgments.”
“Psychosocial maturity is incomplete until age 19, at which point it plateaus….They have more difficulty seeing things in long-term perspective….Perspective and temperance do not mature until late in adolescence.”
“Researchers have found that the deficiencies in the adolescent mind and emotional and social development are especially pronounced when other factors—such as stress, emotions and peer pressure—enter the equation.”
“…the region of the brain associated with impulse control, risk assessment and moral reasoning is the last to form, and is not complete until late adolescence or beyond.”
“The foregoing data do, however, show that older adolescents are not simply miniature adults, with less experience or wisdom. They are also not equipped as adults to engage in moral reasoning and adjust their conduct accordingly.”
The brief went into some detail on actual brain functioning and development and concluded that 16 and 17 year olds were less culpable than adults to such an extent that they should be categorically excluded from the death penalty.
Various researchers have seen that the brain develops from front to back and that the last part to fully develop, the frontal lobes, are involved in reasoning, problem solving and moral judgment. There may be an evolutionary explanation for this since the other parts of the brain which develop earlier are those dealing with physical coordination.
The implications of the new research and the legal brief are troubling. First, the research does not say that teens aged 16 and 17 cannot act responsibly, make rational decisions or come to moral judgments. Parents know this. Parents let teens drive, go out alone, plan their homework schedules and make certain academic decisions. But parents also worry extensively when their teens are out, especially behind the wheel of a car. Parents instinctively worry about teen skills, judgment and peer pressure, and rightly so. The new research gives parents new biological grounds for worry. Teens have an inclination to make bad choices not just because of lack of experience or schooling or parental advice, but rather because their brains are not fully developed.
But we should note that brain development does not dictate behavior or judgment. We really don’t know the level of brain development that is necessary for “correct”, “mature” medical, sexual, parental and moral judgments. One has to be very careful making a causal connection between laboratory brain scans and actual teen behavior. Most teens do survive adolescence in good health, not having wrecked the car or themselves. They survive cramming their studies in at the last minute, driving while intoxicated, drug experimentation, teen parties and teen love affairs. The differences in brain development between a 16 year old and a 25 year old are real, but they may not determine significant behavioral differences.
But what of teen sex and pregnancy and the decisions around them? Can a teen make a rational, mature choice about a pregnancy, abortion or childbirth? Going to a party, staying out too late, choosing a high school course elective, drinking another beer and then driving, or having sex are in one sense momentary, singular events that are not likely to have lifelong consequences, except in tragic situations. But the decisions to have an abortion or alternatively to have a child are on a different level entirely. These decisions have lifelong consequences, especially the decision to have a child; however the abortion decision may or may not depending on the teens ability to cope with the decision and be comfortable emotionally with it.
I have argued in my book, Beyond Choice, that the decision to have a child for a teen is more consequential, and if states are going to impose parental consent requirements for abortion then to be consistent they must for childbirth also. The new research indicates that, even if there is no parental consent requirement for abortion, a new look may be needed on a teen’s childbirth decision and whether it requires some adult involvement. I have argued that the standard should be one of “informed consent” for both decisions. A teen that can demonstrate the requisite maturity to make the abortion or childbirth decision should be able to make it. This is the standard in New York currently. Younger teens who do not demonstrate this maturity for an abortion are referred by clinics to Family Court if they refuse to involve their parents. A guardian and social workers then try to work the teen through her situation. There is no requirement in New York for an informed consent for childbirth, which is after all the default option if the teen decides not to have an abortion.
I have also argued previously that the decision of a teen to have an abortion or to give birth affects her parents acutely. This is their grandchild that is either going to be born or not. The teen girl is the vehicle for her parents’ reproductive success, or not. The teen’s parents are only going to become grandparents and carry on their gene line if their children have children. Each grandparent and the teen may view their reproductive opportunities, possibilities and landscape differently. In most cases they will be in alignment, since most teens when pregnant tell their parents and they come to a mutual family decision on the best course to take. But not always and that’s the rub. Some teens are pressured or forced into one decision or the other which they don’t want and in a few cases are physically or emotionally abused, or worse.
The problem with the pro-choice movement’s stance is that it is based on this real threat of violence and abuse and extends it to every family. We are not going to win the battle against parental consent laws by implying that every parent is a child abuser. We have to be on the side of parents. After all, if the teen gives birth, then in most cases her parents will help raise and support the child. On the other hand we cannot accede to the arguments that teens are their parents’ property and can do nothing without parental consent.
The abortion decision, like that to give birth, is not an impulse decision where inherent teen risk-taking come into play—that may have happened when the teen “decided” to have sex in the first place. A teenager needs to find a clinic which in some states can take some doing, make an appointment at the clinic, get there, arrange for funds and go through counseling. Many states make her wait for an abortion either because they are required to or because the doctor only does them at certain times. The decision to give birth is even more prolonged. Of course, we know of teens who go into denial about a pregnancy and give birth seemingly unaware of their condition.
Does the new research showing that teen brains are not fully developed and thus that a teen should not received the death penalty because of diminished responsibility mean that we should raise the age of adulthood from 18 back to 21 or even to 25? Should teens with immature brains be entitled to serve on a jury, vote, drop out of school, get married, go to war or have a child or an abortion? It is probably too much to hope for consistency. Our military needs these young risk-takers to function and die for our country. But we should demand that lawmakers who try to impose parental consent for abortion do so for childbirth too. This should doom these efforts. Nor should parents be able to force a teen to either give birth or have an abortion. But should the state in loco parentis? What if a teen is in the custody of the family court and cannot make an informed choice between childbirth and abortion? At the moment, she will give birth unless there is a medical reason for the court to order an abortion. Is this the right default option?
Recently in Mississippi, a lawmaker introduced a bill (SB 2106) to require parental consent for every medical treatment or procedure on a minor age 15 or under, or even consult with them or prescribe medication for them, with exceptions for an emergency or for testing for venereal disease. This would seem to imply that a doctor could not in the ordinary course provide birth control, abortion or prenatal care for a 15 year old, but may be able in an emergency to deliver the baby. The teen could not consult in advance about having sex in the first place or getting protection from pregnancy or venereal diseases. It would seem that physicians would even be prohibited from delivering abstinence-only messages to their patients who came to see them on their own. These are the inanities that can result when lawmakers get involved in family matters.
Clearly more study is needed on teen decision-making regarding abortion and childbirth. I have argued that there are unconscious factors at work in the entire mating and reproductive process which are probably not going to be revealed in brain scans. We have evolved to reproduce and to do it early depending on our environment. We all know that our professed opinions about abortion may crumble when faced with the reality of an unwanted pregnancy. The pressures, cultural and evolutionary, for and against childbearing at a particular time cannot be measured in a lab. Nonetheless we on the pro-choice side must be prepared to differentiate a teen’s ability to make one kind of decision from another and demand consistency in our laws when teens are confronted with life-altering decisions. And we must be prepared to say that a teen’s reproductive strategy, when in conflict with her parents’, should take priority.
Most pro-choicers oppose the death penalty for teens, if not for everyone. The same organizations that filed a Supreme Court brief citing immature teen brain activity as a reason not to impose the death penalty also oppose parental consent laws. To my knowledge they did not consider the effect of their brief on our issues. We can say, I believe, that the new research they cite does not show that teens have no brain, just that their brain is not fully developed and therefore the proper process is for a pregnant teen to be evaluated as to her maturity to make a thoughtful decision that is right for her in her circumstances. There are ways to do this without acceding to demands for mandatory parental consent laws.