미국 낙태법상의 부모동의요건과 사법적 우회절차

• 영문명: Parental Consent Requirement and Judicial Bypass Procedure of the Abortion Laws in the United States
• 발행기관: 한국헌법학회
• 저자명: 최희경(Choi Hee-Kyung)
• 간행물 정보: 『헌법학연구』憲法學硏究 第9卷 第4號, 351~380쪽, 전체 30쪽
• 주제분류: 법학 > 법학
• 파일형태: PDF
• 발행일자: 2003.12.01

영문 초록

Parental consent requirement is among many abortion regulations states have instituted since Roe v. Wade held that abortion is a constitutional right of privacy. After Roe, states began to impose restrictions on a minor woman's access to abortion, usually by requiring the consent of their parents. The issue first presented itself before the U.S. Supreme Court in Planned Parenthood v. Danforth. In Danforth, the Court struck down a missouri statute that required a minor to obtain the consent of a parent before having an abortion. Three years after Danforth, the Court was again asked to consider the constitutionality of parental consent requirements. In Bellotti v. Baird II, the Court outlined a method for creating a constitutionally sound parental consent requirement. In other words, the parental consent statutes must be accompanied by some type of judicial bypass procedure. While Bellotti II establishes two criteria upon which minors can seek a waiver of parental consent - the "mature minor" standard and the "best interests" standard - neither that case nor any other Supreme Court ruling clearly defines these criteria. Trial court judges thus have substantial discretion when deciding whether and under what conditions to grant a bypass request. This article begins with an examination of the Court's decision in Roe v. Wade, the foundational case in abortion jurisprudence. Part II discusses and analyzes the majority opinions in Danforth. This part then discusses and analyzes the 1979 decision in Bellotti v. Baird and show that Bellotti radically altered the meaning and significance of Danforth and effectively eviscerated whatever constitutional rights of privacy the earlier decision may have created. Part III take a more detailed look at the judicial bypass procedure of parental consent requirement. This article seeks to show that despite consistent judicial language to the contrary, parental consent law has more to do with limiting abortion rights than promoting family communication and prudent teenage decision-making. Also, the judicial bypass procedure can not completely eliminate unconstitutionality from parental consent requirement.

목차

1. 서설

2. 부모동의요건과 사법적 우회절차의 등장

3. 사법적 우회절차가 포함된 부모동의요건의 검토

4. 결론

참고문헌

Abstract