In our previous article entitled Minors and Medical Consent, we discussed a minor's right to consent to various medical treatments. One portion of that article referred the reader to Florida Statute 390.001(4)(a) regarding the right of a minor to consent to the termination of her pregnancy. Although that portion of the statute has never been repealed and, in fact, continues to be published in current editions of Florida Statutes, the State is not attempting to enforce it. This is a result of a Federal Court of Appeals decision in 1981 declaring that portion of the statute unconstitutional. This article is intended to explain to the practitioner the current state of the law in Florida with regard to the right of a minor to consent to the termination of pregnancy.

In order to fully understand the issue, it is necessary for us to briefly examine the evolution of the right to abortion as described by the various United States Supreme Court decisions. Most all practitioners are aware of the famous Supreme Court case of Roe v. Wade which in 1973 established the constitutional right of an adult woman to choose to abort her pregnancy. In that decision the court held that the "...right to privacy is broad enough to encompass a woman's decision whether or not to terminate her pregnancy..." This right, however, was not extended by the Supreme Court to unmarried, minor women until 1976. In that case, Planned Parenthood of Central Missouri v. Danford, the court held that a state statute which required a parent's consent before an unmarried minor could obtain an abortion was unconstitutional. It noted that the state did not have the authority to give a third party (whether a spouse or parent) an absolute, and possibly arbitrary, veto power over the actions of the physician and his patient's decision to end a pregnancy. However, the court has been careful to point out that their decisions do not mean that a state is powerless to enact regulations concerning abortion. If the state demonstrates a compelling interest, a specific regulation furthering that interest may be constitutional.

In 1979, Florida enacted such regulations concerning abortions. With regard to minors, it required that the physician obtain the written informed consent of a parent, custodian or legal guardian, or rely on an Order of the Circuit Court. As noted above, the difficulty with prior acts was that they did not give the minor an alternative to parental veto of her decision to have an abortion. This statute attempted to provide that alternative with the minor's right to obtain a court order. However, at about the time of this enactment, the Supreme Court was considering a similar statute from another state. There the court recognized the state's interest in protecting its children but it was concerned that the regulations were too restrictive. In particular, it held that although a state could provide a court Order as an alternative to parental consent, the court considering the minor's petition would have to make its decision within certain confines. In particular, if it found that the minor was mature enough to provide an informed consent, then she had to be allowed to do so even if the court determined it was not in her best interests. This same defect existed in the Florida Statutes. It allowed the court, even in the instance of a mature minor, to make a decision that the abortion would not be in her best interest. This, as noted, was unconstitutional as the U.S. Supreme Court has provided that under such regulations:

Every minor must have the opportunity if she so desires to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well enough informed to make, intelligently, the abortion decision on her own, the court must authorize her to act without parental consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion, nevertheless, would be in her best interest. If the court is persuaded that it is, the court must authorize the abortion. If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interest, it may decline to sanction the operation.

The Florida Legislature has not attempted to correct this defect in the statute. As a result, there is no statutory regulation being enforced in Florida which; sets out procedures to which a physician must adhere in obtaining the consent of a minor to terminate a pregnancy. Without such regulation, the physicians' only recourse is to fall back upon standard tort concepts of informed consent. Because the minor, if mature, has a constitutional right to have an abortion performed, the physician may attempt to obtain an informed consent from her when dealing with pregnant minors. As with any informed consent discussion he shou1d describe, at the least, her medical condition, the nature of the procedure he proposes, the risks, the reasonable alternatives and the consequences of not undergoing the procedure. Once he has done this he must determine if she is "mature and fully competent to assess implications of the choice she has to make."

This may create a difficult dilemma for a physician who is not used to dealing with minors in this circumstance. The decision may not be easy and could be further complicated if he does not know the child's prior history. His determination that he has received an information consent from the minor may very well be contested in a civil action on another day. If a jury finds that the decision was incorrect, liability could be imposed. As a result, if the physician finds himself uneasy with this determination, he and the patient may be best served by referring her to another physician with experience in this area, to the appropriate state agency or to the court system.

This article has not been intended as a reflection of the author's views on the termination of pregnancy. Rather, it is meant solely as a survey of the current State of Florida law. And, in this regard, the reader should understand that the Supreme Court is continually evaluating the abortion issue As a result, there can be no guarantee that today's decisions will not be modified or changed in the near future. Finally, the comments herein apply only to pregnancy and should not be used as a basis for other medical treatment of minors. For further information on those subjects the reader is referred to Minors and Medical Consent. It should also be noted that the article does not address the remainder of Statute 390.001 on abortion. Section 390.001(4)(b) on spousal notice has also been questioned by a Federal court but will discussed in future articles.