Vanderbilt Law Review

First Page



Since the 1973 decision in Roe v. Wade,' minors have been particularly affected by the efforts of pro-life activists and state legislatures who have curtailed abortion rights by lobbying for and passing legislation that restricts reproductive freedom. Forty-three states have enacted laws requiring a minor either to obtain consent from or to notify one or both parents before undergoing an abortion, and thirty-three of these statutes are currently enforceable. The Supreme Court has recognized the right of parents to be involved in a child's upbringing and the prerogative of the state to limit a minor's freedom to make major life choices due to a minor's lack of experience or judgment. The Court, however, has held that the Fourteenth Amendment protects minors and adults alike and that a minor has the right to choose whether or not to terminate her pregnancy, subject to certain limitations imposed by the state. The Supreme Court has held that if a state requires a minor to consult with a parent before deciding to terminate her pregnancy, the state must offer the minor a judicial bypass option if she chooses not to involve a parent. The Court reasoned that, in order to protect a minor's right to choose, the state cannot allow parents an ab- solute veto over a minor's decision if she is mature enough to make the decision on her own or if she can demonstrate to a court that an abortion would be in her best interests."

While the Supreme Court has not ruled whether a minor has a right to counsel in civil proceedings, child advocates argue that the appointment of counsel for minors in civil proceedings is necessary to ensure effective legal representation and adequate protection of a minor's interests. In states that mandate appointment of independent counsel on behalf of a minor in a civil proceeding, a juvenile court may appoint an attorney or a guardian ad litem to represent the minor. In addition to judicial bypass proceedings, a guardian ad litem may be appointed to represent a minor in proceedings involving child abuse and neglect, custody disputes, termination of parental rights, and adoptions. A guardian ad litem is often a lawyer "appointed by the court to appear in a lawsuit on behalf of an incompetent or minor party.' In circumstances in which there is no conflict of interest between parent and child, parents may serve as guardians ad litem because they are the natural guardians of their children. A judicial bypass proceeding, however, is a situation in which the court appoints representation because there is clearly either a conflict of interest between parent and child or the minor has chosen not to involve her parents.'