Legal Considerations for Minors

Can minors in Illinois get an abortion?

Yes, they can. Under Illinois law, a pregnant person who is under age 18 (a minor) can consent to an abortion on her own and does not need parental consent (permission).1 However, Illinois law now requires health providers to notify an adult family member before providing an abortion to a minor. There are some exceptions and minors can also choose judicial bypass if they do not want a parent notified. 

Typically, a minor needs parental consent to obtain medical care. However, all 50 states have laws that allow minors to consent to certain reproductive health services on their own.2 In addition, Supreme Court decisions have established that the constitutional right to privacy encompasses minors’ reproductive decisions, including a minor’s right to certain reproductive health care such as contraceptive services and abortion.3-6 However, a minor’s right to privacy is not absolute and the state has more authority to restrict that privacy than it does with adults.

Parental notification requirement

As of August 15, 2013, Illinois state law requires health care providers to notify an adult family member (defined by the law as a parent, legal guardian, grandparent or resident step-parent who is over 21) at least 48 hours before providing abortion care to patient under age 18. The minor can choose which adult family member will be notified and the provider must still obtain the permission of the minor to tell the adult family member. The law does NOT require consent from an adult family member and an adult family member or parent cannot prevent a minor from seeking an abortion. This law does apply even if the pregnant minor already has a child.

There are several ways parents can be notified. These include:

  • An adult family member can come to the appointment with the minor and waive the right to 48 hours' notice.
  • The health care provider can inform an adult family member 48 hours before the appointment, either in person or by telephone.
  • An adult family member can sign a letter that says s/he waives notice and the 48-hour waiting period, which the minor brings to her provider. Here is a sample letter.
  • A referring doctor who already provided notification 48 hours prior to the start of the abortion can fill out a form describing that notification.
  • For those under 18 years of age in foster care or otherwise wards of the state, the Department of Children and Family Services has issued guidance.

There are several exceptions to the law requiring notification. An adult family member does not need to be notified if:

  • The doctor decides that there is a medical emergency.
  • The minor is married, divorced, or widowed. However, an adult family member does need notification even if the minor already has a child.
  • The minor is emancipated by court order.
  • The minor provides a signed statement declaring she is a victim of sexual abuse or physical abuse or neglect by an adult family member. If the minor provides this written statement, a health provider may be required to report abuse or neglect to the Department of Children and Family Services after the abortion. 
  • The minor receives an order from a  court judge at a “judicial bypass” hearing waiving the notice requirement. To get a judicial bypass order, the minor must prove that she is either sufficiently mature and well enough informed to make an intelligent decision about whether to have an abortion OR that adult family member notification would not be in her best interest. Minors are eligible for a free lawyer to help them in this process. More information at the Illinois Judicial Bypass Coordination Project.

Studies have shown that in many cases one or both parents is aware of their daughter’s decision to seek an abortion.7-9 Minors who do not want to involve a parent present a range of individual and complex reasons for choosing not to do so.7,10 Data suggests that good family functioning and communication prior to pregnancy can encourage dialogue once a pregnancy occurs.7, 11-14 Numerous leading professional medical organizations support confidential care for adolescent patients, while encouraging family communication and compliance with the law.15-19

Ensuring confidentiality

Other system-based factors can interfere with confidentiality. For example, if a minor uses a parent’s insurance coverage to pay for care, an explanation of benefits may be sent to the parents as holders of the insurance policy. Young people can request direct receipt of the documents by contacting their insurance company.

The Health Insurance Portability and Accountability Act of 1996 (HIPAA) also has rules that apply specifically to minors. While generally protecting health information for any patient who is able to consent to his or her own care, the HIPAA Privacy Rule defers to state laws when it comes to a parent’s ability to access medical information.20-22 When state laws are silent, it may be left to the discretion of the treating physician under HIPAA. In Illinois, state law requires notification of an adult family member when a minor seeks abortion. Minors in Illinois do have authority to consent to other aspects of reproductive health care (e.g., contraception, STI treatment) and there is no state law that requires disclosure to parents so in these cases it is left to the physicians’ discretion.

What about mandatory reporting?

State mandatory reporting laws require health care professionals to breach confidentiality in order to report suspicions of child abuse and neglect, including sexual abuse. Legal precedents also require disclosure in situations where a minor is presenting a serious risk of harm to self, including suicidal ideation or homicidal threats.

Illinois’ law requires reporting of child abuse and neglect by mandated reporters to the Department of Children and Family Services (DCFS). DCFS investigates cases of child sexual abuse when the perpetrator is a family member, a person living in the home of the child, or a person in a position of of trust or authority (e.g., teacher, babysitter, volunteer in a youth program). DCFS will investigate parents and guardians for permitting the sexual abuse of a child if the parent or guardian takes an active step to encourage abuse.

Resources

  • Illinois Child Abuse Hotline: 1-800-25-ABUSE (1-800-252-2873) or 1-800-358-5117 (TTY); 217-524-2606 if calling from outside Illinois.
  • Department of Children and Family Services (DCFS) reference of definitions and reporting guidelines for Illinois providers is A Manual  for Mandated Reporters. DCFS also offers an Online Mandated Reporter Training
  • Position Paper from professional medical organizations on the issue of mandatory reporting of sexual activity and abuse.

​*Please note that the above information does not reflect legal advice.