It’s Become a Lot Tougher for Minors to Get a Judge to Okay Their Abortions
As Charlotte looked down at her positive pregnancy test, the then-15-year-old knew two things immediately: that she didn’t want to have a baby, and that she couldn’t tell her parents.
“It wasn’t necessarily the responsibility that scared me or that turned me to that. It was that I was in no position to provide, because, I mean, I couldn’t provide for myself,” explained Charlotte, who was a junior in high school (she’d skipped a grade) when she realized she was pregnant. “My parents could barely provide for me.”
Her religious parents would never have allowed her to get birth control, said Charlotte (not her real name), much less an abortion. An older sister’s high school pregnancy had caused a rift in the family and her sister’s relationship with Charlotte’s parents had never recovered. Though she kept her baby, she’d ended up moving out. “They didn’t talk for a while,” Charlotte said. “That’s not what I want, obviously.” But according to Texas law, Charlotte would need the consent of at least one parent to get an abortion.
Still, if Charlotte told her parents about her pregnancy, she knew they’d eventually calm down and help her prepare for what they believed to be the only possible outcome: to become a mother.
“If I were to keep the baby and become a mom, any dreams I had, they’re going to go out the window, because I’m going to devote myself to being a mother,” Charlotte decided. She had known what college she wanted to go to since the sixth grade. She wasn’t giving that up.
As the weeks went by, Charlotte and her boyfriend became desperate. She consulted websites about how to self-induce an abortion and considered trying to emancipate herself from her parents.
Then she found out about judicial bypasses.
When a minor doesn’t want to, or can’t, tell a parent that she’s pregnant and wants an abortion — maybe because she faces abuse, maybe because her parents are MIA, maybe because, like Charlotte, she fears damaging her relationship with her family forever — she must go to a courthouse and file an application for what’s called a “judicial bypass.” The minor is appointed a lawyer and has a hearing with a judge, who decides whether she meets at least one of two requirements: that she is “mature and sufficiently well-informed” enough to have an abortion without her parents’ consent, or that trying to get her parents’ consent would not be in her “best interest.” If the judge finds the minor satisfies one of those requirements, only then will he or she grant the minor permission to get an abortion.
But thanks to Texas HB 3994, a new law that went into effect last January, many girls in Charlotte’s situation may no longer get their bypasses granted.
Before HB 3994, minors could file their applications for judicial bypasses in any county. Now, with some exceptions, minors must file in their home county. There are also more people involved in judicial bypass cases now. While in the past the attorney could serve as the minor’s guardian ad litem — someone whose only role is to look after the minor’s best interests — now that role must be filled by somebody, anybody, else.
Furthermore, before HB 3994, a judge needed to rule whether or not a minor could get an abortion within two business days after a minor filed her application; if the judge didn’t, the minor’s application was automatically granted. Now a minor may need to wait up to five business days, and if it’s not ruled on, her application is deemed denied.
Of course, the minor can appeal, but she faces a ticking clock: If she doesn’t get her bypass and her abortion within 20 weeks, barring a medical emergency, then she cannot receive an abortion in Texas. Thanks to these changes, among many others, Texas’s entire judicial bypass procedure has essentially been rewritten.
“For several sessions, this issue of judicial bypass reform kept coming up,” said John Seago, legislative director for Texas Right to Life, a pro-life group that helped shape and guide HB 3994 through the legislature. He explained, “We heard from these attorneys who had first-hand knowledge of this process, who had seen it, had seen the loopholes and how the abortion industry was using this process.”
Opponents of HB 3994 have a different explanation for why the law happened: “We kind of knew the writing was on the wall, because we knew that they’d done everything else they could to eliminate access to abortion,” said Tina Hester, executive director of the Austin-based Jane’s Due Process, a statewide nonprofit that connects minors seeking judicial bypasses with lawyers, among other services.
“We used to lose one [case] maybe a year, maybe two… It’s not supposed to be hard, if you read the U.S. Supreme Court cases on this issue. The government doesn’t get an absolute veto over anyone’s decision,” explained Susan Hays, one of JDP’s co-founders and its current legal director. Hays estimated that she has personally handled more than 100 judicial bypass cases since 2000, and has consulted on around 200. In the wake of HB 3994, “Our loss rate’s gone up to about 10 percent. And I’ve read every transcript from all those cases. They weren’t weak cases. They included Janes who testified to horrific domestic violence in the home, police being called because of parents’ physical abuse, and that wasn’t good enough.”
“Janes” is short for Jane Doe, the name courts often call girls seeking judicial bypasses. Since secrecy is the whole reason judicial bypasses even exist, the girls’ real names are never publicly revealed. Aside from a few court opinions and scant statistical information detailing how many judicial bypasses counties have sought reimbursement for, there is little concrete information available about them. (HB 3994 now includes reporting requirements.) Unless a judge publishes an opinion about a case, even the names of the judges who hear bypasses are kept secret. “The judges are reluctant to hear the cases because they don’t want to be seen as the judge that’s granted a judicial bypass, because it’s such a hot topic,” Hester said.
Texas is far from the only state to recently rewrite its judicial bypass rules. In the past five years, 11 of the 37 states that have “parental involvement” laws have made their bypass processes more restrictive, said Elizabeth Nash, a senior state issues manager for the Guttmacher Institute, a research and policy organization that focuses on reproductive health issues. “Pretty much every aspect of judicial bypass, states have been tweaking,” Nash said, adding, “[HB 3994 is] building on this trend that we’ve been seeing, but it does go further…Texas is definitely among the most restrictive.”
“To me, it’s not any specific provision that is necessarily concerning. It is the combination of restrictive standards, of restrictive provisions, that gives me pause,” agreed Helena Silverstein, a professor at Pennsylvania’s Lafayette College who wrote a book on judicial bypasses across the country.
But Texas’s judicial bypass process doesn’t quite qualify as the most restrictive in the United States. That honor, Nash and Silverstein said, would probably go to Alabama, which allows a judge to appoint a lawyer to argue against the minor — on behalf of her fetus.
‘We all want our teens to come talk to us. I think anybody who does this work says, ‘Well, of course that’s the model you want. You want your kid to confide in you,’” said J. Shoshanna Ehrlich, who has handled judicial bypass cases as a lawyer and studied them as a professor at the University of Massachusetts Boston.
Texas mandated that pregnant children confide in their parents in January 2000, when the state’s first parental involvement law went into effect. Today, Texas is one of five states to require both parental notification and consent, and one of three to require that that consent must be notarized, according to the Guttmacher Institute. Statistics indicate that most kids do get their parents’ permission: In 2014, the most recent year for which Texas Department of State Health Services data is available, more than 1,600 minors received abortions. Yet county courts sought reimbursement for only about 200 bypasses in fiscal year 2014, according to DSHS public records.
“It’s [obvious] that parents and guardians have information that would be important in evaluating and participating in a minor’s abortion decision, and taking care of them after,” said Denise Burke, vice president of legal affairs for Americans United for Life, a pro-life organization that crafts model anti-abortion legislation — including laws on parental involvement and judicial bypasses — for lawmakers across the country. Burke added, “We also have situations in which we want to make sure that minors are not getting secret abortions, say by an abuser or someone who has committed sexual assault on the minor…So parental involvement laws do a lot of good, satisfy a lot of society’s goals, in reducing abortions and protecting minors.”
Some studies have found that legal abortion rates go down after states pass parental involvement laws. However, one study also concluded that after Texas’s parental involvement law was enacted, second-trimester abortions went up among 17-year-olds because teens who were old enough when they conceived just waited till they turned 18 to have an abortion, which is often more expensive and dangerous the longer you wait.
Yet it’s nearly impossible to pinpoint just one reason why abortions are on the decline, Nash pointed out. Developments in contraception or more comprehensive sex education, for example, could also play a role. “The abortion rate has been going down” across the country, Nash said, “and it has been going down for minors as well as other groups of women. And so what we could be seeing isn’t necessarily impact of law, as much as we are seeing impact of other, outside forces.”
In 2000, Hays was working as a corporate lawyer in Dallas when she got a call from her boss asking if she’d help out on a judicial bypass cases for a young woman who’d gone to a Planned Parenthood clinic without a parent and didn’t speak English. She said yes, enlisting a Spanish-speaking colleague for help. “We did the case, and got our asses handed to us,” Hays recalled. Around that time, Hays happened to go to a dinner with other female attorneys. One of the other lawyers at that dinner, a Houston family law attorney named Rita Lucido, had already handled a few judicial bypasses. “I kind of grabbed her by the collar and said, ‘Come here, I need your help.’”
As phone calls kept coming in from clinics asking what they should do with minors who’d walked in without their parents, Hays and Lucido realized they needed help — and a headquarters. Within about four months, the two lawyers launched Jane’s Due Process, complete with staff, office space and a $40,000 check in start-up funds.
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Today, JPD is a one-room office in Austin run by two full-time staffers and a cadre of volunteers, who operate the crisis hotline, which minors call looking for help in seeking judicial bypasses. Despite JDP’s small size, Hester said, the nonprofit helps handle most of the judicial bypass cases in Texas. In 2015, it screened just under 300 minors for judicial bypasses across the state. Don’t bother trying to find JDP’s office, though: It’s unmarked, for fear that its workers will be hunted down by someone who might not support what they do.
And most people do support parental involvement laws, Pew Research Center polls have found. “They, in theory, make sense because we want to protect minors from their own immaturity,” Silverstein explained.
“People sort of assume, ‘Oh my God, all teens would say, “Oh, my parents would kill me,”’ Ehrlich said. “But in fact, the teens that don’t involve their parents are very thoughtful about it.” Her team analyzed hundreds of Planned Parenthood interviews of Massachusetts teens seeking abortions, and conducted interviews with more than 20 girls who’d successfully gone through the judicial bypass process. While many sought bypasses because they wanted to escape a “history of violence” or because their home lives were too unstable for a child, there were also some who couldn’t bear to disappoint their families.
One young woman was the first in her family to be accepted to college. “There were lots and lots of younger cousins, and she was kind of heralded as the role model of what they should all aspire to,” Ehrlich said. The girl knew if she told her parents, they would tell her aunts and uncles. The way the entire family saw her would change. “She took this responsibility of being a role model so seriously, in that she would be letting an entire extended network of family members down.”
“I’d say it’s more than half” — of the girls she’s represented — “who have experienced some sort of abuse, but there are a whole group of minors who don’t have a parent in their life. So they’re not being abused; they just don’t have anybody to give consent,” said Lucido, who now serves on JDP’s legal advisory board. These girls might have been raised by an adult or relative who’s comfortable with the girl getting an abortion, but because that person never got his or her guardianship legalized, he or she can’t legally consent to the abortion. “Some of them didn’t even know that this relative wasn’t their mother. I mean, I’ve had a girl come in and, in my office, the aunt said, ‘You know, I’m not your mom. I’m your aunt. But I raised you because your mom went back to Mexico.’”
Texas minors don’t always need parental consent for medical procedures. Minors can consent to treatment for STIs and drug addiction without telling their parents. If a minor has a child, she can make medical decisions for that child, but not for herself. And if she’s pregnant, she can consent to any medical procedure related to the pregnancy — except ending it.
Two of the most important elements of the judicial bypass process, people on both sides of the debate agree, are keeping the minors’ identities secret and helping those who are victims of abuse. The question is whether HB 3994 actually does that.
A few months before Charlotte took that pregnancy test, her parents discovered Charlotte’s boyfriend in her room. It didn’t matter that Charlotte insisted nothing had happened. Her mother started screaming at the boy, slapping him and threatening to call the police until he ran out of the house. Her father slapped Charlotte, once, and called all of Charlotte’s siblings to come home immediately for a family meeting, in which her parents told everyone what had happened.
“I couldn’t look anybody in the eye. I felt so stupid and ashamed,” Charlotte recalled, adding, “And my brother, all he said, he was like, ‘How could you be so stupid?’ And that was the one that broke me down, just like that. I was done.”
After the disastrous family meeting, Charlotte went to live temporarily with her older sister. “My parents wouldn’t look at me or talk to me,” she recalled. When she came home after a week, “It was kind of the same, how it always was, except my parents wouldn’t talk to me.” By the time Charlotte realized she was pregnant, she had thought that things were finally going back to normal. Asking her parents for an abortion would destroy that.
Though Charlotte found out about judicial bypasses through the Jane’s Due Process website, she said she didn’t use their services. Instead, her boyfriend found her a lawyer. After the panic she experienced over not knowing what to do, the judicial bypass was smooth. Her lawyer walked her through how the process worked and what the judge would likely ask about, from medical details about abortion to why Charlotte couldn’t tell her parents about her pregnancy. “What would happen to you at home, emotionally, physically?” Charlotte remembered the judge asking her at her hearing, which she said didn’t last long. “Would your parents hurt you, or would they force you to go through with the pregnancy? What would happen if you didn’t get this?”
“I don’t think they would beat me or anything,” Charlotte explained. “But I did feel like they could have done some damage emotionally, just like what I saw with my sister.”
In the end, Charlotte’s application for a judicial bypass was granted. Yet if she’d filed her application today, under HB 3994, the outcome of Charlotte’s hearing might have been different, because she went to the county next door for her hearing. Since Charlotte lived in a county that’s home to more than 10,000 people, she could not do that now.
Because minors must now usually file their bypass applications in their home county, opponents of HB 3994 say the girls are more likely to be recognized at the courthouse, especially in smaller or more rural counties. HB 3994 provides for that possibility by allowing minors in counties of under 10,000 to go to the county next door or to go to the county where their abortion is being provided, among other exceptions, HB 3994 advocates argue, though opponents still say this is far too low a threshold.
“These are cases that should be decided by judges who are familiar with the circumstances of minors in a local community,” said Joe Pojman, executive director of Texas Alliance for Life, another pro-life group that championed HB 3994. Through a public records request for DSHS data, Pojman discovered that in some fiscal years, Fort Bend County courts were reimbursed for about four times the number of bypass cases that Harris County courts were, even though Harris County’s population dwarfs Fort Bend County’s. (The state pays minors’ court costs, though minors still shoulder the cost of the abortion itself.) To Pojman, this signaled that girls who didn’t live in Fort Bend County were filing their applications there, perhaps in order to “venue shop,” or to get judges who might be more likely to grant judicial bypasses.
Really, Hays said, lawyers just didn’t like filing cases in Harris. “Harris is where we’re seeing the strangest behavior. It’s not the rural counties. It’s the politicized judges,” Hays explained, adding that in Harris County, judicial bypass cases rotate to be heard by every single district judge. “So you get judges who aren’t used to dealing with kids. You get judges who aren’t familiar with the ‘best interest of the child’ standard. And because the cases aren’t that common, you’re probably going to get a judge who’d never heard one or only heard one.”
Attorneys also said their clients sometimes struggled to get to downtown Houston, Hays said. For minors who may be in school, don’t have a driver’s license or need to keep their outing to the courthouse secret from their parents, limiting their ability to choose a courthouse might make it even tougher for them to get there. “I had a teen hitchhike before” to the courthouse, Ehrlich said. “She had no way to get to court. A friend was supposed to take her and got grounded.”
Opponents of HB 3994 say that the new guardian ad litem requirement will also likely jeopardize girls’ confidentiality. “We had an attorney get a report that the guardian in her case…told some other attorneys watching their kids’ soccer game about it, and trash-talked her client,” Hays said. Plus, not only is it difficult to even find yet another person to be involved with the case in smaller or more conservative counties—Hays said she’s also struggled to locate qualified, willing lawyers—but it amplifies something that Hester believed was already an issue before HB 3994: judges appointing inappropriate guardians. “We have one judge that always appoints an evangelical minister, the same evangelical minister, and he prays over the girl in the courtroom.”
Many of HB 3994’s changes, Seago said, are meant to ensure that these cases are being carefully examined by judges and other people who don’t face a “conflict of interest,” as he believes minors’ attorneys might, when it comes to granting bypasses. For example, local law enforcement must now get involved when physical or sexual abuse is reported, and judges have become mandatory reporters. “What actually works against the point of this law is to have frivolous claims of abuse that don’t have any evidence and are not actually truthful,” Seago explained. “So we had heard, you know, kind of received several accounts of Jane’s Due Process coming, getting involved and getting girls scripts, giving them something to tell the judge, and it included claims that they were being abused,” in order to guarantee that would get their bypasses. At the Senate hearing for HB 3994, a woman testified that this happened to her when she was a teenager seeking a bypass (which was granted).
None of the people involved with Jane’s Due Process who spoke with the Houston Press said they’d ever heard of that happening. Often, if a girl is being abused, she doesn’t even use that word, Lucido said. “I learn about what’s going on and then if I do believe that their circumstances rise to the level of abuse, then that would be part of my presentation… [The minors] don’t think being called a foul name, a filthy name, is abuse. I personally do. I think it’s very abusive to call a woman, especially a young woman, the filthiest names you can imagine. But parents do that.”
Chris Kaiser testified in the Senate against HB 3994 as part of his role as the director of public policy and general counsel for the Texas Association Against Sexual Assault. While he doesn’t object to many of HB 3994’s mandates for dealing with suspected abuse, Kaiser worries about limiting pregnant survivors’ options and ensuring their privacy. “There’s such shame and stigma and fear that goes along with disclosing sexual violence — especially when that victimization happens as a child — that concerns…about what happened getting out to the public, getting out to the friends and family, is a huge barrier to people coming forward to begin with,” he explained. He went on, “The vast majority of sexual abuse of children and adolescents occurs at the hands of people in that child’s family or household. So when that accusation comes out, all the people who are close to the accused very, very frequently turn on that child. And so to create vulnerabilities for that survivor’s privacy is really tantamount to creating safety concerns for the survivor as well.”
HB 3994 has at least kept one abused girl from getting her bypass granted in Texas. In July, a 17-year-old girl testified that “her mother has anger issues and has hit, kicked, and slapped her before,” according to a court opinion filed in the 14th Court of Appeals. The girl had moved in with her aunt, talking to her mom only once a month or so. Now, pregnant, the girl — identified only as Jane Doe or the “Applicant” in court documents — didn’t want to try to get her mom’s consent for an abortion, because she feared that “her mother would kick [her] out of the house, stop talking to her, and ‘be very, very mad.’” At Jane’s first trial, the judge found that it was in her best interest to ask her mother for permission.
That shouldn’t have mattered, because the judge had already found that Jane was “mature and sufficiently well-informed” enough to have the abortion. The Texas Supreme Court has established that in order to grant a bypass, a minor must prove she’s “sufficiently mature and well-informed” or that’s it’s not in her “best interest” to tell her parents about her need for an abortion. Apparently, the judge read that “or” as an “and,” and thus denied Jane’s application.
Jane appealed. The appeals court ruled that, yes, the judge had misinterpreted the law. However, the justices found that Jane’s application should still be denied. Since Jane didn’t specifically testify that she knew about the emotional and psychological consequences of an abortion, the appeals court believed that she did not present “clear and convincing evidence” that she knew about them. Under the new HB 3994-approved “clear and convincing evidence” standard, Jane was not “mature and sufficiently well-informed.”
Texas is now one of 15 states that use the “clear and convincing” evidence standard, instead of its previous “preponderance of evidence” standard, according to the Guttmacher Institute. Imagine truth as a spectrum. “Beyond reasonable doubt,” the highest possible evidentiary standard — which is not used in civil cases — sits at the far end. “Clear and convincing” is below that: You firmly believe something is very likely to be true. A “preponderance of evidence,” meanwhile, is closer to the middle of the spectrum, meaning that you think it is at least more likely than not to be true. (Lucido said that this latter standard is far more common in family court.)
The appeals court also found that the first court hadn’t erred in deciding Jane should contact her mother. “The risk that the mother would withdraw financial support and emotional support is nonexistent or not significant,” the opinion reads. “Applicant currently receives no financial support from her mother and does not appear to rely on her mother for any emotional support.” It seems that precisely because Jane’s mother doesn’t provide the support you’d typically expect a parent to provide, she keeps her parental rights.
If Jane still wanted to get an abortion without asking her mom, unless she appealed to the Supreme Court, she was out of luck in Texas. Jane’s only option would likely be to cross the border to New Mexico, since that state’s parental involvement laws aren’t in effect.
Two weeks after Charlotte got her request for a judicial bypass granted, Charlotte’s older sister drove her to the clinic for her abortion. Her sister even helped pay for the abortion, though Charlotte’s boyfriend sold his car to be on the safe side.
Charlotte is now 19 years old and a student at the college she’d dreamed of attending since the sixth grade, studying to become a teacher. She has a new boyfriend, a life full of classes and working and volunteering. Her relationship with her parents is much better.
“They did the best they could, but sometimes it just wasn’t enough, and sometimes what their heart told them to do was not exactly the best way. And so I don’t blame them for anything, and of course I love them, but I know that there’s just some things I wouldn’t have done,” Charlotte said. Still, she would never tell her parents about her abortion, which is why she requested that the Houston Press not use her real name.
Yet there are many young women who call the hotline at Jane’s Due Process who don’t get judicial bypasses — a girl might have her application denied, but she also might choose to tell her parents or to have the baby after all. JDP doesn’t always track how many minors follow through on getting their abortion, but employees and volunteers sometimes can’t forget their stories.
“I remember one from the Valley. [She] was like, ‘All I want to do is leave this house. And I can’t leave this house if I’m pregnant,’” Hester said. That’s what struck her: “Hearing in the voice of the young woman the determination if she can just get this abortion and get out of the house, that she has another life awaiting her.”