Latest State Abortion Bill Could Invite Constitutional Challenge

Latest State Abortion Bill Could Invite Constitutional Challenge
Francisco Montes

Despite hours of opposition testimony, yesterday the state Senate Health and Human Services Committee passed a bill restricting minors’ access to abortion without parental consent. The “judicial bypass” bill, passed by the state House last week, was approved 5-2 this afternoon and will now head to the Senate floor. 

The bill’s march toward passage (barring death by calendar placement or filibuster) is unsettling to pro-choice advocates, child welfare workers, and adherents to the U.S. Constitution, as Monday’s testimony made clear. In essence, the bill would further narrow the circumstances in which pregnant minors could seek judicial bypass, the process of getting a court to sign off on abortion consent papers in absence parental consent. Among other things, the bill includes language stating that if a judge does not hear the application for judicial bypass within five days it will be automatically denied, and if passed, that provision would make Texas the de facto toughest place in the nation for a minor to receive judicial bypass. 

That is, no doubt, the point of the legislation originally authored by state House Representative Geanie Morrison (R-Victoria). While state Sen. Charles Perry (R-Lubbock) presented the bill to the committee by expounding on all the ways it will close “loopholes” in the present judicial bypass system, several witnesses working with Jane’s Due Process, a group that assists pregnant minors with legal representation, testified in committee that they were not exploiting a loose system, but rather working to get their expecting clients the most expedient services possible, as pregnancy does not halt for legal proceedings.  

In more than a dozen separate testimonies, Jane’s Due Process hotline volunteers shared the circumstances that brought pregnant teens to seek help obtaining judicial bypass (Jane’s Due Process says that the majority of pregnant teens in Texas do include their parents in the decision). In most of these anecdotes, the minor’s parents had died, were incarcerated, or were otherwise just “missing” and unable to give consent. In other instances, the teen feared physical abuse or neglect from her parents or guardians. One high school student called Jane’s Due Process because she feared her pregnancy would be just the excuse her methadone-addicted mother needed to kick her out of the house: “One less mouth to feed.” Another called on behalf of a friend who was so terrified of her parents’ reaction that she was planning to have her boyfriend punch her in the stomach until she miscarried.

The Supreme Court effectively created the judicial bypass process in 1979 for these types of delicate, heartbreaking situations. By their ruling, the process must be expeditious, confidential and effective for the minor. According to Tina Hester, the Executive Director of Jane’s Due Process, a recent survey of Texas counties showed that, even with the current judicial bypass system, passed in Texas in 1999, about 75 percent of counties could not or would not provide accurate information to minors applying for judicial bypass. HB 3994’s language restricting the court options to the county in which the girl lives or will have her abortion in (or a neighboring county if her county of residence is less than 10,000 people) isn’t likely to ameliorate this situation, although it does cut down on what the bill’s advocates call “venue shopping.”

Others who worked with victims of domestic violence and human trafficking worried that the bill’s duty to report — which requires the abortion physician and/or judge who suspects abuse report it to the Department of Family and Protective Services and local law enforcement, and local law enforcement respond within 24 hours — would nullify the judicial bypass’s confidentiality by alerting abusive parents or guardians. 

Social workers testified that a provision allowing judges to require the minor undergo a mental health evaluation before granting judicial bypass would “serve as a barrier,” given the time it takes to schedule and complete such evaluations (the witnesses' ballpark guess: at least 10 days). 

And even anti-abortion advocates like the Catholic Conference of Bishops and the Texas Alliance for Life strongly urged that the provision for automatic denial of judicial bypass application after five days be rethought. Under the current state law, if an application is not heard within two days, it is automatically granted. The automatic denial language was part of an amendment authored by state Rep. Matt Krause and tacked on to the bill at the last minute before it went to the House floor for a final vote. Under its proposed system, if the minor then appeals the judge’s denial, the appeals court has another five days to hear the appeal, and if they do not do so within that time frame, the appeal is also considered automatically denied. Joe Pojman, executive director for Texas Alliance for Life, testified that the automatic denial language “invites a constitutional challenge … [from which] there is nothing to be gained.”

Perhaps concerns that the bill won't pass constitutional muster will cause reflection when hours of emotional testimony could not. After hearing a demographer studying reproductive health say “The most heartbreaking thing I have ever seen is the [pregnant] 10 year olds … I just want you to remember that incest is real,” and a physician, sharing her testimony about being abused as a teen when her stepfather found her birth control, conclude with a plea for the committee to “think of the rights of these children,” committee member Van Taylor (R-Plano) looked the doctor in the eyes from across the dais. He drawled, “for those of us who are pro-life, we are thinking about the children.”


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