Six years after the U.S. Supreme Court ruled in Roe v. Wade, legalizing abortion across the country and protecting it as a woman's constitutional right, the high court took up another thorny issue: are pregnant minors afforded that same right?
The 1979 case Bellotti v. Baird challenged a Massachusetts law requiring pregnant minors to get parental consent before obtaining an abortion. In writing the plurality opinion, Justice Lewis Powell explained that the court had to balance two competing interests. Noting the "peculiar vulnerability of children," Powell wrote that the "rights of children cannot be equated with those of adults." However, Powell also said the decision of whether or not to end a pregnancy "differs in important ways from other decisions facing minors." While states may reasonably want to ensure that parents are in on the decision, Powell wrote that parents should not be allowed to exercise an "absolute, and possibly arbitrary, veto" over a girl's choice to have an abortion.
The ruling meant a couple of things. First, states could still have parental consent laws on the books if they wanted to (the court refused to extend full abortion rights given to adult women under Roe to minors). But states also had to provide an escape hatch: girls could petition a judge for approval if their parents wouldn't consent or if girls were too afraid to ask them.
Ever since, anti-abortion activists have been trying to restrict that process, known as judicial bypass, and this session there are a slate of bills filed by Republican lawmakers in the Texas Legislature that would make it increasingly difficult, if not impossible, for many teenage girls to get an abortion without the approval of a parent.
According to the most recent state numbers, doctors performed abortions on 1,911 minors in 2012. Yet there's no good data on how many of those minors had to use the judicial bypass process, which is confidential by law. Advocates with Jane's Due Process, a nonprofit that helps provide legal representation to pregnant minors in Texas, estimate that there are a few hundred judicial bypass cases in Texas every year.
Anti-abortion groups like Texas Alliance for Life characterize judicial bypass as legal loophole that "has been exploited by the abortion industry, and sympathetic attorneys often volunteer to shepherd minor girls through the courts for their secret abortions." The law, they warn, allows sexually active teenagers to conceal pregnancies from their parents. "This judicial bypass loophole supersedes parental rights and authority and endangers our young girls in Texas," the group states on its website.
But Jane's Due Process Executive Director Tina Hester says such criticism conveniently ignores the difficult circumstances that actually bring girls into court seeking a judge's permission to have an abortion in the first place. "We are talking about a very small number of young women who pursue a judicial bypass," Hester says. "And these are young women that have a very good reason to go to court instead of to their parents."
The state's law mandating parental notification for an underage abortion, which went into effect in 2000, lays out the requirements judges have to follow in hearing such cases. As it currently stands, girls have to prove one of three things in court before a judge can sign off on an abortion: either she must be "mature and sufficiently well informed" enough to make the decision without her parent or legal guardian, she must present evidence that notifying her parents would not be in her best interest, or she must show evidence that notifying her parents may lead to physical, sexual or emotional abuse.
Susan Hays, legal director for Jane's Due Process, says about a quarter to one third of girls the group encounters are what she calls "de facto orphans": minors who simply don't have the option of asking a parent or legal guardian for consent. In some cases, the girl may be undocumented and her parents have been deported. In others, a grandmother, aunt or older sibling has cared for the girl for years, but legal guardianship was never actually transferred over from the absent parent.
Hays says she represented one pregnant girl who didn't know her father and whose mother was on the run from police. This drug-addled mother -- who knew about the pregnancy but, for obvious reasons, wouldn't come home to sign consent paperwork --later called Hays to make sure her daughter was okay.
More serious, though, are the cases in which a girl has either already been abused or whose life could be ruined if she reveals the pregnancy. One of the first judicial bypass cases that was appealed all the way up to the Texas Supreme Court involved one 17-year-old "Jane" who testified that she was afraid to tell her alcoholic father about her pregnancy. The father, she claimed, would beat her younger sister for small infractions, like wetting the bed (the beatings left bleeding bruises on her sister's thighs). The teenager claimed she once witnessed her father grab one of her sisters by the throat and throw her into a closet. He once punched another sister so hard across the face that blood splattered on the nearby wall. "[L]ittle things make him snap," she testified.
The girl told the court she couldn't go to her mother, either, who told her "if I was ever pregnant, I might as well not come home. I'd have no place to stay."
"Abuse comes in a variety of packages," says Rita Lucido, an attorney who has represented girls in judicial bypass cases in the Houston area for 15 years. "We see kids who have been back-handed across the face for failing to unload the dishwasher one night. ... They can't even imagine what kind of personal hell they'll go through if a parent learns they're pregnant."
Hester with Jane's Due Process told us about one recent Houston-area case, a pregnant girl who came from an immigrant family of deeply religious Muslims. "She literally feared for her life, that if her parents found out she could very well be beaten or killed."
Hays recalled one former client whose parents were meth dealers. The girl couldn't get consent from her parents because she had recently run away, fearing her parents were about to start pimping her out for money, Hays says.
Given the abortion restrictions the GOP-dominated legislature passed in the 2011 and 2013 sessions, abortion providers in the state of Texas have quickly become an endangered species. With the number of clinics in Texas about to shrink into the single digits (depending on how the federal Fifth Circuit Court of Appeals rules, there could soon be as few as eight clinics in the entire state), Hays said pro-choice advocates began this session fearful that judicial bypass might be in the crosshairs of anti-abortion lawmakers.
Seems they had reason to be worried. By the time the filing window for bills had closed this month, no fewer than five bills had surfaced that would restrict the judicial bypass process. Some would make it so that girls petitioning a judge have to prove all three elements (that they're mature enough, parental notification is not in their best interest, and that they can prove a legitimate threat of physical, emotional or sexual abuse). House Bill 2531, filed by Fort Worth Republican Rep. Matt Krause, would even cut the threat-of-emotional-abuse language out of the statute.
Other bills would restrict how and where minors could petition a judge -- one bill would make it so girls could only file for a judicial bypass in their county of residence, while another bill would require girls to appear before a judge in person rather than through other typically-allowed methods, like teleconference.
And such venue restriction measures would only exacerbate an already serious problem, Hester with Jane's Due Process says. The organization recently conducted an informal telephone survey of 81 counties across the state, including all of the state's largest metro counties, to see what girls who called into a district clerk's office asking about judicial bypass were told.
The results don't exactly inspire confidence: more than a third of the counties the group called said they didn't handle judicial bypasses or couldn't provide any of the paperwork necessary to file an application (essentially refusing girls the option); nearly half of the counties gave the caller inaccurate information about the process; the clerk's office employee in one county told the caller she was an "advocate for crisis pregnancy centers," state-funded centers that offer pregnant women dubious and scientifically inaccurate information in hopes of persuading them not to have an abortion, and asked the caller to meet her in person after work to talk about her options; another clerk's office simply hung up on the caller.
(See also: Local Lawmaker Wants More Funding for "Crisis Pregnancy Centers") Pro-choice advocates also worry about another bill that would make the process a whole lot more public. Republican Rep. Ron Simmons' HB 1942 would mandate that counties make public the names of judges that approve judicial bypass applications and how many applications they've granted.
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Advocates worry that publishing such information would only further politicize the issue. They also argue that publicizing courts that grant bypasses presents a serious safety concern, given the lengths some anti-abortion activists are willing to go to target anyone connected to abortion.
As it stands, advocates say that most judges are willing to follow the law, if only grudgingly in some circumstances. Hester recalled the story of one judge who oversaw the hearing of a Jane's client and who brought in an evangelical pastor to pray with the pregnant girl.
"Some of the judges have made it quite clear they didn't approve of the minor's decision to seek an abortion," Hester says. "In one county, the judge appointed a Catholic priest as the guardian ad litem."
Hester also mentioned the judge-appointed guardian assigned to one of Jane's recent Houston-area cases. The guardian, who opposed abortion, urged the girl to reconsider her choice: "You are so beautiful. Don't you think you'll have a beautiful baby?"