A bill that would radically change how and when minors can get an abortion without parental consent has been fast-tracked to hit the House floor later today.
A law that passed during George W. Bush's final term as governor created the so-called judicial bypass process in Texas, in which minors can petition a judge to get an abortion under extenuating circumstances without parental consent. After a flurry of early appeals to the Texas Supreme Court, that law has sat on the books relatively unchanged for more than a decade, according to lawyers who represent minors seeking an abortion.
Now, reproductive rights advocates say that Texas Republicans have turned to judicial bypass as a way to score another feather in their anti-abortion caps this session. A bill fast-tracked to the House floor today, HB 3994 by Victoria Republican state Rep. Geanie Morrison, could throw the judicial bypass process into disarray, cutting off abortion access to girls seeking the procedure under incredibly desperate circumstances, advocates say.
The 1979 U.S. Supreme Court case that led to the judicial bypass laws across the country attempted to balance two competing interests — that while parental rights should be safeguarded, parents shouldn't be allowed to exercise an "absolute, and possibly arbitrary veto" over a girl's choice to carry a pregnancy to term. Under that SCOTUS ruling, states had to provide an escape hatch for girls in pressing circumstances: judicial bypass.
As it stands, Texas's current law outlining the judicial bypass process has already been crafted to ensure girls aren't getting judge-approved abortions simply because they're afraid their parents might be mad upon finding out they're pregnant. Currently, girls have to prove one of three things in court: that they're already "mature and sufficiently well-informed" to make the decision without a parent or guardian; that notifying the girl's parents would not be in her best interest; or that there's clear evidence the girl could face physical, sexual or emotional abuse if she told her parents about her pregnancy.
Susan Hays, legal director for Jane's Due Process, a nonprofit that helps provide legal representation to pregnant minors in Texas, says that Morrison's bill "totally rewrites the grounds for getting a judicial bypass.…From looking at the bill, I, as a lawyer, can't even tell what the hell we're supposed to prove in court.”
In addition, the omnibus bill contains a number of other changes that make pro-choice advocates nervous. For instance, it would extend the time window for judges to rule, meaning cases that get appealed could take weeks instead of days. The bill would also make public the names of judges who approve judicial bypass applications and how many applications they've granted — advocates with Jane's Due Process say this presents a safety concern for courts and would even further politicize the process. The bill would also require women of all ages to present a valid government-issued ID to get an abortion.
However, Hays says a couple of provisions in Morrison's bill stand out. First, the bill would essentially change how judges define “abuse” in judicial bypass cases.
Judges are currently required to grant judicial bypass if girls can show that notifying a parent “may lead to physical, sexual or emotional abuse.” And what, exactly, constitutes abuse has already been litigated. Back in 2000, then Texas Supreme Court justices Craig Enoch and James Baker wrote in one opinion to a contested Jane Doe bypass case, “Abuse is abuse; it is neither to be trifled with nor its severity to be second guessed.” Then-justice Albert Gonzalez elaborated in a concurring opinion:
“...courts must, for example, distinguish between embarrassment and cruel humiliation. They must distinguish the minor who merely wants to avoid parental disappointment and disapproval from the minor who is at risk of serious emotional injury.”
In another 2003 Jane Doe case, the Texas Supreme Court held that evidence of family violence in the home or a girl's fear of complete abandonment by her parents met the standard for abuse.
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Morrison's bill, however, could throw that case law out the window, forcing courts to instead follow the provision of the Texas Family Code that outlines the circumstances under which child protective services can terminate parental rights. Under Morrison's bill, girls seeking an abortion would have to prove “mental or emotional injury to a child that results in an observable and material impairment in the child's growth, development, or psychological functioning,” and, “physical injury that results in substantial harm to the child, or the genuine threat of substantial harm from physical injury to the child.”
“Quite literally, this would require some teenage girls to be beaten before they can obtain an abortion,” Hays says.
Morrison's bill also deletes a requirement that the Department of Family and Protective Services help girls in foster care apply for judicial bypass if they ask for it. Hays says she's had more than one client abused and impregnated by a foster parent.
“The statute was written so that a girl in CPS custody wouldn't be completely cut off from access to abortion,” Hays says. This change, she insists, "is basically just picking on the least among us.”