Judicial Bypass Bill Moves to Gov. Abbott’s Desk

On Friday, the House passed HB 3994, which substantially restricts the circumstances in which a woman under the age of 18 can obtain an abortion without parental notification or consent in Texas. The bill, which would alter the so-called judicial bypass process (read more about that here), underwent some notable changes in the Senate earlier this week before heading back to the House for a final vote.

One amendment axed what opponents had called an "abortion ID" provision, which would have required any woman seeking an abortion to present a valid government ID to a physician to prove she’s not a minor; that provision presented a major concern for those who work with human trafficking and undocumented immigrants in the state. An amendment by Sen. Charles Perry, the bill's Senate sponsor, now allows that, if a woman is not able to present some form of acceptable ID showing her age, the doctor can still perform an abortion and report it to the Department of Health and Human Services later.

Among other major changes in the bill is what happens if a judge fails to rule on a minor's bypass application. Under current law, a bypass is automatically granted if the judge doesn't rule; Republican lawmakers had wanted to change that to an automatic denial. Now, the bill is silent on the matter. Which, as Sen. Kirk Watson, D-Austin, pointed out earlier this week when the bill was heard on the Senate floor, could be just as problematic as denying applications when judges let the clock run out. “In essence, the judge can bypass the judicial bypass by simply not ruling,” Watson said.

Some Democrats wondered whether changes to the bill – like extending timeline for judges to rule from two to five days, making a bypass a lengthy process if the case has to be appealed – could landed Texas on the wrong side of the U.S. Supreme Court precedent. The SCOTUS ruling that instructed states on how to develop bypass laws requires that states set up a process so that qualifying minors — typically those who have been seriously abused or neglected, according to lawyers who represent the girls in court — have access to “expeditious” and “effective” abortions. Ostensibly, if a judge’s ruling is automatically silent, the minor can apply for bypass with another court. Still, for a young woman combating morning sickness, a growing belly, and potentially even running up against Texas’s ban on abortions after 20 weeks (not to mention the trouble of finding and traveling to one of the few clinics that are still open), waiting could have disastrous consequences.

Smaller changes were made in regards to better maintaining the privacy of court records containing any information about the bypass decision, where children of presiding judges may seek judicial bypass decisions for themselves, and what a course of action a physician is allowed to take if the abortion is considered a matter of medical emergency.

Among other things, the bill that's now heading to Gov. Abbott's desk further limits which minors can be granted a judicial bypass, raises the burden of proof for minors trying to prove the grounds for a bypass in court, and adds a civil penalty of up to $10,000 for anyone who "intentionally, knowingly, recklessly or with gross negligence" violates the judicial bypass law.

Most Democrats in the Lege have been deeply skeptical of the bill. Rep. Ina Minjarez, D-San Antonio, pointed out that the time required to appeal a judge’s denial, or a subsequent appeals court’s denial of girl's application could be weeks if not months, placing the young woman in a precarious position in regards to her health, safety and legal ability to still procure an abortion. After the original bill author, Rep. Geanie Morrison, waved off Howard’s and Minjarez’s concerns, the bill passed 102-43 with no further discussion. Seven House Democrats voted for the bill, while Houston's Sarah Davis was the only House member to vote against it. 

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