More importantly, should Texas prevail in court, the case could pave the way for other states to pass similarly tough restrictions on clinics, in effect redefining who has access to an abortion.
With that track record of success, anti-abortion lawmakers in the Texas Legislature didn’t ease up in 2015 legislative session. In June, Gov. Greg Abbott signed House Bill 3994, which makes it harder for abused or neglected minors to petition a judge for an abortion without a parent or guardian’s consent.
And on Tuesday the Texas Supreme Court made that process even more difficult. Under the new rules, minors, or “Janes” as they’re referred to in the anonymous court proceedings, would automatically be denied their application for an abortion if a judge simply waits five business days without ruling or setting a hearing in the case.
“Jane literally does not even get her day in court,” said Susan Hays, legal director for the nonprofit Jane’s Due Process, which represents abused or neglected minors seeking abortion.
Hays was one of several attorneys who sat on a subcommittee tasked with drafting rules for how to implement HB 3994. But the Texas Supreme Court had its own ideas. On Tuesday the court took the restrictions set up by lawmakers and did them one better, adding its own rules that make it even harder for minors to get an abortion. Consider it an unexpected year-end bonus for anti-abortion lawmakers and activists.
Earlier this year, as lawmakers considered the law, Hays and others had already warned that the new restrictions appeared to clash with the U.S. Supreme Court ruling that set up judicial bypass in the first place. (This Texas Observer story from October describes how some of the state's top legal minds struggled to make a potentially unconstitutional law constitutional.)
As it stands, according to Hays and other advocates, most judges across the state have been willing to follow the bypass law, if only grudgingly in some circumstances. That might be because up until the legislature changed it this year, the law included a safeguard against obstinate jurists by making it so that applications for abortions were “deemed granted” if there wasn’t a ruling after two days. (Attorneys who spoke with the Press earlier this year spoke of some judges bringing in evangelical pastors to pray with pregnant girls; one judge reportedly appointed a Catholic priest to be a girl’s guardian ad litem.)
Lawmakers this year axed that “deemed granted” provision and expanded the deadline for a judge to rule to five business days. On Tuesday, the state Supreme Court took things one step further by saying applications will automatically be denied if a judge won’t rule on a case.
“A judge can now stall out a minor by doing nothing,” Hays told us. “The Supreme Court went beyond what even the Texas Legislature did in their apparent zeal to restrict access to abortion and in this case the court system.”
During the legislative session, anti-abortion lawmakers and their supporters characterized judicial bypass as a “loophole” that’s been “exploited by the abortion industry,” a way for sexually active teens to hide pregnancies from their parents. Yet advocates say that ignores the precarious circumstances that bring a minor into court to ask for an abortion in the first place. (Advocates who work with these minors estimate it's only a few hundred girls a year who file such applications.)
Jane’s Due Process says many of the girls they see are de facto orphans, minors who simply don’t have the option of asking a parent or guardian for consent. Perhaps the girl’s parents have been deported, locked up, or are the run from law enforcement (all actual examples, according to attorneys who represent these cases).
More serious however are the cases in which a girl has either already been abused or whose life could be ruined by revealing her pregnancy. One of the first judicial bypass cases ever appealed all the way up to the Texas Supreme Court involved a 17-year-old “Jane” afraid to tell her alcoholic father about her pregnancy.
The father, the girl testified, would beat her younger sister for small infractions, like wetting the bed. The teenager claimed she once witnessed her father grab one of her sisters by the throat and throw her into a closet. The father, she said, once punched another sister so hard across the face that blood splattered on a nearby wall; “little things make him snap,” the girl testified.
And telling mom wasn't an option. The girl testified that her mother had already warned her “if I was ever pregnant, I might as well not come home. I’d have no place to stay.”
On Tuesday night, Texas Alliance for Life executive director Joe Pojman praised the state Supreme Court’s new rules for judicial bypass applications, saying in a statement, “The Texas Supreme Court has faithfully implemented House Bill 3994 in a way that will best protect the well being of minor girls."