Judicial What? The Trials, Tribulations and Basis of the Judicial Bypass Process
If you’re one of the roughly 750,000 teens under the age of 20 in the United States to become pregnant every year, and you've decided to get an abortion, you may discover you live in a state where “Parental Involvement” laws exist. Currently, 37 states require that minors — in most states this means people under 18 — either receive consent from or notify a parent or guardian that they are having an abortion in order to get that abortion.
For the nitty gritties on what consent and notification involve, check out this great blog post, but in short, states that require consent require that you receive permission from a parent or guardian to have an abortion. Some states require only one parent or guardian, but others, like Kansas and Mississippi, require (and assume a person to have) both. Other states, like Arizona, and Nebraska require consent to be notarized. In states where only notice is required, you must provide documentation that your parents are aware of your abortion, but they do not have to grant permission in order for you to have one. A few states, including Texas and Wyoming require both consent and notification.
In every state where consent or notification is required, there is also a judicial bypass option.
A judicial bypass involves going to court and receiving legal permission from a judge to receive an abortion without notifying your parents or obtaining consent from them. In other words, it means asking the judge to effectively act as your parent.
While these laws are framed as child protection laws, necessary to ensure parents are a part of their children’s medical decisions, they are really nothing more than yet another roadblock to access. What makes them exceptional is that, unlike some abortion restrictions, like waiting periods and mandatory ultrasounds, or TRAP laws that force clinic closures, they exist in the vast majority of the country — in both red and blue states.
In some states the process looks different than others — in Massachusetts, the courts have accepted almost every single petition for bypass since the law was enacted, but in other, more conservative, states, many teens are turned away.
Where did these laws come from? And why are they so pervasive? For those answers, we have to look to the constitutionality of them, which was first recognized by the Supreme Court in 1979, in Bellotti v. Baird.
In this legal case, petitioners challenged a Massachusetts law that required minors to obtain consent from one or both of their parents before obtaining an abortion. The Supreme Court, upholding the lower district court’s ruling, affirmed that the Massachusetts law was unconstitutional because it posed an undue burden on access by not providing an alternative for minors who could not get consent from their parents.
They ruled that a pregnant minor is entitled to a judicial proceeding in which the court must find that they are mature enough to have an abortion, or that it is in their best interest to do so.
This two-prong test remains the standard for judicial bypass hearings today.
After Baird, the Supreme Court upheld bypass provisions again, in Planned Parenthood v. Casey, in 1992. In Casey, five provisions of the Pennsylvania Abortion Control Act of 1982 were at issue including sections pertaining to informed consent, a 24 hour waiting period, and the constitutionality of requiring a minor to obtain consent from one parent or guardian to have an abortion.
The court upheld the parental involvement provision, and Casey set forward a new standard for deciphering whether or not an abortion restriction violated the landmark ruling, Roe v. Wade — that an abortion restriction could be upheld, so long as it did not pose and “undue burden” on access.
In deciding the Pennsylvania provision requiring a minor to obtain consent or a judicial bypass, the court relied on its ruling in City Of Akron v. Akron Center for Reproductive Rights. In this case, the court struck down a provision prohibiting a physician from performing an abortion on an unmarried minor under the age of 15 unless they had parental involvement or a court order. Here, the court pointed out that the Ohio law did not establish a procedure through which a minor could avoid parental involvement, and did not comply with the bypass requirement in Baird, because it made a blanket assumption that all unmarried minors under 15 lacked the maturity to have an abortion and did not allow for the case-by-case analysis required by Baird.
So, what does all this legalese mean?
It means that even though the court ruled that it was unconstitutional to require minors to involve a parent in their abortion without a bypass option, they also asserted states have the right to involve an adult — either a parent, guardian, or judge -- in a minor’s decision to have an abortion.
Advocates for and defenders of these laws will draw comparisons to permission slips and release forms that parents have to sign to let their children take medicine at school, or go off campus.
But the reality of these laws is, in practice, they do nothing more than complicate the ability to have an abortion, and they often do so for teens most in need of compassion and understanding. The truth of the matter is this process is a pain, and if it feels like a sucky, unnecessary obstacle, that's because it is.
Please don't let that discourage you from having an abortion -- it is your right, and you are legally entitled to exercise it.
Even though this process is unfair and cumbersome, it's there for you to use and is a way to get what you want or need. If you don't want to involve a parent in this decision or cannot safely seek out their consent, the bypass process is there for you, and there are attorneys and service providers who are there to help you.
For most teens having an abortion, involving their parents isn't even something the law has to enforce to make happen in the first place. Statistics show that the majority of minors will involve a parent or guardian in their decision — and the likelihood that a teen will do so increases the younger they are. In fact, an estimated 90% of teens under the age of 15 will involve a parent in their decision to have an abortion.
But for those teens who chose not to involve a parent — they often have a very serious reason, and good reason not to involve a parent or guardian. One study found that almost 30% of teens who chose not to tell their parents about their abortion did so out of fear of being kicked out of their house. Almost 10% feared they would be physically abused. Teens who choose not to tell or ask often make that choice in the interest of their own safety.
One doesn't have to consider abortion a scary or problematic choice to understand why a majority of teens involve an adult in their decision to have an abortion. Abortion is often cost-prohibitive, and you might need help paying for it. Logistically, you might need a ride to or from a clinic, or a note from a parent if your appointment is during school. Like any other medical procedure, having an abortion requires more than getting through the actual procedure and sometimes having an extra pair of hands for support can make a big difference.
That doesn’t however mean that someone else should be required to be part of the decision to have an abortion, unless you absolutely want them to be. It is your body, your life, and your choice, and no one should try to make you feel, or legislate, otherwise.
It is also important to understand that these laws have nothing to do with your health or wellbeing. Nothing.
No state in the country requires a minor to involve a parent, or the court in any decisions regarding carrying a pregnancy to term -- which is a far more involved and risky health nd life issue than safe, legal abotion -- and with the exception of five states, minors can put their children up for adoption without parental involvement. These laws are not pro-children. These laws are pro-natalist, or pro-pregnancy — meaning instead of considering the actual wellbeing of all teens, they favor teens who choose to carry their pregnancy to term, and presume they deserve more legal autonomy with a pregnancy than those who choose abortion.
In fact, the Alaska Supreme Court just struck down their parental involvement and bypass laws using exactly that reasoning. They argued that because these laws only compel minors who decide to have an abortion to seek the counsel of their parents and not those who chose to carry a pregnancy to term, they violate the equal protection clause of the Alaskan state constitution.
Without exception, these laws do nothing to actually protect the welfare of the teens they concern. Having to go to court can mean a later procedure, which puts teens at risk of coming up against later term restrictions and greater financial burdens. Legal abortion is a safe procedure, but the risks do increase the later in a pregnancy one is performed. The longer a teen is pregnant, the higher the risk to the confidentiality surrounding their pregnancy and their decision to terminate also becomes. A teen may start to show, or word might get back to their parents about their pregnancy.
And for many teens, the bypass options exists only in theory. Aside from the difficulty in finding legal representation for bypass hearings, and transportation to and from them, teens, especially in small towns, run the risk of knowing the judge, or someone else in the court house. The ACLU points to an instance where the teen’s identity was revealed in Massachusetts when her sisters civics class was on a trip to the courthouse, and another in Minnesota, where anti-choice activists sat in courthouse hallways and used yearbooks to identify teens coming through for bypasses.
All that being said, it’s important to emphasize that it is your absolute right to go through this process without the involvement of a parent or guardian. Anyone who tells you that you can't do this without their involvement isn't telling the truth, and anyone who encourages you to do so, against your will, is not respecting you, or your wishes. Parental involvement and judicial bypass laws are cruel and unnecessary, but it’s important not to allow these difficulties discourage you from making the choice to have an abortion.
These laws are absurd, and they absolutely serve no purpose other than to make access to abortion more fraught for teens, but if you want an abortion, and you live somewhere with parental permission or notification laws, judicial bypass can allow you to do so free from parental involvement.
If you live in a state that requires parental involvement, and you need a bypass, there are resources to help you.
Call your local independent reproductive health clinic or Planned Parenthood. You can find your nearest Planned Parenthood online, or by calling 1-800-230-PLAN. They also have information on their website about what your options are if you're pregnant. Your local Planned Parenthood can help guide you through the bypass process in your state, and let you know what steps need to be taken to obtain a bypass — like how to find an attorney. If you're worried about the cost of your abortion, contact your local abortion fund. You can find your nearest fund by entering your zip code here. They can help you cover the costs of your abortion, if you need to pay out of pocket.
If you're interested in getting involved in reproductive rights, and or want to advocate to your state's lawmakers about how these laws should be changed, consider volunteering with your local Planned Parenthood, or getting involved in your state's chapter of NARAL. If you live in Texas specifically, check out the wonderful folks at Jane's Due Process, an organization that helps Texas teens find legal representation and get the through the bypass process. You can also volunteer for your local abortion fund! Or even start your own. More info on that can be found through the National Network of Abortion Funds.