In 37 states, when a pregnant teen needs an abortion, she also needs the permission of one of her parents. But if her parents either can’t give it, won’t give it, or teenage girls are too afraid of their parents to ask, there’s another way: judicial bypass. That’s where the teen goes before a judge to ask for permission. It’s an option that’s daunting enough for teen girls in desperate situations, but social conservatives are trying to make it even harder, reports
Molly Redden.
"Judges are rubber-stamping these requests," Ohio Right to Life warned in a press release in 2011, just after John Kasich, the state's new Republican governor, signed a bill making the bypass process stricter.
But a review of more than 40 cases, along with interviews with minors and their attorneys, reveals that in much of the country, obtaining a judge's approval to get an abortion is a mammoth struggle.
"'Daunting' doesn't begin to cover it," says Jennifer Dalven, who runs the reproductive rights arm of the American Civil Liberties Union. "Imagine it: You're 17 years old. You're already struggling with this unplanned pregnancy. You may be afraid of your parents. And now you're told, 'Go to court'?"
The Supreme Court didn’t intend for things to turn out this way. In 1979, the court ruled that parents couldn’t have the final say. So states that enacted parental notification laws had to give teenage girls some alternative to getting a parent’s permission. But this has left teenaged girls in 37 states at the whim of whichever judge they get.
[I]n practice, girls are at the mercy of whichever judge they happen to draw, says Anne Dellinger, a retired University of North Carolina-Chapel Hill professor who has studied the bypass system. "If a girl wanders into the wrong [court], she doesn't have a chance," Dellinger says. With few checks on the system, Hays adds, judges are free to impose their beliefs on the girls who appear before them: "It's the law of bullies."
Here’s a couple examples of some sound rulings by judges:
In a 2013 case that made headlines, a Nebraska court decided a 16-year-old in foster care was not mature—in part because she was "not self-sufficient." The minor had raised her siblings when her parents weren't around. The Nebraska Supreme Court upheld the lower court's decision.
In another case, an appeals court described the testimony of a young woman who petitioned an Alabama judge in 2000:
"Her father drinks to excess and becomes violent. Recently, she said, he slapped her and told her to 'get out of the house' after she had asked him to turn down the volume of the television because she was trying to do her homework…Her father had told her that if she ever came home pregnant he would kill her. She also stated that she did not believe he meant this literally, but that she believed he would whip her. She testified that her mother was also violent and had beaten her older sister until she bled." The judge denied her petition.
Apparently, these decisions weren’t good enough for anti-abortion activists. Since 2010, they’ve been working on tightening the rules to deny teenage girls in desperate situations—either passing or introducing laws in 11 states. Florida lawmakers, for instance, enacted a law requiring girls to see a judge close to their homes. Some states have restricted the number of counties where women can seek judicial bypass. But Alabama really takes the cake—passing a law that allows judges to appoint lawyers to defend the interest of the unborn fetus.
I called Walter Mark Anderson III, a retired judge who began the practice, and told him the news. "That's fantastic!" he exclaimed. Before fetal attorneys, he explained, girls "came in, said this, that, and the other…and nobody really questioned her." The new law also requires district attorneys to cross-examine minors seeking a bypass—making the hearings, which are supposed to be fact-finding exercises, more like criminal trials.