The Judicial Bypass procedure enables a minor to get an abortion without parental consent, through court approval. But the ability to oversee whether the process is abused – for example to allow for abortions for sexually exploited children or to simply circumvent parental consent laws in the 36 states where they exist – seems in serious question because of the strict secrecy in which the court operates.
For example, in March 2010, Pennsylvania Judge Phillip Ignelzi denied a 17-year old girl’s request for an abortion on account of her bad grammar and not asking her parents for permission, stating that this demonstrated a lack of maturity, one of the standards that the court uses to decide whether to bypass parental consent. He also ruled in his March 24 opinion that an abortion was not in her best interest.
She appealed to the Superior Court, which upheld Ignelzi’s ruling on March 31, 2010.
News organizations are asking that this case be opened to the public since it may set a legal precedent, and advocates on both sides of the argument argue that such an important case should not be decided in a vacuum. "It's impossible to have a law that is secret," said Witold Walczak, director for the Pennsylvania chapter of the American Civil Liberties Unition (ACLU). "It simply can't be followed by lower court judges, by [abortion] providers and by the young women seeking to get a bypass," he said.
Of the denials that have been appealed, only one is public record. One appeal even reached the Supreme Court in 1998 but no one knows what the ruling was because it is sealed. Anti-abortion groups and the ACLU often do not even know these “Jane Doe” cases exist.
If you call a local Virginia court and ask about judicial bypass, the answers are vague. You might be told that because of statute 16.1-305 all juvenile information is confidential. Or maybe you’ll be told that there is a statute that governs the judicial bypass procedure - statute 16.1-241 subsection 5.
Yet judicial bypass is something done regularly by every juvenile court in Virginia, according to a representative at the Charlottesville juvenile court. But there is little to no information willingly given about it.
Yet judicial bypass is something done regularly by every juvenile court in Virginia, according to a representative at the Charlottesville juvenile court. But there is little to no information willingly given about it.
Even NARAL Pro-Choice America, a prominent pro-choice group, posted a listing for a summer intern to further investigate Virginia’s judicial bypass system because the process was called “difficult and intimidating.” When asked about the internship, NARAL took the request down from its website and refused to comment.
So what are the court systems in the Commonwealth protecting? What goes on beyond the closed doors of the courtroom that the judges, clerks, and even secretaries do not want people to know about?
According to Steve Wagner, President of the Renewal Forum and former head of the Human Trafficking Program at the Department of Health and Human Services: “We know from the Live Action video that was shot in VA that they routinely use the judicial bypass in order to perform abortions on juveniles without parental consent. The PP worker in VA described it as virtually a formality, that they are willing to provide an abortion for anyone.”
According to Steve Wagner, President of the Renewal Forum and former head of the Human Trafficking Program at the Department of Health and Human Services: “We know from the Live Action video that was shot in VA that they routinely use the judicial bypass in order to perform abortions on juveniles without parental consent. The PP worker in VA described it as virtually a formality, that they are willing to provide an abortion for anyone.”
Judicial bypass stems from the US Supreme Court case Bellotti v. Baird, which concluded that if a state required a minor to obtain one or both parents’ consent to an abortion, it must also provide an alternative procedure by which the abortion could be obtained. Chief Justice Powell ruled that, “A pregnant minor is entitled in such a proceeding to show either that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes, or that even if she is not able to make this decision independently, the desired abortion would be in her best interests.”
The bypass quickly became a viable alternative in parental consent states. In Texas, a judicial bypass through Jane’s Due Process, a legal organization representing minors, is as easy as a sonogram to confirm your pregnancy and counseling on your pregnancy options. The legal representation is free and the minor will hear the hearing results in two business days. Jane’s Due Process claims that the legal representation, legal fees, and application fees will be no cost to the minor.
Organizations such as Jane’s Due Process present judicial bypass as quick and harmless, something that can help not hurt. One example cited on the Jane’s Due Process website is a girl they identify as Kandyse, who is living with her grandmother. Jane’s Due Process says that since pregnancy clinics will not allow her grandmother to sign, Kandyse should get a judicial bypass.
But sources say this is not the way judicial bypass is typically used. They say they courts regularly allow girls who do not want their parents to know about their abortions to use the judicial bypass in order to get an abortion outside parental consent and notification laws.
All 36 states that require some parental involvement in a minor’s decision to have an abortion also have a judicial bypass option, according to the Guttmacher Institute. Under Planned Parenthood Association of Kansas City, Missouri Inc. v. Ashcroft, the courts cannot deny a minor an abortion if she demonstrates maturity. This is not difficult to prove, and everything that happens in the hearing is confidential. The courts will also grant an abortion if gaining the consent of her parents would not be in her best interest, lead to physical or emotional abuse, or lead to sexual abuse.
In Texas, Jane’s Due Process asserts that all the judge has to do is fill out some comments on a form and check if the application is granted or denied.
In Virginia, the Richmond Medical Center, a pregnancy clinic which provides abortions, does not use the judicial bypass often – about once every three months, according to a source there. But the source said the center does not “ask questions about the specifics,” and added that “all the girls have said it was an easy, pretty manageable process.”
By law, it has to be a quick process; most girls will hear and decide to proceed with an abortion within four days. And better yet, it seems, judges rarely say no.
