Judicial Bypass Is A "Rubber Stamp" System for Abortion
An appeals court in Alabama has reversed a judge's ruling preventing a minor girl from undergoing an abortion:
Alabama state law says minors must get permission from their parents to have an abortion (§ 26-21-1 et seq., Ala. Code 1975).
The statute does, however, say that minors can obtain waivers from the court that allow them to have abortions without parental consent under two broad and subjective exceptions. The exceptions under which waivers are granted are:
1. The court rules that the minor is “mature enough” and “well-informed enough” to have an abortion without her parents
2. The court rules that the abortion is in the minor’s best interest
On August 16th, a minor in Alabama asked a juvenile court judge for such a waiver. The judge didn’t explicitly deny her request but did rule that while the minor was mature enough (meeting the first condition), the abortion was not in her best interest (condition 2). For this reason, the ruling was interpreted as a “no”, so the minor’s attorneys promptly appealed.
Yesterday, the Alabama Court of Civil Appeals overruled the lower court’s decision, stating that the minor must only meet one of the conditions for a waiver to be granted, not both. In other words, because the juvenile court judge ruled that the minor met the first condition, the appellate court granted her the right to have the abortion without the consent of her parents.
A Broken System That "Rubber Stamps" Abortions
Despite strong public support for parental notification and consent laws, the abortion industry routinely uses judicial bypass provisions to get around laws requiring them to notify parents before performing abortions on teenage girls. As activist Lauren Enriquez has pointed out:
The judicial bypass process is essential to ensuring that cash flow into the abortion industry does not suffer due to one demographic (minors) not having access to abortion. In fact, to ensure that abortion is accessible to minor girls, Planned Parenthood and other abortion businesses have sympathetic attorneys on call at all times to personally usher young women through the confusing court system.
Often, these attorneys bring minor girls directly to like-minded judges who are the most unlikely to turn down a petition for judicial bypass. To say “unlikely to turn down” is the most accurate term to describe the judge’s role, because -- unbelievably -- in states like Texas, the bypass request is automatically granted if a judge does not release a decision one way or the other within 48 hours of the petition being filed.
In 2015, Texas passed a law ending the practice of automatically granting a bypass in the absence of a judge's ruling and limiting judge shopping and other abuses. However, in many states judicial bypass hearings are non-adversarial in nature, meaning that there is no attorney representing the position that abortion is harmful and not in the girl’s best interests. The system ensures that judges hear only one side of the evidence — the pro-abortion side.
Without a process that provides for cross examination of witnesses and the introduction of testimony from experts who would dispute the girl’s maturity or the benefit of abortion to her, judges cannot actually “judge” the evidence. Instead, the judge’s role has been reduced to simply certifying that the girl’s/clinic’s attorneys have met the minimum threshold requirement of providing an “expert opinion” that the girl is mature or would benefit from an abortion.
Retired judge Joseph Moylan, who resigned from the bench after Nebraska passed a law requiring that the presiding judge “shall” approve of the abortion if the preponderance of evidence supported the conclusion that the girl is mature or that the abortion would be in her best interests, noted in a letter to the Elliot Institute in 1998:
It is a shame and quite unfair that these hearings are merely one-sided and give “rubber stamp” approval of the request for abortion. You mention that the judge must decide whether the girl is mature or that the abortion would be in her best interests. Actually the judge must also decide whether she is capable of giving informed consent. This would require that she know the effects of an abortion and possibly the methods, etc.
If all the evidence is not presented, and since the rulings must be based on the preponderance of evidence presented, judges have very little leeway to refuse the recommendation of any “expert” provided by an abortion clinic. Indeed, as Mary Spaulding Balch of the National Right to Life Committee has stated:
Activists on both sides of the abortion issue recognize that, in practice, the judicial bypass is nothing more than a rubber stamp proceeding in which abortions are kept secret from parents and are almost invariably authorized. In Minnesota, interviews with minors at four abortion clinics revealed that 43 percent of the girls used the court bypass option that is part of that state’s parental notification statute. Of the 3,573 bypass petitions filed in the Minnesota courts when the parental notice law was in effect from August 1, 1981 to March 1, 1986, 3,558 were granted. Six of those petitions were withdrawn before decision; only nine were denied. Judge Allen Oleisky has heard over 1,000 of these petitions. He describes his role at the bypass hearing as “a routine clerical function on my part, just like putting my seal and stamp on it.”
The bypass serves no useful function and merely undermines the object of parental consent laws by ensuring that virtually any minor who doesn’t want to tell her parents won’t have to do so.
Without a mechanism to provide for cross-examination of witnesses and the introduction of witnesses who would testify that the abortion is not in the girl’s best interests, how can judges make an informed decision? How can we be sure that the adults seeking permission for the young girl to abort without notifying her parents are not themselves manipulating, pressuring or even forcing her to seek an abortion?
Balch summed up the situation by noting:
Parents are, for the most part, not given the opportunity to consent, they are not given the opportunity to be consulted, they are totally bypassed. Their minor daughter is given a secret abortion and they are then left in the dark trying to pick up the pieces of their injured daughter’s life not knowing where to begin. The abortion industry masterfully manipulates this judicial bypass loophole by getting their own attorneys appointed by the court to shepherd pregnant minors through the intimidating judicial system and the abortion is performed before anyone can take a breath.
Judge shopping and rubber-stamping need to end. Judicial bypass laws should also require the courts to appoint an attorney to argue the position that (1) the abortion is contrary to the girl’s best interests, (2) she is not mature enough to make this dangerous choice without her parents’ knowledge, and/or (3) there is no evidence of abuse that would justify excluding the parents from being informed. A further layer of protection would be added by making abortionists liable for failing to screen teens and women for coercion and known risk factors that increase her chances of mental health problems after abortion.
Teens should not be put in harm’s way to line the abortion industry’s pockets, nor should a flawed system make judges a part of that.
Learn More:
Two Wrongs Won’t Make It Right: Incest Case Exposes Shortcomings of Judicial and Medical Reviews of Abortion Cases
Research: Is Abortion Better for Teens Than Unplanned Pregnancy?
A Generation At Risk: How Teens Are Manipulated Into Unwanted Abortions
When Young Girls Are Manipulated Into Abortion
Helping Predators, Harming Teens
No One Told Me I Could Cry
Get Help:
Pregnancy Help and Resources
Pregnancy Help Worldwide
Center Against Forced Abortions
Help & Healing After Abortion
Help After Abortion Worldwide
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