December 01, 2005

Are Courts Prepared to Handle Judicial Bypass Proceedings?

Melissa Jacobs

My older sister got pregnant when she was seventeen. My mother pushed her against the wall, slapped her across the face and then grabbed her by the hair, pulled her through the living room out the front door and threw her off the porch. We don’t know where she is now.

My little sister was raped. Our parents are somewhere in Mexico, but I don’t know if I can find them.

My mother is in the hospital with my older brother. He’s dying of cancer. She’d support my decision, but I can’t tell her about this right now. She’s already gone through so much. . . Dad left us a long time ago and I have no idea where he is.

For some pregnant minors, parental involvement in the abortion decision is either impossible or ill-advised. Pregnant minors may have learned through experience that notifying parents can lead to physical abuse, homelessness, or both. Some are victims of incest or report that a parent will force them to continue a pregnancy even if it is the result of rape. Others may have no living parents or no idea how to locate them. Enacted in 2000, Texas’s parental notification law creates a judicial bypass waiver allowing minors like these to apply for a judge’s permission to bypass the parental notification requirement. Unfortunately, implementation has been highly inconsistent, leaving vulnerable minors without a meaningful bypass option.

The U.S. Supreme Court has held that parental consent statutes must contain a judicial bypass procedure, but has consistently declined to determine whether parental notification statutes must include a bypass element. The Court has held, however, that a bypass option meeting the criteria for parental consent statutes is adequate for parental notification statutes. Those criteria, first set forth in Belotti II, are reflected in Texas’s parental notification law. 443 U.S. 622 (1979). The Texas Family Code requires the court to appoint an attorney ad litem for a minor if she has not retained one herself. The hearing and ruling must take place by 5:00 P.M. of the second business day following the filing of the application or the waiver will be deemed granted. The court must grant the minor’s request if it finds by a preponderance of the evidence that a “minor is mature and sufficiently well informed” to make the abortion decision independently, or that notification would not be in her best interest, or that the notification “may lead to physical, sexual, or emotional abuse of the minor.” Finally, the court must protect the minor’s anonymity.

Clerks serve as the gateway to the judicial bypass process under the Texas parental notification rules. District and county clerks must make the application forms, as well as the parental notification rules, available to anyone who requests them. A clerk must also “give prompt assistance—in a manner designed to protect the minor’s confidentiality and anonymity—to persons seeking to file an application.” A clerk must accept an application and then immediately assign it to a court based on either state or local rules. If a court fails to issue a ruling by the 5:00 P.M. deadline, the clerk must issue a certificate stating so.

Surveying Abortion Clinics

Most clinics providing abortions in Texas insist on the presence of a minor’s parent or legal guardian. Clinic personnel, however, often confuse their own clinic’s policy with the law. Callers to a hotline run by Jane’s Due Process (JDP), an organization dedicated to ensuring that minors have meaningful access to the judicial bypass waiver in Texas, report being told that all women under twenty-one needed a parent’s permission, that national law mandates parental consent, and that no one in the state would touch a minor without her parent’s permission. A JDP volunteer, posing as the aunt and guardian of a teen who wanted to get an abortion without notifying her estranged father, surveyed the thirty-six clinics statewide. Nine clinics referred her to the JDP hotline, and eight sent her directly to the courthouse. The remaining clinics offered no alternative to the requirement that either a parent be present or that the aunt present papers proving that she was the legal guardian. The high number of referrals to JDP demonstrates the importance of having such an organization in states with parental involvement laws. The similarly high number of referrals directly to the courthouse demonstrates the critical need for clerk preparedness when even clinic personnel who have regular contact with minors are inconsistently informed about the law.

Surveying Texas Clerks

During summer 2003, a JDP intern attempted to survey clerks in each of Texas’s 254 counties to gather
information for a database enabling the hotline to handle calls from throughout Texas. The JDP project defined a county as prepared if a clerk acknowledged that the office was responsible for handling the judicial bypass procedure and knew that a minor could have an attorney appointed for her. This definition is similar to that used by Professor Helena Silverstein in her study of clerk preparedness to handle parental consent waivers in Alabama. See Helena Silverstein & Leanne Speitel, “Honey, I Have No Idea”: Court Readiness to Handle Petitions to Waive Parental Consent for Abortion, 88 IOWA L. REV. 75, 85 (2002).

Fewer than half of the Texas county clerks surveyed—108 in total—met this definition of preparedness. Courts in twenty-five of the thirty-eight counties in and around metropolitan areas met this minimal level of preparedness. Clerks in some of these courts also demonstrated detailed knowledge of the law and procedures.

Yet, among the remaining 216 counties, only eighty-three met the basic criteria for preparedness. These clerks knew little about the bypass other than of its existence. However, they located the applications and instructions and found answers to questions by reading through the forms. In several of these counties, court personnel met the basic criteria but answered some questions so inaccurately as to call into question their ability to handle bypass petitions. Two, for example, stated that a guardian ad litem would be appointed for the fetus. One warned that the petition would not be granted unless the mother’s health was in imminent danger. (The statute creates a separate exception for emergency abortion procedures to prevent the death of or substantial bodily injury to a minor.) One clerk stated that the father of the baby would need to be notified and given twenty days to respond. A number thought that minors have to prove their indigence to qualify for court-appointed attorneys, even though the statute does not require a showing of financial need.

Among unprepared counties, personnel were commonly confused about the court’s duty to appoint an attorney. This indicates that they did not have the application ready, as required, because it clearly states that the court will appoint an attorney for a minor who does not already have one. A large number said that a minor would either need to obtain an attorney on her own or represent herself. One referred the caller to legal aid and refused to answer questions. Some explained that a minor would not need an attorney. One explained that no attorney was needed because a guardian or relative would need to file the petition on the minor’s behalf. A significant number of clerks expressly stated that their judges would not appoint an attorney or would not have time to appoint one.

Some county clerks stated that they did not or would not handle the judicial bypass procedure. A clerk who could not respond to any of the questions referred the intern to the county attorney, who told her, “We don’t do anything with abortions here.” After stating that the judge would not appoint an attorney, one clerk said, “We can’t tell people where to get the forms, what forms they would need, or how to fill them out.”

Reluctance, hostility, or lack of awareness on the part of judges was another common reason that counties were unprepared. Two judges stated they would not appoint an attorney. One judge said that to answer a question about whether the court would appoint an attorney amounted to giving legal advice. Another professed to have no knowledge of the existence of the judicial bypass. Indeed, several callers to the JDP hotline have reported that when they went to file the application or to a hearing, judges said they did not believe in abortion and would not grant the waiver.

While a minor can seek a waiver in any county, she should not have to travel to find a court prepared to handle the petition. Traveling to another county can create numerous issues for minors, including greater expenses, transportation problems, or the possibility that the minor’s absence will attract attention. Additional travel also delays the abortion and thus increases the risk of complication.

The Supreme Court has rationalized parental involvement laws in part because they are intended to “account for children’s vulnerability and their needs for ‘concern . . . sympathy, and . . . paternal attention.’” Belotti II, 443 U.S. at 635. The judicial bypass provides an alternative for the most vulnerable minors, those whose parents are unavailable or are unwilling to put their child’s best interests first. The JDP survey shows the challenges in making a waiver option meaningful, given the lack of understanding and at times outright hostility demonstrated by clerks and even judges. It also reveals that for many of Texas’s most vulnerable minors, the judicial bypass waiver exists on paper, not in practice.

Melissa Jacobs

Melissa Jacobs clerks for a federal magistrate in Dallas, Texas.