Requiring Teenagers To Go Through Court For Abortion Care Is Unethical And Absurd

By Leah H. Keller

Let’s imagine: You are 15 and pregnant. You know you want an abortion, but you can’t tell your parents. You call a clinic and ask to book an appointment. The clinic staff tell you that you live in one of the 37 states that will require them to alert your parents or get their permission before you can get your abortion. That’s not an option for you, but someone mentions something called a “judicial bypass.”

A judicial bypass is an unethical, illogical, and harmful practice that serves as one more barrier to abortion in a country that is full of them. It is decision from a judge that allows a minor to get an abortion without notifying or obtaining consent from their parent. A judge must deem a teenager “mature enough and well enough informed” before allowing them to get a confidential abortion. Sometimes other, even more subjective, considerations like the teenager’s perceived intelligence or emotional stability factor into the judge’s decision.

Judicial bypasses limit teenagers’ reproductive freedom and block them from abortion care. They represent an unacceptable interference by the state into young people’s medical decision-making, are based upon faulty logic, and can be emotionally wrenching for the teenagers forced to defend their choice.

Courtrooms are inappropriate places to make personal medical decisions

The ability to decide if, when, and how to have children is a fundamental human right that all people are entitled to, regardless of age. Judicial bypasses and parental involvement laws strip teenagers of that right and send the message that, until they turn 18, their reproductive health decisions should be made by the adults around them.

Judges are particularly ill-equipped to make those decisions, or even offer guidance on them. Giving judges the power to dictate or even advise teenagers on their reproductive health decisions is unethical and senseless. Judges are experts of the legal system, not adolescent development or reproductive health, and are unprepared to step into the role that judicial bypasses require.

Lacking the relevant expertise, some judges rely on their biases to make unfair or arbitrary decisions that are not in teenagers’ best interests. There are numerous examples of judges asking inappropriate questions or making belittling comments to teenagers already in extraordinarily vulnerable positions. For example, one judge asked, “What if we found you perfect adoptive parents or I gave you $2,000 today to have the baby?” Another mocked a teenager for pointing towards her athletic career as a reason for not wanting to continue her pregnancy. Judges in Alabama and Florida have even appointed lawyers for the fetuses, with one going so far as to name the fetus Baby Ashley.

The “maturity” test is illogical

The Supreme Court decision that established judicial bypasses requires teenagers seeking abortions to demonstrate that they are mature enough to decide whether the procedure is the right option for them. There is no equivalent appraisal of teenagers who opt to continue their pregnancy. In other words, a teenager who is making what may be a very responsible decision to terminate their pregnancy must prove their maturity before a judge, yet one who takes on the monumental responsibility of carrying a pregnancy to term, and perhaps even raising a child, does not.

In at least two cases, the absurdity of this logic was been exposed. In 2013, a court in Nebraska found a teenager insufficiently mature to get an abortion, despite the fact that she took care of her own siblings in her parents’ absence. In Ohio, a judge denied a teenager’s abortion because she “did not have enough life experience” to make that decision (thankfully, this decision was later appealed and overturned).

“A mountain of misery”

Whether a person is able to get the abortion they need or not, the experience of seeking it through legal action can be emotionally devastating. One legal scholar describes this pain: “When [a person’s] unhappiness becomes unbearable, they often end up in court… and every courtroom decision contains a mountain of misery for someone.”

For teenagers defending their decision to seek an abortion, this misery often comes in the form of humiliation. Teenagers can be asked invasive questions about intimate topics like their sexual activities, feelings about parenthood, romantic life, and relationship with their parents. Though the teenagers are not on trial in a legal sense, they are being asked to defend several actions that carry a moral weight: teenage sex, abortion, and “sneaking” behind their parents’ back.

Though the proceedings for a judicial bypass are technically confidential, the experience of sharing one’s innermost thoughts and private experiences with a representative of the state (the judge) and others in the room (like a bailiff or attorney) are anything but private. A judicial bypass demands that a teenager stand in front of adults decades her senior and explain why she is mature and informed enough to have an abortion. For even the most sophisticated teenager, this experience can be deeply intimidating and painful.

2020 is an opportunity to reverse parental involvement laws

To avoid judicial bypasses in the future and create an environment that supports young people’s reproductive rights, voters must elect policymakers invested in overturning laws that require parents to be involved in their children’s abortion care in the first place.

Fortunately, the 2020 elections are an opportunity to select lawmakers who support reproductive freedom for everyone. Parental involvement laws come from state lawmakers and removing them will require the cooperation of governors and state legislators. Among the states that have judicial bypasses:

· Nine will be holding legislative elections (Arizona, Colorado, Kentucky, Michigan, Minnesota, Nebraska, North Carolina, Pennsylvania, and West Virginia);

· Five will be holding gubernatorial elections (Indiana, Missouri, North Dakota, Utah, and West Virginia); and

· Two will be holding both (Delaware and New Hampshire).

Voters should demand that those running for office commit to supporting reproductive rights and allowing teenagers to get the abortion care that they need, without parental involvement.

Leah H. Keller is a Policy Manager at the Guttmacher Institute and is pursuing her MPH in maternal and child health at George Washington University’s Milken Institute School of Public Health.