Getting a judicial bypass in Texas

Women’s rights and reproductive rights have been a battlefield in many states around the U.S. for the past years. While the momentum is on the Whole Women’s Health v. Hellerstedt, as we are waiting on the Supreme court opinion, the Texas legislature has been introducing other bills that have a huge impact on women and more importantly, girls under 18.

Effective since January 1 2016, Governor Abbot signed into law HB 3994  In Texas, Family Code Ch. 33, combined with Occupation Code § 164.052(a)(19), requires that a minor notify and get the consent from her parent (or managing conservator or legal guardian (“parent”)) in order to obtain an abortion.  However, some minors cannot get parental consent for a variety of reasons. They fear their parents’ reaction, which could be violent, they do not have any parents present in their lives, or they come from abusive homes.

Before HB 3994, a judge could grant a minor coming from such circumstances a judicial bypass, if she demonstrated.  to the court by a preponderance of the evidence that(1) she is sufficiently mature and well informed to consent to the abortion, (2) notification of her parents would not be in her best interests, or (3) notification may lead to physical, sexual, or emotional abuse.

Today, HB 3994 restricts access to minors who might need it the most in the following ways

  • limits the location and type of court in which a minor can seek an abortion;
  • forces the minor to reveal her home address and telephone number to a judge;
  • prevents the minor from removing her application for a judicial bypass after she has filed it with the court;
  • mandates that a physician who provides abortion care to a minor who says they have been sexually assaulted or abused report that sexual assault, and the identity of the suspected abuser, to law enforcement regardless of whether the minor wants to report their assault or feels it is safe to do so;
  • mandates that a judge who hears a judicial bypass case in which a minor says they are being abused must report that abuse to law enforcement, along with the identity of the suspected abuser, regardless of whether the minor wants to report their abuse or feels it is safe to do so;
  • gives a judge five business days, rather than two days, before they must rule on the judicial bypass application; and
  • presumes that if a judge does not rule on the judicial bypass, that permission for the minor’s abortion is denied.

Moreover, a minor has to appear in court in person as opposed to videoconference or teleconference. The judge is supposed to take into consideration: “the minor’s age, the minor’s life experiences (working, traveling, finances, steps taken by the minor to explore her options; and the minor’s decision not to notify and obtain consent from her parent/guardian.” The minor has to file the judicial bypass petition in her county of residence unless there are less than 10,000 people, as opposed to the previous law which allowed for minors to file in any county. In addition, the evidentiary standard has now changed to clear and convincing and changes the definition of abuse to a higher standard. Moreover, the law prohibits minors from refiling a petition if the court has already obtained a determination or voluntary dismissals. Finally, the confidentiality aspect of the process is hindered and minors might be subject to harassment and danger. Meanwhile, judges will also be influenced by electoral pressure due to the require to file in the minor’s county of residence.

Jane’s Due Process is an organization providing legal assistance for young girls who are such judicial bypasses. They explain  that this new law will have detrimental effects to the safety of the minors, the confidentiality and expeditiousness of the judicial process and access to courts as well as abortion care.

In conclusion, a minor faces many hurdles to receive abortion care. Not only is she confronted by the obstacles created by HB2, but HB 3994 makes it very difficult for girls to go forth with their reproductive choices.

 

 

 

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