Efforts to ban abortion typically take the form of legislative attacks: TRAP (targeted regulation of abortion providers) laws, pre-viability bans, and fetal “personhood” measures are just a few examples of such strategies employed by state legislatures. Increasingly, however, anti-choice judges and administrators are joining in these efforts. Such is the case in Nebraska, where last week a majority of judges on the Nebraska Supreme Court just might have banned abortions for minors in state custody.
The court upheld a lower court ruling handed down in July denying a 16-year old ward of the state an abortion in the tenth week of pregnancy in a decision that may have widespread repercussions.
Just how the majority on the Nebraska Supreme Court pulled off blocking access to abortion care for minors in state custody is a case study in judicial privilege, politics, and power-grabbing. In Nebraska, unemancipated minors under the age of 18 cannot get an abortion unless a doctor first obtains the notarized written consent of both the minor and one of her parents or a legal guardian. The state’s parental consent law, passed in 2011, includes an option for a judicial bypass of the parental consent requirement in three narrow situations: a medical emergency, a showing of abuse or neglect in the home, or if the court determines by “clear and convincing evidence that the pregnant woman is both sufficiently mature and well-informed to decide whether to have an abortion.”
Before 2011, Nebraska required minors to notify a parent or guardian of their plans for abortion. As it turns out, that change from parental notification to parental consent could prove catastrophic for wards of the state.
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In a controversial split decision, the Nebraska Supreme Court rejected the request of the 16-year-old ward of the state to waive parental consent requirements to get an abortion, upholding a lower court’s determination that the minor was not mature enough to make this decision on her own. As you can imagine, the facts of the case are heartbreaking. The girl became a ward of Nebraska when a juvenile court terminated the parental rights of her biological parents who were physically abusive and chemically dependent. That left the Nebraska Department of Health and Human Services as the legal guardian of the petitioner and her two younger siblings ages 7 and 9.
In July, she appeared before Douglas County District Judge Peter Bataillon seeking a judicial bypass for an abortion. At the time of the hearing, she was approximately 10 weeks pregnant and had been placed in foster care, along with her two younger siblings, with an evangelical Christian family morally opposed to abortion. But while the minor had been placed in foster care, no judicial proceedings had happened to transfer parental rights over the girl to her foster family, meaning that at all relevant times during her court case she remained a ward with the state as her legal guardian.
As explained in the Nebraska Supreme Court opinion, during the confidential hearing to determine if a judicial bypass would be granted, the petitioner testified that in addition to being unable to financially support a child or “be the right mom that [she] would like to be right now,” the girl feared she’d lose her foster placement. Putting a child up for adoption would be worse for her, she testified, since her foster parents would use her pregnancy and the adoption to tell her siblings she was a “bad person.”
After questioning the girl and telling her “when you have the abortion it’s going to kill the child inside you,” Judge Bataillon denied the girl’s request, ruling that she did not fit any of the exceptions to the state’s parental consent statute. First, while the court didn’t dispute the fact that the girl had suffered abuse by her biological parents, she hadn’t shown her current foster parents were abusive. Furthermore, despite the fact that the minor testified that she effectively raised her younger siblings, was planning to graduate high school early, and had undergone extensive counseling related to her decision to terminate her pregnancy, the court found that she failed to establish that she was sufficiently mature enough to make the decision on her own. That means that if she wanted an abortion, Judge Bataillon ruled, she would need the consent of her foster parents.
The petitioner appealed to the Nebraska Supreme Court, arguing the lower court was wrong to determine she wasn’t mature enough and to require consent from her foster parents—people with no legal authority to consent to an abortion on her behalf. The Nebraska Supreme Court reviews decisions denying a judicial bypass de novo—that means the supreme court can essentially take a fresh look at the facts and the record in the underlying decision and it is not bound as closely to the lower court’s reasoning as in some other cases. But despite that broad grant of authority to review cases, the Nebraska Supreme Court affirmed Judge Bataillon in a decision that functions as an absolute ban on abortion for minors in state care.
It’s impossible to fathom how a court could determine a minor is not mature enough to decide to terminate a pregnancy but is mature enough to become a parent. It becomes even worse when the court shouldn’t have been ruling on a bypass to begin with. On appeal, the petitioner argued that as a ward of the state she had the ability to consent to an abortion on her own. In support of that argument, she relied on regulations of the Department of Health and Human Services that give minors in their custody the right to consent to an abortion on their own and without the consent of the department, but require the department be notified of that decision.
But in contradiction to the plain language of those regulations and case law that affirms case workers are to defer to the pregnant minor in cases of consent for an abortion, the Nebraska Supreme Court ruled it didn’t have to consider that issue because the girl hadn’t made it in quite the right fashion at the lower court. Typically matters on appeal are limited to those issues that are raised at the trial court, meaning that on appeal you can’t just raise new legal arguments or present new evidence. That’s not what happened here. The Nebraska Supreme Court noted the girl and her attorney presented the proper regulations to the lower court during the hearing, but ruled that wasn’t good enough because it wasn’t also in the girl’s original petition for a judicial bypass. According to the majority, the minor should have first received some sort of declaration from a court that her foster parents consent wasn’t needed or that the Department of Health and Human Services was required to defer to her decision to terminate, and since she didn’t she can’t make up for that mistake by arguing about it on appeal. This requirement, the dissent argues, is not just unfair, it is likely unconstitutional. “[T]he pleading for a judicial bypass is a form with blanks and checkmarks. It is intended to be a simple filing that a minor can navigate,” the dissent explains. “The court does not appoint an attorney for the minor until after the minor files the petition. There is no place on this form for a petitioner to raise jurisdictional problems. And requiring a minor to meet the pleading standards of an attorney would likely place unconstitutional burdens on a minor seeking an abortion.”
After holding the minor to the same pleading standards as attorneys, then punishing her for failing to meet them, the justices continued to ignore the law that clearly states minors in state custody have the right to consent to abortion on their own, by stating that because of the 2011 change from parental notification to parental consent those regulations were no longer valid. Since that 2011 change, the department hasn’t issued any new regulations, meaning that the even if those regulations were still valid thanks to this decision they likely aren’t anymore.
With the issue of whether minors in state custody can consent to their own abortions now upended, that leaves the petitioner in this case, and future wards of the state in similar quandaries, with only the possibility of convincing a judge via a judicial bypass proceeding that she’s sufficiently mature enough to make the decision to terminate a pregnancy on her own. And we know how those decisions turn out for the minors involved.
Before a judge can make such a determination on a minor’s maturity they must have some kind of authority to take the case, some legal justification for exercising their power. This grant of power comes from the judicial bypass provision of the statute and confers what the law calls “subject matter jurisdiction.” In the case of Nebraska’s parental consent statute, that subject matter jurisdiction happens when, acceding to the statute, a “pregnant woman elects not to obtain the consent of her parents or guardians.” This statutory requirement that pregnant women elect not to seek parental consent is a “jurisdictional prerequisite,” meaning it is a trigger, so to speak, that grants the court the power do decide whether, and if, a bypass is possible.
But, as the dissent notes, consent was impossible to obtain here, so there is no way she could have elected not to seek it. “To “elect” is to “choose,” the dissent says. “The petitioner did not choose to forgo consent of a parent or guardian; instead, such consent was impossible for her to obtain. Obviously, the petitioner has no parents to consent because the juvenile court terminated their parental rights. And it was impossible for the petitioner to obtain the written, notarized consent of her legal guardian, the Department.”
Without the ability to “elect” not to notify parents or guardians she doesn’t legally have, the girl should not have to seek a bypass at all. But she did, likely the Nebraska Supreme Court surmises, because a provider told her she needed it. Not because the law actually required it. But rather than correct that error, which the court could have done on its review, it punted again.
So just how wrong was the district court’s determination that the foster parents were the girl’s legal guardians for purposes of providing consent her? Well, it would have been hard for the district court to get it any more wrong. “When a court terminates parental rights to a minor ward, the Department makes all the medical decisions for the ward,” the dissent says. “Except one. The Department’s regulations show that it defers to a ward’s decision to have an abortion.” The dissent continues:
[A] foster parent’s rights and responsibilities in caring for a ward of the State “are derivative of and subject to the custodial authority possessed by the [state] agency.” And noticeably, the Department authorizes foster parents to obtain only routine immunizations and medical care for a foster child, under a caseworker’s supervision and direction. This means a foster parent has no authority to give consent for a foster child’s abortion or any other major medical procedure.
If the court believes it has no obligation to correct an obvious error of law in the case of a minor trying to navigate the waters of judicial bypass on her own, what about her legal guardian, the Department of Health and Human Services? Good question. Here the department has been entirely missing in action, “abdicating its role,” according to the dissent. And this is a point the majority exploits to protect Bataillon’s decision from the obvious fact that the court did not have the power to make the bypass determination to begin with. The girl is “in a legal limbo—a quandary of the Legislature’s making,” the dissent notes, and the effect of the majority’s decision is clear. “Because the petitioner never ‘elect[ed]’ not to get the consent of a parent or a guardian to seek an abortion, the court did not have jurisdiction to entertain her request for judicial bypass under § 71-6903(2),” the dissent explains. “I realize that this conclusion means that none of the statutory exceptions apply and that under § 71-6902, the petitioner is prohibited from obtaining an abortion.”
In short, it’s an absolute ban on her right to choose an abortion.
Not surprisingly, the trial court judge has a history of anti-choice sympathies. In 1990, as a private attorney, Bataillon successfully defended 17 Operation Rescue protesters in Omaha against charges of clinic trespassing, by advancing a “necessity defense” and arguing their trespassing was necessary to prevent the “grave evil” of abortion. Scott Roeder tried unsuccessfully to advance a necessity defense during his trial for the murder of Dr. George Tiller. Three years later, Bataillon represented an anti-abortion activist accused of stalking an abortion provider including approaching him at an Omaha airport and telling him, “You deserve to be blown away.”
Not surprisingly, Judge Bataillon also has a history of going easy on felons violating gun laws.
The Nebraska case brings together the worst influences of the law at work here over the most vulnerable: anti-choice lawmakers enacting measures designed to cut off access to care, state agency workers either negligently or willfully neglecting their duties of care to their wards, and ideological judges willing to reverse-engineer legal reasoning to justify dogmatic conclusions with no regard for those who must live with those decisions. At every step in the process, those institutions charged with looking out for the best interests of the minor in this case failed, and in the case of the majority of justices on the Nebraska Supreme Court, failed purposefully and intentionally so as to support their ideological goals of cutting off abortion access to those most in need.
The question we must ask now is, how many more cases like this one are out there?