UPDATE, March 27, 2:10 p.m.: The Texas Senate gave its final approval to HB 3994 on Wednesday, with lawmakers voting along party lines to pass the new restrictions on Texas’ judicial bypass law. The Texas house must approve the upper chamber’s changes to the bill before it can go to Gov. Greg Abbott for his signature.
The Texas Senate gave preliminary approval on Monday afternoon—Memorial Day 2015— to an omnibus anti-abortion bill that would make it far harder for abused, abandoned, and neglected minors who rely on “judicial bypass” to obtain an abortion. The bill would also require doctors who provide abortion care to demand government ID from their patients.
After a nearly four-hour debate during which Democratic senators tried to parse the muddy language of HB 3994—the language of which has been derided even by anti-choice conservatives as confusing and unconstitutional—the chamber voted along party lines to approve a modified—and, critics say, even muddier—version of the original bill approved by the Texas house earlier this month. The bill’s sponsor and senate Republicans rejected more than a dozen amendments proposed by Democrats.
In the senate’s version of the bill—a combination of this substitute bill and this amendment language by sponsor Sen. Charles Perry (R-Lubbock)—it is up to doctors who provide abortion care to demand a form of government ID from their patients and specifically report to the state health department about any abortion care they provide to a patient who does not show valid government identification. Language in the bill is based in part on a Texas Family Code statute, which excludes drivers’ licenses from Mexico from the list of valid identification options doctors may seek from patients.
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Current Texas law, signed into law more than 15 years ago by then-Gov. George W. Bush, requires that minors have the permission of a parent or guardian to obtain an abortion. Pregnant minors who seek abortion care without parental consent must go through a judicial bypass process. The new bill would dramatically raise the hurdles minors would face when seeking a judicial bypass.
Currently, minors must prove to a judge in any county in Texas that they are either: mature enough to make a decision on their own about their pregnancy, that it is not in their best interest to notify their parents of their pregnancy, or that notification of parents under these circumstances would lead to sexual, physical, or emotional abuse. HB 3994 changes nearly every part of that existing process to make it more burdensome for abused, neglected, and abandoned pregnant minors seeking an abortion.
In a statement following the mostly partisan senate vote—one anti-choice Democrat, Sen. Eddie Lucio (D-Brownsville) is a co-sponsor of HB 3994—legal counsel and co-founder of Jane’s Due Process, a nonprofit that assists minors in the judicial bypass process, called it “rife with constitutional problems.”
“As written it invites a lawsuit against the state—even while the litigation on HB 2 has not yet finished,” said Susan Hays, referencing the omnibus anti-abortion bill passed despite state Sen. Wendy Davis’ 13-hour filibuster in 2013, which has shuttered dozens of legal abortion facilities across the state.
The Texas Alliance For Life, which helped Texas Republicans draft the bill and its many iterations and anti-choice amendments, tweeted during the debate that HB 3994 was a backdoor ban on abortion care for minors, saying that “we want to protect parents’ rights, knowing that SCOTUS will not allow states to ban all abortions.”
Perry denied that the bill is intended to limit access to abortion care in Texas.
Between 200 and 300 Texan children and teens, some who are survivors of incest and sexual assault, go through a judicial bypass process each year because their parents are deceased, abusive, incarcerated, or otherwise incapable of safely guiding their children through decisions about an unintended and unwanted pregnancy.
Judicial bypass does not obligate a minor to seek abortion care, but without it, a minor who cannot obtain parental consent has no choice but to carry their pregnancy to term. The process allows a minor to decide between abortion, adoption, or parenting.
The new restrictions would raise the burden of proof that abused, abandoned, and neglected minors must meet when taking their case to a judge, and would give judges five business days, rather than two business days, to rule on a minor’s judicial bypass application. This delay could extend the process of judicial bypass by more than a week and push some minors past the threshold when legal abortion care is allowed in the state.
After five days with no ruling, the new law considers the bypass to have been automatically denied, rather than automatically granted as under current statute. And new venue restrictions under the law would also bar most teens from filing for a bypass outside their home county, or outside the county where their doctor is located, putting rural teens at risk of being recognized and harassed at their local courthouse.
During debate on Monday, Democrats said that the law is unclear as to whether it even requires a judge to rule on the judicial bypass application at all, or whether minors would need to appeal directly to a higher court—without a record of denial from the lower court—to continue the bypass process.
Perry said during the debate that he “believed” no judge would decline to rule on a case where parents were abusive and that he “hoped” judges would grant bypasses in cases of incest, adding that HB 3994 was “not about distrust at all, it’s about making sure there’s a process in place.”
During earlier hearings on earlier versions of the bill, anti-choice Republicans indicated that they believed that teens were lying to otherwise loving parents in trying to obtain judicial bypasses, and that judges wanted clarification on the existing law. However, the only judge who spoke out publicly on the law said that she was against it, saying that it could put both her, and minors who seek bypasses in her court, in danger because of confidentiality concerns and new reporting requirements that aggregate data on judicial bypass approvals.
HB 3994 also requires a judge to report any abuse reported by a minor seeking judicial bypass to local law enforcement, which is then required to investigate claims of abuse. This effectively ensures that abusers will become aware of their child’s pregnancy if that child decides to go to court for their right to abortion without parental consent, potentially putting those pregnant Texans in danger of further abuse.
HB 3994 will need one more largely procedural vote from the senate before it is passed back to the house for its concurrence on the changes to the original bill language.