News Law and Policy

Texas Supreme Court Curbs Minors’ Access to Abortion Care

Jessica Mason Pieklo

New rules issued by the Texas Supreme Court are designed to make it impossible for minors to access an abortion, advocates claim.

Minors needing an abortion in Texas without parental consent have a new web of rules to navigate in 2016.

The Texas Supreme Court issued the rules in late December to implement HB 3994, the state’s newly passed judicial bypass law that governs the process for abused and neglected minors to obtain court approval to consent to an abortion.

The rules took effect January 1, imposing extensive restrictions for those minors seeking a judicial bypass for an abortion. Advocates claim such restrictions are unconstitutional.

“Judicial bypass protects vulnerable pregnant teens who cannot find or safely turn to a parent,” Tina Hester, executive director of Jane’s Due Process, a nonprofit advocacy organization serving minors in need of reproductive health care, said in a statement following the release of the rules. “But the legislature and Governor Abbott decided to go after abused and neglected pregnant teens by amending this law.”

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One of the most significant changes made to the judicial bypass process by HB 3994 is to remove the enforcement deadlines for the judge to rule on a minor’s request for an abortion. Advocates claim this provision effectively allows a judge to stall out a minor until they can no longer obtain a legal abortion.

“When a minor cannot even get a hearing or a court ruling in time, the state is then making her decision for her,” Susan Hays, legal counsel and a founding mother of Jane’s Due Process, said in a statement. “Such abuse of state power amounts to an ‘absolute veto’ of her decision and is under U.S. Supreme Court precedent unconstitutional.”

Hays was one of a number of legal experts who served on a specially convened judicial bypass rules subcommittee to advise the Texas Supreme Court as it considered the judicial bypass rules. That advisory committee recommended rules Hays said would minimize constitutional violations.

“The rules advisory committee offered suggestions to make the new law, House Bill 3994, more useful for both the courts and the clients, and less unconstitutional,” Hays said.

The Texas Supreme Court rejected the advice of the advisory committee and instead issued final rules governing the judicial bypass process that advocates claim are even more restrictive than those considered by legislators when they passed HB 3994.

The U.S. Supreme Court ruled in the late 1970s that to be constitutional, a judicial bypass process must be anonymous, expeditious, and provide an effective opportunity for a minor to obtain an abortion. The new Texas requirements violate these requirements in a number of ways, advocates claim.

First, HB 3994 extends the time for a judge to rule on a minor’s request for a judicial bypass from two business days to five and declares a case denied if the judge does not rule within those five days. Advocates contend this requirement could have the harmful effect of pushing a minor into a more expensive procedure or past the legal limit for abortion, especially considering long clinic wait times since the passage of HB 2, Texas’ clinic-closure law.

The law requires minors to provide the judge considering the bypass their name, home address, and phone number, therefore erasing patient anonymity and confidentiality. HB 3994 also requires most minors to file their request for a bypass in their home county if its population is more than 10,000, including in cases of rape.

“How heartless for the law to have no exception for a rape survivor fearful of seeing her rapist at the courthouse,” Hays said.

Minors often pursue a judicial bypass for an abortion when parents are abusive, missing, deported, incarcerated, deceased, or drug dependent, according to advocates.

Advocates claim that many Texas courthouses are unwilling to assist minors in applying for bypass. A 2015 Jane’s Due Process survey of more than 80 Texas counties found that 81 percent of counties did not have immediate knowledge of the judicial bypass process and 37 percent of the counties denied entirely a teenager’s ability to file for a bypass.

The refusal rate was 58 percent in counties with fewer than 50,000 people.

Supporters of the law said the new requirements closed “loopholes” in the judicial bypass process that allowed minors to manipulate the courts into granting abortions without their parents’ consent. “We are pleased with the Supreme Court’s strong rules regarding the judicial bypass process for abortions on minor girls,” Joe Pojman, executive director of Texas Alliance for Life, said in a statement. “These bring to fruition a 10-year effort by Texas Alliance for Life and a coalition of pro-life organizations to protect minor girls in Texas from abortion.”

Reproductive rights advocates have not yet challenged the requirements in court. If they do, it would mark yet another court fight over abortion rights in Texas. The U.S. Supreme Court in March will hear arguments on the constitutionality of portions of another Texas anti-abortion law, HB 2, which, if allowed to stand, will close more than 75 percent of the abortion clinics in the state.

News Law and Policy

Court Blocks North Carolina’s ‘Discriminatory’ Voter ID Law

Imani Gandy

“[T]he new provisions target African Americans with almost surgical precision," Circuit Judge Diana Gribbon Motz wrote for the court, describing the North Carolina GOP's voter ID law.

A unanimous panel of the Fourth Circuit Court of Appeals struck down North Carolina’s elections law, holding that the Republican-held legislature had enacted the law with discriminatory intent to burden Black voters and that it therefore violated the Voting Rights Act of 1965.

The ruling marks the latest defeat of voter ID laws passed by GOP-majority legislatures across the country.

“We can only conclude that the North Carolina General Assembly enacted the challenged provisions of the law with discriminatory intent,” Circuit Judge Diana Gribbon Motz wrote for the court.

HB 589 required in-person voters to show certain types of photo ID beginning in 2016, and either curtailed or reduced registration and voting access tools that Black voters disproportionately used, including an early voting period. Black voters also disproportionately lack photo IDs.

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Republicans claimed that the law was intended to protect against voter fraud, which has proven exceedingly rare in Republican-led investigations. But voting rights advocates argue that the law was intended to disenfranchise Black and Latino voters.

The ruling marks a dramatic reversal of fortune for the U.S. Justice Department, the North Carolina chapter of the NAACP, and the League of Women Voters, which had asked the Fourth Circuit to review a lower court ruling against them.

U.S. District Court Judge Thomas Schroeder in April ruled that plaintiffs had failed to demonstrate that the law hindered Black voters’ ability to exercise political power.

The Fourth Circuit disagreed.

“In holding that the legislature did not enact the challenged provisions with discriminatory intent, the court seems to have missed the forest in carefully surveying the many trees,” Motz wrote. “This failure of perspective led the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

The Fourth Circuit noted that the Republican-dominated legislature passed the law in 2013, immediately following the U.S. Supreme Court’s ruling in Shelby v. Holder, which struck a key provision in Section 4 of the Voting Rights Act.

Section 4 is the coverage formula used to determine which states must get pre-clearance from the Department of Justice or the District Court for the District of Columbia before making any changes to election laws.

The day after the Supreme Court issued its ruling in Shelby, the Republican chairman of the Senate Rules Committee announced the North Carolina legislature’s intention to enact an “omnibus” election law, the appeals court noted. Before enacting the law, however, the Republican-dominated legislature requested data on the use, by race, of a number of voting practices.

After receipt of the race data, the North Carolina General Assembly enacted legislation that restricted voting and registration, all of which disproportionately burdened Black voters.

“In response to claims that intentional racial discrimination animated its actions, the State offered only meager justifications,” Motz continued. “[T]he new provisions target African Americans with almost surgical precision.”

The ruling comes a day after the Rev. Dr. William J. Barber II, president of the North Carolina chapter of the NAACP and one of the primary organizers of Moral Mondays, gave a rousing speech at the Democratic National Convention that brought convention goers to their feet.

During a protest on the first day of the trial, Barber told a crowd of about 3,500 people, “this is our Selma.”

Analysis Law and Policy

After ‘Whole Woman’s Health’ Decision, Advocates Should Fight Ultrasound Laws With Science

Imani Gandy

A return to data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous "informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

Whole Woman’s Health v. Hellerstedt, the landmark U.S. Supreme Court ruling striking down two provisions of Texas’ omnibus anti-abortion law, has changed the reproductive rights landscape in ways that will reverberate in courts around the country for years to come. It is no longer acceptable—at least in theory—for a state to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.

In an opinion driven by science and data, Justice Stephen Breyer, writing for the majority in Whole Woman’s Health, weighed the costs and benefits of the two provisions of HB 2 at issue—the admitting privileges and ambulatory surgical center (ASC) requirements—and found them wanting. Texas had breezed through the Fifth Circuit without facing any real pushback on its manufactured claims that the two provisions advanced women’s health. Finally, Justice Breyer whipped out his figurative calculator and determined that those claims didn’t add up. For starters, Texas admitted that it didn’t know of a single instance where the admitting privileges requirement would have helped a woman get better treatment. And as for Texas’ claim that abortion should be performed in an ASC, Breyer pointed out that the state did not require the same of its midwifery clinics, and that childbirth is 14 times more likely to result in death.

So now, as Justice Ruth Bader Ginsburg pointed out in the case’s concurring opinion, laws that “‘do little or nothing for health, but rather strew impediments to abortion’ cannot survive judicial inspection.” In other words, if a state says a restriction promotes women’s health and safety, that state will now have to prove it to the courts.

With this success under our belts, a similar return to science and data should aid in dismantling other laws ungrounded in any real facts, such as Texas’s onerous “informed consent” law—HB 15—which forces women to get an ultrasound that they may neither need nor afford, and which imposes a 24-hour waiting period.

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In Planned Parenthood v. Casey, the U.S. Supreme Court upheld parts of Pennsylvania’s “informed consent” law requiring abortion patients to receive a pamphlet developed by the state department of health, finding that it did not constitute an “undue burden” on the constitutional right to abortion. The basis? Protecting women’s mental health: “[I]n an attempt to ensure that a woman apprehends the full consequences of her decision, the State furthers the legitimate purpose of reducing the risk that a woman may elect an abortion, only to discover later, with devastating psychological consequences, that her decision was not fully informed.”

Texas took up Casey’s informed consent mantle and ran with it. In 2011, the legislature passed a law that forces patients to undergo a medical exam, whether or not their doctor thinks they need it, and that forces them to listen to information that the state wants them to hear, whether or not their doctor thinks that they need to hear it. The purpose of this law—at least in theory—is, again, to protect patients’ “mental health” by dissuading those who may be unsure about procedure.

The ultra-conservative Fifth Circuit Court of Appeals upheld the law in 2012, in Texas Medical Providers v. Lakey.

And make no mistake: The exam the law requires is invasive, and in some cases, cruelly so. As Beverly McPhail pointed out in the Houston Chronicle in 2011, transvaginal probes will often be necessary to comply with the law up to 10 to 12 weeks of pregnancy—which is when, according to the Guttmacher Institute, 91 percent of abortions take place. “Because the fetus is so small at this stage, traditional ultrasounds performed through the abdominal wall, ‘jelly on the belly,’ often cannot produce a clear image,” McPhail noted.

Instead, a “probe is inserted into the vagina, sending sound waves to reflect off body structures to produce an image of the fetus. Under this new law, a woman’s vagina will be penetrated without an opportunity for her to refuse due to coercion from the so-called ‘public servants’ who passed and signed this bill into law,” McPhail concluded.

There’s a reason why abortion advocates began decrying these laws as “rape by the state.”

If Texas legislators are concerned about the mental health of their citizens, particularly those who may have been the victims of sexual assault—or any woman who does not want a wand forcibly shoved into her body for no medical reason—they have a funny way of showing it.

They don’t seem terribly concerned about the well-being of the woman who wants desperately to be a mother but who decides to terminate a pregnancy that doctors tell her is not viable. Certainly, forcing that woman to undergo the painful experience of having an ultrasound image described to her—which the law mandates for the vast majority of patients—could be psychologically devastating.

But maybe Texas legislators don’t care that forcing a foreign object into a person’s body is the ultimate undue burden.

After all, if foisting ultrasounds onto women who have decided to terminate a pregnancy saves even one woman from a lifetime of “devastating psychologically damaging consequences,” then it will all have been worth it, right? Liberty and bodily autonomy be damned.

But what if there’s very little risk that a woman who gets an abortion experiences those “devastating psychological consequences”?

What if the information often provided by states in connection with their “informed consent” protocol does not actually lead to consent that is more informed, either because the information offered is outdated, biased, false, or flatly unnecessary given a particular pregnant person’s circumstance? Texas’ latest edition of its “Woman’s Right to Know” pamphlet, for example, contains even more false information than prior versions, including the medically disproven claim that fetuses can feel pain at 20 weeks gestation.

What if studies show—as they have since the American Psychological Association first conducted one to that effect in 1989—that abortion doesn’t increase the risk of mental health issues?

If the purpose of informed consent laws is to weed out women who have been coerced or who haven’t thought it through, then that purpose collapses if women who get abortions are, by and large, perfectly happy with their decision.

And that’s exactly what research has shown.

Scientific studies indicate that the vast majority of women don’t regret their abortions, and therefore are not devastated psychologically. They don’t fall into drug and alcohol addiction or attempt to kill themselves. But that hasn’t kept anti-choice activists from claiming otherwise.

It’s simply not true that abortion sends mentally healthy patients over the edge. In a study report released in 2008, the APA found that the strongest predictor of post-abortion mental health was prior mental health. In other words, if you’re already suffering from mental health issues before getting an abortion, you’re likely to suffer mental health issues afterward. But the studies most frequently cited in courts around the country prove, at best, an association between mental illness and abortion. When the studies controlled for “prior mental health and violence experience,” “no significant relation was found between abortion history and anxiety disorders.”

But what about forced ultrasound laws, specifically?

Science has its part to play in dismantling those, too.

If Whole Woman’s Health requires the weighing of costs and benefits to ensure that there’s a connection between the claimed purpose of an abortion restriction and the law’s effect, then laws that require a woman to get an ultrasound and to hear a description of it certainly fail that cost-benefit analysis. Science tells us forcing patients to view ultrasound images (as opposed to simply offering the opportunity for a woman to view ultrasound images) in order to give them “information” doesn’t dissuade them from having abortions.

Dr. Jen Gunter made this point in a blog post years ago: One 2009 study found that when given the option to view an ultrasound, nearly 73 percent of women chose to view the ultrasound image, and of those who chose to view it, 85 percent of women felt that it was a positive experience. And here’s the kicker: Not a single woman changed her mind about having an abortion.

Again, if women who choose to see ultrasounds don’t change their minds about getting an abortion, a law mandating that ultrasound in order to dissuade at least some women is, at best, useless. At worst, it’s yet another hurdle patients must leap to get care.

And what of the mandatory waiting period? Texas law requires a 24-hour waiting period—and the Court in Casey upheld a 24-hour waiting period—but states like Louisiana and Florida are increasing the waiting period to 72 hours.

There’s no evidence that forcing women into longer waiting periods has a measurable effect on a woman’s decision to get an abortion. One study conducted in Utah found that 86 percent of women had chosen to get the abortion after the waiting period was over. Eight percent of women chose not to get the abortion, but the most common reason given was that they were already conflicted about abortion in the first place. The author of that study recommended that clinics explore options with women seeking abortion and offer additional counseling to the small percentage of women who are conflicted about it, rather than states imposing a burdensome waiting period.

The bottom line is that the majority of women who choose abortion make up their minds and go through with it, irrespective of the many roadblocks placed in their way by overzealous state governments. And we know that those who cannot overcome those roadblocks—for financial or other reasons—are the ones who experience actual negative effects. As we saw in Whole Woman’s Health, those kinds of studies, when admitted as evidence in the court record, can be critical in striking restrictions down.

Of course, the Supreme Court has not always expressed an affinity for scientific data, as Justice Anthony Kennedy demonstrated in Gonzales v. Carhart, when he announced that “some women come to regret their choice to abort the infant life they once created and sustained,” even though he admitted there was “no reliable data to measure the phenomenon.” It was under Gonzales that so many legislators felt equipped to pass laws backed up by no legitimate scientific evidence in the first place.

Whole Woman’s Health offers reproductive rights advocates an opportunity to revisit a host of anti-choice restrictions that states claim are intended to advance one interest or another—whether it’s the state’s interest in fetal life or the state’s purported interest in the psychological well-being of its citizens. But if the laws don’t have their intended effects, and if they simply throw up obstacles in front of people seeking abortion, then perhaps, Whole Woman’s Health and its focus on scientific data will be the death knell of these laws too.