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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.

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