For Jamie Sabino’s client, a young woman who had been taken into state custody in Massachusetts, “court represented her family being torn apart.”
The young woman, Sabino said, was pregnant and wanted an abortion. But like everyone under 18 in Massachusetts, state policies required her to get consent from a parent or guardian, or else seek judicial approval. Because the teen was in foster care, she automatically needed to plead her case before a judge, and she was terrified.
Sabino, who is co-chair of the Judicial Consent for Minors Lawyer Referral Panel, an association of attorneys who are trained and certified to be appointed to represent petitioners in judicial bypass in Massachusetts, started the proceedings so the teen could obtain abortion care; her caseworker, though sympathetic, did not want the teen’s next placement to know about the pregnancy or the abortion. The foster teen was worried about her new placement, and embarrassed that she did not have what she considered to be a decent change of clothes to wear to her hearing.
“For her, the court hearing for the abortion was torture,” said Sabino.
Sex. Abortion. Parenthood. Power.
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“Parental involvement” laws like the one in Massachusetts currently exist in 36 other states. At best, they are unnecessary hurdles; at worst, they put teens through an arduous and humiliating process. Most teens involve a parent in their decision to have an abortion, and those who don’t often have a good reason, such as avoiding abuse. These parental involvement laws pose a special set of complications for foster teens, who are living outside of the care of their parents, and in the care of a system that generally does little to ensure they have access to abortion.
There are roughly a quarter million girls living in foster care. And while teen pregnancy rates have been steadily declining, they remain staggering among foster teens, due to a number of factors. Girls living in the foster care system are twice as likely to experience pregnancy by the time they turn 19 than their peers living outside of the system. Still, while research indicates the majority of pregnancies among foster teens are “unwanted,” most foster teens carry their pregnancies to term. One study conducted in 2009 found between 80 and 90 percent of foster teens’ pregnancies end in a live birth, and of the pregnancies they tracked, less than 5 percent ended in abortion; the national average among teens the same age is over 30 percent.
In general, parental involvement laws treat foster teens unequally, in that they fail to account for the population of minors living in the custody of someone other than their parents. Shoshanna Ehrlich, co-chair of the Judicial Consent for Minors Lawyer Referral Panel, points out that these policies and laws “deprive foster teens of options.” For foster teens, the state agency that oversees child welfare—usually the state’s department of children and families (DCF)—is technically their legal guardian, and it’s likely the relationship they have with their biological parents is not conducive to supporting them through the abortion decision. Rachel Rebouché, a law professor at Temple University, says in some states, foster parents and caseworkers are outright prohibited from consenting to or providing notification.
This leaves the judicial bypass process, which varies from state to state. In some states, there are organizations that guide minors through the steps, and the bulk of petitions are approved. But in other states, minors are largely on their own when it comes to finding an attorney and navigating the law. They may face judges who harbor anti-choice views and who ask them intrusive questions, or other abortion restrictions that incur delays on their procedure. The likelihood their petition will be approved also varies.
In Massachusetts, for example, state policy designates that teens in the care of the state must still get consent from their parents or a guardian; if they can’t their only option is to go to a judge. For foster teens who are in the full custody of the state, department staff are prohibited from consenting, and teens are relegated to the bypass process. The only instance under which the department can aid in the abortion process is if they have been appointed a minor’s legal guardian. This means, for many teens in foster care, the judicial bypass is their only option. Massachusetts has a relatively well-functioning judicial bypass system: Planned Parenthood of Massachusetts has a hotline that teens can call to get information on their abortion decision, which refers teens directly to attorneys from the Judicial Consent for Minors Lawyer Referral Panel to help them through the process. Public hospitals in Massachusetts also cover abortion costs for uninsured people, including minors. Still, Sabino cautions that “even in the most perfect system, the judicial bypass process still creates trauma” and “delay … to no benefit.”
Jessica Berry of the Children’s Law Center of Massachusetts says that making foster teens who choose abortion to go through the judicial bypass process may also compromise a teen’s ability to control who knows about their abortion. She notes that, while caseworkers in Massachusetts cannot consent to an abortion, record of the procedure may be made in a minor’s file. As files move from caseworker to caseworker, it increases the number of people who may know about the abortion.
Beyond the issue of confidentiality, caseworkers, depending on their personal feelings about abortion, may see a foster teens’ decision to have one as a reason that they need counseling or as another indication of trauma.
When states don’t have explicit policies prohibiting child welfare agents from providing notification or consenting to a foster teen’s abortion, Rebouché says caseworkers often self-impose a kind of prohibition on it. Advocates like Sabino can, and do, help foster teens figure out the steps they need to take, but state agencies and employees are often less supportive. And while Berry points out that some caseworkers are willing to help minors through the undertaking, Sabino says that varies from DCF office to DCF office, and from caseworker to caseworker, meaning that the medical care foster teens receive as it pertains to abortion is largely luck of the draw.
This could be because state employees have personal views about abortion, or are unclear as to whether they are even allowed to aid a foster teen in the process. The Hyde Amendment, which prohibits federal funding from going to abortion care in most circumstances, and similar state laws could contribute to that confusion, as caseworkers may be unsure if being employed by the state prohibits them from even helping a minor obtain an abortion. Such laws also can have a direct impact on policy: In Alabama, for example, the state passed a regulation prohibiting child welfare agencies from consenting to abortions on the assumption that doing so would be in violation of the federal Hyde Amendment, and would result in them losing funding.
Sabino says one important thing to remember is that reproductive rights advocates know the number of teens they work with, but what they don’t know is the “negative”—how many teens start the process and never finish, who are put off by what it involves, or who are unaware of their rights all together.
Confusion about who can pay for a foster teen’s abortion may also impede access. In 2003, a Pennsylvania foster teen had her bypass petition initially denied because there was confusion among agency staff about who would pay for her procedure. And the truth of the matter is that many foster teens will face problems paying for their abortions, even after they obtain judicial permission. Because they are covered by Medicaid, they receive no insurance coverage for abortion except in cases of rape, incest, or life endangerment.
In states where foster parents or caseworkers can be involved, there can still be complications. Illinois is a notification state, meaning that minors need to notify their parents about their abortion, but do not need to get their consent. Emily Werth, the Judicial Bypass Coordination Project staff attorney at the American Civil Liberties Union of Illinois, says that when minors are wards of the state in Illinois—as in, when legal guardianship has been transferred—caseworkers simply call the same medical consent line they would for any other procedure and notify the state. But for minors in temporary or protective custody, for whom the state does not have legal guardianship, the state is not allowed to accept notifications on behalf of parents who still have parental rights. Those foster teens have to find some other way to comply with the law in Illinois, such as using its abuse or neglect exception or getting a judicial bypass.
For the vast majority of foster teens in the United States who chose to terminate their pregnancies, then, going to court can be their only option.
Even the court hearing itself puts foster teens at a disadvantage. The U.S. Supreme Court ruled that parental involvement laws were constitutional so long as a judicial bypass option was present in the 1979 case Bellotti v. Baird, and have largely upheld them since. In Bellotti, the court put forward a two-pronged test to determine whether a minor should have judicial permission to have an abortion; first whether the minor was mature enough, and second if the minor was not found to be mature enough, if it was in her best interest to have an abortion. But the Court has never clearly defined maturity, so it varies: Some of the standard factors that go into determining it can put foster teens at a disadvantage.
“They have all the strikes against them,” says Sabino, who notes the nature of life in foster care, and the stresses it puts on teens, often means that it’s hard for them to maintain a steady job or good grades, which judges might see as a sign of immaturity.
In some states, the same judge who hears a foster teen’s bypass case might also hear her child welfare case. This creates the potential for a conflict of interest for the presiding judge, and increases the risk of compromising the minor’s confidentiality as it pertains to the abortion decision.
And, of course, the teens may encounter the issue of judicial anti-choice stances. A Nebraska judicial bypass case involving a foster teen made headlines in 2013 when a Nebraska Supreme Court judge handed down a ruling that Rewire‘s vice president of law and the courts Jessica Mason Pieklo says effectively banned abortion for foster teens in the state by relegating them to the torturous bypass procedure. A teen, who had been placed with an Evangelical Christian family along with her siblings, testified that she was not ready to be a mother, and feared her child would end up in foster care. But after a tortuous hearing, in which a judge told the girl “when you have the abortion it’s going to kill the child inside you,” the minor’s petition was denied.
Sabino says there are several factors that make this situation even more fraught for foster teens. Practically all teens involve an adult in their decision to have an abortion, even if that person isn’t a parent. They might turn to grandparents, neighbors, or people they trust at school. But as Sabino points out, for foster teens who might be in an unfamiliar school or environment, turning to a trusted adult might be difficult or even impossible. “I’m sure there are kids who, because they’re out of their support system, are unable to access” abortion, she says.
Furthermore, getting to and from court or a clinic is presents challenges for many teens, but for those in foster care it can come with the added stress of living in an unfamiliar place.
“Sometimes they really need to tell somebody,” she says, “because they have no way of accessing the court process, because they’re living in a foster home or residential placement in a place where they don’t even know the bus system. And yet, if they reveal it, it can become a problem.”
Sabino also points out that teens living in a residential placement have their movements “closely monitored,” which means the option of slipping out for a court hearing and confidential medical procedure can be difficult, if not impossible altogether. She says she has also run into social workers who have told teens that they have to tell their foster families or the residential placement, or they’ll be removed.
“We’ve successfully beat those back,” she says, “but I suspect this happens all the time and we don’t know about it.”
Trauma, abuse, and neglect factor into a large number of foster care cases, and can make the judicial bypass process an even more tortuous one. Foster teens are also at an increased risk for sexual exploitation, which makes the need for comprehensive access to reproductive health care, including abortion, all the more urgent. A portion of minors in state care have parents who are incarcerated, who have been deported, or are going through the deportation processes, which can make going to court carry especially terrifying implications. Many of these minors are immigrants themselves, which presents another set of challenges.
Some advocates argue that foster teens should be able to consent to abortion the same way they can consent to other pregnancy-related care, without oversight of a legal guardian or judge. This would be the ideal situation for teens living in and outside of foster care. Unfortunately, though, parental involvement laws likely aren’t going anywhere. Other advocates argue that while parental involvement laws remain in place, allowing foster parents or caseworkers in all states to consent to abortion would at least provide minors with the option, and that for those few lucky foster teens who do have a supportive caseworker or foster parent, it would allow them to avoid the arduous bypass process.
While it is not possible to draw a direct correlation between high rates of teen parenting and birth among foster teens and a lack of access to abortion, what is clear is that parental involvement laws, which are unnecessary and harmful for all teens, make abortion all but inaccessible for those who are most at risk for unintended pregnancy.
When it comes down to it, Rebouché says, “these laws are just not written for minors in state care.”