Shaming Girls in Crisis

Two bills pending at the Lege that seek to "reform" aspects of the judicial bypass law that allows a minor to seek an abortion without parental approval could jeopardize a minor's privacy ,and potentially put district judges in harm’s way, witnesses testified during a committee hearing last week.

The measures in question are House Bill 3819 by Dallas Republican Rep. Stefani Carter, and HB 3302 by Rep. Matt Krause, R-Fort Worth, which seek to close what both lawmakers told the House State Affairs Committee last week are "loopholes" that allow teens to avoid informing their parents about having an abortion.

The U.S. Supreme Court has ruled that states that require parental notification and consent for adolescents seeking abortion must also create a bypass measure to allow vulnerable teens access to abortion via the courts, without telling a parent or guardian – for the benefit of physically, sexually, or emotionally abused and/or neglected girls whose lives could be threatened by a parent finding out, or girls whose parents are in prison or have been deported. The bypass system allows a minor to petition a court for permission if she can prove by a preponderance of evidence that a reason exists to avoid consent and notification. According to Jane's Due Process, which represents minors in these situations, 376 teens were screened for services in 2012; of those, 64% were 17 years old and 14% are already a parent to at least one child.

According to Carter and Krause – and witnesses who testified in favor of each measure – teens are finding ways to avoid telling their parents that they're seeking an abortion by "venue shopping" for friendly courts willing to approve "secret abortions," as Veronica Arnold, a legislative associate for Texas Right to Life put it during her testimony in favor of Krause's bill. Each measure would restrict a minor's ability to seek an abortion outside her home county. Under Carter's measure, she would be restricted to her home county unless that county is less than 10,000 people, while Krause's would limit her to her home county, unless its population is 50,000, in which case she could seek an abortion in an adjacent county. That restriction threatens confidentiality, witnesses testified. The bypass system is designed specifically to allow a girl the right to seek review in a larger county in order to protect her identity, a potentially serious problem especially in rural areas, witnesses said.

Both bills would also raise the burden of proof a teen must meet from a preponderance of evidence standard (that is, something is more likely true than not) to "clear and convincing evidence" (a greater standard than preponderance, but less rigorous a standard than the criminal requirement for proof beyond a reasonable doubt). Moreover, Carter's bill, Rep. Jessica Farrar, D-Houston, noted, would require a judge to base the decision about whether to grant the bypass not on "whether [the teen] can consent to her own medical care," but whether the abortion is in the "best interest of the minor."

Krause's measure contains no exception for cases where the teen may have become pregnant by an act of rape or incest. Why would the government want to make that decision, Farrar asked; because, Krause said, he's never talked to any woman who has expressed any regret about carrying to term a child conceived by rape. There are "no regrets," he said, "when life has been chosen."

And Carter's bill would also require annual reporting on which judges consider bypass cases. That provision also concerned Farrar, who asked Carter if she would "be concerned about violence against judges" related to the detailed reporting.

"No," Carter replied.

Indeed, several witnesses argued that the changes to the rules for judicial bypass – crafted and approved with Texas Supreme Court oversight – are so permissive as to allow teens to manipulate the system simply to avoid having to tell their parents, even when there's no real reason not to do so. Abby Johnson, the former Bryan-area Planned Parenthood clinic director who now works as a policy advisor for Americans United For Life, said that's what she saw during her eight years at Planned Parenthood. During her tenure, Johnson said she could recall 38 times that teens wanted bypass and were encouraged to try for it by clinic employees, including Johnson. Still, the teens didn't really need bypass, they simply didn't "want [their parents] to know because 'they'll take my car away' or 'they won't let me see my boyfriend anymore,'" she said, mocking the teens she said were encouraged by Planned Parenthood in their alleged attempts at deceit.

Rep. Helen Giddings, D-Dallas, who is a co-chair of the committee, took exception to Johnson's depictions. "I am struck by your cavalier statements about young women who must be in a terrible, terrible state," she said. "Surely these had to be exceptional cases and not run of the mill." Not so, Johnson asserted. "I ran into them frequently," she said, "and I think that's generally what we're seeing in the judicial [bypass] process."

Ultimately, neither Giddings nor Farrar appeared impressed with Johnson's testimony – which Giddings described as "callous." Indeed, Giddings wondered aloud why witnesses testifying in favor of the measures had to take such an us-versus-them view of things: "Whether you're for or against, you have to admit [judicial bypass was created to address] an exceptional kind of situation," she said. And yet witnesses testifying for the bills paint "everybody who is somehow involved [in the judicial bypass process] is just a bad character, and everybody who's against [these bills] is a bad character," she said. "I'd just like to see a little more balance."

Both bills were left pending.