Suffer the Children

New target for anti-abortion Lege

Anti-choice bill targets minors. Will pro-choice activists storm the Capitol again?
Anti-choice bill targets minors. Will pro-choice activists storm the Capitol again? (photo by Jana Birchum)

Jane's parents ran an East Dallas meth ring. The dangerous environment and prospect of being sold into sex work by her negligent parents prompted 16-year-old Jane, who soon became pregnant, to escape and find refuge at her boyfriend's house. Shuffled from high school to high school (and in and out of Child Protective Ser­vices), Jane managed to earn strong grades and hoped to go to college – and knew she wasn't ready to be a parent. Without dependable parents of her own, she turned to a legal process known as "judicial bypass" – an order from a judge, without parental involvement – to permit an abortion and enable an independent future.

Abandonment, neglect, death, or domestic violence underlie many of the roughly 200 annual Texas judicial bypass cases, and Jane's experience represents about a third of those accepted by Jane's Due Process, an organization that assists minor girls in acquiring a judicial bypass. "So, mom's dead, dad's in prison – legally no one can consent to her abortion. Maybe she never knew her parents, or they are abusive and she faces a threat," said Susan Hays, legal director of Jane's Due Process. "The point of bypass is to make sure she's safe."

Rep. Geanie Morrison
Rep. Geanie Morrison

Nevertheless, anti-abortion Texas lawmakers are determined to chip away at this safety net for minors. Having largely dismantled the health care system for women through sustained attacks on reproductive rights, anti-choice Republicans have found a new, especially vulnerable target.

Last week, House Bill 3994 by Rep. Geanie Morrison, R-Victoria, secured final House approval following nearly four hours of floor debate. The omnibus legislation – a wish list for anti-choice activists hoping to eradicate abortion – was made even more restrictive with the addition of a late-hour amendment from Rep. Matt Krause, R-Fort Worth. And having cleared a vote by the Senate Committee on Health and Human Services on Tuesday, the bill, sponsored in the upper chamber by Sen. Charles Perry, R-Lubbock, moves to the full Senate as of press time.

Among the steep hurdles it would create for abortion-seeking minors: The bill assumes every patient is under 18 years old until she presents a valid government ID; imposes on victims an increased burden of proof of abuse; gives a presiding judge five business days (instead of two) to issue a ruling; and (contrary to current law) should the judge fail to rule, the girl would be denied an abortion rather than granted one. It also forces both the physician and judge to report violence claims without the normal safeguards for minors, potentially exposing abused girls to further abuse.

Susan Hays, legal director of Jane's Due Process
Susan Hays, legal director of Jane's Due Process

Hoping to mitigate a harmful bill, Dem­ocrats proposed more than a dozen amendments, such as allowing school IDs for identification. Austin Rep. Eddie Rodriguez described the ID rule as written as a "de facto ban on abortion" for some of the most vulnerable women in the state, such as undocumented residents and sex trafficking victims. If a woman is raped and needs an abortion and doesn't have a government ID she would be "out of luck" under the bill, Rep. Rafael Anchia, D-Dallas, pointed out. With evident passion, Rep. Donna Howard, D-Austin, sought to let survivors of rape or incest give sworn statements instead of being forced to endure the burden of proof of abuse. "Minors should not be re-victimized," said Howard. "Imagine being raped by your father and then having to try to navigate the court system and provide clear and convincing evidence of that rape?" (Rep. Celia Israel, D-Austin, criticized the House members – many of whom were joking and chatting out loud – for lack of deference to the sensitive issue: "I've never seen the chamber be so disrespectful when talking about cases of rape and incest.") The GOP majority rejected all Dem-supported amendments.

Additionally troubling to reproductive rights advocates is the breach of confidentiality tucked away in the massive bill. For instance, HB 3994 prohibits a minor from obtaining a court order outside of her own county (unless there are fewer than 10,000 people), threatening the privacy of girls living in small towns. And in another substantial change, the bill would require a minor to include her address and telephone number in the court application. The U.S. Supreme Court has held that states may determine parental consent rules as long as judicial bypass remains confidential, expeditious, and gives an "effective opportunity" for abortion access – critics of the bill say it flies in the face of the high court's ruling.

Seemingly dismissing the hours of emotional, intimate testimony at Monday's Sen­ate Com­mit­tee on Health & Human Services hearing – recounting heart-wrenching personal stories of bypass cases (some as young as 12 years old), including instances of rape, incest, and violence – pro-HB 3994 witnesses and legislators continually asserted the state should not come "between a minor and her parents."

Houston Repub­lican Rep. Sarah Davis reminded lawmakers that it was a member of their party who crafted the initial 1999 judicial bypass law. "The legislation you are attempting to overhaul today was created and championed by Republicans," she said. "Are you as confused as I am?"

Bill proponents claim the current bypass process is riddled with "loopholes" and insufficiently stringent. Yet bypass in Texas is already rife with complications for minors – a district clerk survey completed in March 2015 by Jane's Due Process showed only 26% of counties provided a caller with factually correct information; 37% of counties denied entirely their office's involvement with judicial bypass filings; 43% provided the caller with "blatant misinformation," and the majority (81%) had "no immediate knowledge of the existence of judicial bypass." Several clerks additionally provided callers with "religious advice," referencing "God's plan," the survey found.

"What's so appalling about this is that they don't care if they're going to hurt someone," said Hays, who has taken on dozens of "Jane" cases over the past 15 years as a litigator. "Either out of their delusion that it's better for the girl to keep her from having an abortion, or out of naivety about how horrible the world can be." For Hays and other reproductive rights advocates, there's no doubt the bill, if enacted, will be met with legal action.

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Texas Legislature, Rep. Matt Krause, Sen. Charles Perry, Rep. Eddie Rodriguez, Rep. Rafael Anchia, Rep. Donna Howard, Rep. Celia Israel, Senate Committee on Health and Human Services, Rep. Sarah Davis, abortion rights, reproductive rights, 84th Texas Legislature, HB 3994, Jane's Due Process, Susan Hays, Rep. Geanie Morrison, Judicial Bypass, Abortion, Anti-Abortion, Anti-Choice

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