The Process of Seeking a Judicial Bypass for Abortion May Harm Adolescents

By Kate Coleman-Minahan & Amanda Stevenson

Seventeen-year-old Jane played soccer and dreamed of going to Texas A&M. When she saw the positive pregnancy test, she started to cry. “I want to give my kid everything, the best, better than I have. And I knew I couldn’t do that.” Jane had always been “against abortion.” But, she said, “it was my turn to make the decision and I realized that it was the best decision for me.” She also knew obtaining consent for an abortion from her parents was not a possibility. Her father had told her in the past, “I’ll disown you. You don’t exist to me if you ever [get pregnant].”

Jane lives in Texas, where adolescents under 18 years old are forced by law to obtain parental consent for abortion care. While most pregnant adolescents involve a parent in their abortion decision, some do not live with a parent or fear that disclosing the pregnancy and desire for abortion will endanger them. Some young people, like Jane, have very reasonable fears of being kicked out or emotionally or physically abused. Adolescents living in Texas who cannot, do not want to, or are afraid to involve a parent in their decision must use the courts to ask a judge for a bypass of parental consent. Little is known about adolescents’ experiences with the judicial bypass process. In order to investigate, we interviewed 20 adolescents who sought judicial bypass in Texas in 2015 or 2016. The research team included co-investigators from the Texas Policy Evaluation Project, an attorney, and a case manager at Jane’s Due Process, a non-profit organization in Texas providing legal representation for pregnant adolescents.

Burdensome, Unpredictable, and Traumatic

Our research participants described a highly burdensome, frightening, and humiliating process. Adolescents seeking bypass must go to the courthouse, interview with a court-appointed guardian-ad-litem (GAL), and stand before a randomly assigned judge to prove that they are either mature and well-informed or that parental consent is not in their best interest. Even though the legal standards that judges are required to follow are clear, the process as revealed in our interviews was largely unpredictable. Adolescents had to find transportation and take time away from home and school, risking discovery by their parents – the very reason they sought bypass in the first place. Some participants had their bypass granted just a few days after contacting Jane’s Due Process for resources; others, like Jane, experienced delays of over a month, only to be denied. They experienced “fight or flight” responses such as nausea and shaking and feared that saying the wrong thing could mean being forced to carry the pregnancy to term. Some GALs – often those affiliated with a local church – “preached at them” or told them, as Jane experienced, that “it’s never the right option to have an abortion.” Another participant was humiliated by her GAL who “laughed in the courtroom… making fun of me.” Some judges humiliated the adolescents by asking extremely private and sensitive questions about their sexual histories.

Even before our participants started the bypass process, they anticipated and experienced abortion stigma from others, including friends and teachers – a major reason many chose to keep their decision private. Although the National Academies of Sciences, Engineering, and Medicine find that abortion is safe and not associated with psychological consequences, many participants feared physical or emotional harm from the abortion, often because they felt they should be punished for doing something that they were told by others – including GALs and even judges – was morally wrong. That authority figures could convince these young women that they alone deserved punishment for making sexual health choices is ironic, given that Texas rarely provides comprehensive sex education in public schools and denies access to contraception without parental consent.

Furthermore, the humiliation and shame caused by the judicial bypass process may cause lasting trauma. Other research has shown that adverse childhood experiences, stigma, and trauma are all associated with long-term consequences, including depression, anxiety, isolation, and hesitancy to seek health care. Although proponents of the judicial bypass process claim it protects adolescents from harm, it instead appears to cause harm. Our findings lead us to ask: Are parental involvement laws protecting adolescent health and well-being, or are they a tool for adults who oppose abortion rights to restrict access to abortion care and shame adolescents, particularly young women, for their sexuality?

Putting Adolescents’ Health and Well-Being First

Allowing adolescents to make their own decisions about their bodies and futures and to choose who they want to involve in sexual health decisions protects their health and well-being. Our and others’ research suggests that forcing young people to involve adults who may harm them, exposing them to humiliation and trauma through a judicial bypass, and potentially forcing them to carry a pregnancy to term is counterproductive and is not in the best interest of young women. Instead, we should:

  • Respect adolescent autonomy. When adolescents express fear of emotional or physical abuse, they should be trusted and allowed to decide who to involve in their pregnancy decisions.
  • Ensure consistent application of bypass laws. States that continue to force parental involvement must mandate that the process be free from GALs and judges’ interjection of their personal opinions on abortion and provide a timely and effective remedy when they do.
  • Provide free and confidential access to the full range of contraceptive options to adolescents so they may better control if and when they want to parent.
  • Give non-judgmental, confidential, accurate sexual health information. Those who work with young people should follow the recommendations of organizations like the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists.

Right before Jane’s judge denied her bypass, Jane declared, “You guys keep telling me I’m not mature enough to make this decision and I don’t know what I’m getting myself into, yet if I’m not mature enough to make a decision like this how am I mature enough to even have a baby and to go through the emotional and physical changes of having a kid?” Jane saw the illogic of the bypass system even as court officials refused to do so. If states like Texas truly want to protect young people from physical and emotional harm, accurate and stigma-free health education and a judicial system that truly respects the autonomy of adolescents must be ensured.

The Future of Criminal Prosecution for Self-Induced Abortion & Pregnancy Endangerment

The intensifying avalanche of restrictive U.S. abortion laws since 2012 has made it more difficult for many people to terminate their pregnancies. These restrictions have also had the effect of increasing what are considered illegal abortions. But the face of illegal abortion has shifted since the 1973 Roe v. Wade decision by the Supreme Court. Today’s procedures rarely resemble the back-alley abortions of the past, given the availability of medications that can effectively induce abortions and the rise of the internet as a tool women can use to procure such medications and to learn how to use them. Some things, however, have not changed. Just as pregnant women were sometimes prosecuted after aborting or attempting to abort pregnancies in the pre-Roe era, pregnant women today are still sometimes prosecuted for similar acts, even if the exact methods are different.

In the United States, pregnancy occupies a contradictory socio-legal space. For many, pregnancy and resultant parenthood are much desired (and encouraged) conditions. But being pregnant can also result in the loss of important constitutional rights, including rights to privacy, liberty, and free religious expression, along with rights to due process, freedom from cruel and unusual punishment, and equal protection. Because of the potential for such lost rights, my research argues that pregnancy legally creates a lower class of person – a situation I call “pregnancy exceptionalism.” Pregnant women hold a tenuous position under the law if they go outside legally recognized methods of abortion, either by choice or because are otherwise unable to access those methods. An examination of recent instances in which pregnant women have been prosecuted offers possible clues as to future directions of the law, insofar as reductions in pregnancy prevention services continue along with erosion of legal options for ending pregnancies.

Prosecuting Pregnant Women

Three states – Alabama, South Carolina, and Tennessee – have expanded criminal law through legislatures or courts to include what they define as “unborn children.” My research on these three states has identified nearly 900 cases of arrest of pregnant or formerly pregnant people for terminating, attempting to terminate, or otherwise causing harm to their pregnancies between 1973 and 2016. In all three states, arrests of pregnant women for these offenses occurred before formal definitions were entered into the code of law.

Other states have taken similar steps. To date, every state but Vermont and Delaware has participated in the arrest and prosecution of pregnant women, allegedly in defense of their embryos and fetuses. Most of these arrests have involved pregnant women or newborns who tested positive for drugs, but cases involving attempted suicide have also been documented. One woman who attempted to evade the police was additionally charged with reckless endangerment of a minor because she was running while pregnant. Mysteriously, two women were charged with crimes against their “unborn children” but were later released when they were found not to have been pregnant in the first place. Other arrests occurred when pregnant women attempted to abort their pregnancies illegally, or were accused of doing so.

Prosecutions of pregnant women have gotten little public attention, with some exceptions in cases where medical providers reported women who were later prosecuted:

  • In Indiana in 2013, a woman named Purvi Patel was hiding a pregnancy from her conservative Hindu parents. She expressed some ambivalence about the pregnancy and texted a friend about procuring abortion pills online. After having a miscarriage at her family’s restaurant, Patel placed the fetus in the dumpster. She eventually went to the hospital, where policy interrogated her. Later, she was arrested for causing the fetus’s death, convicted and sentenced to two concurrent 20-year sentences. An appeals court later vacated the feticide charge and reduced her sentence to 18 months.

  • In Tennessee in 2015, Anna Yocca allegedly attempted to perform a self-induced abortion using a wire clothes hanger. At 24 weeks pregnant, Yocca would have needed to travel to Washington, New York, Maryland, or Colorado to obtain a legal abortion. When she began to bleed heavily, her boyfriend drove her to the emergency room. She received medical care and her baby survived, although the baby was born prematurely and likely to have lifelong disabilities. After Yocca’s healthcare providers notified police that Yocca made “disturbing” statements about wanting to end the pregnancy, she was charged and arrested for attempted murder.

Key Questions for Continued Research

As nascent research proceeds on prosecutions of pregnant women dealing with new legal restrictions, many important questions remain to be investigated:

  • How and why are people pursuing illegal abortion in the United States?

  • How has illegal abortion changed since Roe v. Wade, both legally and practically?

  • How are state legislatures and courts addressing illegal abortion?

  • What are the characteristics of criminal cases brought against women who have sought or procured illegal abortion?

  • What are the legal arguments used in making these criminal prosecutions?

No matter the answers to these questions, it is already clear that as legal abortion becomes harder to access, women will likely seek extra-legal means of terminating undesired pregnancies, even if such efforts may result in their prosecution and imprisonment. As researchers examine the safety of newer medications and technologies for self-induced abortions, they must also explore the legal risks and treatment facing people who make use of those methods. The possibility that a new Supreme Court majority may overturn Roe v. Wade or further eviscerate legal abortion rights warrants a thorough examination of the precedents that will go into adjudicating cases like those of Puri Patel and Anna Yocca that, while rare in the past, may appear more frequently in the future. More research now can help all concerned be better prepared for the new legal as well as medical world that may arrive as legal abortions become more circumscribed in the United States.

Texas Senator Wendy Davis’ 11 hour Filibuster of Abortion Bill

3013501-poster-1920-leadership-lessons-from-wendy-davis-dramatic-filibusterIt has been quite an eventful week in politics, at the national level, and in several states. Not only did the Supreme Court hand down rulings on some key cases including DOMA, Proposition 8, and the Voting Rights Act, but the Senate amended the Comprehensive Immigration Reform bill to add stronger border security provisions, and is in the beginning stages of coming to a deal regarding student federal loan interest rates (something I am personally very happy about considering the average 6 K in Stafford loans I take each year). Besides all of that earlier this week, something magical happened in Texas.

Wendy Davis, a state Senator representing Texas’ 10th district, made national news for her 11 hour filibuster of the republican backed restrictive reproductive health bill that the Texas legislature’s leadership was attempting to railroad through the state senate. The bill Wendy said would have a “devastating impact” by enacting a 20 week abortion ban, and effectively closing almost all of the health clinics that provide abortive services, among other vital health services for women, across the state.

Wendy Davis,  a hero to many in the reproductive rights fight, stood for 13 hours without bathroom breaks, water, or food and talked. Her goal was to kill the bill by stalling the vote till after the midnight deadline for the session. “I thought that we could stop it and we did stop it, for now,” she said on a CBS This Morning Interview. However the victory may be short-lived, as Governor Rick Perry has called a second special session specifically for this bill to be held on July 1st.

Wendy Davis has become a rallying cry for those engaged in the fight against restrictive reproductive health legislation. Her courage, dedication, and unique background have become an inspiration to women, including myself, across the county. The Washington post’s Lydia Depillis published a great profile of Wendy Davis this week, bellow is an excerpt:

 “She knows about single motherhood, and poverty. The 50-year-old Davis had to care for her three siblings at the age of 14 for her single mother, and became a single mother herself at the age of 19.

She knows the law. Davis became the first person in her family to graduate from college, with a degree from Texas Christian University and then Harvard Law School. She clerked, litigated, and spent a few years in the title insurance business before starting her own practice for federal and local government affairs, real estate, and contract compliance.”

The national attention she has gotten this week over her “marathon filibuster”  has many talking about the possibility of her seeking a higher office, her response “….we’ll see.” My Response to her is that I hope so, we need more strong women in politics that are willing to sacrifice for the best interests of their constituents.

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