Judicial Bypass Doesn’t Protect Teens

Abuse of Parental Notification Law Puts Girls At Risk

The passage of a parental notification law in Alaska and plans by abortion advocates to skirt the law highlight the risks of abortions — including unwanted abortions and abortions used to cover up sexual abuse — for teens.

Alaska voters approved a law on Aug. 24 requiring abortions businesses to notify parents 48 hours before performing an abortion on a minor. In response, the Planned Parenthood Federation of America (PPFA) launched a web page informing teens that they can have an abortion without notifying their parents if they talk to a judge, a provision known as judicial bypass.

Supporters of the law say that parents are the best equipped to help their teens if they become pregnant and have the right to protect their daughters from exploitation, abuse, and physical and emotional trauma.

Indeed, research has shown that teens undergoing abortion face a number of physical and mental health risks, including higher rates of suicide compared to adult women who abort, and more need for mental heath treatment compared to other teens who carry unplanned pregnancies to term. Teens are also more likely to feel pressured into abortion, to report being misinformed in pre-abortion counseling and to experience more severe psychological stress after abortion.

Further, having a secret abortion puts teens at risk because parents are kept in the dark if their daughter experiences physical or emotional problems after abortion. In addition to mental health issues such as depression or substance abuse, there have been several reported cases of teens who died from complications after having abortions about which their parents knew nothing.

Also worrisome are the risks abortion poses to teens who are victims of sexual abuse. When a teen who is being sexually abused or exploited becomes pregnant, there is an opportunity for authorities to determine that abuse is occurring and remove the teen from the situation.

Indeed, health professionals are required by law to report suspected cases of abuse to authorities, including cases of statutory rape. On the other hand, the availability of abortion makes it easier for sexual predators to hide the abuse by getting rid of the pregnancy, and there is growing evidence that many abortion businesses don’t report cases of abuse and will even aid in covering up the sexual abuse of young girls.

Judicial Bypass Isn’t Enough

Abortion advocates argue that allowing abortion without parental notification, or at the very last, allowing teens to obtain a judge’s permission to have an abortion without parental notification, is needed to protect teens who might otherwise be abused if their parents knew they were pregnant. But a closer look at the way the judicial bypass system usually works shows that, rather than helping these girls, this system continues to put them in harm’s way.

One illustration of this was a 1998 case involving a Michigan girl who had allegedly been impregnated by her 17-year-old brother. After the case came to light, the girl’s parents sought an abortion for her in Kansas because it was too late for the girl to have an abortion under Michigan law (which bans abortions after 24 weeks except to save the life of the mother). When the county prosecutor raised concerns that the girl might be pushed into an abortion by her parents, a judge issued a restraining order stopping the abortion until the girl could undergo a psychological evaluation.

According to newspaper reports, there were indications that the girl did not want to have an abortion. However, a week later the prosecutor asked the judge to withdraw the restraining order, saying that the parents’ attorneys had assured him that the girl and her parents had received counseling from experts who agreed an abortion would be in her best interests. The judge granted the prosecutor’s request without hearing any testimony or cross-examination of these experts. The girl ended up having a late term abortion in Kansas at 29 weeks’ gestation.

Teens Put At Risk by Non-Adversarial Proceedings

This case highlights a grave failing in the way courts review cases involving abortion for minors. This procedural problem exists whenever (1) the minor is a ward of the state, as in this case, or (2) the minor is seeking judicial bypass in a state with requirements for parental notice.

The problem is that these hearings are non-adversarial. In other words, there is no attorney representing the position that abortion is harmful and not in the girl’s best interests.

In the Michigan case, the parents’ attorneys simply had to find “qualified experts” who were willing to provide sworn statements supporting the view that abortion was in her best interests.

Because there was no attorney representing the other view, these experts, their qualifications, and the medical basis for their conclusions were not subject to cross examination. Nor was the court given the opportunity to hear experts who held the opposite view–that abortion was contraindicated.

In short, the system ensures that judges hear only one side of the evidence–the pro-abortion side. However, there is no evidence to support the idea that abortion ever benefits a woman’s mental health even in general, much less in the specific case of an incest victim. Instead, this girl is at an extraordinary high risk of suffering severe emotional harm because of her abortion.

Listing just a few of the known risk factors for more severe post-abortion reactions clearly demonstrates that abortion was contraindicated for this girl. These risk factors include: being a teenager, having a second or third trimester abortion, having a history of mental illness or unresolved psychological trauma, being pressured to abort by others, and aborting in violation of prior moral beliefs against abortion.

Further, a survey of women who became pregnant through rape or incest found that nearly 80 percent said that abortion had been a bad solution, with most saying that it only increased the trauma they were experiencing.

In many cases, the victims also faced strong pressure or demands to abort from their family, health care workers, or others around them. Indeed, in almost every case where an incest victim had an abortion, it was the girl’s parents or the perpetrator who made the decision and arrangements for the abortion, not the girl herself. In several cases, the abortion was carried out against her expressed wishes, and in a few cases, without her knowledge that she was pregnant or that an abortion was taking place.

But when there is no “other side” to present such evidence to the court, and since the judge’s rulings must be based on the preponderance of evidence presented, they have very little leeway to refuse the recommendation of any “expert” provided by an abortion clinic. The result is that judicial bypass hearings are almost always “rubber stamp” procedures.

Without a process that provides for cross examination of witnesses and the introduction of testimony from experts who would dispute the girl’s maturity or the benefit of abortion to her, judges cannot actually “judge” the evidence.

Instead, the judge’s role has been reduced to simply certifying that the girl’s/clinic’s attorneys have met the minimum threshold requirement of providing an “expert opinion” that the girl is mature or would benefit from an abortion.

At the very least, state laws should be amended to require the courts to appoint an attorney to argue the position that (1) the abortion is contrary to the girl’s best interests, (2) she is not mature enough to make this dangerous choice without her parents’ knowledge, and/or (3) there is no evidence of abuse that would justify excluding the parents from being informed. Until this happens, however, even judges who agree that abortion is dangerous can do little to protect our teenagers from the “experts.”

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Learn More/Educate Others: Find out more about the impact of abortion on teens and share this information with others by downloading our Teen Abortion Risks fact sheet.

Portions of this article were originally published in the article “Two Wrongs Don’t Make It Right” in The Post-Abortion Review, 6(3) Summer 1998. Copyright 1998, 2010 Elliot Institute.


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