The Many Flaws of Judicial Bypass


Lauren Enriquez writes at LiveAction News about how the abortion industry uses “judicial bypass” to get around laws requiring them to notify parents before performing abortions on teenage girls. She notes:

The judicial bypass process is essential to ensuring that cash flow into the abortion industry does not suffer due to one demographic (minors) not having access to abortion. In fact, to ensure that abortion is accessible to minor girls, Planned Parenthood and other abortion businesses have sympathetic attorneys on call at all times to personally usher young women through the confusing court system.

Often, these attorneys bring minor girls directly to like-minded judges who are the most unlikely to turn down a petition for judicial bypass. To say “unlikely to turn down” is the most accurate term to describe the judge’s role, because – unbelievably – in states like Texas, the bypass request is automatically granted if a judge does not release a decision one way or the other within forty-eight hours of the petition being filed.

The “judge-shopping” Enriquez describes is only a part of the problem. Another is the fact 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. The system ensures that judges hear only one side of the evidence — the pro-abortion side.

Since the rulings must be based on the preponderance of evidence presented, judges 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.

Retired judge Joseph Moylan, who resigned from the bench after Nebraska passed a law requiring that the presiding judge “shall” approve of the abortion if the preponderance of evidence supported the conclusion that the girl is mature or that the abortion would be in her best interests, noted in a letter to the Elliot Institute in 1998:

It is a shame and quite unfair that these hearings are merely one-sided and give “rubber stamp” approval of the request for abortion. You mention that the judge must decide whether the girl is mature or that the abortion would be in her best interests. Actually the judge must also decide whether she is capable of giving informed consent. This would require that she know the effects of an abortion and possibly the methods, etc.

If all the evidence is not presented, as Moylan rightly noted, then judicial bypass amounts to a “rubber stamp” for abortions on teenage girls, despite the danger to their physical and emotional safety and well-being. In addition to documented increased physical risks for teenagers, there is scientific evidence that teens face increased mental health problems after abortion, even when the pregnancy is unwanted.

Teens are also especially vulnerable to coerced and unwanted abortions or may be victims of sexual abuse, a situation made even more disturbing when abortion businesses carry out the abortion without asking questions or even acting to cover up the abuse.

Without a mechanism to provide for cross-examination of witnesses and the introduction of witnesses who would testify that the abortion is not in the girl’s best interests, how can judges make an informed decision? How can we be sure that the adults seeking permission for the young girl to abort without notifying her parents are not themselves manipulating, pressuring or even forcing her to seek an abortion?

Any judicial bypass laws should 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. A further layer of protection would be added by making abortionists liable for failing to screen teens and women for coercion and known risk factors that increase her chances of mental health problems after abortion.

Teens should not be put in harm’s way to line the abortion industry’s pockets, nor should a flawed system make judges a part of that.

Learn More:
Special Report on Teens and Abortion
Two Wrongs Won’t Make It Right: Incest Case Exposes Shortcomings of Judicial and Medical Reviews of Abortion Cases
Teens and Abortion Page

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