Thursday, May 12, 2005

I read the news today, oh boy

Texas has proposed a a change in law that would make it illegal for minors to receive abortions without their parent's consent. You can read the proposed changes to the law here: In a nutshell, before, when performing an abortion on a minor, a physician was required to give a parent 48 hours' notice save for emergencies for the health or life of the minor. The changes would require that the parents would have to give written approval before the abortion could take place.
Other changes include a switch from being able to file in any court to having to file in the county in which they reside, and a determination for whether the minor is sufficiently capable of making the decision on her own changed from preponderance of the evidence to clear and convincing evidence.
It does allow that "If the court finds that the minor is mature and sufficiently well informed, that requiring consentwould not be in the minor's best interest, or that requiring consent may lead to [(deletes) physical, sexual, or emotional] abuse, as that term is defined by Section 261.001, of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without consent of either of her parents or a managing conservator or guardian and shall execute the required forms." (h.b. 945).

I will not discuss the debate regarding the morality of abortion. In this country right now, abortion is legal, and states and the federal government are precluded from placing any UNDUE BURDEN in the path of the female seeking the aborton. This is a higher standard than is allowed for other fundamental rights, which require strict scrutiny. This is how it is, and it is through this standard that I base my disagreement with the changes. The undue burden standard is there for a reason. It's to ensure that females who want to get an abortion can get an abortion. In the past, states have required that women get the consent of their husbands before getting an abortion. This ran the problem of the women having to tell their husbands, and subjecting them to abusse, or worse. Under the auspices of privacy, and for the protection of the female, these laws were struck down. I see little diffference here. The proposed changes would subject a minor to a court hearing, where she'd have to prove through clear and convincing evidence that she's capable of making the decision herself (I can hear the old judge now, "you weren't mature enough to keep from getting knocked up, so you're obviously not mature enough to make this decision on your own."), or that she'd suffer abuse from her parents. If she can't prove that she'd suffer abuse, then she has to get the consent, even if she WOULD suffer the abuse. Then, she needs the consent, which may not be given, which would deny her of her fundamental right.
I don't like these changes, and I don't think that they would withstand review based on the current standards.


Bookworm said...

I wonder if the fact that the potential abortionee is a minor changes that standard, though. (I'm just going off the top of my head here from some long ago, vaguely remembered federal law concepts.) I do know that the law has always been willing to apply different standards to minors (witness pornography), and I wonder if the Legislature can make the same argument here: no undue burden to an adult woman seeking abortion, but undue burden is appropriate when dealing with a minor.

Steve said...

I can see that argument. I can also hear the (valid, in my opinion) argument that age may be a requirement for exercising fundamental rights. One isn't allowed to vote until they are 18 at a minimum, so it might make sense that restrictions on other fundamental rights as a minor could be considered valid.

I still don't agree with the legislation, but I think there can be a strong argument for it.! said...

the judicial bypass option usually overcomes the undue burden problem. in reality, what the legislature is doing is trying to make the judicial bypass process next to impossible. it really pisses them off that some young women have been able to succeed in getting bypasses.

1. in addition to changing the burden of proof, they are also going to a closed forum system - currently, minor women can go to any court in the state, which benefits women in small towns where everyone knows everyone else and they know what you did before you've even done it. it protects their anonymity. but, the nutjobs at the capitol think that this means young women will travel to courts that are more likely to grant the bypass, based on more bypasses being granted in certain areas. my response: so what if they are? but in actuality, almost all the abortion clinics are located in urban areas and most of the pro-bono attorneys helping minors navigate the judicial bypass process are in major cities. it only makes sense that more bypasses are granted in major cities.

2. currently, judicial bypass information is kept confidential and courts are not required to report statistical information on bypasses, also to protect the young women's anonymity and allow the judges to do their job in the young women's best interest without fear of political backlash. this bill would change the reporting requirements. the rethuglican smear machine would then move in and harass judges up for re-election if they grant bypasses. in some areas, this won't matter, but the effect of this change is to intimidate judges into not granting bypasses.

3. finally, judicial bypasses are currently granted expediently - the whole process takes no more than 2 days. this has been a good because often teens, especially those with irregular periods, don't realize their pregnant as early as would be best & are often pushing the limits, trimester-wise. those extra 3 days a court can take under this new law will make a difference in some cases whether or not the abortion becomes riskier and more expensive, or in the case of an abortion past 16 weeks, prohibitively expensive & nearly impossible to obtain in texas, thanks to a law passed last session. also, currently many young women can go to court and schedule the abortion all in one day, only having to miss a day of school. a longer process increases the risks to teens, forcing them to make multiple trips, perhaps out of town, and missing more school & raising suspicion with abusive parents or even abusive spouses (let's not forget that in the state w/the 2nd highest teen pregnancy rate in the nation, there are plenty of teens in marriages/partnerships).

the worst news is that this will hit the most vulnerable women the hardest, the ones without parents to turn to or in the worst situations. most young women will involve their parents in their decision and this bill won't really affect them, besides being a minor inconvenience (like the parent having to show a govt issued ID - which i don't believe is required for other procedures, such as, oh, i don't know, getting breast implants or open heart surgery or any number of medical procedures far riskier than an abortion). and 18 is so arbitrary. is there really such a huge difference between 17 and 18, especially if we're talking about a 17 year-old in college, or one who already has children, might be married and supports herself? believe it or not, having children of your own in texas doesn't automatically give you emancipated minor status! can you imagine being able to consent to your own children's medical procedures, but not your own? kinda f-ed up.

i'm a little too tired and burnt out to analyze whether this burden would pass or what level of scrutiny would be applied. i think bookworm is right about the standards being different for minors (see casey). off the top of my head, i'm not sure about other parental consent statutes that have been struck down in other states, but it's definitely something i'll be reading up on over the summer. maybe i should have done that jane's due process internship in austin. spending the summer at barton springs and drinking margaritas would have been nice. but hey, i'm decided that instead of the repro rights internship, i was going to do the violence against women thing & spend my summer at south padre. not too bad either!

Michelle said...

I don't agree with the legislation either. Isn't it ironic that those passing the bills are male!