Caitlain's Corner

Sex Education

Judicial Bypass Process for Minors Wanting an Abortion

If you are a minor, and live in a state were parental notification or consent is required to obtain an abortion, it is possible to get approval from a judge to bypass the parental notification requirement in most cases. In Planned Parenthood vs. Casey (1990), the U. S. Supreme Court required states with parental notification laws to have a judicial bypass process to ensure that, in those situations where a minor is abused or fearful of her parents’ reaction to a pregnancy, she retains the option of being able to terminate the pregnancy if she needs to do so.

DISCLAIMER: The information presented below represents a compendium of laws and requirements that vary from state to state. The specific nature of the requirements in your state may vary from what is presented below. To find out specifically what is required in your state for judicial bypass, please contact your local Planned Parenthood service center. Nothing on this page should be construed to be legal advice.

Which states require parental notification/consent?

All states except Alaska, California, Connecticut, DC, Hawaii, Idaho, Montana, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oklahoma, Oregon, Vermont, and Washington require some form of parental involvement in a minor’s decision to have an abortion. In Delaware, the law applies only to those 16 and under. In some states simple notification is all that is required, whereas in others, consent is required from one or both parents in order to obtain an abortion. You can check the specific law in your state by visiting the Sex Law Information Center .

In some cases, you may elect to go to a state that does not require parental notification to have an abortion, particularly if you live closer to a clinic in one of those states than in your own. If you do not live in an area where that is an option, you may wish to avail yourself of the judicial bypass if you do not want, or cannot obtain parental consent.

Examples of when judicial bypass might be used

1. You cannot or do not wish to tell your parents about your pregnancy, perhaps from the threat of abuse or harm to you, or because your parents would be unsupportive of your decision.
2. You’ve told your parents and they refuse to allow you to get the abortion
3. Your state requires that both parents be notified, and you are estranged from one or more of them.
4. Your parents are unreachable, out of the country, or in some other situation that prohibits them being present to provide consent.

Are there any situations where I wouldn’t need parental notification/consent?

The law varies from state to state, but most states waive the parental notification requirements is you already have a child, if you’re married, or in situations where a medical emergency exists. The same is true if you’re legally emancipated from your parents and not assigned a guardian.

In most cases, as long as you can show the judge that you are mature enough and understand the nature of the decision you’re making, or if there are extraneous, compelling reasons why your parents should not be notified, you would likely be granted the bypass. Additionally, if you’re the victim of sexual abuse by one of your parents, you’d be granted the waiver.

How do I start the process?

The first step is to confirm that you’re pregnant, either through an HPT or a test at your local clinic. Once you’ve determined that you’re pregnant, you’ll need to make a decision about whether you wish to carry it to term or abort it.

You should seek guidance and assistance from your parents if at all possible. Pregnancy can be a daunting thing for a teenager, especially if it was unanticipated and is unwanted. Your parents are often more supportive than you might think they’d be. Ultimately, however, only you know your parents and have any idea how they’d react. In some cases, telling parents is just not a viable option. In the absence of a discussion with your parents, you should seek counsel from trusted friends, school counselors or nurses, or other trusted adults. They can act as an outside observer and provide some help in a decision about the options available to you.

If you elect for the abortion, you should then seek out a doctor or facility that can provides that kind of service. After your exam at the clinic, they will explain to you what the laws are in your state regarding parental involvement in your decision. You should keep all information you gather during your exam, including brochures and pamphlets about your rights, the decision to abort, the processes involved, etc. This will allow you to gather information to present to the judge if that becomes necessary. If you are going to opt for an abortion, and your state requires parental notification/consent, you’ll need to decide whether you want your parents involved or not.

If you wish to avail yourself of the judicial bypass option, you’ll need to obtain an attorney to represent you. All states that have the judicial bypass option have some mechanism in place to provide you with an attorney at no cost, and there are no costs to make application to the court for a hearing. Typically, the abortion provider will have access to this information and can provide you with a referral to a pool of attorneys who handle these kinds of cases. Your attorney will help you fill out the paperwork and submit the application to the court on your behalf.

The court is required to hold a hearing with 48 hours of your application, and you must appear before the judge in order for it to be considered. The judge will ask you a series of questions to gauge your understanding of your situation and how well you understand the decision you are making. S/He will ask questions about how you got pregnant, whether or not you have consulted with the father, your parents, etc. S/He will also ask why you feel that you need to circumvent your parents for the abortion. The hearing will last just a short time, and you’ll be notified within a couple of days of his/her decision (in some cases, immediately).

What do I need do to get ready for my hearing?

The most important thing you can do is to make sure that you’ve done your homework:

Know what the abortion procedure involves, the differences between medical and surgical abortions, the risks involved, etc. S/He’ll want to know how you plan to cover the cost of it, how you’ll get to the clinic, how you’ll deal with follow-up care if complication arise, etc.

Be able to explain why you feel an abortion is the best option for you. Be prepared to explain your circumstances. You’ll need to explain your situation in school, the community, your church, etc., as well as how you view your future (i.e., plans for college, work, etc.)

Be prepared to explain why you cannot or do not wish to have your parents involved. Fearing for your safety (physically or emotionally) or being thrown out of the house are valid reasons to want to avoid involving parents.

Be prepared to explain to the judge who you’ve discussed your situation with. If you’ve talked with your priest, counselors, or others, let the judge know this, and explain how they counseled you and helped you come to your decision.

You’ll need to be prepared to explain to the judge how you came to be pregnant, whether you were using birth control, and perhaps even the number of sexual partners you’ve had.

The most important thing to convey to the judge is that you are mature enough to understand what an abortion involves, you understand your options, and you’ve made a reasonable, informed decision about terminating your pregnancy. Some of this may be embarrassing, but it is necessary for the judge to make a determination regarding your maturity level and your decision-making processes.

On the day of your hearing dress modestly (typical nice school clothes are fine), and arrange to meet with your attorney prior to the hearing to go over last minute details. You’ll go in before the judge and the hearing will commence. Typically, once s/he is done questioning you, you’ll be informed of his/her decision. The judge is required to make a decision within five days, but in most cases, the decision is rendered immediately. If granted, you’ll be given a waiver notice that can be taken to the clinic where you abortion is to be performed. If the judge denies your request, you have the right to appeal that decision to a higher court, and those courts typically have up to ten days to render a decision.

If your pregnancy is the result of an abusive situation or a sexual assault, the judge is required to have a police report made of the situation. In some states, s/he will also be required to notify the state Department of Children’s Services (or its equivalent). Your attorney will be in a position to explain this to you as it relates to your specific situation.

In most states, your name will remain confidential. The hearings are typically held in a judge’s chambers (or a closed courtroom), and the reports of court activity will not include your name. The only time where your name may be compromised is when your pregnancy is the result of abuse or sexual assault. Again, your attorney will be in a position to answer the specifics for you.

Note that the court’s decision just waives the parental notification requirement, and does not require you to get an abortion if you elect to change your mind. The decision remains yours to make. Keep in mind also that you are at the mercy of the judge that you get in the hearing. The courts are required to abide by the law regarding making a determination about whether you are mature enough to make the decision for yourself. You may find yourself with a judge who violates the spirit of the law because s/he personally feels that abortion is wrong. In those cases, you and your attorney must decide whether to pursue an appeal, and notify the state's Bar Association regarding the intrusion of personal beliefs into the legal process.

Resources:

You can find out what the requirements are for abortions and the judicial bypass in your state at the State Law Information Center.

These organizations were created to assist women in finding and funding abortions. If you are unable to find out how to manage the judicial bypass process locally, contact one of these organizations for assistance.
Women’s Emergency Network (305-446-4615)
National Abortion Federation (800-772-9100)

Some organizations have web sites with information specifically regarding the judicial bypass option procedures in specific states:

Colorado
Florida
Michigan
Minnesota
Pennsylvania
Texas