In 1999, George W. Bush, then-governor of Texas, signed a law mandating that minors must get permission from their parents before obtaining an abortion. Included was a provision known as judicial bypass that allowed a judge to waive parental consent in instances where a girl may fear her parents.
Republicans and anti-abortion activists praised the passage at the time as a step in the right direction for a presidential candidate whom some viewed as soft on abortion. “This law both respects families and protects life,” Bush said at the signing ceremony.
But that was then. These days, the state legislature is filled with Republicans who have seemingly never read an abortion restriction they didn’t like. The same lawmakers who passed House Bill 2 in 2013—which enacted some of the nation’s most restrictive abortion laws, shuttering half the state’s clinics and pushing every abortion provider out of rural areas—now have set their sights on what they claim are “loose” judicial bypass laws.
House Bill 3994 would trigger several new restrictions on Texas minors seeking abortions without parental consent.
Texas is one of 38 states with laws that require parental consent before minors can obtain an abortion, all of which contain some form of process that allows for court approval in lieu of a parent’s.
The new bill would require pregnant girls in counties with a population under 10,000 to file an application for judicial bypass in their home county, a provision that in smaller towns could effectively “out” them, according to the bill’s opponents.
Once before a judge, the girl and her attorney would need to present “clear and convincing” evidence the abortion is in a minor’s best interest, rather than the currently stipulated “preponderance of evidence,” in order to receive a judge's approval.
It would also extend the period a judge has to decide on each case from two days to five, and change the de facto decision after that time period has passed from automatic approval to automatic denial.
Dozens of critics are arguing in committee hearings that these restrictions are just another attempt by Texas lawmakers to make abortion less accessible while advocates of the bill maintain they’re necessary to protect teens in crisis from making a decision they may later regret.
“At a time when you have a minor making life-changing decisions, I think the more time and the more expertise and the more process that we can build into it to where it’s not a default abortion, but an informed abortion, only makes sense,” Republican state Senator and bill co-sponsor Charles Perry said in a hearing on Monday.
The population affected by the bill’s passage is small, but particularly vulnerable, made up mostly of girls who are homeless or in abusive homes—a group about which Texas Republicans are woefully ignorant, according to dozens of advocates who lined up to testify against the bill before House and Senate committees.
“The young women who call us are basically orphans or orphan de factos, meaning they don’t have a parent to seek consent from,” Tina Hester, executive director of Jane’s Due Process, a group that helps pregnant teens seeking an abortion jump the state’s legal hurdles, told The Daily Beast. “The parents are incarcerated, strung out on drugs, she has already been kicked out because she’s already had a child, parents deported, are overseas...These are the kinds of cases we see,” she said.
“It just seems cruel to me, listening to the guys yesterday at the hearing. They have no idea what these teens’ home lives are like or surely they wouldn’t be pushing this bill.”
Anti-abortion activists say these stories are inflated.
“I don’t think every one of these cases can be pigeon-holed into a case where a girl has been abused,” Stephen Casey, co-founder for anti-abortion group Texas Center for Defense of Life, testified.
Anti-abortion groups like Texas Right to Life contend that the current judicial review process interferes with the parent-child relationship and that HB3994 in fact protects minors, by “tightening the many escape clauses that allow pregnant minors to be shepherded through a broken judicial system and into the doors of abortion centers.”
“I never felt like the state truly protected me,” Amy McKinney said during testimony. McKinney said that she received an abortion at 17, after a lawyer recommended by her abortion provider “spoon-fed” her what to tell the judge.
Only around 250 Texas minors go through the judicial process each year, according to the testimony of Susan Hays, an attorney with Jane’s Due Process. That’s less than half of one percent of the 73,200 total abortions performed in the state in 2011.
Noting that the U.S. Supreme Court has ruled any parental consent laws must meet certain requirements (they must be expeditious, confidential, and give the minor an effective opportunity to obtain an abortion) Democratic Senator José Rodríguez questioned the constitutionality of the bill.
“It seems to me we’re not complying with some of these provisions set up by the Supreme Court,” Rodríguez said. “I think what we’re doing under this law is setting ourselves up for a legal challenge in the courts.”
An additional provision in the bill has the potential to affect non-minors as well. In its current language, the bill requires a physician to “presume that a pregnant woman was a minor” unless she presented “valid governmental” record of identification.
For now, the bill sits in the Senate’s Health and Services committee. Should it reach a floor vote, it’s almost sure to be sent to the governor’s desk, according to reports quoting both advocates and opponents. When it does, it will just as quickly face a legal challenge.
“It’s blatantly unconstitutional and part of me wants them not to amend it because it would be a slam dunk in the courts,” said Hester, the Jane’s Due Process executive director. “But let’s say we don’t win a stay, then what happens to these girls?”