In October 2017, a 17-year-old girl incarcerated in an immigrant detention facility in Texas made headlines for clashing with the Trump administration, which was seeking to prevent her from getting an abortion. Known as Jane Doe, she was just one of many such “Janes” in Texas each year who must get a judge’s permission to have an abortion without parental consent.
On Friday, U.S. District Court judge Tanya Chutkan ruled that the Trump administration cannot block undocumented immigrant minors in custody from obtaining abortions until a class action lawsuit on their behalf is decided. But parental consent laws for minors seeking abortion—and especially unaccompanied and detained minors like Jane Doe—unacceptably restrict these young people’s constitutional rights.
In 1973, the Supreme Court recognized the constitutional right to abortion in a case involving another Texas woman who wanted to terminate her pregnancy. But 44 years after Jane Roe won her case, Texans are still fighting for access to this right. In Planned Parenthood v. Casey in 1992 and again in Whole Woman’s Health v. Hellerstedt in 2016, the Supreme Court held that abortion restrictions cannot create an “undue burden” on a person seeking an abortion.
But that hasn’t stopped states like Texas from enacting restrictive laws including forced parental notification or consent for minors, limitations on public funding, mandated counseling to dissuade women from abortion, mandated waiting periods, and unnecessary and burdensome regulations on abortion facilities.
In Belotti v. Baird in 1979, the Supreme Court held that that states may require minors to obtain parental consent to an abortion if the state law provides an alternative procedure to parental approval. In other words, as long as a state has a judicial bypass procedure such that a minor could—at least in theory—obtain an abortion by permission from a judge instead of from a parent, parental consent laws are constitutional. Thus, in Texas and many other states, state law requires minors under the age of 18 who are seeking abortion to either obtain parental consent or seek a judicial bypass, an often complicated process requiring legal representation.
Jane’s Due Process is a nonprofit that helps pregnant and parenting minors in Texas access their educational and reproductive rights, including helping them receive judicial bypasses to access abortion. Amanda Bennett serves as their case manager and hotline coordinator. Her job requires her to coordinate the complicated logistics of obtaining a judicial bypass for over 150 minors each year, as well as run a 24/7 hotline that receives thousands of calls each year from teens and adults all over the country seeking referrals to contraception and abortion clinics.
Amanda shared her perspective with the Harvard Civil Rights-Civil Liberties Review. In her experience, the burdens faced by Texans in accessing abortion, especially those who are young, low-income, immigrants, or women of color, are simply undue.
Q: The logistics of obtaining a judicial bypass are quite complicated. Can you walk through the process for a typical teenager who contacts Jane’s Due Process? What are some of the biggest logistical challenges?
A: The situation for each Jane Doe can vary greatly, but all of them face logistical barriers throughout the process. The first step is a phone call to the JDP hotline, during which a volunteer will talk to Jane alone and do a brief intake form—mostly information about how we can get in touch with her and a rough outline of her situation. I think the challenge of working up the courage to make that first phone call or to text our hotline is the first barrier that minors face.
After they complete the intake form, I get in touch with them, usually via text, to help them set up an ultrasound appointment at their nearest clinic. Because they will have to prove to the judge that they are sufficiently mature and well-informed to consent to the abortion on their own, it’s helpful for them to get information from the clinic about the stage of their pregnancy and what to expect with the procedure before they go to their hearing. If the Jane lives over 100 miles from her clinic, she might be able to do the bypass before her ultrasound, since people in Texas who live over 100 miles from their nearest clinic have a two-hour waiting period between their ultrasound and abortion, instead of the normal 24-hour waiting period. The ultrasound can cost between $50 to $150, and we help pay for that appointment since that cost is the next barrier for most Janes.
After their ultrasound, we’ll match Jane with one of the attorneys we have trained to handle bypass cases. The lawyer will meet with Jane, file her paperwork with the courthouse, and then wait for a hearing, which can take up to five business days. Jane will have to go to the hearing and try to show the judge that she is mature and well-informed, or that it is not in her best interest to involve her parents. Janes say that waiting for the hearing and fearing that the judge will say no is the hardest part of the judicial bypass process. The anxiety of having to go to a courthouse and explain to a stranger why you’re pregnant, why you want an abortion, and why you can’t get parental consent is an incredible burden that can lead to a lot of internalized stigma.
Once she gets the bypass and schedules her abortion appointment, I’ll help her find funding to be able to afford it. Abortions cost between $500 in the first trimester and $2,500 around 20 weeks, which is a huge challenge for most of our callers.
In addition to the funding and the anxiety from waiting, Janes struggle logistically with transportation and missing school. Many schools have policies that require a parent’s signature to sign out, or call a parent in the case of absences even if they are excused. Sometimes, a Jane’s school counselor or teacher helps support her, but many school districts in Texas have policies that require staff to disclose information about students’ pregnancies to their parents if the school becomes aware. Most of the clinics and courts are only open during school hours, so figuring out how to miss school for the ultrasound, the hearing, and the abortion ends up being another logistical challenge for Janes.
Q: What are the additional challenges faced by minors who are also immigrants, people of color, low-income, or members of small or rural communities? How does that impact their ability to access contraception and abortion?
A: We live in a racist, sexist, capitalist society that oppresses people from these communities the most—and I think this law affects them disproportionately, as most abortion restrictions do. I believe forced parental involvement laws are rooted in white supremacy and patriarchy, and the harm that they inflict on minors, especially from oppressed communities, is intentional.
Texas has ID requirements to access abortion which also disproportionately impact low-income and immigrant communities. The patient must have an ID to prove her identity no matter her age. If a minor does have parental consent, her parent must also have ID to prove that they are who they say they are. Although the clinic does not need IDs that prove citizenship, people without documents can be scared away from coming to the clinic when they hear that they will need to bring and show an ID. We’ve also had cases where parents just didn’t have the necessary ID, and so the clinic needs to have a judicial bypass to comply with Texas laws.
Members of small or rural communities often face more risks to confidentiality. Many small-town courthouses in Texas are right in the center of town, with shops on all four sides facing the courthouse steps, and the staff in the courthouse in a town where everyone knows everyone might recognize Jane or her name, which she is required to put on the application. Janes in rural communities are also much further from abortion clinics and also less likely to have friends or family for support, which makes transportation a challenge.
People from these oppressed communities also face discrimination in the judicial bypass hearing itself. Child abuse can look different for people from different cultural backgrounds, which can lead to a judge dismissing concerns about or evidence of abuse that are actually very serious. Judges also have discretion in determining maturity, which lacks a solid definition. Janes with accents or who speak differently than the judge can be discriminated against, as can Janes who haven’t had access to extracurricular activities, who have had previous pregnancies, or who aren’t on a path to college.
For youth in foster care or juvenile detention, which again disproportionately affect families of color, and teens in immigration detention like the Jane Doe who had to take her case to the DC District Court of Appeals, judicial bypass is the only way they can access abortion since their legal guardian is the state or federal government. Although youth in foster care can consent to some care and have medical consenters for the rest, medical consenters aren’t allowed to consent to abortion. For youth in institutions where their access to information is controlled, their transportation is restricted, and who may find themselves in faith-based care, judicial bypass makes getting an abortion even harder.
Texas also has a law that requires parental consent for birth control, even for people under 18 who are already parents. On top of that, our legislators cut the majority of the state’s family planning funding in 2011, causing 82 family planning clinics to close across the state, and wide swaths of Texas are still in contraceptive deserts. Teens in Texas can currently only access birth control without parental consent at federally funded Title X clinics, but that funding is now threatened by the GOP administration.
Q: The Supreme Court ruled that parental involvement requirements are constitutional so long as they include a judicial bypass procedure. But the court also uses the “undue burden” standard. In your experience, do you feel the burden of parental consent or judicial bypass is undue on young people seeking abortion?
A: I wholeheartedly think that forced parental involvement and judicial bypass are an undue burden. Every person, including young people, must be able to make their own decisions about their pregnancies. Instead of establishing barriers that traumatize them, we must empower them through comprehensive sex ed and unbiased information about abortion. I trust the young people that I work with to decide who is safe to tell about their pregnancy and about their abortion, and I trust them to know what they need to do to protect themselves. For most of the Janes, that means not telling a parent, and instead seeking support from friends, clinic staff, non-parent family members, or another trusted adult.
Q: What kind of barriers do you see pregnant and parenting minors experience in accessing their educational rights? How does this disproportionately impact young women’s access to education?
A: I see so much discrimination against pregnant and parenting minors, when they deserve so much support instead. In Texas, public education is already abysmally underfunded. In other states, students have access to birth control at school-based health clinics, but in Texas, most schools don’t even offer any sort of sex ed. Pregnant students are still often pushed into online classes or separate alternative schools. There is still a lot of stigma and very cruel bullying about pregnancy. Leaving their school may be the preferred option for some, but most parents are not given a real choice, or don’t know how to advocate for themselves against the pressure of adults. Many of the young women who are already parents that call our hotline are taking online classes or are not in school altogether. Without the support of a teacher and the routine of going to school, these students are often far behind their classmates.
There is also a lack of education for pregnant and parenting teens about their own and their babies’ health. Most teens in Texas don’t get sex ed, and don’t fully understand how pregnancy happens. Some of the pregnant young people I have talked to are pressured into c-sections or inductions, and aren’t given the opportunity to make choices around how they want to give birth. Most don’t know about resources like Nurse-Family Partnership or where to get parenting help. We have seen Janes who at 17 have already had a child removed from them by child protective services. How can someone who is still a child herself have her child removed, but not get services to address the abuse that she has faced from her parents? Instead of breaking cycles of violence and neglect with education and resources, young people are subjected to more trauma.
Q: Some might be surprised to learn that a state like Massachusetts has similarly restrictive parental consent laws as Texas. Why do you think even otherwise progressive states have these laws, and what would you say to lawmakers about why they should repeal them?
A: Even in blue states, people have internalized the abortion stigma that has been perpetuated by anti-abortion activists for the last twenty years. We are inundated with anti-abortion messages, such that we’ve reached a point where even politicians in progressive states qualify their pro-choice stance by saying that they “wouldn’t choose abortion for themselves” or that abortion should be safe, legal, “and rare.” There should be as many abortions as people need, period.
Most people are surprised to find out that abortion is 14 times safer than childbirth, and that abortion pills can be taken safely at home without the supervision of a doctor, because the anti-abortion movement has pushed so successfully the idea that abortion is dangerous. While groups like the American Academy of Pediatrics and the American College of Obstetricians and Gynecologists conclude again and again that abortion is safe and that teens shouldn’t need parental consent, there is still resistance across the entire United States to the idea that abortion is moral and a public good that, like the rest of healthcare, should be publicly funded and universally available. This internalized stigma, I think, is why progressive people support forced parental involvement and other “compromises” on abortion access.
I would ask lawmakers to consider that if even one person is denied access to abortion because of denied judicial bypass, then that is one person too many. The Janes that we work with describe an immense amount of anxiety, fear, and trauma around the bypass hearing. The delays that the process entail—forcing people who don’t want to be pregnant to stay pregnant and continuing gestating for up to three or four weeks longer—are cruel and torturous.