Judicial Bypass for Pregnant Teenagers Seeking Abortions in Virginia

  Authored by: Emily Siron; Staff Editor   

 

Central to the conversation in favor of reproductive justice advocacy is the issue of safe, accessible reproductive healthcare, including access to abortion care. Abortion care is particularly difficult to access safely for pregnant teenagers, largely due to the prevalence of parental consent laws in the United States.[1] Thirty-seven states require some form of parental consent from a minor who wishes to access abortion care, varying in stringency from only requiring the minor to notify a parent or other legal guardian of their decision to have an abortion to requiring the individual to both notify the adult and obtain that adult’s consent to their decision to have an abortion.[2] All but one of the states that require notification, however, provide an alternative route for teenagers to obtain an abortion in the form of judicial bypass, a process by which a minor seeking abortion care may forgo their state’s parental consent laws and instead obtain permission from a judge.[3]

Virginia law requires that a minor seeking an abortion must have permission from a parent, grandparent, or adult sibling and, separately, that one parent, grandparent, or adult sibling with whom the minor lives be told of the decision to have an abortion 24 hours before it takes place.[4] Judicial bypass is an option in Virginia if a minor wishes to avoid parental notification and consent.[5] Under the Virginia code, if a minor is seeking judicial bypass to obtain an abortion without parental consent or notification, a judge can grant the order if they find that the minor is mature and well-informed enough to make the decision without consent from a parent or guardian, or if the minor is not mature and well informed enough but the abortion would be in her best interest.[6] For a judge to determine whether an abortion is in the minor’s best interest, they must hold a private hearing with the teenager during which Virginia code states that they are to analyze the “totality of the circumstances,” which may include a pregnant minor’s family and home life, education, and the judge’s perception of the teenager’s ability to make decisions and understand their circumstances.[7] After a petition for judicial bypass is submitted, the minor is entitled to a private, confidential hearing with the judge presiding over their case.[8] Virginia code  § 16.1-241 states that these hearings are to take precedence over other pending matters to ensure expediency of the process and to ensure the safety of the minor and are to take place no later than four days after the petition is filed.[9]

Although judicial bypass provides an exception to parental notification laws and allows for an alternative route for a teenager without familial support to obtain abortion care, the process is not without its problems. The judicial bypass process itself is difficult to access, often humiliating, and causes significant delays in the teenager’s ability to obtain abortion care.[10] In Massachusetts, for example, a commonwealth with parental consent laws very similar to those of Virginia, pregnant teenagers who accessed the judicial bypass process were delayed in accessing their abortion by an average of 14.8 days, with one in five experiencing a delay of 21 days or more.[11] This was an average of 6.1 days longer than the delay experienced by teenagers who had parental consent.[12] Further, the process caused logistical obstacles such as finding time away from school and transportation and many teenagers reported that the process was humiliating and intimidating, largely due to having to divulge details about their sex lives and consequently be shamed by the judges holding their hearings.[13]

The decision to have an abortion, especially for a teenager who may or may not have familial support, is an incredibly difficult one. Parental involvement laws make this process even more arduous or even dangerous, and the judicial bypass process for such laws is often inaccessible, humiliating, and may result in significant delays for teenagers seeking safe, sufficient abortion care. The process deserves reanalysis and teenagers across states with parental consent laws deserve safe access to reproductive healthcare.

[1] Abortion and Parental Involvement Laws, Advocates for Youth, https://advocatesforyouth.org/resources/fact-sheets/abortion-and-parental-involvement-laws/ (Sept. 5, 2019).

[2] Parental Involvement in Minors’ Abortions, Guttmacher Inst., https://www.guttmacher.org/state-policy/explore/parental-involvement-minors-abortions (last visited Aug. 25, 2020).

[3] Id.

[4] Parental Consent and Notification Laws, Planned Parenthood, https://www.plannedparenthood.org/learn/teens/preventing-pregnancy-stds/parental-consent-and-notification-laws (last visited Aug. 25, 2020).

[5] Id.

[6] Va. Code Ann. § 16.1-241 (2019).

[7] Id.

[8] Id.

[9] Id.

[10] Kate Coleman-Minahan, et al., Young Women’s Experiences Obtaining Judicial Bypass for Abortion in Texas, 64 J. of Adolescent Health 20 (2019).

[11] Elizabeth Janiak, et al., Massachusetts’ Parental Consent Law and Procedural Timing Among Adolescents Undergoing Abortion, 133 Obstetrics & Gynecology 978, 982 (2019).

[12] Id.

[13] Id.

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