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Nebraska Supreme Court Deals a Blow to Foster Youths’ Ability to Obtain an Abortion

By Rebecca Gudeman

54a79a729fA recent decision by the Nebraska Supreme Court left reproductive health and foster youth advocates reeling. On October 4, 2013, the court ruled that a 16-year old foster youth could not get the abortion she wanted despite having no parent to consent to the abortion, and petitioning the court for permission. The court decided that she could not legally obtain an abortion because she “was not mature enough to make the decision herself.”1 It did not purport to evaluate whether she was mature enough to become a parent, despite that being the obvious effect of its decision.

The fact that the teenager, known only as Anonymous 5, had to seek court approval before obtaining an abortion in the first place is a result of the passage of a parental consent law in 2011 that requires minors seeking abortions to get parental approval. In this case, the wrinkle was that the teen was a ward of the state. Her biological parents had their parental rights terminated due to physical abuse and chemical dependency, so there simply was no parent to give approval. The Nebraska Department of Health and Human Services was the legal guardian of the teen and her two younger siblings, ages 7 and 9, at the time she sought an abortion.

Nebraska is one of 43 states with laws on the books that require some kind of parental involvement in a minor’s decision to have an abortion.2 However, in four of those states, the laws are not currently being enforced due to court order. The laws generally fall into one of two categories: those that require parental consent, and those that require parental notification before a minor obtains an abortion. There has been a flurry of court activity recently regarding these laws. The Illinois Supreme Court upheld the constitutionality of Illinois’ parental notification law just earlier this year.3 In that case and others challenging these laws, advocates have recently begun putting social science research before the courts, encouraging them to consider the real life impacts of these laws on pregnant teens, particularly those who are most vulnerable.4

What would it take for a Minor to Convince a Court She is Sufficiently Mature?

Due to a 1983 U.S. Supreme Court ruling that parental consent laws are constitutional so long as they allow for judicial bypass if consent cannot be acquired, states generally offer a bypass option to their parental involvement laws. The U.S. Supreme Court explained that a minor must be given a chance to obtain an abortion by showing maturity or that it is in her best interests:

A State’s interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial. It is clear, however, that “the State must provide an alternative procedure whereby a pregnant minor may demonstrate that she is sufficiently mature to make the abortion decision herself or that, despite her immaturity, an abortion would be in her best interests.”5

The U.S. Supreme Court left it completely open how exactly a minor can demonstrate she is sufficiently mature, or an abortion is in her best interests. As such, the nuts and bolts have been left to the states to sort out. In this case, the lack of legal standards proved problematic.

Under the Nebraska statute, the young woman had the burden to establish by clear and convincing evidence that she was sufficiently mature. The Nebraska Supreme Court said that while maturity might be difficult to define, “it may be measured by examining the minor’s experience, perspective, and judgment.”6

In the hearing, the young woman presented a wealth of evidence regarding maturity. She testified she had in essence raised her younger siblings (seven and nine years younger than she), was planning to graduate high school early, and attend college. She testified that she had undergone extensive counseling about her decision to end her pregnancy and consulted medical providers regarding the medical risks involved. She also explained that she could not financially support a child, and told the judge that she was unable to “be the right mom that [she] would like to be right now.” Further, her placement with an evangelical Christian family morally opposed to abortion, made her feel her options were limited. In court, she testified that she was afraid she would lose her foster placement if her foster parents learned of her pregnancy. She also discussed it with a cousin’s mother.7

At the judicial bypass hearing in this case, the juvenile court judge denied her request for an abortion, finding that she failed to establish she was sufficiently mature to make the decision on her own.8 Looking at the facts, it is hard to avoid the conclusion that this was a juvenile judge imposing his personal views on abortion on a minor. The judge was known to be conservative-leaning, and as a private attorney had defended protestors against charges of abortion clinic trespassing by arguing their trespassing was necessary to prevent the “grave evil” of abortion.9 At the hearing, when the minor was approximately 10 weeks pregnant, the judge told her “when you have the abortion it’s going to kill the child inside you.” NARAL, a national pro-choice organization, subsequently filed a petition asking the state to investigate whether the judge has ruled impartially on this and other abortion cases.10

On appeal, the Nebraska Supreme Court affirmed the judge’s decision, despite the fact that they were to review his decision “de novo,” meaning taking a fresh look at the case. This aspect of the decision is troubling for all minors seeking judicial bypass and trying to demonstrate sufficient maturity to decide to have an abortion.

Can Foster Youth in Nebraska Ever Obtain an Abortion?

Other parts of the decision are particularly harmful to youth in foster care. The young woman in this case was in an odd “legal limbo” as the dissent described it,11 which effectively resulted in an absolute ban on her right to obtain an abortion.12 This was in part because of the nature of the judicial bypass law, which requires judicial bypass when a pregnant minor “elects not to obtain the consent of her parents or guardians.” In this case, there was no parent or guardian who could consent, so the girl could not “elect” not to obtain their consent. Her biological parents had their rights terminated, her foster parents were not her legal guardians and had no rights to consent to an abortion, and the foster care agency by its own internal guidelines could not consent either. Arguably this meant that judicial bypass should not have been required at all since she did not – indeed, could not – “elect” not to obtain consent from a parent or guardian.13 This is how she found herself left at the mercy of the trial court judge.

This raises more general concerns about the ability of young women in foster care to obtain safe and legal abortions when necessary. Research shows that “youth in foster care, an already vulnerable population, seem to experience the risks of teen pregnancy and parenting at a higher rate than their counterparts not in care. And foster youth report higher rates of unwanted pregnancy and childbirth.”14 This suggests foster youth may face unique challenges impeding their ability to obtain the full range of reproductive health services, including abortion. Troublingly, this recent Nebraska Supreme Court decision represents a significant barrier to the ability of foster youth to obtain an abortion in Nebraska under any circumstances.

This Decision in Context

This case comes at a time when courts across the country are handing down decisions affecting the rights of women of all ages and statuses (in or out of foster care) to obtain safe and legal abortions. One recent Ninth Circuit decision put the brakes on Arizona’s attempt to effectively de-fund Planned Parenthood, stating Arizona lawmakers cannot cut Planned Parenthood out of their Medicaid program simply because it also provides abortions with other funds.15 To the opposite effect, a decision by the Fifth Circuit earlier this year reversed a lower court decision to temporarily block a provision of the omnibus Texas abortion law that requires doctors performing abortions to have admitting privileges at a local hospital.16 It is estimated that this will close one-third of the reproductive heath clinics in the state. This will impact young women, particularly those without their own transportation, and those with unsupportive or abusive parents, particularly harshly. There are a number of other cases pending, and the full impact of the Nebraska Supreme Court’s decision is as-yet unknown. However, it is clear that in the meantime foster youth in Nebraska seeking to obtain an abortion safe and legally face an incredible uphill battle.


Rebecca Gudeman is a senior attorney specializing in adolescent health care. She directs NCYL’s adolescent reproductive health project and oversees the project’s website, www.teenhealthlaw.org.


 

  1. In Re Petition of Anonymous 5, 286 Neb. 640 (2013)
  2. An Overview of Minors’ Consent Law, State Policies in Brief (Guttmacher Institute) December 2013.
  3. Illinois Supreme Court Upholds Law Requiring Parental Consent for Minors’ Abortions, National Center for Youth Law, Youth Law News, Vol. XXXII, No.3, July-Sept 2013.
  4. Bryn Martyna, The Youth Perspective on Laws Requiring Parental Involvement in the Decision to Have an Abortion, Youth Law News, Vol. XXXII, No. 2, April-June 2013.
  5. Planned Parenthood Ass’n of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 490-91, 103 S. Ct. 2517, 2525, 76 L. Ed. 2d 733 (1983).
  6. In Re Petition of Anonymous 5 at 648 (citing In re Petition of Anonymous 1, 251 Neb. 424, 428 (1997) which in turn cited Bellotti v. Baird, 443 U.S. 622 (1979)).
  7. In Re Petition of Anonymous 5 at 643-644, 649-650.
  8. In Re Petition of Anonymous 5 at 644.
  9. Jessica Mason Pieklo, In Denying a 16-Year-Old Judicial Bypass, Nebraska Supreme Court Creates Ban on Abortions for Minors in State Custody, RH Reality Check, October 6, 2013.
  10. Kevin O’Hanlon, Petition urges investigation into judge’s abortion ruling, Lincoln, NE Journal Star, Oct. 29, 2013.
  11. In Re Petition of Anonymous 5, at 654.
  12. Id.
  13. Add cite to dissent.
  14. Jennifer Friedman, Cause for Concern: Unwanted Pregnancy and Childbirth Among Adolescents in Foster Care, Youth Law News, Vol. XXXII, No. 1, Jan. – March 2013.
  15. Reproductive Rights Round-Up, National Center for Youth Law, Youth Law News, Vol. XXXII, No. 3, July-Sept. 2013.
  16. Emily Bazelon & Dahlia Lithwick, Texas abortion restrictions and the Obamacare contraception mandate: Bush Judges Priscilla Owen and Janice Rogers Brown deliver body blows to both, Slate.com, Nov. 1, 2013.
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