What exactly does HB 3994 do?
After four hours of contentious debate, the Texas House of Representatives passed House Bill 3994 this week. HB 3994 would make the judicial bypass safety net inaccessible for most Texas teens, creating a de facto ban on abortion for minors who cannot obtain parental consent. The bill will need to pass through the Senate to become law. Besides choking off access to young women seeking a judicial bypass, the bill also requires all women to have a government-issued form of identification to seek abortion services.
HB 3994 (Judicial Bypass) Rep. Geanie Morrison
HB 3994 contains unconstitutional modifications to the judicial bypass for abortion procedure compromising confidentiality, impeding expeditiousness, and creating a new procedure that will function as an impermissible arbitrary veto over a minor’s decision to have an abortion.
Existing law: Texas Family Code Ch. 33, combined with Occupation Code § 164.052(a)(19), require that a minor obtain the consent of her parent, managing conservator or legal guardian (“parent”) if she wishes to have an abortion. She may obtain a bypass to consent if she demonstrates to the court by a preponderance of the evidence that:
(1) she is sufficiently mature and well informed to consent to the abortion,
(2) notification of her parents would not be in her best interests, or
(3) notification may lead to physical, sexual, or emotional abuse.
To pass constitutional muster, the court proceeding must be expeditious and completely confidential. As a whole, the proceeding may not serve as an undue burden or an “an absolute, and possibly arbitrary, veto” over a minor’s right to decide to have an abortion; rather, the bypass procedure must amount to an “effective opportunity for an abortion to be obtained.” The state pays all costs, including fees for her court-appointed attorney ad litem and guardian ad litem. Under a special exception in Chapter 33, her attorney ad litem and guardian ad litem may be the same person. Minors are called “Jane” in these cases to protect their anonymity.
HB 3994 would make multiple changes to the law that would be detrimental to the safety of courts and minors, the confidentiality and expeditiousness of the process, and access to both the courts and abortion care.
Instead of trusting the judiciary to ensure the safety of teenagers, HB 3994 would expose both judges and the Janes to danger and abuse by:
- Requiring detailed reporting on the minors’ counties of residence, cause numbers and outcome of cases by appellate districts so as to “out” judges, especially in smaller counties, subjecting them to harassment, danger, and electoral pressure and potentially lead to identification of minors seeking an abortion.
- With these detailed reporting requirements it seems likely that the intent is to get at the judges and to get at the girls.
- Changing the definition of “abuse” to the high standard required for CPS intervention.
Instead of respecting the constitutional framework of current law, HB 3994 would restrict access to the courts and amount to an arbitrary veto for Minors by:
- Eliminates deemed GRANTED backstop for courts who refuse to rule by statutory deadline, to provide that cases on which judge refuses to rule deemed DENIED — Currently if a court does not rule by the 5 p.m. second business day after filing deadline, the case is deemed granted. This provision keeps courts from stalling out a minor and pushing her to later stages in her pregnancy when abortion will be practically or legally impossible to obtain and effectively denying her the right to even have an opportunity to obtain a court order. Under U.S. Supreme Court opinions, the bypass process must give the minor an “effective opportunity” to obtain an abortion.
- Rewrites the grounds for the granting of a bypass, taking the statute outside the constitutionally-tested framework in current Texas law. Includes inconsistent and confusing provisions on the grounds for relief that the minor must prove in order to successfully obtain a bypass.
- Prohibits Non-Suits (voluntary dismissals), re-filings, but allows a re-file if there is “material change in the circumstances”
- By eliminating non-suits, the bill treats these cases radically different than other cases, raising constitutional questions.
- Moreover, this provision may endanger abused girls. Often as an attorney interviews a minor while filling her case and then re-interviews her preparing for hearing new facts come to light including regarding the timing of her pregnancy. An attorney may choose to nonsuit to investigate the case more and discuss options with the client to ensure her safety. The worse a child’s life the less likely she is to admit to abusive parents. She should be able to take these facts to a judge or nonsuit a case she wishes to abandon like any other litigant.
- Requires attorneys, paid or pro bono, who file cases to swear to the truth of the minor’s claims regarding venue and application history, including representations of her address (pp 6-7) Again this bill treats these cases radically different from other cases by imposing duties on attorney not existing in other cases. While attorneys are always required to investigate the facts of cases before filing them (under penalty of sanctions), by requiring an attorney to “swear” to the information the amendment would place attorneys — including volunteers — under threat of criminal charges for perjury. This is nothing more than a transparent attempt to intimidate lawyers from representing these abused teenage girls (who like any trauma victims often cannot recall detailed facts like prior addresses.) Moreover, an attorney would have no way of expeditiously proving all of her client’s current and prior addresses.
- Prohibits Jane from appearing by video, teleconference, or other remote electronic means,
- Requires a court clerk to issue a court order to the physician (who does not go to court) instead of to Jane or her attorney,
- With its “severability on steroids” provision, forces individual Janes to litigate the constitutionality of the law when the law effectively prevents them from accessing the courts or health care.
- Raises the burden of proof from “preponderance of the evidence” to “clear and convincing evidence.” This change may require the minor to provide evidence from experts, other witnesses and admissible records, all of which could delay her preparation of the case and endanger her confidentiality
HB 3994 also endangers the confidentiality of minors seeking a bypass by:
- Limiting venue to county of residence, or if that county is less than 10,000 in population a neighboring county, or the county where the abortion facility is located.
- Requires minors to state their current physical and mailing address and telephone in the application.
- Requiring court clerks to maintain and retain records for bypass cases like all other civil cases, exposing minors (and judges) to the protection the current confidentiality requirement affords.
- If the physician or her agent has reason to believe the minor has been physically or sexually abused, they shall report to DFPS and local law enforcement which shall respond and write a report in 24 hours regardless if a report has previously been made. Specifically HB 3994 provides:
-DFPS and law enforcement shall report to local prosecuting authority
-Upon response DFPS or law enforcement may take emergency possession of the minor w/o court order
-Adds a duty of the judge to report abuse.
Existing law requires the attorney and guardian ad litem to report under the guidance of the judge with multiple options for doing so exactly so that the responsible adults assisting the minor can ensure she is kept safe. This change to abuse reporting requirements will not only stress an overburdened child protective system (which has little resources to assist teenagers), but also likely endanger abused teenagers by requiring the law to bust-in in a hurried fashion without the usual safeguards of knowledgeable child protection specialists and basic due process for families. Requiring such an abrupt and intense law enforcement investigation will also expose Jane and destroy her confidentiality. For example, a minor may not seek help if she knows that she may be forced her to name an abuser, particularly if the abuser is in gang, out of fear he may harm her or her family.
Additionally, many minors will not discuss abuse if they believe their parents will be prosecuted or CPS will become involved with their family as many have already had very negative experiences with CPS.
- Authorizes the trial court to order the minor to undergo a psychological evaluation although a trial court already has the power to do so to protect the best interest of a minor. By requiring an exam within a short period of time, HB 3994 ignores professional practices of mental health providers.
Violating the expeditiousness requirement of these cases, HB 3994 would allow cases to linger and disregard the trial court’s judgment in appointing ad litems by:
- Extending the time for trial and the court of appeals to rule from two to five business days each, potentially dragging the case out for weeks.
- Deleting the current requirement that the court rule immediately after the hearing.
- Prohibiting the attorney ad litem and guardian ad litem from being the same person — even though in CPS cases such dual representation is the standard.
Finally, HB 3994 would prohibit access to abortion for all women who do not posses a government ID by:
- Requiring a valid government record of identification for women of all ages seeking an abortion.
- This new requirement covering all abortions exposes doctors to potential criminal liability for every abortion performed.
- The provision does not define what constitutes “governmental identification” and makes no exception for circumstances when the patient is clearly an adult but has no “governmental identification.”
Photo by Kumar Appaiah @Flickr.