December 29, 2015


For media interviews, contact:

Tina Hester, Executive Director, (512) 450-4899

Susan Hays, Legal Counsel,  (214) 557-4819

Texas Supreme Court Issues Bypass Rules That Are More Extreme Than H.B. 3994, the Law the Texas Legislature Passed to Rewrite the Bypass Law

The Texas Supreme Court issued rules today implementing the judicial bypass law that takes effect January 1, 2016. A judicial bypass allows a minor to obtain court approval to consent to her own health care rather than obtain parental consent for an abortion.

Although the Supreme Court’s own Advisory Committee — a panel of prominent judges and attorneys — recommended rules that would minimize constitutional violations, the Supreme Court rejected them, and instead issued final rules governing the judicial bypass process that add unconstitutional provisions even the Texas legislature rejected.

“The rules advisory committee offered suggestions to make the new law, House Bill 3994, more useful for both the courts and the clients, and less unconstitutional,” said Susan Hays, who served on a specially convened judicial bypass rules subcommittee as a resource expert. Hays is the legal counsel and a founding mother of Jane’s Due Process.

The U.S. Supreme Court has ruled that the judicial bypass process must be anonymous, expeditious, and provide an effective opportunity for an abortion to be obtained. Teens often pursue a bypass when parents are abusive, missing, deported, incarcerated, deceased, or drug-addicted.

“Judicial bypass protects vulnerable pregnant teens who cannot find or safely turn to a parent,” said Tina Hester, executive director of Jane’s Due Process. “But the legislature and Governor Abbott decided to go after abused and neglected pregnant teens by amending this law.”  HB 3994 passed the state legislature and was signed by Governor Greg Abbott on June 12, 2015.

The new law imposes far-reaching restrictions. Most significantly by removing the enforcement of deadlines for the judge to rule, effectively allowing a judge to stall out a minor until she can no longer obtain a legal abortion. “When a minor cannot even get a hearing or a court ruling in time, the state is then making her decision for her.  Such abuse of state power amounts to an “absolute veto” of her decision and is under U.S. Supreme Court precedent unconstitutional.” Hays said.

The new law — as exacerbated by these rules — dismantles the longstanding judicial bypass law and places numerous limitations on pregnant teenagers seeking court access for legal permission to consent to their own medical care including:

  • Extending the time for a judge to rule from two business days to five — then declaring a case denied if the judge does not rule or refuses to even give the minor her day in court. Considering the time-sensitive nature of a pregnancy, dragging out the process by even just a few more days could have the very harmful effect of pushing a minor into a more expensive or invasive procedure or past the legal limit for abortion, especially considering long clinic wait times since HB 2.
  • Requiring minors to provide the judge her name, home address, and phone number, destroying her anonymity and violating her confidentiality.
  • With few exceptions, requiring minors to file in their home county if its population is more than 10,000 (which covers 169, or two thirds of Texas’ 254 counties, including almost every county in East Texas.)  “How heartless for the law to have no exception for a rape survivor fearful of seeing her rapist at the courthouse,” Hays pointed out.

To make matters worse, many courthouses are unwilling to assist minors in applying for bypass. A 2015 Jane’s Due Process survey of more than 80 Texas counties found that 81% of counties did not have immediate knowledge of the judicial bypass process and 37% of the counties denied entirely a teenager’s ability to file for a bypass. In counties with fewer than 50,000 people, the refusal rate was 58%. “When courthouse doors are slammed in these girls’ faces, Jane’s Due Process will be there to help,” Hester promised.

Jane’s Due Process is a non-profit legal referral organization that assists pregnant minors in Texas regardless of what choice they make about their unintended pregnancies.