The Texas legislature meets for 140 days every two years, during which time it may well tackle some real issues. But on the abortion front, it devotes a great deal of time to introducing, debating, and passing unconstitutional laws that it will then spend taxpayer money for years to defend—before a federal court ultimately enjoins them.
Through this posturing, the ultra-conservative members of both houses can impress their base and hope against hope that one of these laws will lead to the overturning of Roe v. Wade—the holy grail of this branch of the GOP. Never mind that 7/10 voters support access to abortion in most or all circumstances, or that the same branch of the GOP routinely supports policies that have the effect of increasing the abortion rate (such as by reducing access to contraception). Ignore the fact that through a combination of GOP policies, Texas rates among the top five worst states on virtually every measure of sexual and reproductive health—teen pregnancy, repeat teen pregnancy, maternal mortality, new HIV infections, STIs for teens and adults, and uninsured adults. Forge ahead with policies that throw the US Constitution and the women of Texas under the proverbial bus. Give truth to the saying that it would be preferable for the state legislature to meet for two days every 140 years rather than the converse.
The 2019 legislative term is right on pace with the previous few. With at least a dozen bills introduced, the legislature will consider a total ban on abortion with no exceptions for rape, incest, or fetal anomalies; a ban on abortions because of fetal characteristics like sex or disability; a prohibition on local government cooperation with healthcare providers that provide abortion care; a trigger law that would immediately prohibit abortion in the event Roe is overturned. In addition, a hearing was just held on HB 3605, an act “relating to the appointment of an attorney ad litem to represent an unborn child during a judicial bypass proceeding for an abortion for a pregnant minor.” The harm this bill could cause if it becomes law may not be apparent on first glance, but it is quite real. As I will explain in this column, HB 3605 is as unwise as it is unconstitutional.
The Constitutional Law Abortion Framework
It is no exaggeration to say that Texas has some of the most restrictive abortion laws in the nation. Those restrictions fall on both sides of the constitutional line—some that are clearly within the Supreme Court’s abortion jurisprudence and some clearly outside it.
The power of states to regulate or restrict abortion is circumscribed by a series of Supreme Court cases recognizing that women have a fundamental right to terminate a pre-viability pregnancy without undue burden from the government. The Court first recognized that right in 1973 in Roe v. Wade, an opinion that had the result of invalidating the abortion bans that were then in place in more than half the states. Roe embraced the trimester framework, under which states could not regulate abortion during the first trimester; could regulate it only to preserve the mother’s health during the second; and could regulate or restrict it completely, unless abortion was necessary to save the life or health of the woman, during the third trimester because its interest in protecting fetal life becomes compelling when the fetus reaches the point of viability—that is, the point when the fetus could survive outside the womb.
Subject to a serious challenge in 1992, Roe was revised but reaffirmed in Planned Parenthood v. Casey. A majority of the Court voted for a framework that recognized the state’s interest in protecting fetal life from the outset rather than only after viability. Before viability, the state can regulate abortion as long as it does not impose an undue burden on a woman’s right to terminate a pregnancy. After viability, the state can restrict abortion entirely as long as it maintains an exception to preserve the life or health of the mother. Applying the new standard, the Court upheld provisions of the law mandating pre-abortion counseling and a waiting period, as well as a provision requiring parental consent for minors (with a judicial bypass option), but struck down a provision requiring married women to notify their husbands before obtaining an abortion.
The framework for assessing state abortion restrictions is rounded out by the 2016 ruling in Whole Woman’s Health v. Hellerstedt. In that case, the Court invalidated two requirements for abortion clinics in Texas that fell into the category of TRAP laws—targeted regulation of abortion providers. These laws, passed in many states over the last decade or so, are purposely designed to make it difficult if not impossible for abortion clinics to stay in business. But the Supreme Court concluded that the Texas provisions served no benefit to women’s health, while making it substantially more difficult for women to access abortion care because the laws forced the closing of a significant number of the state’s clinics. On this record, the majority had no trouble concluding that Texas’ requirement “poses a substantial obstacle to women seeking abortions, and constitutes an ‘undue burden’ on their constitutional right to do so.”
Many if not all of the bills currently pending in the Texas legislature are patently unconstitutional under this line of cases.
Abortion Restrictions in Texas
Under current law, Texas imposes several burdens on women seeking abortions, as well as some that apply only to minors. A cursory review of current abortion restrictions makes clear how many obstacles lie in a woman’s path as she seeks to exercise her constitutional right to terminate a pregnancy without undue burden.
- Women must undergo an ultrasound at least 24 hours before an abortion, which the doctor must display in her view while describing the image and allowing her to listen to the heartbeat, if one is detected.
- The same doctor must provide counseling, with misleading content mandated by the state, and perform the abortion.
- Abortions after 20 weeks of fertilization are banned unless the woman risks death or the fetus has a severe anomaly (currently under challenge).
- Fetal remains must be cremated or buried if a miscarriage or abortion occurs in a medical facility (currently enjoined by a federal court).
- The most common type of second-trimester procedure, a dilation and evacuation, is prohibited (currently enjoined by a federal court).
- Private insurers may not include coverage for abortion care in a comprehensive health insurance plan; a woman who wants coverage must purchase a separate rider.
Pregnant minors are subject to all of these restrictions, as well as a few targeted at them specifically. In 2001, the state passed a parental consent law, which prohibits pregnant women under age 18 from consenting to their own abortion care. (State law also prohibits minors from consenting to prescription contraceptives, which plays a role in the high teen pregnancy and repeat teen pregnancy rates.)
In several cases, the Supreme Court has considered the constitutionality of a parental consent law for minors who wish to terminate a pregnancy. In short, the Court has made clear that a state may require parental notification or consent only if it also provides a procedure by which a pregnant minor can bypass parental consent and seek permission directly from a court.
The Judicial Bypass Law in Texas and the Proposed Change
This bill amends Chapter 33 of the Texas Family Code to authorize the appointment of an attorney ad litem for the fetus carried by a minor seeking to obtain a judicial bypass that would permit her to obtain an abortion without parental notification or consent. To understand the nature of this unconstitutional mistake, one needs to understand the current system and why it takes the form it does.
The current procedures and standards governing the judicial bypass proceeding are set forth in Texas Family Code § 33.003. This law provides that a pregnant minor is entitled to bypass the requirement of parental consent for an abortion if she can persuade a court that (i) she is mature and well-informed enough to make the decision on her own; or (ii) it is in her best interests to obtain an abortion without attempting to obtain parental consent. If the minor persuades the judge that either of these prongs is satisfied, the judge must grant the judicial bypass. By statute, this proceeding must be confidential and expeditious.
The statutory standard used to determine whether a bypass is granted was not the product of legislative policymaking. Rather, it followed a constitutional imperative. Under the US Supreme Court’s 1979 ruling in Bellotti v. Baird, a state cannot require judicial notification or consent without providing an option for a judicial bypass. As the Court wrote:
If a State decides to require a pregnant minor to obtain one or both parents’ consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained . . . . Such a procedure must ensure that the provision requiring parental consent does not, in fact, amount to an impermissible “absolute and possibly arbitrary veto.”
This followed from the Court’s conclusion that a woman does not forfeit her constitutional right to terminate a pre-viability pregnancy simply because she is a minor, but that the right may be adjusted to reflect “the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.” The Court considered these factors before settling on the constitutional parameters of a parental notification and consent law, which must not be constructed in such a way as to unduly burden the minor’s right to terminate a pregnancy. Bellotti has been treated as controlling precedent by the Supreme Court many times in the decades that followed the ruling.
The Court in Belotti went beyond simply requiring the existence of a bypass option in every state that requires parental consent or notification; it specified the exactlegal standard to be applied in such a proceeding.
A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes; or 2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.
The Texas law, as it must, codifies the two prongs set forth by the Supreme Court and provides, as it also must, that proof of either entitles the minor to a judicial bypass order. The judge does not have discretion to deny the petition for a bypass order if either prong is met. (A state “cannot constitutionally permit judicial disregard of the abortion decision of a minor who has been determined to be mature and fully competent to assess the implications of the choice she has made.”) What’s more, the judge does not have authority to consider any other factors. Texas law is written this way because it is the only constitutionally permissible way to maintain a parental notification and consent law.
Belotti also specifies other features that must characterize a bypass proceeding.
The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. In sum, the procedure must ensure that the provision requiring parental consent does not in fact amount to the “absolute, and possibly arbitrary, veto” that was found impermissible in Danforth.
In short, the Court requires that bypass proceedings be confidential and expeditious. In Bellotti, the Supreme Court struck down a Massachusetts law that did provide a bypass procedure as an alternative to parental consent, but which did not satisfy the exacting standards laid out by the Supreme Court. The end result was a determination that the bypass procedure unconstitutionally infringed on a minor’s right to terminate a pre-viability pregnancy.
HB 3605 proposes that the attorney ad litem serves to “represent” the fetus. Putting aside the absurd practicalities of such representation, let’s focus on how this rule would change the bypass proceeding in ways not contemplated or permitted by Bellotti.
First, the fetus’s lawyer would have no relevant role in the proceeding. As mandated by the Supreme Court, the judge in a bypass proceeding can consider only whether the minor has shown that she is mature and well-informed or whether it is nonetheless in her best interests to terminate the pregnancy without parental involvement. As the Fifth Circuit noted in Causeway Medical Suite v. Ieyoub, the “language of Bellotti  is not permissive,” meaning that if either Bellotti criterion is satisfied, the court must authorize the abortion, irrespective of the interests of the minor’s parents, the fetus, or the state. Put simply, the only interests relevant to judicial bypass proceedings are those of the minor herself. The court is not constitutionally permitted to consider the interests of any third party, including her parents, and certainly including the fetus. The court is not constitutionally permitted to consider whether abortion is moral or consistent with her parents’ (or the judge’s) religious principles. The court is not constitutionally permitted to consider the state’s view of abortion or its interest in protecting potential life (which the state has the opportunity to express in multiple ways in its general regulation of abortion, and which Texas does in spades). The court is not constitutionally permitted to consider whether the minor should have an abortion. The inquiry is narrowly framed by design to eliminate consideration of extraneous factors that might have the effect of infringing upon the minor’s constitutional right to terminate a pre-viability pregnancy.
The singular focus in a bypass hearing is whether the minor is capable of making the decision to terminate her pregnancy without parental involvement or whether it is in her best interests to do so, even if her decision-making capacity falls short. That’s it. Given those constitutional constraints, what would an attorney ad litem for the fetus contribute to the hearing? The attorney ad litem could not argue that the fetus’s interests are better served by carrying the pregnancy to term, nor that the state opposes termination, nor that the minor has other options, nor that her parents do not support her decision. The only conceivable role for the fetus’s lawyer is to dispute the minor’s testimony about her decision-making capacity or best interests, a role that would fundamentally alter the proceeding in ways that are inconsistent with the mandates of Bellotti.
Second, the fetus’s lawyer would presumably engage in zealous advocacy, as ethical mandates require. This advocacy could mean only one thing—that the attorney will oppose the petition for a judicial bypass and become an adversary to the minor. But Bellotti does not contemplate such a proceeding. The Court describes a process by which the minor—and the minor alone—will try to demonstrate to the judge that she meets at least one of the two required prongs for bypass.
We conclude, therefore, that under state regulation such as that undertaken by Massachusetts, every minor must have the opportunity—if she so desires—to go directly to a court without first consulting or notifying her parents. If she satisfies the court that she is mature and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent. If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests. If the court is persuaded that it is, the court must authorize the abortion. If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interests, it may decline to sanction the operation.
The clear implication of the Court’s reasoning and language is that the minor will present herself to a judge and make her case for being permitted to make her own decision about terminating a pregnancy; the judge then determines whether the standard has been met. There is no discussion of other witnesses, a prosecutor, cross-examination, pretrial discovery, or any of the features of an adversarial legal proceeding. Nor would the attorney ad litem proposed by HB 3605 be poised to wage a real adversarial proceeding even if one was permitted. Given the confidentiality requirements discussed below, the attorney ad litem could not depose the minor, interview other witnesses, collect evidence, engage in discovery, or otherwise prepare for a “trial.” Under current law, a bypass hearing must be scheduled by the fifth business day after a petition is filed (necessary to comply with the Supreme Court’s requirement of expeditiousness). What meaningful work could be done on behalf of the fetus during this time? With no evidence and no time, the only avenue for such an attorney would be to show up and play an intimidating game of “gotcha” by cross-examining the minor and disputing, without any basis whatsoever, her claims as to her own maturity and best interests. No ethical attorney would accept such an assignment.
Third, the addition of a lawyer for the fetus would inevitably compromise the confidentiality that is both constitutionally required and expressly provided for by current Texas law. Texas Family Code § 33.003(l) imposes several safeguards to ensure the anonymity of the minor and the confidentiality of the proceeding and resulting order. The petition is handled confidentially by a clerk rather than through the usual docketing system. These hearings are either held in conference rooms or locked courtrooms; no one is permitted to be present other than those essential to the proceeding. Courts tolerate the involvement of court personnel and representatives for the minor only because “sophisticated judicial procedures” require the administrative assistance of court staff, and because advocates for the minor help to ensure that she “has access to a fair . . . bypass procedure.” The stringent safeguards imposed by the Texas bypass rules—and mandated by the US Supreme Court—are necessary to protect the minor from disclosure of her pregnancy and plans to terminate, and the consequences that might follow from disclosure. She has the constitutional right to seek consent without abuse, harassment, intimidation, or outside pressure. The decision is hers alone if she can satisfy the court of her capacity to engage in reasoned decision-making. Her right to privacy, in fact, is what undergirds the constitutional requirement of a bypass procedure in the first instance. The involvement of a third party whose interests by design will be diametrically opposed to the minor’s will be intimidating and threatening and will drastically increase the likelihood that the anonymity she is constitutionally guaranteed will be blown.
For many of the reasons discussed here, a federal court recently enjoined an Alabama law that provided for appointment of a lawyer for a minor’s fetus. In Reproductive Health Services v. Marshall, the court identified several of the problems created by appointing a lawyer for the fetus—among others, that it would the addition of such a person “to the list of those to whom the petitioner’s identity may be disclosed compromises the minor’s anonymity to a degree well beyond the scope permitted by Bellotti  and any case decided in the intervening four decades.” Moreover, the court noted, a lawyer for the fetus cannot serve any permissible role because the “only proper purpose of the bypass proceeding under Belotti  is the adjudication of the minor’s maturity and whether she is well enough informed to make the abortion decision on her own, or, failing that, where her best interests lie.”
Other than Alabama, which cannot implement its lawyers-for-fetuses law, no other state mandates or permits participation by a representative of the fetus during a bypass proceeding. This is so despite the fact that thirty-seven states mandate parental consent and notification and, of constitutional necessity, also provide for judicial bypass as an alternative. Yet, none provides for participation of any third parties other than those designated to represent or assist the minor. Indeed, several expressly prohibit such participation. As the Marshall court concluded, “[i]t would strain credulity to conclude that the bypass judges and other authorities in every other state that has a bypass statute are unable to make informed decisions and do substantial justice on the basis of their exclusively ex parte proceedings, and this court declines to do so.”
No court has ever upheld a judicial bypass statute that invites or permits the participation of adverse parties or the consideration of interests beyond the constitutionally prescribed inquiries. Yet consideration of this bill in the Texas House continues. A bill like this doesn’t serve up a direct challenge to Roe. It just flatly rejects the supremacy of the US Constitution and makes life even more difficult for a pregnant minor.