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 Janes, 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 number, court, location, and outcome of cases so as to “out” judges subjecting them to harassment, danger, and electoral pressure,
- 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 Janes by:
- Deleting a requirement that the Department of Family and Protective Services assist abuse victims in its custody applying for a bypass,
- Prohibiting Jane from appearing by video, teleconference, or other remote electronic means,
- Requiring a court clerk to issue a deemed granted certificate to the physician (who does not go to court) instead of to Jane or her attorney,
- Rewriting the grounds for the granting of a bypass, taking the statute outside the constitutionally-tested framework in current Texas law,
- Raising the burden of proof from “preponderance of the evidence” to “clear and convincing evidence.”
HB 3994 also endangers the confidentiality of Janes 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,
- 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.
Disregarding 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.
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.
