Legislature Restricts Judicial Bypass For Minors Seeking Abortions

Republican lawmakers limit a legal process that allowed some minors to obtain abortions without their parents’ permission. In Texas, a person under the age of 18 cannot access a legal abortion without the consent of a parent or legal guardian.

The vast majority of teens who seek abortion care in Texas do so with the knowledge and consent of their parents. A small number — between 200 and 300 per year — that parental permission is not available. Under Texas current law, when an orphaned, abused, abandoned, or neglected teen doesn't have a parent they could turn to for consent, they can go to court to get judicial bypass authorization for an abortion from a judge. The process allowed a minor to obtain legal abortion care if a judge failed to rule on their bypass application, and allowed minors who live in small or rural counties to maintain some confidentiality by avoiding filing petitions in their home counties, where they might be recognized at the courthouse.

House Bill 3994, passed by Republican party line votes in both legislative chambers, drastically restricts this rarely used, judicial bypass process. Judicial bypass a crucial safety net that has worked well to protect the interests of Texas’ most vulnerable teens for the last 15 years.   Described by legal experts as “rife with constitutional problems,” HB3994 is designed to put this process out of reach of teens in need and further endanger the lives of teens living in desperate circumstances.

Texas House Republicans passed HB3994 on a 102-43 party line vote, on the last Friday of the session passed, after  Senate Republicans had passed the bill on a 21-10 party line vote. 

The bill restricts the judicial bypass process by requiring more proof that a minor is at risk for abuse by their parents, limiting the venues where a minor can seek judicial bypass and extending the time period judges have to rule on a judicial bypass request. As passed, HB 3994:

• limits the location and type of court in which a minor can seek an abortion
• forces the minor to reveal her home address and telephone number to a judge
• prevents the minor from removing her application for a judicial bypass after she has filed it with the court
• mandates that a physician who provides abortion care to a minor who says they have been sexually assaulted or abused report that sexual assault, and the identity of the suspected abuser, to law enforcement regardless of whether the minor wants to report their assault or feels it is safe to do so
• mandates that a judge who hears a judicial bypass case in which a minor says they are being abused must report that abuse to law enforcement, along with the identity of the suspected abuser, regardless of whether the minor wants to report their abuse or feels it is safe to do so
• gives a judge five business days, rather than two days, before they must rule on the judicial bypass application
• presumes that if a judge does not rule on the judicial bypass, that permission for the minor’s abortion is denied

Identification Documents Required

A broad provision of HB 3994 requires doctors to ask every woman who enters an abortion clinic for an ID to verify that she is not under 18. The list of approved documents includes driver’s licenses issued by Texas or another state and passports, among others. If a patient doesn’t have an approved ID, her doctor must give her instructions on where to get one. If she can’t obtain ID, for financial reasons or because she does not have her official state stamped birth certificate, for example, the doctor can still perform the abortion, but must report to the state that the procedure was performed without age verification.

Originally, HB3994 would have required all doctors to require pregnant woman seeking an abortion present a “valid government record of identification” to prove she was 18 or older before scheduling the procedure. The bill was amended to require physicians to use “due diligence” to determine a woman’s identity and age, before scheduling the procedure.

That additional reporting requirement could expose providers to additional liability, abortion rights leaders argue, and deter doctors from performing the procedure at all. Elizabeth Nash, a policy analyst with the Guttmacher Institute, said Oklahoma is the only other state with an age verification requirement for abortion. Advocates warn that the bill’s ID provision will most likely hurt poor women and immigrants.