Judicial Bypass Laws: A Biased Barrier to Abortion in Kansas

In a 2018 study examining the experiences of young women in Texas, 17-year-old Jacqueline, known only by her first-name, described the “traumatic” process of seeking a judicial bypass to obtain an abortion. Unable to acquire parental consent — her father promised he would disown her if she ever became pregnant — she was forced to plead her case before a judge, who determined that her extensive extracurriculars, after-school care for her siblings, and plan to pursue engineering in college did not sufficiently meet the standard for “maturity.” She was denied the abortion.¹

A judicial bypass is a procedure meant to accommodate minors who need abortions but are unable to obtain parental consent — perhaps because their parent is opposed to the procedure, they have been abused or assaulted by a parent, or because they do not have any legal guardian.² The minor can receive legal counsel and petition a judge for the right to have the abortion. In most states, the minor must provide “clear and convincing” evidence that they are mature enough to undergo the procedure.³

Not every state requires a judicial bypass, but in those that do, the recent Supreme Court decision eliminating the constitutional right to an abortion, Dobbs v. Jackson Women’s Health Organization (2022), has had serious repercussions.⁴ Many states have since illegalized abortion altogether, leaving minors like Jacqueline, who eventually obtained an abortion out of state, with significantly less access to the procedure.⁵ In this article, I will examine the judicial bypass laws in Kansas and argue that, despite claiming to support the best interests of the minor, judicial bypass are implicitly biased against abortion, and thereby serve as legal barriers rather than protective measures.

To begin with, the Kansas judicial bypass law treats the ‘default’ state of the minor as pregnant, enacting an implicit bias against abortion. Kansas law stipulates that a minor must offer “clear and convincing” evidence of her maturity to obtain an abortion, designating abortion as a serious and risky procedure that requires the awareness and certainty of the patient. However, this approach overlooks the consequences of pregnancy. If the minor is denied the abortion, she does not return to her pre-pregnancy life; instead, she must carry a fetus to term and give birth, undergoing a different series of serious and risky medical procedures. In making pregnancy the default, the law implicitly designates pregnancy and potential parenthood as the option requiring less maturity.

This, in turn, becomes inconsistent with other Kansas laws: Kansas employs the mature minor doctrine, allowing unemancipated minor patients to accept or reject medical treatment in the absence of their parents. Kansas Statutes 38-123b writes that “any minor sixteen (16) years of age or over, where no parent or guardian is immediately available, may give consent to the performance and furnishing of hospital, medical or surgical treatment or procedures.”⁶ Younts v. St Francis Hospital & School of Nursing (1970) also ruled that minors who meet the informed consent standard have the authority to consent to medical treatment, with a case-by-case evaluation of maturity.⁷ It is therefore feasible to imagine a situation in which a minor petitions to undergo a medical treatment related to fertility, seeking, for example, in vitro fertilization. In adherence with the mature minor doctrine, the judge would have to evaluate whether the minor is mature enough to become pregnant. Thus, the same standard of maturity present in judicial bypass laws would be applied to pregnancy. This proves a legal inconsistency between the mature minor doctrine and judicial bypass laws — judicial bypass laws do not apply this same standard of maturity to the potential pregnancy of the minor. By framing the law to think of pregnancy as the default state of being, the law implicitly favors compelling a woman continue her pregnancy, rather than allowing for abortion.

Furthermore, the Kansas judicial bypass law is inconsistent with other laws that allow minors to obtain different (and sometimes more dangerous) sexual and medical treatments without parental consent, unfairly differentiating abortion. In Kansas, minors are able to obtain contraception, STI testing, and prenatal care without parental consent.⁸ They are able to choose to give birth without parental consent. The mortality rate associated with giving birth is 8.8 deaths per 100,000 live births, whereas there are only 0.6 deaths per 100,000 abortions — the risk of death is 14 times greater for childbirth.⁹ Therefore, judicial bypass laws do not protect minors from physical danger — the same standard is not applied to more dangerous physical procedures, and, by serving as a barrier only to abortion, actually pushes minors to undergo childbirth. Ultimately, the law is inconsistent if it intends to mitigate physical danger: since birth does not require a judicial bypass, abortion should not either.

Finally, this inconsistency with other laws is compounded by inconsistency within the judicial bypass law itself, in regards to the decision-making powers it provides minors. In Kansas, minors who give birth are allowed to make all decisions regarding their own child’s healthcare, without parental consent.¹⁰ This means that they are able to make healthcare decisions about a minor, as a minor. A scenario can even be imagined in which a minor parent provides consent for the abortion of her minor child. By providing serious healthcare related decision-making power about another person to someone who does not have that power over themselves, the law undermines its own attachment to ‘maturity,’ and, furthermore, sets up an inconsistent paradigm: if the minor is not deemed mature enough to have an abortion, she is is automatically deemed mature enough to handle the healthcare of the child she is forced to have. In taking away the decision-making of the minor on account of her ‘maturity,’ the court provides it in regards to her child.

Ultimately, judicial bypass laws are not only biased and inconsistent, they are actively harmful to the young women they purport to help—in the same 2018 study that interviewed Jacqueline, the psychological effects of the process were overwhelmingly negative qualities like “unpredictability” and “humiliation.”¹¹ Many pregnant minors choose to share their pregnancy or abortion experiences with their parents. But for those who are unable to do so, judicial bypass laws place their futures — whether they must carry a child — into the hands of a single judge and a vague “maturity” standard. Presupposing unrealistically healthy family relationships, implicitly favoring pregnancy, and operating with vast ideological incongruities, the judicial bypass law should be eradicated — in Kansas and all states — allowing minors to autonomously obtain abortions without parental consent.

References

1. Kate Coleman-Minahan et al., “Young Women’s Experiences Obtaining Judicial Bypass for Abortion in Texas,” The Journal of Adolescent Health : Official Publication of the Society for Adolescent Medicine 64, no. 1 (January 2019): 20–25, https://doi.org/10.1016/j.jadohealth.2018.07.017. ↩

2. Amanda Jean Stevenson, Kate Coleman-Minahan, and Susan Hays, “Denials of Judicial Bypass Petitions for Abortion in Texas Before and After the 2016 Bypass Process Change: 2001–2018,” American Journal of Public Health 110, no. 3 (March 2020): 351–53, https://doi.org/10.2105/AJPH.2019.305491. ↩

3. Haley Hawkins, “Clearly Unconvincing: How Heightened Evidentiary Standards in Judicial Bypass Hearings Create an Undue Burden Under Whole Woman’s Health,” American University Law Review 67, no. 6 (2018): 37. ↩

4. “Dobbs v. Jackson Women’s Health Organization,” Oyez, accessed November 5, 2022, https://www.oyez.org/cases/2021/19-1392. ↩

5. Coleman-Minahan et al., “Young Women’s Experiences,” 20–25. ↩

6. Kan. Stat. §38-123b ↩

7. “Younts v. St. Francis Hospital & School of Nursing,” Justia Law, accessed November 5, 2022, https://law.justia.com/cases/kansas/supreme-court/1970/45-630-0.html. ↩

8. “An Overview of Consent to Reproductive Health Services by Young People,” Guttmacher Institute, March 14, 2016, https://www.guttmacher.org/state-policy/explore/overview-minors-consent-law. ↩

9. Elizabeth G. Raymond and David A. Grimes, “The Comparative Safety of Legal Induced Abortion and Childbirth in the United States,” Obstetrics and Gynecology 119, no. 2 Pt 1 (February 2012): 215–19, https://doi.org/10.1097/AOG.0b013e31823fe923. ↩

10. “Minors’ Rights as Parents,” Guttmacher Institute, March 14, 2016, https://www.guttmacher.org/state-policy/explore/minors-rights-parents. ↩

11. Coleman-Minahan et al., “Young Women’s Experiences,” 20–25. ↩