Houston, TX — Abortion facilities seeking to perform abortions on teenage girls in Texas are abusing the judicial bypass of the state's recently-passed parental notifcation law by taking their cases before sympathetic judges in counties outside the home jurisdiction of the abortion facility and the teen.
Abortion facilities are avoiding courts in Harris and Dallas counties and turning to judges in neighboring Bexar and Travis counties.
Harris and Dallas, the state's two most populous counties, have all Republican judiciaries. The majority of judges in Travis County are Democrats, and the Bexar County judiciary is almost evenly split between the two parties.
“Court shopping makes sense,” said Peter Durkin, director of Planned Parenthood of Houston.
Harris County has had 19 cases filed since the bypass provisions went into effect in January 1999. Dallas County has seen 13 cases. That compares with Bexar County, where courts have handled 191 cases, and Travis County, where judges have considered 110 cases.
The 1999 pro-life law requires abortion practitioners to notify the parents or guardians of girls younger than 18 before performing abortions. Minors who believe that such notification would put them at risk of child abuse and who can demonstrate that they are sufficiently informed and mature can ask a judge to bypass the requirement.
The United States Supreme Court has mandated such bypass provisions in parental notification laws. Even with them, similar laws in other states have reduced abortions. Texas statistics show a decline in teen abortions since implementation of the law.
The Texas Department of Health provided information on payments it made to 10 large urban counties in response to a public information request by the Houston Chronicle. The state pays attorney fees and other court costs when a minor files a bypass petition.
The state Health Department reported that it paid $379,505 in 579 cases between Jan. 1, 1999, and March 8, 2002.
The state payments are the only source of information about the secretive judicial procedure. The Texas Supreme Court, which implemented the bypass provisions of the 1999 notification law, decided not to collect statistics on bypass cases.
Rebecca White, a senior vice president with Planned Parenthood of Houston, said many of the 82 judges in Harris County who could hear the bypass cases received financial support from Steven Hotze, a pro-life doctor who takes an active role in local judicial races supporting pro-life candidates.
“The Harris County judiciary for a minor seeking an abortion would not be the friendliest place to go,” said White.
Pro-abortion state Rep. Debra Danburg, D-Houston, agreed and said area teen-agers should not have to travel across the state to get a fair hearing.
However, pro-life state Sen. Florence Shapiro, who authored the parental notification act, said it specifically allows minors seeking a judicial bypass to file their petition in any county, regardless of the minor's residence.
“Although I have not reviewed these statistics, it appears the minors seeking a judicial bypass are following the letter of the law,” said Shapiro, a Republican.
The number of minors willing to present their cases in Harris County has declined since the law went into effect. In the first eight months of 1999, there were 12 cases. In the next 12 months, six cases were heard. Since last Sept. 1, there has been only one case filed in Harris County.
State District Judge Mark Davidson, who serves as administrative judge for Harris County, said he is surprised by the low number of cases in a county with millions of residents.
“Judges in this county will follow the law,” Davidson said. “To the extent there are judges who may disagree with the law or think no minors should ever get an abortion, I'm confident those judges will follow the law.”
The Republican Party of Texas, in its state platform, “calls for the electoral defeat of all judges who through raw judicial activism seek to nullify the Parental Notification Law by only granting bypasses to minor girls seeking abortions, and thereby thwart the will of the Texas Legislature and people.”
However, Davidson said the fact that minors are taking their cases to Bexar County, where about half of the judges are Republican, shows “it's not a fear of Republicans or a preference for Democrats.”
Pro-life groups say the notification law is working and point to state Health Department statistics that show a 20 percent decline in teen abortions in 2000, the initial year the law was in effect.
“We're thrilled that it dropped so much after only one year,” said Joseph Pojman, director of Greater Austin Right to Life.
Planned Parenthood of Houston counselors claims it advises girls to inform their parents if at all possible.
“For the kind of young women this law was geared toward, it's probably accomplishing what it was designed to do — encourage those young women to involve their parents,” said White. “Where it really is not working is for kids from nontraditional families, for homeless kids and kids whose parents are in prison.”
White said she would like to see the law modified to allow that notification be made to another adult, such as a friend's parent or a counselor. Pro-life organizations oppose such provisions because they allow abortion facilities to have “counselors” on hand that press for the abortion and keep the parents in the dark — thereby gutting the intent of the law.
Some Houston-area teens may be turning to Fort Bend County, which had only two cases in the 12 months ending Aug. 31, 2001, but has had seven since Sept. 1.
Rita Lucido, a Houston lawyer who represents teen-agers in bypass cases, said smaller counties can sometimes offer more flexibility in handling the petitions, which must be decided by the end of the second business day after the petition is filed.
“Some girls may learn it is more convenient and less difficult administratively to do it in other counties,” said Lucido.
Susan L. Hays, a pro-abortion Dallas lawyer, said after filing a few cases in Dallas County she now avoids that jurisdiction.
“We've run into too many judges who won't follow the law,” said Hays, a founder of Jane's Due Process, a statewide pro-abortion organization that recruits pro-abortion lawyers to obtain abortions for teens.
Hays said some minors might file in a smaller county near Dallas but that others are going to Austin and San Antonio, where the judges are not pro-life.
“Sure, there's traveling going on. There's also word of mouth. People go to court where they think they will get a fair hearing,” said Hays.
Hays said in deciding where to file a petition, she also considers which intermediate appellate court would hear an appeal of a bypass denial. She said the appeals courts in the Dallas and Houston areas are more pro-life than others.
Nine bypass cases have reached the Texas Supreme Court, which has upheld denials in all but one case.
State District Judge John Specia of Bexar County, who helped write the rules for the judicial bypass proceedings as a member of a Supreme Court advisory committee, said he is “astonished” at the low number of filings in Dallas and Harris counties.
Specia said he doesn't know why so many petitions are being filed in Bexar County, because information about individual cases is sealed.
“We have no idea where the children are coming from. We wouldn't be able to tell how many are from Bexar and how many are from outside the county,” said Specia, a Republican.
Specia said Bexar County employs a specially trained staff person who makes sure that the deadlines in the law are followed. “We're careful to make sure that the young person involved is treated fairly and sensitively,” said Specia.
Teresa Collett, a professor at South Texas College of Law who monitors the parental notification act, said the secrecy surrounding the bypass petitions makes it difficult to tell how the law is working. Collett said reporting how many petitions are granted and how many are denied by various courts, as is done in other states, would not compromise the minor's confidentiality.
“Often the argument is made that either courts are complete roadblocks or rubber stamps. I don't think the intent of the Legislature is that they be either one,” said Collett.
(This article courtesy of Steven Ertelt and the Pro-Life Infonet email newsletter. For more information or to subscribe go to www.prolifeinfo.org or email infonet@prolifeinfo.org.)
