A bill that would dramatically strengthen restrictions for minors hoping to use the judicial bypass process to receive an abortion was approved Tuesday by the Senate Health and Human Services Committee and will advance to the Senate floor for a vote. The omnibus bill, HB 3994, was already approved after four hours of debate in a House vote less than a week ago.

The bill, introduced by Representative Geanie Morrison, a Republican from Victoria, is touted by supporters as a much-needed clarification to close “loopholes” that currently exist for minors seeking judicial bypass and is criticized by opponents for making it even harder for young women in special circumstances to receive safe, private care.

Morrison’s bill would change the parameters surrounding judicial bypassa confidential process through which minors can receive an abortion without notifying or getting consent from one or both parents. In Texas the fifteen-year-old parental consent law requires that women under eighteen receive permission from one parent, and separately, one parent must be notified of the procedure 48 hours in advance. Both of these conditions can be waived by a judge, however, through a judicial bypass application.

In order to qualify for such a bypass, a woman has to be able to prove one of three things:

  1. She’s well-informed of all pregnancy options and is mature enough to have an abortion without parent involvement.

  2. It’s not in her “best interests” to tell a parent or guardian she’s having an abortion.

  3. Telling a parent or guardian about the abortion would lead to sexual, physical, or emotional abuse.

Supporters of the new bypass bill argue that the current legislation allows women to gain judicial bypass too easily, and that new wording should be introduced to strengthen and clarify these requirements. One of those supporters is Abby Johnson, a professional anti-choice legislative activist and former Planned Parenthood clinic director, who spoke at a bill hearing in late April.

In a podcast for Reality Check, political reporter Andrea Grimes revisited Johnson’s testimony:

“For instance, we would have a young woman come in and she would tell us she wanted to have an abortion, and we would say oh well, we’re going to have to notify your parents. And she would say oh well, I don’t want them to know because they’ll take my car away. Or, they, you know, won’t allow me to see my boyfriend anymore and that would be terrible.”

Grimes spoke with an attorney named Deena Kalai who works with Jane’s Due Process, an organization that helps pair pregnant minors with legal representation in Texas. Kalai told Grimes that cases like the ones described by Johnson aren’t the norm, and representatives who answer the Jane’s Due Process hotline ask specific questions to make sure a judicial bypass is necessary for each teen.

Still, supporters of HB 3994 say the system isn’t working the way it should; pregnant teens are slipping through the cracks and getting abortions without parental consent when they shouldn’t be. How many Texas teens seek abortion in the first place? We already know that both the unintended pregnancy and teen pregnancy rates in the state are high; the U.S. Department of Health and Human Services puts the number of teen births in Texas in 2011 at just over 43,000. 

But according to data from Guttmacher, the most recent available data on the Texas teen abortion rate is from 2008 and it was low, with the state ranking at number 31 nationwide. And in Reality Check, Grimes reports that the number of teens who have abortions using the judicial bypass system is only about 200. 

Opponents have tried to put a stop to the new bill, saying it will place an unnecessary burden on minors who could be in danger if forced to continue with a pregnancy or disclose plans to have an abortion with a parent or guardian. One clause in particular has drawn more criticism than others. It would alter the existing legislation to require physicians who perform abortions to assume that all pregnant women seeking abortions are minors unless they present a “valid government record of identification.

This is similar to recently enacted voter ID laws, which are shown to disproportionately affect young, nonwhite, low-income people. Apply that same limitation to abortion care, and undocumented women would no longer have a way to receive a legal procedure in the state.

Here are the other new, “loophole”-omitting conditions that would be added by HB 3994, as reported by the Texas Tribune:

  • Requiring minors to provide “clear and convincing” evidence that seeking consent from a parent could lead to physical, sexual or emotional abuse. They currently must prove the risk by a “preponderance of evidence,” a lower burden of proof.

  • Requiring minors to file applications for bypasses with judges in their home county — unless that county has a population under 10,000 — or the county where she will obtain the procedure. Minors can currently file applications for judicial bypass in any county.

  • Extending the time in which judges can rule on a judicial bypass case from two days to five days.

  • Reversing current law such that if the judge does not rule on the bypass request within five days, the request is considered denied. Under current law, the bypass is presumed approved if a judge does not rule.

According to reporting by the Tribune, José Rodríguez, a Democrat from El Paso, said passing the bill could be “setting ourselves up for a legal challenge in the courts.” Per federal law, states are allowed to have their own guidelines about parental consent for minors getting an abortion, but they have to provide a judicial bypass option that must be “expeditious, confidential, and offer an ‘effective opportunity’ for an abortion to be obtained.

In a state where abortion is legal, lengthening the amount of time judges have to respond to bypass requests could delay making an appointment for the highly time-sensitive procedure. Requiring minors to apply in their home county, or the county of their procedure, could also compromise confidentiality. The Senate has a little under two weeks to approve the bill and present it to Governor Abbott before the session ends. 

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