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Texas High Court Keeps Judicial Bypass Abortion Rule For Minors

Sept. 6, 2022, 10:21 PM

Minors in Texas will still be able to get a judge’s approval to have an abortion without parental consent, but they must adhere to the state’s stringent new abortion restrictions, the Texas Supreme Court said Tuesday.

Texas law requires patients under 18 to get parental “notice and consent” when seeking an abortion. The judicial bypass, as it’s known, allows minors to seek permission from a judge instead.

Texas banned nearly all abortions across the state under a trigger law that went into effect Aug. 25, and it increased the penalties for performing an abortion to up to life in prison. The trigger law also allows the attorney general to bring a lawsuit to seek civil penalties of no less than $10,000 per abortion performed.

The new law has no exceptions for victims of incest or rape, but it has narrow exceptions to save the life or health of a pregnant person if a pregnancy places them at risk of death or poses a risk of “substantial impairment” of a major bodily function.

The high court stressed that those exceptions in the trigger ban still apply to minors seeking the judicial bypass. It also warned that a judge’s decision to grant a minor an abortion shouldn’t be construed as a judicial determination that the minor has a life-threatening physical condition that is aggravated or caused by pregnancy.

The court also expressly declaimed that it was deciding a constitutional issue in its order: “Constitutional questions should be resolved in an adversarial proceeding with full briefing and argument.”

An advisory committee for the Texas Supreme Court recommended keeping the rule in place Aug. 19. Chief Justice Nathan Hecht also asked the advisory committee to make a recommendation about whether parental notification rules still applied last month.

“It’d be a rare circumstance where a young person had a pregnancy that had complications that was threatening their life, but it’s still possible,” Blake Rocap, legal director of Jane’s Due Process, a nonprofit that helps teens access abortions told Bloomberg Law. “And it’s still what the law requires in Texas, so there’s no reason for the court to repeal its rules when it’s still a legal requirement.”

Parental notification and consent laws could also cause delay in care for those who need it, Rocap said, advocating against parental consent laws. A doctor and a patient would have to wait for the permission of a third-party—either of a parent or judge—to get care that is necessary.

To contact the reporter on this story: Janet Miranda in Houston at jmiranda@bloombergindustry.com

To contact the editors responsible for this story: Rob Tricchinelli at rtricchinelli@bloomberglaw.com; Maya Earls at mearls@bloomberglaw.com