Judicial Bypass in Nebraska: How the Nebraska Supreme Court's Decision in in Re Anonymous 5, 286 Neb. 640, 838 N.w.2d 226 (2013) Illustrates the Complexity of Parental Consent Laws for State Wards Seeking Abortion

• Publication year: 2021

94 Nebraska L. Rev. 1028. Judicial Bypass in Nebraska: How the Nebraska Supreme Court's Decision in In re Anonymous 5, 286 Neb. 640, 838 N.W.2d 226 (2013) Illustrates the Complexity of Parental Consent Laws for State Wards Seeking Abortion

Judicial Bypass in Nebraska: How the Nebraska Supreme Court's Decision in In re Anonymous 5, 286 Neb. 640, 838 N.W.2d 226 (2013) Illustrates the Complexity of Parental Consent Laws for State Wards Seeking Abortion(fn*)

Amy J. Peters

TABLE OF CONTENTS

I. Introduction .......................................... 1029

II. Background ........................................... 1031
A. Parental Consent Laws for Minors Seeking Abortion .......................................... 1031
B. Teen Pregnancy and Abortion in Foster Care ...... 1034
C. Nebraska's Parental Consent Law and the Supreme Court's Holding in Anonymous 5 ................... 1037

III. Analysis .............................................. 1040
A. Nebraska's Parental Consent Law Grants Judges an Impermissible, "Absolute, and Possibly Arbitrary, Veto" Over a State Ward's Access to Abortion ...... 1040
B. Nebraska's Parental Consent Law Imposes an Undue Burden on State Wards Seeking an Abortion .......................................... 1044
C. Nebraska's Abortion Law Needs Reform to Clarify Parental Consent Requirements and Judicial Bypass Considerations for State Wards .................... 1047
1. Consent Requirements ......................... 1048
2. Judicial Bypass Considerations ................ 1050

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IV. Conclusion ............................................ 1052

I. INTRODUCTION

In 1973, the United States Supreme Court established in Roe v. Wade that a woman's choice to terminate her pregnancy is a fundamental right under the U.S. Constitution.(fn1) Three years after Roe, the Court held that this right is not limited to those who have reached the age of majority, but it also applies to a pregnant minor's right to an abortion.(fn2) While states have some leeway to encourage parental involvement in a minor's abortion decision, the Court held that minors cannot be denied abortions as a class, and "the State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy."(fn3) As such, most states have passed laws requiring some degree of parental involvement in a minor's abortion decision, such as parental notification or consent requirements coupled with a judicial bypass option in which the minor can seek separate authorization for the procedure from a court.(fn4)

State laws requiring parental consent or notification for underage abortion pose a unique set of problems for girls in foster care.(fn5) For state wards, legal guardianship rests with the state-not the foster parents, biological parents, or former legal guardian.(fn6) "Generally speaking, the [child welfare] agency has the primary legal authority over the child, the foster parents have custodial rights, and the biolog-

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ical parents retain 'residual parental rights.'"(fn7) To further complicate matters, child welfare agencies in most states are unable or unwilling to consent to abortions for foster youth because of federal regulations.(fn8) Many states have failed to consider this complexity, resulting in confusion as to who must be notified or who may consent to the abortion procedure for state wards.(fn9) While the judicial bypass option would appear to provide some recourse for pregnant state wards who are unable to obtain parental consent for abortion, a closer look reveals that the process is incredibly difficult and burdensome.

In re Anonymous 5(fn10) illustrates the insurmountable difficulty facing state wards in Nebraska who seek an abortion. The Nebraska Supreme Court upheld a district court decision that denied a state ward's request for judicial authorization to terminate her pregnancy, reasoning that she was not sufficiently mature and well-informed to make the decision on her own.(fn11) The court also found the minor failed to establish that she met any of the exceptions to the parental consent law, including an exception for victims of abuse or neglect.(fn12) The decision sparked outrage on a national scale from reproductive rights groups and child welfare advocates and brought into question the constitutional soundness of Nebraska's parental consent law as applied to pregnant girls in foster care.(fn13)

This Note argues that Nebraska's parental consent law and judicial bypass mechanism fails to provide an effective avenue of relief for an entire class of vulnerable people who need it most. Moreover, this

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Note contends that Nebraska's parental consent law impermissibly grants judges an absolute veto over a state ward's access to abortion, and the judicial bypass procedure imposes an undue burden on state wards who wish to terminate their pregnancies. Part II explains the history and purpose of parental consent laws, as well as their unique complications when applied to pregnant minors in foster care. Sections III.A and III.B examine the specific constitutional issues raised in light of the court's holding in Anonymous 5, and section III.C proposes some potential solutions.

While this Note argues in favor of the constitutional protections guaranteed to pregnant minors, it also recognizes the contentious and sensitive nature of the subject of abortion in our nation. The U.S. Supreme Court has not been blind to this reality. In Roe v. Wade, the Court eloquently recognized "the deep and seemingly absolute convictions that the subject inspires"(fn14) when it stated:

One's philosophy, one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward life and family and their values, and the moral standards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about abortion.(fn15)

Nonetheless, as the Court emphasized in Roe, the issue is one of fundamental importance affecting individual rights. Therefore, it must be resolved "by constitutional measurement, free of emotion and of predilection."(fn16)

II. BACKGROUND

A. Parental Consent Laws for Minors Seeking Abortions

Parental consent laws are rooted in the long-established notion of parental rights. Courts have traditionally been "hesitant to delve into internal family matters," viewing the family as a "haven, worthy of its own privacy and autonomy."(fn17) A series of twentieth-century U.S. Supreme Court cases reinforced the idea that parents should be afforded a great deal of respect for parental and child-rearing decisions without interference from the states.(fn18) Additionally, the Court has recognized a state interest in protecting the health and well-being of minors by

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encouraging conversation between parents and adolescents about pregnancy and reproductive options.(fn19)

As a result of this underlying respect for parental decision-making, as well as recognition of the pregnant adolescent's need for guidance, a majority of states have passed laws mandating parental involvement in a pregnant minor's decision to terminate her pregnancy.(fn20) Many states require that a physician obtain the consent of at least one parent or guardian before performing an abortion on a pregnant woman under the age of eighteen.(fn21) Other states have passed laws requiring only parental notification, or some combination of consent and notification.(fn22)

While the U.S. Supreme Court has upheld parental consent and notification laws, it has held that a parent may not be given an absolute veto over a minor's right to abortion.(fn23) The Court in Planned Parenthood of Central Missouri v. Danforth held that because abortion is a fundamental right that is constitutionally guaranteed,(fn24) "a State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of a physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent."(fn25)

Three years after Danforth, the Court decided Bellotti v. Baird.(fn26) Bellotti struck down a Massachusetts parental consent law, which provided that an abortion could be obtained by a court order upon a showing of good cause so long as both parents were given the opportunity to consent first.(fn27) The Court phrased the issue as "whether [the statute] . . . provides for parental notice and consent in a manner that does not unduly burden the right to seek an abortion."(fn28) As Justice Powell's plurality opinion explained, the problem with the statute was that it required minors to notify their parents in all cases, without providing an exception for instances in which it would be in the minor's best interest that one or both of her parents not be informed.(fn29)

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For instance, if the minor has been subjected to abuse or threats from one or both of her parents, it may be against her best interests to involve her parents in her abortion decision.(fn30) Indeed, it is widely recognized that respect for parental autonomy does not preclude interference when parents attempt to use that autonomy as a "shield to hide" abuse or neglect.(fn31)

Bellotti provided much needed guidance to states on how to satisfy the Danforth requirements in parental...