Proposed restrictions on minors seeking abortions without parental consent could put the state at risk of a lawsuit, a Senate Democrat said Monday.
As the Senate Health and Human Services Committee considered House Bill 3994, by Rep. Geanie Morrison, R-Victoria, Sen. Jose Rodríguez, D-El Paso, cautioned against passing the measure because the Legislature could be “setting ourselves up for a legal challenge in the courts.”
The measure would enact several restrictions on “judicial bypass,” the legal process that allows some minors to obtain abortions without parental consent if obtaining consent could endanger the child. The committee adjourned without acting on the measure.
Under state law, minors must obtain consent for an abortion from at least one parent. But if obtaining the consent could put the minor in danger of physical, sexual or emotional abuse, she can look to the courts to obtain the abortion without her parents’ permission.
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The U.S. Supreme Court has ruled that states can set their own parental consent laws as long as they provide minors a judicial bypass option, which must be expeditious and confidential and offer an “effective opportunity” for an abortion to be obtained.
“So to the extent that we set up barriers … it seems to me that we’re not complying with some of these provisions set up by the U.S. Supreme Court,” Rodríguez said.
The judicial bypass language was tacked on through a last-minute amendment to the bill by Rep. Matt Krause, R-Fort Worth, during a four-hour debate last week after which the House signed off on the bill.
Sen. Charles Perry, R-Lubbock, who is sponsoring the measure in the Senate, said HB3994 is meant to tighten the judicial bypass mechanism, which he described as “pretty loose,” and gives minors more time with a judge before obtaining the abortion.
“This bill is actually a very solid approach to giving the minor the best defense or the best information and being informed about the decision she’s going to possibly have to live with,” Perry said.
He pointed to a provision of the legislation that would extend the time in which judges must rule on judicial bypass cases from two days to five days. If the judge does not rule on the bypass in that time, the minor’s request is considered denied. Under current law, the bypass is presumed approved if a judge does not rule on the request.
The automatic denial provision has also raised concerns among anti-abortion conservatives. Joe Pojman, executive director of the Texas Alliance for Life, endorsed HB3994 but advised lawmakers to strike the denial language because it “invites a constitutional challenge.”
“There is nothing to be gained by risking a challenge in federal court,” Pojman said.
Rodríguez also raised concerns about the confidentiality of minors seeking judicial bypass because the measure would restrict where minors can seek judicial bypass.
Minors can currently file applications for judicial bypass in any county in the state. But HB3994 would require minors to file applications in their home county, unless that county has a population under 10,000, or in the county where she will obtain the procedure.
Opponents also raised concerns about language in the previous version of the bill that would have made public the names of judges who rule on judicial bypass cases. But that was addressed by another amendment from the House that would only make public the appellate court district, and not the specific court, where a bypass was granted.
Though HB3994 is focused on judicial bypass, it could affect all Texas women seeking an abortion. Among the most contentious provisions of the bill is a requirement that doctors presume that a pregnant woman is a minor unless she presents a “valid government record of identification.”
After Democrats raised concerns about the ID provision, Perry said he would offer substitute language to clarify the requirements.
The legislation would also require minors to provide “clear and convincing” evidence that obtaining consent could lead to physical, sexual or emotional abuse, increasing the burden of proof standard for minors.
Judicial bypass is used by a few hundred minors a year, usually by individuals who are abused or homeless or do not live with their parents, advocates say.
Sen. Van Taylor, R-Plano, said the bill would go far to appease concerns from judges who say the current judicial bypass standards are “too loose.”
“This bill really addresses some issues that I’ve heard from judges in my district,” Taylor said. “I’m looking forward to green-carding this piece of legislation. I think it’s high time it came.”
The committee is expected to vote today on the measure. With a Republican majority on the committee, HB3994 is likely to be voted out for consideration by the full Senate.