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Texas Supreme Court Issues Rules for Children Seeking Abortion Without Parental Consent

The Supreme Court of Texas has issued new rules and forms governing minors seeking abortions. The action was taken in connection with pro-life legislation passed during the 2015 Texas legislative session.

The stated intent of the bill, HB 3944, in cases involving pregnant minors seeking a “judicial bypass,” is to protect the pregnant minor while also protecting parental rights.

The Texas Family Code provides for judicial authorization of an unemancipated minor to consent to an abortion in Texas without notice to, or the consent of, a parent, managing conservator, or guardian.

The amendments are effective January 1, 2016, and they govern the procedures under the Texas Family Code. The amendments reconcile court rules with the Texas Legislature’s changes specifying when and how a pregnant minor may apply for a judicial bypass.

Sections of the Family Code that govern court proceedings authorize the Supreme Court of Texas to make rules to ensure that judicial bypass applications are decided confidentially and promptly. The statute also directs the Court to make forms for use in these proceedings.

As reported by Breitbart Texas, the law, HB 3944 changed the rules regarding when a minor may have access to an abortion without notice or consent to a parent, managing conservator, or guardian (hereinafter “parent[s]”). HB 3944 was signed into law by Governor Greg Abbott on June 12.

Texas legislators altered the bypass procedure to limit, among other changes, where a bypass application must be filed. Pregnant minors who are seeking to ask a judge to issue an order allowing them to have an abortion without the consent of their parent(s), must generally file their application in the county where they live. The exception to this is if they live in counties populated by less than 10,000 people.

The new law also made the standard for showing entitlement to a bypass much tougher. A minor must now prove that they are entitled to a judicial bypass by the standard of “clear and convincing” evidence.

In order to grant a judicial bypass, a judge must determine if the applicant minor is mature enough to forego consent and notice of her parents, and is informed about abortions, including about state-mandated information about the procedure. She must also show that notice and consent to her parents would not be in her best interest. The prior standard was whether notifying her parents may lead to sexual, physical, or emotional abuse.

A judge may consider the minor’s life experiences, such as working, traveling independently, or managing her own financial affairs, and steps taken by the minor to explore her options and the consequences of those options. A judge may ask the minor about her reasons for seeking an abortion.

A judge is also authoritzed to require a minor to be evaluated by a licensed mental health counselor. In that instance, the counselor must return the evaluation to the court for review within three business days.

In determing whether an abortion without notice or consent is in the best interest of the minor, a judge may inquire into: the minor’s reasons for not wanting to notify and obtain consent from her parents; whether notification or the attempt to obtain consent may lead to physical or sexual abuse; whether the pregnancy was the result of sexual abuse by a parent; and any history of physical or sexual abuse from a parent.

A judge must deny an application for a judicial bypass if the minor does not establish the legal grounds by the appropriate legal standard.

The judge must also deny the application, without prejudice to later urge an application, if the court, the guardian ad litem, or the attorney ad litem are unable to contact the minor before the hearing despite diligent attempts to do so, or if the minor does not attend the hearing and had actual knowledge of the court setting, or diligent attempts were made to notify the minor of the setting.

In addition, minor girls must now swear under oath, and under threat of perjury, that they have not been denied a bypass previously for this same pregnancy. The exception is where the minor shows a material change in her circumstances.

The amendments follow established rules for choosing judges to hear bypass applications if a presiding judge in a court to which a case has been assigned is not available to decide it.

Under the rule changes, if a judge does not rule on an application within the five days the law now requires, the application will be deemed denied.

Breitbart Texas spoke with Texas Right to Life Legislative Director John Seago who said, “Texas Right to Life applauds the Supreme Court of Texas’ issued amendments to the Judicial Bypass rules. Particularly, we fully support the Court’s effort to provide clarity to the vital issue of what happens when a judge fails to rule within the required five day time period. Ending the automatic granting of bypass petitions was a top priority for Texas Right to Life and because of our advocacy the Texas Legislature ended the ridiculous practice. However, we appreciate the Supreme Court of Texas clarifying that a petition is automatically denied if the judge fails to rule within five days of the hearing.”

Seago added, “This is a common sense policy that matches virtually every other judicial process in Texas and will stop the abortion industry from manipulating the court system to usher minors to elective abortions without any parental involvement.”

A statement obtained from the Supreme Court of Texas by Breitbart Texas provides that the amended rules and the new forms “preserve the existing confidentiality accorded to such procedures.”

The amendments may be changed after an opportunity for public comment. Comments may be emailed to the Rules Attorney by the deadline of April 1, 2016.

The forms will be available in English and Spanish.

Lana Shadwick is a writer and legal analyst for Breitbart Texas. Follow her @LanaShadwick2

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