A Pennsylvania court cannot deny judicial authorization to a minor for an abortion purely because the minor did not receive parental consent for the abortion, the state Supreme Court ruled.
The Pennsylvania Abortion Control Act requires unemancipated children under the age of 18 to receive parental permission to undergo an abortion. The act provides, however, that the pregnant youth can obtain a “judicial bypass” of the parental consent requirement if the court finds the minor is “‘mature and capable of giving informed consent to the proposed abortion, and has, in fact, given such consent.’”
In the case of In the Interest of Jane Doe , an Allegheny County trial court denied a minor’s application for judicial bypass, reasoning in significant part that the minor was not “mature and capable” because she did not seek her parents’ consent. The Pennsylvania Superior Court affirmed that decision.
“The act states with unmistakable clarity that in order for a physician to legally perform an abortion on a minor, the minor must obtain the consent of one parent or, alternatively, obtain judicial authorization,” Justice Max Baer said for the majority. “Neither parental consultation nor consent is required if the minor is seeking judicial authorization for an abortion, as the act expressly permits the minor to elect not to seek the consent of her parents.”
The purpose of the judicial bypass proceeding, Baer said, is to determine if the minor has the maturity and capacity to give independent informed consent without a parent’s approval.
While the trial judge ruled an abortion was not in the best interest of Jane Doe, Baer pointed out that it is not the role of the trial judge to examine whether abortion is the best choice for the minor, but rather whether the minor is mature enough to make the choice for herself.
“To ensure consistent application of the law in cases involving the politically charged and controversial issue of abortion rights, the judiciary must respect the General Assembly’s policy decision not to require parental consultation prior to a minor obtaining judicial authorization to terminate her pregnancy, and must give effect to those controlling provisions of the act,” Baer said.
He said to hold otherwise would leave the door open for result-oriented decisions, using the lack of parental consent as a way to justify denial of judicial authorization “under the guise of the minor’s lack of maturity.” In a footnote, Baer disagreed with a concurring and dissenting opinion by Justice Joan Orie Melvin that the majority is imputing improper motive on the part of the trial court. He said the majority is merely pointing out that strict adherence to the provisions of the act ensures even-handed decision-making.
Because the case is moot given Doe was no longer pregnant after the Superior Court’s ruling on her appeal, the Supreme Court simply vacated the trial court’s opinion. It also spent a lengthy portion of the opinion on determining the standard of review applicable to the denial of a judicial authorization for an abortion, finding the proper standard is an abuse of discretion standard.
The Supreme Court did not address an issue Doe raised on appeal to the Superior Court, which was whether the trial judge should have granted her motion for his recusal because he was backed by a pro-life organization during his judicial campaign.
In her dissent, Orie Melvin said she disagreed with the majority’s conclusion that the trial court misapplied the act by inquiring why Doe elected not to get parental consent and thereby abused its discretion. While she acknowledged the act does not require parental consent, she said that doesn’t equate to a complete prohibition of any consideration of the minor’s reasons for not seeking parental consent.
“Rather, I believe the act contemplates a searching inquiry into the minor’s maturity and capacity to give informed consent, which reasonably includes the minor’s reasons for seeking judicial authorization in lieu of parental consent,” Orie Melvin said.
While the minor has a right not to involve her parents in her decision-making, the reasons for not involving them may reflect negatively or positively on her maturity, the justice said. Orie Melvin said the trial court relied on Doe’s reason for not seeking parental consent, not the fact that she didn’t seek it. Orie Melvin concurred in the majority’s standard of review ruling.
The Attorney General’s Office was given an opportunity to weigh in on the standard of review, and the Supreme Court seemed to largely take from the office’s opinion in adopting the abuse of discretion standard.
Richard Narvin, chief counsel at the Allegheny County Office of Conflict Counsel, represented Doe along with Howard Elbling of his office. He said they would have preferred a de novo standard of review had been adopted, but said he was happy with the result on the issue they were most concerned with — whether lack of parental consent could bar judicial authorization. He said the majority’s ruling makes sense because otherwise the judicial bypass legislation would have no practical effect.
The ACLU of Pennsylvania filed an amicus brief on Doe’s behalf. The Pennsylvania Catholic Conference and the Pennsylvania Pro-Life Federation also filed amicus briefs in the case.
According to the opinion, Doe applied for the authorization March 19, 2010. She was three months shy of her 18th birthday and was 10 weeks pregnant. At the hearing, Doe told the trial judge she was a high school senior with average grades, planned to attend college and aspired to become a lawyer. She said she was examined by a physician and had the procedure of an abortion explained as well as its risks and complications. She was also told of other options such as adoption.
Doe said she didn’t obtain her mother’s consent because she was afraid her mother would “‘throw her out.’” She said she was unable to provide adequate care for the baby because she was unemployed and planned to attend college.
The trial court denied the application, expressing concern with Doe’s failure to inform her mother and the abortion facility’s initial failure to provide Doe with printed materials, though Doe obtained those materials in a three-hour recess of the hearing.
“‘It seems to me that in every case if we would allow a minor to use the bypass provision based solely on the representation that their parent would be disappointed with their decision, I can’t imagine that any parent is going to receive news that their child has an unplanned pregnancy,’” the trial judge said from the bench, according to Baer’s opinion.
In his written order, the trial judge said Doe failed to demonstrate she was mature enough to give informed consent, pointing to her average high school grades, improper use of English during the hearing, her lack of work experience, her unfamiliarity with personal finances, her lack of significant decision-making and the accompaniment of her mother when traveling abroad.
In looking at Doe’s failure to consult her mother, the trial judge further ruled that a minor displays sound judgment and maturity by overcoming fear and anxiety and seeking the guidance of her parents on these issues.
(Copies of the 27-page opinion in In the Interest of Jane Doe , PICS No. 11-4720, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •