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A majority of a Pennsylvania Superior Court panel has ruled that a minor appealing a trial court ruling on her request for an abortion does have the maturity and capability to give her informed consent for the procedure. The case of first impression resulted in a narrow decision in the minor’s favor. The court in Re LDF voted 2-1 to reverse a Philadelphia Common Pleas judge’s decision that the minor should not be permitted to have an abortion because she was 20 weeks along in her pregnancy. Gestation of less than 24 weeks is a lawful period in which to have an abortion under the Abortion Control Act, the Superior Court majority said. Therefore, the only decision the trial court should have made was as to the minor’s maturity and capability, the majority said. According to the majority opinion, authored by Judge Phyllis W. Beck, the minor, LDF, filed a petition for declaration of maturity to consent to abortion with the Philadelphia Common Pleas Court on Feb. 4. LDF was seven weeks away from her 18th birthday and 19 weeks pregnant at the time, Beck said. According to a statement adopted by the trial court, Beck said, LDF testified that she was in the custody of the Department of Human Services and lived in a program for teen-age mothers with her 1-year-old son. LDF testified that she delayed seeking an abortion because there was confusion among the staff at DHS as to which department would pay for the procedure. The trial court appointed counsel from the Defender Association of Philadelphia and held a hearing Feb. 6. In accordance with the act, the hearing was confidential and no stenographer was present, Beck said. The trial court concluded that it could not sign the petition “because of the late status of the pregnancy,” the opinion says. The act regulates abortion in the commonwealth, Beck said. It allows a woman over age 18 to seek an abortion if she has given her voluntary, informed consent at least 24 hours before the scheduled procedure. For the woman to give informed consent, the act states, she must be informed of the risks of, and alternatives to, the procedure. She must also be informed that she and her unborn child may be eligible for medical assistance benefits and that the father is “liable to assist in the support of the child” even if he has offered to pay for the abortion. Once informed consent — and, where relevant, spousal notice — is achieved, the act allows an abortion if the gestational period is less than 24 weeks, Beck said. If the woman seeking an abortion is under 18, she must obtain parental consent under the act. If the parents will not give consent, then under � 3206(c) of the act, the woman may file a petition asking the common pleas court to deem her mature and capable of giving informed consent. The hearing is to be held within three days after the petition is filed. Under the statute, the minor has an explicit right to appeal to the Superior Court in the event of an adverse decision by the trial court, Beck said. LDF appealed the trial court’s decision in her case on Feb. 10. The Superior Court scheduled a hearing for Feb. 13 and then learned that Feb. 14 was the last day LDF’s provider would perform the abortion. On Feb. 13, the court issued an order reversing the trial court’s decision. Beck acknowledged that due to the confidential nature of the proceedings, the record was “exceedingly slim.” However, she said, the statement adopted by the trial court provided sufficient information for the intermediate appellate court to reach a conclusion. It was clear from the record, Beck said, that the fact that LDF was 20 weeks pregnant was the only reason the trial court gave for denying her petition. “However, there is nothing in the act that authorizes the court to rely on such a factor,” Beck said. “If the court were permitted to consider the number of weeks of a pregnancy in reaching its decision,” Beck said, “the results would be completely arbitrary and, contrary to the statute, unrelated to the maturity or capacity of the minor.” Beck said the court had to be true to the act’s mandate that abortion of pregnancies of less than 24 weeks is legal. Therefore, the trial court’s ruling was in error, the majority found. The court then turned to a consideration of whether LDF was mature and capable enough to consent. “Pursuant to the act’s mandates, she consulted with a medical provider for counseling over two months ago and at that time was fully informed of the risks, consequences and alternatives to abortion,” Beck said. “The uncertainty of whether DHS would pay for the abortion caused her delay in moving forward. Once DHS agreed to pay for the procedure, she filed a petition pursuant to the act.” Beck said those factors spoke favorably to LDF’s maturity and capability. Beck also noted that a remand would have been impractical because the window of time for LDF to have an abortion was quickly closing. In his dissent, Judge James R. Cavanaugh said the majority “acted gratuitously and without legal foundation.” Cavanaugh suggested that the majority might have misread � 3206(c). He said the majority’s interpretation resulted in incorrect law in two respects: “First, it infers that the trial court found maturity when there is no evidence whatsoever upon which to base this inference,” Cavanaugh said. “Secondly, the majority enters an authorizing order in the face of denial by the trial court of such an order and under circumstances where there is no provision for the entry of an order by the appeals court since we are only reviewing the actions of the trial court.” Cavanaugh said the way he read the section, the trial court’s decision was correct. He said the section allows the trial judge to determine that the minor is not mature and capable to give her informed consent and that the abortion would not be in her best interests. “I would, therefore, affirm the denial of the petition to approve the abortion,” Cavanaugh said. Cavanaugh also said the majority erred by adopting 24 weeks as the standard for permission to abort a pregnancy. He said 24 weeks is the standard used in deciding whether misconduct is a felony, not for a determination under the act. “Under the deadlines established by the abortion provider in this case,” Cavanaugh said, “it is obvious that they were wary of possible exposure to criminal sanctions.” Judge Richard B. Klein was also on the panel.

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