Casey, Texas, Parental Consent, and Undue Burden: Some Thoughts

I’ve noticed lately that my use of the “legal” tag on this blog is growing, a sure sign that all is not well with regards to legal enshrinement and protection of pregnant people’s or women’s rights.  Today, I want to re-examine a few of the ongoing battles over reproductive freedom taking place across the country, focusing on Texas and Alabama, through the lens of precedent put forth in Planned Parenthood v Casey, a 1992 Supreme Court ruling that has recently been used in the evaluation of anti-choice laws in the United States.

What is Casey?  If you don’t love reproductive rights law the way I do, you might not have hunted down and read the decision in Planned Parenthood v Casey, and you might not be sure what it means.  The ruling upholds the prevailing interest in protecting a pregnant person’s right to privacy, at least until fetal viability (that is, the point at which a fetus could survive on its own outside the womb), which was initially articulated in Roe v Wade (1973).  It also draws on precedent coming from Griswold v. Connecticut (1965), Eisenstadt v. Baird (1972), and Carey v. Population Services International (1977) to outline the idea that liberty, as well as privacy, is a compelling interest in cases regarding reproductive choice, as bodily autonomy ought be upheld.  Casey came with a third conclusion by the Court, however, which stated that states could not impose an “undue burden” (actual language) on pregnant people who, prior to the viability of the fetus, sought to have an abortion in the United States.

What does that mean for us now?  Let’s start with the issue of parental consent laws in the United States.  While thirty-seven states require parental notification if a minor wants an abortion, twenty-one still require the consent of at least one parent.  I have several problems with this: first, it’s philosophically inconsistent with the idea that the minor is old enough, in most cases, to consent to sexual relations with another individual; if they aren’t, then they fall under the category of statutory rape and shouldn’t need to jump through hoops in order to access abortion care.  Second, not all teens can get approval from their parents in order to gain access to this kind of healthcare: their parents may philosophically oppose abortion, may be abusive or absent, or may literally not be in the picture.  The problem is that when this happens, the state cannot just permit the minor to exercise their own judgement, and instead, makes them go through a judge in order to gain permission to access abortion care.

This can be an absolute nightmare for teens in the United States.  In Nebraska, one of eight states that doesn’t just require parental consent, but also requires that said consent be notarized, a 2013 case featured a 16-year-old girl in foster care, who had just terminated the parental rights of her biological parents as a result of their physically abusive behavior.  As a result of her decision, she was made a ward of the state, and was forced to ask a Nebraska judge for the necessary permission needed to obtain an abortion.  The judge, who had formerly served on an anti-choice committee, made the ideologically-motivated decision to deny her an abortion, claiming that she was “not mature enough to make this decision”, despite evidence to the contrary.  But it doesn’t end with one ideological judge in Nebraska, and that’s why I’d like to direct my readers’ attention to Alabama.  In the state of Alabama, the mandated judicial bypass for young people who don’t want to involve their parents in their abortion decisions now involves two horrific elements: first, the state can assign a lawyer to represent the fetus, and second, the state can call as witnesses parents, teachers, boyfriends, peers, clergy members, etc., even if it means disclosing her pregnancy to people who did not previously know about it.  The new law has been used to humiliate pregnant teenagers, and the ACLU has already filed suit against it, claiming it is unconstitutional on the basis that it presented barriers that may make it impossible for young women to exercise their rights in the state of Alabama, and that the law is out of line with other measures around the country (principles that can be framed in terms of undue burden under Casey).  Personally, I’m glad this is happening, because disclosing a young woman’s pregnancy and desire for an abortion in a conservative area may not only humiliate her, it may also put her in personal danger, something the law’s authors either did not consider, or did not care about in their desire to shame women out of getting abortions.

That’s Alabama, but I also wanted to discuss Texas.  I was surprised, quite frankly, when recent rulings upheld the state’s TRAP laws and allowed the targeting of clinics across the state of Texas, shuttering all but seven of them.  While it is worth noting that this ruling is likely temporary, and that lawyers are already devising new strategies, including appealing to the entire Fifth Circuit Court of Appeals (which has thus far declined to reconsider) and appealing to the Supreme Court, while it stands it represents a widespread threat to reproductive justice across the state.  A dozen facilities have already closed as a result of the Oct. 2 ruling by the Fifth Circuit, resulting in the overloading of the remaining seven clinics and consequently longer waits at those facilities; while Texas officials have tried to characterize this as a mere “inconvenience”, the reality is that longer wait times may cause some pregnant individuals to be unable to access abortion services in the limited timeframe in which the procedure is legal in Texas.  It is my belief that this case may ultimately return to the Supreme Court, to be reviewed in light of the Casey precedent along with others being challenged under the premise that they pose an undue burden.  An August ruling by the Fifth Circuit kept the last remaining clinic in Mississippi open, stating that forcing pregnant people to go out of state to access abortion constituted an undue burden on pregnant individuals and impeded their rights to liberty and privacy; despite the Fifth Circuit’s ruling to uphold the Texas law, their previous decision in Mississippi may be transferrable to Texas in light of an additional ruling.

Texas abortion availability in light of HB2 leaves low-income women out in the cold

As of TODAY, the Supreme Court has put a hold on the enforcement of some parts of the Texas TRAP law, HB2, halting enforcement of the regulations that require clinics to meet the requirements of hospital-style surgical centers, and temporarily exempting clinics in El Paso and McAlln from regulations that would have required their doctors to hold admitting privileges at nearby hospitals.  Admitting privileges are a common tool used in TRAP laws, but they are often impossible for abortion providers to get for three main reasons: 1) Hospitals in conservative areas may refuse to grant privileges to abortion providers because they don’t want a relationship with groups like Planned Parenthood for political/optics-related reasons, 2) The doctor provides abortions in a different state than they practice medicine or travels from clinic to clinic because local doctors may refuse to provide abortion services for fear of community backlash (as in Mississippi), and 3) Abortions simply cause so few hospital admissions that abortion providers often don’t bring in the required minimum admissions needed for a hospital to grant privileges.  It remains to be seen whether or not the full law will be struck down, or even considered by, the Supreme Court, but for now, it is good to see the Court giving Texas women a fighting chance: their ruling may allow approximately a dozen clinics to re-open, at least until a full decision can be made.  Here’s hoping that the Court upholds Casey when the time comes, and continues to recognize that rights mean nothing if an individual cannot access or exercise them as needed.

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~ by Randi Saunders on October 14, 2014.

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