Texas Lawmakers Seek to Close ‘Loopholes’ in Minors’ Access to Abortion

Texas lawmakers want to make it harder for minors to get abortions without their parents' consent. But who are these minors? Are they really the sneaky, cavalier teens anti-choicers make them out to be?


Andrea Grimes: This is Andrea Grimes, reporting from Austin, Texas, for Rewire.

Grimes: During this legislative session, Texas lawmakers have proposed three different bills that would change laws that deal with minors who seek abortions in the state. Currently, Texas requires both parental notification and parental consent for a minor who wants an abortion.

Grimes: Now, lawmakers are arguing that there are “loopholes” that currently allow girls to go behind the backs of otherwise loving, supportive parents who lawmakers say should be involved in their daughters’ reproductive decisions.

Grimes: Here’s Representative Matt Krause, the author of one of the proposed bills:

Rep. Matt Krause: “House Bill 3302 seeks to add on to and improve the steps that were taken by the legislature in 1999, where we started the parental consent in areas such as this, 2005, or parental notification in 1999. In 2005, we added the layer of parental consent. And this bill seeks to kind of meld and harmonize the two. In many of the sections we add consent and the notification. That’s part of the goal behind 3302. Not only that, but it seeks to close some of the loopholes in the judicial bypass system.”

Grimes: Currently, minors seeking abortions in Texas can have their case heard by a judge in any county—this helps protect the anonymity of minors who might be recognized at their local courthouse—and have to show the judge one of three things. One, that they’re mature and well informed enough about their options to get an abortion without parnetal notification or consent. Two, that it’s not in the minor’s best interest for a parent or guardian to be notified, or three, that notification might result in physical, sexual or emotional abuse.

Grimes: The newly proposed bills would increase the burden of proof required to establish any of those three tenets from a “preponderance of the evidence” to “clear and convincing evidence,” which is a standard used only in the most extreme family law cases involving minor emancipation. Two of the new bills would also ask a judge to decide not only whether he or she believes the minor has made a good case against parental consent and notification, but whether the abortion itself is in the minor’s best interest.

Grimes: The newly proposed bills would also require some minors who live in small counties to have their cases heard in their home county. They would appoint a guardian ad litem—such as a member of the clergy, a psychiatrist or a representative from state health services—to argue for parental involvement.  And they would give judges more time to make a decision in the minor’s case and generate reports about which judges have granted judicial bypasses.

Grimes: The fact is, minors who enter into the judicial bypass process usually do so because they don’t have any parents available to consent, or because they fear physical, sexual or emotional harm from their parents because of their pregnancy.

Deena Kalai: “There are kids who have had long histories of abuse at their parents’ hands and are terrified that once the parent finds out that they’re pregnant that they’re either going to cause harm to the kid who’s calling or maybe to the boyfriend. Some cited that parents own guns and they’re fearful for their boyfriends’ lives.”

Grimes: That’s Deena Kalai, a Texas attorney who represents minors seeking judicial bypasses.

Grimes: I talked to Deena Kalai, an attorney in Austin, Texas who often works with an organization called Jane’s Due Process, which helps guide minors through the judicial bypass process. I asked her about who her clients are, and she said most of her clients are terrified by the prospect of disappointing their parents. And that’s the best case scenario.

Grimes: Deena works with a non-profit called Jane’s Due Process, which helps minors through the judicial bypass process. Many times, her clients have been told by their parents that they’ll be kicked out on the street if they come home pregnant.

Kalai: “That if they ever get pregnant that they will be kicked out of the house. They will be dead to the family, or they will get cut off and parents who were going to help them with costs of college are no longer going to do that.”

Grimes: Generally speaking, minors who can tell their parents about an unplanned pregnancy, do so. And there are lot of minors who call the Jane’s Due Process hotline, talk to a counselor, and ultimately decide to tell their parents. But judicial bypass is for those four hundred or so minors per year in Texas who, either out of fear for their own safety, or out of sheer necessity because they don’t have an available parent, need or want to have an abortion without the consent or notification of a parent.

Grimes: These newly proposed bills don’t take into account the reality of life for pregnant minors who seek a judicial bypass. These are teenage girls who live in broken or abusive homes, whose parents have abandoned them, whose parents are even incarcerated. They are not girls who, according to anti-choice legislative activist Abby Johnson, who supports the new bypass rules, are simply afraid of getting their cars taken away or being grounded. Here’s Johnson, testifying in a hearing last week:

Johnson: “Good evening, my name is Abby Johnson, the state legislative director for Americans United for Life. I’m also a former Planned Parenthood abortion clinic director.”

Grimes: Here’s how Johnson, who now works as a professional anti-choice activist, described the minors she met who wanted judicial bypasses:

Johnson: “For instance, we would have a young woman come in and she would tell us she wanted to have an abortion, and we would say oh well, we’re going to have to notify your parents. And she would say oh well, I don’t want them to know because they’ll take my car away. Or, they, you know, won’t allow me to see my boyfriend any more and that would be terrible.”

Grimes: In fact, Jane’s Due Process hotline volunteers and volunteer attorneys ask their clients a lot of questions to ensure that they are not, as so many anti-choice lawmakers and activists believe, cavalier teens wishing to sneak around. It’s not easy to get a judicial bypass. It’s embarrassing. It’s stressful. It requires learning a lot about the judicial system in a very, very short amount of time.

Kalai: “Um, alright. Let’s talk about how you found out you were pregnant.”

Grimes: I was allowed to record one side of a typical Jane’s Due Process call, between attorney Deena Kalai and her teenage client. We’ll call her Jane Doe. Here are some of the questions Deena asked her client.

Kalai: “Um, before you stopped going to school, how did you do in school? What were your grades like? And so how are you preparing for the GED, is that through a class? And how else do you spend your time? What do you do? What kind of things do you do around the house? That’s great. What kind of stuff do you like to read? So, once you get the GED, do you know what you want to do after that? What are your future plans? For, to become a doctor?”

Grimes: Jane Doe, whose mother has been out of the picture since Jane was a little girl, does have people in her life who could help her: a loving boyfriend, an encouraging step-brother, a therapist she trusts. But one person she can’t trust? Her father, a deeply religious man with a violent temper who doesn’t believe in birth control.

Kalai: “And how would you describe your relationship with your father? Yeah, that’s got to be really, really scary and unpredictable. I had a dad who was like that too, so I know exactly what you’re talking about and it’s really freaky when you don’t know what’s going to set them off. What did he threaten if you ever got pregnant?”

Grimes: But without a judicial bypass, she would need his consent to get an abortion. Back to their conversation:

“So do you know how far along you are? Alright, let’s talk about your boyfriend, how long have you been with him? Up until this point, how have you tried to avoid getting pregnant?”

Grimes: Deena’s client sounded mature and funny—she likes to read C.S. Lewis books, designs websites, and is currently working to get her GED. Ultimately, Jane said she wanted to be a pediatrician. Deena and Jane even laughed about how many pregnancy tests Jane had taken, a moment of real lightheartedness in an otherwise very serious, often tearful, thirty-minute phone call.

Grimes: “So, tell me, I mean I have a pretty good idea of why, but why don’t you tell me why you feel you want to have an abortion? Yeah, I hear ya. That’s definitely a serious consideration. So, have you read about things like adoption? I mean, I know that for you that doesn’t sound like a practical option but have you looked into that? Alright, in the research you’ve done did you come across, let’s say, if you were to keep the baby, what kind of resources there are from the state to help you, economically? Yeah, you’ve clearly done your homework. That’s good. Well, what does your boyfriend say?”

Grimes: Clients like Jane Doe are often going to school or getting their GED plus working part time jobs not for spending money, but to support children they already have, or their younger brothers and sisters, or to help their families keep the lights on at home. Jane wasn’t selfish, flippant or glib; she was trying to do what she thought was best for her future.

Kalai: “That was hard. She was crying.”

Grimes: Jane Doe sounded scared and serious. Nothing like the silly, petty teenagers Abby Johnson says seek abortions in Texas. Here’s Johnson, describing her own abortion experience to state representative Helen Giddings.

Johnson: “I mean, I’ve had two abortions as a young woman. And I wasn’t abused. I didn’t, I just didn’t want to tell my parents because I didn’t want them to be disappointed. And that’s typically what we see.”

Giddings: “Were you, since you became personal with this, and I never would have, were you not in distress?”

Johnson: “No. And most of the young girls that come in are not.”

Grimes: Deena’s client didn’t seem like that at all. She was scared not only about the pregnancy, and of what her father might do to her if he found out, but also worried about involving strangers in her private decision.

Kalai: “And remember that, you know, just as it’s weird for you to be going to talk to a judge about your sex life, it’s kind of weird for a judge to be having a random teenage girl come and talk to her about her sex life. So everyone thinks it’s kind of weird. But it’ll be just fine.”

Grimes: What’s frustrating for Deena is that so many of the girls she represents have had little to no sex education, not at school and not from their parents.

Kalai: “According to what my clients tell me, they’re receiving almost no sex ed. I will hear about some reference to having been separated from the girls and the boys in the fifth grade and being shown videos about something or given a pamphlet about something. But as far as in their recent years prior to this moment that they’re coming to me, they’re often not getting any sex ed in the school and definitely not at home. No one is sitting down and talking with them about responsible choices. The most that they’ll get, most of the time that I hear is, don’t have sex or there’ll be hell to pay.”

Grimes: Texas has the third-highest teen pregnancy rate in the country. But the Texas public education system fails girls like Jane Doe before they’re pregnant, before they’re ever having sex, by including medically inaccurate, abstinence-only sex ed curriculum in their schools, and that’s when there’s any sex ed at all, because it’s not required in Texas.

Kalai: “And I also know that Texas is a place where a lot of this information that girls need is not being given to them. And I feel like a lot of girls have a hard enough time getting through high school and getting through college that anything that can be done for them, to help keep advancing them along that path, if I can contribute to that, absolutely I’m going to do that.”

Grimes: Increasing the requirements for pregnant minors seeking abortions—teenage girls who are already scared, stressed and frustrated—adds unnecessary burdens to already struggling teens, just when they’re trying to take responsibility for their lives.