The judicial bypass process—by which some orphaned, abandoned, or abused teens can obtain legal permission for abortion care from a judge, instead of attempting to obtain consent from a deceased, absent, or abusive parent—was one of the first ways Texas anti-choice lawmakers attempted to restrict abortion access more than 15 years ago.
The state’s conservative leadership has successfully implemented one of the most restrictive packages of anti-choice laws in the United States, passed in 2013 despite state Sen. Wendy Davis’ 13-hour filibuster. That omnibus anti-choice bill shuttered dozens of legal abortion facilities from the Red River to the Rio Grande, and anti-choice lawmakers are again turning their attention to making it harder—some critics say close to impossible—for the state’s most vulnerable teens to end their pregnancies.
After a three-hour debate late Wednesday evening, the GOP-majority Texas House of Representatives voted to pass HB 3994, which requires physicians who provide abortion care to assume that every one of their patients is younger than 18 unless those patients can present “valid government record of identification” showing otherwise. Thursday morning, the House gave its final approval to the measure and sent the bill to the Texas Senate.
The originally filed version of HB 3994, sponsored by state Rep. Geanie Morrison (R-Victoria), was less restrictive than the version that eventually passed Wednesday night. The engrossed version includes a nine-page amendment that, in essence, substitutes a more stringent bill in place of Morrison’s original.
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That amendment, proposed by Rep. Matt Krause (R-Fort Worth), would bring the judicial bypass law in line with a bill he had proposed in March, but had been unable to get passed out of committee hearing.
As passed, HB 3994:
- limits the location and type of court in which a minor can seek an abortion
- forces the minor to reveal her home address and telephone number to a judge
- prevents the minor from removing her application for a judicial bypass after she has filed it with the court
- mandates that a physician who provides abortion care to a minor who says they have been sexually assaulted or abused report that sexual assault, and the identity of the suspected abuser, to law enforcement regardless of whether the minor wants to report their assault or feels it is safe to do so
- mandates that a judge who hears a judicial bypass case in which a minor says they are being abused must report that abuse to law enforcement, along with the identity of the suspected abuser, regardless of whether the minor wants to report their abuse or feels it is safe to do so
- gives a judge five business days, rather than two days, before they must rule on the judicial bypass application
- presumes that if a judge does not rule on the judicial bypass, that permission for the minor’s abortion is denied
Current judicial bypass law allows a minor to obtain legal abortion care if a judge fails to rule on their bypass application, and allows minors who live in small or rural counties to maintain some confidentiality by avoiding filing petitions in their home counties, where they might be recognized at the courthouse.
But a 2014 survey conducted by Jane’s Due Process, a nonprofit organization that helps teens navigate the judicial bypass process, found that the vast majority of Texas courts either willfully do not, or ignorantly cannot, provide factually correct information to minors about the bypass procedure. According to that survey:
A mere 26% of counties provided the caller with factually correct information. Even more frightening, 37% of counties denied entirely their office’s involvement with judicial bypass filings, and a vast 81% of counties had no immediate knowledge of the existence of judicial bypass. A stunning 43% of counties provided the caller with blatant misinformation. Several district clerks went a step further and provided the caller with personal, religious advice, referencing “God’s plan” for the minor. One clerk announced she was an “advocate for Crisis Pregnancy Centers” and wanted to meet with the minor in person after work. Other clerks simply told the caller to “pick up the phone and call a lawyer” with one abruptly hanging up the phone.
Texas Democrats—and one Republican, Houston Rep. Sarah Davis—fought the new restrictions at length on Wednesday, proposing more than a dozen amendments that would have reduced HB 3994’s impact on especially vulnerable teenagers, or allowed most Texans to obtain abortion care without presenting government identification.
Rep. Donna Howard (D-Austin) proposed an amendment that would have included an exception to the new bypass rules for a minor who is a survivor of rape or incest. Throughout the debate on this, Republicans in the chamber appeared to talk and joke loudly, prompting Democrats to call for order in the chamber.
“I’ve never seen the chamber be so disrespectful when we’re talking about cases of rape and incest,” said Rep. Celia Israel (D-Austin).
Rep. Mary Gonzalez (D-El Paso) proposed an amendment that would have loosened the bill’s mandatory identification restrictions, and said she was concerned about provisions in the bill that would make it easier for anti-choice extremists to find out the identities of judges who grant bypasses.
“We are putting judges’ physical lives in danger,” Gonzalez said.
Morrison refused to accept any of the Democrats’ amendments. At one point she appeared to be missing from the floor debate, but in the brief period during which she answered questions about the bill, she appeared unsure about its content, saying only that “the bill is very clear on what it says.”
“Clear as mud,” retorted Dallas Democrat Rep. Rafael Anchia.
Morrison later told Rep. César Blanco (D-El Paso) that she couldn’t “speculate” about what a judicial bypass case might look like and that she had no knowledge of the average age of minors who need judicial bypasses.
“You have no knowledge, but you’re filing the bill?” Blanco asked Morrison.
“That is correct,” Morrison replied.
The house voted on the bill around 11 p.m. Wednesday night, after Republicans threatened to add even more onerous amendments if Democrats continued to challenge HB 3994.
Rep. Trey Martinez Fischer (D-San Antonio), who has a reputation for delaying or derailing bills with his exhaustive knowledge of parliamentary procedures, withdrew a point of order he’d called just before 11 p.m. to enable the vote, and later told reporters that his party wanted to avoid the addition of “very divisive” amendments to the bill.
The Texas Senate—widely considered to be a chamber more hostile to legal abortion than the house—has just a couple of weeks to pass HB 3994 before the end of Texas’ regular legislative session June 1.