Constructive and actual notice. Judicial waiver of notice. Referring physician. Notice requirement. Notarization.
This is some of the the legal terminology young people seeking abortion care need to know if they live in one of the 37 states with parental involvement laws, like Florida. Abortion is available there to teenagers younger than 18, but only if they notify their parents—and when the state’s forced parental consent law takes effect in July, it will become even more complicated, forcing those who aren’t able to receive consent from their parents to navigate a complex legal system to exercise their constitutional rights.
It’s called judicial bypass, and understanding the ins and outs of it for most people would require hours of online research or a team of lawyers. Maybe both.
That’s why the reproductive justice organization If/When/How created the Judicial Bypass Wiki—to provide information to teenagers about how they can secure permission from a judge to have an abortion in their state, without involving a parent or guardian. The site uses plain language to explain the legal terms young people need to use the workaround for state laws that remove their bodily autonomy and agency.
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It’s not a traditional wiki; there’s no collaborative editing, though If/When/How aims to regularly update the site and encourages advocates and others with information to reach out. The organization will “collect feedback from young people and other advocates in the field, and add new information while still getting information out there to help meet people’s immediate needs,” Jessica Goldberg, counsel for reproductive justice organization If/When/How, told Rewire.News. “We’re working directly with young people and community-based advocates to get that feedback right now to ensure that it is as fresh, accessible, and valuable as possible.”
Thirty-seven states require parental notification or consent before having an abortion, with three states requiring consent from both parents, according to the Guttmacher Institute. The only alternative is going through the judicial bypass system. In seven of those states, judges must decide on waiving parental involvement for abortion care based on specific criteria, such as the young person’s “intelligence or emotional stability,” according to Guttmacher. In Indiana, a judge will only grant judicial bypass if they consider the person seeking it to be “mature” and “well informed,” or if they agree that the abortion is in the young person’s best interest. If the judge thinks the parents should be involved, they will deny the young person a bypass.
Anti-choice lawmakers have characterized judicial bypass as a loophole in otherwise onerous abortion restrictions. Goldberg said that’s never been true.
“When courts have upheld these laws—and they are not always upheld, to be sure—it is based on a misconception that a judicial bypass proceeding will protect a young person’s ultimate right to decide whether or not to have an abortion, when in fact the bypass itself presents yet another barrier to care,” Goldberg said. She added that forced parental consent laws are “one of the myriad ways that states have tried to make abortion hard or impossible to access after Roe v. Wade was decided.”
The Judicial Bypass Wiki’s Florida entry tells visitors that if a young person based in the state is or has been married, or if they have a dependent child, they don’t need to notify a parent before getting an abortion. (The same exemptions will apply once the parental consent law goes into effect.) It explains the difference between “constructive notice” received in writing, and “actual notice” given in person or over the phone.
According to the wiki, a Florida court has three days to rule on a judicial waiver petition. If there’s no ruling, “another petition can be filed with the Chief Judge of the Circuit to ensure there is a hearing held within 48 hours of the second petition,” the site explains.
The wiki includes resources to ease the process. The Arizona page links to Planned Parenthood of Arizona’s parental consent form, which must be notarized after a young person has permission from a parent or guardian. For a teen who isn’t sure what notarization is, the site explains what it means. Importantly, the wiki links to court addresses and phone numbers for people who need a judicial bypass to avoid having to seek parental consent.
The If/When/How wiki is the latest technological resource designed to assist young people who might struggle with the intricacies of reproductive health-care restrictions. Abortion rights advocates in North Carolina recently introduced a text line, Text Abby, that answers questions about navigating abortion laws, and Advocates for Youth has a site addressing common questions about how someone can access an abortion during the COVID-19 pandemic.
Florida’s forced parental consent law advanced to Gov. Ron DeSantis’ (R) desk only after some Democrats in the state house joined Republicans in approving the measure, drawing criticism from advocates. If these lawmakers better understood what judicial bypass involves, they might not join their anti-choice colleagues in passing forced parental consent laws, Goldberg said.
“I believe they’d be far less likely to support forced parental involvement laws if they understood the reality of the judicial bypass process,” Goldberg said. “The judicial bypass process does not mitigate the burden created by forced parental involvement; it is itself a burden and an enormous barrier to abortion access for young people.”
Diana Thu-Thao Rhodes, vice president of policy, partnerships, and organizing at Advocates for Youth, said even young people who tackle judicial bypass with an attorney often feel “stigmatized, judged, or even criminalized—like they had done something wrong.”
“Forced parental consent laws, like this new one in Florida, are just one more barrier in a whole system of obstacles for young people to access abortion care,” Thu-Thao Rhodes told Rewire.News. “What lawmakers may not realize is that parental involvement laws have no clear impact on birth or abortion rates, do not guarantee that a young person will talk to their parents before they have an abortion, and often just delay young people’s abortion care.”