In October, a Louisiana teen asked a state judge to be allowed to have an abortion. She was seeking a judicial bypass—the procedure in which young people who cannot involve a parent in their abortion decision can be granted permission by a judge.
Her mother sued the state to stop it.
Despite the constitutionality of judicial bypass, which must exist in the states that require parental involvement for minors’ abortions, the Louisiana mother’s challenge was enough for a judge to grant a temporary restraining order, blocking all judicial bypasses in the state.
Last week advocates from the nonprofit Lift Louisiana challenged the temporary restraining order, arguing it contravenes the explicit Supreme Court precedent requiring states to offer an alternative to mandatory parental involvement. The order was lifted last week, and the woman agreed to drop the lawsuit.
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Earlier this year the teen had contacted the Louisiana Judicial Bypass Project, a cohort of attorneys representing young people in judicial bypass hearings that is funded by Lift Louisiana. After finding out her daughter had sought an abortion, the mother began contacting the attorneys involved in her daughter’s case, as well as the judge who granted the bypass, even going so far as sending a letter to the Louisiana legislature regarding the law.
“She started sending really harassing and intimidating emails to the lawyers who had been involved in representing her daughter, to the judge who had granted the bypass, to the senior law partner of the woman who coordinates the judicial bypass project,” said Ellie Schilling, an attorney representing Louisiana abortion clinics in the suit.
Months later, the teen got pregnant again and sought another judicial bypass. This time her mother went a step further: With the help of Louisiana Right to Life, she sued the state, painting the judicial bypass process as a nefarious loophole to parental involvement, and the attorneys involved as funneling young people to get abortions.
Louisiana is one of 38 states with parental involvement laws that require either consent or notification of a parent or guardian before a person under 18 can have an abortion. For young people who cannot involve a parent, the Supreme Court precedent on this type of abortion restriction requires that all states give minors the option to go to court and argue before a judge that they are mature enough to have an abortion. The judge can also consider whether the abortion is in the minor’s best interest.
The details of the Louisiana case provide a grim look at how anti-abortion advocates use their connections with state lawmakers to advance their agenda: restricting abortion access by any means necessary.
One argument made on behalf of the Louisiana mother was that her daughter had waived her right to confidentiality because she had already disclosed to her mother that she wanted an abortion before seeking a judicial bypass. Schilling, who successfully argued last week to have the temporary restraining order lifted, said this argument came not from the mother’s attorney but from the office of Attorney General Jeff Landry—whom Schilling calls an “extreme activist on abortion restrictions”—even though Landry was tasked with defending the state in the case.
“The defendant is colluding with the plaintiff to try to get a ruling,” Schilling said. “The defendant [wants] our government to get a ruling that is as broad as possible to try to undermine judicial bypass.”
Schilling said the initial restraining order was granted because the petitioners fabricated a narrative that abortion—and judicial bypass specifically—are dangerous.
“It’s not surprising that the judge issued the temporary restraining order,” she said. “[He must have been] saying, I don’t know what’s going on here. It sounds bad. It sounds that the judges are mishandling this, there’s these horrible lawyers that are convincing girls to go through this process, and abortion must be killing millions of people in Louisiana every year. Of course, this is dangerous for minors.”
A lack of understanding around the procedural normality was also reflected in press coverage of the case, which parroted Right to Life talking points, framing the process as a loophole—a means for young people to go around their parents, rather than a constitutional protection for those young people who cannot confer with a parent about their abortion decision. Statistically speaking, these are often the most marginalized young people—minors living with physical abuse in the home, substance abuse, or other forms of instability, or those in foster care.
This framework, which mischaracterizes judicial bypass, is both startling and harmful.
Judicial bypass dates back to the 1979 Supreme Court case Bellotti v. Baird, which found that it’s unconstitutional to give one person complete veto power over someone else’s abortion. Therefore, the Court decided, a judicial bypass mechanism was necessary in any state that required parental involvement. But states don’t have to offer judicial bypass if they don’t require parental consent or notification to begin with; they are demonstrably harmful, incurring delays on access and, as we’ve seen in this Louisiana case, increasing the risk that a minor’s privacy and right to abortion will be interfered with.
The judicial bypass process is not, as Louisiana Right to Life would have it seem, some quick and easy workaround for young people to sneak behind their parents’ back. Rather, it’s an arduous, complicated, and often traumatizing process for young people who likely are already facing significant adversity.
“Just the term that we use to describe this, which I know comes from the court precedent bypass, I think that that word in of itself, it equals loophole in people’s minds,” said Michelle Erenberg, executive director of Lift Louisiana. “Even the terms that we’re using around this aren’t adequately explaining or messaging why this process exists and exactly who it’s meant to protect.”
That ambiguity has allowed conservative lawmakers to seize the opportunity to present forced parental involvement as benign. Most minors involve a parent or a trusted adult in their abortion decision, and extensive research points to not only the nonnecessity of these laws but the overt harm of them. Despite this, they enjoy support on both sides of the aisle. Parental involvement laws, along with restrictions on later abortion, exist in a complicated space—one in which lawmakers can feign support for reproductive care while still actively supporting policies that harm those who can become pregnant. Because laws like these don’t elicit the same visceral response as a six-week ban like Texas SB 8, they remain largely underreported and misunderstood even in progressive spaces.
“They’re very focused on minors,” Schilling said. “They’re very focused on what’s going on with minors getting abortions, and making it as difficult as possible, which particularly [is] low hanging fruit. It’s the most vulnerable, people with the least power. Those are the groups that they’re now targeting.”
Schilling and Erenberg said they expect more cases like this in the future. As the Louisiana case makes clear, they added, forced parental involvement is a breeding ground for virulent anti-abortion activism that is only made more potent by the fact that progressives and liberals often fail to speak frankly about youth access.