Judicial Bypass and Parental Rights After Dobbs
abstract. Under Supreme Court precedent, judicial bypass of laws mandating parental involvement for abortion historically balanced the minor’s right to abortion and their parents’ right to direct the minor’s upbringing. This Note confronts the question: with the constitutional right to abortion newly jettisoned, will judicial bypass be vulnerable to parental-rights challenges? We answer: no. First, parental-rights case law embodies an antiquated coverture-like understanding of children. Properly understood, parental rights are coterminous with children’s best interests—and therefore do not conflict with bypass. Second, bypass comports with entrenched common-law doctrines and a tacit consensus evident in statutes that minors should be allowed to self-consent to health care.
authors. Jessica Quinter, Yale Law School, J.D. expected 2023; Princeton University, A.B. 2018. Caroline Markowitz, Yale Law School, J.D. expected 2023; Cornell University, B.A. 2018. We would like to thank Professors Anne C. Dailey, Douglas NeJaime, and Reva Siegel for their invaluable feedback and guidance. Thanks also to Alice Longenbach and Nicholas Pugliese for their excellent edits and even better friendship, as well as to the editors of the Yale Law Journal and in particular Ryanne Bamieh. Finally, we are grateful for the incredible advocacy of the American Civil Liberties Union of Utah Judicial Bypass Project and Jane’s Due Process, which helped inspire this work. This Note is dedicated to all young people charting their own reproductive futures.
In 1979, the Supreme Court in Bellotti v. Baird described why a teenager weighing whether to end an unwanted pregnancy should not be forced to obtain parental consent to do so. “[T]here are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible.”1 Beginning with this case, the Court has held that because children enjoy a constitutional right to abortion similar to that of adults, “a State [can]not lawfully authorize an absolute parental veto over the decision of a minor to terminate her pregnancy.”2 The Court reasoned that while it is appropriate to encourage a child to consult their parent when deciding whether to have an abortion, a state’s parental notice and consent (collectively, “parental involvement”) requirements must not unduly burden the minor’s right to seek an abortion.3 As a constitutional requirement, therefore, state laws mandating parental involvement in a minor’s abortion decision had to provide a means by which that minor can go before a judge, prove they are mature enough to make the abortion decision on their own or that doing so would be in their best interests, and then be authorized to act without parental consultation or consent.4
This regime—judicial bypass5 of parental-involvement laws—was constitutionally mandated because all people, minors and adults, had a right to abortion under the Fourteenth Amendment, as established in Roe v. Wade.6 But on July 24, 2022, the Supreme Court overturned Roe and its progeny in a bitterly controversial opinion, explaining that, in its view, “[t]he Constitution makes no reference to abortion, and no such right is implicitly protected by any constitutional provision.”7 Given this shift in the Court’s abortion jurisprudence, what happens to the constitutionality of an absolute parental veto on a minor’s ability to have an abortion? Is a minor simply left to bear the “grave and indelible” consequences of an unwanted pregnancy because their parent says they must?
These questions, among many others, will undoubtedly be raised in this new era in which states are free to regulate individuals’ access to reproductive health care with few to no federal constitutional boundaries. Some states have responded, and will continue to respond, to the Court’s decision in Dobbs by enacting outright bans on abortion with extremely narrow exceptions.8 Some will double down on their commitment to ensuring abortion access, enshrining in their constitutions or statutes an absolute right to abortion.9 But others will take the middle ground: although they will not ban abortion altogether, they will be amenable to legislation that chips away at their citizens’ practical access to abortion. In these states, the Court’s abandonment of the federal constitutional right to abortion will inevitably lead antiabortion activists to try to strengthen parental-involvement requirements and jettison the judicial-bypass portions of these laws.10
Antiabortion activists’ efforts to eliminate adolescents’ access to abortion may capitalize on the growing appeal of arguments rooted in the language of “parental rights,” even in liberal states.11 Such efforts are already emerging in both legislatures and courts. For example, in Connecticut, abortion opponents emboldened by Dobbs are pressuring lawmakers to enact a parental-notification requirement, citing the need to “facilitate parental guidance” and “protect families.”12 In Louisiana, a bill introduced in April 2022 (several months before Dobbs, but when it was clear what was to come given the makeup of the Court) sought to amend the state’s already restrictive parental-involvement law by, among other things, permitting judges to appoint counsel to represent the interests of a minor’s parents in a judicial-bypass hearing.13 On the litigation front, the State of Missouri filed a petition for a writ of certiorari with the Supreme Court asking the Court to vacate and remand an Eighth Circuit decision predicated on a minor’s right to seek judicial bypass for an abortion without notifying their parent of the judicial-bypass hearing.14 After Dobbs, the State argues, the question arises of whether the judicial-bypass right even exists.15
We predict that in Dobbs’s aftermath, antiabortion activists and pro-life state legislators will argue that, far from being constitutionally required, judicial-bypass provisions are constitutionally prohibited. Although that argument has not yet been made in so many words in a public forum,16 the anti-judicial bypass efforts just described are a clear precursor thereto; the claim that judicial bypass is unconstitutional is the next step. Absent a minor’s countervailing fundamental right to choose abortion, the argument would go, parents’ constitutional right to direct the upbringing of their child is absolute.
That argument is not convincing. In this Note, we argue that the newfound authority of states to ban abortion altogether should not be taken to include the lesser authority to subject minors to an unyielding requirement of parental involvement. Judicial bypass does not depend on the federal constitutional right to abortion for its vitality and, in a post-Roe world, is not susceptible to a challenge based on constitutional “parental rights.” Judicial bypass is consistent with a growing recognition of children’s agency and right to decision-making in certain settings, including health care.
To be clear, judicial bypass does not give minors absolute autonomy over their reproductive health care. In order to truly respect a minor’s ability to make health-care decisions for themself, states should eliminate parental-involvement laws altogether. Indeed, even in states that allow for judicial bypass, minors must still prove they are mature enough to make the decision to have an abortion or that it is in their best interests, and a judge may deny their petition. Thus, such minors still may be forced by their parents or a judge to endure pregnancy, allowing the state to “transform what, when freely undertaken, is a wonder into what, when forced, may be a nightmare.”17 Nonetheless, the availability of some procedure for a minor to overcome their parents’ practical veto over their abortion decision reflects the state’s necessary role in effectuating children’s independent interests and agency.
In Part I, we briefly explain the development of parental-involvement laws and the Court’s precedents holding that judicial bypass is a constitutionally mandated procedure. We then proceed to answer two questions. First, after the overturning of Roe and consequent elimination of a federal constitutional right to abortion, is judicial bypass vulnerable to a legal challenge on constitutional parental-rights grounds? In Part II, we argue that it is not. As scholars have argued in increasing numbers, the view of parental rights as entailing absolute authority to make decisions on behalf of one’s child, embodied in an outdated reading of the Court’s jurisprudence on parental rights, relies on a coverture-style view of children as property. This framing devalues children’s rights and autonomy. Under the proper understanding, parental rights instead derive from and are coterminous with children’s welfare. Accordingly, when a parent’s wishes come into conflict with their child’s own expression of the child’s interests, the state’s deference to parental rights loses its foundation. Under this articulation, judicial bypass is a logical, permissible, and necessary (though limited) intervention into the family in the interest of respecting a child’s agency. It is an intervention that generally presumes and accepts parental involvement in children’s lives but allows a child to assert their own safety and security interests as well. Part II thus anticipates a legal challenge to judicial bypass and cuts it off at the pass.
In Part III, we turn to the second question: absent the constitutional right to abortion, is judicial bypass an aberration unmoored from our legal tradition, one that existed only because of the constitutional right to abortion? We argue that judicial bypass fits easily into common-law traditions of the so-called “mature minor doctrine” and the right to bodily integrity. Judicial bypass is also not anomalous in state statutory law: there is a deeply rooted and growing consensus among state legislatures that some minors are mature enough to consent to medical care and that some health care is important enough that parents should not be able to prevent their children from accessing it. The numerous state laws allowing some minors to consent to some medical care strongly supports the ongoing legality of judicial bypass.
Finally, we conclude in Part IV with policy suggestions for the judicial bypass of a new era. We derive our recommendations from the existing body of appellate judicial-bypass cases from state courts across the country and from literature on the functionality of the bypass process.
Judicial bypass is not a perfect answer to the problem of minors being deprived the dignity, autonomy, and control that comes with being able to make decisions about their reproductive futures independently. But at the very least, judicial bypass is an important procedure that gives minors a greater ability to make health-care decisions with lifelong implications. States should not be convinced, by litigation or by policy, to do away with the judicial-bypass provisions of their parental-involvement laws simply because Roe has been overturned. Indeed, judicial-bypass procedures are a necessary and legally sound provision of any parental-involvement law.