Academic journal article American University Law Review

Clearly Unconvincing: How Heightened Evidentiary Standards in Judicial Bypass Hearings Create an Undue Burden under Whole Woman's Health

Academic journal article American University Law Review

Clearly Unconvincing: How Heightened Evidentiary Standards in Judicial Bypass Hearings Create an Undue Burden under Whole Woman's Health

Article excerpt

Kiera was sure that if she told her mom, who volunteered for an anti-abortion group, that she wanted to end her pregnancy, she'd be out of the house for good. But when Kiera confided in a school counselor, she learned about another option: [s]he could ask a judge for permission to have an abortion. Her panic melted away. "I thought, 'This will save me,'" she recalls. She started socking away every dollar she could get her hands on-lunch money, tips from her waitressing job. And she started calling courthouses.1

Introduction

The Supreme Court has stated that "[a] child, merely on account of his minority, is not beyond the protection of the Constitution."2 However, in the United States, the individual rights of a minor are significantly limited, especially the minor's ability to make medical decisions.3 This limitation is grounded in the general legal consensus that the right of parents to choose how to raise their children prevails in situations where the wishes of the minor and the parent are in conflict.4 While courts and legislatures have established certain exceptions to this general rule,5 a minor's right to consent to medical procedures remains extremely limited, including the right to consent to have an abortion.6

In 1973, the Supreme Court held in Roe v. Wade7 that women have a fundamental right to abortion based on the substantive due process right to privacy.8 However, since this landmark ruling, a limiting framework has emerged that governs when minors may exercise this right. Seeking to protect parental rights and provide a check on minors' decision making, the majority of states have enacted parental involvement laws.9 Laws of this type require parental consent, parental notification, or both, before the minor obtains an abortion.10 States are permitted to pass these laws, so long as the statute provides a judicial bypass option by which a minor may obtain a waiver of parental consent or notification by court order.11 In Bellotti v. Baird,12 the Court enumerated two situations in which a waiver of parental consent or notification may be granted: (1) when the minor is mature enough to make the decision independently to have an abortion, or (2) when an abortion is in the minor's best interest, even though she cannot make the decision independently.13

In these judicial bypass proceedings, the minor bears the burden of proof for establishing her "maturity" or "best interests."14 However, the Court in Bellotti did not specify the evidentiary standard required for a minor to prove she is mature enough to obtain an abortion or that it is in her best interests; instead, the Court left this determination up to the state legislatures.15 This has resulted in varying evidentiary requirements and appellate standards of review across the country.16 For example, fifteen of the thirty-seven states with parental involvement laws require "clear and convincing evidence" to prove that a minor is mature enough to obtain an abortion or that it is in her best interests.17 In light of the widespread use of this heightened evidentiary standard and the substantial obstacle it places in the way of minors, this Comment will argue that heightened evidentiary standards in judicial bypass hearings place an undue burden on minors seeking abortion care without parental involvement based on the strengthened undue burden test articulated in Whole Woman's Health v. Hellerstedt,18 and despite the Court's ruling in Ohio v. Akron Center for Reproductive Health.19 Furthermore, the outcome of this strengthened analysis negates the ruling in Akron Center for Reproductive Health with respect to the Court's assertion that the clear and convincing evidence standard does not impose an undue burden on minors' right to abortion.

Part I will provide an overview of minors' abortion rights and the evolution of the judicial bypass process. It will also look at the purpose and function of the clear and convincing evidence standard in general and as applied to judicial bypass proceedings. …

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