Abortion Bypass Denied

Colorado requires either parental notice, or a court order (called a judicial bypass) for a minor to obtain an abortion.  The Colorado Court of Appeals, in an expedited appeal, affirmed a trial courts’ order denying a minor a judicial bypass, in a ruling issued today. The case appears to be the first of its kind in Colorado at the appellate level and relied heavily on persuasive authority from other states with similar laws.We know only a little about the women seeking the abortion, as a result of privacy rules that apply to expedited appeals of judicial bypass rulings.  For example, we do not know which county the case arose in, who her lawyer on appeal was, or the name of the judge who made the trial court decision.  The appeals court ruled very promptly, just three and a half weeks after the judges’ initial decision on June 4, 2007, and hence probably even more swiftly after briefing was completed and the record in the case was received from the trial court.

We know that she did not have an attorney, although the judge offered her an opportunity to have one appointed for her.  She arrived at the hearing with a school nurse and a boyfriend who the woman “identified as the child’s father.”  She had not consulted with a doctor or attorney, and declined an offer to have an attorney appointed for her.  The school nurse who was present at the hearing with her did not speak during the hearing, and it appears tha the boyfriend also did not offer any testimony to the court.  She states in her appeal that she was nervous and intimiated at the hearing, and didn’t manage to fully explain whom she had consulted with about her decision.

She was sixteen years and a half years old, and was about ten weeks pregnant at the time of her hearing in the case  She lives with her mother, her brother, and her brother’s child whom her mother is raising.  Her father is dead.  We know that the woman doesn’t get along well with or communicate much with her mother, and that her mother has been emphatic in approving of the woman for not getting pregnant.

She:

knew that abortion carried risks and that “you could die from having it, but its rare,” she had not considered any mental or emotional ramifications of abortion other than that it might lead to her “becoming depressed or something like that.”  She conceded that she “might regret” having had the abortion but reiterated that she had made up her mind to do so.  [She] also stated that she would not change her mind.

She also said that she “was obtaining prenatal care and that she understood that she could continue to receive such care.”

She also told the court that in her opinion she was “too young to have a child, that the child would not ‘have a dad,’ and that she did not have a job.”

The pregnant minor’s burden of proof was to either show by clear and convincing evidence that she was mature enough to make the decision, or by a preponderance of the evidence that notification was not in her best interests.

After the hearing the judge found that “she lacked the maturity to decide whether to have an abortion.”  The court emphasized her “unwillingness to communicate with her mother or consult with other adults, her focus on her own needs, and her failure to discuss the matter with a doctor.”  The trial court also felt that she had “only minimal understanding of the risks of the abortion procedure” and that she was “unemployed and being supported by her mother.”

In an appeal of this type, the factual findings of the trial judge are entitled to deferrence (on the theory that the judge can  evaluate the credibility of the people before him in ways impossible to review based upon on a verbatim transcript), while findings of law are reviewed without any deferrence to the trial judge.

It is impossible to know what will happen next in this case. 

At this time the woman is about 13 weeks pregnant, so, if she wants to obtain a late first trimester abortion, she must promptly notify her mother and schedule the procedure.  If she seeks Colorado Supreme Court review, and prevails promptly enough, she might be able to obtain a second trimester abortion without parental notification, also known as a “late term” abortion. Alternately, she might choose to carry the pregnancy to term, or seek to obtain an illegal or out of state abortion. 

The fact that the parental notification law has been on the books for some time now, and that this is the first appeal of a parental notification ruling, despite that fact that there have been a considerable number of bypass hearings, implies that usually, when a minor seeks a judicial bypass, that it is granted.  Planned Parenthood has a network of attorneys who have agreed to handle without charge the judicial bypass cases of minors who want to obtain an abortion.

The Colorado General Assembly approved parental notification/judicial bypass law on May 7, 2003, after amendment 12, approved by voters in 1998, was overturned by the courts.  The law was then signed by then Governor Owens, a Republican.

Reactions to the decision have been collected by Colorado Confidential here.

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Andrew Oh-Willeke

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