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| 2 minutes read

Judicial bypass laws, the Florida teen "not 'sufficiently mature' to get an abortion", and the importance of legal representation

You probably saw a news story this week about a 16-year-old Floridian who sought a court's permission to obtain an abortion. The headline likely highlighted the court's finding that she is not "sufficiently mature" to get an abortion (but by implication apparently is "sufficiently mature" to carry a pregnancy to term and possibly raise a child). 

So how did this case come to be? 

Florida law requires parental or guardian notification and consent for minors seeking an abortion. "Judicial bypass" laws allow minors to circumvent those notification and consent requirements. About 35 states have some kind of judicial bypass procedure available (though some of those might now be moot in states that have, since Dobbs, outlawed abortion entirely). 

Florida's law (referred to as "judicial waiver" in the sunshine state) allows a minor to obtain a waiver of the notification and consent requirements if the court finds, by "clear and convincing evidence," that "the minor is sufficiently mature to decide whether to terminate her pregnancy." The court must consider the following factors in making this determination: the minor's age, overall intelligence, emotional development and stability, credibility and demeanor as a witness, ability to accept responsibility, ability to assess both the immediate and long-range consequences of the minor's choices, ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision, and whether there may be any undue influence by another on the minor's decision to have an abortion. 

The judge's opinion was, admittedly, a bit wobbly. For example, in many ways, he seemed to acknowledge that the minor had researched and was knowledgeable and thoughtful about considerations relevant to her decision to terminate her pregnancy. This would seem to suggest that she met many of the criteria necessary for waiver. The record also indicated that the minor's guardian was supportive of her decision, in which case waiver of the notification and consent would seemingly not be required.

Under Florida's law, a minor seeking judicial waiver of the notification and consent requirements is entitled to free legal counsel. In this case, the court observed that she "inexplicably" checked the box indicating that she did not request an attorney. 

So what does this case illustrate? Perhaps many things, but I would argue that one of the most critical takeaways is the importance of legal representation while pursuing judicial waiver/bypass of notification and consent laws. While this judge acknowledged that the minor may petition the court again at a later time, abortion is only legal in Florida up to 15 weeks, and any further delay may narrow the types of abortion available to her. Where such bypass procedures are available under the relevant state's law, an attorney can be critical to helping a minor navigate a confusing and intimidating process, and may be able to help present a clearer record for the court to evaluate, perhaps avoiding conundrums like the one that unfolded here.

Escambia County Circuit Judge Jennifer Frydrychowicz denied the petition in what one judge with the 1st District Court of Appeal, Scott Makar, said appeared to be “a very close call.” The appeals court upheld Frydrychowicz’s ruling, with a majority of the three-judge panel agreeing that the lower court’s order and findings “are neither unclear nor lacking” in a way that would require reconsideration.

Tags

reproductive health, judicial bypass, health care & life sciences

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