Their Body, a Judge’s Choice: The Kansas Judicial Bypass Process Must Be Revised

By Marian Phillips

Warning: This piece contains sensitive subject matter pertaining to the legal processes that minors face when requesting abortion access. There are mentions of abuse (physical and sexual) and abortion. 

Reproductive rights are constantly debated within the political arena whether at the state or federal level. It is imperative to continually adjust and reformat legislation that dictates the rights that minors have over their reproductive health. Current policies set in place for minors seeking judicial bypass to receive abortion services in the state of Kansas are egregious to say the least. The current policies necessitate an entire revision of the definitions, restrictions, and requirements mandated within statute 65-6705 under Article 67 Section 5. A policy must be proposed to Kansas legislators to instate greater access to judicial bypass processes for minors seeking abortion and an adjustment of maturity evaluations that are conducted by doctors and judges. These changes must be done in order to offer greater opportunity for the minor to have their case expedited and granted.

         The state of Kansas, as stated in the 2015 statute 65-6705 under Article 67 Section 5, mandates that a minor who wishes to receive an abortion must have authorized consent from the minor and both parents (if they are married) or the minor’s legal guardian. The parent or guardian with primary custody may authorize the procedure. In the case that a minor is in a position where they cannot safely acquire authorization, they can seek to receive judicial bypass for the procedure. Once beginning the process of obtaining judicial bypass, a minor is asked to undergo a psychiatric evaluation prior to court proceedings. The evaluation is done in order to provide the court with reliable information on whether or not the minor sufficiently understands the procedure and is mature enough to make this decision. The state determines the maturity level of the minor by examining the minor’s judgement, perspective, age, personal finances, work, and their decision making prior to and during proceedings.

         There is an array of circumstances under which judicial bypass may be the only option for a minor. For example, if the minor has been assaulted sexually or physically by one or both parents, asking for authorization puts the minor at risk, and more. While these circumstances are listed in the current statute, there are others that have not been recognized and should be. Under Kansas legislature, minors who are seeking abortion and are immigrants, orphans, or “de facto orphans” whose parent(s) may be deceased, or imprisoned are not included. Due to this fact, these minors encounter a larger set of legal hurdles they must overcome before, during, and after requesting judicial bypass.

         While the maturity of the minor is mentioned many times throughout the legislation meant to aid in the abortion rights for minors, the term itself is never truly defined within the document. Maturity is entirely subjective, and some may view it as a minor being mature enough to take accountability and understand their rights within the court system to ask for judicial bypass. Others may view the choice as immature and as the minor not taking accountability for the actions that led them to become pregnant. While a doctor may relay to the court and judge that the minor is mature, the decision ultimately falls on the judge. This brings about more difficulty for the minor if the judge that is on their case is anti-abortion.

         In many cases, minors have been faced with judges who identify as being anti-abortion and, in some instances, prolong the minor’s case on the docket or outright deny judicial bypass without question. There must be a policy set in place stating that if a judge attempts to keep a minor’s case for judicial bypass on the docket, prolonging the pregnancy past the point of qualifying for the procedure, then the case must be expedited. All states have the ability to decide the length of time allotted for judicial bypass proceedings. These cases should not remain on the docket for over a month’s time.

         The need for expedited processing of judicial bypass cases is extremely important, and necessary. At this moment, the state allows for abortion procedures for pregnancies up to 20 weeks; after this point an abortion can no longer be done legally. The state of Kansas, to ensure the safety, health, and well-being of a minor, must instate a time limit based on an understanding of the length of time a minor has to legally be a candidate for an abortion. If denial of judicial bypass is proposed, this limit would provide the minor with enough time to request an appeal and continue fighting for their personal right to choose.

         As aforementioned, minors seeking abortion through judicial bypass come from a variety of experiences. Judicial bypass is a great means to assist minors who find themselves in difficult situations. Creating a clear definition of the maturity level – or even removing the maturity clause all together – alleviates subjective notions of too mature or not mature enough. In short, the state of Kansas must propose a policy that would ensure the safety of a minor and give the individual more autonomy than the current statute allows. By revisiting the abortion policies that currently exist in Kansas legislature, moving the state towards better policies that do not require parental consent or judicial bypass to receive an abortion, such as Oregon and California, may be possible.

Notes 

Friedman, Susan Hatters, et al. “Judicial Bypass of Parental Consent for Abortion.” The Journal of Nervous and Mental Disease, vol. 203, no. 6, 2015, pp. 401–405.,  doi:10.1097/nmd.0000000000000298.

“Legislative Resources.” Statute | Kansas State Legislature, 1 Jan. 1970, www.kslegislature.org/li_2016/b2015_16/statute/065_000_0000_chapter/065_067_000        _article/065_067_0005_section/065_067_0005_k/.

Parenthood, Planned. “Information for Minors.” Comprehensive Health of Planned Parenthood Great Plains, www.plannedparenthood.org/planned-parenthood-comprehensive-health great-plains/patient-forms/information-for-minors.

Redden, Molly. “This Is How Judges Humiliate Pregnant Teens Who Want Abortions.” Mother Jones, 24 June 2017, www.motherjones.com/politics/2014/10/teen-abortion-judicial   bypass-parental-notification/.Williams, Tine. “Planned Parenthood v. Lawall: Judicial Bypass Procedures Lacking Time   Limits Violates a Minor’s Constitutional Right to an Abortion.” Constitutional Law, 23 Am. J. Trial Advoc. (1999) Provided by: Wheat Law Library

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