The highest court in Nebraska has decided that a 16-year-old in foster care must carry her unintended pregnancy to term because she hasn’t proven that she’s “sufficiently mature and well informed” enough to choose to have an abortion. The teen sought to bypass the state’s parental consent law because her foster parents are very religious, and she worried that she would lose her place in their home if she told them she wanted to end her pregnancy.
Under the state’s current law, minors must obtain notarized legal consent from a parent or guardian before being allowed to have an abortion. There are three exceptions: a medical emergency, a situation in which there’s proven abuse or neglect in the home, or a situation in which the court agrees that there’s “clear and convincing evidence that the pregnant woman is both sufficiently mature and well-informed to decide whether to have an abortion.”
That’s a particularly harsh abortion law for minors. Nebraska used to require minors to notify their parent or guardian about their intent to have an abortion, but didn’t require them to obtain notarized consent in order to have the procedure. The state toughened the requirement in 2011.
And in a 5-2 decision led by Douglas County District Judge Peter Bataillon, the court ruled that the 16-year-old didn’t fit into any of the narrow exceptions granted under the state’s new parental consent law. They decided that her history of parental abuse — which led the state to remove her from her biological parents and place her in foster care — didn’t count as the type of “abuse in the home” to qualify for that type of exception under the law. They also concluded that the 16-year-old “failed to establish by clear and convincing evidence that she is sufficiently mature and well informed,” so she couldn’t seek that exception, either.
The girl’s lawyer, Catherine Mahern, told the Associated Press that Bataillon should have recused himself from the case because he’s not impartial when it comes to the issue of abortion. During the hearing, he told the girl she should understand that “When you have the abortion, it’s going to kill the child inside you.”
“Probably the most disturbing aspect of this case was the judge’s treatment of this young lady, referring to killing her baby,” Mahern noted. “Who talks to a distressed 16-year-old girl like that?”
Bataillon appears to have a history of anti-abortion activism. The AP notes that he may have served on a committee for an anti-abortion group in Omaha during the 1980s, although they haven’t been able to confirm that with him. Daily Kos points out that he has served as a defense attorney for members of the militant anti-abortion group Operation Rescue, as well as an anti-choice activist who was arrested for stalking abortion providers. And a 1994 newspaper article about the debate over the state’s parental consent law quotes Bataillon as speaking on behalf of the group “Lawyers for Life.”
RH Reality Check notes that the decision has potential implications for future wards of the state. If other minors in foster care are subject to the whims of the court, they may also be denied the right to have an abortion simply because of conservative judges on the bench.
But that may be the end goal of policies like Nebraska’s anyway. Ultimately, parental notification laws simply serve to obstruct abortion access. Physicians for Reproductive Health, a doctors’ group that works to expand access to reproductive health services, opposes these type of laws because they simply end up delaying time-sensitive medical care. “The young women who choose not to tell a parent do so for a number of good reasons, including fear of abuse or abandonment, or because they don’t live with their parents,” the group explains. “When the state interferes with minors’ decisions about abortion or birth control, it forces the teen to choose a parent over another trusted adult who might be better suited to support her.”