Judicial bypass

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Judicial bypass is a procedure imposed upon the States by federal courts seeking to undercut requirements for parental notification before a minor (typically under the age of 18) can obtain an abortion. There is a judicial bypass procedure in all 38 out of the 38 states that have a requirement for some type of involvement by a parent in a minor's decision to have an abortion.[1]

The term "judicial bypass" was first used in the courts in the context of abortion by the Seventh Circuit in 1983, in Indiana Planned Parenthood Affiliates Asso. v. Pearson, 716 F.2d 1127 (7th Cir. 1983).

Fewer than 195 decisions, mostly at the federal level, discuss "judicial bypass" and abortion. Only five of these rulings were at the Supreme Court level, mostly from the 1990s:

About 100 of the reported federal and state judicial bypass decisions reference the "due process" issue.

The United States Supreme Court established that a state may require a minor to obtain the consent of a parent before aborting an unborn child, provided there is an adequate judicial bypass mechanism. See Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992). But the Supreme Court has also held that a judicial bypass procedure is unconstitutional if it unduly burdens the right of a woman to abort her unborn child. See Bellotti v. Baird, 443 U.S. 622.

An undue burden exists if the effect of the law imposes a substantial obstacle in the path of many women who seek abortion. See Casey, 505 U.S. 833. Judicial bypass to parental notification or consent "must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained." Bellotti, 443 U.S. at 644.

References

  1. https://www.guttmacher.org/statecenter/spibs/spib_PIMA.pdf