Lorie Chaiten is the director of the ACLU’s Reproductive Rights Project. She aids young women seeking waivers to the parental notification law about abortions. “It is a traumatic experience for them,” she says of the hearings.
By Barbara Brotman
Most minors voluntarily involve parents in the decision to have an abortion. Read about those who don’t:
Inside the Daley Center, and in courthouses across the state, the cases unfold in careful confidentiality.
They are filed anonymously. The petitioner meets with a judge in an empty courtroom or in the judge’s chambers; the judge knows her only as Jane Doe. The transcript and court records are sealed.
And at the end of a hearing, the young woman generally hurries home hoping her parents never know where she was.
These petitioners are pregnant women under 18 who have chosen to get abortions but don’t want their parent or another adult family member to be notified, as is required under Illinois law. In those cases, the law offers an alternative: asking a judge to grant a waiver.
Most minors voluntarily involve their parents in the decision. But for the last two years, a small number of women have gone to court for what is called a judicial bypass hearing — a private, unseen moment amid the highly visible public debate over abortion.
Statistics are elusive; no statewide records are kept. But in Cook County, where by far the largest number of bypass hearings are held, 55 young women filed waiver petitions in 2014, according to a judge who hears such cases. Already this year, 55 women have filed petitions.
Parental involvement in minor’s abortion decision by state (graphic). See: http://www.chicagotribune.com/news/ct-abortion-judicial-bypass-met-20151009-story.html
It is possible that every petition in Illinois has been granted. The American Civil Liberties Union of Illinois, which provides or arranges free representation for young women seeking waivers, has never had a client turned down, according to Lorie Chaiten, director of the ACLU’s Reproductive Rights Project.
Young women seeking waivers are not required to have a lawyer, and some could have applied without the ACLU’s assistance. But the organization said it had not heard of a petition being denied in Illinois.
The judges face two questions: Is the young woman mature enough to make the decision without involving her parents? Is it in her best interests that a parent or family member not be told? If the answer to either is yes, the law directs the judge to grant the waiver.
But multiple, complex emotions can be at play.
For the young woman, the hearing is a high-stakes proceeding that requires them to answer deeply intimate questions.
“It is a traumatic experience for them,” Chaiten said.
For the judge, the hearing can feel like a deeply sobering responsibility.
“It is hard to hear,” said Judge LaGuina Clay-Herron, one of the Cook County judges who presides over these cases. “Your heart breaks for the young people who find themselves in this predicament.”
Judge Stephen Kouri, chief judge of Peoria County Circuit Court, found presiding over a judicial bypass hearing to be agonizing.
“In 13 years, it’s the most difficult case I’ve ever handled,” he said. “I just think it’s the weight of what you’re deciding. As a practical matter … if you tell her, ‘You don’t have to tell your parent,’ I think we all know what’s going to happen.”
“You wonder — I’m a father of a daughter, but I am a male, not a female. I’ll never experience what the petitioner is experiencing. And you ask yourself, are you the best one to be making this call?”
It is only a limited decision, noted Cook County Judge Susan Fox Gillis, who also hears the cases, which in Cook County are assigned to that week’s emergency judge.
“We’re not giving them the right to have an abortion. We are giving them the right to have an abortion without telling their parents,” she said. “They already have the right to have an abortion whether or not we sign the order.”
Nonetheless, she approaches these cases with gravity.
“I give it a great deal of thought. I don’t take the cases lightly,” she said. “They’re important. They’re serious. They affect this girl’s life, and they affect the fetus.”
Judicial bypass hearings came to Illinois in 2013, when the Illinois Supreme Court ruled that the parental notification law passed in 1995 was constitutional and allowed it to take effect. In 2013, the most recent year statistics are available, 1,762 women under 18 had abortions in Illinois.
The different sides of the abortion debate see the hearings differently.
The ACLU, which litigated against parental involvement laws in Illinois for nearly 40 years, considers them an intrusive part of a law it still opposes.
“The judicial bypass is an enormous hurdle for young women to have to overcome before they can obtain health care,” Chaiten said.
To make sure young women could access the waivers, the ACLU created the Illinois Judicial Bypass Coordination Project, trained 90 lawyers around the state to handle the cases and established a 24-hour hotline.
Americans United for Life, a national anti-abortion legal firm, supports parental involvement laws and the judicial bypass as a necessary safeguard — though it is concerned that some judges may be too quick to grant a waiver.
“It’s not supposed to be a rubber stamp,” said Mary Harned, staff counsel for Americans United for Life, but used in “an extreme situation, where a minor’s parent is abusive or it would be a danger for her to include a parent in the decision.”
Nationwide, most judges grant the petitions, said Carol Sanger, a Columbia Law School professor who studies judicial bypass hearings. In Illinois, she said, there have been no denials that were then appealed.
In other states, however, petitions have been denied.
“Girls get turned down for all kinds of reasons,” she said. “Like stuttering. Or saying, ‘Um, um, um,’ a lot. The judge will say, ‘Well, that shows she’s not very mature.’ ”
The judges’ reasons emerge in those appeals — the only circumstance in which judicial bypass records are opened.
But barring an appeal, the hearing is hidden from public view. The only people who witness it are the young woman, her lawyer, the judge, the court reporter, a guardian ad litem appointed to also represent the young woman’s interests — some courts let her lawyer fill both roles. There is no one role for someone to argue against the request, though Sanger notes that in Alabama, for instance, a lawyer is appointed to represent the fetus.
Judges try not to be intimidating, said Clay-Herron, who holds the hearings in her chambers.
“We are informal. We don’t wear our robes,” she said. “We want to make the young lady feel comfortable.”
Judges know little about the young women who come before them.
“We don’t know her name; we have no identifying information,” Clay-Herron said. “We don’t know from what county she may be coming, from what state. All we know is we have a Miss Doe in front of us who is under the age of 18 and is seeking a judicial bypass.”
Outside Cook County, Chaiten said, some judges have made the young women feel humiliated.
“We’ve had judges lecture young women,” she said. “Some judges just feel for their due diligence that they have to ask incredibly intrusive, challenging questions. They’ll ask, ‘How long have you been sexually active? How many partners have you had? Have you ever been pregnant before?’ (The) judges think they’re operating in good faith, but it’s demeaning and difficult for the young women.”
The hearings are inevitably embarrassing, said Sanger, the law professor. They require a young woman to testify before strangers about sexual intercourse, pregnancy and difficult home lives.
Most of the young women Clay-Herron has seen were 17 or 16 years old, she said; a few were as young as 14. The proceeding is the same for all.
Time is of the essence. The law requires the hearings to be held within 48 hours of being filed.
“We’ve always heard them the same day,” Gillis said. “If we know they’re coming in, somebody will stay and wait.”
The teenagers must get to court in secret. They have to figure out if there is enough time to go after school, how to get there and how to avoid detection, Chaiten said.
With a court reporter making a record that likely will never be seen, the young woman’s lawyer asks her questions designed to prove that she is mature or that notifying a family member would not be in her best interests. The young woman tells why she has chosen abortion, and why she does not want to tell a parent or family member.
“There isn’t really a typical situation,” said Emily Werth, staff attorney for the ACLU’s Judicial Bypass Coordination Project, who has represented about two dozen young women.
They may fear they will be beaten or sexually or emotionally abused, according to lawyers. Some are afraid they will be kicked out of the house or cut off financially. Some have parents who oppose abortion and fear they might try to stop them. They have no legal authority to deny permission, Werth said, “but there’s a lot parents can do, practically, to prevent their child from going forward with an abortion.”
Some are trying to protect their parents, Werth said. She has represented young women with parents undergoing treatment for cancer or who have histories of substance abuse or mental illness.
They come from all backgrounds, said Gillis, and some are already shouldering adult burdens like helping raise younger siblings.
Young women who provide a written statement saying they are victims of sexual abuse, neglect or physical abuse are exempt from the parental notification law.
During the hearing, the young women are asked if they have had counseling.
“We always find out if they have been counseled about all the options they have, so they know they have the option of carrying to term and either raising the child or giving it up for adoption,” Gillis said.
And to prove that they understand the abortion process, the young women are asked to describe it – which they do in detail, Clay-Herron said.
“I’ve learned things from the girls that I didn’t know (about) surgical abortions or medical abortions,” she said.
She has been impressed by the young women who have appeared before her.
“The ladies that make it here are very, very intelligent, very well-spoken,” she said. “They’re very mature. They are doing well in school. They’re making A’s, maybe some B’s. They have already selected the college they’re going to. They already know what they’re majoring in.”
The young women don’t have to be academic stars, Chaiten said; the ACLU has represented high school dropouts who articulately discuss their plans to get their GEDs, and they have gotten their requests approved too.
Judges are required to weigh the decision in the young woman’s favor, said Gillis.
“The standard is ‘by a preponderance of the evidence,’ ” she said — not the “clear and convincing evidence” required in criminal cases, but a lower standard meaning “more likely than not that this is the right thing.”
The process has not always run smoothly outside Cook County. One time, Chaiten said, “a judge … said during the hearing, ‘You’re clearly quite mature … but I just can’t grant this petition today because I’m so torn about it, especially since you haven’t talked to anyone who opposes abortion.’ ”
He told the young woman that if he had to rule that day, he would deny her request, Chaiten said — but that if she was willing to come back the next week he would think about it over the weekend.
That exceeded the 48-hour requirement, Chaiten said, but the young woman didn’t want her petition denied. She returned the next week and reported to the judge that she had spent the weekend consulting with chaplains from religious hospitals. The judge had the young woman wait for several more hours, Chaiten said, but granted her request.
In recognition of the hearings’ personal nature, Sangamon County limits the number of people who deal with them, said Judge Steven Nardulli, chief of the family division.
In Peoria County, Kouri said one judge did not want to hear bypass requests. Concluding that that judge was predisposed to rule against requests, Kouri changed the county’s rules on how they are assigned and took on the responsibility himself so he can assign them to judges he feels are not inclined to rule one way or another.
“This sounds like an easy type of case; it’s just the opposite,” he said. “We’re all human beings.”
In presiding over a judicial bypass hearing, judges play a crucial role at a pivotal event in the life of a teenage girl. Clay-Herron is moved by the import of the moment. At the end of each hearing, she makes it a practice to walk the young woman out of her chambers.
“You feel like you found out so much about their lives,” she said. “I will say, ‘That’s wonderful that you’re making all A’s. I really hope you are able to become a doctor. Take care of yourself; good luck to you.’ ”
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