Olivia Martini, Associate Member, Immigration & Human Rights Law Review
I. Introduction
When a man raped his girlfriend’s thirteen-year-old daughter, the girl was faced with two choices to receive an abortion: she could either tell her mother or get a court order.[1] Being only thirteen, the girl felt that she could not face a judge. So, the girl, left with no other option, told her mother that she was pregnant.[2] Instead of responding with outrage for her boyfriend’s heinous act and support for her victim daughter, her mother blamed her daughter calling her a “slut” and threw her out of the house.[3] This case reveals the grim reality for many minors seeking abortions, especially those in abusive or unstable home situations, where parental consent laws exacerbate an already fragile situation.[4]
In thirty-six states, minors must obtain the consent of one or both parents before receiving an abortion.[5] These laws are referred to as “parental involvement laws,” which although they are intended to protect minors, they instead often create significant barriers to abortion access.[6] Judicial bypass, an alternative allowing minors to waive parental involvement in exchange for seeking a judge’s permission, is similarly flawed—introducing delays, emotional strain, and inconsistent outcomes.[7]
This blog argues that the judicial bypass system does not just impose bureaucratic barriers: it violates fundamental human rights. International human rights law recognizes that minors, like adults, have the right to bodily autonomy, privacy, and access to essential healthcare, as outlined in the International Covenant on Civil and Political Rights (ICCPR) and the Universal Declaration of Human Rights (UDHR).[8] However, rather than promoting human rights, judicial bypass compounds the challenges minors face in accessing abortion care.[9] This blog advocates for a shift in state statutes to allow licensed mental health professionals, rather than judges, to consent to abortions, offering a more compassionate and effective alternative.
II. Background
The erosion of minors’ abortion rights started decades before Dobbs v. Jackson Women’s Health Organization overturned Roe v. Wade.[10] In 1979, the Supreme Court in Bellotti v. Baird upheld Massachusetts’ parental consent law, setting a precedent that while the state could require parental involvement, it could not be an absolute veto over a minor’s decision to have an abortion.[11] This decision fundamentally shaped the framework for judicial bypass provisions.[12] The Court in Bellotti ruled that states must provide an alternative mechanism for those who cannot involve their parents—thus creating judicial bypass.[13] This ruling acknowledged minors’ reproductive rights, but demanded a balance with the state’s interest in parental involvement and protection.[14] However, Bellotti does not align with international human rights standards, which emphasize greater autonomy for minors and recognize the undue burden that parental involvement laws impose on young people seeking care.[15]
A. Parental Involvement Laws
Parental involvement laws are designed to ensure that minors have the support and guidance from their parents when deciding to terminate a pregnancy.[16] These laws fall into two categories: (1) parental notification and (2) parental consent.[17] Notification laws require a minor to inform their parent—usually in writing—at least twenty-four or forty-eight hours before obtaining an abortion.[18] Notification laws are often justified as allowing time for parental guidance, but often they assume that parents may persuade the minor to continue their pregnancy.[19]
Consent laws mandate that a minor obtain explicit permission from one or both parents before an abortion may be performed.[20] These laws are often stricter, and in some states, the process may require notarized consent forms and proof of parenthood.[21] For minors in unsafe home environments, parental involvement laws pose significant risks, including physical harm, emotional abuse, or homelessness.[22] To address these risks, states created the judicial bypass option, allowing minors to obtain approval from a judge rather than a parent.[23]
B. Judicial Bypass
Thirty-five states with parental involvement laws offer a judicial bypass alternative.[24] To waive parental involvement, a judge must determine either that the minor is sufficiently mature to make the decision independently or that notifying a parent would not be in their best interest.[25] Many states require judges to consider specific factors, including the minor’s emotional stability, intelligence, and understanding of the consequences of an abortion.[26]
The vast majority of minors seeking an abortion involve a parent or other trusted adult in their decision, while those who do not often have compelling reasons for doing so.[27] If a minor is willing to stand before a judge rather than confide in a parent, it is likely due to serious concerns, such as fear of coercion, physical or emotional abuse, being kicked out of their own home, or being financially cut off.[28] Thirty percent of minors who do not consult their parents about their abortion cite fear of abuse or homelessness.[29] This fear is not unfounded—one in five pregnant minors has experienced physical abuse at the hands of a parent at some point in their lifetime, and for many, the abuse intensifies during their pregnancy.[30] Minors that seek judicial bypass are disproportionately from Black, Hispanic, or low-income communities, and they often face additional barriers such as limited access to healthcare, social support, and accurate information about their reproductive rights.[31] For vulnerable minors, seeking judicial bypass may be the only option to ensure their safety.[32]
The practical implications of parental involvement laws are staggering and serious.[33] Although these laws are framed as protective, they result in unintended consequences, such as delays, emotional tolls, and barriers to timely and safe abortion care.[34] For minors in abusive or unsupportive homes, these barriers jeopardize their safety and health, making the judicial bypass process both an emotional and logistical burden.[35]
III. Discussion
Parental involvement laws and the judicial bypass system directly contradict the rights protected under international human rights laws.[36] The ICCPR, which guarantees the right to privacy and bodily autonomy, and the UDHR, which affirms the right to healthcare and freedom from discrimination, protect individuals—including minors—from state-imposed barriers that infringe upon their ability to make autonomous healthcare decisions.[37] Minors, like adults have the right to make decisions regarding their reproductive health, including the decision to seek an abortion.[38] However, the U.S. legal system’s treatment of abortion as a politically charged issue undermines these rights, creating unnecessary barriers that disproportionately affect vulnerable minors.[39] This opposition to abortion sets the stage for understanding the failures of judicial bypass, which often adds more barriers for minors, despite being presented as a safeguard.[40]
A. The Failure of Judicial Bypass
Judicial bypass, intended as a safeguard for minors who cannot involve their parents, is often an obstacle itself.[41] The process is burdened by inconsistent rulings, delays, and emotional toll.[42] Many minors are unaware of the judicial bypass option, primarily due to the lack of comprehensive outreach and education on reproductive rights, as well as misleading information offered by certain groups.[43] Even for minors who know about the option, the judicial bypass process remains unpredictable, with varying outcomes based on judges’ personal biases and inconsistent application of legal standards.[44]
Many minors do not learn about the judicial bypass option because it is not widely advertised or discussed in school health classes or medical offices.[45] Additionally, anti-abortion crisis pregnancy centers fail to inform minors of the judicial bypass options; instead, these centers focus on discouraging abortion, sometimes providing misinformation or omitting critical information about minors’ legal rights.[46] This lack of awareness and misleading guidance contributes to the already daunting challenge of seeking a judicial bypass.[47]
Moreover, the judicial bypass process itself remains inconsistent across jurisdictions and is highly subjective.[48] Judges have wide discretion to assess maturity and whether parental involvement is in the minor’s best interest.[49] The absence of clear legal standards allow for highly subjective rulings, with decisions often based on a judge’s personal beliefs rather than objective factors.[50] This discretion is problematic, especially in jurisdictions where judges with strong anti-abortion views interpret statutory requirements narrowly, effectively blocking minor’s access to abortion.[51] Additionally, the judicial process subjects minors to invasive questioning about their sexual history, family dynamics, and academic performances—factors that are irrelevant to one’s ability to make an informed healthcare decision.[52] Factors that are objectively relevant to such a decision include the minor’s understanding of the procedure, the risks involved, and their personal circumstances.[53] However, judges fail to address these factors adequately, instead focusing on irrelevant personal details.[54] Judges are entrusted with upholding the law impartially and, their personal or political beliefs should not influence their decisions, especially in sensitive matters like judicial bypass, where a minor’s access to essential healthcare should be determined only by the legal criteria and facts at hand.
Judicial bypass also significantly delays access to abortion.[55] Some courts only hear bypass petitions on specific days, forcing minors to wait weeks before their case is even considered.[56] These delays are particularly perilous in states with gestational limits on abortion, where minors risk aging out of eligibility for abortion in their home state.[57] The waiting period itself becomes a source of immense stress for minors, exacerbating the already traumatic experience.[58] Forcing a minor to navigate a complex and unpredictable judicial system intensifies the emotional burden, with some minors experiencing tremendous anxiety and uncertainty about their futures.[59] As a result, minors who experience delays may be forced to travel out of state, resort to unsafe methods, or carry an unwanted pregnancy to term.[60] Additionally, procedural delays may leave minors ineligible for medication abortion—a noninvasive and often preferred method of abortion that is only available up to eleven weeks of pregnancy.[61]
Lack of transportation further complicates access, particularly for minors in rural areas where public transit is nonexistent.[62] Because many minors cannot yet drive, they often rely on others for transportation, which compromises their ability to maintain confidentiality.[63] Minors seeking a judicial bypass can be easily exposed if they have to rely on friends, family, or even strangers for rides.[64] Additionally, schools often notify parents when a student is absent, making it difficult for minors to attend a hearing without their parents being alerted to their situation.[65] The tension between maintaining confidentially and fulfilling court requirements places minors in an impossible position: choosing between safeguarding their privacy and obtaining an abortion.[66]
Despite the intended confidentiality of judicial bypass, the process presents significant privacy risks.[67] Appearing in court increases the possibility of being recognized by peers, teachers, or community members, further compromising privacy.[68] The exposure deters many minors from seeking a bypass altogether.[69] Ultimately, the judicial bypass process, while intended to offer a safe alternative, adds another layer of difficulty, with delayed access, unpredictable outcomes, and invasive questioning that further exacerbates the emotional toll on minors.[70]
B. An Approach Embracing Minors’ Autonomy
Due to the pitfalls of the parental involvement laws and judicial bypass, this blog proposes a third alternative: allowing minors to seek consent from a licensed healthcare professional rather than navigating the judicial bypass system.[71] The current process imposes significant burdens, particularly on the most vulnerable and marginalized minors—those who lack supportive guardians, face unsafe home environments, or do not have the resources to access the court system.[72]
For example, Delaware has already taken steps toward permitting licensed mental health professionals to consent to abortion care, provided they determine that the procedure is in the minor’s best interest.[73] This model offers a more compassionate and effective alternative to judicial bypass.[74] The concept of “best interest” is a widely recognized standard in family law, reinforcing the importance of prioritizing the welfare of the child.[75] By focusing on the minor’s emotional and development needs, this approaches emphasizes the essentiality of minors’ rights to make decisions about their health and futures. This framework amplifies minors’ voices, allowing them to have an informed say in their own healthcare.
Unlike judges, mental health professionals are trained to assess a minor’s maturity, emotional stability, and decision-making capacity in a sensitive and supportive environment.[76] Counseling, rather than a court proceeding, is a more appropriate method for communicating with the minor and ensuring they receive the guidance they need.[77] By prioritizing counseling over courtroom proceedings, this approach fosters trust, and ensures that minors receive not only the medical care they need but also the emotional support to make an informed, autonomous decision.
This approach also better protects minors’ confidentiality.[78] Navigating the court system increases the risk of encountering people they know, making the process intimidating and discouraging.[79] By contrast, speaking with a healthcare professional eliminates these privacy concerns, allowing minors to seek care without risk of discovery or fear of judgment.[80]
Shifting decision-making authority from judges to licensed healthcare professionals would not only improve the procedural efficiency of this process but also align more closely with international human rights principles.[81] Such a shift would ensure that minors’ autonomy and capacity to make informed decisions about their reproductive health are respected, in line with the evolving capacities of minors recognized by international human rights law.[82] This approach would prioritize accessibility, reduce unnecessary state interference, and better respect the rights of minors to make decisions about their healthcare without undue burdens or intrusions, as mandated by international law.[83]
While allowing minors to consent to abortion independently would most effectively protect reproductive autonomy, such a reform remains unlikely in the current political climate post-Dobbs.[84] However, shifting consent authority from judges to licensed healthcare professionals presents a feasible, immediate improvement.[85] This change would ease the emotional and logistical toll on minors, maintain confidentiality, and create a more accessible and supportive decision-making process.[86]
If healthcare professionals are unavailable, or this approach is not feasible in some states, an alternative solution could be the appointment of Guardian Ad Litems for minors.[87] This approach is common practice in courts for individuals, like minors, who are unable to advocate for themselves.[88] Guardians Ad Litem would represent the minors’ interest, ensuring that their autonomy is protected.[89]
This proposal would likely be implemented on the state level, which means there could be legal challenges or inconsistencies across jurisdictions. This could create confusion for minors seeking care, as well as for healthcare professionals navigating and trying to understand varying state requirements. However, despite these challenges, the benefits of a more compassionate and supportive process for minors outweigh the potential obstacles, making this an important and urgent policy to consider.
IV. Conclusion
Ultimately, providing minors with safe, accessible healthcare is essential to safeguarding their futures and protecting their human rights. The erosion of minors’ reproductive issues is not merely a legal issue—it is a human rights crisis. Parental involvement laws and the judicial bypass process create significant barriers, disproportionately affecting vulnerable minors and hindering their ability to make timely, informed decisions.[90] These flawed systems fail to protect minors’ autonomy, exposing them to emotional distress, unnecessary delays, and inconsistent legal decisions.
By reforming these legal frameworks to involve licensed healthcare professionals, states can create a more compassionate and equitable system, ensuring that all individuals, regardless of age, have control over their reproductive decisions. This shift would align with international human rights principles, ensuring that minors’ autonomy is respected and protected. It is time for lawmakers to act, ensuring that minors are no longer forced to navigate a system that undermines their rights, and are empowered with the access, support, and autonomy they require.
[1] Young Women’s Stories, Am. C.L. Union of Ill., https://www.aclu-il.org/sites/default/files/field_documents/mandatory_parental_involvement_laws_can_impose_serious_and_irreversible_harm.pdf [https://perma.cc/2Z3Z-TABH] (last visited Feb. 15, 2025).
[2] Id.
[3] Id.
[4] Sonia Adjroud, Abortion and Parental Involvement Laws: A Threat to Young People’s Health and Safety, Advocates for Youth, 2(Sept. 5, 2019), https://www.advocatesforyouth.org/wp-content/uploads/2013/12/Parental-Involvement-Policy-Brief-2019.pdf [https://perma.cc/P92F-A9M9].
[5] Id. at 1.
[6] Id.
[7] Id. at 2.
[8] International Covenant on Civil and Political Rights, Dec. 16, 1966, 999 U.N.T.S. 171; Universal Declaration of Human Rights, G.A. Res. 217A (III), U.N. Doc. A/810 (Dec. 10, 1948).
[9] See Adjroud, supra note 4, at 2.
[10] Dobbs v. Jackson Women’s Health Org., 597 U.S. 215, 231 (2022); Roe v. Wade, 410 U.S. 113, 116 (1973).
[11] Bellotti v. Baird, 443 U.S. 622, 643 (1979).
[12] Id. at 639.
[13] Id. at 655.
[14] Bellotti, 443 U.S. at 622; Parental Involvement in Minors’ Abortions, Guttmacher (Sept. 1, 2023), https://www.guttmacher.org/node/26262/printable/print [https://perma.cc/T58R-SRH2].
[15] Bellotti, 443 U.S. at 622; Soo Jee Lee, A Child’s Voice vs. A Parent’s Control: Resolving a Tension Between the Convention on the Rights of the Child and U.S. Law, 117 Columbia L. Rev. 688, 698 (2017).
[16] An Overview of Consent to Reproductive Health Services by Young People, Guttmacher (Aug. 30, 2023), https://www.guttmacher.org/state-policy/explore/overview-minors-consent-law [https://perma.cc/4P45-BK2F].
[17] Id.
[18] Id.
[19] See Adjroud, supra note 4.
[20] See Parental Involvement in Minors’ Abortions, supra note 16.
[21] Id.
[22] Rebecca Hendin, In Harm’s Way: How Michigan’s Forced Parental Consent for Abortion Law Hurts Young People, Hum. Rts. Watch (Mar. 28, 2024), https://www.hrw.org/report/2024/03/28/harms-way/how-michigans-forced-parental-consent-abortion-law-hurts-young-people [https://perma.cc/S8WP-VE3C].
[23] See Adjroud, supra note 4.
[24] See Parental Involvement in Minors’ Abortions, supra note 16.
[25] See Hendin, supra note 22.
[26] Id.
[27] Id.
[28] Id.
[29] Id.
[30] See Adjroud, supra note 4.
[31] Maya Manian, Functional Parenting and Dysfunction Abortion Policy: Reforming Parental Involvement Legislation, 50 Fam. Ct. Rev. 241, 251 (2012).
[32] Id.
[33] See Hendin, supra note 22.
[34] Id.
[35] Id.
[36] See Manian, supra note 31, at 243.
[37] Human Rights Implications of Global Surrogacy, Int. Hum. Rts. Rights Clinic Univ. Chi. L., 20 (2019).
[38] Id.
[39] Sarah Horvath & Susan Frietsche, Judicial Bypass for Minors Post-Dobbs, 19 Women’s Health 1, 5 (2023).
[40] Id.
[41] Id.
[42] Id. at 3.
[43] See Hendin, supra note 22.
[44] Id.
[45] Id.
[46] Id.
[47] Id.
[48] See Adjroud, supra note 4.
[49] Id.
[50] Id.
[51] Id.
[52] See Hendin, supra note 22.
[53] Teri Dobbins Baxter, Child Sacrifices: The Precarity of Minors’ Autonomy and Bodily Integrity After Dobbs, 26 J. Const. L. 988, 1023 (2024).
[54] See Hendin, supra note 22.
[55] See Horvath & Frietsche, supra note 39, at 3.
[56] Id.
[57] Alisha Kramer et al., The Impact of Parental Laws on Minors Seeking Abortion Services: A Systematic Review, 1 Health Affairs Scholar 1, 11 (2023).
[58] Id.
[59] See Horvath & Frietsche, supra note 39, at 4.
[60] Id.
[61] Id. at 5.
[62] Id. at 3.
[63] Id.
[64] See Hendin, supra note 22.
[65] Id.
[66] Id.
[67] See Horvath & Frietsche, supra note 39, at 2.
[68] Id.
[69] Id.
[70] Id.
[71] See Manian, supra note 31, at 250.
[72] Id. at 251.
[73] Id. at 250.
[74] Id.
[75] Id. at 244.
[76] Id. at 250.
[77] Id.
[78] Id.
[79] Id.
[80] Id.
[81] See Lee, supra note 15, at 717.
[82] Id.
[83] Id.
[84] Dobbs, 597 U.S. at 231.
[85] See Manian, supra note 31, at 250.
[86] Id.
[87] Katherine Federle & Danielle Gadomski, The Curious Case of the Guardian Ad Litem, 36 Univ. Dayton L. Rev. 337, 348 (2011).
[88] Id.
[89] Id.
[90] See Hendin, supra note 22.
