Pa. Supreme Court upholds 'judicial bypass'

| Friday, Dec. 23, 2011

The state Supreme Court said on Thursday that a 17-year-old girl's decision not to tell her mother about a planned abortion was not a valid reason for an Allegheny County judge to deny her permission for the procedure.

In its first public ruling on a "judicial bypass," the justices ruled, 6-1, that Common Pleas Judge Philip Ignelzi should not have considered the fact that the girl didn't tell her mother when he denied her request in March 2010 for court permission under the state's Abortion Control Act.

That law states that if a pregnant woman under 18 doesn't get parental consent, a judge can authorize an abortion after determining she's "mature and capable of giving informed consent."

In writing for the majority, Justice Max Baer said "failure to seek parental consent cannot serve as the basis for the denial of judicial authorization for an abortion."

Ignelzi and the girl were not named in the opinion.

Baer wrote that the girl was three months shy of turning 18, 10 weeks pregnant, and a high school senior when she applied for judicial authorization. She told the county judge she was concerned her mother would throw her out if she learned of the pregnancy.

Ignelzi ruled the girl was not mature enough or capable of giving informed consent for several reasons, including that she didn't tell her mother, her average high school grades, her improper use of English during the hearing, her lack of work experience and her lack of prior significant decision-making.

The girl's attorneys, Richard Narvin and Howard Elbling, applauded the Supreme Court's ruling.

"The whole point of judicial bypass is to get an abortion without talking to parents," Narvin said.

Pro-life advocates were pleased with one portion of the ruling: The justices declined requests from the girl's attorneys and the American Civil Liberties Union to impose a broad appellate review process on judicial bypass cases.

Typically, appellate courts review only narrow issues such as whether judges made errors of law. The ACLU wanted appellate courts to be able to make their own decision based on the facts.

"I think this will allow for more robust judicial bypass hearings, which I think was the intention of the General Assembly. Clearly, the Legislature had in mind there would be a real hearing on maturity and life experiences," said Randall Wenger, who represented the pro-life Pennsylvania Family Institute and Pennsylvania Pro-Life Federation, which filed briefs in the case.

"The court left open the possibility that with other evidence there may have been enough to deny the abortion. The Supreme Court gave a limitation, but it said there is room for trial courts to make their own determination."

Vic Walczak, legal director of the Pennsylvania chapter of the ACLU, said he was pleased with the court's ruling on parental consent but argued that appellate courts should do a broad review because Constitutional rights are involved.

"My understanding is that the vast majority of these (judicial bypass abortions) are approved," Walczak said. "This just really smacks of the (Allegheny County) judge not agreeing with this woman's decision to have an abortion."

Justice Joan Orie Melvin dissented, saying she would have upheld the county judge. She acknowledged that the law does not require parental consent "but such a reading should not be equated with a complete prohibition of any consideration of the reasons for electing not to seek parental consent."

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