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Abortion opponents heartened by Pennsylvania high court ruling

| Saturday, Dec. 24, 2011

Abortion opponents are hoping a state Supreme Court decision clarifying how minors can get judicial approval for abortions will encourage county judges to scrutinize such requests.

The court ruled on Thursday that a 17-year-old's decision not to ask her mother's permission for an abortion was not a valid reason for Allegheny County Common Pleas Judge Philip Ignelzi to deny her the procedure in March 2010.

The 6-1 ruling was the court's first public decision on the issue of "judicial bypass" as part of the state's Abortion Control Act. The law states that if a pregnant girl younger than 18 doesn't get parental consent, a judge can authorize an abortion after determining she's "mature and capable of giving informed consent."

Although the court ruled that Ignelzi improperly denied the girl's request, in part, because there was no parental notification, the justices said county judges' decisions should be given deference. Statistics on how often judges grant abortions are not available because the cases typically are sealed.

Ignelzi did not return a call seeking comment.

"I think the court left the door open. They're saying there are other factors that go into this -- that it's not just a rubber stamp," said Randall Wenger, who represented the anti-abortion Pennsylvania Family Institute and Pennsylvania Pro-Life Federation, which filed briefs in the case.

"I think there's been a general assumption that you have to grant judicial bypass," he said. "Clearly the Legislature had in mind that there would be a real hearing on maturity. The (Supreme Court) gave a limitation, but it said there is room for trial courts to make their own decision."

In writing for the majority, Justice Max Baer said "the trial court's firsthand observation of the minor's demeanor and testimony is an invaluable tool in determining whether the minor's assertions of maturity and capacity are worthy of belief."

Vic Walczak, legal director of the Pennsylvania chapter of the American Civil Liberties Union, filed briefs in the case arguing that appellate courts should make determinations without deference to lower courts. He disputed that judicial- bypass hearings are a rubber stamp.

"Typically, judges review these cases and take them very seriously," Walczak said. "The judges make sure they're satisfied, and it's my understanding the vast majority are approved."

The court did not take up the issue of whether Ignelzi should have recused himself from the case. After he denied the girl's petition, her attorney sought reconsideration and asked the judge to remove himself because anti-abortion groups endorsed his 2009 campaign.

"(Recusal) would depend on the nature and level of the endorsements," said Shira Goodman, deputy director for Philadelphia-based Pennsylvanians for Modern Courts. "It's hard to say that a judge should have recused himself. ... The judge would say that, of course, it doesn't make a difference, but the public thinks that it does. It's actual fairness versus the perception of fairness."

University of Pittsburgh law professor John Burkoff said the court's opinion isn't a win for either side.

"What they're saying is that the trial judge has the discretion to make the decision," Burkoff said. "The key point is that if they would have let (Ignelzi's) decision stand, it would have abrogated the point of judicial bypass. The court was being very careful. They basically said: 'We don't need to decide other factors because they're not before us.' "

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