This is absolutely heartbreaking. The Nebraska Supreme Court on Friday denied an abortion to a 16-year-old in the foster care system. Nebraska has a parental consent law, and judicial bypass is allowed only if there is a medical emergency, abuse or neglect at home, or “clear and convincing evidence that the pregnant woman is both sufficiently mature and well-informed to decide whether to have an abortion.” A lower court judge denied the girl judicial bypass, telling her, “when you have the abortion it’s going to kill the child inside you.” Seriously. Then the state Supreme Court, made up of six men and one woman, upheld the ruling:
The court majority ruled that the girl, identified only as Anonymous 5, was not mature enough to make the decision herself.
But two judges, in a dissent, said Nebraska law leaves the girl without an avenue to get an abortion.
“The Legislature has assumed under (the law) that all minors will have a parent or guardian who can give consent,” Judge William Connolly wrote. “As this case illustrates, however, that is not always true.”
Connolly said the girl involved in the case does not have a parent or guardian to give consent for an abortion, other than the State Department of Health and Human Services.
But state regulations bar the department from either giving or withholding consent for a ward to get an abortion.
“She is in legal limbo — a quandary of the Legislature’s making,” Connolly said.
So apparently the girl’s not mature enough to get an abortion but she is mature enough to have a child?
Additionally, the court ruled there was no abuse or neglect at home, even though the girl was in the foster care system because she’d been taken away from her abusive parents.
This is an absolutely disgusting legal loophole that totally screws young people in the foster care system. And this ruling is a major, dangerous bit of judicial activism. As Jessica Mason Pieklo points out at RH Reality Check, the ruling effectively bans abortion for wards of the state, since they can’t get permission from HHS and the anti-choice court can deny judicial bypass.
Sadly, this is how abortion is getting effectively banned in the states: a combination of extremely restrictive laws with very limited exceptions and courts stacked with anti-choice judges to block folks from their last avenue for accessing a legal medical procedure. This reality just became especially terrible for foster children in Nebraska.