On December 22, 2011, in a case of first impression,1 the Pennsylvania Supreme Court vacated a trial court’s denial of a minor’s judicial bypass application—an application to obtain an abortion without parental consent. In so doing, the court decided two issues of significance to both sides of the abortion debate: the standard of review on appeal and the relevance of a minor’s failure to seek parental consent in determining whether to grant a judicial bypass. First, the court held that appellate courts must deferentially review—under an abuse of discretion standard—a trial court’s denial of a minor’s petition for judicial bypass. Second, the court held that a trial court may not rely on a minor’s failure to seek her parents’ consent when determining whether she has the requisite maturity and capacity to consent to an abortion.
This article provides background information on Pennsylvania’s judicial bypass statute and summarizes both the trial court’s order and the Pennsylvania Supreme Court’s decision that vacated it in In re Jane Doe.2 It concludes with an assessment of the case’s significance.
I. Pennsylvania’s Judicial Bypass Statute
The United States Supreme Court has interpreted the Fourteenth Amendment’s Due Process Clause to require that states allow “mature” minors “capable” of giving informed consent the opportunity to terminate their pre-viability pregnancies without parental permission.3 Like many states wishing to protect pre-born life to the fullest extent permitted by the Court, Pennsylvania generally requires minors seeking an abortion to obtain the consent of a parent,4 but allows for “judicial bypass” of the parental consent requirement for minors found to be both mature and capable of consenting to an abortion.5
Pennsylvania’s judicial bypass statute allows a minor to petition a court for an abortion when both her parents refuse consent, or when she chooses not to seek parental consent. To obtain judicial authorization for the abortion, she must demonstrate two things: the maturity and capacity to give informed consent to the abortion, and actual informed consent.6 Notwithstanding a finding of immaturity, the statute directs trial courts to grant petitions if they are in the “best interests” of the minors.7 To make these determinations, the statute directs trial courts to consider evidence regarding “the emotional development, maturity, intellect and understanding of the pregnant [minor], the fact and duration of her pregnancy, the nature, possible consequences and alternatives to the abortion and any other evidence that the court may find useful in determining whether the pregnant [minor] should be granted full capacity for the purpose of consenting to the abortion or whether the abortion is in the best interest of the pregnant [minor].”8 The statute permits appeals when petitions are denied but does not specify what standard of review appellate courts should exercise.9
II. The Trial Court’s Order
On or about March 19, 2010, a 17-year-old Pennsylvania girl filed an application for judicial authorization of an abortion pursuant to Pennsylvania’s judicial bypass statute.10 The trial court held a confidential hearing regarding the application on the same day, and the girl testified she had been pregnant for ten weeks.11 She testified that she had seen a physician who had explained the abortion procedure, the risks associated with it, and the available alternatives of adoption and raising the child herself. The girl testified that, having considered this information, she desired to proceed with an abortion.12
A high school senior with average grades, the girl informed the court that she planned to attend college and hoped to become a lawyer.13 The girl still lived with her mother, on whom she depended for financial support.14 According to her testimony, she lacked the fiscal means to support a child, and having to care for one would frustrate her educational plans.15 In her own words, she was simply “not physically, mentally[,] or emotionally ready for this baby.”16
The minor further testified that she had not attempted to procure her mother’s consent for the abortion because she feared that her mother would “throw her out.”17 On further questioning, she revealed that both her brother and her sister had children through unplanned pregnancies and were struggling financially to provide for those children. Her mother was “happy” about those children, she explained, because unlike her, her siblings “were old enough and actually on their own already to have children.”18 Finally, the girl testified that although she knew that agencies could assist her in locating adoptive parents for the child, the abortion provider had not offered her printed materials listing such agencies.19
The trial court initially reserved judgment because of the provider’s failure to give the girl printed materials regarding adoption agencies, which the court thought Pennsylvania law required.20 But after the girl reviewed those materials during a recess, the court denied her application, finding that she lacked the requisite maturity and capacity to consent to an abortion, and that an abortion would not be in her best interests.21
In its order, the court cited several reasons for its findings. As to the girl’s intelligence and experience, the court noted her average high school grades, improper use of English at the hearing, lack of work experience, unfamiliarity with personal finances, and lack of prior significant decision-making.22 The court further found that the provider’s failure to timely furnish printed materials regarding adoption directly impacted the girl’s capacity to give informed consent.23 The court also relied significantly on her failure to seek her mother’s consent, discrediting her testimony that she feared her mother would “throw her out” if she learned of the pregnancy.24 The court reasoned that her mother had already accepted the unplanned pregnancies of her siblings and that she could have displayed maturity by overcoming her fear and seeking the counsel of her mother. Failing to seek her mother’s approval, the court reasoned, demonstrated a lack of the type of sound judgment needed to consent to an abortion.25 Finally, the court found that an abortion would not be in the girl’s best interests and denied her application.26
The minor’s attorney then moved for reconsideration and sought to have the trial judge recused from hearing the motion because a pro-life organization had endorsed his candidacy for judicial office.27 The trial court denied both motions.28 On appeal, the superior court affirmed on the basis that the trial judge had not abused his discretion in denying the judicial bypass application.29 The Pennsylvania Supreme Court then granted review.
C. The Pennsylvania Supreme Court’s Opinion
In a 6-1 decision, the Pennsylvania Supreme Court vacated the order of the superior court that had upheld the trial judge’s decision. While conceding that the case had become moot (the minor was no longer pregnant30), the court nevertheless proceeded to the merits of the case after applying an exception to the mootness doctrine.31 The court first confronted the issue of what standard of review appellate courts should apply when reviewing a trial court’s determination that a minor lacks the necessary maturity and capacity to consent to an abortion. As noted earlier, Pennsylvania’s judicial bypass statute provides for the appeal of denials but does not specify a standard of review for those appeals. Both the appellant and amicus curiae ACLU urged that a de novo standard should apply,32 but the Pennsylvania Attorney General (whom the court had invited to defend the trial court’s order) and several pro-life amici curiae advocated a more deferential abuse of discretion standard.33
On the standard of review issue, the court sided with the Attorney General and cited three reasons for its holding. First, a trial court’s maturity and capacity determination does not concern a pure question of law, but rather constitutes a fact-intensive inquiry deserving substantial deference.34 Second, the court previously had declined to adopt a de novo standard of review in “other appeals where constitutionally protected family concerns are implicated,” such as the appeals of cases involving child custody matters and the involuntary termination of parental rights.35 Third, as the court noted, “[S]ome states which have employed a de novo standard of appellate review in judicial bypass cases have done so as part of the legislative scheme.”36
Although it accorded a great degree of deference to the trial court’s decision, the Pennsylvania Supreme Court nevertheless ultimately concluded that the trial court abused its discretion when it considered the appellant’s failure to seek parental consent as evidence of her lack of maturity and capacity. The court reasoned that the judicial bypass statute expressly allows minors to get an abortion without seeking the consent of their parents as long as they obtain judicial authorization.37 Thus, as the court observed, the purpose of a judicial bypass hearing is to afford minors who have not obtained—or even sought—the consent of their parents an independent determination of whether they have the maturity and capacity to give informed consent to an abortion.38 If trial courts could premise their denials of authorization on the failure of minors to seek the guidance or approval of their parents, the legislature’s policy choice not to require parental consent would be frustrated, the court explained.39
For the foregoing reasons, the Pennsylvania Supreme Court vacated the order of the superior court that had upheld the trial judge’s decision.40 Even though the trial judge had impermissibly considered the appellant’s failure to seek her mother’s consent, the court did not reverse the order because the trial court had also relied on a variety of other factors.41 The court expressed no opinion as to the correctness of the trial court’s overall determination that the appellant lacked the maturity and capacity to consent to an abortion.42
In a separate concurring and dissenting opinion, Justice Orie Melvin agreed that appellate courts must review judicial bypass determinations for abuses of discretion, but disagreed with the majority’s conclusion that the trial court abused its discretion in this case. Justice Melvin argued that the trial court had considered the reason for the appellant’s choice not to seek her mother’s consent, not the fact of her failure to seek her mother’s consent.43 Although Pennsylvania’s judicial bypass statute allows minors to obtain abortions without parental approval, the statute also empowers trial judges to consider any evidence they find “useful.”44 Certainly the reasons a minor chooses not to seek parental permission for an abortion bear on her maturity and capacity to consent to an abortion, Justice Melvin explained.45 She argued that a minor who fears informing her parents about her pregnancy because of the potential for domestic abuse is more mature and capable of consenting to an abortion than one who simply desires secrecy or the avoidance of embarrassment.46
D. Significance of this Case
Despite its technical holding in favor of the appellant, this case is a modest win for pro-life advocates because of its command that appellate courts deferentially review judicial bypass denials. Since 1982 only a few judicial bypass petitions have been denied in Pennsylvania, and many pro-life groups feared that the state’s bypass law had led to “rubber stamp” secret teen abortions.47 By clarifying that judicial bypass determinations will be accorded great deference on appeal, pro-life groups anticipate that the Pennsylvania Supreme Court’s ruling will encourage trial judges to undertake a more thorough review of judicial bypass petitions without feeling pressure to approve them mechanistically.48 Although the court specified one way in which trial courts may not make their determinations, it nevertheless stated that those determinations carry weight on appeal.
From a national perspective, states with similar judicial bypass statutory regimes may look to this decision—and the decisions of other states that have considered the issue—when determining what level of appellate review to apply. With the high courts of Alabama,49 Mississippi,50 and now Pennsylvania having decided to defer to trial courts’ maturity and capacity determinations, this case may mark a continued national trend toward rejecting the notion that all teenage girls are categorically “mature” enough to get abortions without involving their parents in the decision.
* Steven J. Willis is a professor of law at the University of Florida, where he teaches family law, among other courses. He serves as the faculty advisor to the school’s Federalist Society student chapter.
** Jordan E. Pratt is a third-year law student at the University of Florida. He is president of the school’s Federalist Society student chapter.
1 Never before had the Pennsylvania Supreme Court publicly ruled on a judicial bypass determination. See Bobby Kerlik, Pa. Supreme Court Upholds ‘Judicial Bypass’, Pittsburgh Tribune-Review (Dec. 23, 2011), available at http://www.pittsburghlive.com/x/pittsburghtrib/news/regional/s_773405.html; Steven Ertelt, Pennsylvania Court Rules on Rubber Stamp Teen Abortions, LifeNews.com (Dec. 26, 2011), available at http://www.lifenews.com/2011/12/26/pennsylvania-court-rules-on-rubber-stamp-teen-abortions/; Bobby Kerlik, Abortion Opponents Heartened by Pennsylvania High Court Ruling, Pittsburgh Tribune-Review (Dec. 24, 2011), available at http://www.pittsburghlive.com/x/pittsburghtrib/news/s_773601.html.
2 In re Jane Doe, J-108-2010 (Pa. 2011), available at http://www.pacourts.us/OpPosting/Supreme/out/J-108-2010mo.pdf.
3 Planned Parenthood v. Casey, 505 U.S. 833, 899 (1992) (plurality); Planned Parenthood v. Ashcroft, 462 U.S. 476, 491–93 (1983) (plurality opinion); Bellotti v. Baird, 443 U.S. 622, 643 (1979) (plurality); Planned Parenthood v. Danforth, 428 U.S. 52, 74 (1976).
4 18 Pa.C.S. § 3206(a).
5 Id. § 3206(c).
6 Id. § 3206(c).
7 Id. § 3206(d).
8 Id. § 3206(f)(4).
9 Id. § 3206(h).
10 In re Jane Doe, J-108-2010, at 3 (Pa. 2011).
14 Id. at 4.
15 Id. at 4-5.
16 Id. at 5.
17 Id. at 4.
20 Id. at 5.
22 Id. at 6-7.
23 Id. at 6, 7.
24 Id. at 5-7.
25 Id. at 7.
26 Id. at 8.
29 Id. at 8-9.
30 After the trial court’s ruling, at least one of the girl’s parents consented to the abortion. See Ertelt, supra note 1.
31 Doe, J-108-2010 at 9.
32 Id. at 10-11, 11 n.11.
33 Id. at 12, 12-13 n.12. The pro-life amici included the Pennsylvania Family Institute and the Pennsylvania Pro-Life Federation. Id. at 12 n.12.
34 Id. at 13.
35 Id. at 14.
36 Id. at 15.
37 Id. at 19.
39 Id. at 20.
40 Id. at 22.
41 Id. at 21.
42 Id. at 22.
43 Id. at 4 (concurring and dissenting ops.), available at http://www.pacourts.us/OpPosting/Supreme/out/J-108-2010codo.pdf.
44 Id. at 3 (majority op.).
45 Id. at 4.
46 Id. at 4 n.1.
47 See Torsten Ove & Marylynne Pitz, Teen Rights to Abortion in Dispute, Pittsburgh Post-Gazette (Feb. 18, 2011), available at http://old.post-gazette.com/pg/11049/1126272-455.stm.
48 See Ertelt, supra note 1; see also Kerlik, Abortion Opponents Heartened by Pennsylvania High Court Ruling, supra note 1.
49 See Ex Parte Anonymous, 806 So. 2d 1269 (Ala. 2001) (declining to adopt de novo appellate review of maturity and capacity determinations).
50 See In re R.B., 790 So. 2d 830 (Miss. 2001) (adopting an abuse of discretion standard of appellate review).