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Arizona courts often approve abortions without parental consent

abortion illustrationMinors who go to Arizona judges instead of their parents for permission for an abortion are given approval nearly three out of every four times they ask.

Since July 2010, when the Administrative Office of the Courts was required to report court orders to the Arizona Department of Health Services, Superior Court judges granted 95 out of 128 petitions, or 74 percent of them.

The Health Department on Aug. 1 published its most recent report, which contains data for 2012. The state recorded a 7.4 percent decline in total abortions from the previous year. There were 13,340 reported abortions, including 463 Arizona residents younger than 18. The courts reported issuing only 42 court orders allowing minors to bypass their parents’ consent.

The report also showed there was a significant spike in court orders in 2012 – to 42 from 32 – even though judges considered fewer petitions – 49 in 2012 compared to 56 in 2011.

“In every state I have studied, or other people have studied, the pattern is the same, and the pattern is that a minor who makes her way to a court and gets before a judge to petition for a bypass is very likely to get her petition granted,” said Helena Silverstein.  She is a Lafayette College professor in Pennsylvania who published “Girls on the Stand,” a 2007 book on her study of parental consent laws in three states.

Fear of being disowned

Very little can be gleaned from the few statistical categories the courts must report because proceedings are held in secret and records are sealed to protect the minor’s privacy, but Silverstein and others say some of the reasons minors go to the court are to prevent their parents from knowing they are sexually active, to avoid parental resistance to the abortion, or they are worried about retribution in the form of physical abuse or getting kicked out of the house.

“A lot of teenagers read a lot more into what their parents are going to do or not going to do than they should,” said attorney John Jakubczyk, former head of Arizona Right to Life.

Jakubczyk said he is often called upon by pregnancy crisis centers, which usually counsel pregnant teens and women from a pro-life position, to provide legal advice to teens who are considering abortion.

Jakubczyk said from his experience he has seen teenagers who feel pressure from friends and boyfriends recommending abortion, and they are mortified by the potential issues their pregnancies will create in their families.

In recent years, though, the most frequent situation he sees is where parents are trying to force their daughter into having an abortion.

Silverstein, for her study, interviewed minors and judges who went through the process, but she also got to sit in on a hearing with the girl’s and court’s consent.

“The judge asked the minor why she had not talked to her parents about being pregnant, and she replied, ‘I don’t want to disappoint them,’” Silverstein said.

She said the judge, who had presided over many bypass hearings, concluded from the reasons the girls gave that many of them were clearly from pro-life families.

“They say things like, ‘My dad will kill me,’ or ‘I’ll be disowned,’” Silverstein said.

Unable to afford a child

In the only published opinion related to Arizona’s parental consent law, the Court of Appeals doesn’t disclose in the 2003 ruling why the girl didn’t ask for her parents’ consent, but the opinion did say she wanted the abortion because she “could not afford to raise a child, and she did not want to be responsible for the child having a bad life.”

The court upheld a lower-court decision to deny the girl’s petition, and the opinion set Arizona’s standard of proof for a minor seeking a court order at “clear and convincing,” the second highest standard of proof in the law. The standard was later written into statute.

To support a court order, the judge must find the minor is “mature and capable of giving informed consent,” and an abortion without the consent of her parents is in her best interests. The hearing takes place in secret in Superior Court.

Maricopa County Superior Court Judge Colleen McNally, presiding Juvenile Court judge, declined an interview request.

Elizabeth Nash, state issues manager with the Guttmacher Institute, which conducts research and analysis on reproductive health policy, said, “Arizona has a very rigorous process.”

Arizona is one of only 13 states that uses the clear and convincing standard.

The U.S. Supreme Court has determined that parental consent laws are constitutional as long as minors are allowed to go to court to get around their parents. Thirty-eight states have a parental consent law and 37 have a judicial bypass provision.

Silverstein, who studied how the laws were put into operation in Pennsylvania, Alabama and Tennessee, said she found some judges who refused to hear such cases, court staff that weren’t aware of the law, judges who added obstacles like appointing a guardian ~ad litem~ for the unborn child, and some who rubber-stamped the petitions.

Pointed toward a courthouse

In Arizona, a minor who makes her way to the courthouse is appointed a lawyer or a guardian ~ad litem~, who represents the interests of the girl during the hearing.

And it is typically the abortion providers that point minors in the direction of the courthouse.

“If they say, ‘I really can’t tell the parent’ or ‘I don’t have a parent,’ whatever the case may be, because really it’s their decision, then we provide the information they need,” said Cynde Cerf, a spokeswoman with Planned Parenthood Arizona. “We can give as much counseling as we can, but at the same time they are their own person and they have to make their own decisions when it comes to their health care.”

Planned Parenthood also offers information about the judicial bypass on its web page as does the Arizona Supreme Court, which provides forms for proceedings and addresses of courthouses.

Silverstein said some abortion clinics actually help minors connect with attorneys, a practice Cerf said Planned Parenthood Arizona doesn’t follow.

“There are many places where the abortion providers have taken the initiative when these laws have gone into effect,” Silverstein said. “They have taken the initiative to facilitate a minor’s path to the court and through the bypass process.”


Teens Seeking Abortion Through Court Order

2010* 2011 2012
Number of Petitions Filed 23 56 49
Guardian/counsel appointed 21 51 44
Orders granting petition 21 32 42
Order denying petition** 0 3 ***
Denied petitions appealed 0 1 ***
Denial affirmed 0 0 0
Denial reversed 0 1 ***

*Data collected only from July 29, 2010, to Dec. 31, 2010.

**Does not include the number of petitions that were withdrawn or otherwise terminated.

*** Indicates fewer than 6.

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