A juvenile who wants an abortion without the permission of a parent will have a tougher time convincing a judge to grant it, under a ruling from the Arizona Court of Appeals.

In a 3-0 ruling filed Aug. 19, Judge Ann A. Scott Timmer wrote that a juvenile seeking “judicial bypass” of the parental permission provision of ARS 36-2152 must provide “clear and convincing evidence” that “she is sufficiently mature and well-informed to make her abortion decision, in consultation with her physician, independently of her parents’ wishes.”

The standard of “clear and convincing” puts a greater burden on a juvenile than the standard of “preponderance of the evidence” ordinarily used in civil cases. “Preponderance of the evidence” means putting the arguments of both parties on a scale and seeing which way the evidence tips. Black’s Law Dictionary (Sixth Edition) defines “clear and convincing proof” as “that proof which results in reasonable certainty of the truth of the ultimate fact in controversy.”

Judge Timmer wrote that there are several reasons for putting the greater burden on the juvenile:

“…Because the minor controls the presentation of evidence, the court will likely not receive evidence disputing either the minor’s ability to make a mature, well-informed abortion decision, or that an abortion is in the minor’s best interests. Thus, in order to avoid making judicial bypass a mere pass-through proceeding, and to maximize the court’s ability to make a reasoned decision within a compressed time frame, the minor must prove her entitlement to judicial bypass by clear and convincing evidence.”

“Like the termination of medical treatment, a judicial bypass proceeding involves intensely personal interests. Moreover, any decision authorizing an abortion will have irreversible consequences unless the minor chooses not to proceed.”

“…The heightened standard is warranted because the judicial bypass procedure impacts a parent’s opportunity to participate in making a significant decision involving his or her minor daughter.

The case arose out a March 7, 2003, petition in juvenile court from a 16-year-old girl, identified in court documents only as “B.S.,” who believed she was 8 1/2 weeks pregnant and wanted authorization for an abortion without permission from a parent or guardian. The juvenile court denied the petition at the conclusion of a hearing on March 10. On March 12, the state Court of Appeals heard oral argument in the case, denying the petition the same day and stating that a detailed opinion on the ruling would follow. —