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Interview: How Michigan Law Blocks Youth’s Abortion Access

The “Judicial Bypass” Process Assumes Parents Are the Only Adults to Support, Guide Youth

© 2023 Rebecca Hendin for Human Rights Watch

The US state of Michigan may protect abortion rights in its constitution, but a key group remains in the lurch – people younger than 18. Parental consent to obtain an abortion is mandatory for Michigan’s minors, and those who cannot or don’t want to involve a parent are forced to defend their decision before a judge, an onerous process called a “judicial bypass.” If the judge deems the young person fit to choose an abortion, they grant a judicial waiver.

The ACLU of Michigan, Michigan Organization on Adolescent Sexual Health (MOASH), and Human Rights Watch released a new report on the harms of Michigan’s forced parental consent law. Amy Braunschweiger speaks with Kylee Sunderlin, a Michigan judicial bypass lawyer with reproductive justice organization If/When/How – a close collaborator on the project – about why this process is unnecessary, how it harms young people, and why the law should be repealed.

What is your role when it comes to the judicial bypass law?

When young people call If/When/How’s Repro Legal Helpline, there’s always a lawyer to guide them through the laws in their state and the judicial bypass process if necessary. If they’re from Michigan, they get directly connected to me. I help them through the bypass process, preparing them for the hearing in front of the judge, connecting them with resources like abortion funds, and providing emotional support. I make sure they have a trusted adult they’re relying on. That they have a plan for after care. I try to make the process feel a little less isolating and frightening.

If/When/How’s Repro Legal Helpline provides free, confidential legal services for people’s reproductive lives, including abortion, pregnancy loss, and birth. If you’re being denied an emergency abortion, if you need a judicial bypass, or if you’re being criminalized for a pregnancy outcome, we’re here for you.

Tell me about your clients’ situations. How is it that they need a judicial bypass and can’t just ask their parents?

In some instances, they are young people who will be kicked out of their homes or harmed by their parents if they share that they’re pregnant. Some are in a weird legal limbo. One young person I represented lived with a legal guardian who supported her decision, but because they only had a temporary order of guardianship—not a final order—the clinic wouldn’t accept it as sufficient documentation. Foster parents can’t give consent. But mostly, it’s thoughtful, mature young people who have nuanced reasons for not involving a parent. Some have a parent who recently lost a spouse, and they don’t want to put more stress on their grieving parent. Then there are young people who have very bad relationships with their parents, but they live with their 32-year-old sibling who is caring for them, or they’re close with their aunt or another caring adult who can’t consent.

Importantly, no one I have ever represented has made this decision alone. They always have the support of people they love and trust. But the law limits what our support systems can look like, assuming that only parents and legal guardians will be there to provide love and guidance through the decision-making process. And it ignores the fact that families, biological and chosen, are varied and complex, not always fitting neatly into legal definitions.

What hurdles do young people face to get a judicial waiver?

It’s hard for young people to get to a clinic multiple times. First, judges want to hear that they’ve confirmed and dated their pregnancy with a healthcare provider. And then they have to return for abortion care. These young people have school every day, they often have extracurricular activities, and many also have jobs. This limits the hours available to them. Transportation is an issue. Anonymity is a problem. If they’re leaving school, there’s always a chance that a teacher or counselor will call their parent.

What’s it like for your clients to have to defend themselves in front of a judge?

The vast majority are incredibly nervous. They will always have to share an explanation about why they can’t tell a parent. It’s incredibly painful. Sometimes they have no contact with their parents. Sometimes their parents live in another country and they’re separated by immigration status. And more than once, I’ve represented young people with a parent who has recently died. I can hear the pain and fear and nerves even when I’m asking these questions to prepare them for the hearing.

One of the judges here asks about possibly regretting an abortion later in life. I had a young person who had already been traumatized by going to a crisis pregnancy center – neither she nor the adult accompanying her knew its goal was to discourage abortions. People at the center talked to her about carrying the pregnancy to term, resources for young parents, and adoption. When she said she was certain she wanted to end the pregnancy, they gave her false information about the long-term medical risks related to abortion care.

Based on our conversations, I knew she was confident in her decision. I told her I was sorry someone had treated her poorly and shared medically inaccurate information with her, and I still had to tell her she was going into another scenario where someone will ask a question not based on evidence or science to make her re-think her decision.

How do judges make their decisions?

The legal standard in Michigan, which is essentially the same in every state with forced parental involvement laws, is a two-pronged inquiry as to whether the person is mature and well-informed enough to make this decision on their own, or it is in their best interest to be able to do so.

Every judge is different, but broadly, when assessing maturity and whether someone is well enough informed, they’re considering the young person’s plans—both in terms of schooling and career, as well as contraception—for the future, their knowledge of abortion care and after care, how they will pay for their abortion, and who they’ve relied on during their pregnancy and decision-making process.

This has not been my experience with judges, but a common question asked around the country is, what kind of grades do you get? Young people are asked if they have work experience or a savings account. None of which makes you any more or less capable or “worthy” of being able to make a decision about your body.

For best interest, judges often want to know if young people would face harm, like getting kicked out of their home, if their parents found out an abortion, or if parents expressed a serious opposition to abortion.

Interesting how if someone isn’t considered mature enough to decide to end a pregnancy, it’s implied that the young person is mature enough to successfully carry a pregnancy and be a parent.

That’s the irony.

One of the things that makes me angriest is that, when assessing the best interests standard, judges are required to consider the harm a young person could be subjected to if forced to ask for a parent’s consent to get abortion care. But instead, the question should be: “Is forcing someone to give birth against their will harmful?” The answer is always yes. And when judges deny bypasses, they’re inflicting that harm on the young people coming to them for help. I think about it this way: As a lesbian who used intrauterine insemination [IUI] to very intentionally create a family, I cannot imagine carrying an unwanted pregnancy to term. My pregnancies were painful. My labors were painful. My recoveries were painful. My pregnancies, in spite of being wanted and planned for, were traumatic.

And because a judge is flippant enough to claim that you’re not mature enough to make this decision, or that it’s not in your best interests, they make the decision to put you through the incredible trauma of forced birth? It’s infuriating.

What needs to be done to repeal Michigan’s law requiring forced parental consent for abortion?

This needs to be repealed so young people can get the care they need. But more than that, we need to think about the way we treat young people and their ability to make decisions about their own bodily autonomy. Not just in accessing abortion care, but in accessing contraception and gender-affirming care. People know what’s right for them, and the idea that the state knows better is ludicrous.

Often, people misrepresent opposition to forced parental involvement as if we are pitting young people against parents. But that’s not what these laws are about. Instead, these laws wrongfully insert the state into one of the most private parts of people’s lives and force young people into a system intended to strip them of their bodily autonomy. These laws harm young people and the people who love and support them.

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