Despite Parental Notification Law, Court Finds Room for Teens to Protect Privacy When Seeking Abortion

The girl was 17 years old, a good student, headed toward college — and pregnant.

But her attempt to get an abortion without her parents finding out led to an appeals court issuing sharply divided opinions last week about how a key part of the state’s parental-notification law should be applied.

Florida voters in 2004 approved a constitutional amendment that requires parents to be notified before their minor daughters can have abortions. But that amendment and subsequent laws created a process for minors to go to court to prevent the notification.

The process, known as a judicial bypass or waiver, was at the crux of the case involving a teen, identified in court documents as Jane Doe 13-A, seeking to have an abortion without her parents being told. A Leon County circuit judge ruled against the girl’s request, but a three-judge panel of the 1st District Court of Appeal reversed that ruling in a 2-1 decision.

Appeals-court Judge T. Kent Wetherell, in an opinion released Friday, wrote that the girl was a high-school senior who earned A and B grades in advanced classes and had been accepted to colleges. He wrote that she feared she would be kicked out of the house by her deeply religious parents if they found out she was pregnant and planned to have an abortion.

“(As) a practical matter, the denial of a judicial waiver in this case would leave appellant (the minor) with two options: carry an unwanted pregnancy to term or notify her parents of her intent to have an abortion,” wrote Wetherell, who was part of a majority with Judge L. Clayton Roberts. “It is clear from appellant’s testimony that either of these options would irreparably harm the parent-child relationship and would disrupt, if not destroy, appellant’s plans for her future. On the other hand, if the petition is granted, the parent-child relationship may not be harmed at all because appellant’s parents may never find out about the pregnancy or the abortion and appellant will be able to attend college and make a better life for herself than she likely would have had otherwise.”

But appeals-court Judge Scott Makar wrote a 33-page dissent that said the appeals court should give deference to the lower-court ruling that would have led to the girl’s parents being notified. He also indicated that the case was the first time an appeals court had fully explored changes that lawmakers approved in 2011 to the judicial bypass law. Those changes included new legal standards that gave greater deference to the decisions made by circuit judges.

“The purpose of the Parental Notice of Abortion Act is to safeguard the constitutional rights of parents in the care and upbringing of their children by requiring their notification — not consent — before an abortion can be performed on their daughter while concurrently providing exceptions where the minor is clearly and conclusively shown to be sufficiently mature or that parental notification would not be in her best interest,” Makar wrote. “It is a balance of interests, but one presumptively struck in favor of parental notification.”

The issue of parental notification had long been controversial before voters approved the 2004 constitutional amendment. In most cases, courts rule in favor of minors who seek to use the judicial-bypass process. A footnote in Makar’s dissent said that 95 percent or more of minors’ petitions were approved from 2006 to 2011 and that the rate fell to 89 percent in 2012, after the legislative changes.

Though Friday’s opinions do not fully explain the chain of events in the case of Jane Doe 13-A, it appears that they were issued about five months after the case went to court.

Makar’s dissent said the girl sought the judicial waiver Nov. 5 and that a circuit judge ruled against her three days later. The next week, the girl filed an appeal, and a three-judge “emergency panel” was assigned to the case. By law, the panel had to make a decision within seven days.

While the opinions do not detail what happened after that point, the case caused sharp disagreements that went beyond the three-judge panel. Other documents released Friday show that a proposal for the full, 15-member appeals court to hear the broader issues in the case was defeated in a 9-6 vote.

“At stake here is not the minor child Doe’s right to choose to terminate her pregnancy,” wrote Judge Ronald Swanson, who wanted the full court to consider the issues. “All would undoubtedly agree the abortion most probably has taken place and Doe was able to make that choice without requirement that her parents be informed of the decision. At this point, what is at stake is one of the foundational principles of judicial restraint: that an appellate court will not substitute its view of the facts for that of the trial court when the trial court enjoys the vantage point of observing the demeanor and credibility of the witnesses.”

But in the case of Jane Doe 13-A, Wetherell and Roberts took issue with the conclusions reached by the circuit court, such as whether the girl was mature enough to make the abortion decision. Wetherell wrote that appeals courts are not required to “rubber-stamp” the lower court decisions.”

–Jim Saunders, News Service of Florida