Little Words, Constitutional Consequences

HB 723, authored by Rep. Phil King (R-Weatherford), is on the agenda for the Texas House Committee on Judiciary & Civil Jurisprudence for this Tuesday, April 14, 2015. Details at the end on exactly when and where to find the room, and how to register as opposing the bill and/or register to testify against it, and on how to follow along on social media and live stream.

Been wondering when you would need to put on your orange and head back to the capitol? This is it. Charge your phones, bring snacks, & suit up!

HB 723 targets an exceptionally vulnerable population—pregnant teens who’ve been abused, abandoned, or victimized.

It is also unconstitutional. If it were to pass, the State of Texas would become engaged immediately in an expensive lawsuit would waste tax dollars asking the Supreme Court to say what they’ve already said.

Republicans sure do like to waste tax dollars these days.

HB 723 makes several changes to the judicial bypass procedure that would, if passed, make it the most restrictive law governing minors’ access to abortion in the country. Another #1 that Texas does not want.

Right now, a minor seeking an abortion who does not have the consent of a parent (or legal guardian or managing conservator) can go before a judge to bypass that requirement and obtain permission for the procedure, hence the term judicial bypass.

The current status of the law, Sections 33.003(e) and (i) of the Family Code, says that a judge may grant the minor a bypass if:

The court shall determine by a preponderance of the evidence whether the minor is mature and sufficiently well informed to make the decision to have an abortion performed without notification to either of her parents or a managing conservator or guardian, whether notification would not be in the best interest of the minor, OR whether notification may lead to physical, sexual, or emotional abuse of the minor. If the court finds that the minor is mature and sufficiently well informed, that notification would not be in the minor ’s best interest, OR that notification may lead to physical, sexual, or emotional abuse of the minor, the court shall enter an order authorizing the minor to consent to the performance of the abortion without notification to either of her parents or a managing conservator or guardian and shall execute the required forms.

Rep. King changes one small word with HB 723. OR becomes AND.

That would mean that even if a court found the minor to be mature and sufficiently well-informed, and that notification would not be in the minor’s best interest, the minor would also have to show that notification of a parent would lead to physical, sexual, or emotional abuse.

Since the parent/guardian/managing consevator (I’ll just use parent for brevity from now on) is the only person required to be notified, that’s the person the minor must show would be abusive.

Huge problems. Problems like:

What if the minor is mature, sufficiently well-informed, and notification would not be in the minor’s best interest because notification would be impossible, because the mother left for Nevada with her new husband, never told the minor the identity of the father, and the minor just went to live with a friend and doesn’t have a legal guardian? In such an instance, and such instances happen, the judge has no discretion. The judge must turn down the request because there’s no way notification could lead to abuse.

What if the minor isn’t mature at all? What if the pregnancy is the result of rape, and the victim is an 11-year-old child in fifth grade who doesn’t understand that the act of rape caused the pregnancy. Both the father and mother believe that all pregnancies are a gift, and even in cases of rape or incest, do not believe in abortion. They beat their older child who got pregnant and had an abortion. Can a fifth grader minor who does not yet understand reproductive biology be called mature? If not, the judge cannot grant the bypass under Rep. King’s change to the law.

This law creates such a high threshold, such an insurmountable barrier, that the practical result is that almost no minors will be able to obtain judicial bypasses.

And that’s what makes it unconstitutional. Laws requiring minors to obtain parental consent for abortions have been ruled constitutional only when there is a procedure for a minor to bypass the consent requirement, per the Supreme Court’s decision in Bellotti v. Baird. 

That OR to AND change is not the only change Rep. King would make to the law. HB 723 also changes the law so that the attorney representing the minor cannot also serve as the guardian ad litem, something the current law allows.

The cynic in me thinks that this part of the bill is about the fact that, through groups like Jane’s Due Process, many minors seeking bypasses have attorneys who represent them for free, pro bono. Judges tend to appoint friends, a.k.a. campaign donors, as guardians ad litem, as a way to them pay back for their donations.

The requirement also makes these cases more expensive, because the state has to pay for that appointment, not the minor.

There they go again, those Republicans, spending your tax dollars for no good reason.

Keep in mind that the bypass procedure is just one of several impediments a minor faces when seeking an abortion in Texas. The waiting periods, the repeat visits to the clinic, and the limited and still-shrinking number of clinics where abortions can be performed legally all make it exceedingly difficult for a minor to exercise the constitutionally-guaranteed right to an abortion.

If you can go to Austin Tuesday:
The committee will meet at 2 pm in E2.026 (find this room on the 2nd floor of the capitol extension – on this map, it is the central meeting room on the northwest corner of the central court/open air rotunda).

It is likely, especially if many of us show up, that things could go late. And, the 2 pm start time is an estimate. They could push back the start time.

We’re inside the 72-hours, but perhaps if you call right away, you could still get help if you need accommodations. From the committee notice:

“NOTICE OF ASSISTANCE AT PUBLIC MEETINGS Persons with disabilities who plan to attend this meeting and who may need assistance, such as a sign language interpreter, are requested to contact Stacey Nicchio at (512) 463-0850, 72 hours prior to the meeting so that appropriate arrangements can be made.”

You can stay, of course, and you can even register to give testimony on the bill. Testimony will likely be limited to two minutes, so prepare in advance.

You can also just do a quick stop at the capitol to sign in opposing the bill. Putting your opposition on the record is important. NARAL Pro-Choice Texas has instructions on their website for doing so. Load up your car, round up friends and get on the bus, do whatever you can to help people participate and register their dissent.

If you cannot go to Austin Tuesday:
Currently, the only way to register is to be AT the capitol complex, which just isn’t practical for most Texans. There are still ways, however, to participate in this hearing and help amplify our opposition to this bill.

One, you can watch the live stream of the hearing so you can tweet along or take notes. You’ll see a link to live committee broadcasts in the upper right corner of this page on the Texas Legislature Online site. You’ll want to select the Judiciary and Civil Jurisprudence Committee. Remember, if you can see people moving but you can’t hear anything, it could mean that the sound isn’t broadcasting because no one is speaking. Check to be sure your computer isn’t muted, but if it is not, it is likely just that there’s no sound to broadcast.

Two, follow along on social media. #trusttx will be the hashtag to follow. If you can watch and life-tweet, you can help those who can’t be online to watch the live stream, and you can help create a permanent record of organized opposition to the bill.

Three, you can call members of the committee to tell them you are opposed to the bill, and your own representatives (if they are not on the committee), to ask them to work to make it possible for Texans to sign in as opposed or in support of a bill remotely, so that access to democracy isn’t limited to people who can drop everything and go to the capitol in Austin.

The Judiciary and Civil Jurisprudence Committee  members are:

Chair: Rep. John T. Smithee
Vice Chair: Rep. Jessica Farrar – thank her for opposing HB 723
Rep. Travis Clardy
Rep. Ana Hernandez – thank her for opposing HB 723
Rep. Jodie “Rape Kits Clean You Out” Laubenberg
Rep. Richard Peña Raymond – thank him for opposing HB 723
Rep. Mike Schofield
Rep. Kenneth Sheets
Rep. Senfronia Thompson – thank her for opposing HB 723

Look up your senator and representative at this link to call to talk about getting remote access to the registration system for stronger participatory democracy.

#trusttx