In Denying a 16-Year-Old Judicial Bypass, Nebraska Supreme Court Creates Ban on Abortions for Minors in State Custody

Efforts to ban abortion typically take the form of legislative attacks: TRAP (targeted regulation of abortion providers) laws, pre-viability bans, and fetal “personhood” measures are just a few examples of such strategies employed by state legislatures. Increasingly, however, anti-choice judges and administrators are joining in these efforts. Such is the case in Nebraska, where last week a majority of judges on the Nebraska Supreme Court just might have banned abortions for minors in state custody.

The court upheld a lower court ruling handed down in July denying a 16-year old ward of the state an abortion in the tenth week of pregnancy in a decision that may have widespread repercussions.

Just how the majority on the Nebraska Supreme Court pulled off blocking access to abortion care for minors in state custody is a case study in judicial privilege, politics, and power-grabbing. In Nebraska, unemancipated minors under the age of 18 cannot get an abortion unless a doctor first obtains the notarized written consent of both the minor and one of her parents or a legal guardian. The state’s parental consent law, passed in 2011, includes an option for a judicial bypass of the parental consent requirement in three narrow situations: a medical emergency, a showing of abuse or neglect in the home, or if the court determines by “clear and convincing evidence that the pregnant woman is both sufficiently mature and well-informed to decide whether to have an abortion.”

Before 2011, Nebraska required minors to notify a parent or guardian of their plans for abortion. As it turns out, that change from parental notification to parental consent could prove catastrophic for wards of the state.

In a controversial split decision, the Nebraska Supreme Court rejected the request of the 16-year-old ward of the state to waive parental consent requirements to get an abortion, upholding a lower court’s determination that the minor was not mature enough to make this decision on her own. As you can imagine, the facts of the case are heartbreaking. The girl became a ward of Nebraska when a juvenile court terminated the parental rights of her biological parents who were physically abusive and chemically dependent. That left the Nebraska Department of Health and Human Services as the legal guardian of the petitioner and her two younger siblings ages 7 and 9.

In July, she appeared before Douglas County District Judge Peter Bataillon seeking a judicial bypass for an abortion. At the time of the hearing, she was approximately 10 weeks pregnant and had been placed in foster care, along with her two younger siblings, with an evangelical Christian family morally opposed to abortion. But while the minor had been placed in foster care, no judicial proceedings had happened to transfer parental rights over the girl to her foster family, meaning that at all relevant times during her court case she remained a ward with the state as her legal guardian.

As explained in the Nebraska Supreme Court opinion, during the confidential hearing to determine if a judicial bypass would be granted, the petitioner testified that in addition to being unable to financially support a child or “be the right mom that [she] would like to be right now,” the girl feared she’d lose her foster placement. Putting a child up for adoption would be worse for her, she testified, since her foster parents would use her pregnancy and the adoption to tell her siblings she was a “bad person.”

After questioning the girl and telling her “when you have the abortion it’s going to kill the child inside you,” Judge Bataillon denied the girl’s request, ruling that she did not fit any of the exceptions to the state’s parental consent statute. First, while the court didn’t dispute the fact that the girl had suffered abuse by her biological parents, she hadn’t shown her current foster parents were abusive. Furthermore, despite the fact that the minor testified that she effectively raised her younger siblings, was planning to graduate high school early, and had undergone extensive counseling related to her decision to terminate her pregnancy, the court found that she failed to establish that she was sufficiently mature enough to make the decision on her own. That means that if she wanted an abortion, Judge Bataillon ruled, she would need the consent of her foster parents.

The petitioner appealed to the Nebraska Supreme Court, arguing the lower court was wrong to determine she wasn’t mature enough and to require consent from her foster parents—people with no legal authority to consent to an abortion on her behalf. The Nebraska Supreme Court reviews decisions denying a judicial bypass de novo—that means the supreme court can essentially take a fresh look at the facts and the record in the underlying decision and it is not bound as closely to the lower court’s reasoning as in some other cases. But despite that broad grant of authority to review cases, the Nebraska Supreme Court affirmed Judge Bataillon in a decision that functions as an absolute ban on abortion for minors in state care.

It’s impossible to fathom how a court could determine a minor is not mature enough to decide to terminate a pregnancy but is mature enough to become a parent. It becomes even worse when the court shouldn’t have been ruling on a bypass to begin with. On appeal, the petitioner argued that as a ward of the state she had the ability to consent to an abortion on her own. In support of that argument, she relied on regulations of the Department of Health and Human Services that give minors in their custody the right to consent to an abortion on their own and without the consent of the department, but require the department be notified of that decision.

But in contradiction to the plain language of those regulations and case law that affirms case workers are to defer to the pregnant minor in cases of consent for an abortion, the Nebraska Supreme Court ruled it didn’t have to consider that issue because the girl hadn’t made it in quite the right fashion at the lower court. Typically matters on appeal are limited to those issues that are raised at the trial court, meaning that on appeal you can’t just raise new legal arguments or present new evidence. That’s not what happened here. The Nebraska Supreme Court noted the girl and her attorney presented the proper regulations to the lower court during the hearing, but ruled that wasn’t good enough because it wasn’t also in the girl’s original petition for a judicial bypass. According to the majority, the minor should have first received some sort of declaration from a court that her foster parents consent wasn’t needed or that the Department of Health and Human Services was required to defer to her decision to terminate, and since she didn’t she can’t make up for that mistake by arguing about it on appeal. This requirement, the dissent argues, is not just unfair, it is likely unconstitutional. “[T]he pleading for a judicial bypass is a form with blanks and checkmarks. It is intended to be a simple filing that a minor can navigate,” the dissent explains. “The court does not appoint an attorney for the minor until after the minor files the petition. There is no place on this form for a petitioner to raise jurisdictional problems. And requiring a minor to meet the pleading standards of an attorney would likely place unconstitutional burdens on a minor seeking an abortion.”

After holding the minor to the same pleading standards as attorneys, then punishing her for failing to meet them, the justices continued to ignore the law that clearly states minors in state custody have the right to consent to abortion on their own, by stating that because of the 2011 change from parental notification to parental consent those regulations were no longer valid. Since that 2011 change, the department hasn’t issued any new regulations, meaning that the even if those regulations were still valid thanks to this decision they likely aren’t anymore.

With the issue of whether minors in state custody can consent to their own abortions now upended, that leaves the petitioner in this case, and future wards of the state in similar quandaries, with only the possibility of convincing a judge via a judicial bypass proceeding that she’s sufficiently mature enough to make the decision to terminate a pregnancy on her own. And we know how those decisions turn out for the minors involved.

Before a judge can make such a determination on a minor’s maturity they must have some kind of authority to take the case, some legal justification for exercising their power. This grant of power comes from the judicial bypass provision of the statute and confers what the law calls “subject matter jurisdiction.” In the case of Nebraska’s parental consent statute, that subject matter jurisdiction happens when, acceding to the statute, a “pregnant woman elects not to obtain the consent of her parents or guardians.” This statutory requirement that pregnant women elect not to seek parental consent is a “jurisdictional prerequisite,” meaning it is a trigger, so to speak, that grants the court the power do decide whether, and if, a bypass is possible.

But, as the dissent notes, consent was impossible to obtain here, so there is no way she could have elected not to seek it. “To “elect” is to “choose,” the dissent says. “The petitioner did not choose to forgo consent of a parent or guardian; instead, such consent was impossible for her to obtain. Obviously, the petitioner has no parents to consent because the juvenile court terminated their parental rights. And it was impossible for the petitioner to obtain the written, notarized consent of her legal guardian, the Department.”

Without the ability to “elect” not to notify parents or guardians she doesn’t legally have, the girl should not have to seek a bypass at all. But she did, likely the Nebraska Supreme Court surmises, because a provider told her she needed it. Not because the law actually required it. But rather than correct that error, which the court could have done on its review, it punted again.

So just how wrong was the district court’s determination that the foster parents were the girl’s legal guardians for purposes of providing consent her? Well, it would have been hard for the district court to get it any more wrong. “When a court terminates parental rights to a minor ward, the Department makes all the medical decisions for the ward,” the dissent says. “Except one. The Department’s regulations show that it defers to a ward’s decision to have an abortion.” The dissent continues:

[A] foster parent’s rights and responsibilities in caring for a ward of the State “are derivative of and subject to the custodial authority possessed by the [state] agency.” And noticeably, the Department authorizes foster parents to obtain only routine immunizations and medical care for a foster child, under a caseworker’s supervision and direction. This means a foster parent has no authority to give consent for a foster child’s abortion or any other major medical procedure.

If the court believes it has no obligation to correct an obvious error of law in the case of a minor trying to navigate the waters of judicial bypass on her own, what about her legal guardian, the Department of Health and Human Services? Good question. Here the department has been entirely missing in action, “abdicating its role,” according to the dissent. And this is a point the majority exploits to protect Bataillon’s decision from the obvious fact that the court did not have the power to make the bypass determination to begin with. The girl is “in a legal limbo—a quandary of the Legislature’s making,” the dissent notes, and the effect of the majority’s decision is clear. “Because the petitioner never ‘elect[ed]’ not to get the consent of a parent or a guardian to seek an abortion, the court did not have jurisdiction to entertain her request for judicial bypass under § 71-6903(2),” the dissent explains. “I realize that this conclusion means that none of the statutory exceptions apply and that under § 71-6902, the petitioner is prohibited from obtaining an abortion.”

In short, it’s an absolute ban on her right to choose an abortion.

Not surprisingly, the trial court judge has a history of anti-choice sympathies. In 1990, as a private attorney, Bataillon successfully defended 17 Operation Rescue protesters in Omaha against charges of clinic trespassing, by advancing a “necessity defense” and arguing their trespassing was necessary to prevent the “grave evil” of abortion. Scott Roeder tried unsuccessfully to advance a necessity defense during his trial for the murder of Dr. George Tiller. Three years later, Bataillon represented an anti-abortion activist accused of stalking an abortion provider including approaching him at an Omaha airport and telling him, “You deserve to be blown away.”

Not surprisingly, Judge Bataillon also has a history of going easy on felons violating gun laws.

The Nebraska case brings together the worst influences of the law at work here over the most vulnerable: anti-choice lawmakers enacting measures designed to cut off access to care, state agency workers either negligently or willfully neglecting their duties of care to their wards, and ideological judges willing to reverse-engineer legal reasoning to justify dogmatic conclusions with no regard for those who must live with those decisions. At every step in the process, those institutions charged with looking out for the best interests of the minor in this case failed, and in the case of the majority of justices on the Nebraska Supreme Court, failed purposefully and intentionally so as to support their ideological goals of cutting off abortion access to those most in need.

The question we must ask now is, how many more cases like this one are out there?

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  • hoppytoad79

    *facepalms* And does the State plan to pay child support for the baby, since they’re forcing her to carry it to term? [/sarcasm] This is a giant clusterfluck.

    • colleen2

      Odd that the state has no concern about the father. It is as if this girl became pregnant through parthenogenesis. as usual. why if they mention the father it might ruin his life. We can’t have that.


    Thats 1 place I’d be terrified to grow up. It verges on state sanctioned slavery

  • Shan

    And I suppose they believe that the act of giving birth will magically confer upon her the maturity required to decide what to do with an actual baby. I’ll join hoppytoad79 with the facepalming.

    • Ella Warnock

      I think what they really hope is that she’ll give up the kid to a Nice Christian Couple(TM). The holiest and most pious among us are entitled to use others as incubators, after all. 9_9

      • Shan

        Indeed. Even if they’re still children themselves. It’s like having a state-run baby factory.

    • colleen2

      I think they will take the infant from her. The 16 year old is not a ‘person’ to them. She has no legal rights or authority over her own body. She is simply a gestation device at this point.

      • Ella Warnock

        Quite frankly, if you’re a woman in childbearing years, you probably need to be very circumspect about what you share with anyone in the medical community, unless you know your health care providers pretty well. In this case we clearly see how the girl is no longer considered the patient by anyone’s standard.

        • fiona64

          I don’t remember what state it was that decided that all women who had reached onset of menarche but were not yet in menopause were “pre-pregnant” and to be treated as such …

          • Jen

            That would be Arizona. :|

          • fiona64


  • Deardra12

    It is tragic indeed in my opinion that a 16 should become pregnant, but there is NOTHING tragic in refusing to permit abortion to become a substitute for birth control. Abortion is being misused in non-medically required cases by numerous people in the United States.

    The difficult situation confronting the young lady at this time reflects the societal risks imposed on teens today by irresponsible attitudes towards sexuality on the part of American society as a whole which have followed in the wake of the so-called “Sexual Revolution” of the 1960s. Probably our country should return to a standard which places greater value on chastity before marriage and which severely punishes predators who intentionally take advantage of minors.

    • Mandy

      So…you are saying that you agree that the state should be able to FORCE minors to gestate and give birth to children against their will? Because that is what just happened here. This girl is clear in her understanding of what raising children takes and clear in her belief that she is not ready for children and not ready to face scorn at the hands of her foster parents if she chooses to give any child up for adoption. But no. This obviously biased Judge has forced her to use her body in this way, forcing her to take on all risks (mental AND physical), AND all costs entailed during pregnancy and birth.

      I mean it’s all well and good that you want “greater value on chastity before marriage” but how is forcing teenagers to birth children against their will a part of that? Just because YOU personally think abotion should only be allowed for women with medical problems that doesn’t make it so. Abortion is just a legitimate option for a women who gets pregnant and decides she is simply not ready (mentally, physically, OR financially) to be a parent and take on all those responsibilities. Denying teenagers access to abortion and birth control is going to do absolutely NOTHING to encourage them to not have sex before marriage. Teenagers have sex. Get over it. It’s 2013. Not the 1850. We can all admit this is happening. Now it’s up to us to EDUCATE them with ways to prevent pregnancy and show them how much work parenthood is so that they can make their own decisions.

      Decisions that this douchebag of a judge just took away from a teenage girl by forcing her to give birth against her will. Don’t be like this guy. Trust women and girls to know themselves and know when they are ready to become a parent. Don’t force your belief on them.

    • Arekushieru

      So, you’re one of those that thinks abortions didn’t happen before the 1960s? After all, if you think that the ‘sexual revolution’ lead to non-medically necessary abortions, that MUST be what you believe. Must be nice living in that fairy-tale world of yours.

      You want your country to return to a standard that made little girls chattel? Wow, someone needs to LEARN 2 HISTORY. The ONLY ones that were supposed to invest in chastity were WOMEN. Girls as young as 12 were often forced into marriage contracts. And usually no later than 16. There was no corollary for men. OOOPS.

      Back then, victim-blaming was also MORE, not LESS, prevalent. Marital rape was permitted (and considering that most of these women were young GIRLS, iow, MINORS… well…). Your fucking misogyny REEKS.

      Abortion IS birth control no matter how many times it is used. My mother had a single abortion. She used it as birth control. DERP.

      Finally, abortion is not ‘misused’ when it occurs in non-medically required cases. If you want women to have the same rights as everyone else that is. But, of course, I forgot, you’re a MISOGYNIST.

    • fiona64

      You do realize that all forms of contraception *fail,* right?


      And that abortion has been going on across time and culture for *centuries*?


    • HeilMary1

      Over-rated chastity leads to sham gay marriages like that of my ex-neighbor, and what about disfigured spinsters like me who will NEVER get a marriage proposal? The chastity mafia is simply Nazi social Darwinism intended to shame and ostracize born-intersexed gay folks and disabled or unattractive spinsters like me.

    • colleen2

      It is tragic indeed in my opinion that a 16 should become pregnant, but
      there is NOTHING tragic in refusing to permit abortion to become a
      substitute for birth control.

      Yes dear. We understand that she’s just a human cow to you. And we understand that she and she alone is responsible for the fact that some man ejaculated into her vagina. The American Taliban would NEVER dream of holding a male responsible for ANYTHING. Men have rights, women are breeding livestock and they carry the full load of responsibility and support for any children they gestate. And they MUST gestate every zygote or die trying. We get it. What we DO NOT UNDERSTAND is why a creature like you would think the rest of us would agree with that ugly, dysfunctional, demeaning bullshit.

    • BJ Survivor

      Ah, the tiresome meme of pregnancy and childbirth as punishment for the apparent crime – but only for females* – of having consensual or being coerced or forced to have sex.

      *I say “females,” because forced-birthers such as Deardra12 have no problem forcing not only women or adolescents to create and birth children, but would also force 8-, 9-, and 10-year-old children to gestate and birth (or die trying). Forced-birthers are monsters.

  • fiona64

    Wait, wait, wait.

    a lower court’s determination that the minor was not mature enough to make this decision on her own

    She’s not considered mature enough (by an anti-choice judge) to make a decision to terminate a pregnancy on her own … but she’s considered mature enough to remain pregnant, take care of herself and the fetus, etc.


    What a bunch of hooey.

    • jejune

      Remember Mr_Cris?

      The girl should also be happy that she’s HAVING A BABYEEE

  • Amanda Kazarian

    It sucks that this poor girl is underage. Otherwise she could come to California and get the care she needs.

    • BJ Survivor

      Right? I’m so glad I live in California! Parental consent laws have been struck down at the ballots not once, but twice, and the second time by an even greater margin than the first. Medi-Cal covers elective abortions for minors and low-income people, as well as contraception, including the shot and the IUDs, as well as sterilization. When I was underemployed in 2002, I was able to get a Paragard IUD, paid for by the state. I could not have been more grateful and I could not have been happier with that method. I’m now solidly middle-class, married to the man I was dating when I got it inserted, have a career I love, and am happy to pay my taxes so that others can also enjoy the freedoms and choices that California has allowed me.

  • Shan

    The title is quite clear that it’s about minors in state custody and the article quiet clearly states:

    “The girl became a ward of Nebraska when a juvenile court terminated the
    parental rights of her biological parents who were physically abusive
    and chemically dependent.”

  • Arekushieru

    Why should she have fewer rights than adult women (like myself)? Why doesn’t she need to have parental consent to CONTINUE a pregnancy/get pregnant, then? We have already been OVER this, and here I am, once again, pointing out how parental consent laws are merely misogyny in disguise to an ignorant misogynist like yourself.

  • phsra

    Vote! Get these religious fascists out of government. That’s the greatest power we the people have.