Florida Law: Judicial Bypass and In re: Jane Doe

English: Florida's Fifth District Court of App...

English: Florida’s Fifth District Court of Appeal Building, Orange Ave. and Beach St., Daytona Beach, Volusia County, Florida. (Photo credit: Wikipedia)

A recent case decided by Florida’s Fifth District Court of Appeal and captioned In re: Jane Doe provides some insight into the judicial bypass mechanism in Florida.

If you are unfamiliar with the term “judicial bypass,” the term describes an accelerated process through which a pregnant woman may obtain a determination from a judge that she may procure an abortion without having to comply with otherwise-applicable restrictions.  The United States Supreme Court requires that restrictions on minors procuring abortions include such a mechanism as a means of ensuring that the minor is not “unduly burdened” by the general requirement.  See Casey v. Planned Parenthood, 505 U.S. 833, 899 (1992) (“Our cases establish, and we reaffirm today, that a State may require a minor seeking an abortion to obtain the consent of a parent or guardian,
provided that there is an adequate judicial bypass procedure.”).

In this instance, the 16-year-old girl seeking an abortion was afraid that her mother would disown her and therefore did not want to comply with the parental notification requirement imposed on minors under Florida law.  She had not discussed the prospect of procuring an abortion with trusted adults, and the one adult she had approached–her boyfriend’s mother–appears to have told her, without comment, to call an abortion facility for more information.  It seems well within the authority of the trial court to reach the conclusion, under those circumstances, that the 16-year-old girl lacked the maturity to make the decision without input from an adult.  The Fifth DCA affirmed, meaning that the girl must now demonstrate parental notice prior to procuring an abortion.

The law puts a great deal of discretion into the hands of judges when it comes to judicial bypass.  These are inherently soft considerations, ultimately leading to a judicial determination that is based on subjective factors difficult to discern from reading a transcript.  This much should be clear from the statute itself, which requires the judge considering the case to determine whether the “minor is sufficiently mature to decide whether to terminate her pregnancy . . . without the notification of a parent or guardian,” based on:

1. The minor’s:
a. Age.
b. Overall intelligence.
c. Emotional development and stability.
d. Credibility and demeanor as a witness.
e. Ability to accept responsibility.
f. Ability to assess both the immediate and long-range consequences of the minor’s choices.
g. Ability to understand and explain the medical risks of terminating her pregnancy and to apply that understanding to her decision.
2. Whether there may be any undue influence by another on the minor’s decision to have an abortion.
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