Abortion is one of the most politically charged issues in our country. This week Florida's 5th District Court of Appeal issued an opinion regarding the right of a 16-year-old high school student who wanted to obtain an abortion without her mother's knowledge or consent. She filed a petition in Brevard County, Florida, pursuant to Florida's Statute §390.0111(4), which provides an exception to the general requirement that parents of minors be notified either in person or by telephone at least 48 hours before an abortion -- unless there is a medical emergency or dire threat of injury.
The record in the case filed as In Re: Jane Doe reflects that the girl testified that she had no job, was unmarried, lived with her mother, and could not adequately provide for a child. She also testified that she had concluded -- based upon her own Internet research -- that an having abortion posed no greater inherent health risk to her than going to full term.
Florida's Statute §390.0111(4) does require that parents of a minor be notified either in person or by telephone at least 48 hours before an abortion unless there is medical emergency requiring immediate termination of the pregnancy to save the patient's life or avoid substantial and irreversible injury. Alternatively, one doctor can provide the required notice to a second physician who actually performs the abortion by certifying that he or she has notified the parents or at least made a reasonable effort to contact the parents with the name and address of the facility as well as the name of the doctor performing the abortion. This can be done over the telephone, provided the doctor notes in the patient's chart the name of the parent or guardian, telephone number used to contact them, as well as the date and time of the call.
Commonly and for a multitude of reasons, women in Florida less than 18 years of age would prefer not to involve their parents or guardians in the decision to terminate a pregnancy. And Florida's law provides a non-adversarial judicial procedure by which a minor can petition a circuit court for a waiver of the notice requirements. The petition can be filed under a pseudonym or by using just the initials along with a statement confirming that the petitioner is in fact pregnant and wishes to waive the notice requirement. Trial judges are required to advise a minor in this situation that she has the right to have a court-appointed lawyer assist her in the hearing at no cost.
Hearings to waive parental notice are required to receive priority of other court matters, and judges must rule within three business days of the hearing without the petitioner's paying a filing fee or court cost. If more than three days pass without a ruling, the minor can ask for an emergency hearing to be held within 48 hours, and an order must be issued within the next 24 hours. At the hearing the judge must find by clear and convincing evidence that the minor is "sufficiently mature" to decide whether or not to terminate her pregnancy without parental notice. The judge must consider the following:
- The minor's age
- Overall intelligence
- Emotional stability and development
- Credibility and demeanor
- Ability to accept responsibility
- Ability to accept the immediate and long-range consequences of her choice
- Ability to understand and explain the medical risks of an abortion
In addition, the Court must also inquire as to whether or not any "undue influence by another is affecting the minor's decision" and if the minor is the victim of sexual abuse or child abuse. If the child is the victim of sexual abuse by one of her parents, the court shall issue an order authorizing the consent to terminate the pregnancy without a parent's notification and report the evidence of abuse to the appropriate authorities.
Every hearing to obtain an abortion in Florida without notifying a parent is transcribed in writing by court reporters, and judges are required to sign a written order detailing the Court's findings of fact and legal conclusions. Should the court deny a minor's petition to terminate a pregnancy without notice to her parents, she can file an appeal. The appellate court must issue a ruling within seven days of receiving the appeal, but that court of appeal can overrule a trial judge only when there is evidence of an abuse of discretion.
In the case of Jane Doe, the Brevard County Court denied her petition, and she appealed to Florida's 5th District Court of Appeal, who also agreed with the trial court on the basis of the following four reasons:
• She lacked the maturity to evaluate the risk of having an abortion versus carrying a child to term, and suggested she did not know what she was talking about -- in direct contradiction of common knowledge.
• Secondly, she failed to seek medical advice -- which is not a required precondition.
• Thirdly, she did not discuss her situation with clergy or a teacher -- which contradicts the very reason she may have wanted to make this decision privately.
• And lastly, she was under some "undue influence" from the mother of her boyfriend, notwithstanding the testimony at the hearing from the boy's mother, who said she was okay with her decision "either way."
Judge Jacqueline R. Griffin, the court's only female judge, issued one of the most compelling, sensitive and articulate dissents I have read in over 20 years of experience as a children's rights lawyer in Florida. In Judge Griffin's opinion, the Brevard trial court abused its discretion in failing to recognize the important constitution rights that even a 16-year-old has, including her right to privacy in making the decision to terminate her pregnancy. Judge Griffin's dissent quoted the Florida's Supreme Court's decision that pregnancy termination is "one of the most personal and private decisions a person can make" without any indication of influence undue or otherwise. Judge Griffin went even further by apologizing to the young girl for having written about her case in a detailed dissent, thereby inadvertently intruding on her privacy further, but in the hope that her opinion would serve to protect others who may find themselves in similar court battles.