Fugivitis on Judicial Bypass and Notification Laws; Real Intent of Both: To Prevent Needed Abortion Access

To start, a summary: Harriet Jacobs (pseudonymous, if you’re not well-acquainted enough with slave narratives to tell) at Fugivitis has put up a pair of posts.

The first is My new job, and the second is Another post about parental notification. They’re important, frightening, infuriating. They are better than my writing about them. Stop reading this post, and go read those posts. If you need more convincing, here are summaries and discussions of Jacobs’s posts, which will hopefully inspire you to actually click through, which you need to do.

Jacobs has a new job, helping female minors who — for whatever reason — can’t tell their parents that they need an abortion get a judicial bypass so they can negotiate notification laws.

This is a subject that’s not just of activist interest to Harriet Jacobs:

After I ran away, I developed an intense interest in medical rights and access. If I got pregnant, as a teenage runaway not in the system, could I get an abortion? It wasn’t an academi subject, and every time I read a newspaper article about a new restrictive law for minors, I got physically ill. I searched out information on DIY abortions, along with DIY dentistry and medical interventions, all things I wasn’t sure I could get if I needed them. I came to the conclusion that I wouldn’t be able to perform an abortion by myself, much like I couldn’t perform dentistry for myself, but if it came down to it, I was pretty sure I could figure out how to fuck up bad enough to go to the emergency room but not bad enough to kill myself. That would be enough to force the hand of doctors, insurance agents, and the law, and I could get the care I needed with hopefully few remaining injuries. I just want to emphasize: I had nights where I forced myself through methodical daydreams about how I would pull teeth out of my own head with pliers, because I felt I had to be mentally prepared to injure myself enough to acquire medical attention without my father’s permission. I had nights where I reviewed where I could most quickly acquire the tools to create a failed abortion, if I had to get up out of bed and run to do it right that minute; I knew, somewhere in me, that not having sex with Flint wasn’t an option if I also wanted food and a bed to sleep in once I turned 18, so I had to be prepared for the consequences of that. So I hope you can understand why I am 100% against restrictions on minors acquiring medical care without parental notification or consent; this is not an academic or moral or legal or ethical issue for me. This is a body memory of where the closest places to buy knitting needles are, and how late those places are open, and who I could potentially con five dollars out of, and what excuse I could give them.

What kind of girls does Jacobs work with?

yeah, these girls are caught in a nasty political intersection of harassment, laws, exploitation, lack of resources, sexism, racism, ageism, classism – but they’re also teenagers. And teenagers are fucking obnoxious. Teenagers show up late. Teenagers get lost. Teenagers wander off when you’re talking to them because they want to get some candy. Teenagers drag their feet and call you a loser when you tell them you’re an hour late because of them and could you just hurry. Teenagers won’t hang up their phone when you’re trying to get them to sign a Very! Important! document. Teenagers interrupt the judge and roll their eyes…

Sometimes teenagers are awesome. We had a girl the other day who was just completely on top of her shit… She was also white and apparently middle-class — had a cell phone, designer clothes, fake tan, was obviously involved in sports or some other kind of fitness (the space and equipment to get fit isn’t free, especially in the winter), and drove a car, meaning she both has access to a car and access to somebody who taught her how to drive, two things that aren’t easy to acquire when you’re underprivileged. From some things she said, she had obviously researched the laws and knew her rights, likely meaning she had access to a computer and the internet, the knowledge to use them, and some degree of privacy. She was comfortable dealing with professional adults asking her very personal questions, comfortable to the degree where I heard raucous laughter coming from the interview room as they yukked it up. That girl had a lot of privilege, and it came through for her when she needed it…

When speaking with the privileged girl, I was struck by how confident, outgoing, and funny she was. I thought to myself, I can see why somebody wanted to be with you. I can see why somebody wanted to have sex with you. And then I think about the girls who are curled up in the corner, who look or are twelve, who do not respond, who do not make eye contact, who are quiet and frightened, and I think, who in the world wanted to have sex with you? I’m not trying to say that these girls don’t have wonderful qualities, that they are ugly or unlovable. What I am saying is, who is looking at a twelve-year-old who is frightened of her own shadow and saying, that’s who I want to stick my dick in?

Statistically, I know who is thinking this, and it’s older men. Predators. The younger the girl is, the more likely that it’s a family member thinking this. And, legally and morally, it’s rapists.

Unfortunately, the rape exception that would provide these underage girls with access to abortions without either notification or judicial bypass — well, it doesn’t work. It was designed not to work.

a girl can’t just say she was raped and get a free bypass. She has to report her rape to the police. And since the police are going to tell your parents anyway, well, in for a penny, in for a pound.

This isn’t the only nasty surprise buried in these supposedly family-friendly notification laws. The whole code has been set up nebulously so that it is poorly defined, making it difficult or impossible to navigate at some points. Jacobs documents the process that a girl seeking judicial bypass might go through, noting places where she was surprised by how legislative or legal constraints place create sometimes immovable barriers. For instance:

Just because a service is required by law doesn’t mean there is anybody available to provide it… Lots of judges refuse to process judicial bypasses. It’s not a requirement; judges are not forced to take every case presented. Many judges have no idea how to process a judicial bypass — they’ve never been trained.

Or:

The law does not clearly state how to establish maternity or paternity. However, the law does clearly state rather extensive punishments for the clinic or doctor who performs an abortion without having established maternity or paternity of the minor. Thus, clinics may enact excessive bureaucratic measures to ensure beyond any legal doubt that a minor’s parents are actually a minor’s legal parents. So, you can (and do) have the situation where a girl’s mother and father come to the clinic with her, but do not have IDs, social security cards, or birth certificates, so the clinic sends the girl to the courthouse, since she is legally unable to notify her parents, who are standing next to her.

Or:

She can appeal the judge’s decision, though, right? Yes, technically. She has the right to a public defender. But, again, the right to a service does not guarantee access to a service. In my state, public defenders refuse to take these cases anymore. Initially, they stopped taking them because they were never really required; most judges give the girls the bypass, unless they feel there’s coercion going on. But once they had stopped taking them, they ran out of defenders who were trained to take bypass cases. Additionally, taking these cases looks bad for them. You’d think a public defender — who may also, in their lifetime, defend people who have committed abhorrent crimes — would not be so concerned with public perception, but when was the last time a building that provided rehabilitative services to sex offenders bombed, or had their therapists shot in church?

So, a girl has the right to a public defender, but if there are no public defenders available, she has no access to her rights.

It all comes infuriatingly down to this single, inescapable conclusion:

If the new law does not explicitly identify standards and procedures, and if it does not explicitly identify service providers, and if those service providers do not actually exist in your community, you now have a pretty good idea of the intentions of the lawmakers. Passing a law that is undefined and inaccessible is passing a law you don’t want to see enforced. When lawmakers passed this notification law, they didn’t want girls to actually be able to acquire bypasses. They didn’t even care if girls notified their parents. If they had cared about these things, the law would have actually addressed what “notification” means, what “parents” mean, and who provides bypasses. It did not address these things, because these were not the things lawmakers actually wanted to see happen. The lawmakers purposefully made a law where it is impossible to ensure compliance, but is entirely possible to be punished for non-compliance. They made it this way because they did not want to see compliance. They wanted to see a full stop…

You can argue that the lawmakers had some kind of noble intentions in mind — I will not buy it, but you can argue that. But you cannot argue that once the law has been in effect and created an inability to comply, and yet remained unchanged. If this was a law about notifying parents, it would have addressed how to notify parents. If this was a law about how to seek a bypass, it would have addressed how to seek a bypass. Since it didn’t address either of those things, this is obviously a law about something else. You only get one guess about what that something else is.

Go read Harriet Jacobs’s post about her new job, and her second post about parental notification.