The markers of maturity can shift with whatever evidence is presented to the judge at hearing. In a chapter of her most recent book About Abortion: Terminating Pregnancy in the 21st Century, Carol Sanger has reported on a number of cases where opposite evidence result in the same determination, namely that a minor is not entitled to consent to an abortion, for example, because her answers were monosyllabic and so seemed unconsidered; because her answers were multi-syllabic and seemed rehearsed; because she relied on material factors to ground her decision, like not being able to go to college if she had a child; because she was unable to ground her decision in some concrete reason why a child would impede her life decisions. Girls who present evidence that the plan they have for their life would be destroyed by a child are considered calculating; girls who present no such evidence of calculation seem to have made a decision on a whim. In a hearing notionally enacted to test a minor’s maturity, attorneys may be appointed for the fetus and may name their ‘client’ in the proceedings in certain states, including Florida and Alabama. Sexual histories are combed through. A girl may be quizzed on how she could have arrived at the decision to seek an abortion if she is religious, and pressed on her spiritual commitments. In a stunning display of circularity, some examples of reasons why bypasses have been refused include that simply becoming pregnant by accident proves a girl’s immaturity, as does the precariousness of a girl’s financial position.
Contrastingly, most states allow a minor to consent to all medical care for their own (born) child, creating a strange nesting of rights within the same individual, who can seemingly be presumed to maturely conceptualise and weigh complex medical choices for a separate individual, but not for themselves. Even more unsettling is the degree to which pregnant minors may consent to other medical care during pregnancy, including consenting to procedures which are far more medically risky than abortion, including surgical delivery (or when compared with early abortion, any form of delivery).
Perhaps the greatest complication in the conceptual weighting engaged in by the court in a bypass proceeding is the fact that unlike many judicial refusals, a rejection of a minor’s application will not preserve the status quo, a scenario the court was not complicit in bringing about and responsible for; rather, a rejection of a minor’s application here sets her on a trajectory where she must bear a child she does not want and which constitutes a nightmarish reality for her. This concern is deepened by the demographic who will attempt to surmount the hurdles presented in acquiring a judicial bypass. Multiple studies attest that in the majority of teenage pregnancies, the pregnant minor does involve a parent in the decision-making process, and that a majority of teens who do not involve their parent turn to a different trusted adult instead. The bypass procedure involves a high degree of secrecy, and the emotional and material costs of appearing in front of an effective morality tribunal which may quiz her on her sexual history, her educational background, her spiritual commitments and in some case confront her as an adversary to attempt to ‘persuade’ her to continue a deeply unwanted pregnancy. These are often not minors for whom a parental discussion is safe, or even possible.
Envisaged as a safety-catch for individuals who have lost their parents, or been driven away by abuse if parents discover the pregnancy, the law has instead erected a series of near-insurmountable, and systematically humiliating challenges for incredibly vulnerable minors. As is common with abortion regulation, the burden overwhelmingly falls on the individuals least capable of vindicating their rights alone.