Kentucky Appeals Court Panel Rules That Judges Can Grant Out Of State Minors Permission To Have Abortions Without Parental Knowledge. This Is AWFUL.
Kentucky judges can grant out-of-state minors permission for abortions, appeals court rules
By Andrew Wolfson
Minors from other states may ask Kentucky judges to give them permission to have abortions without their parents' knowledge or consent, a state appeals court has ruled.
In a 2-1 ruling last week that was sealed, the majority said it was compelled to make the ruling despite “significant reservations” about allowing Kentucky judges to make such important decisions about girls from other states.
The state appellate court reversed Jefferson District Court Judge David Bowles, who ruled he had no jurisdiction to consider an Indiana girl's petition under Kentucky's bypass law.
The Kentucky Court of Appeals ruling was issued confidentially under a state law and a special state Supreme Court rule that allows girls to appeal decisions anonymously. The Courier-Journal obtained a copy of the decision.
The U.S. Supreme Court has ruled that states which require parental consent for abortion must allow an exception in which minors can petition a judge to make the decision on their own — without their parents' permission.
Defenders of abortion rights say the state court of appeals decision upholds the right of Americans to travel for medical care, and the constitutional right to abortion.
“Your federal constitutional rights aren't abandoned when you travel into another state — they come with you,” said Bebe Anderson, senior counsel for the New York-based Center for Reproductive Rights.
Derek Selznick, director of the Reproductive Freedom Project at the ACLU of Kentucky, said: “We feel regardless of residency all teenagers should be able to use the court system in Kentucky to access judicial bypass.”
But Margie Montgomery, executive director of Kentucky Right to Life Association, said she fears that the ruling could result in Kentucky becoming a haven for girls seeking abortions without their parents' permission.
She said the association's board would consider asking the General Assembly to “tighten” the law, which she says she was “shocked” to learn didn't restrict bypass hearings to Kentucky residents.
Laws allow secret decisions
The state Court of Appeals decision was issued confidentially under a portion of the state's bypass laws that guarantees minors a right to an “anonymous” appeal of adverse decisions. A state Supreme Court special rule also says that appeals are to be handled in a confidential manner.
The Courier-Journal acquired a copy of the appeals court's ruling, and confirmed that it was issued Tuesday. The minor involved is identified only by her initials.
In the sharply divided opinion, Chief Judge Jeff Taylor of Owensboro and Judge Michelle Keller of Covington said it was a difficult decision in part because they knew it would invite “forum shopping,” in which a girl who is refused by a judge to get an abortion in her home state need only cross state lines to try to obtain permission in Kentucky.
However, the majority said the wording of Kentucky's law couldn't be clearer — it says “every minor” has the right of access to a bypass hearing in district or circuit court and says nothing about that right being limited to residents.
Writing for the majority, Taylor noted that appellate courts elsewhere have ruled that non-resident minors have a right to such hearings in other states. For example, a federal appeals court in 1983 struck down Indiana's law because it allowed only Hoosiers to petition the courts there, therefore violating the constitutional right to travel.
Taylor also noted that the U.S. Supreme Court has said states cannot bar non-residents from having abortions within their state.
In a dissent, Judge Joy Moore of Burlington said Kentucky judges have no “business making any decisions regarding a minor from another state seeking an abortion without parental consent.”
She said the ruling was “particularly troubling” in light of the fact that Indiana has a nearly identical bypass procedure, and no reason was given why the girl did not use it instead of traveling to Kentucky.
She also said that because the bypass law requires that a lawyer be appointed to minors who can't afford one, the ruling would shift the costs of legal representation for non-residents to Kentucky taxpayers, “not to mention the cost of judicial resources and time.”
Moreover, Moore said, Kentucky's abortion laws say in general that “it is in the interest of the people of the commonwealth that every precaution be taken to insure the protection of every viable unborn child being aborted.”
Kentucky abortion alternative
Louisville attorney Amelia Adams, who has fought for abortion rights for decades and represents many minors in bypass hearings, said “abortion isn't an easy subject for anybody,” but that there are “times in a woman's life when it is the only choice.”
She said that the “privileges and immunities” clause of the Constitution specifically ensures that an out-of-state resident enjoys the same privileges as one in the state in which she happens to find herself, and that the U.S. Supreme Court has upheld that clause in a long series of civil rights cases dating back to the 1950s.
Adams also said that as a practical matter, many minors in Southern Indiana come to Kentucky for abortions because the nearest clinics otherwise would be in Indianapolis or Chicago, and there is no reason they shouldn't be able to petition for judicial consent in Kentucky.
Adams was found in contempt of court last June and sentenced to six months in jail by District Judge Annette Karem for refusing to disclose the name of a girl seeking a bypass in Jefferson District Court. Karem said she needed to report the girl's name to Kentucky officials after the girl testified that she and her younger sister were being neglected by family members.
Karem, who said she was obligated to keep the girl's name confidential, has asked the Kentucky Supreme Court to review the case.
Anderson said Kentucky has strict abortion laws and that it is unlikely that an “onslaught” of minors will descend on the state.
She also said Moore's concern about costs is ill-founded: Out-of-state residents frequently uses courts in other states to settle disputes, and indigent non-residents charged with felonies in other states are supplied with court-appointed counsel at the expense of the state where the crime occurred.
The impact of the opinion is uncertain because it wasn't issued publicly and won't be published in law books or by online legal services.
But Chief Jefferson District Judge Sean Delahanty said in an interview that members of his court had discussed the issue previously and might find out about the ruling if it is circulated around the courthouse.
Adams said: “They'll find out, trust me.”
By Andrew Wolfson
Minors from other states may ask Kentucky judges to give them permission to have abortions without their parents' knowledge or consent, a state appeals court has ruled.
In a 2-1 ruling last week that was sealed, the majority said it was compelled to make the ruling despite “significant reservations” about allowing Kentucky judges to make such important decisions about girls from other states.
The state appellate court reversed Jefferson District Court Judge David Bowles, who ruled he had no jurisdiction to consider an Indiana girl's petition under Kentucky's bypass law.
The Kentucky Court of Appeals ruling was issued confidentially under a state law and a special state Supreme Court rule that allows girls to appeal decisions anonymously. The Courier-Journal obtained a copy of the decision.
The U.S. Supreme Court has ruled that states which require parental consent for abortion must allow an exception in which minors can petition a judge to make the decision on their own — without their parents' permission.
Defenders of abortion rights say the state court of appeals decision upholds the right of Americans to travel for medical care, and the constitutional right to abortion.
“Your federal constitutional rights aren't abandoned when you travel into another state — they come with you,” said Bebe Anderson, senior counsel for the New York-based Center for Reproductive Rights.
Derek Selznick, director of the Reproductive Freedom Project at the ACLU of Kentucky, said: “We feel regardless of residency all teenagers should be able to use the court system in Kentucky to access judicial bypass.”
But Margie Montgomery, executive director of Kentucky Right to Life Association, said she fears that the ruling could result in Kentucky becoming a haven for girls seeking abortions without their parents' permission.
She said the association's board would consider asking the General Assembly to “tighten” the law, which she says she was “shocked” to learn didn't restrict bypass hearings to Kentucky residents.
Laws allow secret decisions
The state Court of Appeals decision was issued confidentially under a portion of the state's bypass laws that guarantees minors a right to an “anonymous” appeal of adverse decisions. A state Supreme Court special rule also says that appeals are to be handled in a confidential manner.
The Courier-Journal acquired a copy of the appeals court's ruling, and confirmed that it was issued Tuesday. The minor involved is identified only by her initials.
In the sharply divided opinion, Chief Judge Jeff Taylor of Owensboro and Judge Michelle Keller of Covington said it was a difficult decision in part because they knew it would invite “forum shopping,” in which a girl who is refused by a judge to get an abortion in her home state need only cross state lines to try to obtain permission in Kentucky.
However, the majority said the wording of Kentucky's law couldn't be clearer — it says “every minor” has the right of access to a bypass hearing in district or circuit court and says nothing about that right being limited to residents.
Writing for the majority, Taylor noted that appellate courts elsewhere have ruled that non-resident minors have a right to such hearings in other states. For example, a federal appeals court in 1983 struck down Indiana's law because it allowed only Hoosiers to petition the courts there, therefore violating the constitutional right to travel.
Taylor also noted that the U.S. Supreme Court has said states cannot bar non-residents from having abortions within their state.
In a dissent, Judge Joy Moore of Burlington said Kentucky judges have no “business making any decisions regarding a minor from another state seeking an abortion without parental consent.”
She said the ruling was “particularly troubling” in light of the fact that Indiana has a nearly identical bypass procedure, and no reason was given why the girl did not use it instead of traveling to Kentucky.
She also said that because the bypass law requires that a lawyer be appointed to minors who can't afford one, the ruling would shift the costs of legal representation for non-residents to Kentucky taxpayers, “not to mention the cost of judicial resources and time.”
Moreover, Moore said, Kentucky's abortion laws say in general that “it is in the interest of the people of the commonwealth that every precaution be taken to insure the protection of every viable unborn child being aborted.”
Kentucky abortion alternative
Louisville attorney Amelia Adams, who has fought for abortion rights for decades and represents many minors in bypass hearings, said “abortion isn't an easy subject for anybody,” but that there are “times in a woman's life when it is the only choice.”
She said that the “privileges and immunities” clause of the Constitution specifically ensures that an out-of-state resident enjoys the same privileges as one in the state in which she happens to find herself, and that the U.S. Supreme Court has upheld that clause in a long series of civil rights cases dating back to the 1950s.
Adams also said that as a practical matter, many minors in Southern Indiana come to Kentucky for abortions because the nearest clinics otherwise would be in Indianapolis or Chicago, and there is no reason they shouldn't be able to petition for judicial consent in Kentucky.
Adams was found in contempt of court last June and sentenced to six months in jail by District Judge Annette Karem for refusing to disclose the name of a girl seeking a bypass in Jefferson District Court. Karem said she needed to report the girl's name to Kentucky officials after the girl testified that she and her younger sister were being neglected by family members.
Karem, who said she was obligated to keep the girl's name confidential, has asked the Kentucky Supreme Court to review the case.
Anderson said Kentucky has strict abortion laws and that it is unlikely that an “onslaught” of minors will descend on the state.
She also said Moore's concern about costs is ill-founded: Out-of-state residents frequently uses courts in other states to settle disputes, and indigent non-residents charged with felonies in other states are supplied with court-appointed counsel at the expense of the state where the crime occurred.
The impact of the opinion is uncertain because it wasn't issued publicly and won't be published in law books or by online legal services.
But Chief Jefferson District Judge Sean Delahanty said in an interview that members of his court had discussed the issue previously and might find out about the ruling if it is circulated around the courthouse.
Adams said: “They'll find out, trust me.”
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posted by KYJurisDoctor at 8:04 AM
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