Judicial bypass works

SHOULD young women in foster care have access to family-planning and abortion services? Should their important, sensitive decisions be supported by caregivers and public agencies, and protected by privacy and confidentiality?

And should they be treated with any less dignity or privacy than any other young woman?

State and federal law provide young women with control over most decisions involving reproductive health. In Pennsylvania, a minor needs parental consent for abortion, though the minor can ask a court to "bypass" that and permit the young woman to make the decision herself.

Young people in foster care face untold challenges and intrusions into their private lives.

They have been removed or leave their homes and parents' care most often because of abuse or neglect. Turning back to that parent for guidance is difficult at best and, on an issue such as this, likely impossible.

OFTEN SCARED and confused, the young woman needs to know her options. Mostly, she wants to feel safe and sure about a difficult choice. Foster parents, social workers, advocates and counselors work to fill some of the void of adult guidance and concern in helping her negotiate the emotional, practical and legal issues.

Are young women being coerced into these decisions? This is unlikely, given the number of steps and decision-points she must confront along the way.

Consider the typical pathway to the judicial bypass: A young woman who believes she's pregnant and may be interested in terminating the pregnancy first arranges a medical visit for a pregnancy test. Then she needs to connect with a provider of abortion services.

The young woman is typically assisted by her parents or foster parents, school nurses, family doctor or a hot line adviser. At each of these stages, she receives information about her rights. If she does not have parental permission, she will engage the court and the lawyer who will represent her.

The fact that a young woman is in foster care makes little difference in the bypass process except that, besides the bypass counsel, she has her own lawyer (a child advocate) to assure her interests are represented and protected in her contacts with the Department of Human Services and Dependency Court.

Ultimately, the job of ensuring a child's well-being falls to the court process. In the bypass proceeding, protections include providing a lawyer for the young woman and, of course, a judge to engage her in a discussion about her wishes.

Her lawyer provides information to her about her rights and works with her to learn whether she is mature enough to make this decision, and whether she indeed wants to proceed.

The bypass judge must decide whether she is capable of making the decision. For all medical decisions, patients must be able to give informed consent, which means understanding the treatment or procedure, including risks and alternatives. Court approval alone does not in itself result in the procedure happening - the court simply lets the young woman consent for herself.

Before the court hearing, she must attend an "information session" at the medical provider. At least 24 hours have to elapse after the counseling session before the abortion can take place. Finally, the woman must decide to go forward or not on the day of the procedure, and again receive information to ensure she's making her decision with informed consent.

Along the way, everyone is working to find out what the young woman wants. The conversations reveal the challenge of her choices: "What will happen to my baby? Will the baby have to go into foster care? How will I finish school? What will people think of me?"

Lawyers and social workers who work with these young women see that it takes enormous determination, persistence and maturity to make it through the bypass process.

The problem with Pennsylvania's abortion law isn't that it creates a system under which young women are being pressured into ending pregnancies: The deck is stacked heavily against that choice, and the multiple layers of review by social workers, lawyers, judges, counselors and medical professionals would screen out unwilling or ambivalent teens.

The problem is rather that those young women who want and need abortions can have that choice taken away from them in the maze of time-consuming and intimidating restrictions and obstacles.

You shouldn't have to go out of state in order to get medical care that is your constitutional right - even if you're young.

Barbara Bailey of the Defender Association of Philadelphia represents young people in bypass proceedings. Frank P. Cervone is executive director of the Support Center for Child Advocates. Carol Tracy is executive director of the Women's Law Project.