Neb. Supreme Court Denies Foster Child's Request To Waive Parental Consent To Obtain an Abortion

October 7, 2013 — The Nebraska Supreme Court on Friday made its first ruling on the state's parental consent law, refusing to approve a 16-year-old foster child's request to obtain an abortion without receiving parental consent, the Omaha World-Herald reports (Stoddard, Omaha World-Herald, 10/5).

The legislation (LB 690), signed into law by Neb. Gov. Dave Heineman (R) in 2011, requires minors to obtain written, notarized permission from a parent or legal guardian before accessing abortion services. Minors can obtain notarized written consent from a grandparent if they provide signed statements saying that their parents or guardians are abusive toward them. If the minor decides not to have an abortion, she would be deemed emancipated from her parents or guardians so that she would be eligible for public assistance (Women's Health Policy Report, 5/27/11).

Case Background

The girl -- who remained anonymous -- was living with foster parents after a juvenile court decided to terminate the parental rights of her biological parents, who had physically abused and neglected her.

During a closed hearing this summer, the girl told Douglas County District Judge Peter Bataillon that she was 10 weeks pregnant and requested a court order allowing her to obtain an abortion. She said she could not support a child financially and feared losing her foster care placement if she told her foster parents -- who had strong religious beliefs -- about her pregnancy. The girl's attorney -- Catherine Mahern -- argued that the girl did not need anyone's consent for an abortion because of a Nebraska Department of Health and Human Services regulation that states, "if a ward decides to have an abortion, the consent of the parent(s) or Department is not required."

Bataillon denied the girl's request, saying that even though state law considers the department as wards' guardians, in her case the foster parents would be considered her guardians. He also ruled that the girl did not demonstrate she was mature enough to make the decision to seek an abortion.

Mahern filed an appeal, saying that Bataillon did not recognize the parental consent law's exception for abuse cases. She also argued that Bataillon was not impartial, citing his questioning of the girl, including whether she understood an abortion would "kill the child inside" of her.

Supreme Court's Majority Opinion

The Supreme Court upheld Bataillon's ruling in August under an expedited process, but the court did not issue an opinion on the case until Friday. In the 5-2 opinion, the majority said the law's abuse exemption did not apply in this case because the abuse did not occur at the hands of the girl's current guardians. The decision also stated the girl did not prove she was mature or well-informed enough to decide to seek an abortion.

Further, the court ruled that Bataillon could rule only on the parameters contained in the parental consent law, which does not dictate from whom state wards must obtain consent. The justices did not consider whether Bataillon should have recused himself because the girl did not request he do so or question his impartiality during the trial (Beck, AP/Houston Chronicle, 10/4).

Dissenting Opinion, Other Reaction

In a dissenting opinion, Justice William Connolly said the girl is "in legal limbo -- a quandary of the Legislature's making." He added, "The Legislature has assumed under (the law) that all minors will have a parent or guardian who can give consent. As this case illustrates, however, that is not always true" (Omaha World-Herald, 10/5). He noted that because "none of the statutory exceptions" of the law apply in the case and because the girl does not have a way to obtain an abortion in Nebraska, there is "[a]n absolute ban on the petitioner's right to seek an abortion," which "obviously raises constitutional concerns" (AP/Houston Chronicle, 10/4).

Jill June, president and CEO of Planned Parenthood of the Heartland, said the ruling is "concerning" because the high court eliminated "a safe and legal option for a woman in a dire circumstance" (Omaha World-Herald, 10/5).