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Hastings Law Journal

Abstract

The presence of an effective judicial bypass mechanism for minors seeking an abortion is fundamental to the validity of parental consent statutes. Following the United States Supreme Court's decision in Bellotti v. Baird H, states now have the flexibility to restrict minors' access to abortion by requiring parental consent for the procedure, provided an effective judicial bypass mechanism exists to handle situations where the minor does not want to involve her parents. Under Bellotti II, the minor must have the opportunity to petition the court for a waiver of the relevant parental consent law, which if granted, would allow her the right to make her own decision about abortion without having to consult her parents.

With this increased flexibility under Bellotti II, many states passed legislation restricting minors' access to abortion by requiring either parental notification or consent for the procedure or judicial waiver of the law. However, in states as varied as Tennessee, Minnesota, Pennsylvania, and Alabama, increasing numbers of judges are recusing themselves on moral grounds from cases where minors petition the court for the right to make their own decisions about abortion. This Note surveys the potential problems that may arise if these recusals become more widespread. Specifically, this Note studies the issues resulting from judicial recusals from bypass petitions focusing on whether the recusals create an undue burden on the minor's right to choose, the responsibility of the states to provide minors with an effective judicial bypass procedure, and potential solutions to the problem.

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