U.S. Eighth Circuit - The FindLaw 8th Circuit Court of Appeals Opinion Summaries Blog

Nebraska Supreme Court Denies Abortion to Girl in Foster Care

A 16-year-old girl in foster care was not mature enough to be allowed to get an abortion, the Nebraska Supreme Court ruled.

The young woman, referred to as Anonymous 5 in the opinion, became a ward of the state earlier this year after suffering years of emotional and physical abuse at the hands of her biological parents. Citing her foster parents' strict religious views, Anonymous 5 requested a judicial bypass from the court for an abortion when she was 10 weeks pregnant -- but to no avail.

Nebraska's Age of Consent Law

Nebraska's current consent law, which was passed last year, requires girls age 17 and younger to get written, notarized consent from a parent or guardian for an abortion. Previous state law required only that a parent be notified of a girl's plans for an abortion, reports The Omaha World Herald.

The new law allows girls to bypass the consent provision in medical emergencies, if they are victims of abuse or neglect or if they can convince a judge that they are mature and well-informed enough to make the decision themselves.

No Abuse and Lack of Maturity

The high court said Anonymous 5 is not currently a victim of abuse, as she was removed from her parents two years ago.

Despite receiving counseling on six occasions, having undergone three ultrasounds, and approaching the court for permission to terminate her pregnancy, the court also rejected the girl's claim that she was mature enough to make the abortion decision herself. In large part, the court cited her lack of financial independence.

In a 5-2 decision, the court ruled that she "failed to establish by clear and convincing evidence that she is sufficiently mature and well informed" about the consequences of having an abortion.

Dodging Judicial Bias Issue

The young woman's attorney believes the court ducked on certain looming issues -- namely, whether Douglas County District Judge Peter Bataillon demonstrated bias, reports The Herald.

According to the Supreme Court ruling, Bataillon had asked the girl if she understood that "when you have the abortion it's going to kill the child inside you." Interesting word choice, right? Using loaded language like "kill" instead of "terminate" and "child" instead of "fetus" could be indicative of personal bias playing into the lower court's decision, but the high court kept mum.

Maybe they'll lodge a complaint?

Wards in Limbo

In a dissenting opinion, Judge William Connolly stated the consent laws don't apply to Anonymous 5 because she doesn't have parents. He stated her foster parents' consent would be meaningless because they never applied to be her legal guardians, making the state her legal guardian, which can't give consent.

Because it was therefore impossible for Anonymous 5 to "choose to not get" parental consent -- a prerequisite to get a court waiver -- Connolly believed the court lacked jurisdiction to hear the case. As a result, in Connolly's opinion, Nebraska's consent laws leave many wards like Anonymous 5 in legal limbo. Most problematic, they function as an absolute ban on such minors' rights to seek an abortion, despite wards' staggering teen pregnancy rates.

Given the legal dilemma, we shouldn't be suprised if a constitutional challenge crops up in the near future.

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