Nebraska Supreme Court rejects foster child's abortion request - Omaha.com
Published Saturday, October 5, 2013 at 1:00 am / Updated at 5:03 pm
Legal limbo
Nebraska Supreme Court rejects foster child's abortion request

LINCOLN — The Nebraska Supreme Court on Friday refused a 16-year-old foster child's request to get an abortion without parental consent.

The court majority ruled that the girl, identified only as Anonymous 5, was not mature enough to make the decision herself.

But two judges, in a dissent, said Nebraska law leaves the girl without an avenue to get an abortion.

“The Legislature has assumed under (the law) that all minors will have a parent or guardian who can give consent,” Judge William Connolly wrote. “As this case illustrates, however, that is not always true.”

Connolly said the girl involved in the case does not have a parent or guardian to give consent for an abortion, other than the State Department of Health and Human Services.

But state regulations bar the department from either giving or withholding consent for a ward to get an abortion.

“She is in legal limbo — a quandary of the Legislature's making,” Connolly said.

The high court ruling was the first involving Nebraska's new parental consent law.

Passed last year, the law 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.

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.

The high court said the girl is not currently a victim of abuse, even though she was removed from her parents two years ago because of physical abuse and neglect. Her parents lost their parental rights earlier this year.

Catherine Mahern, the attorney representing the girl, said her client went before Douglas County District Judge Peter Bataillon in July. At the time, the girl was 10 weeks pregnant.

Mahern declined to say whether the girl is still pregnant, three months later. “It is not in my client's best interests to comment,” she said.

She noted there are ways for a minor to bypass parental consent other than through the courts. Among them is going to another state, she said.

Mahern said she believes the court ruling avoided some issues, including whether the district court judge demonstrated bias.

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.”

The high court majority refused to rule on that issue, saying that it should have been raised in district court.

The high court also declined to consider whether the girl had a right to decide on an abortion without the consent of HHS, the agency which has legal responsibility for her.

Nor did it decide whether the law allows foster parents to act as the girl's guardians in granting consent for an abortion.

Suzanne Gage, a lobbyist for Americans United for Life, the group that pushed for the parental consent law, said the group's attorneys are studying the ruling.

Jill June, president and CEO of Planned Parenthood of the Heartland, which provides abortion services in Omaha and Lincoln, called the ruling “concerning” because the court eliminated “a safe and legal option for a woman in a dire circumstance.”

Contact the writer: Martha Stoddard

martha.stoddard@owh.com    |   402-473-9583    |  

Martha covers the Nebraska Legislature, the governor, state agencies, and health, education and budget issues out of our Lincoln bureau.

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