Decisional Dignity: Teenage Abortion, Bypass Hearings, and the Misuse of Law

Carol Sanger, Columbia Law School


Much attention has been paid to the harm women suffer when they are unable to get abortions, or, from an anti-abortion perspective, what women are said to suffer by virtue of having abortions. There has, however, been little discussion of the harms women suffer by virtue of abortion regulation, even when they are, in the end, able to obtain a legal abortion. What is the relation between the detailed regulation of abortion decisions and the right of women to be treated with dignity regarding such decisions? This Article considers the harms to dignity inflicted on one category of women - pregnant minors - by virtue of their participation the judicial bypass process. Thirty four states now require that a minor who wants an abortion without first involving her parents must petition a judge and participate in a hearing at which the judge decides if she is mature and informed enough to make an abortion decision herself. By compelling narrative, the hearings produce a distinct sort of harm: the humiliation of vulnerable minors required to testify about their sexual relationships, their pregnancy, and the intricacies of home life that decided them to take their chances in court. I develop the argument that bypass hearings produce a civil version of what Malcolm Feeley identified in the criminal context as “process as punishment.” Several features of the hearings work to bring this about. These include a structure of stealth inherent in the proceedings, and the testimonial demands of a hearing too often focused on the moral misconduct (sex, abortion, general sneakiness) of the petitioners. Bypass hearings harm the legal system as well as individual petitioners. The Article discusses the problem of sham hearings (akin to fault based divorce proceedings), the problem of forum exclusion and law’s legitimacy, and the relation of dignity to the “luck of the draw” aspect of judicial assignment. The Article focuses specially on the election of judges and the politics of abortion in their selection and performance.