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Sunday, January 16, 2011

Courts - "Kentucky judges can grant out-of-state minors permission for abortions, appeals court rules"

Andrew Wolfson has this story today in the Louisville Courier Journal. Some quotes from the lengthy story:

Minors from other states may ask Kentucky judges to give them permission to have abortions without their parents' knowledge or consent, a state appeals court has ruled.

In a 2-1 ruling last week that was sealed, the majority said it was compelled to make the ruling despite “significant reservations” about allowing Kentucky judges to make such important decisions about girls from other states.

The state appellate court reversed Jefferson District Court Judge David Bowles, who ruled he had no jurisdiction to consider an Indiana girl's petition under Kentucky's bypass law.

The Kentucky Court of Appeals ruling was issued confidentially under a state law and a special state Supreme Court rule that allows girls to appeal decisions anonymously. The Courier-Journal obtained a copy of the decision. * * *

Defenders of abortion rights say the state court of appeals decision upholds the right of Americans to travel for medical care, and the constitutional right to abortion.

“Your federal constitutional rights aren't abandoned when you travel into another state — they come with you,” said Bebe Anderson, senior counsel for the New York-based Center for Reproductive Rights. * * *

The state Court of Appeals decision was issued confidentially under a portion of the state's bypass laws that guarantees minors a right to an “anonymous” appeal of adverse decisions. A state Supreme Court special rule also says that appeals are to be handled in a confidential manner.

The Courier-Journal acquired a copy of the appeals court's ruling, and confirmed that it was issued Tuesday. The minor involved is identified only by her initials.

In the sharply divided opinion, Chief Judge Jeff Taylor of Owensboro and Judge Michelle Keller of Covington said it was a difficult decision in part because they knew it would invite “forum shopping,” in which a girl who is refused by a judge to get an abortion in her home state need only cross state lines to try to obtain permission in Kentucky.

However, the majority said the wording of Kentucky's law couldn't be clearer — it says “every minor” has the right of access to a bypass hearing in district or circuit court and says nothing about that right being limited to residents. * * *

Louisville attorney Amelia Adams, who has fought for abortion rights for decades and represents many minors in bypass hearings, said “abortion isn't an easy subject for anybody,” but that there are “times in a woman's life when it is the only choice.”

She said that the “privileges and immunities” clause of the Constitution specifically ensures that an out-of-state resident enjoys the same privileges as one in the state in which she happens to find herself, and that the U.S. Supreme Court has upheld that clause in a long series of civil rights cases dating back to the 1950s.

Adams also said that as a practical matter, many minors in Southern Indiana come to Kentucky for abortions because the nearest clinics otherwise would be in Indianapolis or Chicago, and there is no reason they shouldn't be able to petition for judicial consent in Kentucky. * * *

The impact of the opinion is uncertain because it wasn't issued publicly and won't be published in law books or by online legal services.

But Chief Jefferson District Judge Sean Delahanty said in an interview that members of his court had discussed the issue previously and might find out about the ruling if it is circulated around the courthouse.

Adams said: “They'll find out, trust me.”

ILB comments: I've highlighted the provisions most surprising to me. The opinion protects the minor's confidentiality by identifying her only by initials and presumably redacting other identity information, but is appears that no one can read the ruling and no one would have known of its existence but for the LCJ's having somehow obtained a copy.

Posted by Marcia Oddi on January 16, 2011 03:43 PM
Posted to Courts in general