U.S. Supreme Court rulings permit states to mandate parental consent for the abortion decisions of pregnant minors, but only if minors are given the opportunity to seek a bypass of that consent.A minor who requests such a bypass must be granted her request upon successful demonstration that she is mature and sufficiently informed to make a decision about abortion or that the abortion is in her best interest. Twenty-two states currently require parental consent when minors seek abortions and another twelve require parental notification.Virtually all of these states designate judges as the arbiters of the so-called judicial bypass process.
 

The articles listed below examine the functioning of the bypass process, exposing the enormous gaps between the idealizations that tend to emerge from the contemplation of carefully worded bypass provisions and the bypass process as it actually takes shape in a world of politics, religion, and bureaucracy.The findings speak to the constitutionality of parental involvement requirements and to the public policy justifications that sustain such requirements. 

 

“Road Closed: Evaluating the Judicial Bypass Provision of the Pennsylvania Abortion Control Act,” Helena Silverstein, Law and Social Inquiry (Vol. 24, No. 1, 1999), pp. 73-96.
 

Based on a study of how county courts respond to inquiries into the judicial bypass procedure, this article demonstrates that two-thirds of Pennsylvania county courts are not prepared to implement or provide accurate information on bypass proceedings. This lack of readiness, the study suggests, poses a significant threat to the rights of pregnant minors.
 

“‘Honey, I Have No Idea’:Court Readiness to Handle Petitions to Waive Parental Consent for Abortion,” Helena Silverstein and Leanne Speitel. Iowa Law Review (Vol. 88, No. 1, 2002), pp. 75-120.
 

Based on a study of juvenile court responses to inquiries into the bypass option, this article demonstrates widespread failure to comply with constitutional requirements as well as outright defiance of state law and federal legal mandates.The article shows that juvenile courts in twenty-five of Alabama’s sixty-seven counties are unprepared to handle inquiries into bypass petitions.In addition, six juvenile courts refuse to handle bypass requests despite acknowledging their authority to do so.
 

“Judicial Waivers of Parental Consent for Abortion:Tennessee’s Troubles Putting Policy into Practice,” Helena Silverstein,Wayne Fishman, Emily Francis, and Leanne Speitel. Law & Policy (Vol. 27, No. 3, 2005), pp. 399-428. 
 

To facilitate the actualization of the bypass process, Tennessee included in its parental consent statute procedural mechanisms that go beyond those in effect in most states.This study examines whether these additional mechanisms allow Tennessee to succeed where other states have failed.The findings indicate that these mechanisms mitigate the sort of implementation failure observed in other states. However, the magnitude of this mitigation is not sufficient to establish that parental consent statutes can be implemented in accordance with Supreme Court requirements.
 

“Religious Establishment in Hearings to Waive Parental Consent for Abortion,” Helena Silverstein, Kathryn Lundwall Alessi. University of PennsylvaniaJournal of Constitutional Law (Vol. 7, No. 2, 2004), pp. 473-532. 
 

Several judges in Alabama condition bypass grants on the requirement that pregnant minors receive counseling from a pro-life organization called Sav-A-Life.Based on evidence that shows the religious character of Sav-A-Life counseling, this article argues that judges violate the First Amendment Establishment Clause when they condition the waiver process on a minor’s receipt of such counseling.
 

“In the Matter of Anonymous, A Minor:Fetal Protection in Hearings to Waive Parental Consent for Abortion,” Helena Silverstein,Cornell Journal of Law and Public Policy (Vol. 11, Fall 2001), pp. 69-111.
 

Some judges who handle bypass petitions have adopted the practice of appointing a guardian ad litem to represent the interests of the unborn at bypass hearings.This article examines this act of judicial discretion, arguing that fetal representation is a moral regulation that transforms waiver hearings into adversarial proceedings and increases the burden a minor confronts when seeking an abortion.However, while the use of guardians raises some troubling constitutional questions, because legal precedent allows states to encourage childbirth over abortion, designating guardians to represent fetuses turns out to be a constitutionally permissible regulation of a woman’s abortion rights.This article contends that the inadequacy of precedent on abortion is evidenced by the fact that guardianship appointments are likely to pass constitutional muster.
 

“Inconceivable?” Helena Silverstein,Law and Inequality (Vol. 20, Winter 2002), pp. 141-55.
 

This essay offers an ironic perspective on state laws that mandate parental consent in a pregnant minor’s abortion decision.It does so by presenting three fictitious judicial opinions based on an equally fictitious state law that requires parental consent when a minor chooses pregnancy rather than abortion.