Teen rights to abortion in dispute

News outlets seek to make high court decision public

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Last March, a pregnant teenager three months shy of her 18th birthday asked an Allegheny County judge if she could have an abortion without her parents' consent.

Judge Philip Ignelzi said no.

His denial launched a legal battle in the Pennsylvania Supreme Court that could change a state law that has allowed teenagers to obtain abortions without their parents' permission since it took effect in 1983.

The Abortion Control Act allows a minor whose parents won't approve an abortion to ask a judge for permission by filing a "bypass petition" -- meaning she bypasses her parents.

The high court's decision to review the case, including whether the law requires parental consent, has galvanized groups on both sides of the abortion issue.

It also has prompted a petition from the Pittsburgh Post-Gazette and several other media companies to make the court decision public.

The law requires records of all bypass petitions to be closed to protect the identity of the minor. But the news organizations' petition, filed Thursday, asks for this "Jane Doe" case to be opened -- with the teen's name redacted -- because it could set a legal precedent.

Denials of bypass petitions are rare, and the teenager's lawyer had asked Judge Ignelzi, of the Family Division of Common Pleas Court, to remove himself from the case because he had been endorsed by anti-abortion groups when he ran for judge in 2009.

The judge refused and the case was appealed to state Superior Court, which upheld Judge Ignelzi.

Now the stage is set for a fight over the issue of a teenager's reproductive rights. And, in an unusual move, the Supreme Court has decided to examine the topic of parental consent even though the teenager's lawyer did not raise it in his appeal.

Civil liberties advocates say the bypass provision is essential to protecting a teenager's rights, but anti-abortion groups and some state lawmakers want it amended, contending it allows teenagers to have what they call "secret abortions."

Three anti-abortion groups -- The Pennsylvania Family Institute, the Pennsylvania Pro-Life Federation and the Washington, D.C.-based Alliance Defense Fund -- filed a Supreme Court brief in December arguing that the law requires parental consent. House Majority Leader Mike Turzai and 68 other Pennsylvania legislators also signed the brief. Mr. Turzai did not respond to requests for comment.

In opposing briefs, the American Civil Liberties Union and the state attorney general's office say the law clearly does not require parental consent because the purpose of the bypass provision is to give teenagers an option if their parents say no.

The Supreme Court also must address a second, more technical issue.

When appeals courts examine decisions in bypass cases, they usually only determine if the judge followed the law. That's because they use a standard of review that gives wide latitude to the discretion of lower court judges.

While appeals courts know generally the facts of a specific case, in considering bypass petitions they don't make an independent determination on whether a teenager is mature enough to have an abortion and give her informed consent to the surgery. Appellate courts only overturn a ruling if they find evidence that a judge has abused his discretion.

Anti-abortion groups and the attorney general's office say that was the right standard to apply in the Jane Doe case. But the ACLU disagrees, arguing that appellate courts should be required to independently review specific facts when a case involves a teen's reproductive rights.

In one sense, the issue is moot. After receiving consent from one parent, Jane Doe traveled out of state to have the abortion.

Bypass cases sealed by law

Despite their differences, both sides agree that such an important case should not be decided in secret.

"You can't form policy arguments in a vacuum," said Randall Wenger, chief counsel for the Independence Law Center in Harrisburg, who represents the Pennsylvania Family Institute and the Pennsylvania Pro-Life Federation. "Regardless of what side of the issue you're on, it [sealing the record] makes it difficult to speak in a helpful way to the court."

Witold Walczak, legal director for the Pennsylvania ACLU, said transparency is necessary for lawyers, judges and the public to examine the law for use in future cases.

"It's impossible to have a law that is secret," he said. "It simply can't be followed by lower court judges, by [abortion] providers and by the young women seeking to get a bypass."

The news organizations, including the Philadelphia Inquirer, the Philadelphia Daily News, The Morning Call of Allentown and the Pennsylvania Newspaper Association, argued similarly in their petition.

"The Intervenors believe that the public interest in this matter is significant, and that the public is entitled to know and should know this court's decision and all legal reasoning behind that decision," the petition says.

Secrecy makes it difficult to learn how many bypass petitions are heard, how many are denied and the significance of higher court rulings.

Those close to the process say hundreds of bypass petitions are filed every year in Pennsylvania. In Allegheny County, judges hear about 50 a year. But only a handful have been denied statewide since 1982, when the Legislature passed the Abortion Control Act. For that reason, anti-abortion groups complain that judicial review of bypass petitions amounts to a "rubber stamp" for teens seeking abortions.

Of the denials that have been appealed, only one is a matter of public record: a Superior Court decision in 2003 overturning a Philadelphia judge. Another petition reached the Supreme Court in 1998, but no one knows what the ruling was because it's sealed. In fact, the ACLU and the anti-abortion groups battling over the Jane Doe case didn't even know it existed. Certainly no one can use it for guidance in the current case.

"How can it have any effect or force of law if no one can know about it?" asked Mr. Walczak.

In the Jane Doe case, even basic information is sealed, such as docket entries, the names of judges and dates when decisions were made.

One of the arguments for opening the record is that the teen's identity can easily be protected by removing her name. That's what Superior Court did in the 2003 case when it ruled 2-1 that a Philadelphia County judge was wrong to deny a 17-year-old an abortion. In granting the teen permission to have one, then-Superior Court judges Richard Klein and Phyllis Beck published an opinion that recounted the teen's personal history but identified her only by her initials, LDF.

Law experts familiar with bypass petitions aren't sure why that case wasn't sealed and the current one is, especially since the details were similar.

"It doesn't make sense to me," said David Cohen, a law professor at Drexel University in Philadelphia and a former staff attorney for the Women's Law Project in that city. "Courts deal with confidentiality all the time and the normal procedure is to redact the name."

The Post-Gazette's motion to unseal the Jane Doe case asks that the minor's name be redacted and cites the LDF opinion as a precedent, essentially asking: If they did it then, why can't they do it now?

The Jane Doe case

Although the Jane Doe case is closed, this much is known:

The teenager appeared in a closed hearing on March 19 before Judge Ignelzi.

After questioning her for more than an hour, the judge decided that she couldn't have the abortion, ruling she was not mature and capable of making an informed decision about the procedure. The decision surprised her lawyer, Randall McKinney of the Allegheny County Office of Conflict Counsel, because bypass petitions are rarely denied.

Afterward, the lawyer researched Judge Ignelzi's background and found that People Concerned for the Unborn Child and LifePAC of Southwestern Pennsylvania had endorsed him during his campaign for Common Pleas Court in 2009. So Mr. McKinney asked the judge to reconsider his ruling and to remove himself from the case.

Judge Ignelzi denied both requests, saying he had no control over who supported him and that he was endorsed by many organizations.

"Let me say this counselor: .... I have represented in no other forum that I would do anything but render a decision based on the facts and law of the case. And I intend to do that in this case."

In his March 24 opinion, Judge Ignelzi wrote that he found the teenager wasn't mature because, among other reasons, she had used bad grammar and had not asked her parents for permission. He also was not persuaded that the teenager's trip overseas several years earlier with her mother demonstrated maturity. His next step was ruling that the abortion was not in the teenager's best interest.

Under the law, judges hearing bypass petitions must answer two questions. Has the minor proven that she is mature and informed enough to consent to the surgery? If so, a judge must grant the petition. If the judge finds that she is not, then he must resolve a second question: Despite her lack of maturity, is an abortion in her best interest?

Through another lawyer, Howard Elbling, the teen appealed to the Superior Court, which upheld the ruling on March 31. Mr. Elbling, also from the Office of Conflict Counsel, declined to comment.

Two Superior Court judges, Jacqueline Shogan and President Judge Correale Stevens, upheld Judge Ignelzi. A third, Paula Ott, concurred in part and dissented in part without explanation.

"After a comprehensive review, we find no abuse of discretion," the judges said, citing the 2003 LDF case that set this precedent: The correct standard of review when appellate courts examine bypass petition appeals is determining whether a judge abused his discretion.

In August, the Pennsylvania Supreme Court agreed to hear the case and asked the state attorney general to file a brief stating its position on the law. The attorney general's office did not respond to repeated requests to provide that brief.

Judge Ignelzi refused to comment or release a copy of his ruling.

The ACLU contends that the Superior Court judges erred by applying too narrow of a standard in examining why Judge Ignelzi ruled as he did.

"Whenever a constitutional right is at issue," said Mr. Walczak, "the appellate court must review the entire record carefully to ensure that the lower court hasn't manipulated the facts in an inappropriate way."

Mr. Cohen, the Drexel professor, agreed.

"The general rule for appellate review is that if it's purely a question of fact, then it's a question for the trial court to determine," he said. "But legal conclusions that are drawn from that finding are subject to a different standard. Whether a minor is mature enough to have an abortion is not a simple matter of fact."

Lawyers for anti-abortion groups argue that the state's appellate courts have traditionally shown extreme deference to trial judges' decisions, even in cases involving constitutional issues.

"As long as the factual record can be read to support the factual conclusions of the trial court fact-finder, an appellate court -- even if it might come to a different conclusion than the trial court -- may not substitute its judgment for the trial court's," Mr. Wenger wrote in his brief to the high court.

Legal nuance aside, the ACLU says Judge Ignelzi's decision defies logic.

"How can she not be mature enough to have an abortion but be mature enough to raise a child?" asked Mr. Walczak.

Mr. Wenger, along with Matt Bowman of the Alliance Defense Fund, sought a redacted version of the case file so they could prepare their Supreme Court brief, but the request was denied. Still, they maintain that Judge Ignelzi considered all the facts and made an informed decision.

"Whatever went into the judge's decision, we can be sure it was a weighing of testimony and facts about the maturity, health and safety of letting the minor undergo a secret abortion without her parents' knowledge," said Mr. Bowman, "and the law of Pennsylvania defers to the judge who decides to protect her by involving her parent."

No date has been set for an argument before the high court.

Torsten Ove: tove@post-gazette.com or 412-263-1510. Marylynne Pitz: mpitz@post-gazette.com or 412-263-1648.


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