New Study Finds Massachusetts Judicial Bypass Process Delays Access to Abortion

BOSTON—The Massachusetts law requiring minors to obtain parental consent or navigate the court system in order to access safe, legal abortion significantly delays young people’s access to care in Massachusetts, according to a new social science research study published Tuesday in Obstetrics and Gynecology (PDF of full study available for download here). The study concluded this process—and the delays it causes—limits young people’s ability to decide how to end their pregnancy.

Massachusetts law permits young people under the age of 18 to consent to all pregnancy-related care except abortion. Instead, a young person must obtain consent from a parent or navigate an onerous court process to obtain a judge’s permission. This process requires a young person to find an attorney, attend hearings during school hours, find transportation, and present their case before a judge, all while maintaining confidentiality.

Researchers affiliated with Harvard Medical School and Planned Parenthood League of Massachusetts (PPLM) analyzed 2,026 minors’ experiences seeking abortion from 2010-2016 and found that young people who navigated the judicial bypass process, on average, were delayed in accessing abortion by 14.8 days. This delay was 6.1 days longer than the delay experienced by young people who had parental consent. Of the young people who navigated the judicial bypass process, 1 in 5 experienced a delay of 21 days or more. Though the majority of young people seeking abortion did involve their parents, the study found young people who use the judicial bypass system are disproportionately young people of color and young people with low-incomes.

Young people who navigated the judicial bypass process were more likely to become ineligible for medication abortion due to these delays in care. Medication abortion gives patients the option of a more private method of ending a pregnancy, in a setting in which they feel most comfortable, while still providing them with the medical support and information they need.

“The medical and public health communities are unanimous in their support of young people’s expeditious and unimpeded access to care when they're pregnant—and abortion is no exception,” said Dr. Elizabeth Janiak, ScD., the study’s lead author, who is an Assistant Professor at Harvard Medical School and PPLM’s Director of Social Science Research. “We know from prior research that judicial bypass creates stress and emotional difficulty for young people. This study additionally found significant delays in care associated with the process, with no medical benefit.”

The ROE Act, legislation that will improve access to safe, legal abortion by removing medically unnecessary restrictions – such as the parental consent and judicial bypass requirement – from state law, was introduced in the legislatures last January.  Its lead sponsors said the study’s findings demonstrate the urgent need to reform state law.

“This study is proof that the state’s long, drawn-out judicial bypass process is disproportionately failing young women of color who are seeking urgent abortion care. It is wrong that we have young women in Massachusetts who are forced to ask a judge permission to make reproductive healthcare decisions. We need the ROE Act to break down these barriers and empower young women to make reproductive healthcare decisions directly with their doctors,” said Senator Harriette L. Chandler.

"Dr. Janiak’s study affirms that the judicial bypass system in Massachusetts is not working. Not only does the system delay access to care, it delays access to clinicians trained to help teens navigate an unplanned pregnancy. The fact that it disproportionately harms young people of color and young people with low-incomes amplifies the urgent need to repeal this harmful law,” said Speaker Pro Tempore Patricia A. Haddad.

“The decision to end a pregnancy—and how to end a pregnancy--is a deeply personal one that every person should be able to make for themselves. These personal medical decisions should not be limited or dictated by unnecessary delays,” said Rep. Jay Livingstone. “This study makes clear that the parental consent requirement, including judicial bypass process, serves as a barrier to access that has a disproportionate negative impact on people of color and can cause them to lose access to medication abortion. This finding is particularly troubling as young people using the judicial bypass process often do so because of psychological or physical abuse involving their parent or guardian.  We must do better and the ROE Act will do just that.”

This study was funded by the Society of Family Planning Research Fund.

BACKGROUND

Under current Massachusetts law, a person under the age of 18 must have parental consent, or have their decision approved by a judge in a process known as judicial bypass, in order to have an abortion. People under the age of 18 can consent to all other pregnancy-related care (prenatal care, childbirth, and maternity services). People under the age of 18 can consent to care generally if they are pregnant, except for abortion.

Parental consent laws vary by state. Massachusetts has one of the most restrictive laws in the New England area:

• New Hampshire does require parental notification otherwise a teen must go through the legal system;
• In Maine, minors can access abortion without parental consent if they first undergo counseling by an approved person or obtain consent from another family member, guardian, or judge.
• In New York and Vermont, there is no age of consent for abortion. 
• In Connecticut, the age of consent is 16. Minors under 16 must, can access abortion upon receiving state-mandated counseling – but they do not have to get parental consent.

Young people from Massachusetts do cross state lines in order to access abortion care.  An analysis in Massachusetts found that the rate of minors seeking out-of-state abortion care rose by a striking 300% after the judicial bypass law was implemented in 1981.

The nation’s leading medical organizations (including the American Medical Association, the American Academy of Pediatrics, the American College of Obstetricians and Gynecologists, and the American Public Health Association) oppose mandatory parental involvement laws. They agree: these laws don’t achieve the intended goal of promoting family communication and instead increase the risk of harm to teens by delaying access to appropriate medical care.

According to the Massachusetts Department of Public Health, in 2017:

• A total of 18,285 abortions were performed in Massachusetts.
• 304 abortions were provided to people under the age of 18 in Massachusetts. Of those, 234 were for patients either 16 (79) or 17 (155) years old.
• 97% of abortions (17,792 cases) occurred before the 19^th week of pregnancy, and 0.0013% (23 cases) occurred after 24 weeks in Massachusetts.