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Abstract

Many states in the U.S. require parental consent for minors to obtain abortions, creating barriers for minors in foster care who often must obtain judicial approval for an abortion through a process called judicial bypass. Scholars agree that judicial bypass requirements present emotional and logistical obstacles and that foster youth face heightened consequences for limited abortion access, yet there is little scholarship on foster youths’ particular experiences of judicial bypass proceedings. In this paper, I investigate attorneys’ observations of foster youths’ judicial bypass processes as compared to those of minors not in foster care. Using semi-structured interviews with attorneys who represent minors in judicial bypass hearings, I find that foster youth face unique challenges in the judicial bypass process due a higher potential for retraumatization at court and surveillance by the foster care system. Further, I find that in attorneys’ experiences, judges approve nearly all judicial bypass petitions in states where abortion is legal, indicating that the process creates barriers to abortion access primarily through challenges associated with arriving at court rather than through judicial decision. Based on these findings, I argue that state legislatures should minimize foster youths’ involvement with the judicial bypass process by allowing foster parents and case workers to provide consent for minors’ abortions or by repealing parental consent laws and thereby eliminating the judicial bypass requirement. The findings presented here give insight into the challenges foster youth face in obtaining reproductive healthcare following the Supreme Court Dobbs v. Jackson Women’s Health Organization decision and reflect recent legislative shifts toward affording minors more autonomy in abortion decisions.

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