Family Law

'Legal limbo' for foster child seeking abortion? Neb. decision doesn't decide who must give consent


The Nebraska Supreme Court has ruled a foster child must get the consent of a parent or guardian for an abortion, but it did not reach the issue of who can give that consent.

The court majority upheld a finding that the girl did not sufficiently establish she has the maturity to make the decision on her own, the Associated Press and the Omaha World-Herald report.

According to the Oct. 4 opinion (PDF), the girl’s biological parents no longer had parental rights. She feared she would lose her foster home if the foster parents learned of the pregnancy.

Though she mostly raised her younger siblings when her parents weren’t around, the girl has not lived on her own and is dependent on her foster parents for financial support, the court said. Nor did she testify as to any work experience.

Though she obtained abortion counseling, the Nebraska Supreme Court said, she “presented no evidence regarding her understanding of the emotional and psychological consequences of abortion or of the immediate and long-range implications of the procedure.”

The girl did say she understood, however, when the lower court judge informed her that “when you have the abortion it’s going to kill the child inside you.”

On appeal, the girl’s lawyers argued the judge showed a lack of impartiality because of that statement and should have recused himself. But the supreme court didn’t reach the issue because it wasn’t raised before the district court. Nor did it reach the issue of whether her guardians were her foster parents or the Nebraska Department of Health and Human Services, or whether the department is legally barred from giving its consent.

“The sole issues before the district court were whether petitioner established grounds for judicial authorization of an abortion without the consent of a parent or guardian,” the court said. Because she didn’t show abuse or neglect by the people currently filling the role of guardian, and she didn’t demonstrate sufficient maturity, the district court’s judgment must be affirmed, the court said.

A dissenter argued that the girl was in “legal limbo” because her foster parents are not considered her parents or guardians under the law, and the human services department cannot give consent under state regulations.

Catherine Mahern, the lawyer representing the girl, told the World-Herald she couldn’t comment about whether her client is still pregnant. One way of bypassing the parental consent requirement, she said, is for the minor to obtain an abortion in another state.

Hat tip to How Appealing.

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