Clearly Unconvincing: How Heightened Evidentiary Standards in Judicial Bypass Hearings Create an Undue Burden Under Whole Women’s Health

Clearly Unconvincing: How Heightened Evidentiary Standards in Judicial Bypass Hearings Create an Undue Burden Under Whole Women’s Health

67 Am. U. L. Rev. 1911 (2018).

* Note & Comment Editor, American University Law Review, Volume 68; J.D. Candidate, May 2019, American University Washington College of Law; B.A., Justice & Law, cum laude, 2016, American University.  I would like to thank my faculty advisor, Professor Stephen Wermiel, for his guidance and mentorship, and the editorial board of the Law Review for their invaluable recommendations throughout the Comment writing process.  I would also like to thank my mother and stepfather, Babbi Hawkins and Yves Capoen, for supporting me unconditionally in my pursuit of a legal career and for always nurturing my commitment to social justice.

Currently, thirty-seven states have parental involvement laws that require a minor seeking to access abortion care to consult or obtain consent from a parent before undergoing the procedure.  In these states, a minor’s only hope for getting around this obstacle is judicial bypass—a proceeding in which a minor must convince a judge that she should be able to obtain an abortion without parental involvement, based on two Supreme Court-articulated factors.  Many of these states impose heightened evidentiary standards—namely, the “clear and convincing evidence” standard—in these proceedings where the minor bears the burden of proof.

This Comment argues that imposing heightened evidentiary standards in judicial bypass proceedings creates an undue burden on a minor’s right to abortion under the strengthened standard set out in Whole Woman’s Health v. Hellerstedt.  Thus, the imposition of these heightened evidentiary standards in this context is unconstitutional.