LINCOLN, NE, October 7, 2013 ( – In a 5-2 decision, the Nebraska Supreme Court has upheld a lower court ruling denying an exception to the state’s parental consent laws for a sixteen-year-old Nebraska girl who lives in a foster home and wants to get an abortion.

In handing down their ruling, the justices noted that this was the first opportunity for the court to weigh in on the state’s parental consent laws and related exemptions since they were passed in 2011.

Nebraska law requires minors to provide notarized proof of consent from at least one parent or legal guardian before an abortion can be performed, except in certain medical emergencies,  or unless the girl can prove her parents are abusive or that she is “sufficiently mature and well-informed” about the risks of abortion.


The girl, referred to in court documents as “Anonymous 5,” sought an exemption because she did not want to tell her foster parents, who are religiously opposed to abortion, that she was pregnant.  She told the court that she worried her foster parents “would not okay” an abortion and might tell her siblings that she is a “bad person” for wanting one.  She also argued that because her biological parents abused her, the state’s judicial bypass provision should apply to her case.

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But Judge Peter Bataillon denied the anonymous girl’s request, stating that “[j]ust because her foster parents have strongly held religious beliefs, does not mean that they will not act in the Petitioner’s best interest.”  He also pointed out that her biological parents had their rights terminated in May, well before she became pregnant, and that there was no evidence her current foster family or anyone else had ever abused her. 

In the absence of a medical emergency or an abusive living situation, the judge was forced to decide whether Anonymous 5 was “sufficiently mature and well-informed” about the risks of abortion to make the choice on her own. Because the girl was financially totally dependent on her foster parents and lacked wisdom and life experience, Judge Battaillon ruled she lacked the maturity to make an informed choice about abortion.

Judge Bataillon asked her if she understood that “when you have the abortion, it’s going to kill the child inside you?” The girl responded that she did.  Then the judge asked her if she would “rather do that than to risk problems with the foster care people?”

Anonymous 5 answered, “Yes.”

The teenager appealed the judge’s decision, arguing that “nothing in the [judicial bypass provision for child abuse] makes reference to when the abuse, or child abuse or neglect must have taken place, nor does the statute state that the abuse must be related to a woman’s pregnancy.”

But the Supreme Court rejected her argument, calling it “absurd.” 

“[P]etitioner’s interpretation of the statutory language would lead to an absurd result,” the judges wrote in their decision. “For example, imagine a child who was abused by her father as a newborn, whose mother divorced the father and raised the child in a safe and loving home, and who 16 years later becomes pregnant and desires an abortion without her mother’s consent. Under petitioner’s interpretation, the court would automatically have to issue an order authorizing the abortion without the consent of the pregnant woman’s mother based solely on abuse by a different parent a decade and a half earlier.”

Added the court, “Such a result is illogical and could not have been intended by the Legislature.”

The court also refused to consider the girl’s allegation that Judge Bataillon was biased and should have recused himself, as evidenced by the way he spoke of abortion as “kill[ing] the child.” 

Said the judges, “We do not consider petitioner’s argument that the trial judge should have recused himself, because petitioner did not ask him to do so or otherwise question his impartiality at the trial level.”  They said if Anonymous 5 had wanted to accuse Judge Bataillon of bias, the proper venue was in district court.

Similarly, the court rejected an argument claiming that the girl had no legal guardian.  Whether or not her current foster parents had filed proper paperwork for legal guardianship (an issue the justices said was outside the scope of the Supreme Court), Anonymous 5 was still a ward of the state, which cannot legally give consent for an abortion procedure, they said.

In upholding Bataillon’s ruling, the justices stated, “Petitioner did not meet her burden to show that she is [currently] a victim of … abuse or neglect. Nor did she establish that she is sufficiently mature and well informed about abortion to have the procedure without the consent of a guardian.”

While the Supreme Court ruling sets some important precedents for future parental consent waiver requests in the state of Nebraska, it is unclear whether the justices saved the life of Anonymous 5’s baby with their decision.  Anonymous 5’s attorney, Catherine Mahern, refused to tell reporters with the Omaha World-Herald whether the girl is still pregnant, three months after the initial ruling.

“It is not in my client's best interests to comment,” she said, adding that there are ways to get around parental consent laws without going through the courts, such as traveling to another state to get an abortion.