As Virginians vote on a constitutional amendment advocates say will protect abortion access, those who oppose the effort argue it would make it easier for minors to get the procedure without parental consent.
That option already exists and Radio IQ found out how and how often it’s been used and filed this report.
It’s called a judicial bypass. It’s a court process that allows someone under the age of 18 to get an abortion without the consent of their parents.
The right of a minor to access the procedure came from the U.S. Supreme Court back in 1979. Here’s then-Justices Potter Stewart and Thurgood Marshall during oral arguments in the case.
Stewart: "The statute deals with the parents who have left home, parents who deserted their child."
Marshall: "How about the child who leaves and gets an apartment and lives by herself?”
Stewert: "Right"
The court went on to protect access in the majority opinion writing: “A child, merely on account of his minority, is not beyond the protection of the Constitution. As the Court said [in earlier precedent] "whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone."
Virginia eventually passed its judicial bypass law in 1997. Republican Delegate Mark Early Sr. - not to be confused with his son who was in the chamber recently until 2025- carried the bill though it had bipartisan support.
According to data from the Office of the Executive Secretary, the administrative arm of Virginia’s state courts, about 160 judicial bypass petitions have been filed across the Commonwealth in the last decade. For context, there were about 35,000 abortions -medical and surgical- performed in every year in Virginia.
Radio IQ spoke to multiple advocates, attorneys and judges to understand the details of these petitions. Those sources have asked not to be named because of the sealed nature of the process.
It begins with a minor going to a courthouse - any courthouse in the Commonwealth- to fill out the petition. They usually file in the district where the abortion will be performed. After the paperwork is submitted the petitioner goes before a judge where she and/or her attorney run through a list of qualifiers defined in the so-called Bench Book for Virginia judges. (p. 517)
Is the petitioner mature enough? Are they well informed? This is when the judge tries to understand why the petitioner is seeking an abortion without parental consent. The standard in the end is whether or not it's in the best interest of the petitioner, though parental notification -while still granting the procedure- may still be ordered.
As for those who seek judicial bypass, sources told Radio IQ it was often because of a missing parent or guardian, sexual abuse, a fear of a parent, or the concern a minor has for themselves if the birth were to occur.
Victoria Cobb with the conservative Family Foundation defended the law at a recent news conference and asked voters to say no to a constitutional amendment she and other conservatives argue would make Virginia’s judicial bypass law weaker.
“Because this amendment is written to give these rights to reproductive freedom and others to the individual, not to the adult, that means the right is being given to your teenage daughter or granddaughter," Cobb said. "And that right, it goes on to say, basically nobody can get in the way, I mean, that’s the short version.
"So, if you as a parent want to be involved in that conversation, the law now has to be evaporated, and it has to be your child willing to share that with you and they’re going to undergo a very difficult decision by themselves without adult guidance,” she added.
Fairfax-area Delegate Vivian Watts was in the General Assembly when the law was passed; she voted against it but doesn’t remember why. And she now defends it. Back then, Watts was with Fairfax County’s Court Appointed Special Advocates, or CASA, one of the non-lawyer advocate groups that aids minors through the judicial bypass process. She said she saw the extreme circumstances that led to a child seeking an abortion without their parent’s approval.
“Incest is very rare, but it is real. Severe beatings are very rare, but it's real in dysfunctional families," Watts said in an interview with Radio IQ. "So that the judicial review of those circumstances is and was critical. But when I say ‘extremely rare,’ that’s why over the decade you’re only seeing fewer than 200 cases.”
More than a dozen states allow minors to access abortion without parental consent or judicial review. Washington DC is among them, and advocates said one reason Virginia’s numbers could be low is because minors can travel to the District for the procedure.
Watts said fears about the new amendment opening the door to unrestricted access by minors are ungrounded because Democrats, who’ve had majorities since the law’s passage, haven’t tried to roll it back.
“Nor have I heard Republicans talking about amending this law until what we’re hearing now, in the concerns that somehow making a constitutional amendment that reflects current law is somehow changing current law,” the delegate told Radio IQ.
Voting on the constitutional amendment in Virginia is ongoing.
