Was She Ready to Be a Mother? A Judge Got to Decide.

Eight dollars an hour was getting her nowhere, and she couldn’t handle more work on her feet. A friend told her that she could make extra money selling videos of herself on an app called Whisper. Buyers had a kink for pregnant women. At night, when Shana’s family was sleeping, she filmed herself, shielding her face with a red sequin eye mask. Cecil didn’t like it, but he couldn’t argue with her rationale. This was money she was making for their children, so they wouldn’t go without. She tried not to think about her own disgust. She had never wanted to sell her body, but soon, she was bringing in as much as $400 a week. Like an actor, she imagined herself in a fictional story. “I’m a whole different character — this isn’t me.”

In November, G’s doctor recommended bed rest, advice that she took, though her employer didn’t provide paid leave. Her twins kept kicking her bladder, making her urinate spontaneously. She had gained more than 50 pounds, and she needed help just getting dressed; Shana bought her a foot-long shoehorn so that she could slip her feet into sneakers she couldn’t reach. On Dec. 9, 2020, 36 weeks into her pregnancy, G braided her long, caramel hair into pigtails, asked Shana for a final photo shoot while she held her bulging belly and drove with Cecil to the hospital to be induced. The epidural didn’t seem to work, her pain level hovering between a seven and a 10. Twenty-six hours later, G gave birth to twin girls. For what seemed like only a moment, the nurse placed them on G’s chest. They looked like wrinkly aliens. I’m supposed to be feeling something right now, she thought. She wanted a fierce, visceral love to take over, a tight grip of purpose. Instead, she felt empty.

Judicial-bypass hearings date back to a 1979 Supreme Court case, Bellotti v. Baird, in which the court declared Massachusetts’ parental-involvement law unconstitutional. The ruling rested on a previous decision that states cannot give parents “an absolute, and possibly arbitrary, veto” over a minor’s abortion. But in an unusual majority opinion, Justice Lewis F. Powell Jr. wrote that states could require parental involvement if they also allowed minors to go directly to a judge to ask for permission to end a pregnancy. He proposed that judges could be tasked with assessing whether the minor was mature enough to make the decision, though he conceded that maturity is “difficult to define, let alone determine.” A concurring opinion, written by Justice John Paul Stevens, scolded Powell for advising states on how to rewrite their laws, but legislatures began passing statutes that fell in line with Powell’s vision. The power to veto a minor’s abortion shifted from a parent to the state.

How the courts interpret maturity has since proved to be arbitrary. Judge Hodges told me that “of course it’s subjective.” He also said that part of his thinking in denying G’s petition was that he disagreed with her statement that she wouldn’t make a suitable parent. “My thought process was, You sound very mature to me, for a 17-year-old, living on your own, paying your own rent, making these decisions,” he said. “Sounded to me like she actually, probably would make a good parent.” His view was paradoxical: He believed that G was mature enough to raise two children, but he had ruled that she was not mature enough to decide if she was ready to be a mother. By law, the assessment of a teenager’s maturity should apply solely to her ability to choose whether to have an abortion — not to her ability to parent.

In Florida, for example, judges of bypass proceedings are asked to consider minors’ “overall intelligence,” “credibility and demeanor as a witness” and “emotional development and stability,” among other characteristics. In January, a 17-year-old who was planning to be a nurse was denied an abortion partly because she told the judge that her grade-point average was 2.0 and, at another point in the proceeding, said she was currently making B’s. “Clearly, a B average would not equate to a 2.0 G.P.A.,” the judge wrote, concluding that her intelligence was below average. (An appellate court overturned the ruling, explaining that her current grades could have lifted her G.P.A.)

With Bellotti, the Supreme Court transformed abortion from the medical decision it was deemed to be in Roe into an act fraught with cultural meaning. If a teenager wanted to opt for a cesarean section, she didn’t need a parent’s approval — but if she wanted an abortion, she did. The state was forcing a parent’s involvement in one medical procedure but not the other. Shoshanna Ehrlich, a professor of gender studies at the University of Massachusetts Boston, argues that it was here that the court provided one of the earliest hints that it was moving toward promoting birth over abortion. The maturity test was not about a teenager’s ability to weigh the benefits and risks of her medical choice. “If a pregnant teen on Monday says, ‘I want to be a mom,’ the teen is vested with full decision-making capacity,” Ehrlich says. “And let’s say she wakes up on Tuesday and says, ‘Wrong decision; I can’t be a mom.’ Then suddenly she is not an autonomous decision maker. What happened between Monday and Tuesday? Did she lose her maturity?”

The Bellotti ruling came as teenage pregnancy was igniting public anxiety. The Alan Guttmacher Institute, then affiliated with the Planned Parenthood Federation of America, had released a report in 1976 that announced an “epidemic” of teenage pregnancy, a term that was quickly picked up by politicians and the news media. The discourse disregarded half the story. The teenage birthrate hit its peak that century in the 1950s, when adolescents were more likely to be engaged or married, and it was in decline by the 1970s. But the legalization of abortion had given rise to a new demographic measure, the pregnancy rate, which included births, miscarriages and abortions, and this measure for teenagers was rising. During the sexual revolution, more single women of all ages were having sex, more women were having abortions and more white women were having children without marrying. But teenagers, especially Black teenage girls, became a focus of concern.