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Justices of the Nebraska Supreme Court
Justices of the Nebraska Supreme Court
Perspicacious online warrior/organizer Natasha Chart flagged today's 5-2 unsigned Nebraska Supreme Court decision denying an pregnant Omaha sixteen-year-old the ability to make the health decisions which she felt were right for her, instead forcing her to carry her pregnancy to term.

The decision itself is ghastly, but the process by which this young woman's rights were taken away from her was even worse.  First, today's decision.  As the Court laid out the facts:

Petitioner is 16 years old and 10 weeks along in her pregnancy. Due to abuse and neglect by petitioner’s biological parents, a juvenile court entered an order in February 2011, placing her temporary custody with the Nebraska Department of Health and Human Services (Department). A juvenile case was initiated, and petitioner and her two siblings, ages 9 and 7, were placed in a foster home through the Department. In May 2013, the juvenile court entered an order terminating by relinquishment the parental rights of petitioner’s biological parents. At the confidential hearing, petitioner explained her desire for an abortion. She testified that she would not be able to financially support a child or “be the right mom that [she] would like to be right now.” She feared that she might lose her foster placement if her foster parents learned of her pregnancy.

Petitioner testified that her foster parents have strong religious beliefs about abortion. She felt that her foster parents “would not okay” an abortion and that “they would not just be taking it out on [petitioner], it would also be taken out on the child.” Petitioner believed that putting the child up for adoption would be worse for her and her family because her foster parents would have resentment toward her. Petitioner feared that her foster parents would tell her siblings that she was a “bad person.” The court stated that “when you have the abortion it’s going to kill the child inside you,” and petitioner responded that she understood. Petitioner answered, “Yes,” when the court asked if she would “rather do that than to risk problems with the foster care people?”

The trial court judge, Peter Bataillon, went against her at every turn, deciding that even though her biological parents had relinquished their parental rights, she still required a foster parent's consent under the law; that the "victim of abuse" exception to the consent requirement only applied to abuse by one's current parents, and not to the abuse she had suffered from her biological parents; and that she was insufficiently mature to make this decision without their consent.

Today's 5-2 decision affirmed Judge Bataillon's decisions on the facts and law, with much deference to his evaluation of this young woman's maturity:

In evaluating her maturity, a trial court “‘may draw inferences from the minor’s composure, analytic ability, appearance, thoughtfulness, tone of voice, expressions, and her ability to articulate her reasoning and conclusions.’” The latter items are matters that we cannot discern from the cold record before us and are another reason why we elect to give weight to the fact that the trial judge heard and observed petitioner in finding her not to be mature and well informed.
Below the fold, why Judge Bataillon really can't be trusted to protect women's rights to make their own health care decisions. You'll be appalled.

First, here's what the Nebraska Supreme Court said in evaluating her maturity:

As is undoubtedly typical in such cases, the only testimony we have to review is that of petitioner. She will turn 17 years old in October 2013 and is unemancipated. She testified that she mostly raised her younger siblings because her parents “were never around.” Petitioner will be a senior in high school and plans to graduate early—in December—but she did not adduce any evidence about the grades that she has received. She wants to move out of her foster parents’ house after she graduates and has saved enough money to live on her own. Petitioner has not lived on her own, and she is dependent upon her foster parents for financial support. She plans to attend college, either in December or after working for “a little bit.” Petitioner did not testify about any work experience. “‘Experience, perspective and judgment are often lacking in unemancipated minors who are wholly dependent and have never lived away from home or had any significant employment experience.’” We find that to be true in this case.

Petitioner has engaged in counseling regarding abortion. She first testified that she had been to counseling three times, then said that she had five sessions, and later testified that she “went three times at, um, one center and then went once at another and then had two on the phone.” Petitioner’s attorney clarified that petitioner had six sessions where she either had counseling or a medical procedure. She has had three ultrasounds and has heard the unborn child’s heartbeat. She understands that an abortion would “kill the [unborn] child inside [of her].” Petitioner testified that someone discussed the risks associated with terminating a pregnancy, including bleeding and a possibility of death, but petitioner did not otherwise expound on the substance of the counseling. Nor did she elaborate on a discussion she had with a cousin’s mother. 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.

Upon our de novo review, we conclude that petitioner has failed to establish by clear and convincing evidence that she is sufficiently mature and well informed.

[Not to belabor the obvious point, but if this doesn't constitute sufficient maturity to make one's own health care decisions, then I don't know how it constitutes sufficient maturity to handle the life-long consequences which the Court has now forced upon her. It sure sounds to me like she understands the choice before her, and that it should be respected.]

The Court also noted in passing that her lawyer asked the Nebraska Supreme Court to rule that Judge Bataillon should have been recused from this matter, but that since he wasn't asked that himself, the Supremes wouldn't evaluate his fitness for ruling impartially on this case.

But I will.

First off, those sure sound like leading questions, don't they?  As her lawyer put it today:

[Attorney Catherine Mahern] also said Bataillon should have recused himself because he was not impartial, as evidenced by his asking the girl if she knew that, "When you have the abortion, it's going to kill the child inside you."

"Probably the most disturbing aspect of this case was the judge's treatment of this young lady, referring to killing her baby," Mahern said Friday. "Who talks to a distressed 16-year-old girl like that?

It. Gets. Worse.  Because I did some googling on Peter Bataillon, and he may have had some preexisting beliefs on the topic of abortion. Crisis Magazine, November 1, 1990:
Seventeen Operation Rescue protesters in Omaha, Nebraska, have managed to defeat charges that they violated trespassing laws by advancing a “necessity defense” that can sometimes convince juries that an unlawful action was essential to prevent a grave evil. “We showed them that abortion is the killing of another human being,” said defense lawyer Peter Bataillon, who made his clients testify at length about how abortions are performed and got permission from the judge to show videotapes about fetal development as well as abortions-in-process. Visibly upset about the verdict, Susan Hale, a lobbyist for Planned Parenthood, told the Omaha World-Herald, “the judge and the jury condoned illegal activity by religious extremists interfering with women’s access to legal medical services.”
Associated Press, August 26, 1993:
An anti-abortion activist has been accused of stalking an abortion doctor whom she met at the airport on several occasions.

Sharon McKee of Omaha was arrested Wednesday and released after posting $350 bond, a Douglas County Court clerk said Thursday. Her arraignment was set for Sept. 10.

Her lawyer, Peter Bataillon, said McKee was innocent but declined to comment further.

Dr. James T. Howard of Bloomington, Ind., claims McKee had been following and intimidating him for more than a year. Howard, who commutes weekly to Omaha to perform abortions, said McKee met him at Omaha's Eppley Airfield on April 15, April 30, July 16 and Aug. 6.

He said that on Aug. 6 McKee told him: ''You deserve to be blown away.''

[McKee has been arrested repeatedly and convicted for harassing and stalking abortion providers.]  

One book available online states that Bataillon was President of the Metro [Omaha] Area Right to Life organization. A January 17, 1994 AP article identifies him as speaking on behalf of Nebraska Lawyers for Life.

And now Peter Bataillon gets to decide whether young women are entitled to make their own health choices.

Words are failing me right now. "Outrage" isn't sufficient for my emotions. I'm just ... stunned.

Originally posted to Adam B on Fri Oct 04, 2013 at 03:49 PM PDT.

Also republished by Pro Choice, Abortion, This Week in the War on Women, and Daily Kos.

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