Senator Eldridge Announces DCF’s Revised Final Regulations Eliminating Judicial Bypass for Minors Seeking Abortions Under the ROE Act

Public comments from Eldridge and advocacy organizations positively influenced final regulations

Boston, MA -- State Senator Jamie Eldridge (D-Acton) is pleased to announce that after adopting public comments from Eldridge’s office and advocacy organizations, the Massachusetts Department of Children and Families (DCF) has published the final version of 110 CMR 11.00: Medical Authorizations. The final regulation authorizes individuals age 16 or older in the care or custody of DCF to consent to an abortion. Additionally, the regulation reduces the parental consent requirements to only one parent or guardian for those individuals under 16 years of age.

Senator Eldridge’s comment letter asked DCF to reconsider its proposed rule revisions written to implement the ROE Act correctly. Specifically, Senator Eldridge convinced DCF to allow non-custodial parents to consent. Under the ROE Act, a parent who lost custody of a child under 16 years of age could still consent to their child’s abortion. The final version of the DCF regulation remains faithful to the ROE Act. Under the earlier draft of the regulation, neither the non-custodial parents nor DCF could consent to an abortion. Now, as a result of Eldridge’s letter, DCF has safeguarded minors’ access to abortion and reduced the instances when children must use the “judicial bypass” process. 

The updated regulations serve as both a legislative win and an intended execution of the ROE Act, also known as An Act Providing for Access to Reproductive Health Services. First introduced in 2019, the Act codified and affirmed that abortion is healthcare, thereby removing many legal, medical, and social barriers to abortion. As the Senate Chair of the Joint Committee on the Judiciary, Senator Eldridge has worked closely with State Senator Harriette Chandler (D-Worcester) in support of this legislation, which greatly expands abortion access and eliminates “judicial bypass” for minors over 16– a traumatizing process and an infamous barrier to accessible abortion. 

The ROE Act removes barriers and improves youth access to reproductive care by removing certain parental involvement requirements that can delay and impair minors’ healthcare. Parental consent requirements do not protect minors but rather serve as a threatening burden to youth who fear disclosing their pregnancy, according to a 2019 testimony of NARAL Pro-Choice Massachusetts, now known as Reproductive Equity Now, in support of the ROE Act, which was delivered to the Joint Committee on the Judiciary. 

“Parental involvement laws fail our children. [They] are especially threatening to youth who fear disclosing their pregnancy to a parent,” Reproductive Equity Now, then NARAL, stated in its testimony. “Requiring parental involvement in a young woman’s abortion decision can lead to physical, emotional, educational, and economic suffering.” 

Before the ROE Act and the implemented final regulations, the legislation explicitly prohibited caseworkers and foster parents from consenting to abortion care for foster children. As a result, teens seeking abortion care while in DCF custody had no choice but to seek judicial authorization. According to NARAL, foster children had no control over who knew about their personal medical decisions and faced compromising medical confidentiality due to frequent changes in their lives. 

Additionally, NARAL’s testimony states that the judicial bypass process targets vulnerable populations and can be extremely burdensome. The frightening process, often the only choice for many, requires teens to reveal details of their private lives to strangers, thereby causing fear, anxiety, and shame. Moreover, research shows that 28% of young people who use judicial bypass are ineligible for medication abortions, the safest and easiest abortion method, as they face weeks of delays due to unreliable transportation, challenging legal access, and conflicting school work.

“The implemented final DCF regulations provide a safe, legal, and accessible way for minors in DCF custody to seek abortions. The removal of the judicial bypass for minors is a major win for both abortion access and our foster care system. This is critical as we fight to improve healthcare for young women and to remove barriers that disproportionately fall on people of color and families who are economically disadvantaged,” said State Senator Jamie Eldridge. “I am grateful to the DCF for its consideration of my comments. I thank the advocates across Massachusetts for advocating for this crucial piece of legislation and regulation. I look forward to seeing DCF build on its great work concerning abortion access for minors in its care.”

Working as outside counsel, David King of Reichman Jorgensen Lehman & Feldberg LLP submitted a legal memo analyzing and evaluating DCF’s proposed changes. King’s legal analysis played an integral role in the commenting process and specified conflicts between the proposed rule and the statutory language of the ROE Act. Through interpretations of the ROE Act’s revision of M.G.L. c. 112, § 12R, which governs abortion access for minors, King’s comments offered specific recommendations to the DCF.

“This process was a win for the ROE Act and for the rule of law generally. We laid out the legal problems with DCF’s proposed rule, and DCF listened. This is an important result for minors in DCF’s care, and an important milestone in ensuring the ROE Act is faithfully implemented,” said King.

Many other organizations have submitted public comments to the DCF, including Reproductive Equity Now, a pro-choice advocacy organization; the Committee for Public Counsel Services, which has provided free legal representation to children navigating complicated judicial bypass procedures; and the Massachusetts Law Reform Institute (MLRI), which provides representation and works to provide statewide advocacy.

“When the Legislature passed the ROE Act in 2020, the state took critical steps to expand youth access to abortion care and safeguard young people’s health and well-being by eliminating parental consent requirements for 16- and 17-year-olds,” said Rebecca Hart Holder, executive director of Reproductive Equity Now. “We greatly appreciate the work of the Department of Children and Families and Senator Jamie Eldridge to see the implementation of this law through and ensure that minors in the custody of DCF are not left behind in accessing life-saving reproductive health care. These new regulations to remove judicial bypass for minors in foster care take a major step to remove unnecessary and harmful barriers to care.”

“Having been involved for over 40 years with protecting the access of young women choosing to terminate a pregnancy,  we greatly appreciate Senator Eldridge's leadership on this issue,” said Jamie Sabino, deputy director of advocacy at Massachusetts Law Reform Institute (MLRI). “DCF’s revision of its regulations bring them into compliance with current law, thus removing an unnecessary and unwarranted barrier to the young women we should care about the most.”

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Image courtesy of Maia Kennedy Photography.