Kylee Sunderlin, a judicial bypass attorney in Michigan and the legal services director at If/When/How, joins host Rafa Kidvai to discuss the complexities and challenges of the judicial bypass process for young people seeking abortions. They delve into the emotional and bureaucratic hurdles, the systemic flaws, and the need for policy changes to support young people's autonomy and reproductive rights.
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Rafa Kidvai: This is No Body Criminalized, how the state controls our bodies, families, and communities. I'm Rafa Kidvai, director of the Repro Legal Defense Fund at If/When/How. On our podcast, we talk with experts, activists, and advocates whose daily work intersects with reproductive justice and the state's targeting of marginalized communities. The founding mothers of reproductive justice in the United States define the term as the human rights to maintain personal bodily autonomy, have children, not have children, and parent the children we have in safe and sustainable communities. You will hear us restate the shared commitment throughout our interviews because regardless of the issues guests focus on, that is ultimately the world we all intend to create. Our guest today is Kylee Sunderlin, a judicial bypass attorney in Michigan, and the legal support director here If/When/How. We started our conversation with Kylee sharing the story of a 17-year-old in Michigan who wanted an abortion and their first-hand experience with laws requiring forced parental consent to get one.
Kylee Sunderlin: A 17-year-old in Michigan reached out to If/When/How's Repro Legal Helpline, and she was in a situation where she had a very supportive adult who was supporting her through her decision to have an abortion. But because of the way the law is written in Michigan, the supportive family member didn't actually have the authority to consent to her having an abortion because in the state of Michigan, if you're under age 18, you either have to have the consent of a parent or legal guardian in order to access an abortion, or if that's not an option, then you have to go in front of a judge and ask the judge to give you something called a judicial bypass. And then that's an order that you take to the abortion clinic with you. And so in the scenario, her aunt couldn't actually consent on her behalf because she didn't have the correct legal paperwork declaring her as a legal guardian.
So even though every case is really horrible, this young person did not have a relationship with her father. They'd been estranged for her entire life and her mother had recently died. One of the many problems with these laws is that they don't contemplate the realities of what our families look like. They don't contemplate the realities of who we rely on for support, who cares for us, who loves us. And so, even though she had this love and support because her family didn't fit into these strict confines of the law and who gets to consent on her behalf, then she had to go through this legal process where she had to say to a judge, a stranger, "I'm coming before you because my mom has died and my aunt supports me. Can you please give me the legal paperwork necessary for me to get an abortion now?"
Rafa Kidvai: Just like additional punishment and hoops for someone who's already experienced trauma.
Kylee Sunderlin: Exactly. Exactly.
Rafa Kidvai: Kylee, you're the legal services director at If/When/How and while we usually interview guests from outside the organization, it felt especially important to talk to you about the kinds of work that your team does. So can you tell us a little bit about the Repro Legal Helpline and specifically how it supports young people?
Kylee Sunderlin: The Repro Legal Helpline is a free and confidential helpline that provides legal services for people's reproductive lives. And so that might sound a little nebulous, but it is as broad as it sounds. So we provide support to people who are pregnant, who don't want to be pregnant, who want to continue their pregnancies to birth. We provide support to birthing people. And so one of the things that we do specifically for young people is help them figure out what their options are. Usually, the people who reach out to us are pregnant and no longer want to be. And so we are sharing information about what the legal requirements in their state are. For example, whether they live in a state where they can access an abortion regardless of their age or whether they live in a state where there's a forced parental consent law where they either have to get the consent of a parent or go through the judicial bypass process.
And then sometimes we're sharing information about whether they should actually travel outside of their state to access abortion care because they're in a banned state and there's no option for them, or they're in a state with a forced parental involvement law and it would be significantly easier for them to just say, "Drive three hours to Illinois to be able to get the care that they deserve and not have to jump through the legal hoops to be able to do that."
Rafa Kidvai: You recently authored a piece on the harms of the judicial bypass process. Could you tell our listeners a little bit about what the process looks like? I know you alluded to it in the beginning.
Kylee Sunderlin: Sure. So there are a lot of states with forced parental involvement laws and every state with a forced parental involvement law has a different process, but broadly, there are two prongs for the judges to consider in these cases. One is whether the petitioner is mature enough and sufficiently well-informed to make this decision, and then the other is whether it is actually in their best interests to be able to do so. And so the judge can grant the waiver based on either of those prongs or both. And the considerations that they make are different for each prong. For the maturity factors, they think about things like whether someone has had a job, whether they have their own bank account, if they do chores at home. A lot of judges ask about someone's grades as if someone who receives A's is more worthy of having an abortion than someone who doesn't.
The other prong about best interest judges ask things, mostly thinking about whether someone would be at risk of harm if they had to disclose the abortion or the pregnancy to a parent. So, whether they would be at risk of houselessness, if abuse or neglect would be involved, one of the things that makes me feel so uncomfortable about these questions around best interest is how can the judge paint your parents in the absolute worst possible light, possibly to the point that triggers another type of horrible state intervention through the family policing system when actually those aren't the questions that to my mind, we should be asking? Right? This process shouldn't exist at all. And so many of the young people I talk to who come to me say, "Listen, I'm not worried that my parents are going to kick me out of the house. In fact, I go to them with every important decision I make in life, but they have a different position than I do about abortion, and I don't want this to impact our relationship."
"I cannot and should not have to ask their permission to make a decision about my body." And so many of the harms that I see in the system are honestly just through trying to fit all young people into these narrow categories that are incorrect and irresponsible and harmful to them. There is a report from the ACLU of Michigan and the Michigan Organization on Adolescent Sexual Health and Human Rights Watch that came out in March of 2024. The report talks about the harms of the judicial bypass process.
And everyone who contributed to this report was really intentional about how people who have not supported young folks through this process truly do not understand the enormous harms that we're putting them through, and that if people really gave a fuck about young people, they would not force them to go through this. That report is our initial push to do more public education around what this experience looks like and how awful it is with the hope that ultimately we can repeal the forced parental involvement law in Michigan. Now, of course, it's my hope as somebody who talks to young people on the Repro Legal Helpline every day all across the country that someday none of these laws exist.
Rafa Kidvai: I'm so grateful for you doing that work. I was thinking a lot about your piece about the misunderstanding of family relationships where young people do have parental support and would still like to access abortions. Can you talk a little bit though about situations where folks might not have parental support or are estranged from their parents?
Kylee Sunderlin: One of the things I've learned in representing young people in judicial bypass cases that I really wasn't expecting is that every single person I represent is supported by loving, caring adult in their life. And it's not that they're isolated or frightened or making these decisions in a vacuum, it's that the law doesn't recognize the beautiful myriad ways that we choose to form families. That someone can live with their older sibling and that person is their parent figure. You can live with your grandparents and they're your primary support structure. The law doesn't recognize queer families who haven't been sanctioned through the court through parentage. There are just so many different ways that the law is not even just unimaginative, it doesn't reflect the reality of our beautiful lives.
Rafa Kidvai: Is some of that what brought you into this work in the first place and how is that understanding shaping your work and youth access?
Kylee Sunderlin: It is. I grew up in rural Michigan, and I remember the first time that Child Protective Services walked into my home. My parents were caring for my niece, and the caseworker was training someone on the job. And so she was going on and on about the great work that their office had done to make sure that my niece was with family. They'd done such a thorough vetting, and then she called my dad by the wrong name, not even close. And then she said that he was a school teacher when actually he worked on the floor in a magnetics factory and was a union leader there. I mean, I'm laughing because it's just so absurd. It was as if they needed my family to be fancier than we were. I'm not trying to suggest that this is the harm, right? But it is such a clear distillation of who gets to make these enormously important decisions about our families, and the answer is that the people who get to make these decisions have no clue who we are.
Rafa Kidvai: You've written about the hypocrisy of laws that suggest young people aren't mature enough to decide on abortion, but they are mature enough, for instance, to carry a pregnancy. Can you talk about the kinds of harm that is inflicted upon young people by the state through that hypocrisy?
Kylee Sunderlin: Where do I start? So first, this is a system that tells people that we don't trust them with their own bodies. We live in a country where we deregulate guns, we deregulate environmental protections in ways that are actively putting their bodies in harm's way. I'm having a change of heart. Maybe this is morally consistent, this country is sending a message to everyone that, "Full stop. It doesn't care about young people." But I do come back to the hypocrisy in the law that a judge is making a decision about whether someone is mature enough to make the decision to have an abortion, and then if the judge decides no, then they're forced to give birth against their will. In what world does that make sense?
Honestly, I think it's some twisted Amy Coney Barrett world where there's this expectation that someone is forced to remain pregnant and give birth against their will because like, "Hooray, they can just give their babies away to some middle-class family who wants them." I've publicly shared that as a queer woman building a queer family, by the time I decided to have children, I really wanted them. The process of getting pregnant was hard. Pregnancy itself was hard, birth was hard, postpartum was hard. And so the idea that we would force people to do this when that's not what they want is wild, especially when they're young people themselves if that is not what they want.
And then there's this whole other layer of... I don't want to call it hypocrisy, but it's a tension that I sit with between how we treat young people under different parts of the law. So we have this whole progeny of cases like Roper v. Simmons, where the Supreme Court held that executing minors under the death penalty as unconstitutional. And then you have cases that came after that like Miller v. Alabama, where juvenile life without parole is unconstitutional. And so a lot of these arguments were rooted in the idea that young people have diminished capacity around decision-making, and I'm really grateful that those decisions exist, right?
Any chance to have fewer people in cages, I'm here for it. And in my current work, I'm here arguing about how young people absolutely have the capacity to make decisions about their bodies and lives. I am arguing against the idea of diminished capacity and presumably, we're all advocates working in support of young people, and it can feel really hard to reconcile those competing ideas. And so I'm consistently thinking about ways that we can collectively talk about how this actually isn't about the decision-making of young people. We need to be thinking about the harm that the state is inflicting. How can we be okay with the state deciding the trajectory of someone's life at 15 years old, 16 years old? Is that really the power that we want to vest in the state?
Rafa Kidvai: I think, Kylee what you're pointing to earlier in terms of your own experience of wanting to be a parent and how difficult it is despite access and desire, how much more difficult it is when someone is marginalized, traumatized, has been through the foster care system or has experienced interpersonal trauma. And I guess I would love to hear a little bit more about how people who are marginalized and traumatized experience these harms.
Kylee Sunderlin: Court is scary. Judges are scary, courtrooms are scary. Being surveilled by cameras when you walk into a courtroom is scary. Going through metal detectors. I'm 40 years old and have been an attorney for 11 years and I am still so scared every time I have to go through that process. That shit is frightening. And they do it on purpose, and that's because court, overwhelmingly, is a place where bad things happen. It's a place where other people make decisions about you and your life. It is a place where you go where either you are getting into trouble or someone else has harmed you, and either you or the state, against your will, is seeking some kind of remedy to that harm. The court has no business making decisions about our lives, our families, our communities, what keeps us safe. We keep ourselves safe, we keep our community safe, we keep our family safe, and the best thing we could do is to keep the courts out of it entirely.
Rafa Kidvai: Well, this is a perfect segue into my last question, which is something we ask everybody. Our podcast is called No Body Criminalized. What does no body criminalized mean to you?
Kylee Sunderlin: To me, criminalization is so much broader than an arrest or a prosecution or a family separation or immigration removal. It's really about living under state violence, right? It's grounded in this pervasive and insidious belief that certain people are disposable, that they deserve to be surveilled and controlled and punished by the state. In the same way when I think about abolition and the focus on it, not just being about tearing down systems, but also about building up and creating the world that we want to live in. It's about creating a world where everyone can move freely, where everyone lives in safety, where everyone has the support and the community that they need to thrive. It means that we don't have to ask courts to sanction the decisions that we are making. That's what no body criminalized means to me. We are all trying to work toward a future where every one of us has the power and support to make decisions about our bodies, families, and communities without barriers, coercion, or punishment in safety and with dignity.
Rafa Kidvai: I love that. Kylee, thank you so much. You talked about building up worlds together, and I am so in awe of you and so grateful that I get to build up some things with you to fight criminalization. I appreciate you and your wisdom so much.
Kylee Sunderlin: You are such a gift. It has been a joy to talk with you, and I'm so grateful for your work.
Rafa Kidvai: Here are some takeaways from our conversation. Kylee highlighted the severe harms of the judicial bypass process emphasizing how it fails to consider the diverse and complex realities of family structures and relationships. This process often subjects young people to additional trauma and state intervention, making an already challenging situation even more difficult. She shared her personal journey and the deep connections between her work and family defense and reproductive justice, illustrating the pervasive impact of state violence on marginalized communities. Kylee also discussed the broader implications of criminalization and how it extends well beyond formal legal proceedings to affecting an individual's sense of autonomy and worthiness.
Kylee Sunderlin is the legal support director at If/When/How. You can learn more about their work at ifwhenhow.org. I'm Rafa Kidvai, the host of this podcast and director of the Repro Legal Defense Fund at If/When/How. The Repro Legal Defense Fund funds bail and strong defenses for people being punished for abortion, miscarriage, stillbirth, and other pregnancy outcomes. Learn more at reprolegaldefensefund.org. If you have questions about your legal rights, go to reprolegalhelpline.org or call 844-868-2812. No Body Criminalized is produced by Phantom Center Media and Entertainment for the Repro Legal Defense Fund at If/When/How. Pamela Kirkland is the show's producer. Kojin Tashiro is lead producer and mixed this episode. And remember, keep your community safe, and don't talk to cops.