Texas Thinks Your Fetus Needs a Lawyer

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Culture & Conversation What the Crap?!

Texas Thinks Your Fetus Needs a Lawyer

Imani Gandy

Texas Rep. Scott Sanford's "lawyers for fetuses" bill is as ludicrous as you might imagine. What if a fetus doesn't want to be born?

If you are a pregnant minor living in Texas and you want to get an abortion, you might have to go to court and be cross-examined by your fetus’ attorney.

Yes, you read me correctly—your fetus’ attorney. Try not to pass out at the sheer absurdity of it all while I explain.

Texas is one of 36 states that require a pregnant minor who wishes to get an abortion without involving a parent or guardian to go through judicial bypass, a process that involves going to a judge for a court order.

The judicial bypass procedure is absurd on its own, consisting of a hearing before a judge who will ask the minor a bunch of questions to determine whether they are mature enough to decide to get an abortion on their own. If the court determines that, no, this child is not mature enough to decide to terminate an unwanted pregnancy, then it will decide that the child is, apparently, mature enough to be a parent—or at least to give birth, if the child decides to give the baby up for adoption.

This process is bizarre enough without adding a layer of sheer nonsense. But that’s what state Rep. Scott Sanford, who introduced the “lawyers for fetuses” bill last month, is trying to do: to turn an already pain-in-the-ass process into a ludicrous exercise by allowing a court to appoint an attorney to represent the “unborn child” during the judicial bypass proceeding.

I have questions.

How is this representation supposed to work exactly? Usually when attorneys represent a client, they meet with the client to ensure that they are actually representing the client’s interests rather than what the attorney thinks the client’s interests should be. How is an attorney supposed to meet with the “unborn child”? How is that “unborn child” supposed to instruct the attorney regarding the scope of the attorney-client relationship? What if the “unborn child” wishes to remain that way—unborn? How is the attorney supposed to know? Are attorneys supposed to just presume that every fetus wants to be born? What if the fetus were aware that being born might lead to a life of poverty? Or that it’s being born to a minor who doesn’t have the resources or maturity to care for it? What if the unborn child doesn’t want to be put up for adoption?

How is the attorney supposed to glean this information? By way of educated guess? Does the lawyer yell into the pregnant minor’s belly button and hold up a glass to their belly in hopes of hearing a response?

Besides, I know people who had difficult upbringings who have remarked that their mother never should have had them. What is the remedy for the child who feels this way? The law doesn’t provide them one. Indeed, the Texas law provides immunity for the attorney appointed for the fetus as long as the attorney acts in good faith. But how do we even know what good faith is? It seems to me that Rep. Sanford is making a lot of presumptions about the wants and desires of a fetus that cannot speak for itself.

This “lawyers for fetuses” trend is not new.

Just two years ago in Alabama, a probate judge appointed the would-be father of a fetus, Ryan Magers, as the fetus’ legal representative so that Magers could file a wrongful death lawsuit against the abortion clinic that provided abortion care to his ex-girlfriend. That case was ultimately dismissed.

In 2014, Alabama passed a law that not only permitted a judge to appoint a lawyer for the fetus, but also expressly permitted the prosecuting district attorney—and in some instances even the minor’s parents—to cross-examine the minor and to oppose the request for an abortion. The law actually permitted the minor’s parents to participate in the proceedings, which obviates the entire purpose of the judicial bypass: permitting a minor to get an abortion without notifying their parent. The law also permitted disclosure to other people in the minor’s life, including their teachers, employers, and friends, and even permitted the district attorney to call those people to testify in court. (The ACLU filed a lawsuit challenging Alabama’s law, and a district court blocked the law, ruling that it violated a pregnant minor’s constitutional right to obtain an abortion without the involvement of their parents or legal guardian.)

And before that, as Molly Redden reported in Mother Jones, state court judges in Alabama had been appointing lawyers for fetuses for years. One such judge, Walter Mark Anderson III, appointed anti-choice advocate and attorney Julian McPhillips to represent fetuses in dozens of judicial bypass proceedings in his court through the 1990s and 2000s.

Consider this exchange published in Mother Jones between McPhillips and a 17-year-old girl who sought an abortion. McPhillips cross-examines the girl on behalf of her fetus—which he creepily dubbed “Baby Ashley”:

MCPHILLIPS: You say that you are aware that God instructed you not to kill your own baby, but you want to do it anyway? And are you saying here today that notwithstanding everything that you want to interfere with God’s plan for your baby?
MINOR: I think that is between me and God.
MCPHILLIPS: And you are not concerned after you have had the abortion that some day you may wake up and say my gosh, what have I done to my own baby?
MINOR: It may happen.
MCPHILLIPS: You are not worried about being haunted by this? Here you have the chance to save the life of your own baby … And still you want to go ahead and snuff out the life of your own baby?
MINOR: Yes.

What, I ask you, the fuck?

After the court granted the parental consent waiver in the Baby Ashley case, McPhillips tried to appeal the decision, but the court ruled that a fetus couldn’t appeal. And why should they be able to appeal? It makes no sense to appoint a lawyer to a fetus in the first place.

Texas’ proposed law does not seem to be as hostile as Alabama’s; it doesn’t expressly permit the fetus’s lawyer to cross-examine the pregnant minor and treat them like an accused criminal.

But it doesn’t exclude the possibility either.

Legal proceedings are inherently adversarial in nature. An attorney appointed to represent the interests of the fetus that a pregnant minor is carrying will necessarily be adversarial to the minor who is trying to terminate that attorney’s client. Just saying it out loud reveals the absolute absurdity.

Simply put, allowing a pregnancy to have its day in court is preposterous. And it’s just another way that Texas legislators are trying to make abortion inaccessible.