Alabama is one of 38 states that requires minors seeking abortions to either obtain their parents’ consent or go through “judicial bypass,” a process through which a minor goes to a judge for a court order granting her an abortion. In July, anti-choice lawmakers in the state radically amended this judicial bypass process to allow the court to appoint a guardian for a minor’s fetus, and to allow the district attorney—and in some instances even the minor’s parents—to cross-examine the minor and to oppose her request for an abortion. The law also allows any of these parties to disclose the minor’s pregnancy to other people in the minor’s life, including her teachers, her employers, and her friends, and to call them to testify in court.
“It’s putting teens on trial who are most in need of the help a bypass procedure is supposed to afford,” said Andrew Beck, an attorney with the American Civil Liberties Union (ACLU), in an interview with Rewire. Beck is one of the ACLU attorneys challenging the Alabama law on behalf of a Montgomery abortion clinic, arguing it is unconstitutional.
The ACLU has asked a federal court to block the judicial bypass law.
According to the complaint, no other judicial bypass law in the country treats the process of a minor seeking a bypass as a quasi-criminal proceeding the way the Alabama law now does, particularly with the inclusion of a prosecuting district attorney. “What the law says is that Alabama has an interest not just in protecting these minors, but in protecting what it calls ‘potential life’ or ‘fetal life,’ and so really the district attorney is there essentially as a prosecutor on behalf of the fetus,” said Beck. “So the fetus basically gets two lawyers to try and stop the minor from getting an abortion in a way that no other state’s law comes close to doing.”
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“The judicial bypass proceedings are supposed to be confidential, expeditious, and non-confrontational,” explained Beck. “The district attorney has no role in these decisions. They know none of the details that are relevant to these proceedings, and [having the district attorney as part of them] treats a minor seeking an abortion who needs to go to court to have a confidential and speedy resolution to her matter like a criminal.”
What Alabama has done is to basically put teens on trial,” Beck continued. “The law … gives these adverse parties who are there to cross-examine and oppose the minor extraordinary powers that run totally contrary to what the Supreme Court has said is allowable, by letting them violate her confidentiality and tell anyone in her life that she is pregnant and seeking an abortion so they can haul those people into court as witnesses.”
“It also gives them the power to delay her access to an abortion,” Beck added. “And we know that abortion is obviously very time-sensitive.”
The law may represent a radical departure from judicial bypass proceedings nationwide like advocates claim, but as Molly Redden reported in Mother Jones, some state court judges in Alabama had been appointing lawyers for fetuses for years. According to Redden, an Alabama judge tried to appoint an attorney to represent a fetus in the state’s very first bypass hearing. Throughout the 1990s and 2000s one judge in particular, state Judge Walter Mark Anderson III, appointed anti-choice advocate and attorney Julian McPhillips to represent the interests of the fetus in almost every bypass proceeding before him in a process that largely mirrors Alabama’s law today.
The fact that appointing lawyers for fetuses in bypass proceedings started as the unofficial practice of one state court judge and evolved into a statutory requirement is especially troubling in light of the Alabama Supreme Court’s decision this spring in Ex Parte Hicks, which upheld the conviction of Sarah Janie Hicks under Alabama’s child endangerment statute. Hicks gave birth to a healthy baby who later tested positive for cocaine.
In Hicks, the Alabama Supreme Court ruled that “the plain meaning of the word ‘child,’ as that word is used in the chemical-endangerment statute, includes an unborn child,” and therefore prosecuting pregnant persons under the statue was permissible. Passed in 2006, Alabama’s chemical endangerment law was intended to deter people from bringing children to places where controlled substances are produced or distributed, such as methamphetamine laboratories, but increasingly prosecutors have used it to charge pregnant women who test positive for a controlled substance or who, like Hicks, give birth to a healthy newborn who tests positive for a controlled substance, or who experience a pregnancy loss.
In a concurring opinion supporting the prosecution of pregnant persons and those who have just given birth under the state’s chemical endangerment statute, Alabama Supreme Court Justice Tom Parker uses the Hicks case to make the argument for prosecuting persons who have had abortions.
“Liberty will continue to find no refuge in abortion jurisprudence until courts … like Alabama recognize an unborn child’s inalienable right to life at every point in time and in every respect,” Parker wrote in his Hicks concurrence, referencing former Supreme Court Justice Sandra Day O’Connor’s famous opening line in Planned Parenthood v. Casey, the 1992 decision that largely re-affirmed abortion rights under Roe v. Wade.
According to Parker, because the state has an interest in protecting life “at all stages of development,” this necessitates jailing and prosecuting women for not just endangering a developing fetus, but in the case of abortions as well. “Why should legal protection of an individual at a particular point in time depend entirely upon his or her subjective relation to the killer?” Parker wrote. “Because an unborn child has an inalienable right to life from its earliest stages of development, it is entitled not only to a life free from the harmful effects of chemicals at all stages of development but also to life itself at all stages of development. Treating an unborn child as a separate and distinct person in only select respects defies logic and our deepest sense of morality.”
Parker’s concurrence in Hicks served only one purpose: to make the case for re-criminalizing abortion and prosecuting patients who get them. Alabama’s current judicial bypass law inches the state closer to that goal by transforming a process that is supposed to be confidential, quick, and respectful of the minor’s rights to one that treats the minor like an accused criminal. By empowering the district attorney to cross-examine and call witnesses against the minor on behalf of the fetus, the Alabama judicial bypass law in effect grants fetal “personhood” rights that don’t just compete with the rights of the minor to terminate a pregnancy, should it result in a minor being denied a bypass—they can actually supersede them.
“This law aims to shame a young woman into not having an abortion,” said Susan Watson, executive director of the ACLU of Alabama in a statement following the filing of the ACLU’s lawsuit. “Why should she be put on trial and treated like a criminal for a constitutionally protected procedure?”
She shouldn’t. Unless the goal is to acclimate the public and the courts to treating patients who need abortions like criminals, as the Alabama Supreme Court has suggested. In that case, the state’s judicial bypass process is a logical first step.