Defining the constitutional outer limits of abortion law has been one of the hardest fought battles in the history of law. To be frank it is a battle that continues to be fought throughout the nation. As the makeup of the Supreme Court shifts, it is one of the topics that is most keenly considered in selecting Justices. This is in large part due to the sheer number of laws on the issue coming out of or being considered by legislatures in the many states. This has been especially true in the last decade or so as states have taken increasingly hostile stances towards the practice-of the slightly over a thousand abortion restrictions made into law around 300 of them have come between 2010 and 2016.
Alabama has had a healthy share of these restrictions over time. In fact, it’s one of the most restrictive states in the country. As of now, Alabama laws require a woman to receive state-directed counseling and wait 48 hours before receiving an abortion, some means of abortion common elsewhere are restricted, public funding and health care for abortion is allowed only in cases of rape, incest, or when a woman’s life is in danger, a woman must undergo and ultrasound and be asked if she wants to see it before receiving an abortion, also abortions may only be performed up to 22 weeks after the woman’s last menstrual period. Also, if you’re a minor, you need to receive parental consent before you can receive an abortion.
Up until recently, the rules for minors didn’t end there. As part of their parental consent rule, Alabama includes a judicial bypass clause. This is required for such a restriction to be constitutional and basically means that a minor whose parents won’t consent can turn to the courts to rule that she is or isn’t mature enough to decide for herself whether she should get an abortion or whether an abortion is in her best interests as a minor. Alabama, however, went a little further to complicate this process for minors. In 2014, Alabama added an additional provision to the law–unique to Alabama–which added a sort of mini-trial to the proceedings. The new law added two extra hoops for these minors, and they were some serious hoops. First, a judge can appoint a guardian ad litem for the fetus–essentially a party whose job was to advocate for the fetus (sort of like a fetus lawyer) in all proceedings regarding a judicial bypass. Second, it required the local district attorney to be involved in the proceedings and allowed them to bring witnesses to the hearing to question the girl’s maturity. This basically meant that a girl’s friends, family, therapist, preacher–basically anybody connected to her–could be called as a character witness to one of her most vulnerable times.
The Reasoning Behind the Ruling
The state’s argument behind the law was that it was designed to create a confidential and meaningful inquiry into a minor’s maturity when seeking an abortion without parental consent. However the ACLU, on the other side, said that the law did anything but. They argued that the teens seeking judicial bypass were subject to much less confidentiality than before under the law. The DA could call witnesses including anybody from a girl’s teacher to their boyfriend to the parents which refused to consent in the first place.
Ultimately, the actual legality of the law depended on whether the law was overly burdensome to the minors seeking an abortion. Under Roe v. Wade, a woman has a constitutional right to receive abortions. However, this is far from an absolute right under the current law. Just looking at the laundry list of restrictions on the practice in Alabama it’s obvious that there are some restrictions that can pass constitutional muster. The legal analysis for determining whether a restriction on access to abortion is constitutional was determined in 1992 in Planned Parenthood v. Casey. The Supreme Court held that a regulation is not constitutional when it creates a “substantial obstacle” to a woman receiving an abortion. This is not the most helpful of standards on its face, leaving a lot of room for interpretation. Fortunately, we’ve had some more clarification when it comes to parental consent rules.
To be acceptable, a parental consent law must include a judicial bypass which is effective, confidential, and expeditious. Useful, private and quick. Alabama’s law made their bypass none of these things. The judge in this case specifically noted that the many witnesses called ruined any potential chance of anonymity. The proceedings and appeals from the DA also made the hearings much longer than reasonable.
Under Supreme Court rulings, a judicial bypass must only consider whether a minor is mature and whether the abortion is in her best interest. Under Alabama’s act, the interests of the state, the parents, and even the fetus would have to be considered as well. This by itself would have been enough for the court to find Alabama’s law unconstitutional.
Tragic Circumstances Part of the Ruling
The law saw some seriously horrifying uses which certainly contributed to the judge’s ruling. The judge in this case noted one case in her ruling itself. Be warned before reading on that the circumstances of this case are incredibly disturbing. In the case cited by the judge, a 12-year-old girl was raped by a male relative-resulting in a pregnancy. The girl did not know her father and the rape occurred under the watch of her mother. In seeking judicial bypass to receive an abortion, she faced the full force of the DA’s office in opposing her access to the abortion. This led to an enormous amount of legal opposition to her motion that substantially delayed the proceedings. While the initial trial court granted her bypass, the DA even appealed this decision. While the minor ultimately won this appeal, the court noted how obstructive and intrusive this process was in reaching their decision.
There’s no doubt that the application and use of the law, acting as an enormous roadblock to vulnerable minors in terrible circumstances, was partially behind the ruling of the court and rightfully so. Abortion law is something that is highly vulnerable to change in the upcoming years, a more conservative Supreme Court could lead to limitations on a woman’s reproductive rights. However, as it stands, laws like Alabama’s are clearly unconstitutional. In fact, no court has ever found an adversarial process added to a judicial bypass constitutional. The judge here did the right thing, both under the law and in acting in the best interests of children in terrible circumstances.