Alabama was looking to make it much harder for teenagers to get abortion care.
Late last month, abortion advocates notched a win in the 11th Circuit Court of Appeals. That court upheld a lower court's decision that barred Alabama from making its judicial bypass procedure for minors even harder.
According to the Guttmacher Institute, which tracks abortion laws, 37 states have judicial bypass laws, where a minor can get approval from a judge to have an abortion rather than having their parent or guardian consent. These bypass procedures provide critical protections in situations where teens fear abuse or being kicked out of their homes for being pregnant.
1n 2014, the state passed a law altering the judicial bypass proceedings in the state, adding several new provisions and making the process much harder for teenagers to navigate, according to the 11th Circuit. The law required the court to immediately notify the district attorney in the county where the minor requested the bypass, and the district attorney had to appear and "participate as an advocate for the state." The district attorney could even ask for additional time to present their case if needed.
The law also gave the court the right to appoint a guardian ad litem to represent "the interests of the unborn child." That guardian was to be allowed to cross-examine the minor seeking the bypass. Similarly, if the minor's parents did happen to become aware of the bypass request, they could show up at the hearing and cross-examine them as well. If the bypass petition was granted, the district attorney, the guardian ad litem, and the parents could all appeal that decision.
What both the lower court and the appellate court found was that there was no real need for the additional procedures in the 2014 law. First, only 1.38% of minors who received abortions in Alabama did so via the bypass procedure. Next, even if the court accepted as true the state's assertion that these new procedures were meant to give courts guidance in making decisions, they "did not purport to provide any guidance, assistance, or educational benefits to the minor." The courts focused on that because the Alabama Legislature expressly stated in the statute that its goal was to provide guidance and assistance to minors.
The new law, then, didn't benefit minors, but, the 11th Circuit found, it certainly did burden them. First, though the district attorney was ostensibly to be a neutral party in the proceedings, they would most likely oppose the bypass petition and turn the bypass proceeding into an adversarial and trial-like proceeding instead. Indeed, for the brief time the law was in effect, a district attorney opposed a bypass request from a 12-year-old who an adult relative raped."
The 11th Circuit was arguably even less fond of the provision in the law that allowed a judge to appoint a guardian for the fetus. As the appeals court pointed out, if the guardian is required to represent the "interests" of the fetus, the guardian would presumably always have to argue that it is in the fetus's best interest to be alive. With that, the minor would be in an adversarial position against the district attorney and guardian — a heavy burden for a minor to carry.
The court also found that a minor's privacy rights would be severely burdened as there was a strong chance their name would become public, even though confidentiality is required. At a minimum, the law allows for the district attorney, a guardian, and a judge to know the minor's identity. The district attorney is also allowed to subpoena witnesses, meaning that those witnesses would also learn the minor's identity. Finally, the court said, it's likely the district attorney's staff and other office workers would necessarily learn the minor's identity.
Alabama's attempt to pass this unnecessary law highlights two recurring features of recent anti-abortion laws. First, the state simply wasn't able to provide any substantial information about the issue they were trying to address, and the appellate court concluded, "[w]e see no problem that the new law helps to cure." It burdened the minors but didn't benefit them in any way.
In that respect, the law is similar to other attacks on abortion rights, like laws that bar abortions based on the sex of the fetus. Those bans often purport to address situations where pregnant people knowingly abort the fetus because of its sex. Still, there's no evidence that occurs with any frequency, and it certainly isn't reflected in a large-scale gender imbalance.
Next, Alabama's law is one of a new breed of laws that allow third parties to interfere in the process of seeking an abortion. Alabama's law was limited to allowing district attorneys, guardians, and parents to challenge a minor seeking a bypass. Texas, however, recently passed an abortion law that would allow anyone — even people who live outside the state — to sue Texas abortion clinics and, if they win, to collect $10,000 from the Texas taxpayers.
In the end, Alabama's law was just about making it harder for minors to get abortions. It was already likely difficult for many minors to go before a judge to justify a need for an abortion. The revision to the law turned that already difficult situation into a full-fledged adversarial experience, a mini-trial where the minor was, inevitably, the victim.