In 2014, Alabama passed an abortion law that was later struck down by a federal district court. The law governed minors who wished to have an abortion but were either unable or unwilling to get their parents’ consent for the procedure. Like parental consent laws in other states, the Alabama law stipulated that in this situation, the minor would be able to go to a judge to get approval for her abortion. Among the things that made the law special was that it required or permitted various additional parties to participate in the proceeding: the district attorney (required), the minor’s parents (permitted upon the parents’ wishes, if they learned of the proceeding), and a guardian ad litem (G.A.L.) for the unborn child (i.e., the embryo or fetus) (permitted upon the court’s decision). These parties could “examine” the minor and advocate for their respective interests. Because of these additions, along with other provisions of the law, a district court declared that the law violated the minor’s constitutional right to an abortion. In this column, after discussing the court’s ruling, I will take up the question of what such a law communicates about Alabama’s view of the right to abortion.
Invalidation of the Law
Before discussing the meaning of the law, it is worth spending a little time on some of the federal court’s reasons for invalidating it under the Constitution. The court concluded that giving parents the right to participate as parties (and be represented by counsel) directly undermined the Supreme Court’s holding in Bellotti v. Baird (a.k.a. “Bellotti II”) that the bypass procedure be a means of limiting parental involvement in the minor’s abortion decision. Parents and legal guardians are uniquely situated to be able to punish and otherwise control the behavior of their children and interfere with their ability to get an abortion or to get to court for a bypass proceeding. Providing for parental involvement in the bypass proceeding itself, as the Alabama law did, according to the court, “facilitates and, indeed, invites … obstruction” of access to abortion and to court. The Constitution protects minors from the sort of parental involvement permitted by the Alabama law, which also included the parental right to appeal a bypass court’s decision. The Alabama federal court thus determined that the parental involvement and right to appeal provisions of the Alabama law violated the minor’s right to a parent-free bypass proceeding and violated her liberty interests as well.
The court next determined that the Alabama law violated the minor’s right to anonymity. Under the law, the minor’s identity would be made known not only to the judge but to any guardian ad litem, the district attorney or D.A.’s representative, witnesses who have “a need to know the minor’s identity,” and other people who need to know, in the court’s determination. Beyond this, parents and guardians of affected minors might also be notified of proceedings. The court said that “[t]he addition of these parties to the list of those to whom the petitioner’s identity may be disclosed compromises the minor’s anonymity to a degree well beyond the scope permitted by Bellotti II….” The court determined that other provisions permitting investigation by parties or the court and involving witnesses who could have participated in the proceedings “also breach the minors’ anonymity and the confidentiality of the proceedings.” The law also provided complete discretion to the bypass court to authorize disclosure to “an unlimited number of people.” This last feature of the law risked public exposure and harassment of the woman and, according to the court, posed “an unacceptable danger of deterring exercise of” the right to abortion.
The court then weighed the benefits and burdens of the law, particularly in terms of providing the minor with information necessary to her decision regarding whether to terminate her pregnancy. The court concluded that the additional parties and other features of the law would not serve to educate the minor in any way that would relevantly augment the information that she would already have been exposed to prior to appearing before the judge. The court also found that the law’s special features—unique among the bypass laws of the states that have parental involvement statutes—would not help the judge in making an informed choice about the minor’s petition. The court found no reason to think that the more typical bypass proceeding, which involves only the minor and the judge, is deficient in permitting the development of evidence relevant to the judge’s ruling. The court determined further that whatever aid the law’s special features might provide would be outweighed by the burden that they imposed. Accordingly, the court found that the law imposed an undue burden and a substantial obstacle in the path of affected minors and therefore violated the Constitution.
The District Attorney
The court was right to hold the Alabama law unconstitutional. It plainly and unduly burdened a minor’s right to have an abortion. Here, however, we shall examine the apparent meaning of the law. By that, I do not mean the subjective intent of the legislators. That is, we shall look at what the law seemed to be communicating to the public about a minor who seeks to terminate her pregnancy, quite apart from the concrete impediments that it placed in her path.
Start with the requirement that a court hearing a judicial bypass abortion request from a minor would have had to notify the district attorney (D.A.), who would then have become a party to the proceeding. Why bring the D.A. into the picture? A D.A. is an attorney who spends the bulk of his time prosecuting suspected lawbreakers for their criminal activity. What the Alabama law did, then, by demanding the presence of a D.A., was to communicate the view that abortion is a criminal matter. Regardless of what the D.A. has to say about the minor’s wish for an abortion (and it is, frankly, difficult to imagine how the D.A. might relevantly contribute to the proceeding), his very presence in the courtroom turns what is ordinarily an ex parte hearing into something that feels more adversarial, something with a hint of “The People vs. Minor Who Seeks Abortion” about it. By inserting the D.A. into the judicial bypass process, then, the State of Alabama communicated that it regards abortion as the sort of act that ought to concern a prosecutor, i.e., a quasi-criminal act. Though not providing for an actual criminal prosecution, requiring that a prosecutor be present as a party sets a tone that characterizes the girl who seeks an abortion as someone who—quite distinct from a person exercising her constitutional rights—is engaged in criminal activity.
What are the parents doing at the hearing? This is a good question because the whole reason for having the judicial bypass alternative to parental consent is that the minor is, by hypothesis, unable or unwilling to get consent from her parents. This means one of two things. She may be afraid to go to her parents because she does not want them to know that she is pregnant, a wish that will plainly have been frustrated if the parents learned of the proceeding and will be further undermined by the parents’ presence at the hearing. Or she may have already asked her parents for consent, and they may have refused to grant it. If this is the case, then the parents will be there to argue against their daughter’s access to an abortion.
Under Bellotti II, there are two possibilities for the minor who seeks abortion through a judicial bypass. One is that she demonstrates that she is mature enough to make the decision on her own. If that is the case, then it is completely inappropriate for her parents to be there at the hearing, arguing against the substance of what their daughter, as a mature adult, has decided for herself.
The second possibility for the minor who utilizes judicial bypass is that although she is not mature, she can attempt to persuade the judge that an abortion is in her best interests. In that event, the judicial bypass procedure—required by the Supreme Court as an alternative to parental consent—serves to make the judge a temporary substitute for her parents in deciding what is in the best interests of their child. Given that the judge is playing that role, the parents must, by a process of deduction, be representing something other than the girl’s best interests. And it seems apparent that what they are representing are their own interests vis-à-vis the pregnancy, as potential grandparents.
While the father of the pregnancy is not there as a party, the grandparents are, and they are presumably going to argue that they have an interest in their daughter’s taking the pregnancy to term because she is carrying their grandchild. The interests of the parents, however, are not among the proper cognizable interests to be considered at a judicial bypass proceeding. Alabama, by inviting the parents to be parties, then, conveys its view that the “unborn child’s” grandparents should have a say as well, and their say—given that they are at a proceeding that bypasses their consent—will almost certainly be to argue against their daughter’s right to terminate her pregnancy. As the inclusion of the D.A. indicates that abortion is really a crime, so the inclusion of the minors’ parents exhibits hostility to abortion as depriving would-be grandparents of their opportunity to become grandparents.
The third additional party that the court could have included in the proceedings was a G.A.L. appointed to represent the interests of the embryo or fetus that the minor was carrying (and the life of which she sought to terminate). It is the inclusion of this party that is the most plainly hostile to the right to abortion. While the D.A.’s presence hints at criminality, and the parents’ presence introduces outside interests (those of the potential grandparents) into the picture, the G.A.L.’s inclusion expressly treats the embryo or fetus as a person with interests to be protected at the proceeding. And if we assume that the embryo or fetus is a person, then it would seem to follow that its best interests would lie in continued existence (though I have argued elsewhere that only sentient beings have such an interest).
Having the G.A.L. as a party, then, communicates the message that Alabama regards the embryo or fetus as entitled to have its interests taken into account by a judge deciding whether a minor should be allowed to kill that embryo or fetus. Not to put too fine a point on it, but it would appear that by including a G.A.L. for the embryo or fetus as a party, Alabama is communicating its belief that abortion represents the murder of that embryo or fetus, a belief that calls into question the legitimacy of abortion rights.
Statutes as Vehicles for Communication
The law at issue in this case was held unconstitutional. But the law did more than concretely violate the minor’s constitutional right to abortion. The law operated on a level beyond its strict regulatory parameters. It worked as a mode of communication, whereby Alabama let its citizens know what it thinks about minors getting abortions.
It is quite possible that Alabama legislators expected that the 2014 judicial bypass law would not survive constitutional scrutiny, given the existing law governing a minor’s right to abortion. Even if they had this expectation, however, they might have still seen fit to pass the law in question. By doing so, it let people know that (1) abortion is or ought to be a criminal act, (2) people beyond the girl herself ought to have their interests count in making the ultimate decision, and (3) the girl’s right to abortion ought to have to lock horns at every decisional juncture with an embryo’s or fetus’s right to live. This message is clearly at odds with the thinking behind protecting a person’s right to abortion, whether she is a minor or an adult. And the law in that sense operated as advocacy for a very different legal regime.