Appeals court panel strikes down Alabama’s amended parental consent law

By Dave Andrusko

On Wednesday, an 11th Circuit Court of Appeals panel agreed with U.S. Magistrate Judge Susan Russ Walker’s 2017  decision to strike down portions of Alabama’s amended 2014 parental consent act.

Like all parental involvement laws, Alabama’s parental law has a judicial bypass. If the minor does not want to attempt to gain parental consent for her abortion, she can go to a judge and attempt to persuade the court that she is mature enough to make that decision on her own or that an abortion is in her “best interest.”

The 11th circuit “agree[d] with the district court that the act constitutes an undue burden because it places a substantial obstacle on a ‘large fraction’ of unemancipated minors who seek to obtain a court order authorizing an abortion without the consent of their parent or guardian.” 

The three-member court panel goes on for pages trying to determine what constitutes a “large fraction” when only a tiny, tiny percent of minors (1.38%) who received abortions do so through a judicial bypass. 

Their conclusion/best guess is that roughly four teens annually seek the judicial bypass. “Given this small universe, even if we use a purely arithmetical calculation, there would still be a ‘large fraction’ facing an undue burden if just three or four unemancipated minors would be adversely affected by Act’s provisions in the bypass proceeding.”

But the core of the appeals panel’s opposition—as was the trial judge’s– is (as the office of Attorney General Steve Marshall summarizes it) that the 2014 amendments “required the local District Attorney to receive notice of and to appear at the bypass hearing, structured a role for a guardian ad litem for a fetus, and allowed for the participation of the girl’s parents if they learned independently about the proceeding.” That is, that the judicial bypass does not act to rubberstamp the minor’s request to avoid her parents in this life and death decision—no matter how few minors are affected—and gives considerations to the life of the unborn child.

Attorney General Marshall  addressed all this in the state’s brief.

The Supreme Court has held that a bypass procedure is constitutional if it is (1) effective, (2) confidential, and (3) expeditious. Alabama’s 2014 amendments do not pose any impediment on the ability of a girl to seek a judicial bypass; they do not require the girl to notify her parents or seek their consent. The amendments provide for a confidential proceeding in which the girl is referred to by her initials with exceptions only as a state judge deems necessary. And the entire proceeding must be expedited. 

So  what is “The amendments’ premise”? “[T]o give state bypass courts, within appropriate limits, the opportunity to conduct a more meaningful application of that standard.”

How have the 2014 amendments (which “have been in effect for several years”) worked? According to the AG’s office, “[T]here is no evidence that state court judges, district attorneys, or court personnel have implemented these amendments in an inappropriate manner.”

Thus, “Alabama’s 2014 amendments appropriately balance the interest of the girl, the fundamental rights of her parents, and the state’s need for procedural rules that allow for a full and fair factfinding. The district court’s decision should be reversed.”

In summary, as Attorney General Marshall said when he first announced he was appealing Judge Walker’s decision

“The federal court erroneously concluded that amendments to Alabama’s parental consent abortion law passed in 2014 undermine a minor’s right to anonymity and are therefore unconstitutional.

“The court ruling ignores the numerous protections afforded under Alabama law to a minor seeking approval for an abortion without parental consent.

“In fact, changes made to Alabama’s parental consent law serve to strengthen the ability of bypass courts to obtain sufficient evidence in rendering a decision when a pregnant minor seeks an abortion without the consent of a parent.”