A Pro-Choice Victory in Alabama: Reproductive Health Services v. Steven T. Marshall
by Julie C. Stromberg
On July 28th, the pro-life movement took a major hit when U.S. Magistrate Judge Susan Russ Walker struck down as unconstitutional provisions of a 2014 Alabama law requiring that minors seeking an abortion undergo a hearing where the district attorney, the minor’s parent, parents, or legal guardians could be joined as parties, and the fetus could be represented by a court-appointed lawyer. Siding with the Alabama Americans Civil Liberties Union (ACLU), the court in Reproductive Health Services v. Steven T. Marshall, Case No. 2:14-cv-1014-SRW (M.D. Ala. Jul. 28, 2017), the court held that the law defied constitutional standards by imposing undue burdens on girls, and violated their rights to a confidential proceeding by allowing the district attorney, witnesses, and other members of the public to become involved. At the time of the decision, Alabama was the only state to have such a law in place.
I. Alabama’s 2014 Parental Consent and Judicial Bypass Statutes
Alabama is one of nearly half of the states across the country that requires physicians to obtain the written consent of either a parent or legal guardian of an unemancipated minor before performing an abortion. In 1987, Alabama enacted a law that provided a limited exception to the parental consent rule, known as the judicial bypass. The 1987 judicial bypass law requires minors to first receive approval from a judge before having an abortion if the minor’s parents or legal guardian refused or was unable to provide consent. Under the 1987 law, the only necessary party to the bypass proceeding identified by statute was the minor petitioner.
In 2014, however, the Alabama legislature amended the judicial bypass law to enable a judge to expand the number of potential parties to a judicial bypass proceeding and make the inclusion of some of those parties mandatory. Specifically, the 2014 Act (the “Act”) mandated that the district attorney be notified of the judicial bypass proceeding and be joined as a party as in the proceeding. The district attorney could also designate a representative to participate in the bypass proceeding. In addition, the Act provided a mechanism for a petitioner’s parent, parents, or legal guardian to participate in the bypass proceeding. Last, the amendment enabled a judge to appoint legal representation—a guardian ad litem—for the minor’s fetus to participate in the bypass proceeding and hold a trial-like proceeding to assess the minor’s “maturity” before deciding whether the state’s parental consent requirement for an abortion could be waived. In essence, the Act put pregnant minors through a trial-like, adversarial proceeding instead of an expeditious hearing.
II. Constitutional Implications of the 2014 Law and the Undue Burden Test
The Act essentially rendered the judicial bypass procedure meaningless by forcing the pregnant minor to go through a trial-like proceeding, which could deter the minor from pursuing the judicial bypass procedure and an abortion. Further, the Act contradicted the purpose of a judicial bypass procedure by providing mechanisms that deprived a minor of her constitutionally protected rights to privacy and a confidential hearing, issues at the heart of the liberty protected by the Due Process Clause, and by placing an undue burden on the minor’s access to an abortion.
When analyzing whether a state abortion regulation passes constitutional muster, a court must consider the “burdens a law imposes on abortion access together with the benefits those laws confer.” Known as the “undue burden” test, the standard asks whether a state abortion regulation has the purpose or effect of imposing an "undue burden," which is defined as a "substantial obstacle in the path of a woman seeking an abortion before the fetus attains viability." Hence, even if the State interests articulated by the Legislature are legitimate, the means chosen to further such interests are not constitutionally permissive if they place a substantial obstacle in the path of a woman’s choice. The purpose of the undue burden test is to balance competing interests; it was expressly framed by the Supreme Court to accommodate the State’s interest in protecting unborn life while also protecting a woman’s right to choose. To that end, the State’s legitimate interests and the Act’s benefits are not alone dispositive. A statute will fail constitutional scrutiny if it poses a “substantial obstacle” to a minor’s liberty interest in reaching an abortion decision through a judicial bypass.
The provisions in the Act at issue had numerous privacy, confidentiality, and abortion access implications. First, the Act compromised the minor’s privacy and constitutional right to a confidential hearing by joining additional parties to the proceeding. Second, the Act violated the minor’s constitutional rights by enabling these additional parties to investigate, gather evidence, issue subpoenas, and call witnesses “who have the right to participate in the proceedings for the purpose of presenting evidence and requesting delay.” This was in addition to the Act’s catch-all exception authorizing the bypass information and the minor’s identity to be shared with an unlimited number of people, such as “any witness who had a need to know of the minor’s identity, or any other person determined by the court who needs to know.” Such witnesses could include the petitioner’s relatives, friends, acquaintances, teachers, and employers --- individuals the petitioner may not want the information about her decision shared and whose opposition to the petition could be coercive. In essence, the Act opened up the hearing to the public and potentially exposed the minor to coercion and intimidation.
Last, the Act created a potential impediment to the minor’s ability to have the abortion because it allowed parties to oppose the abortion and delay the approval process. Parties could delay the approval process to the point where the minor could no longer have an abortion, which is not permitted in Alabama after 20 weeks unless the woman’s life is in danger. In this respect, the Act enabled for a “substantial obstacle” to a minor’s liberty interest in reaching an abortion decision. Consequently, these provisions presented numerous, serious implications that could not pass constitutional muster.
III. Provisions of the Act at Issue Are Unconstitutional
The court struck down as unconstitutional the Act’s provisions, in their entirety, allowing: (1) The participation of the district attorney as a party, (2) the participation of a guardian ad litem for the unborn child as a party, and (3) the participation of a parent, parents, or legal guardian of the minor petitioner as a parties. The court held that the “unfettered authority granted by the Act goes too far” and the provisions at issue are unconstitutional.  The court found that the addition of these parties to the list of those to whom the petitioner’s identity could be disclosed violated a minor’s constitutional right to an anonymous and confidential judicial bypass to Alabama’s parental consent law. The court found that the defendant did not specifically identify how the challenged provisions of the Act offer pregnant minors any kind of judicial guidance.  In addition, the court found no convincing support as to how the challenged provisions might be designed to serve the Legislature’s goal of “provid[ing] guidance and assistance to minors who find themselves in the unfortunate position of having to make [an abortion] decision.”
In reaching its conclusion, the court applied 38 years of Supreme Court authority on the subject.  The court found that “the judicial bypass option is rendered meaningless if parents and legal guardians can participate as parties under such circumstances, and if there are insufficient safeguards to protect the anonymity of the minor petitioner.” To that end, the Act’s judicial bypass option failed to meet the cornerstone requirements for a judicial bypass law to pass constitutional scrutiny and was therefore struck down.
IV. We Are Not Out of the Woods, Yet
The Act presented an opportunity to restrict a minor’s access to abortion --- a minor who needs help and protection. Just one month before this case was decided, an Alabama district attorney opposed the abortion request of a 12-year-old girl who had just completed fifth grade on the grounds that the district attorney believed that the girl was too immature to make an informed decision. The girl, pregnant after being raped by an adult relative, was estranged from her mother, which is why her mother could not be involved in her decision to get an abortion. Although the girl was able to have an abortion after the Alabama Court of Civil Appeals ruled in her favor, the district attorney delayed her ability to obtain an abortion to the point that she was almost unable to have the abortion because she was approaching the 20 weeks mark.
Although the Act was a one-of-a-kind law there is no guarantee that we will not see similar veiled abortion restrictions pop up in other states. Although we cannot predict what the future holds, we can celebrate this win for reproductive rights for now.
Julie Stromberg is the WLALA Pro-Choice and Reproductive Rights Committee Co-Chair.
 Ala. Code Section 26-21-3(a).
 Planned Parenthood v. Casey, 505 U.S. 833 (1992).
 Id. at 877.
 Id. at 878.
 Id. at 877.
 Reproductive Health Services at 25.
 Ala. Code Section 26-21-4(n).
 Reproductive Health Services at 48.
 Id. at 27
 Id. at 28
 Ala. Code Section 26-21-1(f).
 Id. at 50.
 Id. at 51.