Alabama “Lawyers for Fetuses” Law (HB 494)
This law was last updated on Aug 10, 2017
HB 494 tightens regulations regarding parental consent to abortion. In particular, the law requires a court ruling on a minor’s petition for a consent waiver to inform the district attorney so that the district attorney may participate in the court proceedings. In addition, the court may appoint a lawyer for the fetus so that the fetus’s interests will be represented at the court proceedings. The law also permits the minor’s parents to participate in the proceedings if they find out about them, although the court is not permitted to make the parents aware of the proceedings.
Prior to the enactment of HB 494, the law required minors under the age of 18 to obtain parental consent. A parent or legal guardian would sign a consent form, and the minor would verify that the signature was authentic. Under HB 494, a parent is now required to sign the consent form in the presence of the physician. HB 494 also requires the parent or legal guardian to provide evidence of parentage or legal guardianship: Parents are required to present a certified birth certificate and a legal guardian or adoptive parent is required to obtain a court order naming the legal guardian or adoptive parent as such.
In cases of medical emergency, however, the abortion can go forward without providing a certified birth certificate in advance, but proof of parentage or legal guardianship is required as soon as possible after the abortion.
Physician Reporting Requirement
The law states that if the physician does not receive proof of parentage or legal guardianship within 90 days after the abortion, the physician must report the failure to the State of Alabama Department of Public Health on a form provided by the department.
Judicial Bypass Procedure
A minor who does not or cannot obtain parental consent can petition the court for judicial waiver which will allow the minor to bypass the parental consent requirements. The minor must provide evidence that that she has been informed and understands the abortion procedure and its consequences. She also must provide evidence that she has been counseled about alternatives to abortion and that she is mature enough to make informed decisions.
The court must notify the district attorney that the minor has petitioned for a consent waiver and that the district attorney may participate in the proceedings as an advocate for the state, and may examine and question the minor in order to help the court make its decision as to whether to provide a waiver.
The law also states that the court may appoint a guardian ad litem for the interests of the “unborn child.” The guardian ad litem shall assist the court in deciding whether or not to provide a waiver to the minor. Under Alabama law, a guardian ad litem must be a licensed attorney. In other words, the court can appoint a lawyer for the fetus, and may call witnesses to testify against the minor to help the court decide whether or not to grant the waiver.
The court is not permitted to make the parent or legal guardian aware of the judicial by-pass proceedings, but if the parent or legal guardian is made aware by some other means, they are entitled to notice of the proceedings and have a right to participate in the proceedings and to be represented by counsel.
As reported by RH Reality Check,
“It’s putting teens on trial who are most in need of the help a bypass procedure is supposed to afford,” said Andrew Beck, an attorney with the American Civil Liberties Union (ACLU), in an interview with RH Reality Check. Beck is one of the ACLU attorneys challenging the Alabama law on behalf of a Montgomery abortion clinic, arguing it is unconstitutional.
The ACLU has asked a federal court to block the judicial bypass law.
According to the complaint, no other judicial bypass law in the country treats the process of a minor seeking a bypass as a quasi-criminal proceeding the way the Alabama law now does, particularly with the inclusion of a prosecuting district attorney. “What the law says is that Alabama has an interest not just in protecting these minors, but in protecting what it calls ‘potential life’ or ‘fetal life,’ and so really the district attorney is there essentially as a prosecutor on behalf of the fetus,” said Beck. “So the fetus basically gets two lawyers to try and stop the minor from getting an abortion in a way that no other state’s law comes close to doing.”
“The judicial bypass proceedings are supposed to be confidential, expeditious, and non-confrontational,” explained Beck. “The district attorney has no role in these decisions. They know none of the details that are relevant to these proceedings, and [having the district attorney as part of them] treats a minor seeking an abortion who needs to go to court to have a confidential and speedy resolution to her matter like a criminal.”
“What Alabama has done is to basically put teens on trial,” Beck continued. “The law … gives these adverse parties who are there to cross-examine and oppose the minor extraordinary powers that run totally contrary to what the Supreme Court has said is allowable, by letting them violate her confidentiality and tell anyone in her life that she is pregnant and seeking an abortion so they can haul those people into court as witnesses.”
“It also gives them the power to delay her access to an abortion,” Beck added. “And we know that abortion is obviously very time-sensitive.”
This bill passed the House on March 4, 2014 the Senate on April 3, 2014 and went into effect on July 1, 2014.
The ACLU of Alabama has filed a lawsuit challenging the law. (See Reproductive Health Services v. Strange.)
***On July 28, 2017, a federal court blocked the judicial bypass provision.***