Reproductive Health Services v. Marshall


The ACLU and the ACLU of Alabama have filed a lawsuit challenging HB 494, a law that that alters the judicial bypass procedure in Alabama. Judicial bypass is a process which permits a pregnant minor to waive the requirement that she obtain consent for an abortion from one of her parents or legal guardians. Through the judicial bypass procedure, a pregnant minor can obtain an order from a juvenile court stating that she is sufficiently mature to decide to terminate her pregnancy or that an abortion is in her best interest. The process is supposed to be non-confrontational, expeditious, and confidential.

HB 494 destroys that. It authorizes the participation of the district attorney, a guardian ad litem for the minor’s fetus, and the minor’s parents in the bypass procedure.  The law permits a lawyer to be appointed for the minor’s fetus. The law also authorizes the court to appoint a guardian ad litem to represent “the interests of the unborn child” at the pregnant minor’s hearing. In essence, the law permits a lawyer to be appointed for the pregnant minor’s fetus.

The law also permits the parties to subpoena witnesses, including the minor’s teachers, employer, family members, or boyfriend to testify against the minor at the judicial bypass hearing, thus disclosing the minor’s pregnancy to these witnesses. In addition, the law permits parties to delay the resolution of the minor’s bypass petition, and permits adverse parties to appeal a juvenile court judgment in the minor’s favor.

Unlike the judicial bypass statutes of every other state with a parental involvement law, the law transforms a non-adversarial proceeding into an adversarial proceeding where a pregnant minor can be cross-examined in a courtroom full of people she may know, especially if she lives in a small town. As such, the law no longer guarantees a pregnant minor confidentiality.

Plaintiffs allege in the Complaint that the law violates patients’ right to privacy guaranteed by the Due Process Clause of the 14th Amendment by failing to provide an adequate judicial bypass procedure and by permitting adverse parties and the court to disclose sensitive information about the minor to others.

Plaintiffs contend that “[s]ome minors who participate in a judicial bypass procedure that breaches their confidentiality will be abused, thrown out of their homes, or prevented from having an abortion.”

On July 28, 2017, the district court ruled that the provisions of the law that enable parties other than the minor to participate in a bypass proceeding and that vest the bypass court with the authority to issue subpoenas are unconstitutional and blocked them. The blocked provisions are: Alabama Code § 26-21-4(i) (the participation of the DA as a party), § 26-21-4(j) (the participation of a guardian ad litem for the unborn child as a party), and § 26-21-4(l) (the participation of a parent, parents, or legal guardian of the minor petitioner as a party).

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