For decades, Alabama has required that a minor seeking an abortion obtain the consent of a parent prior to the procedure. As required by Supreme Court precedent, the parental consent law provides a judicial bypass procedure whereby a minor who is unable or unwilling to obtain parental consent may obtain an order authorizing the abortion if she is sufficiently mature or if an abortion is in her best interests.
In 2014, Alabama enacted House Bill 494 (the “Act”), a law that makes significant and harmful changes to the judicial bypass procedure. The Act requires the court to notify the district attorney’s office of the county where the minor resides or where the petition is filed so that the district attorney can participate in the hearing as an advocate for the state; it permits the court to appoint a guardian ad litem for the minor’s fetus; and it requires that the court allow the minor’s parents to participate in the hearing if they are aware of the proceedings. Each of these adverse parties may cross-examine the minor and subpoena any witness to testify against the minor; the Act expressly states that the minor’s identity may be made known to “any witness who has a need to know the minor’s identity, or any other person determined by the court who needs to know.” Ala. Code §§ 26-21-4(c). The Act also bans out-of-state minors from seeking a judicial bypass. The Act went into effect July 1, 2014.
We filed the complaint on October 1, along with a motion for a preliminary injunction. Our primary claim is a substantive due process claim on behalf of RHS’s minor patients in need of a judicial bypass. Supreme Court precedent requires a state that enacts a parental consent law to afford minors a judicial bypass that is (1) effective, (2) confidential, and (3) expeditious. The Act’s amendments to the bypass violates all three of these requirements. As to the first requirement, no court has ever upheld a statute that creates an adversarial, as opposed to an ex parte, judicial bypass hearing. The Supreme Court has held that the only questions that are at issue in such hearings are whether the minor is mature and whether an abortion is in her interests, yet the Act brings in third parties to represent interests (those of the state, the fetus, and the parents) that have no place in such proceedings.
Moreover, the Act violates the requirement of confidentiality. Bringing third parties into the bypass hearings necessarily defeats the minor’s confidentiality. Additionally, allowing these third parties to subpoena any witness to testify against the minor destroys any expectation the minor could have of maintaining her confidentiality during the bypass process – the district attorney or guardian ad litem for the fetus could subpoena the minor’s teacher, her neighbor, her aunt, or her boyfriend to testify that the minor is immature and/or that an abortion is not in her best interest. That is the very opposite of the guarantee of confidentiality that the Constitution requires.
The Act creates a bypass that is anything but expeditious in violation of controlling precedent. The Act accords third parties the right to adjourn the bypass hearing, and while it states that such adjournments should generally be one day long, it gives the trial court substantial discretion to extend it for longer. Courts have made clear that statutes that do not contain precise outer limits within which bypass proceedings must be completed do not comply with Constitutional requirements. Moreover, the Act gives third parties an unprecedented right of appeal, which necessarily extends the duration of the bypass process by as much as four weeks. Such delay is detrimental to minors’ health and is likely to push some teens past the point where they can obtain an abortion.
In addition to the three-part substantive due process claim outlined above, we also challenge the ban on out-of-state minors accessing the bypass process as violative of the Privileges and Immunities Clause. That Clause protects the right to travel, and, in particular, the right to be treated as a welcome visitor in another state with respect to privileges guaranteed by the clause. Those privileges include the right to access an abortion, Doe v. Bolton, 410 U.S. 179, 200 (1973), and the right to access another state’s courts, see Miles v. Illinois C.R. Co., 315 U.S. 698, 704 (1942). To justify the Act’s discrimination against out-of-state minors, the state would have to prove that nonresidents are a “peculiar source of the evil at which the statute is aimed.” United Bldg. and Const. Trades Council of Camden County and Vicinity v. Mayor and Council of City of Camden, 465 U.S. 208, 222 (1984). We believe that defendants cannot make such a showing here.
We think these are strong claims, and are deeply troubled by the harm the Act will impose on young women most in need of a safe and adequate bypass procedure. The State has filed a motion to dismiss.
A hearing was held on our motion for a preliminary injunction and the State’s motion to dismiss on March 18, 2015. On September 2, 2016, the Court denied the motion to dismiss in its entirety and ordered the State to file an answer after which it will decide the preliminary injunction. Reprod. Health Servs. v. Strange, 204 F.Supp.3d 1300 (M.D. Ala. 2016). The Court subsequently invited motions for judgment on the pleadings and set a briefing schedule to conclude on December 16, after which she will decide the PI motion and any motions for judgment on the pleadings.
During the 2017 legislative session, the State got a legislator to sponsor a bill to amend the Act to try to cure some of the problems that we identified. We do not think it changes the analysis even if it passes and have urged to Court to issue a decision. Ultimately the bill passed in the Senate but died in the House without a floor vote before the end of the session.
On July 28, the Court granted our motion for judgment on the pleadings and declared the amendments to be unconstitutional. Reprod. Health Servs. v. Marshall, 268 F.Supp.3d 1261 (M.D. Ala. 2017). The State appealed, briefing is complete, and oral argument has been set for April 10, 2018, in Montgomery.