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Federal appeals court to hear case Tuesday case involving Alabama abortion law

Chip Brownlee

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The U.S. 11th Circuit Court of Appeals will hear oral arguments Tuesday in a case involving an Alabama abortion law passed in 2014.

U.S. Magistrate Judge Susan Walker in July 2017 ruled unconstitutional a law that changes the way the state handles the court process that allows minors to bypass parental consent for an abortion. The law enabled judges to put minors through a trial-like process in which a fetus could be appointed a lawyer and state prosecutors could object to the procedure.

Walker wrote in her opinion that the presence of the minor’s parents in the proceedings and the lack of anonymity in the cases violated the woman’s rights. The state has said the additional people included in the hearings would provide invaluable “guidance and assistance.”

The minor would need a waiver from the judge instead of parental consent and the prosecutor could call witnesses to determine whether the minor was mature enough to receive the abortion.

Alabama was the only state to have a law like it.

“Because portions of the Act unduly burden a pregnant minor’s right to a constitutionally compliant judicial bypass option – which is required as a matter of law for states, such as Alabama, that restrict a pregnant minor’s access to an abortion without the prior consent of her parent(s) or legal guardian – those provisions are unconstitutional,” Walker wrote.

The ACLU sued on behalf of the Montgomery-based Reproductive Health Services before the law was set to be implemented in 2014. They said the law put an undue burden on the minor and violated their confidentiality.

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The appeals court could overturn the lower court’s ruling or leave it in place, at which time the state could appeal the case to a higher court.

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The state appealed the case in October 2017, the same month another federal judge, District Judge Myron Thompson, ruled two other Alabama abortion laws unconstitutional, overturning them and blocking the state from enforcing them.

One of those laws prohibited the state from licensing or renewing licenses for clinics that operate within 2,000 feet of a K-8 public school, a provision that the plaintiffs in the case, the West Alabama Women’s Clinic, said would close two of the state’s five abortion clinics.

The other law would criminalize a method of abortion called dilation and evacuation, which is commonly referred to in Alabama law as dismemberment abortion.

Those two clinics, one in Tuscaloosa and one in Huntsville, perform more than 70 percent of Alabama’s abortions.

The plaintiffs argued that the requirements violated the due process clause of the Constitution, and Thompson agreed, saying the requirements put an impermissible burden on “women’s ability to choose an abortion.” It would particularly affect low-income women, he wrote.

“The three remaining clinics could not shoulder the plaintiff clinics’ substantial caseload,” Thompson wrote, saying the likely closure of the two clinics would leave only Mobile, Montgomery and Birmingham in operation.

Criminalizing dismemberment abortion would effectively ban abortions after 15 weeks because it is the most common method of second-trimester abortion in Alabama, Thompson wrote.

The clinics in Tuscaloosa and Huntsville were also the only two clinics in the state that offered operations beginning at or after 15 weeks pregnancy. The Huntsville clinic is also a plaintiff in that case.

“Each of these factors — the unavailability of abortions beginning at 15 weeks, the increased travel times, and the reduced capacity and increased wait times at Alabama’s three remaining clinics — establishes that women will face significantly increased, and even insurmountable, barriers to obtaining an abortion,” Thompson wrote.

The judge said women may pursue risky alternatives if they don’t have access to a safe clinic.

The state appealed Thompson’s ruling last year, placing the case before the three-judge Court of Appeals, which could leave Thompson’s ruling in place or overturn it. The cases involving those two laws have not been scheduled for oral arguments.

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