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Alabama abortion law granting embryos an attorney deemed unconstitutional

The law, which was challenged by the ACLU, would have forced minors seeking an abortion without parental consent to be subjected to a trial.


A federal appeals court on Wednesday said an Alabama law that would have forced a minor seeking an abortion to go to trial — with an attorney appointed for the embryo, in some cases — was unconstitutional, upholding a decision from a U.S. District Court. 

Under existing law, minors are required to have parental consent before receiving an abortion, but they can bypass that requirement by a process known as judicial bypass. However, a new Alabama law would have transformed that review process into a full-blown trial, allowing for the minor to be cross-examined and for the embryo or fetus to be represented by an attorney. 

Reproductive Health Services, the named plaintiff in the case, argued that the law places an unconstitutional burden on minors, and particularly upon minors who may have been subject to abuse and who can’t safely obtain parental consent. 

The Eleventh Circuit Court of Appeals agreed, saying the law would “create fear and anxiety for a minor.” As such, the court determined that “the Act constitutes an undue burden because it places a substantial obstacle on a large fraction of unemancipated minors who seek to obtain a court order authorizing an abortion without the consent of their parent or guardian.”

The ACLU, which filed the challenge to the law, hailed the victory as another successful defeat of a law “limiting access” to a legal medical procedure, and removing an obstacle to medical care for abused children. 

“Most young people who need an abortion turn to their parents, but unfortunately we know them some can’t do so safely,” Tish Gotell Faulks, ACLU of Alabama legal director. “Those (young people) that can’t must have an alternative that enables them to get the care they need without subjecting them to cross-examination by a district attorney and jeopardizing their confidentiality. We are pleased that as a result of today’s decision that daunting prospect is off the table.” 

Josh Moon is an investigative reporter and featured columnist at the Alabama Political Reporter with years of political reporting experience in Alabama. You can email him at [email protected] or follow him on Twitter.

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