Abortion

ACLU Challenges Alabama Law That Pits Abortion-Seeking Teens Against State-Appointed Attorney for 'Unborn Child'

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The American Civil Liberties Union (ACLU) is challenging an Alabama statute which essentially pits the state against teen girls seeking to terminate a pregnancy. The ACLU filed the challenge in the United States District Court for the Middle Distrit of Alabama this week on behalf of Montgomery abortion clinic Reproductive Health Services and its owner June Ayers.  

Since 1987, Alabama—like many other states—has required women under 18-years-old to obtain parental consent before having an abortion or, alternately, to obtain a court order allowing her to bypass this requirement. But in July 2014, Alabama Gov. Robert Bentley signed House Bill 494 into law, thus "radically alter(ing)" the judicial bypass process, as the ACLU puts it. This new statute "goes well beyond any judicial bypass statute that has ever been upheld by a federal court" and "transforms the judicial bypass procedure from an ex parte hearing into an adversarial proceeding" in which a state attorney is appointed to represent the legal interests of the embryo or fetus, the ACLU notes.

Under the Act, the district attorney or his or her representative "shall" participate in the minor's bypass proceeding "as an advocate for the state." The Act makes clear that the state's interest is "not only to . . . protect the rights of the minor mother, but also to protect the state's public policy to protect unborn life." Additionally, the Act authorizes the court to appoint a guardian ad litem to represent "the interests of the unborn child" at the minor's hearing.

The new law also wipes out privacy protections for abortion-seeking teens, allowing the "unborn child's" guardian and the district attorney to subpoena witnesses to testify against a minor at the bypass hearing. And it gives these parties the right to appeal a juvenile court judgment in the minor's favor, which could "delay some minors past the point when they can obtain an abortion, and force them to bear children against their will." For all of these reasons, Alabama's new law regarding minors and abortion "violates the right to liberty and privacy as guaranteed by the due process clause of the Fourteenth Amendment to the United States Constitution," the ACLU claims. 

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  1. This new statute “goes well beyond any judicial bypass statute that has ever been upheld by a federal court” and “transforms the judicial bypass procedure from an ex parte hearing into an adversarial proceeding” in which a state attorney is appointed to represent the legal interests of the embryo or fetus, the ACLU notes.

    Can someone unpack this statement for me? If my non-lawyer brain has it right, this law simply makes it so that the state appoints a lawyer representing the interests of the fetus as a public defender (that is to say, a right that any defendant, including minors and the brain-damaged, currently have AFAIK). If my reading is correct, how is this a violation of the Consitution?

    1. Because the Abortion Clause of the Constitution trumps the Due Process Clause – didn’t you do your homework?

    2. If my reading is correct, how is this a violation of the Consitution?

      If the fetus is a person, it’s not.

      Question Beggar.

      Score! I got to use “Begging the Question” correctly. On the internet. Doesn’t happen often.

      1. The fetus has it’s own DNA, blood type, and every physical trait that you have. What, exactly, makes it not human?

        1. So does a brain dead person.

    3. If my reading is correct, how is this a violation of the Consitution?

      The lawyer the court appointed to represent your hands has determined that commenting in this blog is not in their best interests. Please cease all commenting until we can hold a trial to consider this issue.

      1. Re: Stormy Dragon,

        The lawyer the court appointed to represent your hands has determined that commenting in this blog is not in their best interests.

        What the fuck is this, SD? Are you rehashing Dred Scott? A fetus is now a pair of hands?

      2. Unlike things are unlike.

        Duh.

        1. SD exercised his/her fundamental rights to a brain abortion a long time ago.

  2. “transforms the judicial bypass procedure from an ex parte hearing into an adversarial proceeding”

    Translated into English, it means the court must hear both sides before passing judgment on the fate of a living human being.

    Here is the ACLU on the topic of no-fly lists:

    “what the Constitution requires: notice of the basis for their placement on a blacklist that has had devastating consequences for their personal and professional lives, and a meaningful opportunity to challenge it.”

    (from ACLU.org)

    http://bit.ly/YXSlFz

    What’s wrong with giving the “fetus”/”potential life”/term of choice a change (through a legal representative) to be told the basis for destroying its life, a decision which may have “devastating consequences,” and have “a meaningful opportunity to challenge” the person wanting to take its life?

    1. A fetus lacks the capacity to understand the concepts involved, much less have an preference regarding them, much less be able to communicate that preference.

      1. An unconscious person – whether passed-out drunk or comatose person – doesn’t understand the relevant concepts. Neither does a highly insane convict.

        Yet for some reason, we don’t arbitrarily kill them. In the case of the insane convict, it would be *unconstitutional* to kill them.

        1. Here we go, Ford v. Wainwright – before executing a convicted murderer, the convict “must be aware of the punishment they are about to suffer and they must understand why they are going to suffer it.” [paraphrase]

          So it is precisely the convict who *doesn’t* know what’s happening to him who is to be spared.

          http://www.apa.org/about/offic…../ford.aspx

      2. Neither does a one-year old, yet we still appoint public defenders in infanticide trials, do we not?

        As a general rule, organisms prefer life to the alternative and can at any rate decide to correct their own existence after reaching the age of reason.

        1. Yes, and as a result we’re putting battered women in prison for decades for failing to protect their children from the same bastard that’s beating the shit out of her.

          This is more of the same kind of thinking.

        2. How do you know they prefer life? Most of them just “act” automatically, not from will.

          1. They do whatever they can to avoid death when they sense it is coming, which indicates they prefer to continue living, at whatever level of consciousness they possess.

            1. That’s not true. Unconscious activity does not indicate preference. People trying to kill themselves would have a much easier time of it if they could just voluntarily stop breathing.

      3. Hugh, this country has hundreds of thousands of people, if not millions, who “lack the capacity to understand the concepts involved, much less have a preference regarding them, much less be able to communicate that preference.”

        We routinely give those folks attorneys and guardians ad litem to protect/represent their interests. Precisely because they can’t defend themselves.

        Whether it is ridiculous or perfectly logical to do so for a fetus depends entirely on your premises re: abortion.

        1. The purpose, as the ACLU notes, is to delay for so long that it is no longer possible to legally get the treatment desired.

          It’s like getting a gun permit in Rhode Island. They exist, but you have no shot of getting one.

    2. What evidence could possibly be presented in a particular fetus’s favor or disfavor? “S/he’s been a good fetus, cut hir some slack, judge.”? “No! Bad fetus! Mean, bad fetus!”

      1. The analogy to a defense attorney is poor and unjustified (note that this analogy was chosen not by pro-life people but by Brown Lizzie herself). The statutory language says that the AG represents the state’s interests, not those of a particular person. A closer analogy would be a “devil’s advocate” with the duty to prevent the case from being decided on emotional grounds, or out of sympathy for the only side represented.

        1. But how could the issues differ from case to case? Why can’t there just be a rule?

  3. ENB,

    The Scare Quote Regulation Commission (SQRC) called. You’ve reached your monthly limit.

    1. I was afraid to wade in here, for fear of what I’d see. Thanks, HM, for the laugh.

      1. Yes, this is more fun than the usual “It violates the NAP!” / “No it doesn’t!” material.

    2. How dare you “deny her access” to her constitutionally guaranteed punctuation rights!

      1. The Constitution only guarantees constant use of the long s, but modern typeface tyranny has ruined it!

    3. Ebolabortion

  4. That squid is comin right for us!

    1. Kudos to ENB for the alt text, but is it misogynist of me to be kinda icked out by the photo?

      That thing’s creepier than the Guild Navigator in David Lynch’s Dune.

      http://img1.wikia.nocookie.net….._movie.jpg

      …and yet, I’m still not convinced it doesn’t have the right to an attorney. It’s still a question of whether its (his or her?) rights prevail when they overlap and conflict with mama’s.

  5. If this isn’t going to be an actual hearing with, you know, more than one side present, then I don’t think it belongs in court at all.

    In our system, courts are to resolve disputes. Asking for permission isn’t a dispute, and granting permission where nobody is arguing against it isn’t a judicial function at all.

    If you must have “ex parte” hearings that are not part of a larger judicial process involved in resolving a dispute, just call it what it is:

    The State Agency for Giving Children Permission to Get an Abortion.

  6. “I don’t care to hear anything from the defendant, to hear both sides has a tendency to confuse the court”

    (joke by Arthur Garfield Hays, esq.)

  7. Shouldn’t this article have a Free Range Children logo? 😉

  8. Once again, we are back to such a simple concept. Do we know if the fetus is a “person”? When it becomes one? No. No one knows, they just have opinions.

    Do we know the mother is a person? Yes.

    Therefore, quite simply, all deference goes to the mother because her personhood and bodily integrity are known. There is no question. We cannot do anything else because we just don’t know about the fetus. It would be morally reprehensible to violate the bodily integrity of the mother over an unknown.

    This is incredibly simple.

    1. Re: Episiarch,

      Do we know if the fetus is a “person”? When it becomes one? No. No one knows, they just have opinions.

      A fetus does not become a person. He IS a person. I know *I am a person. It would be a perfunctory contradiction to state that YOU are NOT a person, because it presents the possibility that could not be a person.

      So I cannot simply deny your personhood. At the very same time, I cannot deny the personhood of a fetus.

      So a fetus is a person. If *I am a person, so is a human fetus.

      Do we know the mother is a person? Yes.

      If you know the mother is a person then the fetus is a person, unless you want to start arguing that human females can beget non-human entities.

      1. Stupid squirrels.

        ” I know *I* am a person. It would be a perfunctory contradiction to state that YOU are NOT a person, because it presents the possibility that *I* could not be a person.”

      2. Such a thorny issue. It cannot be denied that a fetus is a human life, but is it a full human being, i.e., a person? Certainly, while it cannot exist outside its mother’s body, that is a legitimate question. Science tells us that the fetus will drain nutrients from its mother’s body like a parasite from its host. How far is a person (an existing, independent being) justified in ridding herself of a parasite, which may, if all goes well for the parasite, become a human being?

        To be clear, I have grave misgivings about abortion, and am disgusted by the extreme feminist position that any woman should have the right to abort, for any reason, at any time during pregnancy.

        But I also have grave misgivings as to the State presenting itself firmly as an adversary to a minor facing so difficult and traumatic a circumstance, particularly in so bullying a way as is depicted in the article.

    2. Therefore, quite simply, all deference goes to the mother because her personhood and bodily integrity are known.

      I would say the fetus’s bodily integrity is also known, regardless of its personhood, but that’s a quibble.

      Really it comes down to your first paragraph.

      Do we know if the fetus is a “person”? When it becomes one? No. No one knows, they just have opinions.

      The question is whether the default position on the fetus’s personhood is yea or nay. As you point, its not settled, so to assume that means we should deny personhood is to convert your “who knows?” into an “I know”.

      If you are honestly embracing “who knows”, then you have to engage with which default position you think is superior.

      Lots of people think that “well, we can’t say for sure, so let’s assume the fetus is a person” is the better default, because (leaving aside religious convictions) they think the consequences of denying it personhood are worse than the consequences of granting it personhood.

      And, of course, there’s the other side, which I assume you are intimately familiar with.

      So, no, its not just that simple. Simply because, as you point out, its not settled science.

      1. DNA is settled science.

        1. We don’t ‘grant’ personhood any more than we ‘grant’ rights

          We RECOGNIZE them

          Hth

          1. Re: The artist known Dunphy,

            We RECOGNIZE them

            Exactly. But somehow, you have NAP-loving libertarians (at least, supposed) who are unwilling to recognize those rights on human fetuses.

          2. OK, Dunphy, you’re all right, you can use my gym any time.

          3. Ordinary citizens recognize rights.

            Goverment agents? Especially cops? That’s another story.

      2. Ironically, outside the libertarian context, there’s considerable overlap among people whose default position on any given regulatory issue is the precautionary principle and people who vociferously oppose any limitation whatsoever on abortion. Certain things are just too important to allow unknowns to determine the outcome…

      3. Who cares if it’s a person? The real question, whether it’s a person or something else is, would it mind dying, and does anyone own it who would mind its being killed. If the answer is “no” in both cases, I don’t care if it’s a person or a flower, anyone should be allowed to kill it. I don’t think most living things mind dying, since they have no idea what dying even is. You have to be smart enough and knowledgeable enough to care, and the vast majority of living things, including infants, aren’t and don’t.

        1. Pretty sure you don’t know what dying is either… nobody does except for the dead.

    3. Aren’t we all unknowns, if we’re gonna go in that direction? After all, the very concept of personhood isn’t exactly ironclad or established by empirical laws; it’s a metaphysical concept about what makes us unique as human beings. People are, of course, going to disagree on this question and certainly the idea of a shared, inherent and equal humanity among all who call themselves human is a new (and unproved) concept.

      IOW, there’s no particular reason to think of any woman (or any person’s) “humanity” as a “known” in a way which is not true of a fetus.

      1. Re: The Immaculate Trouser,

        Aren’t we all unknowns, if we’re gonna go in that direction? After all, the very concept of personhood isn’t exactly ironclad or established by empirical laws

        What an extraordinary thing to say. Can you say “I am not a person because, empirically, nobody can know I am a person”?

        it’s a metaphysical concept about what makes us unique as human beings.

        The fact that you’re saying that makes you unique among living things. There’s nothing metaphysical about the concept. Obviously, it is a concept only recognized by us humans and not by anything else, not like color, smell or taste.

        1. Can you say “I am not a person because, empirically, nobody can know I am a person”?

          No, but while I have established my personhood to my own satisfaction, I cannot expect someone else to agree with me without the experience of being me, thinking like me, etc. At best, a person can say that my actions strongly indicate the qualities of an intelligent person, but one cannot say that external actions prove an inward state which is as yet ill-defined (and certainly not universally agreed-to).

          One way to think of it is this: is there any behavior pattern which would convince you that a computer program is, in fact, a person deserving of rights? A person would be well within reason to suggest that any behavior on the part of a computer is merely a simulacrum of genuine self-awareness or whatever other trait is being used to establish personhood. (This is not what I believe, but it is not outside the realm of reason and I won’t pretend it is simply because it suits what I believe better than the converse.)

          1. Re: The Immaculate Trouser,

            No, but while I have established my personhood to my own satisfaction, I cannot expect someone else to agree with me without the experience of being me,

            Well, that would be that person’s problem. That is what a Smith and Wesson is for, if push comes to shove. What’s important is that YOU recognize personhood in others like you would want others to recognize yours.

            One way to think of it is this: is there any behavior pattern which would convince you that a computer program is, in fact, a person deserving of rights?

            Not unless I was also a computer program.

            1. There is a difficult philosophical question lurking here, though. Where do we draw the line? Species? Genus? Actions? Thoughts? Behaviors? What defines personhood?

          2. One way to think of it is this: is there any behavior pattern which would convince you that a computer program is, in fact, a person deserving of rights?

            “I’ve…seen things…you people wouldn’t believe…”

  9. I’m going to go drink now before this thread blows up

    1. Good idea. I need to go to the store.

  10. Yeah, murder should probably be illegal. It’s not, apparently. Soo.

  11. The new law also wipes out privacy protections for abortion-seeking teens,

    Who told you they have “privacy protections”? From whom? By who?

    Surgeons can’t operate on a teenager without the consent of the mother and/or father, so why would you think it is outlandish that a teenager girl has no privacy protection when seeking to snuff the life out of someone?

    1. The entire argument about privacy is one of the greatest subject changes in Anglo-American jurisprudence. One side claims that an action intentionally results in the loss of human life. The other side(a large number of which are generally hostile to negative rights) claims it doesn’t matter because of a right to privacy. By that logic I could lure someone into my house, shoot him in the head three times and hide the body underneath my floor boards. And there would be no legal recourse against me.

  12. Which is worse, an abortion thread, or dunphybot 2.0 shitting all over the place?

    Fuck it, I’m thirsty.

    1. Smooches!

      http://www.policeone.com/polic…..ce=7628831

      Bringing you heroes and truth!

      1. Dunphy, I enjoy your contributions to the comments section of this site. I don’t agree with much of it, but I do enjoy it. Say hi to Morgan Freeman for me!

  13. Tequila, weed, and MLB Playoffs. I’m good.

  14. I wonder if Elizabeth Nolan Brown has as big a problem with male minors being “forced to father a child against their will”, which entails 18+ years of child support and alimony.

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