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Alabama Lawmakers Think Fetuses Deserve the Right to a Lawyer

Alabama lawmakers—apparently panicked that they were going too easy on teen girls with few options—amended the state's Parental Consent Law, affording fetuses the right to legal representation in cases in which underage girls are seeking an abortion.

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In 38 states, a pregnant minor needs parental consent in order to get an abortion. A vast majority of teens involve a parent or guardian in their pregnancy decision; those who don't, obviously, have reasons. They may fear that their parents will become abusive or kick them out of their home upon learning they're pregnant, or they may worry that their parents will force them to carry an unwanted pregnancy to term.


For this reason, the Supreme Court mandates that states with parental consent laws must allow minors to seek a judicial bypass of consent. Essentially, this just means that a pregnant minor doesn't have to ask her parents for permission to get an abortion if she can prove to a judge that she is both mature and sufficiently informed enough to make the decision on her own. By design, this process is meant to be confidential, because people finding out about the abortion defeats the whole fucking purpose of the bypass hearing.

Earlier this year, Alabama lawmakers—apparently panicked that they were going too easy on teen girls with few options—decided that the existing judicial bypass law was insufficient, in part because fetuses were not allowed to have legal representation. And so the state legislature passed a bill, signed into law on July 1, which made several radical and unprecedented amendments to the state's Parental Consent Law.

As the ACLU argued in a federal complaint filed last month, the revised law is wildly unconstitutional. Not only does it allow the judge to appoint a lawyer who can cross-examine the pregnant teen on behalf of a zygote, it also requires that a district attorney be involved in the hearing process. In addition, both the D.A. and the fetus' lawyer can call anyone from the minor's life to testify against her. (Except her parents!) (Unless they find out some other way, in which case they're allowed to participate in the hearing.)


"Everyone understands upon seeing the law that this is a problem," Andrew Beck of the ACLU Reproductive Freedom Project told VICE. "This puts teens on trial, this exposes them to anyone in their life who they might want to keep these private matters from, this puts them in danger. It's not good for families, and it's not good for teens."

According to the ACLU complaint, the revised bypass procedure will endanger pregnant teenagers in several ways: the utter lack of confidentiality will leave some vulnerable to abuse and abandonment, while others, too intimidated to submit to cross-examination, will simply resort to illegal and unsafe alternatives to end their unwanted pregnancies.

The ACLU describes this law as "unprecedented," which makes sense because it's patently insane to frame a judicial bypass hearing in terms of a minor advocating for her right to have an abortion vs. a lawyer advocating for the fetus' right to be born, regardless of the wishes of the young woman carrying that fetus.

However, it's worth noting that the practice is actually decades old: in the late 1990s, Hon. W. Mark Anderson III, an openly anti-abortion Alabama judge, began appointing a vocally pro-life lawyer named Julian McPhillips as the advocate for the fetus in bypass hearings. (McPhillips is now on the board of a non-profit organization called Alabama Lawyers for Unborn Children. In a testimonial published on the organization's site, he fondly recounts defending pro-life activists and paying for anti-abortion billboards before starting his illustrious tenure as the state's go-to fetus lawyer.) According to legal scholar Helena Silverstein, at least three attorneys went on to represent the interests of unborn fetuses in at least 17 hearings in the following decade. At least one other judge, John Cappel, began appointing lawyers to represent the interests of the unborn as well.


In a phone interview, Judge W. Mark Anderson told VICE that he thinks the law is a good thing. Explained Anderson, "I think the unborn child has rights in the state of Alabama. An unborn child, I think, is a person, and a person has the right to be represented."

The revised Parental Consent Law explicitly says that the state is equally invested in "protect[ing] the rights of the minor mother" and in "protect[ing] the state's public policy to protect unborn life." But what about when those two purported goals contradict each other?

After I informed Anderson of the ACLU's claim that the law constitutes a violation of pregnant minors' right to privacy, he said, "In my opinion, the ACLU can go back to communist China if they want to, and we're better off without them!" He later added that it's the individual judge's duty to stop the fetus' lawyer from calling unnecessary witnesses. "If a judge is worth his salt, he'll quash those subpoenas," Anderson said. "You've got to have confidence enough in the system that what is private will stay private."

But it's difficult to have confidence in the system when pregnant women nationwide are being systematically denied civil rights under the logic of fetal personhood. According to an [exhaustive report]( For those cases that are not mentioned in the article -what do you need?) by the National Advocates for Pregnant Women (NAPW), at least 413 pregnant women were subjected to "incarceration, forced surgery, coerced abortion, and civil commitment" between 1973 and 2005 on the suspicion of harming or endangering their fetuses. Since 2005, an additional 380 pregnant women have suffered the same treatment.


In many of these cases, the NAPW found that "deprivations of women's liberty are often justified as mechanisms for protecting children from harm," even though "in a majority of cases the arrest or other action taken was not dependent on evidence of actual harm to the fetus or newborn." It's completely specious of lawmakers to insist that they're simultaneously respecting the rights of the mother and the "rights of the unborn" when the latter is so frequently and so callously used as justification for trampling on the former.

According to the ACLU, no minors in the state have attempted to petition for a judicial bypass since the new law went into effect, possibly because they're reluctant to go on fetus-trial. If court records from previous bypass appeals are any indication, though, any minor who subjects herself to the proceeding is in for a pretty harrowing experience. Take, for example, a 1998 bypass hearing in which Julian McPhillips represented the fetus of a 17-year-old girl. In his capacity as the fetus's lawyer, McPhillips called forth two witnesses: a physician who testified on fetal development and the executive director of a local pro-life organization. During his cross-examination of the pregnant minor, McPhillips repeatedly quoted the Bible and asked her several times whether she minded "killing her baby" and whether she was aware that doing so was a sin. He also referred to the seven-week-old fetus as "Baby Ashley," a name he had invented for it.


In another 2001 hearingquoted by Helena Silverstein in her book, Girls on the Stand—a lawyer cross-examined a pregnant minor who said that she and her boyfriend eventually planned to marry and have three children, although they weren't ready to do so yet. The fetus' lawyer told the minor, "One of the risks that you are going to face is the possibility that you will be sterile after this procedure" and questioned whether she was "willing to place [her] future three children at risk." He also asked what would happen if she died as result of the abortion: "Would that not take away not only your three children but your boyfriend's future wife and his three children?"

Statistically, a woman is 14 times more likely to die from complications arising from childbirth than during an abortion procedure; in fact, surgical abortion is one of the safest medical procedures in the world. There is also no evidence that abortion leads to infertility. But the fetus lawyer's job is to make sure that the pregnant teen is aware of the consequences to herself and to the unborn, right? Consequences that just happen to disproportionately include death and infertility and hellfire, despite the lack of convincing evidence for any of the three.

According to Judge Anderson, cross-examining pregnant teenagers is in their best interest. Without the cross-examination, he affirmed, "there was no determination at all whether [a pregnant teenager] was aware of the consequences of what she was doing—certainly to the child, but even to herself."

This sort of rhetoric is often used to justify anti-abortion legislation with depressing frequency. Conservative lawmakers often pretend they're acting in women's best interests by erecting unnecessary obstacles around their reproductive healthcare access. Truly, though, they're only concerned with one thing: protecting "unborn life," even when doing so comes at the expense of women's safety and privacy.

"This is part of a pattern we are seeing—not necessarily aimed at minors, although this one is taking aim at the most vulnerable people, which makes it particularly cruel—but it's part of a pattern of laws that are aimed at shutting down abortion," Beck said. "When you're giving legal rights and legal status to the fetus, it puts women's ability to control their reproductive lives in danger. And this law is sort of that phenomenon at its most dangerous. The idea of giving a lawyer to the fetus and having that person put the minor on trial when she's seeking an abortion just shows how invasive and dangerous that idea is."

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