8/1/2014 - August 2014 SLI Educational Update - Amendment to Alabama Parental Consent Law for Abortion
AN EDUCATIONAL UPDATE FROM
THE SOUTHEAST LAW INSTITUTE™, INC.
To: SLI Supporters
Date: August 2014
From: A. Eric Johnston
Re: Amendment to Alabama Parental Consent Law for Abortion
The Alabama Parental Consent Law for Abortion was passed in 1987. It was the first law passed by the Alabama Legislature regulating abortion, after the 1973 Roe v. Wade decision, which legalized abortion. That might seem like a long time to wait before enacting a regulatory law. Actually, it was the first available time that federal courts had opened the door, ever so slightly, to allow regulation. Since 1990, the Alabama Pro-Life Coalition (“APLC”) and other pro-life groups and persons have worked tirelessly to pass bills which will not only reduce the number of abortions, but also increase the level of healthcare for women who are caught in the dire predicament of considering an abortion. APLC had tried to update the Parental Consent Law on several occasions prior to this year. However, the Democrat controlled Legislature had stymied those efforts.
When the United States Supreme Court considered whether a minor girl could get an abortion without parental consent, it decided that if she did not want to seek a parent’s consent, she could go to a judge through a judicial bypass procedure. Alabama followed the court’s requirements and enacted the Parental Consent Law. It required that a minor girl (under the age of 18) must either have a parent’s or judge’s consent to obtain an abortion. Since the law went into effect, there have been many abuses through forged consents, non-persons posing as a parent or guardian, and lack of guidance to judges for determining maturity and best interests of the minor. The 2014 amendment requires more official identification of a parent and the girl before the abortion can be performed. It requires judges, in a judicial bypass proceeding, to have admissible substantive evidence, rather than only hearsay, to make the decision on whether to permit the minor to have the abortion. The following is a brief review:
§26-21-1. Legislative findings are expanded to include the need for Alabama courts to have guidance and sufficient evidence to grant judicial by-pass abortions and to provide guidance and assistance to minors who make this unfortunate decision. These findings will provide evidence of legislative intent if the law is challenged.
§26-21-2. A medical emergency definition is added which would only permit an abortion if necessary to avert death or impairment of a major bodily function.
§26-21-3. A written notice to a minor’s mother is removed in order to avoid a potential constitutional problem in subsection (b) and subsection (c) is re-written to require that the parent come to the abortion clinic with the minor and present official identification, preferably photographic, and a certified birth certificate or other documentation. This is to prove the person is in fact the parent. Subsection (e) prohibits a minor from being coerced to have an abortion.
§26-21-4. The Alabama Rules of Civil Procedure and Evidence must be followed, except there is a limited provision to permit hearsay evidence, which before was admissible as the sole evidence; admissible evidence must be introduced to prove the minor is medically and otherwise informed; the local District Attorney’s office will participate to protect the State’s interest in life; the Court may appoint a guardian ad litem for the unborn child; the minor’s parents may participate in the hearing if they otherwise know about it but cannot be notified; an appeal may be made available to any party to the proceeding. The sum of this is that under the prior law, when only hearsay evidence was admitted, the appellant courts reviewing the case would be limited to the trial judge’s finding because of the ore tenus rule. This hobbled adequate judicial review. With these changes, not only will the trial court make more informed decisions, but the appellant courts will have a better record upon which to base their review. This will avoid the “rubber stamp” decisions which were being made.
§26-21-7. A physician who complies with the law will not be civilly or criminally liable.
§26-21-9. There may be a civil action for compensatory and punitive damages for violation of this law, professional disciplinary action against any professional person who violates it, and recovery for wrongful death of a child who is aborted as a result of a violation of the law.
Health Department statistics have shown consistently that 98 and 99 percent of parents were giving consent for their daughter’s abortion. This was obviously an incorrect finding based on other abortion demographics. The only reasonable conclusion is that there was abuse. Abortion clinics must comply with the more rigid requirements of the law and judges at all levels must acquaint themselves with these changes and make better informed protective decisions. As the scrivener of the original law and the amendment, SLI is ready to help anyone who needs assistance with interpreting the law.
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