Courts have recognized since 1973 that a woman in the United States has a fundamental right to terminate a pregnancy in its early stages (as a component of the liberty guaranteed in the two Due Process Clauses). The notion of “abortion on demand,” however, has never been embraced by federal courts; it’s a political invention designed to inflame the ignorant. In Roe v Wade, the US Supreme Court paid considerable heed to the government’s interests in a) regulating abortion procedures to ensure safe medical outcomes, and b) protecting the life of the unborn, particularly after the point of fetal viability. The Court has continued to recognize the weightiness of those interests ever since.
So to call the Supreme Court — or anyone else, really — “pro-abortion” is unfair and arguably absurd. No matter how graphically right-wingers, in their politico-religious fever dreams, conjure images of liberals gorging on baby parts, the question has never been how to make abortions more common. The question hasn’t been about the advisability or morality of the issue at all; it’s been about the proper role of government in this sphere of citizen life. Put another way, the question isn’t whether a woman should have an abortion, but who has jurisdiction over the question whether a woman should have an abortion — the woman or the state.
No fair-minded lawyer will tell you that federal courts have got this issue neatly hemmed in. But courts have tried to create a manageable framework for addressing it. In a nutshell, after the point of fetal viability (that currently sits somewhere around week 23 or 24 of the 9-month pregnancy), the government may (but doesn’t have to) ban abortions altogether, as long as the government provides an exception for the preservation of the health of the pregnant woman (there’s an exception to this exception, but it’s not important here).
Before the point of viability, the government may place reasonable restrictions on access to abortion procedures, but it may not place an undue burden on the right of a woman to have an abortion. An undue burden is a substantial obstacle, and in a recent case, the Supreme Court clarified that when the burden outweighs any purported (or pretextual) medical benefit, the burden is undue.
There: that was “The Abortion Right 101.” Now let’s get to the issue of minors. Courts have ruled that minors, too, have a right to terminate an unwanted pregnancy early in the gestational term. But that right runs headlong into another right courts honor: the right of a competent parent to the care, custody, and control of his or her minor children.
In an effort to accommodate both, courts have allowed states to enact “parental notification” laws — the requirement that a minor who is pregnant tell her parent or parents and obtain consent before having an abortion — but also applied the undue-burden test to vindicate the rights of pregnant minors, especially since a pregnancy might result from bad parenting — ranging from merely neglectful to criminally liable.
To that end, the Supreme Court has ruled that a parental-notification law is an undue burden unless it contains a “judicial bypass,” a fancy term for a way to get around parents by going to a judge. This procedure — the judicial bypass — was meant to be a mechanism to protect a minor from her own parents when necessary. It was not intended to be a vehicle for the state to humiliate, shame, or badger a pregnant minor.
But here’s what Alabama did with it:
Alabama legislators in 2014 changed the state’s process for girls who can’t or won’t get their parents’ permission for an abortion to obtain permission from a court instead. The new law empowered the judge to appoint a guardian ad litem “for the interests of the unborn child” and invited the local district attorney to call witnesses and question the girl to determine whether she’s mature enough to decide.
A federal magistrate judge struck down this Alabama law, reasoning that since it was designed to place an obstacle in the path of a minor seeking an abortion rather than to provide safe harbor for the child of neglectful or abusive parents, it constitutes an undue burden.
It’s a safe bet that the Supreme Court, as it is currently constituted, will uphold the magistrate’s ruling by a 5-4 vote. But those who just couldn’t get over that email server and had to sit out 2016 (or vote for Jill Stein) will have only themselves to blame if and when Donald J. Trump (or Mike Pence) flips the seat of an octogenarian justice (Ruth Bader Ginsburg, Anthony Kennedy, or Stephen Breyer), paving the way for states like Alabama to enact laws like this.