11th Circuit: Alabama law appointing guardians ad litems for fetuses is unconstitutional

07/01/2021, Litigation, Bypass of Parental Input into Abortion - Minor

The 11th Circuit has held unconstitutional an Alabama law permitting courts to appoint a guardian ad litem for a fetus when a minor seeks to bypass the state’s parental consent requiement for an abortion.  Under the Alabama law, such a GAL can cross-examine the minor, subpoena witnesses, push for a delay in the hearing, and appeal a decision allowing the minor to bypass parental consent. 


Affirming the reasoning of the district court, the 11th Circuit distinguished laws providing for appointment of a GAL for a minor since GALs for a minor might or might not oppose the petition but the GAL for the fetus definitely will (and the 11th Circuit also has said that GALs for the minor who oppose petitions may be acting contrary to their proper role for a variety of reasons).  The court explained that


[A]ppointing a guardian ad litem under Rule 17(c)—say, for an ‘infant unborn’ at the center of a marital and associated custody dispute—might in some circumstances be constitutional; if it is, it is not necessarily true that appointing a guardian ad litem for a fetus in a bypass procedure, under § 26-21-4(j), is likewise constitutional. With respect to § 26-21-4(j), the alleged undue burden stems from the degree to which the guardian ad litem provision interferes with the bypass process; its role in the statutory scheme, more than anything else, gives rise to the argument that it is unconstitutional.


The court then held that the participation of the GAL for the fetus “significantly erodes the confidentiality and anonymity that bypass proceedings demand”, especially given the GAL’s ability to subpoena other parties, and therefore it constituted an undue burden on the minor’s rights.  It added that


[T]he Attorney General and the District Attorney have not explained (in the district court or on appeal) how the challenged provisions “offer pregnant minors any kind of guidance or assistance.” RHS II, 268 F. Supp. 3d at 1282.  Like the district court, we do not see how these provisions “might be designed to serve the Legislature’s goal of ‘provid[ing] guidance and assistance to minors who find themselves in the unfortunate position of having to make [an abortion] decision.’” Id. (quoting § 26-21-1(f)). Furthermore, as the district court explained, there is no indication that the prior judicial-bypass procedures—which were in place for over 20 years—were deficient or led to uninformed bypass decisions.