Right to counsel

Key_development Question_mark

Legislation, Bypass of Parental Input into Abortion - Minor (Pre-Dobbs)

A court must appoint counsel, paid for by the county, for a minor seeking to bypass parental consent for an abortion, including for the appeal. Ind. Code § 16-34-2-4(e).

A former version of the statute made the appointment of counsel for the minor discretionary.  But in Indiana Planned Parenthood Affiliates Ass'n, Inc. v. Pearson, the Seventh Circuit considered the constitutionality of certain sections of an Indiana statute that required a physician to notify an unemancipated minor’s parents before performing an abortion. 716 F.2d 1127, 1130 (7th Cir. 1983).  A number of provisions were challenged by the appellants, including the fact that the statute did not provide for a right to court-appointed counsel for minors who sought waiver of parental notification. Id. at 1137.  The court held that the discretionary appointment statute violated due process by failing to provide for the appointment of counsel to minors. Id. at 1138.  The court found that minors cannot afford to hire counsel and do not know how to hire counsel even if they can afford it, that private attorneys will not take judicial bypass cases because there is no financial incentive, and that the proceedings are not as simple as they might initially seem. Id. at 1137–38.  The court explained that if the waiver procedure simply involved speaking to a judge to demonstrate the minor’s maturity, the minor might be able to handle that without the assistance of counsel. Id. at 1138.  However, the court said, “no legal proceeding is that simple,” and a minor is in need of legal advice to competently prepare, file, and appeal her case. Id.


Prior to Pearson, the Seventh Circuit considered the constitutionality of the Illinois Abortion Parental Consent Act, ultimately finding that the Act was unconstitutional because the rights of the pregnant minor were not sufficiently protected, and the burden placed upon her to obtain consent was too high to pass the constitutional threshold. Wynn v. Carey, 582 F.2d 1375, 1390 (7th Cir. 1978).  The court noted that the Act required the pregnant minor to initiate judicial proceedings if one or both of her parents refused to consent to her abortion, which the plaintiffs claimed would be a burdensome and potentially medically dangerous requirement. Id. at 1389.  The court held that it need not declare the Act unduly burdensome, however, because the Act did not meet constitutional standards, in part because it made no allowance for the appointment of counsel to represent the pregnant minor. Id.  Legal Services Corporation attorneys would likely be unable to represent minors in actions brought under the Act because their services were prohibited under statute in the services of “non-therapeutic abortions,” meaning that most minors would be forced to appear pro se, as hiring private counsel is not an option for many young people. Id. at 1389, n.28.  The Wynn court based its holding on the Supreme Court’s decision in Bellotti v. Baird, 443 U.S. 622 (1979), in which the Court held that a statute must provide a procedure allowing a minor to obtain judicial authorization for an abortion that is "speedy," "nonburdensome," and "anonymous." 582 F.2d at 1380.



Note: Since the U.S. Supreme Court decision's in Dobbs v. Jackson Women's Health Organization, 142 S.Ct. 2228 (2022), the laws governing abortion are complicated and rapidly changing.  This major development may not be current since Dobbs.  For up-to-date information about the status of abortion by state, please see Center for Reproductive Rights, After Roe Fell: Abortion Laws by State.

Appointment of Counsel: categorical Qualified: no