Discretionary appointment of counsel

RS 40:1061.14(B)(1) provides that a judicial proceeding for a minor to bypass the parental consent requirement for an abortion, “[T]he court may require the minor to participate in an evaluation and counseling session with a mental health professional from the Louisiana Department of Health, office of behavioral health, or a staff member from the Department of Children and Family Services, office of children and family services, or both.”  Subsection (B)(4)(a) adds, 

If the minor has not been interviewed in such evaluation and counseling session prior to the ex parte hearing, such that the court does not have the benefit of the required report, then the court may appoint a certified child advocate attorney to be present with the minor at the ex parte hearing for the purpose of assisting the minor in communicating to the court whether her abortion decision is made with sufficient maturity and free and informed consent, commensurate with the duty of confidentiality.’

Minors in Louisiana had been guaranteed appointed counsel under a prior version of the judicial bypass statute which required that bypass hearings be conducted according to the provisions of the Louisiana Code of Juvenile Procedure (C.J.P.). The C.J.P. had a catch-all provision entitling children to counsel in “any other proceeding.” In 1982, the Office of the Attorney General concluded that judicial bypass hearings were included in “any other proceeding” and thus minors had a statutory right to counsel when petitioning for judicial authorization for an abortion. See La. Att’y Gen. Op. No. 82-569 (July 1, 1982). However, the C.J.P. was repealed and replaced with the Louisiana Children’s Code in 1992. The Children’s Code guarantees minors counsel in many types of proceedings but lacks the catch-all provision the C.J.P. had. However, see State in Interest of A.V.P., 108 So. 3d 1204, 1205 (La. Ct. App. 2013) (referring to fact that minor had counsel at Juvenile Court hearing appointed “[p]ursuant to the Children’s Code.”).

Finally, in regard to appointment of counsel for the fetus, the Supreme Court of Louisiana has held that a trial court cannot appoint counsel for the fetus, as it would “destroy the confidentiality of the proceedings.” In re Doe, 591 So. 2d 698, 699 (La. 1991).

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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.