42 Years After Roe, My Home State Of Alabama Chips Away At Abortion Rights

It’s now been 42 years since the Supreme Court held that a woman’s right to privacy included the right to abortion. It’s hardly a secret that this right is slowly but surely eroding. From multi-day waiting periods to severe restrictions on certain forms of abortion to whatever’s happening in Texas this week, the assaults on Roe v. Wade are getting more creative every year.

And nowhere is that more obvious than in my home state of Alabama, which requires that minors must have their parents’ permission to get an abortion. This itself is hardly unusual; such laws are on the books in many states. Likewise, in cases where the minor girl is unable to do so, most of these states offer what is called judicial bypass, a process that allows the minor to directly petition the court to waive the parental involvement requirement. In 1979’s Bellotti v. Baird, the Supreme Court held that judicial bypasses must be both confidential and “not unnecessarily long.”

But a specific Alabama law that was passed last spring, and had an appeal filed against it in October, would pretty much undo the whole point of judicial bypass. This law allows judges to appoint a guardian for the minor’s fetus, requires district attorneys to cross-examine the minor, and in some cases would let the girl’s parents cross-examine her, as well. Judges would also be able to both adjourn the hearings for long periods and allow those involved in the case to disclose the pregnancy to other people in the girl’s life, including employers and teachers, and call them to testify. And even if the minor is able to receive a waiver, the law allows her parents, the D.A. or even the fetus’s guardian to file an appeal.

Justice Harry Blackmun’s Roe opinion includes some very prescient statements about how abortion is still viewed in society all these decades later, including his observation that “one’s exposure to the raw edges of human existence” can provide some needed empathy in the abortion debate, and a reminder that while some pregnancies are wanted, sometimes “offspring may force upon the woman a distressful life and future.”

It’s fair to accuse Alabama politicians of failing to consider that perspective. It’s not just that the state apparently sees no problem asking judges to appoint guardians for fetuses, yet doesn’t ensure that individuals that are able to live outside the womb have access to public defenders. That’s pretty bad, but equally troubling is the extent to which this law blatantly ignores some basic facts about why minors seek judicial bypass in the first place.

Teenage girls are not seeking judicial bypass waivers because they’re afraid of being grounded if their parents find out they’re pregnant. They’re not doing it because it’s so much fun to navigate the court system on your own when you’re not even old enough to vote. They’re seeking judicial bypasses in large part because they have very real and serious fears of what could happen if their parents discover that they are pregnant.

According to a NARAL fact sheet from 2014, 30 percent of minors who did not tell a parent of their abortion had experienced violence in their family, feared violence, or were afraid they would be forced to leave home. Given that, it’s hardly surprising that a long list of medical organizations, including the American Medical Association, American Academy of Pediatrics, American Psychological Association and the Society for Adolescent Medicine, all oppose parental involvement laws. Again, we’ve come a long way from Roe, when Blackmun made it clear that Roe is not just about women or even privacy, but about a physician’s ability to practice without interference. As we saw in the healthcare debate, though, there’s a certain subset of Alabamans that seem quicker to reach for their guns than to trust doctors about health policy.

The Alabama law has been the subject of scrutiny in recent weeks, but it’s hard not to wonder where this outrage was decades ago. After all, an Alabama judge first tried to appoint a “fetus attorney” in 1987; while that failed, another state judge frequently appointed “fetus attorneys” in the 1990s and 2000s. Two other Alabama judges have done the same, as has at least one Florida judge.

And again, Roe seemed to see it coming. “[The Constitution] is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States,” Justice Blackmun wrote in the majority opinion for Roe v. Wade. Those are words that both sides of the abortion debate would do well to remember. The pro-choice movement needs to accept that it will never win over all the anti-choicers; they’re entitled to their fundamentally differing views. But just the same, the anti-choicers need to remember that the Constitution protects people whose views they find shocking, including women that choose abortion, not despite but because of their differences. And they would also do well to realize that it’s not the embryo in a woman’s uterus that needs protection from legal abuse—it’s the citizen herself.

Sarah Erdreich is the author of Generation Roe: Inside the Future of the Pro-Choice Movement. She lives in Washington, D.C. with her family.