Alabama is one of 38 states that requires minors seeking abortions to either obtain their parents’ consent or go through “judicial bypass,” a process through which a minor goes to a judge for a court order granting her an abortion.
Alabama code states the minor must be "sufficiently mature and well enough informed to intelligently decide where to have an abortion without the consent of her parents."
In July, 2014. anti-choice lawmakers in the state radically amended this judicial bypass process to allow the court to appoint a guardian ad litem for a minor’s fetus, "for the interests of the unborn child", and to allow the district attorney—and in some instances even the minor’s parents—to cross-examine the minor and to oppose her request for an abortion. The law also allows any of these parties to disclose the minor’s pregnancy to other people in the minor’s life, including her teachers, her employers, and her friends, and to call them to testify in court.
The ACLU argued that change forces teens to go through a "trial" to obtain an abortion. However, the practice is actually decades old: in the late 1990s, Hon. W. Mark Anderson III, an openly anti-abortion Alabama judge, began appointing a vocally pro-life lawyer named Julian McPhillips as the advocate for the fetus in bypass hearings.
Defense lawyers argued that the term “child” in Alabama law excludes the unborn, but the Alabama Supreme Court rejected that reasoning, and doubled down on their pro-personhood Ankrom v. State decision from 2013.
Chief Justice Roy Moore’s concurring opinion said it was ”to emphasize that the inalienable right to life is a gift of God that civil government must secure for all persons–born and unborn.”
“Under the Equal Protection
The Alabama Supreme Court’s 2014 decision in Ex Parte Hicks upheld the conviction of Sarah Janie Hicks under Alabama’s child endangerment statute, in an 8-1 decision. Hicks gave birth to a healthy baby who later tested positive for cocaine. In Hicks, the Alabama Supreme Court ruled that “the plain meaning of the word ‘child,’ as that word is used in the chemical-endangerment statute, includes an unborn child,” and therefore prosecuting pregnant persons under the statute was permissible.
The Alabama Supreme Court has ruled in a related case that a chemical endangerment statute must protect children who have not been born yet. The case was appealed to the Alabama Supreme Court by Amanda Kimbrough. The New York Times covered Kimbrough's case April 25, 2012, after she was found guilty of a Class A felony. The article quoted assistant district attorney Angela Hulsey as stating, "She caused the death of another person, a person that will never have the chance to go to school, go to the prom, get married, have children of their own. You're dealing with the most innocent of victims."
The Alabama Supreme Court agreed with Hulsey, stating in their ruling that, "The decision of this Court today is in keeping with the widespread legal recognition that unborn children are persons with rights that should be protected by law."