Reproductive Health Services, et al. v. Strange, et al. (JOINT ASSIGN)
MEMORANDUM OPINION, DECLARATORY JUDGMENT, AND ORDER: it is ORDERED as follows: 1) Plfs' 60 motion for judgment on the pleadings is GRANTED in the manner stated herein as to Count I of the 1 complaint and DENIED as to Counts II, III, and I V; Judgment is due to be entered in favor of the plfs as to Count I of the complaint; 2) Dfts' 63 motion for judgment on the pleadings is DENIED in the manner stated herein as to Count I of the plfs' 1 complaint and GRANTED as to Count II, III and IV; Counts II, III & IV of the plfs' complaint are due to be DISMISSED WITHOUT PREJUDICE; 3) Plfs' 2 motion for a preliminary injunction is DENIED as moot; 4) Plfs' prayer for permanent injunctive relief is due to be DISM ISSED WITH PREJUDICE as moot; 5) Dfts' 73 motion to defer ruling is DENIED as moot; Furthermore, consistent with this memorandum opinion, it is ORDERED, ADJUDGED, and DECREED that the court DECLARES the following: 1) Plfs' challenge to Al abama Code 26-21-4(a) is moot because the parties and the court agree that the plain language of the Act exempts out-of-state minors from the parental consent requirement of Alabama Code 26-21-1 et seq; 2) The following portion of Alabama Code 26-21- 4(c) is constitutional: "The court shall insure that the minor is given assistance in preparing and filing the petition. Such assistance may be provided by court personnel including intake personnel of juvenile probation services. The minor' ;s identity shall be kept confidential, but her identity may be made known to the judge... [and] any appropriate court personnel.... Any person who is given the identity of the minor shall keep her name confidential and shall not give it to any other person[.]" The language of Alabama Code 26-21-4(c) that is not expressly set out above is unconstitutional and unenforceable, and it is severed from the statute; 3) The following provisions of the Act unconstitutionally and impermissibly impose an undue burden on a minor in Alabama who seeks an abortion through a judicial bypass, and they are adjudged to be unenforceable in their entirety: Alabama Code 26-21-4(i), (j),26 and (l); 4) Alabama Code 26-21-4(f) is unconstitutional to the extent that the bypass court is vested with the authority to "issue instanter subpoenas or otherwise permit any party or participant in the hearing to bring before the court admissible evidence or testimony either in support of or against the petition ." Consistent with and in the manner discussed herein, see p. 48-49, infra, that portion of the statute is severed from the remainder; however, the severance in no way restricts the minor petitioner from access to any lawful and available means of meeting her burden of proof on a bypass petition. See Alabama Code 26-21-4(h); 5) Alabama Code 26-21-4(k) is unconstitutional to the extent that it permits any party to a bypass proceeding other than the minor petitioner "to obtain evidence, subpoena witnesses, or to obtain and present any evidence or information which will be necessary and appropriate for the court to make an informed decision." That portion is severed from the remainder of the statute; 6) Because the court holds h erein that the Act unconstitutionally adds parties other than the minor petitioner i.e., the District Attorney, a guardian ad litem for the fetus, and the parent, parents, or legal guardian of the minor petitioner without adequate safeguards to ens ure the minor petitioner's anonymity, the provisions of the Act that allow for any actions to be taken by those additional parties are a nullity. Therefore, Alabama Code 26-21-4(e) & (n) are unconstitutional and unenforceable insofar as those sections permit parties other than the minor petitioner to take actions related to the judicial bypass proceeding, and they are severed from the remainder of the statutes. Signed by Honorable Judge Susan Russ Walker on 7/28/2017. (wcl, )
IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
REPRODUCTIVE HEALTH SERVICES,
on behalf of its patients, physicians and
staff, et al.,
STEVEN T. MARSHALL, in his official
capacity as Attorney General of the
State of Alabama, et al.,
CASE NO. 2:14-cv-1014-SRW
MEMORANDUM OPINION, DECLARATORY JUDGMENT, AND ORDER1
This matter is before the court on the parties’ cross motions for judgment on the
On September 2, 2016, the court determined that a justiciable controversy exists in
this case with respect to plaintiffs’ challenges to the State of Alabama’s parental consent
and judicial bypass statutes (“the Act”), which were substantially amended in 2014. See
Reproductive Health Services v. Strange, 204 F. Supp. 3d 1300 (M.D. Ala. 2016) (“RHS
I”);2 see also Ala. Code §§ 26-21-1, et seq.; H.B. 494, 2014 Leg. Sess. (Ala. 2014) (enacted;
The parties have consented to entry of final judgment by the Magistrate Judge. See 28 U.S.C. § 636(c);
Fed. R. Civ. P. 73(a). (Doc. 24, 25).
RHS I should be read in tandem with this decision. In RHS I, the court discusses the well-established right
of a state to enact a law requiring a minor to secure either parental consent or a court’s approval before
undergoing an abortion procedure. To the extent that defendants raise anew their previously asserted and
adjudicated arguments regarding justiciability, Eleventh Amendment immunity, and abstention, RHS I sets
out the court’s decision on those issues.
effective July 1, 2014); Ala. Code § 26-21-4 (judicial bypass provision). The court
subsequently held a status conference, during which the parties agreed that the plaintiffs’
claims and defendants’ defenses are exclusively matters of law to be decided without the
need for an evidentiary record. See, e.g., Planned Parenthood Ass’n of Kansas City v.
Ashcroft, 462 U.S. 476, 491 (1983) (the Bellotti II analysis is “one purely of statutory
construction.”). Following the status conference, the court set a deadline for the parties to
file any motions for judgment on the pleadings, and plaintiffs and defendants respectively
filed such motions pursuant to Federal Rule of Civil Procedure 12(c). (Doc. 60, 63).
The parties all argue that a declaratory judgment is due to be entered as to all of
plaintiffs’ claims. Specifically, the plaintiffs and defendants each seek a declaratory
judgment as to the constitutionality of the following provisions of the Act in light of the
Supreme Court’s plurality opinion in Bellotti v. Baird, 443 U.S. 622 (1979) (“Bellotti II”)
and its progeny: Alabama Code §§ 26-21-4(a), (c), (f), (e), (i), (j), (k), (l) and (n).3 (Doc.
1; Count I). Moreover, all parties request a declaratory judgment regarding plaintiffs’ claim
that the Act violates a minor petitioner’s “right to liberty and privacy as guaranteed by the
due process clause of the Fourteenth Amendment ... by permitting” disclosure of “deeply
sensitive, private information about the minor to others, including to any potential
witnesses.” (Doc. 1 at 13; Count II) (“informational privacy claim”). In addition, the
Since Bellotti II, the Supreme Court has applied the four Bellotti II factors in a small number of decisions:
H. L. v. Matheson, 450 U.S. 398 (1981); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft,
462 U.S. 476 (1983); Akron v. Akron Center for Reproductive Health, et al, 462 U.S. 416 (1983), overruled
by Planned Parenthood v. Casey, 505 U.S. 833 (1992) (“Akron I”); Ohio v. Akron Center for Reproductive
Health, Inc., 497 U.S. 502 (1990) (“Akron II”); Hodgson v. Minnesota, 497 U.S. 417 (1990); and Lambert
v. Wicklund, 520 U.S. 292 (1997). The Eleventh Circuit’s only decision concerning the Bellotti II
requirements is Planned Parenthood Ass'n of Atlanta Area, Inc. v. Miller, 934 F.2d 1462 (11th Cir. 1991).
plaintiffs claim that certain provisions of the Act violate out-of-state minors’ rights to travel
and to equal protection under the law, but all parties are in agreement regarding the correct
interpretation of the challenged provisions. (Doc. 1; Counts III, IV). Plaintiffs also move
for preliminary injunctive relief and a permanent injunction prohibiting enforcement of the
challenged provisions of the Act. (Doc. 1, 2). These motions and issues have been fully
briefed and are ripe for decision.
Under Bellotti II, plaintiffs claim that the State of Alabama has created an
unconstitutional judicial bypass option for minors who seek an abortion without the
consent of a parent or legal guardian. Specifically, the plaintiffs contend that the addition
of a district attorney (“DA”), a guardian ad litem on behalf of the fetus (“GAL”), and –
under some circumstances – the minor petitioner’s parent, parents or legal guardian as
parties to the bypass proceeding causes that proceeding no longer to afford the minor the
constitutionally guaranteed option of an anonymous and expeditious bypass. Also,
plaintiffs argue that certain provisions of the Act allowing subpoenas to issue for the
presence of witnesses violate a minor petitioner’s right to anonymity, and that the Act
permits discretionary delays in the resolution of the petition such that the bypass process
lacks the requisite expedition to satisfy the Supreme Court’s mandates in Bellotti II. In
addition, the plaintiffs maintain that the Act “unconstitutionally transforms the bypass from
an ex parte hearing into an adversarial” proceeding. (Doc. 61 at 11). For their part,
defendants zealously defend the constitutionality of the Act.
The court finds that neither plaintiffs nor defendants are precisely correct in their
interpretations of the Act; however, based upon nearly four decades of binding Supreme
Court precedent, certain provisions of the Act undoubtedly fail on a facial challenge to
their constitutionality. See n. 3, supra. As explained more fully below, the offending
portions of the Act are severable, and a declaration of their unconstitutionality will still
leave Alabama with a constitutional bypass option, something that the Alabama Legislature
clearly intended to achieve when it amended the Act in 2014. See Ala. Code §§ 26-21-1,
Defendants, however, are entitled to judgment as a matter of law as to plaintiffs’
informational privacy claim. Plaintiffs’ claims regarding the rights of out-of-state minors
no longer present an actual controversy for this court to decide.
Standard of review – motion for judgment on the pleadings
The Federal Rules of Civil Procedure provide that, “[a]fter the pleadings are closed
– but early enough not to delay trial – a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c). A judgment on the pleadings is limited to consideration of “the
substance of the pleadings and any judicially noticed facts.” Bankers Ins. Co. v. Fla.
Residential Prop. & Cas. Joint Underwriting Ass’n, 137 F.3d 1293, 1295 (11th Cir. 1998).
In evaluating a motion for judgment on the pleadings, the court must review the
factual allegations in the light most favorable to the nonmoving party.4 Cannon v. City of
W. Palm Beach, 250 F.3d 1299, 1301 (11th Cir. 2001). However, the court need not credit
The only allegations of fact that form the basis of this decision are discussed herein. Where plaintiffs’
factual allegations are not expressly discussed, it is because they are not material to the ultimate issues.
Also, the parties raise numerous legal arguments that are not addressed here, most notably with regard to
the expedition of the bypass proceeding under the Act and to plaintiffs’ assertion that Bellotti II does not
countenance an adversarial judicial bypass proceeding and the Act unconstitutionally establishes one. The
court has considered all the parties’ arguments in ruling on the motions at bar; however, it does not express
any opinion with respect to those arguments that are not specifically discussed.
a nonmoving party’s legal contentions. See Green Leaf Nursery v. E.I. DuPont De Nemours
and Co., 341 F.3d 1292, 1304 n.12 (11th Cir. 2003) (citing Honduras Aircraft Registry,
Ltd. v. Government of Honduras, 129 F.3d 543, 545 (11th Cir. 1997)).
A judgment on the pleadings pursuant to Rule 12(c) is appropriate when “no issues
of material fact exist, and the movant is entitled to judgment as a matter of law[,]” Ortega
v. Christian, 85 F.3d 1521, 1524 (11th Cir. 1996), or when “the complaint lacks sufficient
factual matter to state a facially plausible claim for relief that allows the court to draw a
reasonable inference that the defendant is liable for the alleged misconduct.” Jiles v. United
Parcel Serv., Inc., 413 F. App’x. 173, 174 (11th Cir. 2011) (citing Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 556, 570 (2007)).
Alabama’s parental consent and judicial bypass laws
Alabama law mandates that “no physician shall perform an abortion upon an
unemancipated minor unless the physician or his or her agents first obtain the written
consent of either parent or the legal guardian of the minor.” Ala. Code § 26-21-3(a). There
are limited exceptions to the parental consent requirement, one of which is the judicial
bypass exception. See id.; Ala. Code § 26-21-4. As a matter of law, states that have parental
consent statutes must also enact a law that allows a minor to obtain a court order to bypass
her parent’s or guardian’s consent. See Bellotti II, 443 U.S. at 649. In RHS I, the court
summarized the pertinent provisions of Alabama’s judicial bypass law as follows.
Prior to the 2014 amendments, Alabama’s judicial bypass statute
allowed for an ex parte hearing which included as participants, in almost all
instances, only the judge, the minor applicant, and her attorney. The new Act
substantially alters the former bypass scheme; it is allegedly unique among
all other states’ judicial bypass laws. (Doc. 3 at 8).
Under Alabama’s former judicial bypass law, which was enacted in
1987 and remained substantively unchanged for 27 years, the only necessary
party to the bypass proceedings identified by statute was the minor petitioner.
See Ala. Code 26-21-4 (2013). At his or her discretion, the presiding judge
also could use a provision of the Alabama Rules of Civil procedure to appoint
a guardian ad litem (“GAL”) to represent the interests of the “infant unborn,”
but the judicial bypass law did not independently permit the appointment of
a GAL or vest that person with the same rights as a party to the bypass
proceedings. See Ala. R. Civ. P. 17(c); cf. Ala. Code § 26-21-4 (2013), Ala.
Code § 26-21-4. A minor petitioner was entitled to a decision from the
reviewing court within 72 hours after filing her petition, excluding Saturdays,
Sundays and legal holidays, unless the petitioner requested an extension of
time and the court permitted the delay. See Ala. Code § 26-21-4(e) (2013).
The minor was the only person with standing to appeal the decision of the
reviewing judge. Ala. Code § 26-21-4(h) (2013). “If notice of appeal [were]
given, the record of appeal [was to] be completed and the appeal [was to be]
perfected within five days from the filing of the notice of appeal.” Id.
The 2014 Act expands the number of potential parties to a judicial
bypass proceeding, and makes the inclusion of some of those parties
mandatory. See Ala. Code § 26-21-4. Those additional parties are either
required or permitted to “examine” the petitioner and to represent interests
in addition to those of the petitioner, including the interests of the State of
Alabama, the unborn child, and the minor’s parent(s) or legal guardian. See
id. For example, when a minor files a judicial bypass petition, the court now
must immediately notify the district attorney (“DA”) of the county in which
the petition is filed or in which the petitioner resides, and the DA is then
automatically joined as a necessary party to the bypass proceedings. Ala.
Code § 26-21-4(i). The 2014 Act also allows the minor’s parent(s) or legal
guardian to be joined as parties if those individuals learn of the existence of
the proceedings. Ala. Code § 26-21-4(l). The new law contains a statutory
provision independent of Alabama Rule of Civil Procedure 17(c) which
allows the reviewing court to appoint a GAL to represent “the interests of the
unborn child[.]” Ala. Code § 26-21-4(j). The powers of the GAL are
expansive, and that person also is joined as a party once appointed by the
In addition, the 2014 Act codifies the rights and obligations of the DA,
GAL, and the parent(s) or legal guardian in their capacities as parties. The
DA and the GAL are statutorily mandated to “participate as [advocates] for
the state to examine the petitioner and any witnesses[.]” Ala. Code § 26-214(i), (j). Alabama’s interests, as explained by the Act, include “protecting
minors from their own immaturity” and “protect[ing] the state's public policy
to protect unborn life[.]” Ala. Code § 26-21-1(d). The minor’s parents, once
joined as parties, have the same rights as the DA, GAL, and the minor
petitioner. See Ala. Code § 26-21-4(l). All parties may be represented by an
attorney, appeal the hearing judge’s decision, request extensions of time, and
have access to subpoena powers to compel witnesses to testify.
Moreover, the 2014 Act replaces the requirement in the former law
that the hearing judge must issue a decision within 72 hours and the appeal
must be “perfected” within five days. Ala. Code § 26-21-4(h) (2013). The
law permits discretionary delays by the reviewing judge, either sua sponte or
upon request by any party, “subject to the time constraints of the petitioner
related to her medical condition.” Ala. Code § 26-21-4(k).
RHS I, 204 F. Supp. 3d at 1307-08.
The plaintiffs’ Bellotti II challenges to the Act
The legal framework that applies to the substance of plaintiffs’ Bellotti II claim
begins with the well-established right of a minor to obtain an abortion of a non-viable fetus.
See Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976); Bellotti II,
443 U.S. 622.
The Constitution protects a woman’s right to terminate her pregnancy.
This right, derived from the Due Process Clause of the Fourteenth
Amendment, was reaffirmed by the U.S. Supreme Court in Planned
Parenthood v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992),
which left intact the essential holding of Roe v. Wade, 410 U.S. 113, 93 S.Ct.
705, 35 L.Ed.2d 147 (1973). This right is not limitless, however; the State
has legitimate interests in protecting the health of the woman and the
potential life of a fetus. Accordingly, the Court in Casey developed a
standard to distinguish between lawful state regulation of abortion and
regulation that violates due process. The Court held that when a regulation
imposes a “substantial obstacle in the path of a woman seeking an abortion
of a nonviable fetus,” it unduly burdens the right to choose abortion. Id. at
877, 112 S.Ct. 2791. And “where state regulation imposes an undue burden
... the power of the State reach[es] into the heart of the liberty protected by
the Due Process Clause.” Id. at 874, 112 S.Ct. 2791. Thus, even “a statute
which ... further[s] the interest in potential life or some other valid state
interest,” but “has the effect of placing a substantial obstacle in the path of a
woman's choice cannot be considered a permissible means of serving its
legitimate ends.” Id. at 877, 112 S.Ct. 2791. On the other hand, “reasonable
measures” regulating abortion – even those that pose incidental
inconvenience – are valid so long as they do not create a substantial obstacle
to a woman's exercise of her due process right. Id. at 883, 112 S.Ct. 2791.
Planned Parenthood Southeast v. Bentley, 951 F. Supp. 2d 1280, 1285 (M.D. Ala. 2013)
(footnote omitted). “The rule announced in Casey … requires that courts consider the
burdens a law imposes on abortion access together with the benefits those laws confer.”
Whole Woman's Health v. Hellerstedt, __ U.S. __, 136 S. Ct. 2292, 2309 (2016), as revised
(June 27, 2016).
The application of the Bellotti II criteria to the Act is a matter of “purely … statutory
construction,” Ashcroft, 462 U.S. at 491, and the court must “measur[e] [the Act’s]
challenged provisions against [the] [Bellotti II] requirements.” RHS I, 204 F. Supp. 3d at
1326 & n.19 (citing Bellotti II, 443 U.S. at 623-51; Planned Parenthood Ass’n of Atlanta
Area, Inc. v. Miller, 934 F.2d 1462, 1475-82 (11th Cir. 1991)).
“Where fairly possible, courts should construe a statute to avoid a
danger of unconstitutionality.” Ashcroft, 462 U.S. at 493, 103 S.Ct. 2517.
Because this case is before the court on a Rule [12(c) motion for judgment
on the pleadings] and the plaintiffs allege that the Act places unconstitutional
barriers in a pregnant minor’s path to an abortion through a judicial bypass,
the defendants bear the burden to establish the Act’s constitutionality. See
[Hodgson v. Minnesota, 497 U.S. 417, 436 (1990)] (ruling on the
constitutionality of a Minnesota parental consent law). “Under any analysis,
the [Alabama] statute cannot be sustained if the obstacles it imposes are not
reasonably related to legitimate state interests.” Id. (citations omitted).
Id. at 1333.
In considering a facial challenge to the Act, the court will assume, as it must, that
bypass courts in Alabama will comply with the Act’s provisions. See Miller, 934 F.2d at
1479 (the district court erred by failing to accept, absent evidence to the contrary, that
bypass courts would “observe” the mandates of Georgia’s judicial bypass law, including
the confidentiality requirements).
The judicial bypass requirements espoused in Bellotti II are “strict standards.” Id. at
1475. “Under Bellotti, a pregnant minor is entitled to show the court either: ‘(1) that she is
mature enough and well enough informed to make her abortion decision, in consultation
with her physician, independently of her parents’ wishes; or (2) that even if she is not able
to make this decision independently, the desired abortion would be in her best interests.’”
Id. (quoting Bellotti II, 443 U.S. at 643-44 (footnote omitted)). Once the minor makes either
showing, the bypass petition must be granted. Id. The Bellotti II requirements, as
summarized by the Supreme Court, consist of four factors that a judicial bypass law must
satisfy to pass constitutional muster: (1) the bypass procedure must afford the minor an
opportunity to demonstrate that she is sufficiently mature to make an informed decision to
have an abortion “without regard to her parents’ wishes”; (2) the abortion procedure must
be authorized if the court finds that, despite a minor’s inability to reach an abortion decision
“by herself[,]” “the abortion is in the minor’s best interests and in cases where the minor
has shown a pattern of physical, sexual, or emotional abuse”; (3) the bypass procedure
“must insure the minor’s anonymity”;5 and (4) the bypass exception must allow the minor
The parties use the words “confidentiality” and “anonymity” interchangeably in their briefing. The
Supreme Court has observed that, “Confidentiality differs from anonymity, but … [t]he distinction has not
a court to conduct proceedings with the expediency necessary “to allow an effective
opportunity to obtain the abortion.” Akron II, 497 U.S. at 511-13 (Kennedy, J.); see also
Lambert v. Wicklund, 520 U.S. 292, 295 (1997) (setting out the four factors); Bellotti II,
443 U.S. at 643. “Otherwise, the attendant bypass procedure is constitutionally invalid.”
Cincinnati Women’s Services, Inc. v. Taft, 468 F.3d 361, 369 (6th Cir. 2006).
The Bellotti II requirements must be considered in the context of the facial challenge
brought by the plaintiffs. For the reasons explained in RHS I, “an abortion law is facially
unconstitutional if it places an ‘undue burden’ in the path of a ‘large fraction’ of the women
the law affects.” 204 F. Supp. 3d at 1333 (citing Casey, 505 U.S. at 895). Stated another
way, the Act is unduly burdensome and therefore unconstitutional if, for a “large fraction”
of affected minors seeking abortions under the Act’s judicial bypass scheme, the
challenged provisions of the Act “operate as a substantial obstacle to a woman’s choice to
undergo an abortion.” Casey, 505 U.S. at 895.6 “A burden may be ‘undue’ either because
the burden is too severe or because it lacks a legitimate, rational justification.” Id. at 920
(Stevens, J., concurring in part and dissenting in part).
played a part in our previous decisions, and, even if the Bellotti principal opinion is taken as setting the
standard, we do not find complete anonymity critical.” Akron II, 497 U.S. at 513. A bypass statute must
take reasonable steps to assure anonymity or risk being invalidated as unconstitutional. See id. The inquiry
in the instant case turns on whether the steps taken to assure the petitioner’s anonymity are “reasonable” –
i.e., whether they reasonably safeguard the petitioner’s anonymity.
The parties agree that the court is required to follow the “undue burden” and “large fraction” analysis of
Casey and Hellerstedt. (See Doc. 61 at 26-27 (“The question of whether facial relief is an appropriate
remedy to a law that violates women’s right to abortion is ordinarily reviewed under Casey’s large fraction
test.”); Doc. 63 at 15 (“[F]or each challenged provision, the Court must ask whether it would deprive a
large fraction of affected pregnant minors of their right to an adequate [bypass] proceeding.”)).
“Legislation is measured for consistency with the Constitution by its impact on
those whose conduct it affects.” Id. at 894. “The proper focus of constitutional inquiry is
the group for whom the law is a restriction, not the group for whom the law is irrelevant.”
Id. For example, in Casey, the law at issue affected fewer than one percent of women
seeking abortions. Id. However, the Court’s principal opinion found that the facial
challenge “analysis does not end with the one percent of women upon whom the statute
operates; it begins there.” Id. Identifying the universe of affected individuals is the proper
way to begin a facial challenge analysis.
Moreover, “Casey teaches that the court need not find that a law imposes an undue
burden on a precise percentage of impacted women in order [to] find that facial relief is
warranted facial invalidation.” Planned Parenthood Southeast, Inc. v. Strange, 172 F.
Supp. 3d 1275, 1288 (M.D. Ala. 2016), judgment entered, 2016 WL 1178658 (M.D. Ala.
2016) (“Strange II”). The plurality decision in Casey found that the challenged
Pennsylvania statute “would affect a significant number of women, without quantifying
further.” Id. (citing Casey, 505 U.S. at 888-94) (emphasis in original). Therefore, to
determine the Act’s constitutionality on a facial challenge in terms of the “undue burden”
analysis under Casey, “the court must define the group of [minors] for whom the
challenged law[s] [are] relevant and then assess whether the law[s] will create a substantial
obstacle to obtaining an abortion for a significant number of the [minors] in that group.”
Strange II, 172 F. Supp. 3d at 1288. The Supreme Court recently reaffirmed that
Casey used the language “large fraction” to refer to “a large fraction of cases
in which [the provision at issue] is relevant,” a class narrower than “all
women,” “pregnant women,” or even ‘the class of women seeking abortions
identified by the State.” . . . Here, as in Casey, the relevant group is “those
[women] for whom [the provision] is an actual rather than an irrelevant
Hellerstedt, 136 S. Ct. at 2320 (quoting Casey, 505 U.S. at 894-95) (alterations in original).
To succeed on a facial challenge to the Act by way of a Federal Rule of Civil Procedure
12(c) motion for judgment on the pleadings, the plaintiffs must identify material allegations
from the complaint “to support a logical deduction that a significant number of women
would face an undue burden” because of the Act. Strange II, 172 F. Supp. 3d at 1288; see
also Fed. R. Civ. P. 12(c).
Accordingly, the relevant group of affected minors for each challenged provision of
the Act is necessarily dependent upon the challenged provision’s language, as the court
must consider the statute in light of those minors for whom the various challenged
provisions are “actual rather than irrelevant.” Hellerstedt, 136 S. Ct. at 2320 (quoting
Casey, 505 U.S. at 894-95). In other words, to render a challenged provision “relevant,”
the court defines the affected group as those minors who are subject to the provision’s
triggering event. For example, where the Act grants a judge discretion pursuant to Alabama
Code § 26-21-4(j) to take an action allowed by the statute – i.e., appointing a GAL to
represent the interests of the unborn child in the bypass proceedings – the affected group
with respect to this section is all minor petitioners in whose bypass proceedings the court
appoints a GAL for the fetus.7 Any other group includes those for whom the statute is
Certain triggering events set out in the Act – for example, the bypass court’s appointment of a GAL to
represent the unborn child, or the joinder of parents or guardians who are “otherwise aware” of the bypass
proceedings as represented parties – inevitably will be projected future occurrences in a pre-enforcement
challenge, some of them mandatory, some discretionary. However, the legislative grant of authority or
direction to erect such potential obstacles to a minor’s right of access to a constitutional judicial bypass is
irrelevant. As with the GAL provision, all challenged provisions of the Act must be read
in a manner to include only those minors for whom the provision is relevant.
The court is mindful that, in applying Casey’s undue burden test, it must “consider
the burdens a law imposes on abortion access together with the benefits those laws confer,”
as noted above. Hellerstedt, 136 S. Ct. at 2309. Because this case is before the court on a
facial constitutional challenge and on the parties’ motions for judgment on the pleadings,
the court must glean the benefits of the Act from the Legislature’s findings regarding the
State interests that the Act seeks to advance.8 According to the Act, the purposes of the
legislation are both “to … establish and protect the rights of the minor mother” and “to
protect the state’s public policy to protect unborn life” – and, specifically, to do so, “in part,
by requiring judges to make determinations pursuant to the judicial by-pass procedure and
[by requiring] judges [to] be provided with sufficient evidence and information upon which
they may make informed and proper decisions.” Ala. Code § 26-21-1(d). See also Ala.
Code § 26-21-1(c) (finding it “necessary that the Alabama courts be provided guidance in
determining appropriate procedure and evidence.”); Ala. Code § 26-21-1(f) (“the
a non-contingent, present fact, and the court thus must consider the effect of these authorized, and
sometimes mandatory, constraints on the relevant group. To hold otherwise would permit a legislature to
frustrate the application of Casey’s large fraction test in a facial challenge by rendering the group of affected
persons always indeterminate, because the triggering event or contingency that creates that group will only
occur in the future and, in some cases, possibly may never occur. In the abortion context, and after Casey,
a legislature may not artfully draft an abortion law in manner that seeks to shield the statute from facial
scrutiny. See, e.g., Hellerstedt, 136 S.Ct. at 2319 (rejecting a state’s “invitation to pave the way for
legislatures to immunize their statutes from facial review” through a severability clause).
The benefits discussed in Hellerstedt are related to the health of the mother and were ascertained based
upon a factual record following discovery. The Act at issue here does not address the health of the mother
or unborn child, which distinguishes it from the Texas statutes at issue in Hellerstedt.
Legislature’s intent is to provide guidance and assistance to minors who find themselves
in the unfortunate position of having to make such decisions and to courts who must act in
the place of parents in providing an alternative by-pass mode for decision making.”); Ala.
Code § 26-21-1(e) (“it is always the Legislature’s intent to provide guidance to the
Alabama courts on how life may be best protected.”). The Act also affirms the State’s
interest in enacting a constitutional bypass procedure. See Ala. Code § 26-21-1(c) (“The
Legislature enacts a judicial by-pass procedure for the purposes of meeting the
Constitutional standard … .”); Ala. Code § 26-21-1(f) (“It is not the Legislature’s intent to
place an undue burden on the minor’s otherwise legal right to make a decision on whether
to obtain an abortion of her unborn child … .”).9 The court addresses the benefits of the
Act, as described by the Legislature, infra.
As discussed supra and in RHS I, 204 F. Supp. 3d at 1307-08, the plaintiffs challenge certain aspects of
Alabama’s 2014 amendments to its judicial bypass laws, which the court refers to throughout this litigation
as the “Act.” The Legislature’s findings of fact with respect to the Act are codified at Ala. Code § 26-211(c) – (f), and the undersigned considers those findings in more detail in the body of this decision below.
The Legislature’s findings of fact regarding Alabama’s parental consent law – which is not the
subject of this litigation – are also found at § 26-21-1. Those findings are as follows:
It is the intent of the Legislature in enacting this parental consent provision to further the
important and compelling state interests of: (1) protecting minors against their own
immaturity, (2) fostering the family structure and preserving it as a viable social unit, and
(3) protecting the rights of parents to rear children who are members of their household.
The Legislature finds as fact that: (1) immature minors often lack the ability to make fully
informed choices that take account of both immediate and long-range consequences, (2)
the medical, emotional, and psychological consequences of abortion are serious and can be
lasting, particularly when the patient is immature, (3) the capacity to become pregnant and
the capacity for mature judgment concerning the wisdom of an abortion are not necessarily
related, (4) parents ordinarily possess information essential to a physician’s exercise of his
or her best medical judgment concerning the child, and (5) parents who are aware that their
minor daughter has had an abortion may better insure that she receives adequate medical
attention after her abortion. The Legislature further finds that parental consultation is
usually desirable and in the best interests of the minor.
The court is also mindful, in considering the State interests articulated by the
Legislature, that even if those interests are legitimate, the means chosen to further such
interests are not constitutionally permissible if they place a substantial obstacle in the path
of a woman’s choice. Casey, 505 U.S. at 877 (“A finding of an undue burden is a shorthand
for the conclusion that a state regulation has the purpose or effect of placing a substantial
obstacle in the path of a woman seeking an abortion of a nonviable fetus. A statute with
this purpose is invalid because the means chosen by the State to further the interest in
potential life must be calculated to inform the woman’s free choice, not hinder it. And a
statute which, while furthering the interest in potential life or some other valid state interest,
has the effect of placing a substantial obstacle in the path of a woman’s choice cannot be
considered a permissible means of serving its legitimate ends.”). Indeed, the undue burden
test itself embodies a balance between competing interests; it was expressly framed by the
Supreme Court to accommodate the State’s interest in protecting unborn life while also
protecting a woman’s right to choose. Id. at 878 (“To protect the central right recognized
by Roe v. Wade while at the same time accommodating the State’s profound interest in
Ala. Code 26-21-1(a) – (b). The court does not consider these legislative findings in this opinion, as they
are solely related to Alabama’s parental consent law, and they are set out separately from the Legislature’s
findings with regard to the judicial bypass statutes. Also, some of the Legislature’s findings regarding the
parental consent law are at seemingly at odds with its findings about judicial bypass. For example, the
Legislature’s findings implying that minors are per se immature and which express a preference for parental
involvement in a minor’s abortion decision are irreconcilable with a minor’s right to a judicial bypass,
which is designed to allow a minor to circumvent a state’s parental consent requirement as well as her
parent’s or guardian’s wishes. Indeed, a bypass option guarantees the minor the right to attempt to show
the bypass court that she is not per se immature, but instead sufficiently mature in fact to make an abortion
decision. See Akron II, 497 U.S. at 511-13 (a minor is entitled to an opportunity to demonstrate to a bypass
court that she is mature enough to make an informed abortion decision “without regard to her parents’
wishes”); c.f., Ala. Code § 26-21-1(a) – (b), § 26-21-1(c) – (f).
potential life, we will employ the undue burden analysis as explained in this opinion. An
undue burden exists, and therefore a provision of law is invalid, if its purpose or effect is
to place a substantial obstacle in the path of a woman seeking an abortion before the fetus
attains viability.”); see also id. at 876 (“In our view, the undue burden standard is the
appropriate means of reconciling the State’s interest with the woman’s constitutionally
Thus, while the State’s legitimate interests and the Act’s benefits are considered by
the court below, these are not alone dispositive – a statute that restricts abortion access and
that is justified by a legitimate State interest will fail constitutional scrutiny if it poses a
“substantial obstacle” to a minor’s liberty interest in reaching an abortion decision through
a judicial bypass. Casey, 505 U.S. at 877. “Only where state regulation imposes an undue
burden on a woman’s ability to make this decision does the power of the State reach into
the heart of the liberty protected by the Due Process Clause.” Id. at 874 (citations omitted).
With the foregoing in mind, the court turns to the merits of the motions for judgment
on the pleadings as to plaintiffs’ Bellotti II claims.
Parental Involvement as Parties to the Bypass – Alabama Code §
The Act provides a mechanism for a minor petitioner’s parent, parents or legal
guardian to participate as parties to the bypass proceeding.
Although the court shall not be required or permitted to contact the minor’s
parent, parents, or legal guardian, in the event that the minor’s parent,
parents, or legal guardian are otherwise aware of the by-pass proceeding,
they, he, or she shall be given notice of and be permitted to participate in the
proceeding and be represented by counsel with all of the rights and
obligations of any party to the proceeding.
Ala. Code § 26-21-4(l).10
The controlling opinion in Bellotti II is clear that “every pregnant minor is entitled
in the first instance to go directly to the court for a judicial determination without prior
parental notice, consultation, or consent[.]” Bellotti II, 443 U.S. at 649. As the Court noted,
‘“there are parents who would obstruct, and perhaps altogether prevent, the minor’s right
to go to court.’ … There is no reason to believe that this would be so in the majority of
cases where consent is withheld. But many parents hold strong views on the subject of
abortion, and young pregnant minors, especially those living at home, are particularly
vulnerable to their parents’ efforts to obstruct both an abortion and their access to court.”
Id. at 647 (citation omitted). See also Indiana Planned Parenthood Affiliates Ass'n, Inc. v.
Pearson, 716 F.2d 1127, 1132 (7th Cir. 1983) (“Unemancipated minors are fundamentally
different from adults because they are financially dependent upon their parents and have
numerous legal incapacities. In addition, parents have considerable leeway to impose
punishment upon their children for disobedience. Because of this, minors often have no
choice but to comply with parental directives.”).11 The requirement of the Act that parents
The affected group as to § 26-21-4(l) is all minor petitioners whose parent(s) or legal guardian are joined
as parties to the minor’s bypass proceeding.
These observations are borne out by a number of Alabama bypass cases. See, e.g., In re Anonymous, 964
So. 2d 1239, 1243 (Ala. Civ. App. 2007) (the minor testified that “if she were forced to tell her mother and
stepfather that she was pregnant, they would ‘kick her out’ and she would have nowhere to go.”); In re
Anonymous, 782 So. 2d 791, 791-92 (Ala. Civ. App. 2000) (the minor “stated that her father had told her
that if she ever came home pregnant he would kill her”; while “she did not believe he meant this literally,”
“she believed her parents would whip her and then kick her out of the house if she told them she was
pregnant.”); Ex parte Anonymous, 595 So. 2d 497, 498 (Ala. 1992) (the minor believed that “she might be
forced to leave home as a consequence” of her pregnancy.); Matter of Anonymous, 628 So. 2d 854, 854-55
(Ala. Civ. App. 1993) (the minor testified that “she cannot discuss this matter with her paternal
who become aware of a judicial bypass proceeding be given formal notice of that
proceeding, and permitted to participate in it and be represented by counsel as parties,
facilitates and, indeed, invites such obstruction, and oversteps the bounds of parental
involvement set by Bellotti II.
Those bounds are clearly drawn. If a minor “satisfies the court that she is mature
and well enough informed to make intelligently the abortion decision on her own, the court
must authorize her to act without parental consultation or consent.” Id. If the minor “fails
to satisfy the court that she is competent to make this decision independently, she must be
permitted to show that an abortion nevertheless would be in her best interests.” Id. at 6478. “If, all things considered, the court determines that an abortion is in the minor’s best
interests, she is entitled to court authorization without any parental involvement.” Id. at
648. Only if the court concludes that an immature minor’s best interests would be served
by denial of the abortion request may the court choose to defer decision until there is
parental consultation, in which the court may participate. Id. As the Bellotti II Court was
at pains to emphasize, “this is the full extent to which parental involvement may be
required.” Bellotti II, 443 U.S. at 648; see also Akron II, 497 U.S at 511 (a minor petitioner
is entitled to show that she is sufficiently mature and informed to make an abortion decision
“without regard to her parents’ wishes”); Zbaraz v. Hartigan, 763 F.2d 1532, 1536 (7th
Cir. 1985), aff’d, 484 U.S. 171 (1987) (“[A] mature minor or an immature minor in whose
grandparents, who have custody of her, because they consider abortion to be murder, and they would throw
her out of the house.”).
best interest it is to have an abortion has a constitutional right to have an abortion without
notifying her parents.”) (citing Matheson, 450 U.S. at 420 (Powell, J., concurring); Bellotti
II, 443 U.S. at 647).
Accordingly, “every minor must have the opportunity – if she so desires – to go
directly to a court without first consulting or notifying her parents.” Bellotti II, 443 U.S. at
647. The minor is not only protected from parental knowledge of her bypass proceeding, it
is also “‘parental involvement’ that an emancipated or mature minor must have an
opportunity to avoid.” Pearson, 716 F.2d at 1132 (7th Cir. 1983) (citing Akron I, 462 U.S.
at 427, n. 10). As the Bellotti II Court made clear, “‘[t]he abortion decision differs in
important ways from other decisions that may be made during minority. The need to
preserve the constitutional right and the unique nature of the abortion decision, especially
when made by a minor, require a State to act with particular sensitivity when it legislates
to foster parental involvement in this matter.” Id. at 642. “[P]articular sensitivity” is critical
because “there are few situations in which denying a minor the right to make an important
decision will have consequences so grave and indelible”; “considering her probable
education, employment skills, financial resources, and emotional maturity, unwanted
motherhood may be exceptionally burdensome for a minor.” Id.
By providing a statutory mechanism for some parents or legal guardians to
participate as parties to the bypass proceeding – and also to appeal any decision by the
bypass court, see Ala. Code § 26-21-4(n) – the Act eviscerates the judicial bypass mandate
of Bellotti II as to the minors affected. Thus, § 26-21-4(l) violates both a minor petitioner’s
procedural and substantive due process rights to access to a constitutional judicial bypass
of Alabama’s parental consent law, and it unduly burdens her liberty interests. Under the
strict guidelines of Bellotti II, this section of the Act is unconstitutional. Miller, 934 F.2d
at 1475 (Bellotti II imposes “strict” guidelines for a bypass proceeding).
Anonymity of the petitioner and confidentiality of bypass
Plaintiffs also argue that the Act is unconstitutional because it fails to ensure the
affected minors’ confidentiality.12 (Doc. 61). The Act requires that “[a]ll proceedings under
this chapter shall be confidential and anonymous. In all pleadings or court documents, the
minor shall be identified by initials only.” Ala. Code § 26-21-4(o). Supplementing and
qualifying these general requirements, Alabama Code § 26-21-4(c) provides, in relevant
part, as follows:
The minor’s identity shall be kept confidential, but her identity may be made
known to the judge, any guardian ad litem, the district attorney or any
representative of the district attorney’s office of the county where the minor
is a resident or the county where the abortion is to be performed, any
appropriate court personnel, any witness who has a need to know the minor's
identity, or any other person determined by the court who needs to know.
Any person who is given the identity of the minor shall keep her name
confidential and shall not give it to any other person, unless otherwise
ordered by the court.
Ala. Code 26-21-4(c). If the court determines at the initial hearing on the petition that
additional evidence or testimony is necessary, it may adjourn the hearing and “issue
instanter subpoenas or otherwise permit any party or participant in the hearing to bring
The affected group as to the challenged portions of §§ 26-21-4 (c), (e), (f), (i), (j) (k), (l), and (n) is all
minor petitioners for whom the parent(s) or legal guardian, the DA or his or her representative a, GAL for
the unborn child, and any witnesses or others deemed by the court to have a need to know her identity are
permitted under the Act to learn about or participate as witnesses or parties in her bypass proceeding, other
than those witnesses who are so informed or called to testify by the minor herself.
before the court admissible evidence or testimony either in support of or against the
petition.” Ala. Code § 26-21-4(f).
As to any appeal of the bypass court’s decision, “[a]n expedited confidential and
anonymous appeal shall be available to any minor to whom the court denies a waiver of
consent, the district attorney’s office, and any guardian ad litem,13 or the parent, parents,
or legal guardian of the minor.” Ala. Code § 26-21-4(n). The Act further provides that
Records and information involving court proceedings conducted pursuant to
[the Act] shall be confidential and shall not be disclosed other than to the
minor, her attorney, and necessary court personnel…. Any person who shall
disclose any records or information made confidential pursuant to [the
foregoing sentence] shall be guilty of a Class C misdemeanor.
Ala. Code § 26-21-8(a, b). The defendants assert that these provisions, and particularly the
fact that Alabama law criminalizes disclosure of information regarding a bypass
proceeding, provide reasonable assurance of confidentiality. (Doc. 63).
Under Bellotti II, a minor is entitled to an “anonymous” judicial bypass to a state’s
parental consent law. Bellotti II, 443 U.S. at 644; see also Akron II, 497 U.S. at 512 (the
bypass procedure “must insure the minor’s anonymity”). Eleven years after Bellotti II, the
The Act allows a GAL for the fetus to appeal from a bypass order. However, in 1998, the Alabama
Supreme Court decided that a GAL for an unborn child may not constitutionally appeal an order granting
a minor’s request to have an abortion. See In re Anonymous, 720 So. 2d 497, 499-500 (Ala. 1998) (“Based
upon well-established Alabama caselaw, reaffirmed by this Court on July 31, 1998, we must presume that
in 1987, when it enacted Ala. Code 1975, § 26-21-1 et seq. (the Parental Consent Statute), the Alabama
Legislature knew the limit of its constitutional authority. . . . The Legislature, as the Court of Civil Appeals
correctly noted, did not provide a right to appeal from an order granting a petition for a waiver of parental
consent. We can conclude only that the Legislature understood its subordinance to the Supremacy Clause
of the United States Constitution and that it recognized that, pursuant to the United States Supreme Court’s
decision in Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), it could not constitutionally
confer upon a nonviable fetus the right to appeal, through a guardian ad litem, an order granting a minor's
request to have an abortion.”) (internal citations omitted). No party has cited this case to the court for this
proposition. However, the Alabama Supreme Court opinion remains in effect and constitutes binding
plurality opinion in Akron II determined that “anonymity,” as used by the Bellotti II
plurality, did not mean “complete anonymity,” and that a bypass statute is facially
constitutional if it “takes reasonable steps to prevent the public from learning of the minor’s
identity.” Id. at 513. The Court distinguished between “complete anonymity” and the
practical need to disclose a minor petitioner’s identity to court personnel “for
administrative purposes, not for public disclosure.” Id. In assessing the constitutionality of
the bypass law at issue in Akron II, which criminalized disclosure of information related to
the bypass petitioner or proceeding by court personnel, the Court “refuse[d] to base a
decision on the facial validity of a statute on the mere possibility of unauthorized, illegal
disclosure by state employees.” Id.
Since Akron II, decisions from other courts have provided little in the way of
guidance in interpreting the Supreme Court’s holding that complete anonymity is not
“critical,” or in deciding what steps are “reasonable … to prevent the public from learning
the minor’s identity.” Id. See also, e.g., Miller, 934 F.2d at 1478 (Georgia law requiring
a minor to reveal her full name to court personnel at the time a judicial bypass proceeding
is commenced adequately safeguards the minor’s “anonymity” because of statutory
requirements that “all proceedings be conducted in a manner to protect the minor’s
anonymity” and “all records be sealed at the inception of the case,” as well as Georgia
Rules of Juvenile Procedure and Georgia Rules of Appellate Procedure that provide that
“the juvenile court must redact the name of the minor throughout the record,” “and the
appellate court must keep the record confidential and then seal it upon the conclusion of
the proceedings”) (citations omitted). Moreover, at no point has the word “public” been
clearly defined in the context of a judicial bypass law.14 Still, it is clear that “confidentiality
during and after [a judicial bypass] proceeding is essential to ensure that a minor will not
be deterred from exercising her right to a hearing because of fear that her parents may be
notified.” Zbaraz, 763 F.2d at 1542. Again, “[t]he [judicial bypass] proceeding … must
assure that a resolution of the issue, and any appeals that may follow, will be completed
with anonymity and sufficient expedition to provide an effective opportunity for an
abortion to be obtained,” Bellotti II, 443 U.S. at 644, and “the state must take reasonable
steps to prevent the public from learning of the minor’s identity.” Miller, 934 F.2d at 1479.
The Act runs afoul of these essential requirements. As noted above, defendants
argue that the statute does more than impose the kind of non-specific confidentiality
requirement found insufficient by other federal courts, because Alabama Code § 26-21-8
makes disclosure of information about a judicial bypass proceeding a criminal act. See
Zbaraz, 763 F.2d at 1543 (the question before the court is “whether the … statute assures
a minor’s anonymity during the course of the waiver proceedings with sufficient
specificity.”); Zbaraz v. Hartigan, 776 F. Supp. 375, 379 (N.D. Ill. 1991) (“general
language stating that proceedings ‘shall be confidential’ does not sufficiently ensure that a
minor’s identity will be withheld from the public.”) (citing American College of
Obstetricians and Gynecologists, Pennsylvania Section v. Thornburgh, 737 F.2d 283, 297
(3rd Cir.1984), aff’d 476 U.S. 747 (1986) (same)); Jacksonville Clergy Consultation Serv.,
Akron II draws a distinction between court personnel and the “public.” Defendants contend that the
“public” consists of all those who are not made privy to the petitioner’s identity and the pendency of judicial
bypass proceedings, except those persons who are authorized or permitted access to that information under
the Act. As discussed below, this definition sweeps too broadly.
Inc. v. Martinez, 696 F. Supp. 1445, 1448 (M.D. Fla. 1988), order dissolved, 707 F. Supp.
1301 (M.D. Fla. 1989) (“The common thread running through all of these cases is that in
order for a statute to pass constitutional muster the provisions ensuring confidentiality,
anonymity and expeditious judicial proceedings must be drafted with specificity and
detail.”). If § 26-21-8 were read in isolation, defendants’ argument might warrant more
credence. However, the court must examine the language of the Act – i.e., Alabama Code
§ 26-21-1 et seq. – as a whole, rather than reviewing only isolated provisions, in order to
assess the operation of the sections at issue. See Commissioner of Internal Revenue v.
Engle, 464 U.S. 206, 223 (1934) (noting that the true meaning of a single section of a
statute, however precise its language, cannot be ascertained if it is considered apart from
Other provisions of the Act render § 26-21-8 impotent as an assurance of anonymity
and confidentiality. Under the Act, the DA shall be notified and joined as a party, and may
designate a representative to participate in a bypass proceeding. See Ala. Code § 26-214(i). A GAL for the fetus and the minors’ parents or legal guardians may also be brought
within the universe of persons authorized to learn about the minor’s identity and the
pendency of her judicial bypass petition, and permitted to participate in the bypass
proceeding. Ala. Code §§ 26-21-4 (j), (l). Thus, although § 26-21-8 prohibits and
criminalizes disclosure of records and information involving court proceedings under § 2621-4 other than “to the minor, her attorney, and necessary court personnel,” disclosure
concerning such proceedings to the office of the DA, to GALs, and to parents or guardians
of affected minors clearly is permitted by other sections of the Act. The addition of these
parties to the list of those to whom the petitioner’s identity may be disclosed compromises
the minor’s anonymity to a degree well beyond the scope permitted by Bellotti II and any
case decided in the intervening four decades. 15 See n. 3, supra (citing cases).
The Act’s provisions allowing parties or the court to investigate, gather evidence,
and issue subpoenas, as well as the involvement of witnesses who have the right to
participate in the proceedings for the purpose of presenting evidence and requesting delays,
also breach the minors’ anonymity and the confidentiality of the proceedings. See Ala.
Code §§ 26-21-4(c), (f). In addition, the Act contains a catch-all exception to § 26-21-8:
bypass information and the minor’s identity may permissibly be shared with “any
appropriate court personnel, any witness who has a need to know the minor’s identity, or
any other person determined by the court who needs to know. Any person who is given the
identity of the minor shall keep her name confidential and shall not give it to any other
person, unless otherwise ordered by the court.” Ala. Code § 26-21-4(n). In other words,
Even if the parents or guardian are “otherwise aware” of the bypass proceeding itself pursuant to
Alabama Code § 26-21-4(l), they may not be aware, absent their participation as parties, of the evidence a
minor will present or the witnesses she will call to establish her maturity or address her best interests. Under
Belotti II, it is not only the minor’s identity, but also the “resolution of the issue” that must remain
confidential. Bellotti II, 443 U.S. at 644 (“The proceeding in which this showing is made must assure that
a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient
expedition to provide an effective opportunity for an abortion to be obtained.”). Alabama Code §§ 26-214(h) requires the minor to provide “probative and admissible evidence” in order to secure the requested
relief from the court; she may not rely on “[u]ncorroborated legal conclusions,” and, as a result, the minor
may have a need to present witnesses to offer testimony. See, e.g., In re Anonymous, 888 So. 2d 1265, 127071 (Ala. Civ. App. 2004) (witness called to testify by the petitioner). For those parents identified in Belotti
II as “hold[ing] strong views on the subject of abortion,” knowledge concerning the participation of
witnesses on behalf of the minor such as siblings or other relatives, clergy, teachers, coaches, or friends
may open the door to obstruction of a minor from “both an abortion and [her] access to court,” 443 U.S. at
647, through influence on those witnesses. Efforts by persons associated with the bypass proceeding to
ascertain or confirm whether parents or guardians are “otherwise aware” of such proceedings for the
purpose of implementing the Act’s mandate that they must be given notice of and be permitted to participate
in the proceeding also may compromise a minor’s anonymity. Ala. Code § 26-21-4(l).
the bypass court acts wholly within its statutory discretion in authorizing disclosure to an
unlimited number of people, including witnesses who may be called by the DA, the GAL,
or a parent or guardian to offer “admissible evidence or testimony either in support of or
against the petition.”16 Ala. Code § 26-21-4(f). Of course, in order to possess relevant
information on the subject of the minor’s maturity, whether she is sufficiently informed
about the abortion decision, and her best interests, such witnesses almost inevitably would
have to be relatives, friends or acquaintances of the petitioner herself – precisely those
members of “the public” whom she is most likely not to want informed about her decision,
and whose opposition to the petition could become coercive. Further, those who are privy
to the protected information, although required to treat it as confidential themselves without
further authorization, may disclose that information if the court so directs. Ala. Code § 2621-4(c).
This is a very far cry from the strictly limited disclosure to court personnel for
administrative purposes that was approved by Akron II. On the contrary, the Act “raise[s]
the specter of public exposure and harassment of women who choose to exercise their
It is no answer to this finding that the bypass court might in some circumstances choose not to appoint a
GAL or permit additional witnesses, or that otherwise aware parent(s) or guardians may not ask to be joined
as parties – or that some (although not all) of these persons cannot be assumed to be likely to breach the
minor’s confidentiality unlawfully because they are employees or officers of the court. See, e.g., Doc. 63 at
19 (arguing that, “on a facial challenge, a court should not strike down a law on the unknowable premise
that a state employee may unlawfully disclose confidential information. [Akron II,] 497 U.S. 502, 513
(1990). Nothing in Akron II suggests that same logic does not extend to any other individuals who may
learn of the petition by participating in the hearing.”). The point is that these individuals themselves may
become participants in the bypass proceeding, and, if they do, they are granted authority by the Act to know
both the petitioner’s identity and information concerning the proceeding – and, under some circumstances,
even to share it lawfully. The possibility of unlawful disclosure by, for example, parents, guardians,
employees of the DA, or witnesses who are not officers or employees of the court only exacerbates the
personal, intensely private, right, with their physician, to end a pregnancy. Thus, [it poses]
an unacceptable danger of deterring the exercise of that right, and must be invalidated.”
Thornburgh v. Am. Coll. of Obstetricians & Gynecologists, 476 U.S. 747, 767-68 (1986),
overruled on other grounds by Casey, 505 U.S. 833; see also id. at 766 (“The decision to
terminate a pregnancy is an intensely private one that must be protected in a way that
assures anonymity. … ‘It is inherent in the right to make the abortion decision that the right
may be exercised without public scrutiny and in defiance of the contrary opinion of the
sovereign or other third parties.’… A woman and her physician will necessarily be more
reluctant to choose an abortion if there exists a possibility that her decision and her identity
will become known publicly.”).
Bellotti II and Akron II mandate “reasonable” efforts to ensure the anonymity of the
petitioner and confidentiality of the bypass proceedings. The Act goes well beyond
reasonable and permissible disclosure, creating a statutory scheme that not only fails to
assure a petitioner that her anonymity will be protected, but actually authorizes disclosure
without any limits at all, save only for the discretion of the bypass judge. The court
presumes that judges will act lawfully and prudently in the exercise of their duties. But the
unfettered authority granted by the Act goes too far, and it violates a minor’s constitutional
right to an anonymous and confidential judicial bypass to Alabama’s parental consent law.
Benefits and burdens of the Act
In reaching the foregoing conclusions, the court has carefully considered the
benefits conferred by the provisions in question together with the burdens they impose on
abortion access, as directed by the Court in Hellerstedt, 136 S. Ct. at 2309. Defendants
maintain that the purpose of the Act is “to provide Alabama bypass courts ‘guidance in
determining appropriate procedure and evidence’ – so that the courts will have ‘sufficient
evidence and information’ to ‘make informed and proper decisions.’” (Doc. 63 at 4-5)
(citing Ala. Code § 26-21-1(c), (d)). “As a secondary goal, [the Act] also facilitate[s] the
provision of ‘guidance and assistance’ to the girls who are attempting to make such a
momentous decision on their own.” (Doc. 63 at 5) (citing Ala. Code § 26-21-1(f)).
As to the latter, defendants do not indicate specifically how the challenged
provisions of the Act offer pregnant minors any kind of guidance or assistance. The court
can only speculate that defendants might be claiming some incidental – and unexplained –
salutary effect emanating from the bypass proceeding itself, perhaps resulting from the
minor’s being cross-examined by the DA or the GAL for the fetus, or from her being privy
to the testimony of a parent or a witness for an opposing party. But the Act itself is silent
on this subject; it offers no clue at all as to how the challenged 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[.]” Ala.
Code § 26-21-1(f). It is true that states may require – as the Supreme Court made clear in
Casey – that a physician or a qualified non-physician be tasked with apprising the minor
of truthful, non-misleading information concerning the nature of the procedure, the
attendant health risks and those of childbirth, the probable gestational age of the fetus, and
the assistance available should the minor petitioner decide to carry the pregnancy to full
term. See Casey, 505 U.S. 833, 881-883. But because the Act itself notes no overtly
educational purpose for the participation of the parents or guardian, the DA, the GAL for
the unborn child, or any subpoenaed witnesses in the judicial bypass proceeding, the court
must decline to infer one.
Indeed, the bypass proceeding would be redundant as a tool for the counseling of
the minor; the petitioner herself is charged by statute, in an unchallenged portion of the
Act, with providing the court “probative and admissible evidence” that she has been
informed of and understands the medical procedure and its consequences, and that she has
been counseled by a “qualified person” as to the alternatives to abortion. Ala. Code § 2621-4(h). She must “explain each of the foregoing to the court,” and the court “shall be
satisfied that she is making an informed judgment and shall document its finding in its
order.” Id. The petitioner also must present “such additional probative evidence” to the
court of her maturity as will demonstrate that she has “sufficient experience with and
understanding of life” to enable her to make mature and informed decisions. Id. These are
prerequisites to the minor’s obtaining relief. Charging the bypass court itself with the
responsibility of providing the petitioner with an appropriate education concerning her
choice via the addition of the parties and witnesses permitted by the Act – after the minor
has already received expert counseling and has presented evidence to that effect, and has
also offered proof of her achievement of the requisite level of experience with and
understanding of life – would be duplicative of these mandates.
Nor is it clear that a parent, guardian, DA, GAL, or witness would ordinarily
represent a “qualified person” capable of educating the minor concerning the health risks,
alternatives to abortion, and other factors that are material to an abortion decision. See Ala.
Code § 26-21-4(h) (requiring evidence of counseling by a “qualified person” concerning
the alternatives to abortion); Akron II, 497 U.S. at 518 (explaining that “‘[t]he State’s
interest is in ensuring that the woman’s consent is informed and unpressured; the critical
factor is whether she obtains the necessary information and counseling from a qualified
person, not the identity of the person from whom she obtains it.’”) (emphasis added) (citing
Akron I, 462 U.S. at 448). Finally, the bypass court is hardly the appropriate setting for
such counseling, in any event; it is neither a physician’s office, nor a classroom, nor any
other such place of instruction or guidance. The only proper purpose of the bypass
proceeding under Belotti II is the adjudication of the minor’s maturity and whether she is
well enough informed to make the abortion decision on her own, or, failing that, where her
best interests lie. Bellotti II, 443 U.S. at 647-48; see also Zbaraz, 776 F. Supp. at 383 (“The
only issues which may be addressed in the bypass procedure, including any appeal, are
whether the young woman has sufficient maturity to decide to have an abortion
independently or, if she is immature, what would be in her best interests.”) (citing Bellotti
II, 443 U.S. at 643-44; Akron II, 497 U.S. at 511-14).
Absent the Legislature’s explicit expression of the intent to provide the minor
guidance and assistance by means of the challenged portions of the Act, the court turns to
the consideration of those provisions as they relate to the Legislature’s stated objective of
requiring judges in bypass proceedings “[to] be provided with sufficient evidence and
information upon which they may make informed and proper decisions.” Ala. Code § 2621-1(d). In this regard, the Act says specifically that the DA, the GAL, and the witnesses
called by the parties should present evidence for the purpose of assisting the court in
making an informed decision and in doing substantial justice. See Ala. Code § 26-21-4(i)
(charging the DA with “present[ing] evidence for the purpose of providing the court with
a sufficient record upon which to make an informed decision and to do substantial
justice.”); Ala. Code § 26-21-4(j) (giving the GAL for the fetus “the responsibility of
assisting and advising the court so the court may make an informed decision and do
substantial justice.”); Ala. Code § 26-21-4(k) (permitting the DA and any other party “to
obtain evidence, subpoena witnesses, or to obtain and present any evidence or information
which will be necessary and appropriate for the court to make an informed decision.”).
Notably, however, no such reason is given for the participation of parents or
guardians who are “otherwise aware” of the bypass proceeding. Ala. Code § 26-21-4(l).
Further, although the Act indicates generally that the DA, the GAL for the fetus, and the
witnesses called by these parties should assist the court in making an informed decision
and in doing substantial justice, it says little else on the subject. For example, it makes no
finding that judicial bypass proceedings previously undertaken under Alabama’s former
bypass law – “which was enacted in 1987 and remained substantively unchanged for 27
years,” and in which “the only necessary party to the bypass proceedings identified by
statute was the minor petitioner,” RHS I, 204 F. Supp. 3d at 1307 – were in fact deficient
in developing the evidence necessary for bypass courts to decide the issues properly before
them. Also, the necessity for these additional persons to help the court in making an
informed and proper decision is called into question by the fact that some bypass
proceedings will still go forward under the Act without any of the new participants; the
statute permits, but does not mandate, the involvement of parents or a guardian who do not
otherwise know of the petition, the GAL for the unborn child, and other unspecified
additional witnesses. One must assume that the Legislature is satisfied that such petitions
will proceed with sufficient evidence for the judge to adjudicate properly even without the
required participation of these individuals.
In addition, the Act specifically directs the bypass court to deny an inadequately
supported petition. See Ala. Code § 26-21-4(h) (“It shall not be sufficient that the court
find the minor mature because she has requested relief from the court, but rather the totality
of the evidence must be probative and of such weight to prove that the minor is mature and
well-informed enough to make the abortion decision on her own, or that the performance
of the abortion will be in her best interest. Uncorroborated legal conclusions by the minor
shall not be sufficient to support a determination by the court to grant her petition. In the
event of a denial of the petition by the court, the minor may re-file the petition once for a
de novo hearing with the court.”); see also Bellotti II, 443 U.S. at 648 (“If … the court is
not persuaded by the minor that she is mature or that the abortion would be in her best
interests, it may decline to sanction the operation.”); Ex parte Anonymous, 889 So. 2d 525,
525 (Ala. 2003) (“The burden of proof with respect to both the maturity/well-informed
prong and the best-interest prong of § 26-21-4(f), Ala. Code 1975, lies with the minor.”).
And, indeed, the Alabama courts traditionally have not hesitated to deny a waiver when
the minor failed to meet her burden of proof. See, e.g., In re Anonymous, 964 So. 2d 1239,
1243 (Ala. Civ. App. 2007) (affirming a bypass court’s decision to deny a waiver where
the minor presented minimal evidence to satisfy her burden of proof); Ex parte Anonymous,
889 So. 2d at 525-26 (concluding that the minor failed to carry her burden of proof as to
the best interest prong); In re Anonymous, 833 So. 2d 75, 78 (Ala. Civ. App. 2002)
(deciding that the trial court did not err in finding that the minor failed to meet her burden
of proof as to either prong of § 26-21-4(f)). The appellate courts have also felt free to
remand for additional findings. See In re Anonymous, 956 So. 2d 427, 428 (Ala. Civ. App.
2006) (remanding a case to the juvenile court “‘to detail sufficiently the basis for
appropriate findings [and conclusions] and immediately to conduct such further
proceedings, to include taking additional testimony or admitting further evidence, that may
be necessary in order to do so.’”) (brackets in original) (citation omitted). Thus, the statute
itself, the long-standing practice of the Alabama courts, and Bellotti II all ensure that any
petition which the bypass court finds legally unsupported simply will not prevail.
Finally, the court has located no other state which either mandates or permits
participation by a parent or guardian, the DA, a GAL for the fetus, or witnesses (other than
those called by the minor) in bypass proceedings for the purpose of providing the court
with assistance in arriving at informed and proper decisions – or, indeed, for any other
purpose. Some states, either by choice or by court order, do not mandate parental consent
or notification at all, and therefore have no bypass procedures.17 The 37 states that do have
These jurisdictions do not currently have parental consent or notification laws and, therefore, do not have
judicial bypass procedures: Connecticut, District of Columbia, Hawaii, New Mexico, New York, Oregon,
Vermont, and Washington. In addition, the following states have enacted parental consent or notification
laws and judicial bypass provisions, but are enjoined from enforcing them by state or federal courts: Alaska
(parental notification and judicial bypass law, AS §§18.16.010, 18.16.020, 18.16.030, 18.16.040, declared
unconstitutional in Planned Parenthood of The Great Nw. v. State, 375 P.3d 1122 (Alaska 2016));
California (parental consent and judicial bypass statute, Cal. Health & Safety Code § 123450, declared
unconstitutional in American Academy of Pediatrics v. Lungren, 16 Cal. 4th 307, 66 Cal.Rptr.2d 210 (Cal.
1997)); Colorado (parental notification and judicial bypass statute, Colo. Rev. Stat. Ann. § 12-37.5-107,
declared unconstitutional in Planned Parenthood of Rocky Mountains Servs. Corp. v. Owens, 107 F. Supp.
2d 1271, 1285 (D. Colo. 2000), aff'd, 287 F.3d 910 (10th Cir. 2002)); Nevada (parental notification and
judicial bypass statute, NRS 442.255, 442.2555, 442.257, 442.253(1)(c), declared unconstitutional in Glick
v. McKay, 937 F.2d 434 (9th Cir. 1991)); and New Jersey (parental notification and judicial bypass statute,
N.J.S.A. 9:17A-1; §§ 1.2 et seq., declared unconstitutional in Planned Parenthood of Cent. New Jersey v.
bypass statutes of some kind simply do not authorize such participation.18 Indeed, some
states go so far as affirmatively to prohibit participation by parties other than the minor and
her representatives. See, e.g., Kan. Stat. Ann. § 65-6705(c) (bypass statute providing that
“[a]ll persons shall be excluded from [bypass] hearings … except the minor, her attorney
and such other persons whose presence is specifically requested by the applicant or her
attorney.”); Neb. Rev. Stat. Ann. § 71-6903 (bypass statute requiring that “[o]nly the
pregnant woman, the pregnant woman’s guardian ad litem, the pregnant woman’s attorney,
and a person whose presence is specifically requested by the pregnant woman or the
pregnant woman's attorney may attend the hearing on the petition.”). It would strain
credulity to conclude that the bypass judges and other authorities in every other state that
Farmer, 165 N.J. 609, 612, 762 A.2d 620, 621 (N. J. 2000)). The enjoined Alaska, California, Colorado,
Nevada, and New Jersey bypass statutes did not permit any additional persons to participate in the bypass
These states and bypass statutes are as follows: Ariz. Rev. Stat. Ann. § 36-2152 (Arizona); Ark. Code
Ann. § 20-16-809 (Arkansas); Del. Code Ann. tit. 24, § 1784 (Delaware); Fla. Stat. Ann. § 390.01114
(Florida); Ga. Code Ann. § 15-11-684 (Georgia); Idaho Code Ann. § 18-609A (Idaho); 750 Ill. Comp. Stat.
Ann. 70/25 (Illinois); Ind. Code Ann. § 16-34-2-4 (Indiana); Iowa Code Ann. § 135L.3 (Iowa); Kan. Stat.
Ann. § 65-6705(c) (Kansas); Ky. Rev. Stat. Ann. § 311.732 (Kentucky); La. Stat. Ann. § 40:1061.14,
amended by 2017 La. Sess. Law Serv. Act 165 (S.B. 111) (Louisiana); 22 M.R.S.A. §1597-A (Maine); Md.
Code Ann., Health-Gen. § 20-103 (Maryland); Mass. Gen. Laws Ann. ch. 112, § 12S (Massachusetts);
Mich. Comp. Laws Ann. § 722.904 (Michigan); Minn. Stat. Ann. § 144.343 (Minnesota); Miss. Code. Ann.
§ 41-41-55 (Mississippi); Mo. Ann. Stat. § 188.028 (Missouri); Mont. Code Ann. § 50-20-509 (Montana);
Neb. Rev. Stat. Ann. § 71-6903 (Nebraska); N.H. Rev. Stat. Ann. § 132:34 (New Hampshire); N.C. Gen.
Stat. Ann. § 90-21.8 (North Carolina); N.D. Cent. Code Ann. § 14-02.1-03.1 (North Dakota); Ohio Rev.
Code Ann. § 2151.85 (Ohio); Okla. Stat. Ann. tit. 63, § 1-740.3 (Oklahoma); 18 Pa. C.S.A. § 3206
(Pennsylvania); R.I. Gen. Laws § 23-4.7-6 (Rhode Island); S.C. Code Ann. § 44-41-32 (South Carolina);
S.D. Codified Laws § 34-23A-7; (South Dakota); Tenn. Code Ann. § 37-10-304 (Tennessee); Tex. Fam.
Code Ann. § 33.003 (Texas); Utah Code Ann. § 76-7-304.5 (Utah); Va. Code Ann. § 16.1-241 (Virginia);
W. Va. Code Ann. § 16-2F-4 (West Virginia); Wis. Stat. Ann. § 48.257 (Wisconsin); and Wyo. Stat. Ann.
§ 35-6-118 (Wyoming). Maine’s statute allows a minor to obtain an abortion if she consents and undergoes
counseling, or receives consent from a parent or adult family member, or secures a court order from a
probate or state court. 22 M.R.S.A. §1597-A. Maryland’s statute provides for a physician bypass rather
than a judicial bypass. Md. Code Ann., Health-Gen. § 20-103.
has a bypass statute are unable to make informed decisions and do substantial justice on
the basis of their exclusively ex parte proceedings, and this court declines to do so.
Accordingly, the State’s interest in the bypass court’s having sufficient evidence
and information upon which to make informed and proper decisions, Ala. Code § 26-211(d), clearly is still well-served under the Act, even absent additional testimony or
advocacy offered by participants other than the minor.19 And, even if in some way this state
The court notes that the Legislature made no finding that the Act is designed to advance any state interest
in creating an adversarial bypass proceeding – that is, an interest in requiring either state-facilitated or
state-mandated opposition to the minor’s petition by the DA or other parties. And, indeed, defendants
appear implicitly to disclaim such an interest. They maintain that the DA, for example, cannot be assumed
to be the minor’s adversary; instead, they argue that he or she acts merely as “a neutral assistant to the court,
free to take any position (or none at all).” (Doc. 63 at 5). Indeed, to the defendants, the DA is present at the
bypass proceeding merely to provide “additional viewpoints.” Id. “In truth,” they say, “a district attorney’s
appearance is not materially different from that of other necessary court personnel like the bailiff or court
reporter.” (Doc. 31 at 42). The DA “could remain neutral; he could support the petition; he could ask
numerous questions; he could ask none at all.” (Doc. 31 at 26).
However, this court cannot endorse quite so anodyne a description of the DA’s role, which the
language of the Act itself calls into question. The Act mandates that the DA “shall participate as an advocate
for the state to examine the petitioner and any witnesses[.]” Ala. Code § 26-21-4(i). The Legislature found
that “it is the interest of the State of Alabama to not only establish and protect the rights of the minor mother,
but also to protect the state’s public policy to protect unborn life[.]” Ala. Code § 26-21-1(d). The rights of
the minor granted by the Act are to “seek permission to have an abortion without her parent’s consent by
petitioning a court,” Ala. Code § 26-21-1(c), and “to be represented by an attorney and that if she is unable
to pay for the services of an attorney one will be appointed for her.” Ala. Code § 26-21-4(b). Thus, the Act
plausibly may be read to say that the DA acts within the scope of the Act by safeguarding the two codified
process “rights” of the minor petitioner – that is, her right to file a bypass petition and her right to courtappointed counsel – and that the DA otherwise must advocate in favor of Alabama’s policy of protecting
unborn life, a responsibility that necessarily is in conflict with the minor’s purpose for seeking a judicial
bypass. In short, it is not unreasonable for a DA to assume that he or she is required to oppose the merits of
bypass petitions as a matter of law.
This seems to have been the conclusion of the DA in the recent case of Matter of Anonymous, __
So. 3d __, 2017 WL 2963002, at *2 (Ala. Civ. App. July 12, 2017), the first case known to the court to be
decided under the Act. In that case, the DA opposed, and thereafter appealed, a juvenile court’s order
permitting a 12-year-old minor to bypass the parental consent requirement where her pregnancy was the
result of repeated rape by an adult relative, she did not know her father and his whereabouts were unknown,
the rape had occurred while the minor was in the mother’s custody, the minor filed her bypass petition
while in the custody of the Alabama Department of Human Resources (“DHR”) based on reports of physical
abuse at the hands of her mother, such abuse had resulted in the minor’s removal from the mother’s custody
on five occasions, and the minor had “no familial support.” Id. at *4. The DA appeared in the bypass
interest could plausibly be said to be incrementally better served by the addition of the new
Alabama participants, the benefit of the Act is not outweighed by the burden it imposes.
proceeding pursuant to Ala. Code § 26-21-4(i), and appealed that court’s ruling in favor of the minor under
Ala. Code § 26-21-4(n). Id. Although the DA represented to the court that “‘[t]he District Attorney is neither
an advocate for or against the granting of consent, but rather serves to protect the process,’” id. at *2,
members of the DA’s office appeared and examined witnesses at the trial, id., and the DA urged the
Alabama Court of Civil Appeals to conclude that the minor was too immature to make an informed decision
and that there was no evidence that the abortion would be in the minor’s best interest. Id. at *3. The Court
observed that the DA only made one procedural objection to the bypass court’s “trial” and that the DA also
challenged the substance and the merits of the bypass court’s decision to grant the minor’s petition. Id. at
2-3. Thus, under the Act, bypass petitioners could well face a formidable antagonist in their proceedings:
the chief prosecuting authority of the county in which the minor resides, empowered by the Act to represent
the state’s public policy to protect unborn life, and backed by substantial state resources.
Further, there is no doubt that the GAL for the unborn child must oppose the petition. See, e.g., Ex
parte Anonymous, 810 So. 2d 786, 789 (Ala. 2001) (the GAL for the fetus “subjected [the minor] to a
probing cross-examination”); Ex parte Anonymous, 889 So. 2d 525, 527 (Ala. 2003) (a GAL was appointed
“‘to represent the silent voice in this case.’”). See generally “In the Matter of Anonymous, A Minor: Fetal
Protection in Hearings to Waive Parental Consent for Abortion,” Helena Silverstein, Cornell Journal of
Law and Public Policy (Vol. 11, Fall 2001), pp. 69-111. In addition, the parent or guardian – precisely the
person whose opprobrium the minor is attempting to avoid by seeking a bypass – is reasonably likely to do
As the Matter of Anonymous case illustrates, the admission of these new participants to the bypass
proceeding appears to stand on its head the well-established view of the Alabama courts, before the Act
was passed, that bypass proceedings are “not only nonadversarial in nature,” but also are proceedings which
“specifically den[y] those persons who arguably are interested in the outcome—i.e., the minor’s parents
and other family members—the right to appear and be heard.” Ex parte Anonymous, 806 So. 2d 1269, 1276
(Ala. 2001). Indeed, the Alabama Supreme Court noted, “the mandated secrecy of the hearing prevents
anyone, at least in theory, from opposing the minor.” Id. Because of the greater difficulty of rendering
opinions “in such unilateral proceedings,” the court found “a perceptive, intuitive, and discerning trial
judge, as well as his or her specific factual findings” to be “arguably more necessary than in other cases
where opposing advocacy ultimately reveals the facts” – one factor in the court’s decision to permit the use
of an ore tenus standard of review for such proceedings. Id.
While this court does not, in this opinion, reach plaintiff’s argument that Bellotti II does not permit
a state to create an adversarial bypass proceeding, see n. 24, infra, it notes that at least one other court has
found such a proceeding to be constitutionally impermissible. See Zbaraz, 776 F. Supp. at 382–83 (“The
Bellotti II plurality, in mandating that a pregnant minor should be given an alternative procedure to seeking
parental approval prior to having an abortion, apparently did not contemplate that such a procedure would
be a formal adversarial proceeding. 443 U.S. at 643 n. 22, 99 S.Ct. at 3048 n. 22 (‘... [M]uch can be said
for employing procedures and a forum less formal than those associated with a court of general
jurisdiction.’). … Nor would an adversary proceeding be consistent with the purpose or nature of the
hearing.).”) (some citations omitted). As the Sixth Circuit has said, “a state may not erect procedural hurdles
in the path of a woman seeking an abortion simply to make it more difficult for her to obtain an abortion.”
Memphis Planned Parenthood, Inc. v. Sundquist, 175 F.3d 456, 461 (6th Cir. 1999).
Finally, for the reasons discussed above, the provisions which require or permit
notice to, and the participation of, the minor’s parents or legal guardians, the DA, a GAL
for the unborn child, and unspecified witnesses or others who may be subpoenaed or
otherwise need to know the minor’s identity do not advance the State’s express § 26-214(k) interest in enacting a constitutional bypass procedure. See Ala. Code § 26-21-1(c)
(“The Legislature enacts a judicial by-pass procedure for the purposes of meeting the
Constitutional standard … .”); Ala. Code § 26-21-1(f) (“It is not the Legislature’s intent to
place an undue burden on the minor’s otherwise legal right to make a decision on whether
to obtain an abortion of her unborn child … .”). On the contrary, the Act clearly imposes
an undue burden on the rights of the minor participants to whom it applies.20 Accordingly,
even if the challenged portions of the Act addressed above furthered a valid state interest,
those provisions have the effect of placing a substantial obstacle in the path of the affected
minors’ choice and, thus, cannot be considered a permissible means of serving any
otherwise legitimate ends. Hellerstedt, 136 S. Ct. at 2309.
Plaintiffs’ Informational Privacy Claim – Count II
As the court explained in RHS I,
Put another way, all minors for whom the portions of the Act discussed supra are relevant are unduly
burdened by those provisions and, thus, Casey’s large fraction test is satisfied. See Taft, 468 F.3d at 373
(“[I]n [Women’s Medical Professional Corp. v.] Voinovich [130 F.3d 187, 201(6th Cir. 1997)], a large
fraction was found because all women upon whom the restriction actually operated—i.e., women seeking
second-trimester pre-viability abortions—would effectively be barred from exercising their constitutional
right to obtain an abortion. Id. Other circuits that have applied the large fraction test to facial challenges to
abortion regulations have, likewise, only found a large fraction when practically all of the affected women
would face a substantial obstacle in obtaining an abortion.”) (citations omitted); see also Taft, 468 F. 3d at
374 (noting that “the term ‘large fraction,’ … in a way, is more conceptual than mathematical.”).
In Count II, plaintiffs assert that the Act violates a minor petitioner’s
“right to liberty and privacy as guaranteed by the due process clause of the
Fourteenth Amendment ... by permitting” disclosure of “deeply sensitive,
private information about the minor to others, including to any potential
witnesses.” (Doc. 1 at 13). In their brief in support of the motion for a
preliminary injunction, plaintiffs clarify that their “informational privacy”
claim is derived from the Supreme Court’s decision in Whalen v. Roe, 429
U.S. 589, 97 S.Ct. 869, 51 L.Ed.2d 64 (1977), in which the Court “referred
broadly to a constitutional privacy interest in avoiding disclosure of personal
matters.” Nat’l Aeronautics & Space Admin. v. Nelson, 562 U.S. 134, 135,
131 S.Ct. 746, 178 L.Ed.2d 667 (2011) (internal marks and citation omitted).
(Doc. 3 at 38-43).
204 F. Supp. 3d at 1335.21 The basis for the plaintiffs’ informational privacy claim is their
contention that a minor petitioner’s Fourteenth Amendment due process interest in
informational privacy is violated because the challenged portions of the Act “permit
adverse parties and the court” (Doc. 1 at 13) to disclose to the DA, the GAL, and to
potential witnesses that the minor petitioner is pregnant and seeking an abortion by judicial
bypass. (Doc. 61 at 30).
Plaintiffs’ informational privacy claim in Count II challenges the provisions of the
Act that also are the subject of plaintiffs’ Count I challenge under Bellotti II: Alabama
Six years ago, the Supreme Court remarked that, in addition to Whalen v. Roe, 429 U.S. 589 (1977), and
Nixon v. Administrator of General Services, 433 U.S. 425 (1977), “no … decision has squarely addressed
a constitutional right to informational privacy.” Nelson, 562 U.S. at 146. The Nelson decision, like Whalen,
assumed without deciding that a plaintiff’s challenge to government action would “implicate a privacy
interest of constitutional significance.” Id. (citing Whalen, 429 U.S. at 599). For purposes of ruling on the
defendants’ motion to dismiss, this court also “assume[d] … that such a right to informational privacy exists
and that it is of ‘constitutional significance.’” RHS I, 204 F. Supp. 3d at 1335 (citing Nelson, 562 U.S. at
147). However, because the court has not here determined whether or not there is a “right” to informational
privacy, or that it is of “constitutional significance” as to the material facts of this case, no such assumption
is made with regard to the motions for judgment on the pleadings as to the plaintiffs’ informational privacy
claim. See RHS I, 204 F. Supp. 3d at 1335 (noting the debate among courts regarding the existence and
scope of an informational privacy interest, and that “some [courts] employ a test balancing the individual’s
interests against the government's and, at the other end of the spectrum, one court expresses skepticism
about the constitutionality of the ‘right’ to informational privacy”).
Code § 26-21-4(c) (providing that the minor petitioner’s “identity may be made known to
the judge, any guardian ad litem, the district attorney or any representative of the district
attorney’s office of the county where the minor is a resident or the county where the
abortion is to be performed, any appropriate court personnel, any witness who has a need
to know the minor’s identity, or any other person determined by the court who needs to
know … [and anyone] who is given the identity of the minor shall keep her name
confidential and shall not give it to any other person, unless otherwise ordered by the
court”); § 26-21-4(f) (vesting the bypass court with authority to subpoena witnesses); § 2621-4(i) (mandating that the bypass court notify the DA and that the DA shall participate as
a party to bypass proceedings); § 26-21-4(j) (allowing the bypass court to appoint a GAL
for the fetus and joining the GAL as a party to a bypass proceeding); § 26-21-4(k)
(permitting any party to a bypass proceeding to present witnesses and evidence “if justice
requires”); and § 26-21-4(l) (allowing a minor’s parent, parents, or legal guardian to be
joined as parties to a bypass proceeding under some circumstances). Plaintiffs seek a
declaratory judgment that the aforementioned sections of the Act are unconstitutional
because they violate the minor petitioners’ Fourteenth Amendment informational privacy
interests. However, given the court’s holding that these same provisions of the Act are
unconstitutional under Bellotti II, there is no longer a justiciable case or controversy for
Declaratory Judgment Act purposes regarding the informational privacy claim. In the
alternative, the court declines to exercise jurisdiction over plaintiffs’ petition for a
declaratory judgment as to the informational privacy claim.
Article III of the U.S. Constitution “limits the jurisdiction of federal courts to cases
and controversies.” Christian Coal. of Fla., Inc. v. United States, 662 F.3d 1182, 1189
(11th Cir. 2011) (internal quotation marks omitted). An appropriate action for declaratory
relief can represent an actual case or controversy under Article III. See MedImmune, Inc.
v. Genentech, Inc., 549 U.S. 118, 126 (2007). A federal court “may declare the rights and
other legal relations of any interested party seeking such declaration[.]” 28 U.S.C. §
2201(a). However, 28 U.S.C. § 2201 provides that a declaratory judgment may only be
issued in the case of “actual controversy” – that is, a “substantial continuing controversy
between parties having adverse legal interests.” Emory v. Peeler, 756 F.2d 1547, 1551-52
(11th Cir. 1985); see also 28 U.S.C. § 2201. This “continuing controversy may not be
conjectural, hypothetical, or contingent; it must be real and immediate, and create a
definite, rather than speculative threat of future injury.” Emory, 756 F.2d at 1552; Hartford
Cas. Ins. Co. v. Intrastate Const. Corp., 501 F. App’x. 929, 937 (11th Cir. 2012). “The
rule in federal cases is that an actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed.” Steffel v. Thompson, 415 U.S. 452, 460 n. 10
In declaratory judgment actions, the “actual controversy” requirement is imposed
both by Article III of the Constitution and the express terms of the Declaratory Judgment
Act. Id. at 458. “Basically, the question in each case is whether the facts alleged, under
all the circumstances, show that there is a substantial controversy, between parties having
adverse legal interests, of sufficient immediacy and reality to warrant the issuance of a
declaratory judgment.” MedImmune, Inc., 549 U.S. at 127 (quoting Maryland Casualty Co.
v. Pacific Coal & Oil Co., 312 U.S. 270, 273 (1941)).
The “case or controversy” requirement prevents federal courts from deciding
a case on the merits if such a decision could no longer provide “meaningful
relief” to the parties. Fla. Ass’n of Rehab. Facilities, Inc. v. Fla. Dep’t of
Health & Rehab. Servs., 225 F.3d 1208, 1217 (11th Cir. 2000). Such a case
would be moot, and a federal court determination of a moot case would
constitute an impermissible advisory opinion. Al Najjar v. Ashcroft, 273 F.3d
1330, 1336 (11th Cir. 2001) (per curiam).
Christian Coalition of Alabama v. Cole, 355 F.3d 1288, 1291 (11th Cir. 2004).
The court holds, supra, that the sections of the Act that are challenged by plaintiffs’
informational privacy claim are unconstitutional because they impose an undue burden on
a minor’s right under Bellotti II to a judicial bypass without parental involvement which
also ensures the minor’s anonymity. Under that holding, the portions of the Act that enable
parties other than the minor petitioner to participate in a bypass proceeding and vest the
bypass court with the authority to issue subpoenas are unconstitutional and without effect.
See Ala. Code §§ 26-21-4(c), (f), (i), (j), (k), and (l). In short, the provisions of the Act that
are challenged in Count II are no longer at issue, and there is no case or controversy with
respect to plaintiffs’ informational privacy claim.
Had the court agreed with the plaintiffs and found that the challenged provisions of
the Act violate a minor petitioner’s right to informational privacy, a declaratory judgment
that portions of the Act that are unconstitutional under Bellotti II are also unconstitutional
for violating a minor petitioner’s right to informational privacy would be redundant in
terms of the relief that is available to the plaintiffs. Certainly, the challenged provisions of
the Act might be unconstitutional under multiple theories; however, in the Declaratory
Judgment Act context, once those provisions are found to be unconstitutional for one
reason and are declared to be unenforceable, any analysis of additional constitutional
challenges is superfluous and advisory. Because the court cannot provide “meaningful
relief” to the plaintiffs, the plaintiffs’ informational privacy claim is “moot.” Cole, 355
F.3d at 1290-91.
Accordingly, because there is no case or controversy with respect to plaintiffs’
informational privacy claim, defendants are entitled to judgment on the pleadings as to
Count II of the complaint, and this claim is due to be dismissed without prejudice. See
Cummings v. State Farm Mut. Auto. Ins. Co., 323 F. App’x 847, 848 (11th Cir. 2009)
(“Because the existence of a justiciable controversy is a jurisdictional requirement … the
district court lacked jurisdiction and should have dismissed the action without prejudice.”)
(citing Atlanta Gas Light Co. v. Aetna Cas. and Surety Co., 68 F.3d 409, 414 (11th Cir.
1995); Carter v. Telectron, Inc., 554 F.2d 1369, 1370 (5th Cir. 1977) (a dismissal for lack
of jurisdiction must be without prejudice)).22
In the alternative, even assuming arguendo that the plaintiffs’ informational privacy
claim presents an actual case or controversy, the court nonetheless declines to entertain the
plaintiffs’ petition for declaratory judgment as to this claim. “[D]istrict courts possess
discretion in determining whether and when to entertain an action under the Declaratory
Judgment Act, even when the suit otherwise satisfies subject matter jurisdictional
“[D]ecisions of the United States Court of Appeals for the Fifth Circuit … as that court existed on
September 30, 1981, handed down by that court prior to the close of business on that date, shall be binding
as precedent in the Eleventh Circuit, for this court, the district courts, and the bankruptcy courts in the
circuit.” Bonner v. City of Prichard, Ala., 661 F.2d 1206, 1207 (11th Cir. 1981).
prerequisites.” Wilton v. Seven Falls Co., 515 U.S. 277, 282 (1995) (citing Brillhart v.
Excess Ins. Co., 316 U.S. 491, 494 (1942)).23 “In the declaratory judgment context, the
normal principle that federal courts should adjudicate claims within their jurisdiction yields
to considerations of practicality and wise judicial administration.” Id. at 288.
“Since its inception, the Declaratory Judgment Act has been understood to confer
on federal courts unique and substantial discretion in deciding whether to declare the rights
of litigants,” and the Supreme Court has “repeatedly characterized the Declaratory
Judgment Act as an enabling Act, which confers a discretion on the courts rather than an
absolute right upon the litigant.” Id. at 286-87 (internal quotations omitted). “By the
Declaratory Judgment Act, Congress sought to place a remedial arrow in the district court’s
quiver; it created an opportunity, rather than a duty, to grant a new form of relief to
qualifying litigants.” Id. at 288. The Eleventh Circuit has held “that the decision to hear a
In the Eleventh Circuit, there is a well-established set of guidelines that a court should consider before
declining to adjudicate a Declaratory Judgment Act case when there is a related, concurrent state court
lawsuit; however, those guidelines are inapplicable to the present case.
Under the Wilton–Brillhart Abstention Doctrine, both the Eleventh Circuit and Supreme
Court have cautioned against a district court exercising its jurisdiction over a declaratory
judgment action when “another suit is pending in a state court  presenting the same
issues,  not governed by federal law,  between the same parties.” Ameritas Variable
Life Ins. Co. v. Roach, 411 F.3d 1328, 1330 (11th Cir. 2005) (quoting Brillhart, 316 U.S.
at 495, 62 S.Ct. 1173). If a suit presents these issues … the Eleventh Circuit has enumerated
nine factors for district courts to consider when determining whether to exercise
jurisdiction over such a suit. Id. at 1331.
Gen. Fid. Ins. Co. v. Garrett, 998 F. Supp. 2d 1312, 1315 (M.D. Ala. 2014). Here, the court does not
consider the nine Ameritas factors because there is no parallel state court lawsuit and the factors do not
offer relevant guidance to the decision at hand. “[T]he Supreme Court in Wilton elaborated on the ability
of a federal court to decline jurisdiction, implicitly recognizing that a court may decline jurisdiction over
declaratory actions even in the absence of parallel state-court proceedings.” ITL Int’l, Inc. v. Ninoshka, S.A.,
2011 WL 3205590, at *3 (S.D. Fla. 2011) (citing Wilton, 515 U.S. at 287–88, 88 n. 2). Such is the case
declaratory judgment action is discretionary, that there can be no rigid or mechanical
application of the Declaratory Judgment Act, and that a vast spectrum of considerations is
available to district courts deciding whether to hear declaratory judgment actions.”
Lexington Ins. Co. v. Rolison, 434 F. Supp. 2d 1228, 1234 (S.D. Ala. 2006) (citing Manuel
v. Convergys Corp., 430 F.3d 1132, 1135, 1137-38 (11th Cir. 2005)).
“There must be a sound basis for refusing to adjudicate an actual controversy, for
the policy of the [Declaratory Judgment] Act is to enable resolution of active disputes.”
Capo, Inc. v. Dioptics Med. Prod., Inc., 387 F.3d 1352, 1357 (Fed. Cir. 2004).
“In the exercise of their sound discretion to entertain declaratory actions the
district courts may not decline on the basis of whim or personal
disinclination; but they may take into consideration the speculativeness of
the situation before them and the adequacy of the record for the determination
they are called upon to make, as well as other factors[.]”
Hollis v. Itawamba Cty. Loans, 657 F.2d 746, 750 (5th Cir. Sep. 30, 1981) (citations
omitted). On the other hand, “[a] district court should not grant a declaratory judgment
unless such adjudication would serve a useful purpose.” Blue Hill Investments, Ltd. v.
Silva, 2015 WL 9319394, at *3 (S.D. Fla. 2015) (citing Sierra Equity Grp., Inc. v. White
Oak Equity Partners, LLC, 650 F. Supp. 2d 1213, 1230 (S.D. Fla. 2009) (citing, in turn,
Allstate Ins. Co. v. Employers Liab. Assur. Corp., 445 F.2d 1278, 1280 (5th Cir. 1971)).
Upon consideration of the Wilton factors of “practicality and wise judicial
administration,” 515 U.S. at 288, the court exercises its discretion and declines to entertain
plaintiffs’ Declaratory Judgment Act challenge regarding plaintiffs’ informational privacy
claim. As a practical matter, it is a waste of scarce judicial resources to adjudicate this
constitutional challenge to the Act after the court has ruled that the same challenged
provisions of the Act are unconstitutional for a different reason. The plaintiffs have not
sought relief under Count II that they do not also seek under Count I of the complaint; thus,
there is no danger of denying plaintiffs relief that they could only access through an
informational privacy claim. If, on the other hand, the court ruled in defendants’ favor and
declared that the Act does not violate plaintiffs’ minor patients’ informational privacy
interests, the declaration would have no practical effect on the outcome of this case. The
challenged provisions of the Act are unconstitutional under Bellotti II, and an opinion
finding in favor of defendants on plaintiffs’ informational privacy claim is, in effect,
advisory. Defendants are entitled to judgment on the pleadings, and plaintiffs’
informational privacy claim will be dismissed without prejudice. See Bacardi USA, Inc. v.
Young’s Market Co., 2016 WL 3087060, at *1, **8-9 (S.D. Fla. 2016) (dismissing without
prejudice after finding that the court lacked subject matter jurisdiction over a Declaratory
Judgment Act case because there was no justiciable case or controversy and, alternatively,
if the court had jurisdiction, it declined to entertain the case for its failure to comport with
the purpose of the Declaratory Judgement Act); see also, e.g., Spectera, Inc. v. Wilson,
2011 WL 1002699, at *2 (M.D. Ga. 2011) (declining to adjudicate and dismissing a
declaratory judgment action without prejudice in favor of parallel state court action);
Allstate Indemn. Co. v. Ivey, 653 F. Supp. 2d 1215, 1219 (N.D. Ala. 2009) (declining to
entertain a declaratory judgment action and dismissing without prejudice and instructing
the plaintiff to pursue a remedy in state court); United Purchasing Ass’n, LLC v. Am. Valve,
Inc., 2008 WL 2557559, at *2 (M.D. Fla. 2008) (declining a declaratory judgment case and
dismissing without prejudice because of a lack of personal jurisdiction over a party and
because of the possibility of inconsistent declarations in light of a similar case pending in
a Minnesota state court).
IV. Out-of-State Minors – Counts III and IV
In Counts III and IV of plaintiffs’ complaint, the plaintiffs aver that the Act “limit[s]
judicial bypass to only Alabama residents.” (Doc. 1 at 13-14). However, the parties now
assert, and the court agrees, that the Act – whether intentionally or unintentionally –
exempts out-of-state minors from the parental consent requirement of § 26-21-1 et seq.
such that an out-of-state minor needs neither parental consent nor a court order to undergo
lawfully an abortion procedure in Alabama. (Doc. 63 at 30; Doc. 66 at 26-27). Defendants
correctly argue that the “problem” with Counts III and IV is that plaintiffs misread the Act
as imposing a limitation on out-of-state minors’ access to an abortion in Alabama. (Doc.
63 at 29-30). Because the basis of plaintiffs’ claims regarding out-of-state minors is
fundamentally incorrect, defendants are entitled to judgment on the pleadings on Counts
III and IV.
In Immigration and Naturalization Service v. Chadha, 462 U.S. 919 (1983), the
Supreme Court stated that unconstitutional provisions in a statute shall be severed if it
appears that a legislature would have enacted the constitutional provisions of the statute
independently of the unconstitutional provisions. 462 U.S. at 931-32 (citing Buckley v.
Valeo, 424 U.S. 1, 108 (1976)). “Severability clauses, it is true, do express the enacting
legislature’s preference for a narrow judicial remedy. As a general matter, [courts] attempt
to honor that preference.” Hellerstedt, 136 S.Ct. at 2319. That said, “a severability clause
is an aid merely; not an inexorable command.” Id. (quoting Reno v. American Civil
Liberties Union, 521 U.S. 844, 884-85, n. 49 (1997)).
The Act does not contain a severability clause, but Alabama has a comprehensive
severability statute that applies to all Alabama laws. See Ala. Code § 1-1-16 (“If any
provision of this Code or any amendment hereto, or any other statute, or the application
thereof to any person, thing or circumstances, is held invalid by a court of competent
jurisdiction, such invalidity shall not affect the provisions or application of this Code or
such amendment or statute that can be given effect without the invalid provisions or
application, and to this end, the provisions of this Code and such amendments and statutes
are declared to be severable.”); see also State ex rel. Pryor ex rel. Jeffers v. Martin, 735
So.2d 1156 (Ala. 1999) (“[T]he judiciary’s severability power extends only to those cases
in which the invalid portions of an act are not so intertwined with the remaining portions
that such remaining portions are rendered meaningless by the extirpation.”)(internal
quotation marks and citations omitted). “As the Alabama Supreme Court has explained,
‘We regard § 1-1-16 as an expression of legislative intent regarding the general power and
duty of the judiciary to sever and save statutory provisions not tainted by the
unconstitutionality of other provisions in the same statute.’” Strange II, 172 F. Supp. 3d at
1282 (quoting State ex rel. Pryor v. Martin, 735 So.2d 1156, 1159 (Ala.1999)). The court
is persuaded that the Alabama Legislature has clearly expressed a preference for
severability of unconstitutional portions of a statute from the whole, and the intention that
the remainder shall be effective absent the unconstitutional portions as long as the
extrication will not cause the statute to be meaningless.
As to the Act presently before the court, the Legislature’s clear intent was to create
a constitutional judicial bypass procedure. See Ala. Code § 26-21-1(c) (“The Legislature
further finds that the United States Supreme Court has held under certain circumstances a
minor may seek permission to have an abortion without her parent’s consent by petitioning
a court. The Legislature enacts a judicial by-pass procedure for the purposes of meeting the
Constitutional standard[.]”); Ala. Code § 26-21-1(f) (It is not the Legislature’s intent “to
place an undue burden on the minor’s otherwise legal right to make a decision on whether
to obtain an abortion of her unborn child … .”).
Accordingly, the unconstitutional provisions of the Act will be severed from the
remainder of the judicial bypass law.
For the reasons discussed in this decision, the following provisions of the Act are
unconstitutional in their entirety: Alabama Code § 26-21-4(i) (the participation of the DA
as a party), § 26-21-4(j) (the participation of a GAL for the unborn child as a party), and §
26-21-4(l) (the participation of a parent, parents, or legal guardian of the minor petitioner
as a party).
Other provisions of the Act are not wholly unconstitutional. The references to the
DA, GAL, and other parties will be severed from Alabama Code §§ 26-21-4(c), (e), (f),
(k), and (n). The Act’s provisions permitting disclosure of a minor petitioner’s identity to
“any witness who has a need to know the minor’s identity or any other person determined
by the court who needs to know” are too broad to ensure a petitioner’s anonymity and,
consequently, are unconstitutional; thus, that language will be severed from § 26-21-4(c).
The provisions of Alabama Code § 26-21-4(f) that permit the bypass court, if it determines
that “additional evidence or testimony is necessary,” to delay the bypass proceeding sua
sponte to issue “subpoenas … to bring before the court admissible evidence or testimony
either in support of or against the petition,” does not reasonably safeguard the petitioner’s
anonymity; it opens the door to the unrestricted notification of the minor’s relatives,
teachers, friends, acquaintances, and other potential witnesses concerning her bypass
proceeding. After severance of the unconstitutional language, Alabama Code § 26-21-4(f)
Except as otherwise required by the section, this court shall adhere to the
Rules of Juvenile Procedure, the Rules of Civil Procedure and Rules of
Evidence required of Alabama courts. The court shall assure that it is
presented sufficient probative evidence upon which to make its findings,
either granting or denying the minor’s petition.
Those portions of the Act that are not expressly severed herein will remain
VI. Injunctive vs. Declaratory Relief
In their complaint and motion for entry of a preliminary injunction, plaintiffs ask
this court not only to issue a declaratory judgment but also to grant preliminary and
permanent injunctive relief with respect to the unconstitutional provisions of the Act.
Recently, another judge of this court addressed whether injunctive relief is ordinarily
necessary after a court declares a statute or provision unconstitutional. See Strange II, 172
F. Supp. 3d at 1292. The court is persuaded by that decision and finds that the plaintiffs’
claims for injunctive relief are moot because of the operation of the declaratory judgment
issued on this date, which renders the unconstitutional provisions of the Act unenforceable.
“Generally, the effect of enjoining the enforcement of a statute and declaring it
unconstitutional are ‘virtually identical.’… ‘[A] district court can generally protect the
interests of a federal plaintiff by entering a declaratory judgment, and therefore the stronger
injunctive medicine will be unnecessary.’” Id. (quoting Wooley v. Maynard, 430 U.S. 705,
711 (1977)) (brackets in original). This is such a case. The court assumes, barring evidence
to the contrary, that the defendants and the State of Alabama will act in accordance with
the law and will not seek to enforce those portions of the Act that the court has declared
unconstitutional. Should the court’s assumption on that point be proven incorrect following
the entry of this decision, the parties are granted leave to present such matters and evidence
to the court at a later date, and the court expressly retains jurisdiction over the enforcement
of this declaratory judgment.
For the reasons discussed above, the court finds that certain sections of the 2014
amendments (“the Act”) to Alabama’s judicial bypass law – a law which has otherwise
remained substantively unchanged since its enactment in 1987 – violate a pregnant minor’s
long-established constitutional right to seek a judicial bypass to a state’s parental consent
law without the participation of her parent, parents, or legal guardian as parties to the
bypass proceeding, and her right to an anonymous judicial bypass hearing. In reaching this
conclusion, the court applies 38 years of Supreme Court authority on the subject, as all
lower federal courts are bound to do. The court takes the Alabama Legislature at its word
that it intended to enact a constitutional judicial bypass scheme. See Ala. Code § 26-1-1(c).
However, the judicial bypass option, is rendered meaningless if, as in Alabama’s bypass
statute – which has no counterpart in any other state bypass law – parents or legal guardians
can participate as parties under some circumstances, and if there are insufficient safeguards
to protect the anonymity of the minor petitioner. These are cornerstone requirements for a
judicial bypass law to pass constitutional scrutiny. Because portions of the Act unduly
burden a pregnant minor’s right to a constitutionally compliant judicial bypass option –
which is required as a matter of law for states, such as Alabama, that restrict a pregnant
minor’s access to an abortion without the prior consent of her parent(s) or legal guardian –
those provisions are unconstitutional.24
VIII. Order and Declaratory Judgment
Accordingly, it is
ORDERED as follows:
1. Plaintiffs’ motion for judgment on the pleadings (Doc. 60) is GRANTED in the
manner stated herein as to Count I of the complaint (Doc. 1) and DENIED as to
Counts II, III, and IV. Judgment is due to be entered in favor of the plaintiffs as
to Count I of the complaint.
2. Defendants’ motion for judgment on the pleadings (Doc. 63) is DENIED in the
manner stated herein as to Count I of the plaintiffs’ complaint (Doc. 1) and
As noted above, the court does not reach any legal claim that is not expressly analyzed herein, including
the parties’ arguments regarding the expeditiousness of the bypass proceeding and its adversarial nature.
GRANTED as to Count II, III and IV. Counts II, III & IV of the plaintiffs’
complaint are due to be DISMISSED WITHOUT PREJUDICE.
3. Plaintiffs’ motion for a preliminary injunction (Doc. 2) is DENIED as moot.
4. Plaintiffs’ prayer for permanent injunctive relief is due to be DISMISSED WITH
PREJUDICE as moot.
5. Defendants’ motion to defer ruling (Doc. 73) is DENIED as moot.
Furthermore, consistent with this memorandum opinion, it is
ORDERED, ADJUDGED, and DECREED that the court DECLARES the
1. Plaintiffs’ challenge to Alabama Code § 26-21-4(a) is moot because the parties
and the court agree that the plain language of the Act exempts out-of-state
minors from the parental consent requirement of Alabama Code § 26-21-1 et
2. The following portion of Alabama Code § 26-21-4(c) is constitutional:
“The court shall insure that the minor is given assistance in
preparing and filing the petition. Such assistance may be provided
by court personnel including intake personnel of juvenile probation
services. The minor’s identity shall be kept confidential, but her
identity may be made known to the judge … [and] any appropriate
court personnel25 …. Any person who is given the identity of the
minor shall keep her name confidential and shall not give it to any
See Akron II, 497 U.S. at 513.
The language of Alabama Code § 26-21-4(c) that is not expressly set out above
is unconstitutional and unenforceable, and it is severed from the statute.
3. The following provisions of the Act unconstitutionally and impermissibly
impose an undue burden on a minor in Alabama who seeks an abortion through
a judicial bypass, and they are adjudged to be unenforceable in their entirety:
Alabama Code §§ 26-21-4(i), (j),26 and (l).
4. Alabama Code § 26-21-4(f) is unconstitutional to the extent that the bypass court
is vested with the authority to “issue instanter subpoenas or otherwise permit any
party or participant in the hearing to bring before the court admissible evidence
or testimony either in support of or against the petition.” Consistent with and in
the manner discussed herein, see p. 48-49, infra, that portion of the statute is
severed from the remainder; however, the severance in no way restricts the
minor petitioner from access to any lawful and available means of meeting her
burden of proof on a bypass petition. See Alabama Code § 26-21-4(h).
5. Alabama Code § 26-21-4(k) is unconstitutional to the extent that it permits any
party to a bypass proceeding other than the minor petitioner “to obtain evidence,
subpoena witnesses, or to obtain and present any evidence or information which
The court makes no finding regarding the constitutionality of Alabama Rule of Civil Procedure 17(c),
which provides that, “[w]hen the interest of an infant unborn or unconceived is before the court, the court
may appoint a guardian ad litem for such interest.” The plaintiffs do not challenge the constitutionality of
Rule 17(c). Notably, Alabama Code § 26-21-4(j) significantly expands the rights of such a guardian ad
litem beyond the plain language of Rule 17(c) – i.e., under Rule 17(c), the guardian ad litem is not expressly
permitted to subpoena witnesses, examine the minor petitioner, or appeal any decision by the judicial bypass
will be necessary and appropriate for the court to make an informed decision.”
That portion is severed from the remainder of the statute.
6. Because the court holds herein that the Act unconstitutionally adds parties other
than the minor petitioner – i.e., the District Attorney, a guardian ad litem for the
fetus, and the parent, parents, or legal guardian of the minor petitioner – without
adequate safeguards to ensure the minor petitioner’s anonymity, the provisions
of the Act that allow for any actions to be taken by those additional parties are a
nullity. Therefore, Alabama Code §§ 26-21-4(e) & (n) are unconstitutional and
unenforceable insofar as those sections permit parties other than the minor
petitioner to take actions related to the judicial bypass proceeding, and they are
severed from the remainder of the statutes.
A final judgment consistent with this memorandum opinion will be entered
DONE, on this the 28th day of July, 2017.
/s/ Susan Russ Walker
Susan Russ Walker
United States Magistrate Judge
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