MONTGOMERY, Ala. (CN) – Oral arguments before the 11th Circuit usually last 15 minutes per side. But in a small courtroom in Montgomery, Alabama, a trio of judges grilled a lawyer for the state of Alabama for over an hour about the roles of the district attorney, judge and parents in the event a minor seeks approval from a judge instead of her parents for an abortion.
Among their questions, the judges inquired about the ability for a district attorney to remain neutral, if involving a large number of people in a bypass proceeding would undermine a girl’s right to privacy, and if appointing a guardian to represent the fetus would create an undue burden because of the adversarial position.
In 2014, an Alabama law went into effect that added more roles to a judicial proceeding for a girl seeking to get an abortion without the consent of her parents. In the words of the law’s skeptics, it turned a bypass procedure – usually a quick, private affair in the chambers of a judge – into a de facto trial.
A federal judge struck down the law in July 2017, and in September the Alabama Court of Civil Appeals reversed the judge’s decision to block a minor’s abortion, stating that the judge applied the law incorrectly.
U.S. Circuit Judges Charles R. Wilson, Adalberto Jordan and Patrick Higginbotham, the latter of whom usually presides at the Fifth Circuit, made up the 11th Circuit panel.
Wilson was skeptical of the state’s case, telling the attorney for the Montgomery abortion clinic at one point, “I may agree with you that the statute goes a little too far.”
Eric Palmer, assistant solicitor at the Alabama Attorney General’s Office, argued that the state law merely codified procedure that was already in place in the state – only with a few modifications —and that Reproductive Health Services, an abortion clinic that sits less than a mile from the courthouse, did not have standing to sue.
In early August, the Alabama attorney general appealed the decision of a Montgomery federal judge who found Alabama’s statute unconstitutional and unenforceable.
The appellate panel was seemingly concerned about Alabama’s procedure and how introducing different parties to the procedure made it more antagonistic. At one point, Judge Jordan said that parents, if they learn about the proceedings, are given party status. They have the freedom to subpoena, present arguments and most notably in a state that bans abortions after 20 weeks – the ability to appeal.
Alabama’s law also appoints a guardian ad litem for the fetus, to advocate on its behalf. But many of the judges’ questions revolved around the role of the district attorney and the judges themselves.
When asked the district attorney’s role in the judicial bypass process, Palmer told the judges it “is to operate as a neutral protector of the process,” to supply information and “make sure a judge’s decision is not inaccurate.” That role would come with the power to subpoena witnesses, such as parents, teachers and classmates.
Palmer said the ability to drag out the proceedings and to subpoena a large number of people is limited by time. When Wilson asked if a DA could subpoena a girls’ whole homeroom, Palmer said the DA “could attempt to do so and almost certainly fail.”
Palmer added that the timeframe of a judicial bypass is a maximum of 72 hours. He described a situation where a DA gets involved and witnesses are called as a “horror story.”
At the end of Palmer’s rebuttal, Wilson pointed out that a district attorney is a prosecutor, one that is elected every four years in Alabama. Perhaps the role of a district attorney in a judicial bypass procedure is a novelty, Palmer answered, but that role is defined by statute.
Meanwhile, Andrew Beck, an attorney with the American Civil Liberties Union’s Reproductive Freedom Project, told the judges in an oral argument that ran over time by about 16 minutes that the abortion clinic was suing on behalf of itself and its clients.
Beck opened his argument to the judges by saying Alabama’s law is the only one like it in the country. A district attorney’s role in Alabama’s judicial bypass, Beck said, is to advocate for the state, and it can appeal the judge’s decision.
“That’s not assisting the court, that’s frustrating the court’s determination,” Beck said.
But probably the most substantial question Judge Wilson asked the Alabama solicitor was about the role of judges.
“Can we trust the judges in Alabama without making it a judicial proceeding?” Wilson asked Palmer.
It is unknown when the court will make a decision about the case.