Commentary on Alabama Law and Society

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Location: Birmingham, Alabama

Tuesday, May 30, 2006

The Clones And Abortion

In Alabama,

no person shall perform an abortion upon an unemancipated minor unless he or his agent first obtains the written consent of either parent or the legal guardian of the minor. (Ala.Code 26-21-3(a)).

There are two exceptions. First, if the pregnancy is the result of incest, "written notice to the minor's mother by certified mail shall be sufficient." (Ala.Code 26-21-3(b). Second:

A minor who elects not to seek or does not or cannot for any reason, including unavailability or refusal by either or both parents or legal guardian, obtain consent from either of her parents or legal guardian under this section, may petition, on her own behalf, the juvenile court, or court of equal standing, in the county in which the minor resides or in the county in which the abortion is to be performed for a waiver of the consent requirement. (Ala.Code26-21-3(e)).

Section 26-21-4 provides the standard the court is to use in deciding whether to waive the parental consent requirement:

The required consent shall be waived if the court finds either:

(1) That the minor is mature and well-informed enough to make the abortion decision on her own; or

(2) That performance of the abortion would be in the best interest of the minor.

I mention this for two reasons. First, you sometimes hear folks say that we have "abortion on demand" in this country. I think these statutes refute that claim, for minors at least. The result of the statute is that women under eighteen do NOT have a right to an abortion. They have a right to ask their parents or a court to let them have an abortion. Minors only get the abortion if a parent or a court allows it. That may be a good thing, it may be a bad thing, but it is not "abortion on demand."

Second, Supreme Court hopeful Ben Hand is ignoring the law and the facts when he attacks Justice Lyons for "showing insufficient sensitivity to the lives of unborn children." Hand is mad that on two occasions Justice Lyons voted to allow an abortion without parental consent. Here is Hand's position:

"To me, a life is a life, and [Lyons has] messed it up several times," he said. "I would say there should be a blanket denial to any of them. ... I believe the same Constitution that protects your right to life protects the life of an unborn child."

He may want to deny every waiver case, but the law does not allow him to do so. The law requires a case by case consideration. If the particular minor is mature and well informed or the abortion is in the best interests of the child, then the court has to allow the abortion. Hand may not like it, but that is the law.

Obviously, the waiver standard is amorphous. There will be some cases where everyone agrees the child has not met the standard; there will be some cases where everyone agrees the child has met the standard. But most of the cases could go either way. The deciding factor in those cases will be the judge's beliefs about abortion. This is where Hand ignores the facts. According to the same story, in seventy five percent of the cases Lyons has heard, Lyons has concluded that the waiver was not appropriate. Whenever he can, Lyons is ruling against the abortion. In other words, Lyons is expressing his pro-life position within the bounds of the law.

That, in sum, is the difference between Clones like Hand and Justices like Lyons. Everyone agrees that personal beliefs play a role in judicial decision making. It is unavoidable. The difference is the size of the role. The Clones beliefs are the stars of their decisions. Real judges make beliefs a small part of the supporting cast.