The right's new abortion scam: Fetuses get lawyers while women and girls are left stranded

A new law in Alabama can put minors on trial for seeking an abortion -- and provides fetuses with legal counsel

Published October 2, 2014 3:38PM (EDT)

  (Reuters/Stephen Lam)
(Reuters/Stephen Lam)

Alabama is on of 21 states that requires minors to get parental consent before having an abortion. According to the law, "immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences [of abortion]," and requiring parental consent protects "minors against their own immaturity." These laws can place a profound barrier between young people and access to care, particularly in cases where a teen comes from an abusive household, but were upheld by the Supreme Court as long as there is a legal process in place that allows a teen to circumvent her parents and get consent directly from the court. That already challenging process -- called judicial bypass -- just got much more difficult in Alabama.

The new regulations, which went into effect in July, allow courts to appoint the embryo or fetus legal counsel and requires the district attorney to appear before the court to represent the interests of the state. As Jill Filipovic pointed out at Cosmopolitan, those interests, as explicitly defined in the law, are "to protect unborn life." The district attorney can also call witnesses against the minor and delay the hearing. And in a move that all but undoes the purpose of the judicial bypass, the court allows parents -- if they find out about the proceedings -- to participate. If, after all of this, the court actually grants the bypass, the new law allows the district attorney or the minor's parents to appeal. As the judicial process drags out, the window during which a person can legally obtain an abortion in Alabama slowly closes.

This week, the American Civil Liberties Union filed a challenge to the law. “Forcing a teen to go on trial to get an abortion doesn’t make her any safer, and doesn’t bring families together," Jennifer Dalven, director of the ACLU’s Reproductive Freedom Project, said in a statement on the case. "It just puts her at risk and could lead her to seek an illegal, unsafe abortion. None of us want that.”

In Alabama, it seems a fetus has more legal standing than a 16-year-old trying to control her own body. It's not as unusual as you'd think.

Alabama isn't the only state with a law that prioritizes so-called fetal rights over the constitutional rights of women and girls. On the same day that the ACLU filed its legal challenge, the Eastern District of Wisconsin federal court dismissed a petition filed by a woman challenging her detention under a state law that allows authorities to arrest and detain pregnant women suspected of substance use. Alicia Beltran didn't have legal counsel to defend against the charges -- but her fetus did.

Beltran was 14 weeks pregnant when she told her doctor that she had been addicted to pills the previous year, but was currently in recovery. Despite a urine test confirming what Beltran had said, her doctor and a social worker insisted that she start an anti-addiction drug. Beltran refused. Soon after, county sheriffs came to her home, handcuffed her and brought her to court. Her doctor had invoked the law and accused her of endangering her fetus. She was ordered to attend mandatory in-patient drug treatment or face a possible jail sentence.

After being detained for more than 70 days, Beltran was eventually allowed to leave the in-patient facility (away from her family and nearly two hours away from her doctor) and the charge that she "habitually lacked self-control in the use of alcohol or controlled substances" was dropped. While the court acknowledged that "if Beltran's allegations are true, what happened to her is extremely disturbing," it dismissed the case on the grounds that Beltran was eventually released from detention and the charges against her were dropped.

"We are disappointed that the Court refused to address the constitutionality of the law, and instead avoided reaching a decision about a statute that permits the State to rip pregnant women from their homes, endangering them and their future children." Lynn Paltrow, executive director of National Advocates for Pregnant Women and a member of Ms. Beltran's legal team, said in a statement. "The law does not even give pregnant women the right to counsel at the initial stages of the proceedings against them and most of the women who are detained while pregnant will have difficulty finding lawyers able to bring constitutional claims."


By Katie McDonough

Katie McDonough is Salon's politics writer, focusing on gender, sexuality and reproductive justice. Follow her on Twitter @kmcdonovgh or email her at

MORE FROM Katie McDonough

Related Topics ------------------------------------------

Abortion Abortion Rights Alabama Fetal Rights Personhood Reproductive Justice Reproductive Rights Wisconsin