## Facts

- Alabama law required an unemancipated minor to obtain parental or guardian consent before obtaining an abortion, but it provided a judicial-bypass procedure for minors who could not or would not seek consent.
- Before 2014, the bypass hearing functioned as a confidential, largely ex parte proceeding in which the participants were essentially the judge, the minor, and the minor’s attorney.
- In 2014, Alabama amended its bypass statute to permit additional parties and to make the process more adversarial.
- The amendments allowed the district attorney to participate to represent the state’s interests and permitted appointment of a guardian ad litem to represent the interests of the unborn child.
- The amendments also allowed the minor’s parents or guardians to participate as parties in the bypass proceeding.
- The amendments gave these participants authority to seek discovery-like information and to compel testimony, including compelling the minor to testify and calling third-party witnesses.
- The amended statute included confidentiality language, but it authorized disclosure of the minor’s identity and pregnancy to a broader set of people, including the district attorney, the fetal guardian ad litem, court personnel, witnesses, and others the court authorized.
- The amendments permitted certain participants to appeal an order granting the bypass, creating the possibility of delays in a time-sensitive setting.
- Reproductive Health Services (a licensed abortion facility) and related plaintiffs sued Alabama Attorney General Steven Marshall and other officials in federal court, alleging the 2014 amendments violated the Fourteenth Amendment’s Due Process Clause by imposing an undue burden and by failing to provide a constitutionally adequate bypass.

## Issues

1. Whether Alabama’s 2014 amendments to the judicial-bypass process for minors seeking abortions imposed an undue burden in violation of the Fourteenth Amendment.
2. Whether the amended bypass process failed constitutional requirements that a bypass be anonymous/confidential in operation.
3. Whether the amended process failed constitutional requirements that a bypass be sufficiently prompt to give a realistic opportunity to obtain abortion care.
4. If specific provisions were unconstitutional, whether they could be severed while leaving Alabama’s parental-consent law and the remainder of the bypass procedure in place.

## Decision

- The court held that key portions of Alabama’s 2014 judicial-bypass amendments were unconstitutional under the Fourteenth Amendment.
- The court concluded that permitting participation by the district attorney, the minor’s parents or guardians as parties, and a guardian ad litem for the unborn child transformed the bypass hearing into an adversarial proceeding inconsistent with what Supreme Court precedent requires for a minor’s bypass.
- The court found the amendments undermined anonymity and confidentiality by expanding the set of people who could lawfully learn the minor’s identity and pregnancy and by authorizing compelled testimony from third parties.
- The court determined that allowing adversarial participants to appeal a granted bypass risked delay inconsistent with the requirement that bypass proceedings be prompt.
- The court entered declaratory and injunctive relief barring enforcement of the unconstitutional provisions and severed them from the statute, leaving the rest of the parental-consent and judicial-bypass framework operative.

## Legal Principles

- A state may require parental involvement in a minor’s abortion decision only if it provides an alternative procedure that allows the minor to obtain authorization from a court upon a finding either that she is mature and well informed enough to decide or that the abortion is in her best interests.
- A constitutionally sufficient bypass must operate to protect the minor’s anonymity and must be structured to avoid unnecessary disclosure of her identity or pregnancy.
- A constitutionally sufficient bypass must be prompt; procedures that create a material risk of delay can effectively deny access because pregnancy is time-limited.
- Under the undue-burden standard applied to abortion regulations, a state may not impose a substantial obstacle in the path of a person seeking a pre-viability abortion; for minors, the bypass is the safety valve that must remain workable.
- When invalid provisions are separable under state severability doctrine, a court may enjoin and sever the offending provisions while leaving the remainder of the statutory scheme in effect.

## Conclusion

Reproductive Health Services v. Marshall held that Alabama’s 2014 amendments to its judicial-bypass procedure—especially provisions bringing prosecutors, parents, and a fetal guardian into the hearing with power to compel testimony and appeal—violated the constitutional requirements of anonymity and prompt access and imposed an undue burden; the court enjoined and severed those provisions while preserving the core parental-consent and bypass framework.


Reproductive Health Services v. Marshall, 268 F.Supp. 3d 1261 (2017)