New Texas law would require fetuses to have a lawyer

Access to abortion in Texas could become even harder for some.

Texas's 2021 legislative session isn't a month old yet, but conservatives have already introduced several anti-abortion bills. One would require fetuses to be appointed a lawyer during judicial bypass proceedings.

The state already has a parental notification law, which requires that doctors notify the parent or guardian of a minor at least 48 hours prior to the procedure and that the parent or guardian consent to the procedure. However, over 40 years ago, the U.S. Supreme Court held that if a state requires a minor to obtain consent for an abortion, it also has to provide an alternative mechanism by which a minor can obtain authorization for the procedure.

Because of that, Texas has a judicial bypass law, where a minor can go before the court and get an order from a judge allowing them to get an abortion. The state requires minors to appear with an attorney and will assign minors an attorney if they don't have one.

Assigning an attorney, though, doesn't ensure good representation. One study found that many teens had no ongoing relationship with their attorney and that attorneys were not always able to adequately prepare clients. Additionally, attorneys in Texas have reported that representing teens in the bypass process can create stigma and negatively affect future career prospects, given Texas's anti-abortion climate.

If Scott Sanford, a GOP state representative, has his way, a teen and their attorney won't just need to convince a judge they should be allowed to have an abortion. They'll have to go up against an attorney who is representing the fetus. Sanford introduced the same bill in 2019, but it died in the Texas House. Anti-abortion group Texas Right to Life praised Sanford for introducing it.

The law would require Texas Attorney General Ken Paxton to maintain a list of attorneys who would represent the fetus. Paxton is a notorious abortion foe. Moreover, the list is voluntary, to be comprised of who notify Paxton they want to be a fetus attorney. That could very well mean the list could tilt toward being a group of attorneys who are staunchly anti-choice.

Worse, it puts a minor in the middle of what could end up being a full-fledged court battle over whether they should get a judicial bypass. Jane's Due Process, a group that provides attorneys for teens who need to obtain a bypass, explained why the proposed law would be problematic when it was last introduced in 2019.

The purpose of a judicial bypass hearing in Texas is to determine whether a minor is mature and well-informed enough to decide to have an abortion without parental involvement or if getting consent would harm the minor. As Jane's Due Process pointed out, the court isn't allowed to consider the interest of any third party in making that decision—particularly not that of a fetus.

The lawyer for the fetus could theoretically argue that the rights of the fetus outweigh that of the minor, but that isn't part of what a court is allowed to consider in a bypass hearing. In the alternative, notes Jane's Due Process, the fetus's lawyer could "dispute the minor's testimony about her decision-making capacity or best interests," but that's also outside the scope of what the court is required to examine and "fundamentally alter[s]" the entire proceeding.

Arguing that a fetus needs a lawyer is part of a larger untruth told by anti-abortion activists — that of "personhood," or the notion that a fetus is a person. Indeed, Sanford, the bill's sponsor, said it was necessary to ensure "all parties would be represented." Fetuses are not people, however, and should not be parties to a lawsuit.

Requiring fetuses to have lawyers would also have the effect of making the judicial bypass process even thornier for a minor to navigate. Teenagers report having to attend court multiple times after a hearing was rescheduled, finding the process nerve-wracking, and experienced the process as a punishment for seeking an abortion. Further, when Texas previously amended the law to make it more difficult, judicial denials increased.

It is unclear whether the bill will make it through the Texas legislature during this session. Texas Republicans scored a resounding victory over state Democrats and tightened their hold on the state Legislature in 2020, which might make the bill's passage more likely.

If the state does pass it, any federal lawsuit seeking to overturn it would eventually run headlong into the U.S. Fifth Circuit Court of Appeals, the country's most conservative circuit court, and the U.S. Supreme Court, now a solidly anti-choice court. With that, access to abortion for minors in Texas could become much, much harder.

Published with permission of The American Independent Foundation.