Mature Enough to Have a Baby, But Not an Abortion: The Rhetorical Production of Stigma in Alabama Judicial Bypass Opinions

Abstract

Thirty-seven states require minors to obtain parental notification or consent in order to access abortion care. Such parental involvement statutes reflect notions of the importance of parents in guiding their children. However, not all families are perfect. Recognizing this, the Supreme Court in Bellotti v. Baird established that parental involvement statutes would only be constitutional if they included a compromise: a judicial bypass procedure. According to the Court, a minor must be able to petition a court to waive parental notification or consent. If the court finds her to be “mature” and “well-informed” enough to make the decision alone, or if the abortion would be in her best interests, it should grant the petition. However, nowhere in the Supreme Court or state statues has “maturity” ever been defined for this purpose. This begs the question: how are judges deciding these cases? Existing research has been conclusive only in its lack of answers; there appears to be little rhyme or reason to how judges make these decisions. Simultaneously, another realm of research has analyzed the role of stigma in the Supreme Court’s abortion jurisprudence. Indeed, the minors in judicial bypass cases embody two highly stigmatized behaviors: abortion and adolescent pregnancy. However, whether stigma pervades lower courts is yet unexplored. In this thesis, I conduct a rhetorical analysis of appellate Alabama judicial bypass opinions in order to approach the question of judges’ decision making from a new angle. Alabama is selected as the particular state of analysis because evidence suggests that a large proportion of judicial bypass petitions are overturned at the trial level (in contrast to most other states), and more than a third of all appellate level judicial bypass cases have been located in Alabama. I utilize a mode of rhetorical analysis adapted from Celeste Michelle Condit and Paula Abrams, which analyzes vocabulary and the narratives that it constructs in order to understand the normative ideas and stereotypes which undergird them. I identify several narratives which pervade Alabama judicial bypass opinions: minor as sexually (ir)responsible, minor as questionable in moral judgment, minor as good/bad mother, minor as selfless/selfish, parents know best (minor as subordinate), and the legitimacy of stigma. These narratives reveal negative stereotypes of both abortion-seeking women and pregnant adolescents. Such stereotypes as women as inevitable mothers, mothers as selfless, and pregnant adolescents as sexually irresponsible, for example, constitute stereotypes of deviance from gender and sexual norms. Moreover, these stereotypes and normative expectations are the very same that comprise and create stigma. Thus, my analysis suggests that stigma plays a large role in the decision of judicial bypass cases. The Alabama judicial bypass opinions also reify and reproduce stigma. This is significant insofar as these opinions become codified and influence future decisions. Additionally, courts generally play an important role in setting the bounds of public discourse around an issue. This thesis concludes with an in-depth discussion of the above-mentioned narratives. I additionally note that these rhetorical constructions produce a series of “double-binds,” in which the minor categorically fails. Finally, I note the implications of this paper for minors seeking judicial bypass in Alabama, pro- choice advocates, and the possible unconstitutionality of parental involvement statutes.