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Judge appoints attorney to represent unborn child in precedent-setting case

MONTGOMERY, Ala. -- A Montgomery judge, in a case that could have national repercussions, appointed an attorney to protect the interests of the unborn child of a teen-ager seeking an abortion.

Advocates on both sides of the abortion issue said the action by Circuit Judge Mark Anderson was a first in Alabama and among the first in the nation.

"It's a brave first step forward," said Tom Blackerby, state director for the American Family Association.

In 1987, the Alabama Legislature enacted a law that requires a girl under 18 to get a parent's consent before having an abortion. The Legislature allowed one exception: A judge can allow a girl to get an abortion without a parent's consent if she is mature enough to make the decision on her own or if she is a victim of parental abuse.

Since then, judges have appointed attorneys to represent the girl's interests. But until Anderson acted July 8, a judge had not appointed an attorney to serve as a guardian of the unborn child's interests.

Under state law, court records containing details such as the age, hometown, and length of pregnancy of the girl are sealed, and the judge and attorneys are prohibited from talking about the girl. Anderson, a Republican who was appointed to the bench last year by Gov. Fob James, declined to comment on the case.

Anderson picked Montgomery attorney Julian McPhillips, who is a board member of Alabama Lawyers for Life, as the guardian of the unborn child's interests. Despite Anderson's appointment of McPhillips, the judge ruled the girl was mature enough to decide if she wants an abortion.

McPhillips, while declining to talk about the specifics of the case, said Alabama's judicial rules allow a judge to appoint a guardian for an unborn child in property and inheritance matters. "If a judge can appoint an attorney to represent the property interests of an unborn child, why can't he appoint an attorney to represent the life interests of an unborn child?" McPhillips said. "I think it's a groundbreaking case."

Beverly Howard, the girl's lawyer, agreed the case is unique in Alabama, but declined further comment.

Montgomery attorney Nikki Rothschild, who is not involved in the case, said the judge spoke at a recent seminar for guardians, where he said no Alabama judge had ever appointed a guardian to represent the unborn child's best interests. Rothschild said the judge gave no indication he was about to involve himself in "a first-of-its-kind case."

Rothschild described Anderson as "a very religious man" who "obviously believes [an unborn child] is an unborn human being."

Eric Johnston, a Birmingham attorney who helped write Alabama's parental consent legislation and nearly every other abortion regulatory bill considered by the Legislature in the last decade, said the current case may not set a legal standard if the girl proceeds with the abortion and does not contest McPhillip's appointment.

"But sooner or later, it's going to be an issue if it keeps coming up," he said.

He said a test case, if pursued all the way to the U.S. Supreme Court, could cause the justices to review the issues in their 1973 ruling allowing abortion.

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