Appendix — Bellotti v. Baird
Supreme Court brief1979
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APPENDIX | L!¢.2 eae. cura
In the
Supreme Court of the United States
OctToBER TERM, 1978
Nos. 78-329, 78-330
FRANCIS X. BELLOTTI, Atrorney GENERAL OF THE
COMMONWEALTH OF MASSACHUSETTS, ET AL.,
APPELLANTS IN No. 78-329,
AND
JANE HUNERWADEL,
APPELLANT IN No. 78-330
v.
WILLIAM BAIRD Er AL.,
APPELLEES IN Nos. 78-329, 78-330
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
Volume II
Transcripts and Depositions
Appeals Docketed August 25, 1978
Jurisdiction Noted October 30, 1978
es ne ee
Table of Contents.
Transcript of December 7, 1974
Testimony of Somers H. Sturgis for plaintiffs
Direct examination for plaintiffs
Testimony of Jane E. Hodgson for plaintiffs
Direct examination for plaintiffs
Testimony of Carol Nadelson for plaintiffs
Direct examination for plaintiffs
Transcript of December 30, 1974
Testimony of Somers H. Sturgis (resumed)
Cross-examination for defendants
Cross-examination for intervenors
Redirect examination for plaintiffs
Recross-examination for defendants
Redirect examination for plaintiffs
Testimony of Jane E. Hodgson (recalled)
Cross-examination for defendants
Cross-examination for intervenors
Redirect examination for plaintiffs
Recross-examination for defendants
Recross-examination for intervenors
Testimony of Carol Nadelson (recalled)
Cross-examination for defendants
Cross-examination for intervenors
Redirect examination for plaintiffs
Recross-examination for defendants
Recross-examination for intervenors
Testimony of Gerald Zupnick for plaintiffs
Direct examination for plaintiffs
110
112
115
117
119
119
148
150
154
155
156
156
ii TABLE OF CONTENTS.
Transcript of December 31, 1974
Testimony of Gerald Zupnick (resumed)
Direct examination for plaintiffs
Cross-examination for defendants
Cross-exan, nation for intervenors
Redirect examination for plaintiffs
Recross-examination for defendants
Transcript of January 28, 1975
Testimony of Jules Rivkind for defendants
Direct examination for defendants
Cross-examination for plaintiffs
Testimony of Raymond C. Yerkes for defendants
Direct examination for defendants
Cross-examination for plaintiffs
Redirect examination for defendants
Testimony of Jane Hunerwadel for intervenors
Direct examination for intervenors
Cruss-examination for plaintiffs
Transcript of October 18, 1977
Colloquy
Testimony of Carol Nadelson for plaintiffs
Direct examination for plaintiffs
Cross-examination for defendants
Cross-examination for intervenors
Redirect examination for plaintiffs
Testimony of Sprague W. Hazard for defendants
Direct examination for defendants
Cross-examination for plaintiffs
Redirect examination for defendants
Recross-examination for plaintiffs
Redirect examination for defendants
Recross-examination for intervenors
167
167
175
198
209
212
215
215
227
240
240
253
265
269
269
273
TABLE OF CONTENTS.
Colloquy
Testimony of Ernest Krug for defendants
Direct examination for defendants
Colloquy
Deposition of Carol C. Nadelson
Direct examination for defendants
Cross-examination for intervenors
ill
436
438
438
463
489
490
627
United States District Court
District of Massachusetts.
WILLIAM BAIRD; MARY MOE I;
GERALD ZUPNICK, M.D.; PARENTS
AID SOCIETY, INC.; and all
others similarly situated,
PLAINTIFFS,
vb.
FRANCIS X. BELLOTTI, Attorney General
of the Commonwealth of Massachusetts;
GARRETT BYRNE, District Attorney of the
County of Suffolk; their agents, successors,
those acting in concert with them, and all
others similarly situated,
DEFENDANTS,
JANE HUNERWADEL, individually and
on behalf of all others similarly situated
and, further, as next friend of her minor
daughters who are of childbearing age and
are or may become pregnant, and all others
similarly situated,
DEFENDANT-INTERVENOR.
Civit ACTION
No. 74-4992-F
2
Transcript of Testimony.
DecEMBER 7, 1974.
[13] MR. LUCAS: We are prepared to call our first expert
witness.
JUDGE ALDRICH: Go ahead.
MR. LUCAS: Dr. Somers Sturgis.
SOMERS H. STURGIS, Sworn
Direct Examination by Mr. Lucas
Q. Would you state your name and addyess, please, sir?
A Somers H. Sturgis, 47 Raymond Street, Cambridge,
Mass.
Q What is your current position?
A At present I am emeritus professor at Harvard in gyne-
cology and I am a consultant in gynecology to a local uni-
versity health service.
Q_ Are you licensed to practice medicine in the Common-
wealth of Massachusetts?
A Yes.
Q_ 1 would like to show you your curriculum vitae and ask
you to identify it.
3
MR. LUCAS: Let me first show it to the defendants.
JUDGE ALDRICH: Doctor, this is a large courtroom.
Quite apart from the persons in the back [14] of the court-
room who may not be able to hear you, we cannot hear you.
Mr. Lucas, we have the same problem with you and even
more so because the doctor has a microphone and you don’t.
MR. LUCAS: I ask the Clerk to mark this Exhibit 1.
(Curriculum vitae of Dr. Somers H. Sturgis marked
Plaintiffs’ Exhibit 1 for Identification.)
Q Would you tell the Court what Exhibit 1 is, Dr. Sturgis?
A This is my curriculum vitae giving my appointments, my
background and experience and my professional qualifications,
together with the societies, medical and other, that I belong
to, and a list of some 145 publications that are in the medical
literature.
Q Have you specialized in any particular field during your
career?
A Since the war I have been in gynecology, having been
trained originally as a surgeon, general surgeon, and after the
war I concentrated in gynecology entirely for the last 30 years,
since 1945.
JUDGE FREEDMAN: May I ask you, Doctor, which war
you are referring to, since we have had [15] nothing but wars
of late?
THE WITNESS: The Second World War.
Q Are you a member of any national gynecological or-
ganizations?
A Iam a member of a good many national as well as local
organizations. I am a diplomate of the American Board of
Obstetrics and Gynecology, as well as surgery, and a member
of the American Gynecological Society, as well as surgical
societies but most of them gynecological and obstetrical.
4
Q Would you describe the extent of your clinical experi-
ence in gynecology over the years?
A_ I have been in practice for — well, it comes to 19 years
since I got back from World War II, and in that time I have
been rather more interested in the emotional side of gyne-
cology, particularly in young people, in adolescents. In 1950
I was asked by Dr. Roswell Gallagher to be the gynecological
consultant to the first Adolescent Clinic in this country. Dr.
Gallagher set up this first clinic devoted entirely to adolescents
at the Children’s Hospital, the Children’s Medical Center now,
in 1950, and from that time on I have been gynecological
consultant to this adolescent group — this has been not only in
my private practice but with the [16] Children’s Medical
Center, as well as the fact that I am now consultant to a
college age group, that is from 16 or 17 to 19 or 20, locally, a
college group at a neighboring university.
Q_ Are you familiar with the prevailing national and local
standards of acceptable medical practice in the gynecology
field?
A I certainly am, having been a member of many national
societies, and of course receiving the bulletins from the College
of Obstetrics and Gynecology, as well as other journals devoted
to this specialty.
Q Have you been involved in the promulgation of any of
these standards by the national society, the American College
of Obstetricians and Gynecologists?
A Yes. I was a member of a committee of the American
College of Obstetricians and Gynecologists back in 1968. This
was a subcommittee for the Committee on Life, Education
and Behavior of the College. This numbered nurses, doctors
and social workers. It was a behavioral group. This sub-
committee was asked to bring recommendations to the College
concerning certain sexual problems, particularly in young
people.
5
Q There are two statements in one report. I would [17]
like to ask you to identify them.
MR. LUCAS: First, I will show them to counsel for the
defendants. I would like to have this marked as Exhibit 2 and
this one as Exhibit 3, and this statement marked Exhibit 4.
(Statement of American College of Obstetrics and Gyne-
cology, dated February 10, 1973, and amended June,
1974, marked Plaintiffs’ Exhibit 2 for Identification.)
(Statement of American College of Obstetrics and Gyne-
cology, dated April 10, 1973, marked Plaintiffs’ Exhibit 3
for Identification. )
(Statement submitted to Executive Board of the American
College of Obstetrics and Gynecology re Sexual Crises in
the Minor Girl marked Plaintiffs’ Exhibit 4 for Identifi-
cation.)
Q Dr. Sturgis, could you identify for the Court these
exhibits?
JUDGE ALDRICH: Do you have objection?
MR. BEHAR: I would like the record to show we are not
acquiescing in the introduction of these as exhibits. They are
marked for identification, as I understand it, and have not
been incorporated as exhibits.
JUDGE ALDRICH: It will be understood they are all
marked for identification at this time except No. 1.
[18] Q Would you identify them as 2 through 4, please?
A Exhibit 2 is a statement by the American College of
Obstetrics and Gynecology. This is dated February 10, 1973,
and was amended June, 1974. This is a statement of policy.
Exhibit 3 is again a statement by the American College of
Obstetrics and Gynecology on the unmarried mother. This is
again a policy statement. It has a date of April 10, 1970.
6
The fourth exhibit, No. 4, is a statement submitted to the
Executive Board of the American College of Obstetrics and
Gynecology by the subcommittee that I mentioned, of which I
was a member, concerning sexual crises in the minor girl, in
which our committee took up venereal disease in the minor girl,
how it is to be handled by the profession or suggesting how it
be handled, plus abortion, plus emotional crises of a sexual
nature. Those three issues were taken up by this committee in
Exhibit 4.
Q Was Exhibit 2 approved by the entire American College
of Obstetrics and Gynecology?
A Yes. Exhibit 2 is a College statement on abortion.
Q Is Exhibit 3 also a College statement?
A That is correct.
Q And what branch of ACOG approved Exhibit 4, the
[19] entire College or the committee?
A The College published our statement, Exhibit 4, in the
monthly bulletin, although it had not been at that time ac-
cepted by the Executive Committee of the College as a policy.
Q Is there anything in Exhibit 2, Statement on Abortion,
which mandates parental consent for minors under age 18?
A There is nothing at all in there on that score.
Q_ Is there any recommendation or provision in Exhibit 3
which mandates parental consent for minors under 18?
A_ No, sir, there is not.
Q_ Is there any recommendation which mandates parental
consent in Exhibit 4?
A This is something that is taken up in Exhibit 4, in three
pages, and that is very much my concern, and I would like to,
if I may, answer that in this way. We recognize that an
unwanted pregnancy —
MR. REYNOLDS: Objection. He has answered the ques-
tion.
JUDGE ALDRICH: I can’t hear you.
7
MR. REYNOLDS: He has already answered the question
that was asked him.
JUDGE ALDRICH: Would you identify [20] yourself?
MR. REYNOLDS: Robert J. Reynolds.
JUDGE ALDRICH: And you appear for whom?
MR. REYNOLDS: The intervenors, sir.
JUDGE ALDRICH: You haven't been allowed to inter-
vene.
MR. REYNOLDS: I beg the Court’s pardon.
MR. BEHAR: Your Honor, may I request clarification?
JUDGE ALDRICH: Excuse me. You have been allowed
to intervene.
MR. REYNOLDS: I thought I was.
JUDGE ALDRICH: The motion to exclude you has not
been allowed. I beg your pardon. You may proceed.
MR. REYNOLDS: May I have a ruling on my objection, if
your Honor please.
JUDGE FREEDMAN: What is the basis for your objec-
tion?
MR. REYNOLDS: That he has already answered the
question that was asked him.
He said he would like to tell more about this.
JUDGE ALDRICH: All right. Ask him if he would like to
tell more about it.
[21] Q Would you describe the contents and findings in
Exhibit 4?
A Yes, sir. I would like to say that we considered in the
committee the fact that an unwanted pregnancy is sometimes
a social and emotional tragedy to an adult and that when the
mother herself is a child it is even worse. The adult, now
woman, has received the privilege of the option of terminating
pregnancy, yet the minor, the child, is in a much more serious
predicament.
8
We faced this from the point of view of the surgeon or
gynecologist when a minor child comes to him for termination
of pregnancy but refuses to let her parents know, and this is
an extremely serious dilemma for the medical profession, and
we felt that there were only three possible answers that he
could give.
One would be to refuse this child, not to do anything at all,
and to send her along. Another would be to tell her parents
in spite of the fact she says she would not allow this. And the
third would be to try to give her whatever medical resolution
of the problem might be right.
We felt that the first situation was perhaps the worst — to
send this child away without [22] any help at all, in which
case certainly if she had gone to an illegal abortionist and had
severe complications or even death the doctor who sent her
away might indeed find himself responsible for that. We
felt —
MR. REYNOLDS: May I enter an objection, if your Honor
please. The witness was simply asked to identify this docu-
ment at this time.
JUDGE ALDRICH: Well, in this instance he is talking
about Exhibit 4 which is, as I understood it, a report from a
committee that he was a member of.
MR. REYNOLDS: That is correct, sir. What we are
doing, as I understand it, at this time is simply identifying the
document.
JUDGE ALDRICH: You would rather he gave his personal
opinion rather than the opinion of the committee?
MR. REYNOLDS: That is one ground for my objection.
It is my understanding that we are simply identifying these
documents which have been marked for identification and not
as exhibits. I want to object to each and every one of them.
9
JUDGE ALDRICH: I can understand that you want to
object to the introduction of this as an [23] exhibit. Why
don’t we pass on the admissibility of all three exhibits?
MR. LUCAS: Exhibit 1 I should formally move admission
of.
JUDGE ALDRICH: Exhibit 2.
MR. LUCAS: I would like to move the admission of Ex-
hibit 2 as an accurate copy of the Statement on Abortion of
the American College of Obstetricians and Gynecologists.
JUDGE ALDRICH: It is received.
It would save time if we had three copies.
MR. LUCAS: I think we have some extra copies.
JUDGE FREEDMAN: These are copies of a statement
from the American College of Obstetricians Gynecologists of
which, Doctor, you are a member of a subcommittee.
THE WITNESS: Correct.
JUDGE FREEDMAN: Have you participated in the au-
thorship of any of these statements?
THE WITNESS: On Exhibit 4, I was one of the authors,
yes.
JUDGE ALDRICH: Would you state your grounds, coun-
sel, for objection?
MR. BEHAR: This witness, I believe —
[24] JUDGE ALDRICH: We are talking about Exhibit 2.
MR. BEHAR: Well, as far as both 2 and 3 go, he has not
authored them. He has testified they do not concern minors,
and so in our view they are irrelevant. We submit they are
hearsay.
JUDGE ALDRICH: Well, I suppose if you wish to press
the hearsay argument that they are not identified, there would
be some initial trouble right there.
MR. BEHAR: My point is that we cannot question the
guide lines.
10
JUDGE ALDRICH: You do not mean that they have not
been identified as a statement of the American College but
your hearsay argument went deeper than that.
MR. BEHAR: Yes, your Honor.
JUDGE ALDRICH: Do you object to the identification?
MR. BEHAR: I accept that he has identified these as state-
ments of the American College but that is the limit to what I
acknowledge.
MR. LUCAS: We are offering them as such, as evidence of
prevailing medical standards, as some evidence of prevailing
medical standards.
[25] JUDGE ALDRICH: What do you say to the fact that
they do not deal with minors?
MR. LUCAS: The fact that they do not advocate parental
consent would tend to show that parental consent was not
medically justifiable, and we will question the witness in more
detail on that.
JUDGE ALDRICH: Where is the reference to parental
consent?
MR. LUCAS: In the Statement on Abortion there is none.
JUDGE ALDRICH: How do we know it relates to minors?
MR. LUCAS: We would say that the absence of any
reference — you see the Statement on Abortion has certain
requirements and certain restrictions which does not include
the restriction on requiring parental consent. This was one
way in which the Supreme Court used various standards in
Roe v. Wade and Doe v. Bolton, the absence of parental con-
sent in the Modern Penal Code and the Uniform Abortion Act,
we feel would be evidence of lack of medical basis for re-
quiring this. Both Exhibits 2 and 3 are useful as medical
background to the subject matter and would be useful in that
regard.
ll
JUDGE ALDRICH: We can have that direct [26] from
the witness. Exhibits 2 and 3 are excluded.
Q Dr. Sturgis, would you describe —
JUDGE ALDRICH: We are considering Exhibit 4.
MR. LUCAS: I am sorry.
JUDGE ALDRICH: Exhibit 4 will be received limited to
the statement being the doctor’s own views.
MR. REYNOLDS: May I be heard on that, your Honor?
I do not have a copy of Exhibit 4.
JUDGE ALDRICH: I thought it was passed to counsel.
MR. REYNOLDS: It was passed and taken back.
JUDGE ALDRICH: Please take a look at it. I might
suggest to you, counsel, that it will save time to put in the
document rather than ask individual questions. You are going
to have plenty of opportunity for cross examination.
MR. REYNOLDS: If your Honor please, my point was
that if the doctor is going to be using this as his testimony it
would be helpful if I had a copy in front of me.
JUDGE ALDRICH: I agree with that. But you would not
have a copy of his testimony if he [27] testified without it.
MR. REYNOLDS: No, sir, I would not.
JUDGE ALDRICH: Therefore, I overrule the objection.
MR. REYNOLDS: Kindly note my objection to the ruling,
your Honor.
JUDGE ALDRICH: You don’t have to note your objection
in this Court.
MR. REYNOLDS: May I inquire which portions of this
exhibit would be accepted?
JUDGE ALDRICH: We understood this was a statement
the witness subscribed to and we were receiving it as a recita-
tion of his personal views.
MR. REYNOLDS: May the record show I object to the
introduction of it.
12
Q Dr. Sturgis, would you describe what your findings
were in your work on this committee, that is, Exhibit 4?
A The conclusions there of the subcommittee to which I
agree were that, first, the minor who is pregnant and refused
to tell her parents should be urged as far as possible to bring
the parents into the situation since, of course, all minors have
a certain degree of financial and emotional dependence on
their parents. However, if this was completely [28] impos-
sible, and if the child was adamant in her refusal that puts the
doctor into a very different predicament, and we felt that to
send the child away without helping her at all was the worst
choice, and that to betray her confidence and say, “All right.
I'm going to tell your parents on you,” was just as much a
violation of confidentiality that a lawyer might find himself in
with his client, and this was unacceptable to us.
The third possibility then remained, that we should try to
consider the medical predicament and the medical reasons for
interruption of this minor and use our judgment then con-
cerning her maturity and development, recognizing, I think,
that age is no criterion of development and maturity, that
each individual must be judged by the doctor, by the man
most qualified perhaps to judge the degree of maturity and
responsibility as well as the medical need for help.
Q Could you describe to the Court what has been the
extent of your experience with minor patients under age 18
who are pregnant, the experience which you personally have
had or supervised?
JUDGE JULIAN: I would ask that your testimony be
divided into a group of young women [29] between the ages
of 16 and 18 and a group of young women between the ages
of about 12, when conception becomes possible, and 16.
THE WITNESS: I will try to do so, your Honor, although
I do not have a breakdown in statistics. I have been closely
allied to a clinic in a neighborhood of Boston where legal
13
abortions are done after proper counselling and concern, and |
think in this clinic we see around 10 percent of our clients
under 18 probably and three-quarters of them over 15.
JUDGE JULIAN: Under 16?
THE WITNESS: Under 16, yes.
JUDGE JULIAN: The reason I ask is under Massachusetts
law carnal knowledge of a girl under the age of 16 constitutes
a felony punishable by a sentence up to life imprisonment.
THE WITNESS: Of course, according to the present
law —
JUDGE JULIAN: I am referring to a girl under the age of
16 who is the victim of statutory rape.
THE WITNESS: We do have, of course, numbers of girls
under 16, and they must come in with one or the other parent
who signs a release.
[30] JUDGE JULIAN: Under what circumstances is that
required?
THE WITNESS: I believe it is required under the law of
Massachusetts.
JUDGE JULIAN: Under what circumstances would the
doctor require the signature of a parent?
THE WITNESS: For any minor under 18.
JUDGE JULIAN: Under 18?
THE WITNESS: Yes. That is in our clinic — I believe
that is what is understood.
MR. LUCAS: That clinic is not in this County. The
District Attorney from that County has not yet been joined as
a defendant in the action.
JUDGE JULIAN: I don’t think that makes any difference.
Q Would you continue describing your experience with the
medical and psychological aspects of unwanted pregnancies
with minors under 18? You might describe the variations
with age.
14
A The younger the girl who is pregnant the higher the risk
of that pregnancy. This is well established in terms of pre-
maturity, toxemia, and so forth, and in terms of first preg-
nancy as well. So that from 12 on indeed the risks, the
medical risks of continuing the pregnancy do lessen but at 16
again [31] one must recognize that some 16 year olds are
physically and mentally only 12. It is an individual matter.
Similarly I think the trauma of the unwed minor carrying
through with the pregnancy, absence from school and the
emotional isolation of this youngster from all her peers is a
very great problem for her as well as her parents.
Q Yes. In your opinion as a class can minors who are at
age 17, for example, give an informed consent to an abortion
procedure?
JUDGE JULIAN: A little louder. I can’t hear you.
Q_ In your opinion can minors of age 17 as a class give an
informed consent to an abortion procedure?
JUDGE JULIAN: What age?
MR. LUCAS: Age 17.
MR. BEHER: Objection.
JUDGE ALDRICH: Go ahead.
A In my opinion there is no doubt at all that at age 17
most of our youngsters these days are thoroughly able to give
an informed consent, and perhaps it is worthwhile to say from
a medical point of view their knowledge of the situation is just
as good and as broad as their knowledge of venereal disease
for [32] which they can now obtain medical treatment with-
out parental consent as a minor.
Q What has been your experience with the ability of 16-
year-olds to understand the nature and consequences of an
abortion procedure?
A I think —
MR. BEHAR: I object for the record.
JUDGE ALDRICH: You may answer.
15 om
JUDGE JULIAN: Do you have an opinion, first of all?
THE WITNESS: Yes.
A I think that at 16 a great majority of the girls certainly
would be able to give an informed consent. But the age level
is not what a doctor regards as the way to judge whether this
individual or that individual should have responsibility for
their medical treatment.
Q Do you have an opinion as to whether or not a minor
who is 15 could give an informed consent?
MR. BEHAR: Objection.
JUDGE ALDRICH: The question is whether a minor
could?
MR. LUCAS: Yes, sir.
JUDGE ALDRICH: That is a rather narrow question.
[33] Q Perhaps I should ask: What has been your experi-
ence with the ability of 15-year-olds to give an informed
consent?
JUDGE ALDRICH: Has he had any experience? He deals
with a clinic which requires parental consent.
MR. LUCAS: The consent of one parent is required. The
fact that parents do consent would not necessarily indicate
that the minor was incompetent to consent for herself. That
would be our position.
We would just like to ask questions about the ability of
minors at different ages to understand the nature of the pro-
cedure and to give an informed consent to try to establish if
age is rationally related to the procedure.
JUDGE ALDRICH: We exclude that question.
Q Doctor, are there any medical reasons for categorically
denying an abortion to persons under the age of 18?
A_ No, sir, I don’t think so.
Q Does age have any relationship to the medical needs of
a patient with an unwanted pregnancy?
16
A_ As I stated before, the younger the child the higher the
risk with an unwanted pregnancy.
Q. Are there any psychological reasons why a person under
age 18 should be denied an abortion procedure?
[34] MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
MR. LUCAS: I think the witness testified that a great deal
of his experience in the gynecological area —
JUDGE ALDRICH: Excuse me. Counsel, you should first
ask the witness whether he has an opinion and then, in this
instance, we would like to hear what the basis of it is, if he
has any.
Q Do you have an opinion as to whether there are any
psychological reasons for withholding an abortion from a
person under 18?
A Yes, I suppose so.
Q_ What is the basis for your opinion in this field?
MR. BEHAR: Objection.
JUDGE ALDRICH: He may give the basis for his opinion.
A My opinion would be that —
JUDGE ALDRICH: No. On what basis do you rely?
Q What basis in your experience, in your clinical ex-
perience, for example, do you rely on?
A Well, my opinion would depend on a quite close ex-
perience with these young people from the age of 13 to 16 in
their reaction to a pregnancy, in [35] their emotional reaction,
and I think I have a fair amount of experience in that.
Q And would your opinion be as to whether there would
be any psychological reasons for withholding an abortion
procedure?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE ALDRICH: We will allow this answer but on the
limited basis of your own observations. In other words, you
17
have not been qualified, as I understand it, in general psychi-
atry. You have observed these children. You can tell us what
you have observed about their emotional state before and
after.
A My experience would indicate that in the vast majority
of cases these young people are tremendously relieved. I have
to say that in my experience I can think of one situation where
perhaps psychologically with psychiatric help it might have
been urged that an abortion was not done. I am not a psy-
chiatrist, your Honor. In any ambivalent situation I would
run to get help from an expert. It could be that once in a
while there might be a reason psychiatrically for continuing
the pregnancy but this is very rare.
Q Have you personally had any specific training in the
[36] psychological aspects of adolescent pregnancy?
A_ No formal training, no.
Q Have you studied the subject as an academic matter?
A Only insofar as I was interested in reading the literature.
Q Have you read the literature on the psychological as-
pects of unwanted pregnancy among minors?
A_ I suppose I have read most of the current literature.
Q Do you read the psychiatric literature in that field also?
A Not now. When I was an editor of a psychiatric psy-
chosomatic journal I used to.
Q Do you have an opinion as to whether there are in-
stances in which there are positive reasons why parents should
not be involved in the minor’s decision to have an abortion?
MR. BEHAR: Objection?
MR. REYNOLDS: Objection.
MR. BEHAR: Our objection goes to the qualifications,
first.
JUDGE ALDRICH: Let’s hear what basis you have for an
opinion. We are not asking for the opinion, but your qualifi-
cations to express it.
18
JUDGE FREEDMAN: First of all, do you have an opin-
ion?
[37] THE WITNESS: Yes.
JUDGE FREEDMAN: What is the basis for your opinion,
without giving us the opinion?
THE WITNESS: _I would have to rely on my answer to the
previous question. It would just be my experience with a lot
of these young people dealing with their problems.
Q Let me ask you one further question on your back-
ground and experience. Is it routine practice for gynecologists
to also deal with the psychological aspects of adolescents?
A Mr. Lucas, I wish there were more gynecologists who
did this. It should be part of the discipline. Unfortunately I
am afraid a lot of gynecologists have other surgical interests in
mind.
Shall I now answer?
JUDGE ALDRICH: No. We haven't asked what your
opinion is yet.
Q Do you have an opinion as to whether or not parental
involvement in the minor’s decision is necessarily helpful in
every case?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE ALDRICH: I couldn’t hear you. Would you
please speak up?
[38] Q Do you have an opinion, and this is a slightly
different issue, do you have an opinion as to whether or not
parental involvement is necessarily helpful in every case of a
minor who is pregnant and under 18?
JUDGE FREEDMAN: Helpful to whom?
MR. LUCAS: I suppose I mean helpful to the clinical
evaluation of the minor’s problem.
A Yes, I do.
19
JUDGE ALDRICH: And your basis for that is your ex-
perience?
THE WITNESS: As before stated it would be my ex-
perience with these young people and their parents.
JUDGE FREEDMAN: Could you give us a rough estimate
as to the number of cases you have personally observed?
THE WITNESS: In the last 25 years or 30 years —
JUDGE FREEDMAN: Are you talking about the hundreds
or the thousands?
THE WITNESS: Oh, no, I suppose in the hundreds. That
would include my experience in the clinics, too, hospital
clinics.
JUDGE ALDRICH: You have dealt with [39] parents?
THE WITNESS: Indeed, almost inevitably when one of
these questions comes up, your Honor, the parents are called
in — at the moment, of course, because it is the law.
JUDGE ALDRICH: The question is whether you have an
opinion as to whether in an appreciable number of instances
parents increase the emotional problems? Is that your ques-
tion, Mr. Lucas?
MR. LUCAS: Yes, that is the question.
MR. BEHAR: I am going to object.
JUDGE ALDRICH: He may answer.
A Occasionally when these parents that are totally in-
adequate in dealing with a youngster’s problem — I remember
a retarded mother and an alcoholic father, in a situation
where the youngster in mid-teens was so desperately out of
touch with her parents that to bring them into this situation
merely would aggravate an already critical problem. I can
also remember another case, for instance, where the mother
gave her permission but said, “On no account must my hus-
band know of this. He is a cardiac. I refuse to allow my
husband to be in on this at all. I know that it would be
perhaps fatal.”
20
[40] JUDGE FREEDMAN: What about cases in which the
parents do not have a physical or mental handicap or im-
pairment?
THE WITNESS: Yes, and refuse to go along. The only
thing I remember doing is calling in a social worker or psy-
chologist or another doctor to help me try to resolve the dilem-
ma.
JUDGE JULIAN: In most instances do they go along with
the doctor or not?
THE WITNESS: I think in most instances they do go
along with the doctor, your Honor. I think they depend on
the doctor’s opinion about the medical risks of continuing the
pregnancy.
Q In your clincal practice what are some of the reasons
that are given for withholding consent?
A One of the reasons would be just what I have stated —
the ability to get along with one or both parents, or it might
initiate a difficult cardiac situation or some other medical
reason. Often enough the young person is possibly wrong.
They are convinced that the parental disapproval would be
something she cannot face.
Q Is it just as difficult for the patients to notify their
parents as it would be for them to obtain their consent in your
experience?
[41] MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE ALDRICH: Excluded.
Q Have you ever had instances where the parents with-
held consent to punish the minor?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
MR. BEHAR: I don’t think he has testified that in his
experience parents have withheld consent.
JUDGE ALDRICH: I can’t hear you.
21
MR. BEHAR: I don’t believe he has testified that in his
experience parents have withheld consent.
JUDGE ALDRICH: The Court is in disagreement about
that. You had better ask him, Mr. Lucas.
Q Have you encountered instances where the parents
refused consent?
A I don't recall that right now, no.
Q Have you encountered instances where the minors re-
fused to involve the parents?
A_ I personally have had no experience with that but this
did come up sufficiently for the subcommittee —
MR. BEHAR: Objection.
JUDGE ALDRICH: The first part of his answer is received
and the rest of his answer is excluded.
[42] QI don’t think I fully understand your answer. Let
me just ask you this question about your experience. To what
extent are you experienced with instances either in your prac-
tice or under your supervision where parents withhold consent
or where minors refuse to get consent?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE JULIAN: You keep lowering your voice.
JUDGE ALDRICH: It is more work to listen to your ques-
tions than to rule on them.
Q_ Let me ask you this. Could you describe what your
experience has been with minors who do not want to involve
their parents in the decision?
MR. REYNOLDS: I object.
JUDGE ALDRICH: He may answer.
A What has been my experience?
Q Yes.
A_ I can only think of about one case personally that I
remember.
22
Q Have you gained any knowledge from the medical
literature about instances in which minors do not want to
involve their parents?
A Oh, yes. I think there is a good deal in the medical
[43] literature indicating this.
Q Is that the primary reasons for your opinion?
A Right.
Q Have you gained —
MR. BEHAR: I ask that the last answer be excluded. We
don’t know what the medical literature means.
JUDGE ALDRICH: I don’t know what opinion he has
given based on medical literature. I was thinking about that.
Q Have the opinions you have given so far been based in
part upon your study as an expert gynecologist of the medical
literature?
A Yes, sir.
JUDGE ALDRICH: I guess you will have to try to cross
examine on this, counsel.
Q_ In your clinical evaluation of a minor patient what role
do you think should be and in your clinical evaluation of a
patient to what extend do you take into account the parents’
views on whether or not the minor should have an abortion?
JUDGE ALDRICH: In the medical literature?
MR. LUCAS: No, in his clinical evaluation of the patient.
JUDGE ALDRICH: I understood that the [44] clinic he is
involved with requires parental consent.
MR. LUCAS: The consent of one parent, your Honor.
JUDGE ALDRICH: All right.
A Yes. Of course this comes into any consideration of an
abortion for a minor child. That is not only what one parent
but what both parents feel, because this can be a bone of
contention between the wife and husband.
Q Is it one of many factors which enters into your de-
cision?
23
A Yes, it is.
Q What are some of the other factors that enter into your
evaluation of the patient?
A AsI mentioned before, I think that a doctor and only a
doctor can hope to assess the responsibility, maturity and de-
velopment of this individual who is a minor by age, who may
for three or four years, however, be wholly capable of being
responsible for her actions. This is the judgment that I hope
very much may be reserved for the medical profession rather
than litigated in the courts.
Q Do you have an opinion whether it is medically neces-
sary in your practice to avoid parental veto [45] of the minor's
decision in making your clinical evaluation?
MR. BEHAR: Objection.
JUDGE ALDRICH: In light of the fact there could be a
veto by one, and he has run into that problem, to the extent
he may answer.
I mean an attempted veto by one, which they do not recog-
nize.
A As I understand your question: Does this concern the
doctor?
Q The question, I think, was whether or not —
MR. LUCAS: Could you read back the question?
(The following question is read:
“Q Do you have an opinion whether it is medically
necessary in your practice to avoid parental veto of a
minor’s decision in making your clinical evaluation?” )
A_ I think, counsel, the physician in trying to evaluate all
factors has to take into account the possibility that parental
veto may disturb, if you will, the whole situation. It is one of
the factors that has to be taken into account.
24
Q Does parental veto interfere with the exercise of [46]
your medical judgment?
A It is possible.
MR. BEHAR: I ask that that go out.
JUDGE ALDRICH: That may go out.
Q Would you distinguish between the mandatory parental
consent and involvement of parents in the decision-making
process?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE FREEDMAN: Would you rephrase your question?
Q_ In your evaluation of the patient would you distinguish
between involving the parents in the decision as opposed to
giving parents control over the decision?
JUDGE ALDRICH: Evaluating the patient for what?
MR. LUCAS: As to whether to go forward with an abor-
tion for the patient, a patient under 18, of course.
JUDGE ALDRICH: The question is whether he would
give weight to the fact one parent would disapprove?
MR. LUCAS: Whether he would distinguish the problem
of possible parental veto from the problem of possible parental
involvement.
[47] MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE ALDRICH: We do not understand that question.
I thought I put it clearly — immodestly.
Q Would parental involvement be as much an interference
in the physician’s role with the minor patient as parental veto?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE ALDRICH: Can't you put the question just simply
whether it makes a difference in his decision as a general pro-
position if one of the parents says that he is unwilling or she is
25
unwilling to consent, or do you mean something more than
that?
MR. LUCAS: I am trying to distinguish between the prob-
lem of notifying and involving the parents on a case-by-case
basis as opposed to the parents having an absolute veto in
every case.
JUDGE FREEDMAN: I question the worth of this ques-
tion to your case, counsel, for the simple reason that I thought
the doctor had explained that in only one case does he recall
one parent vetoing what the other parent had already given,
that is, consent.
MR. LUCAS: He also testified as an [48] expert about the
broadest scope of the problem. Certainly expert witnesses
often testify about things which they do not have any direct
clinical experience but have expert knowledge.
I will withdraw that question and I will ask this final ques-
tion.
Q Can you think personally of any rational reason what-
soever for requiring the consent of both parents in the case of
every minor under 18 who is pregnant and seeks an abortion?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE ALDRICH: That is much too broad.
Q_I believe I asked you earlier about the medical and psy-
chological reasons. I think I will not pursue that question.
MR. LUCAS: I don’t think I have any further questions of
this witness at this time.
JUDGE ALDRICH: We will take a recess before the next
witness and counsel for the defendants can decide whether
they wish to make a partial cross examination at this time.
(Recess. )
MR. BEHAR: The defendants reserve their cross examina-
tion, your Honor. .
[49] JUDGE ALDRICH: Very well.
26
MR. LUCAS: I would like to call as our second witness
Dr. Jane E. Hodgson.
JANE E. IMODGSON, Sworn
Direct Examination by Mr. Lucas.
Q Would you state your name and current address, please?
A Jane E. Hodgson, 1537 North Fisk Street, St. Paul, Min-
nesota.
Q_ What is your current position, Doctor?
A_ I am associate professor of obstetrics and gynecology at
the University of Minnesota, a full-time teaching appointment
at St. Paul’s Ramsey's Hospital.
Q Are you licensed to practice medicine in the Common-
wealth of Massachusetts?
A lam.
Q_ Are you licensed in any other places?
A_ In Minnesota, in the District of Columbia, Kansas and
Missouri. »
Q Where did you do your residency training in Ob/Gyn?
A Mayo Clinic, Rochester, Minnesota.
Q Do you have your Ob/Gyn boards and in what year did
you get those?
[50] A_ In 1949.
Q How long have you been practicing in Ob/Gyn?
A Since 1947.
Q Have you written articles about obstetrics and gynecol-
ogy and subjects within those fields?
AI have.
Q Have you attended medical educational conferences in
Ob/Gyn?
A Frequently.
MR. LUCAS: May I have the curriculum vitae marked.
THE CLERK: Plaintiffs’ 5 for Identification.
27
(Curriculum Vitae of Dr. Jane
E. Hodgson marked Plaintiffs’
Exhibit 5 for Identification.)
MR. BEHAR: Your Honor, could we have some sort of
agreement that counsel will provide the defendants with copies
of exhibits 1 and 5 and also 4?
JUDGE ALDRICH: Yes. The Court would like to have
three copies of Exhibit 4. We do not need three copies of Ex-
hibit 1 and Exhibit 5.
MR. LUCAS: I would be glad to do that. I only received
the exhibits this morning or we would have had copies.
[51] JUDGE ALDRICH: All right.
Q Would you identify Exhibit 5, please?
A This constitutes a record of my various post-graduate
education, my memberships in various medical societies and
awards and a bibliography of the articles I have contributed to
the field.
MR. LUCAS: We would like to move the admission of Ex-
hibit 5 into evidence as evidence of Dr. Hodgson’s background
and experience.
JUDGE ALDRICH: Yes.
(Plaintiffs’ Exhibit 5 for
Identification received in
evidence. )
Q Dr. Hodgson, would you describe the extent of your ex-
perience in dealing with adolescent gynecological patients?
A As a woman gynecologist since 1947 I think I have seen
more than my share of adolescent gynecological patients
simply because they seek out a woman or their parents seek
out a woman. As medical director at Pre-Term Washington,
at the Free-Standing Abortion Clinic I have served there for
28
almost two years, during which time I supervised over 25,000
first trimester abortions. At the time I left Pre-Term the per-
centage of patients under the age of 18 that were being treated
constituted approximately 11 [52] percent. In Minnesota I
have been watching and I have been aware of the increase in
this age group that are problem pregnancies, and I have been
very much concerned to note that within the last 100 patients
that have sought help at the University of Minnesota, 20 per-
cent of these were under the age of 18. For the last 600
patients, however, it would constitute about 13 1/3 percent.
This is a rising percentage. It is alarming.
MR. BEHAR: I move that that go out.
JUDGE ALDRICH: Rising percentage.
Q Would you finish describing your experience with ado-
lescent patients or have you completed that description?
I have completed the description.
You also have two teenage daughters, don’t you?
I have one teenage daughter and one who is older, 25.
So you are an experienced parent?
Yes.
Have you practiced at all in Massachusetts?
I have served as a consultant here on several occasions
for two of the Free-Standing Clinics in the city here.
Q Did you train any physicians in the medical aspects [53]
of abortions at those clinics?
A Yes.
Q_ Did you train them at all in the psychological aspects of
evaluating patients?
A Hopefully.
Q. Are the psychological aspects of evaluating patients a
part of your practice, your clinical practice?
A It almost has to be.
JUDGE JULIAN: Would you read that question?
e>OP D&O
29
(The following question was read:
“Q Are the psychological aspects of evaluating pa-
tients a part of your practice, your clinical practice?” )
THE WITNESS: I would hope so.
Q Is this delegated to the paraprofessional counsellors also?
A It is delegated to paraprofessional counsellors but the
doctor of necessity must play a very important role, a key role
actually, in supervising the counselling and taking part in the
problem cases.
Q What role, if any, have psychiatrists played in the psy-
chological evaluation at the clinics you have had experience
with?
A_ A very active role.
Q Is this on a day-to-day basis?
[54] A Yes.
Q How many patients ‘br what percentage of patients are
evaluated actively by psychiatrists in the Free-Standing Clinics
you have had experience with?
A It would be difficult for me to say the percentage but
they are in constant touch with the operations of the clinic
and are contacted with a number of the problem cases. I
could not give you an accurate percentage as to the incidence
of consultation but they are kept on a retainer basis.
Q Would you describe for the Court some of the medical
difficulties encountered by pregnant minors under the age of
18 in your practice?
A Would you repeat that question?
Q Would you describe for the Court the medical problems,
if any, encountered by minors under the age of 18 in your
clinical practice who are pregnant?
A The medical problems always are increased in this age
group. This has been pointed out repeatedly in the literature
30
and in my own experience. There is the risk of toxemia and
premature labor, hemorrhage, Cesarean section, neo-natal
mortality, even maternity mortality is much higher in this age
group.
Q Do minor patients under the age of 18 who are [55]
pregnant encounter any particular psychological problems in
your experience?
A No more than any other group.
Q Are you experienced with the effect on the family of a
teenage pregnancy in your clinical practice?
A Teenage pregnancy is very disruptive in the family.
MR. BEHAR: Objection. The answer is unresponsive.
JUDGE ALDRICH: I think that is close enough.
Q Would you describe the manner in which it is disrup-
tive?
A An unwanted pregnancy in a teenager is extremely com-
plicated. The social and psychological problems are many.
The youngster usually has to give up an education or there is a
question of financial support. There is a question of illegiti-
macy. There is the question of the increased medical risks.
All of these things enter into a teenage pregnancy.
MR. BEHAR: I am going to ask that the answer be strick-
en as there has been no foundation laid for it.
JUDGE ALDRICH: Denied.
Q To what extent have you dealt with patients who were
[56] minors under the age of 18 who have had any difficulty
or unwillingness in getting parental consent for an abortion?
A Would you repeat that?
Q What has been the extent of your experience with mi-
nors under 18 who had difficulty getting parental consent?
A Actually we do not see that type of patient. They don’t
get to the qualified clinics. If they are unable to get parental
consent, and they usually are determined to have the termina-
tion, they will seek help elsewhere and they will go to some of
31
the unqualified centers or criminal abortionists. So that our
actual contact is very small with that group of patients.
MR. REYNOLDS: I object.
JUDGE ALDRICH: Is your objection: Does the lady
know whether they go to other places? Or what is your ob-
jection?
MR. REYNOLDS: Her answer went further than the
question. My understanding of the question was she was talk-
ing about her experience.
JUDGE ALDRICH: Well, unless there is something wrong
with the next question it is a great waste of time to make the
question be asked twice. [57] If she is not qualified to give it,
that is a very sound objection.
MR. BEHAR: There is no foundation for the rest of the
answer, no personal knowledge.
JUDGE ALDRICH: I will sustain it on that basis but not
on the ground it is not responsive.
Q Do you have any basis for knowing what patients do
who do not get parental consent and do not want to involve
the parents?
A Yes. I have been asked this question from a number of
clinics throughout the country. Just last week, for example, in
Missouri I was in Columbia as a consultant for the Planned
Parenthood Clinic there, and I asked them what they do about
the parental consent requirement under the Missouri law
where the patients were unable to obtain consent, and they
said that they just simply —
MR. BEHAR: Objection. This would be hearsay.
JUDGE ALDRICH: It seems to me to be part of the lady's
qualifications.
MR. BEHAR: I believe she said that the clinics were in
Missouri, and she is experienced with people in Minnesota and
her clinical experience, which would present a problem.
32
[58] JUDGE FREEDMAN: She testified that in various
sections of the country she has attempted to get conclusions
and based upon her experience and what she has obtained
elsewhere this is what she is now elaborating on.
MR. BEHAR: There is no tie-in between the patients that
she is talking about and her clinical experience.
JUDGE ALDRICH: You may answer.
MR. LUCAS: Would you read the question?
(The following question was read:
“Q Do you have any basis for knowing what patients
do who do not get parental consent and do not want to
involve the parents?”)
JUDGE ALDRICH: She did answer that question. Had
you finished your answer, Doctor?
THE WITNESS: No, I had not. I was just about to say
what happened to these patients. They went elsewhere simply
because they were referred elsewhere by the various clinics
who refused to accept them without parental consent. They
are told where they can go and have the procedure done with-
out parental consent. In other words, the law is being broken
all over the country where there is [59] such a law.
Q Was this part of the ordinary clinical practice you ob-
served while you were in Columbia?
A Yes, and the same thing exists right in St. Paul, Minne-
sota.
Q. Are you familiar also with the ability or inability of mi-
nors to understand the nature of an abortion procedure and to
give an intelligent consent to such a procedure?
A_ I don’t think chronological age enters into the problem
except the very immature or the sub-normal, mentally sub-
normal individual.
33
MR. REYNOLDS: I move that that go out, if your Honor
please, as not responsive.
JUDGE ALDRICH: That is based on your personal ob-
servations, Doctor?
THE WITNESS: That is right, sir.
JUDGE ALDRICH: All right.
Q_ Do you have an opinion as to whether or not a 17-year
old is capable of giving an informed consent to abortion as
well as an 18-year-old — I mean 17-year-olds as a class?
MR. BEHAR: Objection.
JUDGE ALDRICH: The question is whether she has an
opinion. Do you? Not what it is, but [60] do you have an
opinion?
THE WITNESS: Yes, your Honor.
JUDGE ALDRICH: And the basis for that is what you
have told us or is there something else?
THE WITNESS: On the basis of my personal experience. _
Q Do you include in that basis the experience you have
supervised also?
A Yes.
Q_ What is your opinion as to the ability —
JUDGE ALDRICH: Does this question relate to all or
some or many or what?
MR. LUCAS: To 17-year-olds as a class.
JUDGE ALDRICH: Well, there can’t be a total class, can
there?
MR. LUCAS: No, but the statute does as a class require all
persons under 17 to obtain parental consent of both parents.
Then I would ask for some details about the specific
experiences.
MR. BEHAR: We object to the question and answer.
JUDGE ALDRICH: Mr. Lucas, let’s have a more specific
basis. How many 17-year-olds has she had this problem with?
34
Q Approximately how many 17-year-olds have been pa-
tients [61] at the clinics where you have had your experience?
Can you give us a rough estimate of that?
A It would be at least 2500 under the age of 18 but I
could hardly break those down. I'm afraid I couldn't tell you
the number of 17-year-olds in that group.
Q But you know how many are under 18?
A Yes.
Q Do you not have any breakdown on it year by year?
A There is a breakdown but I cannot quote it to you.
Q Do you regard the year-by-year factor as being even
relevant in the minor's case?
A No, I do not.
JUDGE JULIAN: Doctor, do I understand you to say that
there is no significant difference between a 13-year-old
pregnant girl and a 17-year-old adolescent in this matter?
THE WITNESS: I think the maturity of the individual de-
pends —
JUDGE JULIAN: I mean generally.
THE WITNESS: Would you mind repeating that, your
Honor?
JUDGE JULIAN: You said that there is no significant dif-
ference among pregnant girls under the age of 18, which I as-
sume meant that whether they were 12, 13 or 14 or 17 or 18 it
made no [62] substantial difference with respect to this.
JUDGE ALDRICH: With respect to their ability to con-
sent. I think that was the question.
THE WITNESS: I think that many other factors enter
into their ability to deliver an informed consent, their social
condition, their strata in society, their education, their emo-
tional maturity. All these factors are so different that some
12-year-olds will be more mature than 18-year-olds.
JUDGE JULIAN: I understand that. We are not dealing
with exceptions. That is why I asked you as a group.
35
THE WITNESS: As a class undoubtedly the immaturity
would be more remarkable in the 12- or 13-year-olds, yes.
JUDGE JULIAN: What do you mean by more remarkable?
THE WITNESS: They would be more in need of parental
support.
Q What percentage of 17-year-olds would you say are
capable of giving an informed consent in your experience?
A The vast majority.
Q Is there any particular age at which a minor becomes
[63] incapable of giving an informed consent in your ex-
perience?
A No.
Q Have you ever encountered a 13-year-old capable of
giving an informed consent?
A I have.
Q Have you ever encountered a 19-year-old incapable of
giving an informed consent?
A Ihave.
Q Do you consider age just one of many factors in that
decision?
A Right.
Q Doctor, have you been a candid advocate of elective
abortion in your experience in the last several years?
A_ I have.
Q Were you the principal party in a court case, which I
have given the Court earlier, that overturned the Minnesota
law that was passed this year?
A Right.
Q Were you also the principal party in a challenge to the
old Minnesota law back in 1970?
A Right.
Q Was this a case where you performed an abortion on a
particular patient in violation of the law?
[64] A_ I did.
36
Q Did this result in the law being overturned?
A Yes.
JUDGE JULIAN: How high up did that go? Would you
give me the citation?
MR. LUCAS: 204 Northwest 2d 199. I do have extra
copies of this.
JUDGE JULIAN: What is the title of the case?
MR. LUCAS: State v. Hodgson.
Q Did either of those cases have anything to do with pa-
rental consent?
A No.
Q Is there a law on the books anywhere where you prac-
tice now which requires parental consent?
A Not to my knowledge. May I add that it is required,
however, at the institution where I work and it is enforced.
Q Does this interfere with your practice there?
A_ It concerns me, yes, it does.
JUDGE JULIAN: It concerns you or it interferes with you?
THE WITNESS: Yes, it interferes.
Q Have you reviewed the parental consent requirement in
the recent Massachusetts law?
[65] A_ I have.
Q Would it be your understanding of that as a clinical
practitioner that it requires the consent of both parents?
A Yes.
Q Would you understand that to allow any exceptions,
other than an emergency?
MR. BEHAR: Objection.
MR. REYNOLDS: Objection.
JUDGE ALDRICH: Excluded.
Q Dr. Hodgson, do you have an opinion as to whether
there are any medical reasons for categorically denying abor-
tions for all minors under age 18?
37
MR. BEHAR: Objection. There has been no evidence
abortions are being categorically denied to minors?
JUDGE ALDRICH: She may answer.
Q Do you have an opinion? Just yes or no.
A Any medical reason?
Q As to whether there are any medical reasons for cate-
gorically denying abortions for all minors under age 18 who
cannot get parental consent?
A_ I know of none.
Q Do you have an opinion as to whether there are any
psychological reasons for denying abortions to [66] minors
under 18 who cannot get parental consent?
A_ I know of none.
MR. BEHAR: Objection. She was asked whether she had
an opinion. She did not answer yes or no.
JUDGE ALDRICH: We ruled on your objection to the
substance and it is overruled.
Q In your experience have there been any cases where
there were affirmative reasons in your opinion for not in-
forming the parents of the pregnancy? I am just asking about
your experience now without a specific opinion. Have you
encountered cases where there were positive reasons why the
parents should not be told in your opinion?
A This happens rather frequently, yes.
Q Could you describe some of these cases?
A Illness on the part of the parents where the concern
would be so deep, as Dr. Sturgis cited, cases where patients
are concerned over their father’s coronary status or their
mother’s emotional illness, alcoholism, marital instability, in-
stability in the home, marital discord. All these things are
factors in keeping them from communicating with their
parents.
Q Have you also encountered situations where parental
[67] involvement would be helpful?
38
A Yes, indeed. I encourage it in every instance. I think
it is extremely important and to be sought after but there is
the rare case where it is impossible to obtain.
Q Is it even more difficult when you have to obtain the
consent of both parents?
A It simply is an added impediment to the treatment of
the patient.
Q Could you make any kind of statement as to what par-
ticular kinds of family situations there are when parental con-
sent is difficult to obtain?
MR. BEHAR: I object. I believe she testified that she does
not treat patients unless she has parental consent. I am not
clear what we are really talking about, what the answer is
predicated on.
JUDGE ALDRICH: With that explanation, Doctor, can
you answer the question?
THE WITNESS: Sometimes we see the patients and have
to refuse them because they fail to obtain parental consent.
We know what they are going to do. So I do have per-
sonal contact with that group of patients.
Q What are some of the reasons the parents give for [68]
withholding consent and the instances of your experience and
where you have supervised?
A Usually it is of a religious nature or they are urging the
child into an early marriage. It is usually a matter of moral-
ity. They want to conform to society's standards. [llegiti-
macy is something they dread. Many of these youngsters are
forced into early marriages.
Q Do you encounter instances where the parents try to
force the minor to have an abortion?
A Yes. I have encountered that a number of times where
I felt it was for the welfare of the patient that they continue
the pregnancy, if it is their wish to do so, and if there are logi-
cal reasons for continuing the pregnancy. As a rule the ten-
39
dency in these days is for parents to wish to influence the child
to terminate the pregnancy rather than the other way around.
May I cite an example? Just last week I had a patient, an
Indian girl, age 14, who came from a reservation up in north-
ern Minnesota where her education had been completed, and
she was ready to get married, and her boy friend was very
supportive, and they wanted to continue the pregnancy but
they had been almost coerced into coming down to St. Paul
[69] to be aborted, and we refused this patient, and she is
continuing her pregnancy.
We encounter this type of thing fairly frequently where a
mother refuses to believe that her daughter is mature enough
for responsible motherhood and marriage.
Q Are there any national medical standards about the de-
sirability of requiring parental consent, any medical opinions
as opposed to legal opinions?
A It is impossible, I think, to develop any standards be-
cause each case is an individual problem and has to be eval-
uated on its own merits. That is why legislation is so difficult.
Q Have you written any articles on the subject of abortion?
A Several.
Q Have you recently published a study of complications in
first trimester abortions?
A Ihave.
MR. LUCAS: May this be marked as an exhibit?
(Study of Complications in First Trimester Abor-
tions marked Plaintiffs’ Exhibit 6 for Identification.)
Q Is this a copy of an article you recently published?
[70] A It is.
MR. LUCAS: We would like to offer this into evidence.
JUDGE ALDRICH: Have you given copies to your
brothers?
40
MR. LUCAS: Yes, I have. We would like to offer this as
evidence of Dr. Hodgson’s experience, clinical experience.
JUDGE ALDRICH: We are waiting for you to show
copies to your brothers.
MR. LUCAS: I have given them copies.
JUDGE ALDRICH: I am sorry.
MR. LUCAS: Would you mark this as an exhibit?
(Communication to Minnesota Medicine on the
subject of Teenage Mothers marked Plaintiffs’ Ex-
hibit 7 for Identification. )
Q_ Is Exhibit 7 a communication to Minnesota Medicine
that you wrote on the subject of Teenage Mothers?
A Right.
MR. LUCAS: We would like to introduce this also into
evidence as part of Dr. Hodgson’s experience and qualifica-
tions.
MR. BEHAR: As far as the study goes there seems to be no
breakdown relative to minors [71] on this. It seems to be a
rather undifferentiated study. Primarily on that basis we
would object to it.
The witness is here in court I assume on the question of the
challenged statute. I fail to see how this relates to that.
As to the letter, I think it is totally self-serving. She is here
and can testify.
MR. LUCAS: We have introduced them for the limited
purpose of showing her experience.
JUDGE ALDRICH: Six and seven are out.
Q In your clinical experience does the fact that a minor
patient is going to pay for an abortion enter into your decision
whether or not to abort her? Does the profit motive enter
into your decision in your practice?
A_ I hope not.
4]
JUDGE JULIAN: Her own individual practice?
MR. LUCAS: Yes.
Q Do you feel there is any conflict of interest between you
and the patient when you are evaluating her from a financial
standpoint? .
A_ If there were it would behoove me to encourage them to
continue their pregnancy because an obstetrical fee [72] is
certainly or is usually higher than a pregnancy termination
fee.
JUDGE JULIAN: That would be provided the patient in-
tended to have the same doctor as her obstetrical expert and
not for the purpose of aborting her.
THE WITNESS: _I perform obstetrics as well.
Q Would you regard it as unethical to encourage the pa-
tient to go through with the pregnancy for the purpose of
getting a larger fee?
A Obviously.
Q Does the concept of abortion on demand mean anything
to you medically?
A_ I have considered it a very inflammatory term which
has been used by the opposition of abortion law reform to
arouse the medical profession, I think, more than anyone.
Q Is the availability of elective abortion accepted by the
national medical organizations in Ob/Gyn?
A Yes.
MR. LUCAS: I think I have no further questions.
JUDGE ALDRICH: Thank you, Doctor.
MR. BEHAR: We would reserve cross [73] examination of
this witness, your Honor.
MR. LUCAS: Dr. Carol Nadelson. We would like to call
her as our last expert witness.
42
CAROL NADELSON, Sworn
Direct Examination by Mr. Lucas
Q Would you state your name and address. ,
A Carol Nadelson, 30 Armory Street, Brookline, Mass.
Q. What is your current position, Doctor?
A ‘I am assistant professor of psychiatry at Harvard Medi-
cal School and associate psychiatrist at Beth Israel Hospital in
Boston, and director of medical student education for the psy-
chiatry department at Beth Israel Hospital.
Q Would you tell the Court what your educational back-
ground in this field has been?
A_ I received my M.D. degree from the University of Ro-
chester in 1961. I subsequently interned in medicine at the
University of Rochester Hospital. I subsequently came to
Boston and had two years of psychiatric residency training at
Massachusetts Mental Health Center and two additional years
at Beth Israel Hospital and I have been on the staff since that
time.
[74] Q What has been your experience with evaluating
adolescent patients, female adolescent patients?
A The greater percentage of both my teaching and clinical
practice has been devoted to adolescents not involved in any
way with pregnancy. A significant percentage — for'a period
of several years when I was liaison psychiatrist for the obstet-
rics and gynecology department — was devoted to evaluating
pregnant teenagers.
Q. Are you licensed to practice in the Commonwealth of
Massachusetts?
A Yes.
Q What has been the extent of your experience with eval-
uating teenagers who are abortion candidates?
A Well, up until last year I either saw personally or su-
pervised and consulted on every teenager who was aborted or
43
who asked to be who came to the Beth Israel Hospital. Prior
to that, I guess it was 1971, I was involved mostly with the
direct evaluation. I was not responsible for the program. At
that point I directed the program and was responsible for
evaluation and decision-making.
Q Would you describe in your experience what the impact
of an unwanted pregnancy is upon a person under age 18?
[75] A Most of the youngsters we see at the time we see
them — and I might add we usually see them on referral from
some other agency or on self-referral, and we see them after
they have already had the diagnosis of pregnancy made, and
they tend to be generally quite upset, often non-communica-
tive and withdrawn, sometimes very sad, anxious. The re-
sponse varies with the youngster. It has a lot to do with what
her previous adjustment was like and what her home situation
has been like.
Q Does a requirement of parental consent ever delay the
stage at which they have an abortion?
A Yes.
Q Is this hazardous in any way to the patients?
JUDGE ALDRICH: Louder, please.
Q Is this hazardous to the patient in any way, this delay?
MR. REYNOLDS: Objection.
MR. BEHAR: Objection.
A Yes.
JUDGE ALDRICH: There were two questions I never
heard. What was the first one?
MR. LUCAS: The first question was whether the require-
ment of parental consent ever delays the patient in being
scheduled for abortion.
[76] THE WITNESS: Yes.
JUDGE ALDRICH: What was your next question?
Q Whether this poses any hazard for the patient?
A Yes.
44
JUDGE ALDRICH: From a medical point of view?
MR. LUCAS: First medical and then psychological.
MR. BEHAR: I object on the medical.
JUDGE ALDRICH: She may answer.
A From a psychological point of view it does also.
Q In what way does it pose — does delay pose a psycho-
logical hazard to the patient?
A Well, when you have a person who is already in a crisis
situation and is extremely anxious their anxiety increases and
often they develop symptoms like sleeplessness, weight loss, loss
of appetite, they don’t want to go to school. There is a whole
variety of other kinds of anxiety-related problems. Sometimes
teenagers who do not have the same delay capacity that adults
have will do something impulsive while waiting because they
cannot tolerate their anxiety.
Q To what extent have you had direct contact with [77]
teenagers who could not get parental consent?
A_ I have had some contact with those teenagers. In the
past we would see every teenager regardless who came in, and
if a teenager refused or felt she could not get parental consent
we would try to explore why and try to make some assessment
as to what we could do and also to encourage her to get par-
ental consent or involve her parents. All our evaluations
whenever possible do involve parents.
Q What do these patients give as reasons for not wanting
to involve the parents?
A As the doctor who just testified stated, and I have had
similar experiences, it is often parental illness, alcoholism, and
1 am talking about both physical and emotional illness. I
might add something that I think is terribly important and
that is that a good many of the teenagers we see in our clinic
either do not have both parents available, never have, or do
not know the whereabouts of one of their parents, and some of
their family situations are extremely unstable.
45
Q What are some of the types of family situations that lead
to this conflict between parents and child, the minor?
A It is variable. It depends on the group. But often a
child will feel that they cannot talk to their [78] parents, one
or the other of the parents do not understand, and the fear of
upsetting them. They sometimes have no contact with the
parents. "
It is not at all infrequent that a teenager will never have
seen one of her parents or have no idea where they are and
they feel very disconnected from them.
The parents, on the other hand, often feel guilty and angry.
They may feel punitive towards the child if they feel they have
been injured by her action. And sometimes they feel they are
doing the best thing and the teenager thinks something else is
the better thing. So it is just a difference of opinion.
Q Do you have any experience or contact with patients af-
ter thev have had abortions?
A Yes.
Q Would you describe the psychological reactions of mi-
nors under the age of 18 after having had an abortion?
A Most of the teenagers I have seen who have had an
abortion feel relieved by it. They feel that they have done the
right thing and have a second chance often. There are a very
small percentage who feel guilty and a very small percentage
that are sorry [79] about it, — really less than 1] percent in
my experience. Most teenagers feel that they are better off
afterwards than they were before or in fact many of them feel,
and it is certainly evident clinically, that they have grown
from the experience, especially if it is handled properly.
Q Do you have any experience with the effect of continu-
ing the pregnancy on these minors?
A Yes. We have a teenage clinic at the Beth Israel where
youngsters who want to continue their pregnancy are seen,
and the problem that tends to arise is that the time of delivery
46
most of the youngsters we see want to keep their babies.
They do not want to give them up for adoption.
It is becoming more and more usual for youngsters to want
to do that, and they get into sometimes serious difficulty in
terms of their maturity and in taking care of their baby. If
they come from a stable family they can get some help some-
times but most of the teenagers we see do not come from
stable families, and it is difficult for them to get help, and it is
very difficult for someone who is still a child to have a child
and bring up a child.
JUDGE FREEDMAN: Do you often get repeat [80] pa-
tients?
THE WITNESS: Yes.
JUDGE FREEDMAN: They have been aborted and have
come back again?
THE WITNESS: Yes. I cannot quote the exact figures but
it does not seem to make much difference about whether they
have had an abortion or a pregnancy carried to term. The re-
peat rate is high in either case.
Q Do you have an opinion, yes or no, as to the ability of a
person under 18, a minor pregnant, a minor under the age of
18, to give an informed consent for an abortion procedure?
A Yes.
Q_Is this opinion based on your experience that you have
previously described?
A Yes.
Q. What is your opinion?
A_I believe they can and do. I do feel that what is required
is a very careful explanation and time in order to under-
stand fully the implications of their decision.
Q Could you give an estimate of approximately how
many, what percentage of 17-year-olds could give such an in-
formed consent?
47
[81] A That is very difficult. Most of the 17-year-olds cer-
tainly are quite clear. I think the difficult time is in the 11,
12 and 13-year-olds that we see. It is much more time con-
suming and difficult for them to understand what it means. A
teenager generally does not connect pregnancy — the events
leading to pregnancy with pregnancy and with having a baby.
Those three are not connected the way they are in most adults’
minds.
Q With the class of patients under 13 is parental involve-
ment a magic solution to the ability of them to understand?
A It is helpful, it is extremely helpful, and we try very
hard to get everybody, the entire family, involved if we can,
as many people as can sit down together and talk about it. It
is not always possible.
Q Do you encounter instances of parents opposing abor-
tions of 13-year-olds?
A Yes.
Q On what grounds?
A Well, the usual reasons tend to be religious or moral
reasons, but parents sometimes will label a youngster as a bad
kid and feel she needs to be punished, and that is the way to
punish her, and that she will improve if she is punished. That
is [82] a misguided view but it is held.
Q Is it psychologically more dangerous for a 13-year-old to
go through pregnancy than to have an abortion?
A_ In my opinion it is but I cannot present data on it. It is
a clinical judgment.
JUDGE ALDRICH: Would you read back the answer?
(The answer is read.)
Q_ In your opinion can a majority of 14-year-old pregnant
minors give an informed consent?
A Yes.
MR. LUCAS: I have no further questions.
JUDGE ALDRICH: Thank you, Doctor.
48
MR. LUCAS: We do not plan to call any more witnesses.
There have been depositions of Dr. Zupnick and Mr. Bill Baird
and Mary Moe I. We have only gotten Mary Moe I’s deposi-
tion. The others will probably be here soon. I have not had
time to read Mary Moe’s deposition and she hasn’t. We have
no further witnesses to call.
JUDGE ALDRICH: The suggestion we made a little
earlier was that the continued hearing would be a hearing on
the merits at which time you would commence your cross ex-
amination of the witnesses we have already heard on direct ex-
amination.
DeceMsBerR 30, 1974.
[2] THE CLERK: William Baird and others v. Robert
Quinn and others.
MR. BEHAR: Dr. Sturgis.
49
SOMERS H. STURGIS (Resumed)
CROSS-EXAMINATION BY MR. BEHAR.
Q Doctor, would you restate your name for the record?
A My name is Somers H. Sturgis. I live at 47 Raymond
Street, Cambridge, Massachusetts.
Q Doctor, you indicated on direct examination that preg-
nancy, an unwanted pregnancy may be an emotional tragedy
to a minor; is that correct?
A Yes, indeed.
Q And isn't it also the case that an abortion may prove to
be an emotional tragedy for a minor in your experience?
A Of course this is so and one has to judge which —
MR. BEHAR: I move that that be stricken. He has an-
swered the question.
JUDGE ALDRICH: The answer is yes. On the other
hand, I see no reason why the witness should not be allowed
to explain. It is not responsive to vour question, but we might
as well have it now as some other time.
MR. BEHAR: Please note by objection.
. JUDGE ALDRICH: All right. Your objection is sustained.
We will put the witness back on later.
[3] Q Doctor —
JUDGE ALDRICH: I don’t think, I may say, that you ad-
vance the proceedings very much by this procedure.
MR. BEHAR: Very well. I will withdraw the objection.
Q Would you explain, Doctor? 7
A The physician must decide whether the trauma, both
mental and physical, of carrying the baby to term and the
labor thereof is worse or less than an abortion.
Q Isn't it the case, Doctor, that even when that decision is
reached and an abortion is, in fact, performed, that operation
may constitute an emotional tragedy in that minor’s life?
50
A_ It is possible in some cases. This is why one counsels
these children.
Q In fact, the literature is replete with cases where that
has, in fact, happened; isn’t that the case?
A Iam not familiar with many authors of this sort, no.
Q Doctor, on direct examination your attorney and you
referred to the wdrd abortion. Do you make any distinction
between first, second and third trimester abortion?
A Of course.
Q When you used the term abortion, for example, in giv-
ing your opinion that a majority of 16 year olds can consent,
[4] give an informed consent to an abortion, when you used
that term, which trimester were you referring to?
A_ In general, you refer to the first trimester as an abor-
tion. A third trimester is a premature labor, pres#ature mis-
carriage.
Q What about the second trimester?
A This may be either way.
Q When you gave your opinion, for example, that 16 year
olds, a majority of 16 year olds can give an informed consent
to an abortion, were you, in using the term abortion, referring
to second trimester abortions?
A Occasionally, yes.
Q Isn't it a fact, Doctor, that the medical procedure is
more complicated the further on in pregnancy a minor or any
woman is?
A The procedure for the second trimester cases is a very
simple one actually. In some ways, it is technically much
simpler than a first trimester.
Q What is the standard technique for a second trimester?
A Generally, admitting a needle into the amniotic sac of
the pregnancy and introducing some material, such as saline
solution, that will institute a labor situation, so that the fetus
is carried through as in labor.
51
Q But when you use the term abortion, you are not refer-
ring then to third trimester abortion?
[5] A No.
MR. BEHAR: I would ask that the witness be shown a
copy of Exhibit 4.
Q You stated, I believe, that that exhibit reflects your own
personal views?
A Yes.
Q Isn't it a fact, Doctor, that your personal views as re-
flected in that exhibit demonstrate that there are minors who
are too immature to give an informed consent to an abortion?
A Would you rephrase that question?
Q Your personal views as reflected in that exhibit, aren't
they such that they recognize that there are minors who are
too immature to give an informed consent to an abortion?
A_ I would have no hesitation in not agreeing with you in
that, sir, because we have always stated that the spectrum of
maturity is not limited to age but to the individual.
Q And the problem exists relative to minors in the age
group 12 through 17?
A Yes.
Q You have indicated that the physician is put in a prob-
lem situation where the minor will not have parental involve-
ment, and you suggest that where parental cooperation is
impossible to secure that there is a problem. Does that mean
that there should be some effort made to secure parental [6]
cooperation?
A_ Indeed, I fully feel that that is correct.
Q What should this effort consist of?
A Trying to get hold of the parents, if available, and hav-
ing her and the child come together to talk to the physician.
Q_ Do you think it good medical practice when absolutely
no effort is made to encourage parental cooperation and in-
volvement?
52
A Sometimes it is impossible.
Q_ Asa general proposition though, it is your view that an
effort should be made in that direction?
A Personally, 1 would myself make every effort to get the
parents involved, if it is possible. Sometimes the parents are
not available, either one.
Q_ If the parents are, in fact, available, the effort should
be made; is that what you are saying?
A Personally, I would feel so.
Q_ Exhibit 4, which reflects your personal views, indicates
that in a situation where a minor refuses to involve her parents
and is not found to be mature by the physician, that a doctor
should, not act on his own responsibility; is that your view?
A Correct.
Q Who should he draw into the process in your view in
the [7] situation?
A_ I think anyone trained in this area. It may be another
doctor. It may be a social worker or a psychologist or a psy-
chiatrist. It may be a minister or someone who is aware of
the problem and willing to work on a solution.
Q Isn't it a fact, Doctor, and isn’t it accepted medical /
legal practice to oftentimes draw in the courts in these situa-
tions?
A I don’t happen to remember that that is the case, but I
think it is mentioned in the literature.
Q Well, we are all familiar with the common situation,
say of a Jehovah Witness, for example, who is opposed to hav-
ing an operation performed on a minor. Isn't that a situation
where typically resort is had to the courts?
A There is one big difference and that is the time factor.
Since a child who is 10 or 11 weeks pregnant has only a very
limited time to become a ward of the court, for example, and
as to a Jehovah Witness in general the time factor is not too
pressing as it is in the case of a pregnancy.
53
Q Doctor, isn’t it a case where a situation often arises in
an emergency where a transfusion, for example, must be
administered with speed? We are all familiar with these situ-
ations.
A_ Indeed, in most hospitals there is a chain of command to
make it very easy to do because this happens frequently, but
in situations we are talking about, that is, where one [8] par-
ent is missing and the other is in the House of Correction or
something, we do not get this kind of situation often enough to
work out some quick and easy and passive method of getting a
court decision. At least I don’t know of any.
Q_ The courts have traditionally been a source of resolving
these kinds of parents-child conflicts, have they not?
A Well, there is no tradition involved because it is all so
new. This problem —
Q Don't the courts even come into play in the situation
where the interest of the parents and child and co-extensive,
for example, in the donor situation or in donation where you
have a situation where there may be twins, and the parents
and one twin agree that a kidney, for example, should be
donated to another twin, don’t the courts typically sanction
those kinds of procedures in your experience?
A_ I may be wrong, but I believe only one parent's consent
is necessary in those cases. It seems strange that in an abor-
tion two parents’ consent should be necessary.
MR. BEHAR: I move that the last part go out.
JUDGE ALDRICH: Yes, that may go out.
Q You have indicated that it is generally desirable to have
parents involved in the situation of a minor faced with an
abortion.
A_ I would say a parent involved, yes, sir.
54
Q What benefit does parental involvement bring both to
the [9] minor and the family in your experience?
A Well, if a parent can be present and involved in the
situation, then the support of that parent is beneficial to the
child.
Q What about the family? Have you known the family to
grow from such involvement?
A_ I would think that is entirely up to the parent. There
may be other siblings. It would be up to the parents to know
whether it would be helpful for them to be involved or not.
Q Would you, in your best medical judgment, accept any
reason a minor might advance for not telling her parents that
she is pregnant?
A I should think I can think of reasons, yes.
Q Are there any reasons a minor might advance for not
telling her parents that you would find unacceptable?
A_ Ican imagine there would be some of those, too.
Q Could you reflect and state to the Court what those
might be?
A On the one hand, as I mentioned, one can have a situa-
tion where the mother herself — the child herself is pregnant —
is illegitimate and her mother is totally uncooperative with this
child’s actions. I can think of a Roxbury family where the
father was away, and he had not been back, and there was no
parent other than the mother who was totally unsympathetic
to the child. It would have [10] been very difficult for the
child.
JUDGE ALDRICH: I don’t think you have made it at all
clear to the witness what your question is, counsel.
Q My question is, are there any reasons a minor might
give for not informing her parents she is pregnant that you
would not find acceptable or would you accept any reason?
JUDGE JULIAN: I find the use of double negatives in your
question confusing to me. Avoid the use of double negatives.
55
JUDGE ALDRICH: We go further than that. This is
purely speculative matter. You can argue that to the Court.
MR. BEHAR: Do I understand you are excluding the ques-
tion?
JUDGE ALDRICH: That particular question, yes.
Q Suppose a minor has no reason for not telling her par-
ents she is pregnant, would you accept that as a valid excuse
for not informing the parents?
A If she has no reason for —
Q She just says, “I don’t want to inform my parents and I
am not going to tell you why.” Is that acceptable to you?
A_I feel this is exactly where the counseling aspects of this
question should come up and I would want to take time to
talk to this child a good bit more to see if I can find out [11]
what the reasons were.
Q If there is a refusal by the minor to inform her parents,
in your experience and training is that symptomatic of perhaps
an emotional upset relating to the pregnancy?
A Oh, indeed it may not be so. It may be quite easy to
understand why she might not want to. It still leaves the
physician in a great deal of a problem.
Q. What I am saying or what I am asking you, Doctor, is
whether the fact that a minor does not want to inform her
parents of her pregnancy, is that fact symptomatic of emotion-
al problems with that child?
A It may certainly not be so.
Q May it also be so?
A_ In some circumstances, possibly, but all of us know that
some children are emotionally unstable and others are very
stable. That is up to the physician to try to decide.
Q You indicated for the minor who refuses to inform her
parents of her pregnancy that it is important for the physician
to consider the medical predicament and the medical reasons
56
for interruption of this minor. Does that mean that a preg-
nancy of a minor should only be interrupted for medical rea-
sons?
A If you will include in the medical reasons what I have
said. The trauma of the abortion in the physician’s opinion
being far less than the trauma of carrying through the [ 12]
pregnancy, this is a medical judgment, ! presume, and partly
founded on the knowledge that the younger the mother, the
younger the child who is pregnant, the greater are the medical
risks involved in carrying through the pregnancy.
Q Have you encountered any situations where there would
be no medical reasons for interrupting the pregnancy of a
minor?
A I can’t think of any.
Q So it is merely the inherent risk of the pregnancy that
justifies the procedure; is that what you are saying?
A Yes.
Q You indicated that in your view it is the doctor who is
the person most qualified to judge the degree of maturity and
responsibility of a minor who refuses to inform her parents; is
that correct?
A Yes.
Q Isn't it a fact, Doctor, that in the patient-doctor rela-
tionship that is often sporadic in nature?
A It may be.
Q In fact, you may have a situation where the minor who
is refusing to inform her parents may have only contacted that
doctor on one occasion, that particular time; isn’t that right?
A That may be so.
Q. And are you telling this Court that a doctor who has
sporadic contact at best with a patient is in a better position
[13] than parents to gauge the maturity and responsiblity of
that minor?
57
A_ Ian only speak of my own experience and say that I
believe that as a physician dealing in these matters for some
time, I can perhaps apply a fair degree of expertise in trying
to gauge the medical risks involved in either an abortion or
ygarrying through the pregnancy. That sporadic interview
may be an hour.
Q_ Is an hour in your view the kind of time that should be
spent individually with a patient?
A It is generally adequate in this particular situation to
summarize what is the problem involved.
Q_ And this is a one on one contact with the minor?
A It may be myself or one of my well-trained social work-
ers.
Q Isn't this a situation, Doctor, where the minor wants
something from the doctor? She wants to have an operation
performed upon her; right?
A Yes.
Q And isn’t it likely in that kind of situation that she is
going to tell the physician what he or she wants to hear?
A_I suppose.
Q And isn’t it a fact, Doctor, that given that kind of a
situation it is very difficult to gauge the maturity and respon-
sibility of a minor?
[14] A. As you recall, in my exhibit here, this is the situa-
tion where the doctor is wise to call in another, whether a
social worker or another doctor, to support his view.
Q So the doctor clearly should not be making this kind of
judgment alone?
A Iam only speaking from my own experience and saying
this is what I would do.
Q I understand that. Can you state to the Court why in-
formed consent is necessary at all to this procedure?
A By informed consent one implies telling the patient
what is going to happen to make it easier for her to accept a
58
certain amount of discomfort, to allow the client-patient to
cooperate in the procedures the doctor is going to do, whether
it is an appendectomy, a tonsillectomy or an abortion. It is
terribly important in all medical problems.
Q_ In your experience, aren't there different levels at which
a person can appreciate — well, let’s take an abortion proce-
dure.
A Of course.
Q. There is the emotional level?
A Yes, indeed.
Q Isn't it a fact, Doctor, that it is difficult in an hour
interview to gauge at which level a particular patient is appre-
ciating the consequences of the medical procedure?
A_ This is exactly where the background of the doctor [ 15]
will be helpful because a minor child finds it very difficult to
appreciate the emotional trauma of a two year old infant of
hers, let’s say — the knowledge the doctor has of what the
trauma of the sixth to ninth month of pregnancy may entail in
this child, or the delivery risk — these things the doctor knows
about and it is very difficult to expect the child to appreciate
this, even though the doctor may try to impress the child that
this is what is going to happen. It is his knowledge and
background that one must rely on in making the decision.
Q Is it your testimony that a minor has difficulty appreci-
ating the long-term consequences of a pregnancy, but somehow
has a better appreciation of the consequences of an abortion?
A Oh, yes, I think that is true. An abortion, you see, is a
direct and immediate situation. This is something that can be
appreciated by the child. It is something that is going to hap-
pen. The child can figure what will happen tommorow or to-
day or the next day, but to help the child appreciate ahead is
a thing the physician must keep in mind in making a decision.
59
Q Isn't it a fact that minors particularly, and it is part of
growing up, that minors particularly have trouble taking a
long view?
A Of course.
Q And isn’t it really on the emotional level the long-term
[16] view that we are really concerned with?
A_ I agree that that is what I think the doctor knows about.
Q The fact that there might be an immediate feeling of
relief or understanding does not necessarily mean an appreci-
ation of long-term effects, does it?
A Well, no.
Q When you gave your opinion on direct testimony re-
lative to 16 and 17 year olds, that a majority can give in-
formed consent, I take it that means that a minority can not?
A Yes, of course.
Q Do you know what an abortion center is, Doctor?
A What an abortion center is?
Q Yes.
A_ I don't know what you mean by that question.
MR. LUCAS: I object to the relevancy of that. That is
probably more tied up in another lawsuit which should not be
tried in this court today.
MR. BEHAR: I believe it is relevant to the class action
allegations here. I believe it is relevant to the class action
motion that these plaintiffs have filed. They purport to
represent abortion centers. I am asking this doctor if he
knows what it means.
MR. LUCAS: There has been no motion filed to vacate
that class action order.
MR. BEHAR: There certainly has been.
[17] JUDGE ALDRICH: I understood there was an attack
made on a prospective finding this was an appropriate class.
MR. LUCAS: I understood the Court had ruled.
JUDGE ALDRICH: I didn’t think we had.
60
MR. LUCAS: _I don't see where this particular question has
any relevance.
JUDGE ALDRICH: Maybe it doesn’t. We will take it.
Q Do you know what an abortion center is?
A I don’t know what you mean. Would you explain to
me what you mean?
Q I am not sure I know what the term means, Doctor.
You indicated that you were associated with an abortion clinic
in this area.
A That is correct.
Q Would you identify it, please?
THE WITNESS: Your Honor, I would prefer not to bring
in the name, but if it is important —
JUDGE ALDRICH: What is the relevancy?
MR. BEHAR: Well, there will be testimony as to what the
physical set-up is at the Parents Aid Society, and in our view,
it is relevant to compare structurally what goes on at this
particular plaintiff-corporation with what goes on and what
exists at a clinic, for example.
[18] JUDGE ALDRICH: Well, we begin right off by
saying it is not proper cross-examination of this witness.
MR. BEHAR: May I be heard briefly?
JUDGE ALDRICH: Yes.
MR. BEHAR: I believe on direct examination the witness
indicated part of his experience was his association with a
clinic in the Boston neighborhood, I think he put it, and it
seems to us proper cross-examination is to find out what the
experience is at this clinic. I think it reflects upon what his
testimony has been.
JUDGE ALDRICH: In what way do the individual per-
sons at this clinic, which the witness would like to respect the
privacy of, bear on what you are pointing out?
MR. BEHAR: I am not asking him to identify the names
of anybody.
61
JUDGE ALDRICH: I thought you were.
MR. BEHAR: Just the name of the clinic. I happen to
know the name of the clinic. I defended the clinic’s position
in a lawsuit myself. I am not critical of the clinic. I think
bringing the name out does not prejudice anybody.
JUDGE ALDRICH: The witness feels it does.
THE WITNESS: I would prefer not to.
MR. BEHAR: Okay.
[19] Q But you are associated with the clinic?
A That's right.
Q Did you help set policy for this clinic?
A Yes.
Q Medical policy?
A Yes.
Q Was policy set regarding parental consent for procedures
performed on minors? |
A Of course. We have always had one parent's consent.
Q_ And you required that?
A Yes.
Q Did you deem it to be good medical practice to have
such a requirement?
A At that time it certainly seemed so. This was in 1973.
Q Is this clinic licensed?
A Yes.
Q Can you tell the Court briefly what a licensing pro-
cedure is, if you know?
MR. LUCAS: We would object to any inquiry into this
because the question of the validity of the licensing statute is
at issue before another judge in this court.
JUDGE ALDRICH: I don’t take it that that is the purpose
of the inquiry. The purpose of the inquiry seems to be either
to attack the witness’ experience or to support it. I don't
know which at the moment.
62
MR. LUCAS: Whether or not the clinic has complied with
[20] licensing requirements, I don’t see where that has any-
thing to do with the question we have here.
JUDGE ALDRICH: As to this particular question, I would
agree.
MR. BEHAR: Note my objection.
Q Doctor, does the clinic in question have any back-up
agreements with any other health care facilities in the Com-
monwealth?
A Yes, of course. The State, in its regard for the welfare
of patients, of medical clients, has established certain policies
and has set up various measures and methods to see that these
are taken care of. One of these is to have a back-up facility
within a few short minutes drive from a clinic if the clinic was
in a non-hospital facility.
Q Are these back-up agreements formalized in writing?
MR. LUCAS: Objection. This is irrelevant. He is trying
the clinic licensing case.
JUDGE ALDRICH: What do you say?
MR. BEHAR: I am not trying to do anything of the kind.
I want to establish from this witness that it is good medical
practice, given a given volume of surgical procedures per-
formed at an institution, to have back-up agreements.
JUDGE ALDRICH: He already said he had one. [21]
What more do you get?
MR. BEHAR: This plaintiff might not have one.
MR. LUCAS: This is not any more relevant than the type
of novocain used at the clinic.
MR. BEHAR: I suggest it is relevant. This is the kind of
inquiry a parent, as opposed to a child, might make as to
what kind of back-up agreements and what kind of patient
safety was involved at a particular institution.
JUDGE ALDRICH: What particular question do you
want?
63
MR. BEHAR: I believe the question I asked was whether
the back-up agreement was formalized in writing.
JUDGE ALDRICH: What difference does it make?
MR. BEHAR: In our view, it would show there is an
on-going relationship with a hospital. It seems to me that if I
were a parent and I were going to have surgery performed on
a child, I might want to know what kind of back-up agree-
ments there were in case something went wrong.
MR. LUCAS: It would be our position that this type of
regulation has been declared unconstitutional by the Supreme
Court because it forbade first trimester clinic regulation. We
handed up to the Court earlier a copy of the three-judge court
decision specifically declaring this [22] transfer of agreement
provision unconstitutional. We would object to inquiry into
whether or not this clinic or any other clinic complies with
those regulations. It is simply beyond the rights of minors
issue.
MR. BEHAR: I will withdraw that question.
JUDGE ALDRICH: Thank you.
Q (By Mr. Baher) Do you know of your own knowledge
how many abortions are performed at this clinic per week?
A Per week, about 40 or 50.
Q Is it your best medical judgment that where abortions
are being performed in such volume that a back-up arrange-
ment with another health care facility is good medical prac-
tice? ,
A Interestingly enough —
MR. LUCAS: I object to this as being an attempt to cir-
cumvent the Court’s ruling.
JUDGE ALDRICH: I don’t know how much of a ruling
we have made. He can answer that question.
THE WITNESS: I'm sorry. Would you repeat the ques-
tion?
64
(The following question was read:) “Is it your best
medical judgment that where abortions are being
performed in such volume that a back-up arrange-
ment with another health care facility is good
medical practice?”
THE WITNESS: I certainly agree, but that may [23] not
be in writing. In fact —
JUDGE ALDRICH: That answers it.
Q Doctor, in your judgment, would it be good medical
practice for a doctor or a clinic to agree to perform an abor-
tion upon a minor on the basis of a ten-minute phone call?
A From my own personal opinion — I don’t think I would
ever have done that my own self.
Q In your opinion, Doctor, would it be good medical
practice for a licensed physician to consult with a patient, a
minor patient, before that minor patient signs a consent
form?
A_ No, that is not necessary. In my own clinic the major
part of counseling preparation and explanation comes from a
social worker who sees the patient and I or the doctor may
have no time to see the patient but will depend entirely upon
the experience and expertise of those that are preparing the
patient.
Q You do not go over the form yourself?
A The form, yes, because there has to be a consent form
signed by the patient that she understands what is going to
happen.
Q Do you go over that with the patient yourself?
A_ I or the doctor that is going to do it will.
Q_ It would be good medical practice to do that?
A_ I have always done it myself.
[24] Q You indicated that the younger the girl who was
pregnant the higher the risk to that pregnancy; it that correct?
A That is correct.
65
Q Isn't it a fact, Doctor, that pregnancy is only par-
ticularly risky relative to 12 and 13 year olds, in that age
group?
A Oh, no. It depends entirely on the physical maturity,
not the age of the patient. There are many 17 year olds —
Q Isn't it the case, Doctor, that with good prenatal care
the pregnancy of, say, a 15 or 16 year old is as safe as that of
a 20 year old?
A Well, you see —
Q Can you answer that yes or no?
A No, I can not.
Q Isn't it a fact, Doctor, that pregnancies in late adoles-
cence are as safe as those beyond adolescence?
A_ If you define adolescence the same way I would, then I
would agree.
Q How do you define it?
A_ I would say that adolescence is from puberty, when the
child begins to develop, to full maturity.
Q And if you define adolescence as such — ?
A The later in adolescence, the closer to maturity.
Q_ And the pregnancy is as safe during that time as it is
beyond adolescence?
A Yes. If you say —
[25] Q I think you have answered the question.
JUDGE ALDRICH: I don’t think he has.
A Would you define how late in adolescence you mean?
Q Let's take from 16 to 18.
A Would you rather say within six months of being fully
mature? It may be.any age. Then I would say yes — within
six months of being fully mature.
Q But beyond that, you are not prepared to make that
statement?
A No.
66
JUDGE FREEDMAN: Well, haven't you stated on several
occasions that the question of danger of an abortion as opposed
to carrying through to full term depends upon the physical
maturity of the individual rather than the age?
THE WITNESS: Yes, Your Honor.
_Q And the same could be said for the risk of an abortion,
could it not, namely, that the younger the minor the riskier
the procedure, the abortion procedure?
A_ No, that is not quite right. The risk entails the extent of
the pregnancy rather than the age of the patient.
Q You are not saying there is no risk in the abortion
procedure?
A There can be a risk to cutting your fingernail. It is not
the age of the patient so much as — well, there is surely some
connection, as you have suggested, between the [26] risk being
greater for any procedure the younger the patient, but that is
not as medically important as the extent of the pregnancy.
Q_ And that goes for pregnancy, too?
A Yes.
Q You have indicated there are risks. Are there risks in
your experience in this procedure?
A In any procedure whatsoever.
QI have not asked you about any siaiedeases I am asking
you about the abortion procedure. Are there medical risks
and complications that attach to this procedure?
A Of course.
Q Could you, based on your experience and training,
detail for the Court what these are?
A The risks involved in abortion may be a certain amount
of temperature reaction, a certain amount of bleeding, cramps
or pain. These things may certainly be quite prevalent in any
of these procedures.
Q Would there be danger of perforation of the uterus in
this procedure?
67
A That is a remote possibility if the procedure is done by
trained physicians.
Q. Are there any of these complications that would require
hospitalization, Doctor?
A A perforation certainly could. I think this would be
[27] very, very unusual and unlikely to happen. Severe
bleeding could mean hospitalization or an unknown tempera-
ture reaction would perhaps require medical care.
Q_ In your judgment relative to these complications, if they
occur to a minor who had not obtained parental consent for
an abortion, in your judgment, do you think the parent ought
to be informed relative to the complications once they resulted
in hospitalization?
A_ I would think so.
Q_Isn’t it a fact, Doctor, that if a parent was notified in a
situation where the minor had been hospitalized as a result of
complications, the emotional impact on that family would be
far more deleterious than it would have been if the parents
had been involved at the outset?
A You are presenting a possibility so remote it is hard to
answer anything to it. I suppose you can think of situations
like that. But, in the first place, the numbers of patients who
do not have parenta) consent and have complications are very,
very few. If you were to multiply these rare occasions, |
suppose you could find a situation where the answer should be
yes to your question.
Q Are you familiar with the term morbidity as used in
relation to abortion?
A Yes.
Q Would you tell the Court what you understand that
term to [28] mean?
A Morbidity refers to the type of complication that |
mentioned, that is, the non-fatal situation of a temperature or
an infection or bleeding or something of this sort.
68
Q Doesn't the term really go beyond the actual complica-
tion but looks to long-term effects of the particular com-
plications?
A No, I don’t think morbidity has any further meaning
than just what I said.
Q You indicated on direct examination that it is important
for the gynecologist to deal with the psychological aspects of
an abortion situation for a minor. Is that correct?
A Surely. é
Q_ And then you made a comment which I did not under-
stand. You said, and I am quoting, “I’m afraid a lot of gyne-
cologists have other surgical interests in mind.” What did you
mean by that? You said that not enough doctors really paid
attention to the psychological aspects and then you said, “I'm
afraid a lot of gynecologists have other surgical interests in
mind.” What did you mean by that?
A I think I meant —
Q Do you recall saying that?
A I am sure I did if you have got me quoted. I don't
remember it. I think I meant that many gynecologists are not
very apt to spend much time in the office dealing with purely
emotional affairs dealing with the reproductive tract.
[29] Q What are these other surgical interests you had in
mind that these doctors might have?
A Well, I think, of course, a hysterectomy is one. Per-
haps it is not too often, but a hysterectomy is a usual pro-
cedure for a doctor to do.
Q Doctor, I just happened to be reading the Boston Globe
of December 4, 1974, and the paper reports a study of gyne-
cologists, and it was done by a gynecologist who toured
various hospitals, and he was concerned with tubal ligations
and the performance of this procedure, and he indicated that
what he termed a significant minority of residents and interns
at teaching hospitals were performing these operations un-
69
necessarily and they were doing so because of a deep-seated
personal belief regarding overpopulation and what their par-
ticular physician regarded as an ideal number of children for
any family.
He also indicated these procedures were being performed
because of frustration over the millions of dollars spent to
support the welfare program.
In your experience, have you become aware of doctors that
perform operations for these reasons?
MR. LUCAS: Let me object to that and particularly the
use of a newspaper because it lacks any foundation. It is
certainly not a scholarly treatise, although it is a good news-
paper. I think the question is very [30] ambiguous. It has
two or three elements to it.
JUDGE ALDRICH: It seems to me the question could
have been put in much simpler language. To that extent, |
will sustain the objection. You could have asked him all that
without making a speech. I strike the question.
Q Doctor, in your experience, are you aware of physicians,
and particularly gynecologists and obstetricians, who perform
— well, we will leave it at gynecologists, who perform surgical
operations based on personal beliefs, such as aversion to wel-
fare, population control and their conception of what an ideal
family size is?
MR. LUCAS: Objection. That question has too many
factors in it.
JUDGE ALDRICH: He may answer.
A_ I don’t think any doctor should perform operations for
these other issues. We are taught and trained that what we
are trying to do is to take care of the health of the patient.
Q Doctor, I did not ask you that. I asked you if you are
aware of doctors, either from your own experience or from
reading the literature, who, in fact, do that?
70
A I certainly am aware of all sorts of doctors who are not
following the code.
Q And these are the doctors you would have make the
decision for the minor on whether to have an abortion?
[31] A Oh, no, not at all. The same group of doctors
who would do a hysterectomy without any medical reason for
doing it, these are doctors who are not following the training
and beliefs and code of ethics that they were brought up to
follow.
Q If a patient is encountering a doctor for the first time,
that patient is not going to know whether the doctor is one of
these doctors you have said is violating the code or one who is
perhaps following the code, is she? :
A_ I think she is if she is going to a hospital or a clinic. She
is going to trust the organization that she went to.
Q And that trust could be misplaced if the doctor is the
wrong kind of doctor who is going to violate the code; is that
right? Yes or no?
A I don’t know, I guess.
Q You guess?
A Well, would you say that again? It is so clearly obvious
— are you saying if she knows she is going to a criminal,
would she have trust?
Q She is dependent really upon the doctor, isn’t she? She —
doesn’t know. The doctor is not going to have that on the
office shingle that he is violating the code, is he?
A Not a criminal doctor.
Q_ So she is taking a chance?
A If she goes to an illegal abortionist, she is taking a [32]
chance, yes.
JUDGE ALDRICH: I think you have gone far enough in
arguing your case.
Q Is an abortion properly characterized as a surgical pro-
cedure in your judgment?
71
A Yes.
Q_ In your judgment is it good medical practice to begin
starting the patient on antibiotics immediately preceding an
abortion?
MR. LUCAS: Objection as to the details of a particular
medical practice. I think the Supreme Court made it clear
that the particular practice of the physician in the first tri-
mester is a matter between the physician and the patient.
While there may be disagreement over when and at what
point to use antibiotics, I don’t think it is a proper line of
inquiry having to do with the rights of minors.
JUDGE ALDRICH: Do you want to make the same argu-
ment there? A girl might go to a crook the way a grownup
might go to a crook?
MR. BEHAR: That is part of it, Your Honor.
JUDGE ALDRICH: What else?
MR. BEHAR: Well, in our view, there are different medi-
cal procedures that are being utilized. It seems to me that
when you have a minor who shows up at a clinic, she is not
going to be asking questions.
[33] JUDGE ALDRICH: We will hear that argument
when we come to it, but I don’t see what you are gaining now
except wasting time.
MR. BEHAR: Are you overruling the question?
JUDGE ALDRICH: Yes, because it is argumentative.
MR. BEHAR: Note my objection.
Q In your experience, Doctor, has it ever been necessary
for a physician to consult with a minor’s family doctor before
performing an abortion?
A Indeed, the family doctor may be a very excellent
person to talk to, as I have suggested, particularly if the child
refuses to involve the parents. I think I mentioned some
trained person, even a minister, and the family doctor might
be someone we might call in.
72
Q Would you have occasion to consult a family doctor for
medical reasons relative to a minor?
A I think in our clinic anyway we try to see that the client
goes back to her family doctor after the procedure if she pos-
sibly can. We feel that this is a very good way to follow up.
Q Your experience has been in situations where you have
parents present or at least one parent present.
A One parent's consent, yes.
Q During these consultations has it been your experience
that [34] a parent is ever able to supply knowledge relative to
a minor's medical history that the minor does not have?
A_ I don’t think anything that would be appropriate to the
situation. In other words, the fact that the child had chicken
pox or something like that is not pertinent.
Q Has a parent ever amplified the history of the child?
A_ If you know parents, then you know how they talk.
Most of it is irrelevant to the problem.
Q But they nave provided information in situations where
the minor has not been able to?
A Of no significance to the decision, yes.
Q Doctor, do you encounter the situation in your clinical
experience, and maybe in your training, where a minor has
articulated a fear of involving her parents, and the parents are
then informed of her pregnancy, and the fear is not realized?
A Ido not happen to remember that particular situation,
but I can think of many other situations that would seem to
follow the same pattern.
Q In other words, not all the minor’s fears come true, is
that right?
A_ Indeed, no, that is true.
Q In fact, on direct testimony you stated, “Often enough
the young person is possibly wrong for not wanting to inform
her parents” ?
[35] A It can happen.
73
Q Relative to the hospitals and clinics you have been as-
sociated with, have they ever had occasion to make referrals to
state agencies regarding families they did not regard as suitable
for a child?
A For the care of the child?
Q Yes, for the care of the child.
A After an abortion?
Q I mean in general.
A In general, most hospitals have social service depart-
ments that are very closely affiliated with state agencies.
Q And in these situations, and oftentimes as a result of
hospital intervention, there can be a guardian appointed for a
particular minor?
A For a child without —
MR. LUCAS: I object to the relevancy.
JUDGE ALDRICH: You may go ahead.
Q In a situation where that is the case, where, for ex-
ample, in a situation you posed as being an instance where
you did not think it was a good idea for the parents to be
informed, that is a retarded mother and an alcoholic father,
that would be the kind of a situation where a guardian would
be appointed?
A Correct.
Q Do you understand the statute in that situation to re-
quire [36] dealing with the guardian or with the parents?
A_ I don’t know the statute. We have had cases just like
that, with an older sister —
Q I think you have answered the question. In your view,
Doctor, are there any surgical procedures which, in your
judgement, a 17 year old can not give an informed consent to?
A_ Indeed, in my experience and affiliation in hospitals in
this town, those procedures that need a total anesthetic, put-
ting the child out with some sort of an anesthetic, all these
procedures need some adult consent. I don’t know that there
74
is any law about this, but this is the policy as far as I know.
Of course, abortions done under novocain are out of that
range.
Q Well, are you saying it is good medical practice to have
parental involvement in all situations where there is a general
anesthetic?
A Yes, a guardian or parent surrogate, yes.
Q Are there any general procedures not involving a general
anesthetic that in your view a 17 year old, for example, could
not give an informed consent to?
A I don’t know. I would have to think about that. I’m
not sure that there are.
Q Is it your view that a 17 year old can give an informed
consent to a tubal ligation?
[37] A I think that indeed she could be capable. Let's say
older adolescents, rather than age, would be able to give an
informed consent.
Q What about the younger adolescents?
A There again, it depends on the child, doesn’t it?
Q Well, for the younger adolescent what did you say that
as a class younger adolescents could not give an informed con-
sent to a tubal ligation?
A Asa class — I would think that tubal ligation is some-
thing we do not do for young adolescents. It is wholly out of
my medical experience to even consider doing a tubal ligation
under a local.
Q I am talking about the ability to appreciate the pro-
cedure, whether it should be done or not. Is it your judgment
that younger adolescents as a class could give informed con-
sent to that procedure?
A_ No better than they could a hysterectomy, which is not
done. We do not challenge them with the necessity to decide
these types of operations. These are elective operations. One
75
does not even bring them into the problem of the younger
adolescent.
Q_ In your medical experience is sterility a possible conse-
quence of an abortion?
A Oh, no.
Q You would not say that?
[38] A Oh, no, certainly not.
Q If it is done badly?
A Well, if you get an infection, I suppose, this complica-
tion, which is rare, I suppose this might have some bearing on
some possible sterility, but in general that is not the case.
Q It is not?
A It is very rare.
Q It is very rare?
A Right.
Q Well, in a situation where it is rare and that conse-
quence exists, are you saying younger adolescents as a class can
nonetheless consent to a procedure where that is a very real
consequence?
A Ofcourse. That is something one talks about when one
talks to an adolescent beforehand or the surrogate.
Q Doctor, do you have personal views relative to State
regulation of abortion?
A To the State regulation of abortion?
Q Yes.
A Could you help me as to what you mean by State regu-
lation?
Q State statutes that govern the particular procedure.
A_ As I said before, I feel that that decision has to be a
medical decision, that no legislator in the State House [39] can
decide whether this particular individual carries a greater risk
in carrying through the pregnancy than the minor risk in
abortion. I don’t see how a law can make this decision. It
must be the physician's challenge.
76 ae
MR. BEHAR: I have no further questions.
CROSS-EXAMINATION BY MR. REYNOLDS
Q Doctor —
MR. LUCAS: We have not been able to find any appear-
ance for Mr. Reynolds in the record. He has not signed any
of the pleadings. I would like that clarified.
MR. REYNOLDS: I think the docket will show that my
appearance is in. I met my brother on the occasion of taking
a deposition.
JUDGE ALDRICH: Well, if you haven't, then it can be
rectified later.
MR. REYNOLDS: Thank you, Your Honor.
Q (By Mr. Reynolds) Good morning, Dr. Sturgis. I am
referring. Dr. Sturgis, to what has been marked here as Ex-
hibit 4, which you identified as a statement submitted to the
Executive Board of the A.C.O.G. You participated, as I un-
derstand it, in the formulation of this document; is that so?
A Correct.
Q The only date I see on the document is April of 1972.
[40] Was the document submitted to the Executive Board at
or about that particular time?
A_ I would guess so.
Q Has the Executive Committee passed in any way upon
the document which was submitted for their consideration?
A They passed on it in this way, by giving it to their pub-
lication to be published in the bulletin. Whether it was the
next one or not I’m not sure, but that was their action in-
volved, if you wish, or approval of the Committee.
Q_ It is your understanding they did approve it?
77
A They approved of publishing it in the bulletin. As far
as 1 know, the next A.C.O.G. Executive Committee meeting
would have been in the spring of the next year.
Q You do not actually know whether they have accepted
this as a statement that they want to put out as a position by
the College?
A That is correct. I think I made that clear.
Q Doctor, at the time this was formulated, you were
talking about minors, you were talking about those who were
age 18, 19 and 20; isn’t that so?
A I dont recall. Did we say the ages?
Q I don't see any place —
A Indeed, I do remember. We very carefully did not
identify the minor by age because we got into a huge hassle in
the Committee that you could not say 15 was [41] different
from 14 or 17.
Q_ As part of your common knowledge, you knew at the
time you composed this paper that when you used the term
minors you were talking about people below the age of 21; is
that so?
A Yes.
Q Since that time, you know there has been a change in
the legislation here in the Commonwealth of Massachusetts?
A Yes.
Q. There has been indeed a change in many places across
the land?
A Right.
Q And people age 18, 19 and 20 are no longer considered
minors, are they?
A That is correct. ee
Q You do mention teenagers in this report, do you not?
A Yes.
Q It is correct that when you were formulating your
opinions here, you were particularly concerned with an-
78
nouncing what you considered to be the rights of people age
18, 19 and 20? They were more affected by what you were
saying than any other single group?
A That what I am saying here in this court —
Q Yes.
A I don't think we ever considered that, sir, because [42] I
was quite aware that you had to be under 18 these days to be
considered a minor.
Q At the time you wrote this, it was not 18?
A At the time we wrote this they were included as minors.
Q Didn't you take into account those young women who
were age 18, 19 and 20 specifically?
A They were included, although they were not —
Q Thank you very much, Doctor. That answers the
question.
Now, you say that in your practice, those that you are
associated with, it is part of your regular procedure to obtain
the consent — and I assume that is written consent of one
parent, is that so?
A Yes.
Q You have no particular quarrel with obtaining the
consent of one parent, do you?
A No.
Q. Asa matter of fact, you said, I think, in the vast major-
ity of cases you do obtain the consent of one parent; isn’t that
so?
A It happens to be so in our clinic, yes.
Q So far as you know, that is the generaily accepted
medical practice here in the Commonwealth, isn’t it?
A Iam not sure about that today because we set out policy
before the Supreme Court decision.
[43] Q I'm asking you, sir, about your knowledge of the
general medical practice here in the Commonwealth.
79
A_ I really haven't that much knowledge to give you.
Q There was one question about your affiliation, and you
said you were associated with a local university clinic. By
that you meant some clinic here in Suffolk County?
A No. It was a university health agency. I suppose you
could call it a clinic.
Q Physically located in Suffolk County?
A_ No, across the river.
Q If it is across the river, it is over in Middlesex County?
A Right.
Q With regard to surgical procedures on young women
under the age of 18, other than an abortion — I am not talk-
ing about an abortion — you must, I assume, in your practice
perform some surgical procedures on young women under that
age other than abortions, isn’t that so?
A Under local anesthesia, yes.
Q Isn't it true that in your practice you obtain a written
consent of a parent for that?
A Oh, I don’t think so. I can think of a paranythia
fingernail, or minor things.
Q_ Anything :nore significant than that?
A Even more significant than that, in the case of the uni-
versity health center that you mentioned that I work in [44]
many times a boil or something else has to be operated on and
the parents are on the other side of the continent.
And you can’t get in touch with them?
Yes, and you go ahead. |
That would be an emergency procedure?
Absolutely.
And it is relatively simple?
Under local anesthesia. We would not if it were general
anesthesia.
&> Or OPO
80
Q In your practice isn’t it so that hospitals in this area do
not remove tonsils or do not remove an appendix without the
written consent of a parent?
A_ Neither of those can be done under local anesthesia.
Q You do get the consent of a parent in those cases?
A Of course, because they need general anesthesia.
Q And whether it is because of that or not, you do, in
fact, get consent; isn’t that so?
A_ It goes with what I said. Any general anesthetic has the
consent of one parent.
Q Do you know of any situation where, other than where
a general anesthetic is used, it is not the customary procedure
to get the written consent of the parents?
A Let me see. The procedure that is —
Q A surgical procedure.
A A local procedure that does not need a parent's [45]
consent?
Q Iam talking about the accepted medical practice as you
know it.
A Would you give me another chance? Would you state it
again?
Q Surely. I am talking about general medical practice as
you know it, and I am talking about situations in which a
general anesthetic is not required. I am asking in those cir-
cumstances isn’t it the case that doctors and hospitals you
know of as a regular medical practice obtain the written
consent of a parent?
A No. I think frequently — at the Massachusetts General
where I worked for some time, oral consent over the telephone
=“,
was acceptable. ie
Q Oral consent over the phone?
A Yes.
Q But there is some communication with the parents or
there is at least an attempt?
81
A Well, if it was infected fingernail, I doubt it. It de-
pends on the severity of the surgery.
Q In your paper you refer to the time when the patient is
responsibly mature and adamant about not involving her
parents. I am zeroing in on this “responsibly mature”. You
mean by responsibly mature a financial consideration, do you
not, Doctor?
[46] A No. The married minor generally is considered
responsibly mature. Whether or not she is in the poverty
group, she is able to make a decision by law.
Q So you are talking about a female who is married and
below age 18. And would you call that person an emanci-
pated female?
A Yes.
Q Other than the emancipated female, a young woman
who is married below the age of 18, are you talking about
anybody else when you describe them as responsibly mature?
A Yes, because the marriage license really may not have
anything to do with your decision as to whether or not she is
an emancipated minor.
MR. REYNOLDS: I move that go out, Your Honor. It is
not responsive.
JUDGE ALDRICH: I couldn’t even hear what your ques-
tion was.
MR. REYNOLDS: I'm sorry it wasn’t heard. I would like
it to be heard. May I ask that the court reporter read it
back?
JUDGE ALDRICH: Yes.
| (The question is read.)
JUDGE ALDRICH: I think you can rephrase that a lot
simpler.
Q Doctor, I would like you to keep in mind for the
purpose of [47] this question that girls who are married are
out of the question.
82
I am asking you in consideration of your committee, when
you used the term “reponsibly mature”, who were you talking
about? What group of people?
A We were talking about the minor child again.
Q Did you put any parameters on the minor child in your
own group?
A Any age?
Q Well, whatever parameters you put on.
A We were talking about the youngster who seems to be
adult in her development.
Q No consideration at all as to whether they were age 11
or 22?
A Well, Mr. Reynolds, there are 22 year olds who are
retarded as much as 11 year olds. You can not say that age
makes a difference.
JUDGE FREEDMAN: Well, someone 22 is not a minor.
THE WITNESS: That is correct.
Q You said in your report of the committee that you were
seeking to establish useful guidelines for physicians, and that
you had in mind helping your patient as well as the physician
and the patient and her parents. What kind of things did you
have in mind that would be helpful to the patient and her
[48] parents in their relationship to the child?
A I think what we have commented before, that is, that if
the parent can be brought in to support the child in the deci-
sion, that may be helpful to them both.
Q And, as a matter of fact, you said not only would it or
might it be helpful, but you considered that to be helpful in
every situation or very nearly so; isn’t that the case?
A_ I can imagine it would be.
Q Doctor, you have said that abortion is a surgical pro-
cedure. Would you agree that it is an elective surgical pro-
cedure?
83
A_ Indeed, ves.
Q In the first trimester abortion situation, in the vast
majority of cases presented to you, they are not emergency
cases, are they?
A_ I would not say that because in our clinic we are getting
probably 30% in the over the ten weeks duration.
Q Over 30% are over ten weeks?
A Yes.
Q So that 70% are under ten weeks?
A Probably.
Q In the case of those 70%, whether you perform the
abortion today or tomorrow or Thursday, it is not going to
make any significant difference, is it?
A Not within days, but within weeks, yes.
Q Within a week?
[49] A I'm sorry. Is that a question?
Q Yes, sir.
A_ I didn’t hear it.
Q You said, as I understand it, that you should not go into
a period of weeks waiting on this, but you can wait a matter
of days.
A_ A day or two.
Q Would 72 hours be too much?
A The earlier it is done, the easier it is to do. You know
that.
Q No, sir, I do not. If somebody presents herself to you
and she is six to eight weeks pregnant, it doesn’t really matter
from the standpoint of morbidity or mortality or risk of any
form whether that is performed today or a week from now?
A It is a little easier the earlier it is done.
Q It is easier, but there is no substantial increase in the
risk factor, is there?
A Not substantial for a week difference.
84
Q Do you know of any statistics that support any increase
in the risk factor?
A There is a gradual increasing risk involved as the extent
of the pregnancy is increased.
Q But on or about the time the first trimester has passed,
before that time, that is considered a particularly safe area for
the performance of an abortion, isn’t that true?
[50] A_ It is safer than after the first trimester.
Q Doctor, you said in your statement, Exhibit 4, that the
people who participated in the preparation of the statement
were a committee of physicians and some behavioral scientists,
and a legal consultant. Would you identify for us, please,
who the legal consultant was that participated in this prepara-
tion?
A I’msorry. I do not have the list. I did not bring with
me the list of the Committee. I believe it was someone from
the American College of OB/GYN.
Q Maryland College?
A No, American College of Obstetrics and Gynecology. I
don’t remember the names.
Q How many served on this committee?
A About nine, I think, were on the committee.
Q How many of them were physicians?
A Approximately four, I think. The others were behavior-
al scientists, Ph.D.’s in behavioral science, and we had one or
two social workers also who were Ph.D. people and we had a
nurse or two.
Q Several times in the paper you mentioned the modifica-
tion in the law with respect to the treatment of those who
have drug abuse and that minors can now be treated for that.
A Without parental consent.
Q Without parental consent. You are aware, Doctor, that
in [51] those cases the financial responsibility of a parent is
removed?
A Surely.
85
Q You know that?
A This state and other states probably also provide this
service free.
Q In other words, under our statutes, when somebody is
found to be drug addicted, that determination requires a joint
determination by at least two physicians. That is one thing,
isn’t it?
A_ Iam glad to know that. I don’t know the wording of
the statute exactly. I would assume the physician would try
to get a parent in, just the same as for an abortion.
Q 1am talking about a specific statute. In that particular
framework, that particular area, that problem area, where
you have drug abuse, a minor is prohibited from rescinding a
contract. Did you know that?
A No.
Q. Are you aware of the fact minors in the Commonwealth
have the privilege of rescinding a contract?
MR. LUCAS: Objection to that. That is a legal question.
In the few cases we have run into, if medical treatment was a
necessity, a minor can contract. He is asking a question that
is improper because its foundation would not stand up under
Massachusetts law.
[52] JUDGE ALDRICH: It seems to me that all you are
calling for is the knowledge of the witness. To what extent it
may be relevant remains to be seen. He may answer.
A_ I am so naive legally. I don’t know what rescinding
what contract refers to. I’m sorry.
Q In other words, the ability of a minor to walk away
from a contract she has made.
A What contract she has made?
Q Any contract, a contract to have —
JUDGE ALDRICH: Counsel, I think you are getting far
afield. If you have something in mind, ask it.
86
MR. REYNOLDS: Yes, sir, I am asking about the statute
that deals with drug abuse.
JUDGE ALDRICH: And the relevancy escapes me. If you
want to ask him something about the statute, go ahead.
Q With regard to Chapter 112, Section 12P, which is what
we are talking about here, there is no provision for a minor to
rescind this contract, is there?
A This is a legal term. I don’t know what you are talking
about. I'm sorry. Rescinding a contract has to be defined.
JUDGE ALDRICH: It seems to me that this is a question
that could be put in much simpler language. [53] Both you
and your precedessor, if I may say so, have to make a speech
before they ask a question.
MR. REYNOLDS: I'm sorry, Your Honor. I did not mean
to do that.
Q In you paper you present the conclusion that there are
three particular serious problems coming out of early sexual
activity and that those problems affected the individual and
society. Isn’t that so?
a Pe.
Q And you meant by society — you had in mind the town
in which the girl lives, the community and the state, indeed?
I presume the community would probably be it.
How did you conceive society was affected?
That the community was affected?
Well, society.
I am just looking at my paragraph here.
Page 2.
Page 2, yes. Of course, it is perfectly clear that what
we were talking about was the possibility of venereal disease
increasing by early sexual experience and that this was clearly
a community hazard of difficulty, the emotional stress and
trauma.
> OF ODO
Eee
87
Q_ I gather you support the State’s interest and legislation
with respect to the treatment of venereal disease?
A The State is very helpful, but parental consent is not
[54] required, of course.
Q Later on in your paper you suggest that when a troubled
child comes to you and says she has this difficulty or she is
pregnant and wants to be aborted and she doesn’t want you to
tell her parents, you said oftentimes what she really wants is
for you to tell her parents, for the physician to tell her
parents; is that so?
A_ If she will give permission, that would be what I would
do, yes.
Q Your paper suggests that that is a real situation, that
physicians are not often asked to keep a confidence, and as
they explore it they found that really what the patient wants is
for the doctor to make the call to let the parents know.
A_ This can be one of the difficult things for a doctor to try
to keep in mind.
Q Has that happened to you in your own practice?
A I can’t give you chapter and verse, but I imagine so.
Q You would have no objection to playing the part of the
kindly informant to the parents, would you?
A_ I wouldn't do it if the child —
Q I am saying if you determined her position was that
actually she was asking you to make the information known.
A_ I wouldn't have the competence myself in knowing that
to be the case.
[55] Q Now, you have on Page 5 a situation where when
the physician judges that the girl who refuses to tell her
parents is incapable of making a considered decision — it
begins that way — you are saying that you do run into those
who are incapable of a decision up or down; isn’t that correct?
A Of course.
88
Q And you are saying that in that kind of situation your
view of the proper way to handle it is for the physician to step
in and to make a decision as to which way — which is best
done medically to treat this patient.
A That is not what is said here. The physician should
carefully select a medical colleague, a fully qualified and
responsible member, and so on, to share his decision.
Q Right. You would make a decision which is your
opinion best for the girl who is incapable of a decision, and
you would get support from a colleague with regard to the
decision that you would make?
A That is what I would recommend.
Q You might take a medical colleague or —
A —a social worker or a clergyman, or whoever.
Q How about a lawyer?
A A lawyer, if he was competent, in my opinion, to deal
with this situation.
Q When that kind of decision comes about, do you have in
mind the ramifications of the financial aspects of such a
[56] decision?
A Well, of course that must come into it.
Q Would it be your view that the physician would make
the decision in favor of the abortion, if a child is incapable of
a decision, and that the physician ought to shoulder the finan-
cial burden?
A I don’t think that follows. I think it is mentioned here
that appropriate action might be to bring in a social agency, a
family counselor or youth counseling service.
Q Suppose in that situation that the family is perfectly
capable of paying for the procedure?
A Well, I think that is one of the aspects that should not
interfere in the physician’s decision as to the medical care of
his patient.
89
Q And because you have a girl who is in your estimation
incapable of a decision, your view is that you should none-
theiess maintain her confidence and not discuss the condition
with her parents?
A Here again, I would want to talk this over with some-
one else.
Q The party who makes that decision then makes the
decision as to whom he would discuss the matter with?
A_ The physician makes that decision.
Q Would there be any record kept in your view of that?
A Probably. It may well be that the counselor — let's
[57] say the girl is mentally incapable of making a decision. It
may be that the counselor or the psychologist, or whoever it is,
would say, “ We have to tell the parents.” This would be the
decision to be made by them.
Q_ Let me present this situation to you. You have a girl
who is in your view incapable of a decision and she has asked
you to keep her confidence, and she is the daughter of a physi-
cian. Would that change your mind?
A Well, it would make it very difficult. I would think I
would want to get somebody else in on this situation.
Q Is there anything you know of in your practice as a
physician which would require the sanctity of confidentiality
between the doctor and his youthful patient?
A That would require that to violate that confidence?
Q Yes.
A I would think the incompetent patient, the mentally
retarded patient of a degree unable to make an informed con-
sent, would be one of those where one would have to violate,
let’s say, the confidentiality involved.
Q Is there any code in medicine that says in those cir-
cumstances a doctor is obliged to keep a confidence?
90
A It comes in the Hippocratic oath. I can not quote it
exactly, but “he shall not give his patient’s confidence.” It
has been quite a while since I took the oath.
Q_ Is there anything in the Hippocratic oath with regard to
the [58] surgical procedure of aborting or abortion?
A Yes, I think so.
Q Does it prohibit it?
A I can’t quote it, but in those days, it was considered
probably a moral situation to abort a woman.
MR. LUCAS: This is discussed fully in the Supreme Court
decision, the Hippocratic oath.
MR. REYNOLDS: Thank you. I have no further ques-
tions.
MR. LUCAS: I will try to keep the re-direct very brief.
RE-DIRECT EXAMINATION BY MR. LUCAS
Q Doctor, I believe you testified that at the clinic you are
associated with they require the consent of one parent nor-
mally?
A Yes.
Q Would it complicate matters to require the consent of
both parents?
A Yes.
Q In what way would this complicate matters?
A Too often the parents may not be living at the same
place. Too often the parents may be in conflict, where the
child is closely related to one parent but not the other, and
when to insist on telling the other parent may serve [59] to
cause considerable marital conflict.
Q_ In your experience in dealing with minors, how many of
the parents are trained gynecologists?
9]
A Very few.
Q How many are trained psychiatrists?
A Parents?
Q Yes.
A Very few.
Q Do many of them have any training in counseling or
dealing with the problems of minors?
A Generally not.
Q Do you have any knowledge of the number of patients
who call the clinic you are associated with to find out about
the parental consent requirement and then go elsewhere?
A That might be a good many. We only —
MR. REYNOLDS: Objection. I don’t think it is respon-
sive. May I have the question and answer read?
JUDGE ALDRICH: Yes.
(The question and answer is read.)
MR. REYNOLDS: I defer to Mr. Duffey. That is not
what I heard.
JUDGE ALDRICH: Go ahead, Doctor.
THE WITNESS: Yes, I am sure there are a good many.
I can’t give you the numbers though.
[60] Q I believe you testified an abortion was considered
as a surgical procedure. It is considered a minor surgical
procedure or a major surgical procedure?
A Minor procedure.
Q Is it one of the most minor surgical procedures in the
ACOG characterization of surgical procedure?
A That is correct.
MR. REYNOLDS: I object. He is leading the witness
with regard to that.
JUDGE ALDRICH: It is leading.
Q Do minors ever seek out tubal ligations?
92
A No. I have never known any minors to ask for this.
Q Have you ever known of a minor to seek a hysterec-
tomy?
A No.
Q Does the delay of a week for a minor who is pregnant
affect her emotional condition at all? Does it increase or
decrease anxietyr
A_I think it obviously does. Most minors find the waiting
period even of a day or two or three a period of extreme stress.
In the minor, the underdeveloped minor, this is a very difficult
time for them to go through from a mental point of view.
Q There were some questions asked you concerning an
agreement with local hospitals. Is it your experience that
emergency rooms accept persons coming there with [61]
emergencies with or without a written agreement?
A Indeed, yes. We have had a few complications. They
have been taken care of by a hospital that has no written
agreement with our clinic.
Q Is abortion sometimes characterized as a medical as
opposed to a surgical procedure?
A Medical rather than surgical?
Q Yes.
A There are being developed medical ways of carrying out
an abortion, but they are not generally done now.
Q Does a first trimester vacuum abortion involve any
cutting on the patient at all?
A No.
Q Have you had any experience, other than with coun-
selors, paramedical personnel, being utilized in abortion
clinics?
A_ I have had no personal experience.
Q Do you know of any instances of family doctors inform-
ing parents of a pregnancy when the minor did not want the
parents to be informed and breaching their confidence?
93
A_ I am sure that could happen. I don’t know of any
specific time but I could imagine that it could happen.
MR. LUCAS: I have no further questions. Thank you
very much.
[62] RE-CROSS EXAMINATION BY MR. BEHAR
Q 1 just have a few questions. What is it, Doctor, about
general anesthesia that requires parental consent?
A It is that general anesthesia involves a whole lot of new
and much more «vere risk to the patient, no matter for what
it is done, even if it is done for a minor tonsillectomy, still the
knocking out of the conscious and the complications of general
anesthesia demands consent.
Q Well, the fact that anesthesia is a consideration — that
does not go to the ability of the patient to understand what is
going on, does it?
A No.
Q The fact that you are using anesthesiz has absolutely
nothing to do with the ability, emotionally or intellectually, of
the patient to understand what is going to happen to him or
her?
A Would you characterize what you mean by anesthesia,
whether general or local anesthesia?
Q I am talking about general anesthesia. The fact that
general anesthesia is being used does not really relate to the
ability — or are you saying that it does not relate to the
ability of the patient to understand emotionally and intellec-
tually what is about to happen to him or her?
A_ I think the answer to your question is it does not make
any difference.
94
[63] Q Well, the mere fact a surgical procedure involves
general anesthesia, that does not require or that should not be
the determining factor whether the parents should be in-
volved?
A Well, it is the determining factor, Mr. Behar. If a
general anesthesia is going to be used, then it is necessary to
have the parents’ consent.
Q Is there something about the use of general anesthesia
that makes it impossible for a minor to understand what the
procedure is all about?
A Oh, no.
Q. So it is just arbitrarily done this way?
A The parental consent for general anesthesia has been
developed over the years, I suppose, as a policy, for hospitals,
and so on, to insist on this.
Q In the situation where you have a minor who can not
make up her mind, and that is the situation you treat in your
statement, it is going to take some time to counsel that minor,
isn’t it?
A It may take some time.
Q_ It may take a few days?
A Probably not, no.
Q You could just reach a decision right off the bat?
A No. I think you could probably find a counselor readily
available to come in that day and help the child make up her
mind.
[64] Q You don't think it is a good idea to have the minor
think it over?
A Well, it may be an hour or two hours or it may be a
day.
Q_ And there would be delay in that situation?
A We have already covered the delay situation.
Q_ The delay is going to be beneficial to the minor in that
situation because it is going to give her a chance to think
things out?
95
A_ I think also, as I said before, it is an agonizing situation
if there is delay.
Q Does dilation and curettage involve cutting of the
patient?
A No.
MR. BEHAR: I have no further questions.
MR. REYNOLDS: No questions.
RE-DIRECT EXAMINATION BY MR. LUCAS
Q When you have minors coming in that have the par-
ents’ consent, under 18, do you find the minors themselves
understand the procedure and give an informed consent?
A_ I think in general, yes.
Q_ So they could give an informed consent with or without
their parents?
A Indeed. Mostly that is the case.
MR. LUCAS: Thank you.
[65] JUDGE ALDRICH: We will take a short recess.
(Recess)
MR. BEHAR: Dr. Hodgson, please.
MR. RILEY: Your Honor, is it permissible for the members
of the Massachusetts Bar to sit within the bar enclosure?
JUDGE ALDRICH: Yes.
JANE E. HODGSON (RECALLED)
CROSS-EXAMINATION BY MR. BEHAR
Q Would you restate your name for the record?
A Jane E. Hodgson.
96
QO Where do you live?
A 1537 North Fisk Street, St. Paul, Minnesota.
Q You indicated that you were associated with Pre-Term,
Washington?
A Right.
Q What years were your association?
A From March of 1972 to December of 1973.
Q Were you paid a salary by F. 2-Term?
A Yes.
Q. Are babies delivered there?
A No.
Q Was your association with Pre-Term following the court
case in Minnesota that your attorney referred to at the [66]
earlier hearing?
A Yes.
Q You indicated that you are a counsulter with two free-
standing clinics in Massachusetts; is that correct?
A Yes.
JUDGE JULIAN: What kind of clinics?
JUDGE BEHAR: Free-standing clinics?
JUDGE JULIAN: Do we have a definition?
MR. BEHAR: I believe it is just a term that is used to
show it is independent of a hospital. There are some clinics
associated with a hospital.
JUDGE JULIAN: Very well.
Q Do you have any objection to identifying them for the
record?
A_ I don’t know of any reason. Pre-Term of Boston and
Charles Circle Clinic.
Q These are both licensed by Massachusetts?
A Yes.
Q Were you paid a salary for your consulting work?
A Yes.
97
Q During the time that you left Minnesota, your sole
source of income was with clinics that performed abortions?
A Well, no, not entirely.
Q Could you amplify?
A I had a private practice for 25 years prior to leaving
Minnesota and obviously some of my income still came from
[67] my private practice.
Q But the current work you were doing was solely in the
clinic connection:
A That is right.
Q Do you know what an abortion center is?
A No, I don't believe I do.
Q When you use the term abortion, which trimester of
pregnancy do you refer to?
AI usually specify first or second trimester.
Q Your attorney asked you a number of questions and you
used just the word abortion when you responded to those
questions.
A Well, the majority of abortions are first trimester. If
there is any reason to specify, I would do so.
Q Were the various opinions you gave this Court at the
prior hearing limited solely to first trimester abortions?
A_ If I did not specify, they would be, yes.
Q Thank you. You indicated that you have had experi-
ence —
A May I correct that?
Q Yes.
A When I arm speaking of abortion in the broad sense, it
may well have included mid trimester also in discussing abor-
tion as an issue. I think it would depend entirely on my
usage, on the particular sentence. I might have used abortion
in a general sense and neglected to have specified both first
and second trimester.
98
[68] Q But generally when you used the term you were
referring to first trimester?
A_ I would say generally, yes.
Q You indicated that you had experience and training in
both the medical and psychological aspects of abortion; is that
correct?
A Yes. .
Q What medical aspects are involved in this training?
A Well, that is rather lengthy. I don’t know how much
detail you want me to go into. There are books written on it.
There are many, many aspects. It takes weeks, actually, of
training a physician in not only the technical aspects, the
indications for the procedure, the complications, the pre and
post-op care, the use of the equipment.
Q_ Regarding the complications, what are among the ones
you focus on in this training?
A The medical complications are really surprisingly few.
Most of the complications of the abortion procedure, and I am
referring to the first trimester, primarily are delayed in type.
In other words, they do not occur until two or three days
usually after the procedure. In a series of 10,000 which are
recorded, and it just appeared last month in the American
Journal of Obstetrics and Gynecology, we noticed the paucity
of complications occurring in the first 24 hours. The common
complications are hemorrhage, [69] infection and retention of
tissue. The incidence of perforation is the only medical com-
plication. That occurs on the average of less than one per
thousand.
Q. That was in your study?
A Right.
Q Isn't it a fact, Doctor, that there are other studies which
indicate that those complications are very considerably higher?
A I don't think there are any that are a qualified study.
99
Q You, yourself, in the report you are talking about re-
ferred to an Australian study.
A That was the purpose of my writing the article — to
refute the Australian study because it was so poorly done.
Q So your purpose in doing your study was —
A — to rectify the misinformation.
Q You would not want it though that an abortion was a
complicated procedure, would you?
A_ I would like to have the medical profession know the
truth about the abortion procedure because it is still a relative-
ly new procedure and it is important that the scientific facts
be assembled and be published.
Q You are not questioning the truth of the Australian
study? You are not questioning the integrity of the people
who made it, are you?
A Possibly.
Q Isn't it a fact, Doctor, that the reason for your study
was [70] to further your own pro-abortion views and try to
minimize the complications that attach to this procedure?
A No. I wanted to point out to the profession the hazards,
and there are some, and the risks which really do exist. For
example, if I may give you one, many of the regulations that
were being set up were requiring the provision of blood facili-
ties so that transfusions could be given to these girls, if neces-
sary.
Well, our study revealed in 10,000 cases there were only
three transfusions that were required and none of these were
given during the first 24 hours, and a subsequent study, in
which we reviewed 20,000 cases, pointed out the same fact,
that it would be superfluous to require transfusion facilities in
an out-patient clinic of this type because while it could occur,
it was unlikely.
Q_ As to the complications, Doctor, you spoke of, do you
regard these as being more likely in a younger woman?
100
A The risks are higher in the younger woman as a rule.
May I add something to that?
QI believe you have answered the question.
JUDGE ALDRICH: No, I don't think so.
A The risk of an abortion procedure increases with the
parity of the woman regardless of her age. Parity is the
number of pregnancies she has had. This is regardless of her
age. That is one big factor. So that from that point [71] of
view the young woman would have less risk.
However, the young, undeveloped uterus is harder to dilate.
It is a harder procedure. The patients are perhaps not as
cooperative. So that on the whole, the risks are higher.
Q Does the term morbidity mean anything to you in the
context of abortion?
A Yes.
Q Does the term latent morbidity mean anythiag to you
in the context of abortion?
A No. I don’t know what you mean by that.
Q Would you explain what you mean by morbidity?
A Morbidity refers to infection, fever, the after-effects of a
surgical procedure. Generally, it implies fever.
Q_ The complications that you spoke of, do any of those in
your experience or from your own training and the literature,
do any of those lead to sterility?
A No. They can, but very rarely, no more than a full-
term pregnancy would.
Q But the risk is there?
A The risk is always there. Just living —
Q With regard to counseling, is there any special training
that you imparted to the physicians you instructed?
A_ I hope that I did by example.
Q For example, did you recommend counseling be done
[72] individually?
A It was done individually.
101
Q In your experience and training, would individual coun-
seling be good medical practice as opposed to group counsel-
ing?
A It has been shown in recent studies that the teenage
group responds better to group counseling because of peer
pressure being so important in this age group.
Q You mean teenagers being counseled together?
A Yes.
Q You don’t mean teenagers and adults?
A No, I mean teenagers. We did have an interesting
study at Pre-Term, Washington. We tried to isolate groups of
girls under 16 and they had both individual and group coun-
seling and this was very effective.
Q You had both?
A We had both, right.
Q_ In your judgment, would it be good medical practice to
have the group counseling done without any differentiation as
to age, the wide spectrum of age?
A No. Women over 20 respond better to individual coun-
seling. That has been shown fairly conclusively.
Q So in your judgment, it would be inappropriate to have
a group of both minors and adults?
A Do you mean in the same group?
Q In the same group.
[73] A Yes. I think it would be quite appropriate.
Q You indicated, I believe, on direct examination that it is
appropriate for the psychiatrist to play an active day-to-day
role in clinic counseling; is that correct?
A It is desirable. It is not always practicable. There are
not psychiatrists out in every little town all over the country,
but if it is feasible, it is certainly desirable.
Q Why is it desirable?
A Because in any group of patients, you are going to have
psychiatric problems where one needs more specialized help.
102
However, a very interesting study has just been published
which shows that there is a higher group of psychiatric prob-
lems among the teenage pregnancies that elected to go ahead
with their pregnancies than in the aborter group.
Q Yet there are psychological problems that existed in the
aborter group?
A Yes. A comparison was recently made from Houston by
Dr. Kane.
MR. BEHAR: I object to this.
JUDGE ALDRICH: All right, excluded.
Q In your judgment, should a pregnancy be terminated
only for medical reasons?
A One would have to define medical reasons. By medical,
if you include emotional, paychiatric, mental [74] well-being,
I would say yes.
Q_ In other words, the mere fact that a woman or a minor
is pregnant not in and of itself does not mean the pregnancy
should be terminated?
MR. LUCAS: I object to this. This is foreclosed by the
Supreme Court decision in Roe v. Wade.
JUDGE ALDRICH: You may answer.
A Obvioulsy not. Many of these patients wish to continue
their pregnancy and are encouraged to do so.
Q Is the situation now in medical practice that if a mi
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