# Appendix — Bellotti v. Baird > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1603%3A04 ## Record - **Collection:** Supreme Court brief - **Document type:** Appendix - **Published:** January 1, 1979 - **Citation:** 443 U.S. 622 ## Text 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 u [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385005_1603%3A04. Public record. Not legal advice.