Amicus Curiae Brief — Hodgson v. Minnesota

#j, Supreme Court, U.S. |

= FILED

| SE@ 29 1989

SUPREME COURT OF THE UNITED § \

/ ‘ ™ > —

October Term, 1960

A an

7 \

NO. 8824125 and NO. 88-1309

HODGSON, et al.,

Petitioners,

v,

MINNESOTA, et al.,

Respondents.

MINNESOTA, et al..

Cross-Petitioners,

v.

HODGSON, et al..

Respondents.

On Writ of Certiorari to the United States

Court of Appeals for the Eighth Circuit

BRIEF OF MEMBERS OF THE GENERAL

ASSEMBLY OF THE COMMONWEALTH OF

PENNSYLVANIA, AS AMICI CURIAE IN

SUPPORT OF THE STATE OF MINNESOTA

*Maura K. Quinlan

Philip J. Murren

BALL, SKELLY, MURREN & CONNELL

511 North Second Street

P. O. Box 1108

Harrisburg, PA 17108

(717) 232-8731

Counsel for Amici Curiae

September 29, 1989 *Counsel of Record

PACKARD PRESS / LEGAL DIVISION, 1617 JFK BOULEVARD, PHILA, PA 19103 (215) 563-9000

I. MINNESOTA'S PARENTAL NOTICE STAT-

UTE IS CONSTITUTIONAL UNDER ROE V.

WADE AND SUBSEQUENT DECISIONS OF

B. A Requirement of Parental Notice is Constitu-

tional Because it Does Not Constitute an

“Undue Burden” on Abortion and is Rationally

Related to Legitimate State Interests....... ;

. Assuming, Arguendo, That a Requirement of

‘Parental Notice Does Constitute an “Undue

Burden” on Abortion, Thereby Triggering

Heightened Scrutiny, the Statute is Still Con-

stitutional Because it is Reasonably Related to

Il. THE COURT SHOULD REEXAMINE ROE V.

WADE AND OVERRULE IT

CONCLUSION

APPENDIX A

TABLE OF AUTHORITIES

Cases: | Page

A.C.O.G. v. Thornburgh, 656 F.Supp. 879 (E.D.Pa.

Pere ocecscteedeesanel 1

A.C.O.G. v. Thornburgh, 737 F.2d 283 (3d Cir. 1984) .. 17

Akron v. Akron Center for Reproductive Health, 462 U.S.

er 4, 8,9, 15

Bellotti v. Baird, 443 U.S. 622 (1979) ........ 1, 4, 7, 10, 12

Black & White Taxicab and Transfer Co. v. Brown &

Yellow Taxicab and Transfer Co., 276 U.S. 518

1 rr 18

Danforth v. Rodgers, 414 U.S. 1035 (1973). ............ 14

Doe v. Bolton, 410 U.S. 172 (1973) ........20......24.. 17

H.B. v. Wilkinson, 639 F.Supp. 952 (D.Utah 1986) ..... 14

H.L. v. Matheson, 450 U.S. 398 (1981) ......... 5, 7, 12, 13

Hartigan v. Zbaraz, 484 U.S. 171, 98 L.Ed.2d 478

(REBT). oc cccccccccccevesecescesenseaninannnEE 5, 7

Hodgson v. Minnesota, 853 F.2d 1452, 1455 (8th Cir.

BED on ccccccccccevcascess keene Netes 3

Hodgson v. Minnesota, 648 F.Supp. 756 (D.Minn. 1986). 13

Planned Parenthood v. Ashcroft, 462 U.S. 476 (1983). 4, 9, 13

Planned Parenthood v. Casey, 686 F.Supp. 1089 (E.D.Pa.

BOD wo ccccccccesccccecesssesuueun sane 2

Planned Parenthood v. Danforth, 428 U.S. 52 (1976) ... .6, 12

Preston v. Thermalito School District, et al., No. 89930

(Butte County, California Superior Court filed Mar.

24, 1986, refilled Dec. 15, 1986) .................. ll

Roe v. Wade, 410 U.S. 113 (1973) .................. passim

Swift v. Tyson, 16 Pet. 1 (1842) ...............--05- 17, 18

Thornburgh v. A.C.O.G., 476 U.S. 744 (1986) . 1, 5, 6, 8, 15

ite Oh ieee, i ee es ei nee ee 6. oe ead

TABLE OF AUTHORITIES — (Continued)

Cases: Page

Webster v. Reproductive Health Services, 492 U.S. __,

EE 14, 15

Statutes:

EG GGG arendiccesescccccceccecss 9

Other Sources:

Centers for Disease Control: Abortion Surveillance 1981,

SS 16, 17

Gardner, Scherier & Tester, Asserting Scientific Authority:

Cognitive Development and Adolescent Legal Rights,

American Psychologist (June, 1989) ............... 7

Nathanson, Aborting America (1979) .................. 16

Torres & Forrest, Why Do Women dave Abortions?, 20

Family Planning Perspectives 169 (1988). ......... 17

INTEREST OF THE AMICI CURIAE

Amici are members of the Pennsylvania General Assembly

whose names are listed in Appendix A hereto attached. They

represent members of both the House and Senate and both the

Democratic and Republican parties. Pennsylvania is one of

many states which have relied on the sincerity of this Court's

statements in Roe v. Wade, 410 U.S. 113 (1973), that the right

to abortion, as recognized therein, is not absolute and that the

states may regulate abortion in a manner which furthers their

important and legitimate interests.

In keeping with its duty to protect innocent life and

preserve maternal health, the General Assembly has grappled

with the abortion issue for the past sixteen years. It has been

difficult, however, for the General Assembly to comply with the

rulings of this Court regarding abortion, given the inherent

uncertainty regarding the contours of Roe under its existing

trimester framework. It also has been distressing to see the

General Assembly's motives for regulating abortion challenged

when it has consistently attempted to comply with this Court's

own prior rulings. See, e.g., Thornburgh v. American College of

Obstetricians and Gynecologists, 476 U.S. 744, 764 (1986).

In 1982, Pennsylvania enacted a law requiring parental

consent or judicial authorization prior to the performance of an

abortion upon a minor child. This law was crafted to comply with

this Court’s decision in Bellotti v. Baird, 443 U.S. 622

(1979)(Bellotti II). However, its enforcement was enjoined prior

to its operation on the ground that it did not expressly protect

the confidentiality of the judicial proceedings. A.C.O.G. v.

Thornburgh, 656 F.Supp. 879, 889 (E.D.Pa.1987). The General

Assembly, in 1988, enacted even more explicit language gov-

erning the judicial bypass proceedings. That statute, like its

predecessor, specifically provides that all court proceedings

“shall be confidential” and, in addition, provides that the court

which conducts the judicial proceedings “shall order a sealed

record of the pleadings, submissions, transcripts, exhibits, or-

ders, evidence and any other written material to be maintain-

ed.” Despite this express language, the district court also

l

2

enjoined enforcement of the new law; holding that it did not

guarantee absolute confidentiality since “[t]here is no assurance

that the minor’s petition will be sealed from the moment it is

filed.” Planned Parenthood v. Casey, 686 F. Supp. 1089

(E.D.Pa.1988). Amici have a substantial interest in preventing

such overly technical and rigid approaches by the lower courts

from frustrating the legitimate efforts of the Pennsylvania Gen-

eral Assembly to regulate in this area.

Amici, representing large constituencies in Pennsylvania,

also urge the Court to reexamine Roe and to overrule it so that

states may have greater flexibility in providing additional pro-

tections for pregnant women, pregnant minors, and unborn

children. A right, on the part of states, must be recognized to

deal with those interests according to values inherent in the

fabric and traditions of American constitutional law.

SUMMARY OF THE ARGUMENT

Minnesota law requires, with certain exceptions, that both

parents of a pregnant minor be notified 48 hours prior to the

performance of an abortion on their daughter. The Eighth

Circuit Court of Appeals held that prior decisions of this Court

required that Minnesota also provide for a judicial procedure

whereby the minor could avoid notification if she were found to

be mature or that an abortion was in her best interest. No prior

decision of this Court, however, requires a state to provide a

judicial alternative to parental notice. Moreover, when re-

viewed under the standards set forth in Roe and subsequent

decisions, Minnesota's statute is constitutional.

Amici respectfully urge this Court to determine and an-

nounce the proper benchmark by which statutes regulating

abortion should be judged so that state legislatures may be

guided by a clearly enunciated constitutional standard when

carrying out their duty to enact legislation in this sensitive and

difficult area. Amici believe this would best be accomplished by

reexamination and overruling of Roe v. Wade.

SS

3

ARGUMENT

I. MINNESOTA’S PARENTAL NOTICE STATUTE IS

CONSTITUTIONAL UNDER ROE wv. WADE AND

SUBSEQUENT DECISIONS OF THIS COURT.

Minnesota's law requires that both parents of a pregnant

minor be notified 48 hours prior to the performance of an

abortion upon her unless: (1) one of the parents cannot be

located through reasonably diligent efforts; (2) a medical emer-

gency exists and there is insufficient time to provide the

required notice; (3) the written consent of the parties required to

be notified already has been provided; or (4) the pregnant minor

declares that she is the victim of sexual abuse, neglect, or

physical abuse and has notified the proper authorities of that

fact. Minn.Stat. §144.343. Believing itself to be bound by prior

decisions of this Court, the Eighth Circuit held that Minnesota

could not require such notice unless it also provided for a

judicial procedure whereby the pregnant minor could avoid

notification altogether if she were found to be mature or that an

abortion was in her best interest. Hodgson v. Minnesota, 853

F.2d 1452, 1456-57 (8th Cir. 1988).

No prior decision of this Court, however, has held that a

judicial alternative is required in the context of a parental notice

requirement. Thus, that question remains open. Moreover, a

requirement of parental notice does not constitute an undue

burden on abortion and is rationally related to the state’s

legitimate interests in protecting the fundamental right of

parents to direct the upbringing of their children and in

protecting their children from making imprudent decisions

involving serious and irreversible consequences. Indeed, even if

a requirement of parental notice were considered to constitute

an “undue burden,” it would be constitutional because it

reasonably relates to the state’s compelling interests in protect-

ing parental rights, minor children and unborn children.

A. This Court has not Held that States Must Provide a

Judicial Alternative to Parental Notice.

4

A majority of this Court has held that the “relevant legal

standards with respect to parental-consent requirements are not

in dispute.” Planned Parenthood v. Ashcroft, 462 U.S. 476, 490

(1983) (emphasis added). A state wishing to require parental

consent prior to the performance of an abortion on a minor also

“must provide an alternative procedure whereby a pregnant

minor may demonstrate that she is sufficiently mature to make

the abortion decision herself or that, despite her immaturity, an

abortion would be in her best interests.” Akron v. Akron Center

for Reproductive Health, 462 U.S. 416, 439-440 (1983).!

A majority of this Court, however, has never held that a law

requiring parental notice must also provide a judicial alternative

to notice. The statutes at issue in Bellotti Il, Akron, and

Ashcroft all involved parental consent, where a veto power was

given to-parents, rather than parental notice which provides for

no such veto power.? Indeed, the Court specifically noted in

both Akron and Ashcroft that parental notice provisions were

not at issue.®

1. Amici recognize that prior decisions of the Court hold that parental

consent requirements are invalid without a bypass procedure. However, they

note that a majority of the present Court has never adopted: that position.

Given that the cases relied upon by plaintiffs throughout this litigation

involved parental consent and the standards articulated in that context, it

would be appropriate for this Court to reevaluate the continuing validity of

such decisions. If a minor has no constitutional right to obtain an abortion

without parental consent, she surely has no right to do so without parental

notification.

2. Although much of the plurality opinion of Justice Powell in Bellotti I]

appears to equate notice and consent provisions, it is clear that a majority of

that Court did not hold that notice and consent were equivalent. See, 443 U.S.

at 654 n.1 (Stevens, J., concurring in judgment, joined by Brennan, Marshall

and Blackmun, JJ.) (“Neither Danforth nor this case determines the constitu-

tionality of a statute which does no more than require notice to the parents,

without affording them or any other third party an absolute veto.”) Id. at

651-52 (Rehnquist, J., concurring); Id. at 656-57 (White, J., dissenting)

(continuing to hold his views expressed in Danforth).

3. In Akron, the Court stated: “The Court of Appeals upheld

§1870.05(A)’s notification requirement . . . . The validity of this ruling has not

been challenged in this Court.” 462 U.S. at 439 n.29 (citation omitted). See

also, Akron, 462 U.S. at 469 n.12 (O'Connor, J., dissenting). Also, in Ashcroft,

5

H.L. v. Matheson, 450 U.S. 398 (1981), was the only case in

which the constitutionality of a statute requiring parental notice

rather than consent was before the full Court.‘ In that case, the

Court expressly declined to rule on the question of whether a

judicial alternative is necessary in the context of parental

notice.5

Since no decision of the Court has held that a judicial

alternative to parental notice is constitutionally mandated, that

question remains open.

B. A Requirement of Parental Notice is Constitutional

Because it Does Not Constitute an “Undue Burden” on

Abortion and is Rationally Related to Legitimate State

Interests.

In Thornburgh v. American College of Obstetricians and

Gynecologists, 476 U.S. 747 (1986), Justice O’Connor restated

the standard under which abortion laws should be reviewed:

Under this Court’s fundamental-rights jurisprudence, judi-

cial scrutiny of state regulation of abortion should be limited

to whether the state law bears a rational relationship to

the Court stated: “The lower courts found that §188.028’s notice requirement

was unconstitutional. The State has not sought review of that judgment here.

Thus, in the posture in which it appears before this Court for review, §188.028

contains no requirement for parental notification.” 462 U.S. at 491 n.17

(citations omitted).

4. Although Hartigan v. Zbaraz, 484 U.S. 171, 98 L.Ed.2d 478 (1987)

involved the Illinois parental notice statute, the Court only affirmed the

judgment below by an equally divided vote.

5. “Members of the particular class now before us in this case have no

constitutional right to notify a court in lieu of notifying their parents. This case

does not require us to decide in what circumstances a state must provide

alternatives to parental notification.” 450 U.S. at 413, n.22 (citation omitted).

See also, Matheson, 450 U.S. at 414 (Powell, J., concurring) (“I join the

opinion of the Court on the understanding that it leaves open the question

whether §76-7-304(2) unconstitutionally burdens the right of a mature minor or

a minor whose best interest would not be served by parental notification.”)

(emphasis added); Id. at 420-421 (Stevens, J., concurring) (Court should have

addressed the question of whether a State may require notification of all minor

women regardless of their maturity and should have held that it may require

such notice).

6

legitimate purposes such as the advancement of [the state’s]

compelling interest . . . An undue burden will generally be

found “in situations involving absolute obstacles or severe

limitations on the abortion decision,” not wherever a state

regulation “may ‘inhibit’ abortions to some degree.”

Thornburgh, 476 U.S. at 828 (internal citations omitted).

There is a fundamental difference between a statute which

requires parental consent prior to the performance of an abor-

tion on a minor and one which requires only that parents be

notified prior to the abortion. This Court has viewed a require-

ment of consent as granting to parents “an absolute, and possibly

arbitrary;-yeto over the decision of the physician and his patient

to terminate the patient's pregnancy, regardless of the reason for

withholding the consent.” Planned Parenthood v. Danforth, 428

U.S. at 74.® In contrast, a notice requirement grants no veto

power to the parents whatsoever. Regardless of her parents’

wishes, the minor may obtain an abortion once her parents have

been notified. Thus, a requirement of parental notice does not

involve an “absolute obstacle” to or even a “severe limitation” on

abortion. Accordingly, it does not constitute an “undue

burden.””

Since a requirement of parental notice does not constitute

an “undue burden,” it need only rationally relate to the state's

legitimate interests. Minnesota has a legitimate and compelling

interest in protecting the rights of parents to counsel their

children on important decisions and in protecting minors “who

often lack the ability to make fully informed choices that take

account of both immediate and long-range consequences [of

6. Justice Stevens, however, argued persuasively in Danforth that a

parental consent requirement is justified by the state’s compelling interests.

428 U.S. at 102-105 (Stevens, J., dissenting).

7. The fact that the Minnesota law requires a 48-hour waiting period does

not alter this conclusion. The waiting period is designed to allow parents some

meaningful opportunity to consult with their daughters and merely postpones

the effectuation of the minor's decision. Should the parents disagree with a

decision to abort, they cannot prevent the minor from obtaining an abortion by

withholding their consent. Rather, at the conclusion of the waiting period, the

minor may effectuate her decision despite her parents wishes.

ee ee

7

their decisions],” from making imprudent decisions without the

benefit of their parents’ guidance. Bellotti Il, 443 U.S. at 640.

See also, Matheson, 450 U.S. at 421 (Stevens, J., concurring)

(the state’s interest is “fundamental and substantial.”) Requiring

that parents be notified prior to the performance of an abortion

upon their minor daughter and affording them an opportunity to

consult with her and advise her regarding the wisdom of

undergoing an abortion certainly furthers both of the state’s

interests.

Plaintiffs argue that there is no need for parental notice laws

and that such laws are not rationally related to the state’s interest

in assuring that a wise decision is made regarding the desirabil-

ity of abortion. They~base this claim, in part, upon expert

testimony from their witnesses, that by age 14 minors are

indistinguishable from adults in their capacity to make personal

decisions. Aside from the fact that such an assertion conflicts

with common sens and experience, it has been soundly criti-

cized in technical journals as overstating the premise. See

Gardner, Scherier & Tester, Asserting Scientific Authority:

Cognitive Development and Adolescent Legal Rights, American

Psychologist, 895-902 (June, 1989) (criticizing assertions of “fact”

regarding equivalence of decision-making skills of children and

adults in briefs filed in this Court in Hartigan v. Zbaraz).

Indeed, much of the plaintiffs’ expert testimony regarding

the maturity of minors to make the abortion decision without

parental involvement reflects a pro-abortion mentality — starting

from the premise that a decision to undergo an abortion

evidences maturity and that, a fortiori, a minor who desires an

abortion is mature: States must not be restricted to legislating in

a manner which relies upon such biased assumptions and “facts”

which are largely unprovable.

C. Assuming, Arguendo, that a Requirement of Parental

Notice Does Constitute an “Undue Burden” on Abortion,

Thereby Triggering Heightened Scrutiny, the Statute is

Still Constitutional Because it is Reasonably Related to

Compelling State Interests.

8

Heightened judicial scrutiny of state abortion regulations is,

as Justice O'Connor stated:

. reserved for instances in which the state has imposed an

“undue burden” on the abortion decision . . . And if a state

law does interfere with the abortion decision to an extent

that is unduly burdensome, so that it becomes “necessary to

apply an exacting standard of review,” the possibility

remains that the statute will withstand the stricter scrutiny.

Thornburgh, 476 U.S. at 828, O'Connor, J., dissenting.

The “stricter scrutiny” applied by this Court in abortion

cases, however, does not encompass the “narrowly drawn” test

traditionally applied to statutes involving fundamental rights. As

Justice O'Connor noted in Akron:

The Court has never required that state regulation that

burdens the abortion decision be “narrowly drawn” to

express only the relevant state interest. In Roe, the Court

mentioned “narrowly drawn” legislative enactments, 410

U.S. at 155, but the Court never actually adopted this

standard in the Roe analysis. In its decision today, the

Court fully endorses the Roe requirement that a burden-

some health regulation, or as the Court appears to call it, a

“significant obstacle,” (citation omitted) be “reasonably

related” to the state’s compelling interest.

Akron, 462 U.S. 416, 467-468, n.11.°

8. The Roe Court noted th « | © certain ‘fundamental rights’ are

involved, tne Court has held e © « «© limiting those rights may be

justified only by a ‘compelling & ‘eres « that legislative enactments must

be narrowly drawn to express oni | — imate state interests at stake.” 410

U.S. at 155 (citations omitted) (emphasis added). Although this passage of Roe

is often quoted as the appropriate standard of review for abortion legislation,

the Roe Court clearly did not adopt the “narrowly drawn” part of that test. The

above comment was made in the context of a review of the Court's approach

previously taken toward various privacy interests—i.e., marital intimacy,

marriage and contraceptives. After tracing the manner in which fundamental

rights grounded in privacy traditionally had been reviewed, the Court stated

that the fundamental right of privacy as it concerned abortion was inherently

different from those other fundamental rights. Id. at 159.

9

This “reasorableness” test was relied upon by the Court

throughout its 1983 decisions. For example, in Akron, the Court

stated:

[T]he state “may regulate the abortion procedure to the

extent that the regulation reasonably relates to the preser-

vation and protection of maternal health.” Roe, 410 U.S. at

163.

462 U.S. at 430-431 (emphasis added). Again, in Ashcroft, the

Court upheld the Missouri statute requiring that a second

physician be present during post-viable abortions because it

“reasonably further[ed] the State’s compelling interest in pro-

tecting the lives of viable fetuses.” 462 U.S. at 486.9

~e

The test ultimately adopted in Roe was an intermediate ne which reflects

the differences, noted by the Court, befWeen the right of privacy as it concerns

abortion and that right as it concerns other fundamental interests which do not

involve “potential life.” After noting that the state's interest in maternal health

becomes compelling at approximately the end of the first trimester, the Court

held that states could regulate abortions after that stage in pregnancy in a

manner that “reasonably relates to the preservation of maternal health.” Roe,

410 U.S. at 163 (emphasis added).

9. The Court upheld this requirement even for abortions performed by

dismemberment (D&E) when there was no possibility of fetal survival. Justice

Blackmun, in dissent, felt that the Court's relaxed and flexible approach was an

unjustified departure from “narrowly drawn” standards applied in other

privacy areas. Thus he stated:

When a D&E abortion is performed, the second physician can do nothing

that furthers the state’s compelling interest in protecting potential life.

His presence is superfluous . . . . Because the statute is not tailored to

protect the state's legitimate interest, I would hold it invalid.

Id. at 500. A majoriiy of the Ashcroft Court, however, rejected Justice

Blackmun’s reasoning and his application of a narrowly drawn approach to such

legislation. Instead, it applied the reasonableness test adopted in Roe and

reaffirmed in Akron.

[T}he state’s compelling interest in protecting the viable fetus justifies the

second physician requirement even though there may be the rare case

when a physician may think honestly that D&E is required for the

mother’s health. Legislation need not accommodate every conceivable

contingency.

Id. at 484 n.7 (emphasis added).

10

Moreover, it is clear that the “narrowly drawn” test has not

been applied in the context of statutes requiring parental

involvement. For example, in Bellotti 11, Justice Powell stated:

As [the Massachusetts law] provides for involvement of the

state superior court in minors’ abortion decisions, we

discuss the alternative procedure described in this text in

terms of judicial proceedings. We do not suggest, however,

that a state choosing to require parental consent could not

delegate the alternative procedure to a juvenile court or an

administrative agency or office. Indeed, much can be said

for employing procedures and a forum less formal than

those associated with a court of general jurisdiction.

443 U.S. at 643, n.22. Certainly, employment of “procedures

and a forum less formal than those associated with a court of

general jurisdiction” would be less restrictive than requiring

minors to pursue a judicial alternative to parental consent.

Although the Court recognized that such less restrictive alter-

natives -were available, it held that the states could impose the

more burdensome requirement of proceeding in a court of

general jurisdiction.

Thus, plaintiffs’ claim that a “parental involvement require-

ment, with or without a judicial bypass system, cannot be

sustained unless the state is able to prove that the statute is

necessary, narrowly tailored, and actually serving state interests

previously recognized as significant or compelling” (Petition for

Certiorari at 9 n.15) is unsupported by this Court's prior

decisions and must be rejected.

Assuming, arguendo, that a requirement of parental notice

does constitute an “undue burden,” it is still constitutional

under the above standerds. Parents have a fundamental consti-

tutional right to direct the upbringing of their children. Bellotti

Il, 443 U.S. at 637-639. It is virtually impossible for them to

exercise this right and fulfill their responsibilities regarding the

upbringing of their children when those children are spirited

away and convinced to have abortions without notifying their

—_

ll

parents.'° To hold that the Constitution requires a judicial

alternative to parental notice would effectively nullify the fun-

damental right of parents to have a guiding role in the upbring-

ing of their children. At a minimum, parents have a right to be

notified when their children are in stressful circumstances, faced

with decisions having irreversible and grave consequences, and

to offer them advice and guidance. Thus, the parental notice law

furthers the state’s compelling interest in protecting parental

rights.

The state also has a compelling interest in protecting

pregnant minors from the consequences of an incorrect abortion

decision. As has been noted several times by members of the

Court:

There can be little doubt that the state furthers a constitu-

tionally permissible end by encouraging an unmarried

pregnant minor to seek the help and advice of her parents

in making the very important decision whether or not to

bear a child. That is a grave decision, and a girl of tender

years, under emotional distress, may be ill equipped to

make it without mature advice and emotional support. It

seems unlikely that she will obtain adequate counsel and

10. A California case is illustrative of this concern. In Preston v.

Thermalito School District, et al., No. 89930 (Butte County, California

Superior Court filed Mar. 24, 1986, refiled Dec. 15, 1986), a junior high school

teacher, through a course of deceptive conduct, arranged for an abortion for a

14 year old immature and unemancipated minor student without notifying the

child’s parents, despite the fact that the mother had personally visited the

school principal to request that she, through a system of “daily reports,” be

kept apprised of all matters relating te her daughter.

The facts allege that despite the mother’s explicit plea to be so informed,

the daily reports were manipulated by the school in an effort to conceal the fact

that the minor had been excused frem school on several occasions relative to

the abortion. In addition, the teacher sent the mother a note seeking’

permission for the girl to babysit at the teacher's home, when in fact the

teacher planned to transport the minor to have the abortion.

The girl's mother did not learn of the deception and the abortion until four

davs later when summoned to the hospital emergency room where her minor

daughter was undergoing emergency surgery for post-abortion complications.

12

support from the attending physician at an abortion clinic,

where abortions for pregnant minors frequently take place.

Danforth, 428 U.S. at 91 (Stewart, J., concurring) (footnote

omitted); Bellotti Il, 443 U.S. at 621-22 (Powell, J.,).

It remains true that the vast majority of minors obtain

abortions in clinics where they are counseled, if at all, by those

who do not know them and, thus, have no reliable way of

judging what is in their best interest. In addition, the fact that

the salaries of clinic “counselors” are paid by the abortion clinic

which profits when they convince a minor to have an abortion

hardly ensures that they will be provided unbiased information.

Moreover, it is quite possible that many teenagers will

misjudge their parents’ reactions. As Justice Stevens noted in

Matheson:

If there is no parental-[notice] requirement, many minors

will submit to the abortion procedure without ever inform-

ing their parents. An assumption that the parental reaction

will be hostile, disparaging, or violent no doubt persuades

many children simply to bypass parental counsel which

would in fact be loving, supportive, and, indeed, for some

indispensable. It is unrealistic, in my judgment, to assume

that every parent-child relationship is either (a) so perfect

that communication and accord will take place routinely or

(b) so imperfect that the absence of communication reflects

the child’s correct prediction that the parent will . . . [act]

arbitrarily to further a selfish interest rather than the child's

interest. A state legislature may conclude that most parents

will be primarily interested in the welfare of their children,

and further, that the imposition of a parental-[notice]

requirement is an appropriate method of giving the parents

an opportunity to foster that welfare by helping a pregnant

distressed child to make and to implement a correct

decision.

450 U.S. at 423-424. Also, as Justice Stevens aptly noted:

The possibility that some parents will not react with

compassion and understanding upon being informed of

13

their daughter's predicament or that, even if they are

receptive, they will incorrectly advise her, does not under-

cut the legitimacy of the State’s attempt to establish a

procedure that will enhance the probability that a pregnant

young woman exercise as wisely as possible her right to

make the abortion decision.

Id. at 424.

Thus, states should not be forced to provide a bypass

procedure to the notification requirement. The record in this

case shows that some Minnesota judges simply “rubber stamp”

petitions of minors utilizing the bypass procedure. Hodgson v.

Minnesota, 648 F.Supp. 756 (D.Minn.1986). Contrary to plain-

tiffs’ assertions, however, this fact does not indicate that parental

notice laws serve no purpose. Instead, it demonstrates only that

the states are prevented from adequately furthering their inter-

ests in preserving parental rights and protecting minor children

when they are required to provide “rubber-stamp” bypass

procedures.

The Minnesota law reasonably relates to the State’s interest

in protecting pregnant minors by assuring that those who are

most likely to have the minor's best interests in mind—her

parents —are given the opportunity to provide her advice. This

protects the pregnant minor from being left to rely on whatever

information biased and unfamiliar clinic personnel wish to

provide.

Finally, the State has a legitimate and compelling interest

in protecting fetal life which exists throughout pregnancy.

Ashcroft, 462 U.S. at 505 (O'Connor, J., dissenting). The state

also has a compelling interest in preventing teen pregnancy —a

problem of seemingly runaway proportion. Prior to enforcement

of the Minnesota parental notice law, the number of teen

pregnancies and abortions had been steadily increasing. After

the law became effective, both the teen abortion rate and teen

pregnancy rate dropped substantially.'!! Thus, the Minnesota

11. In Minnesota, between 1980 (the last full year prior to enforcement

of the parental notice law) and 1984, (a time during which the law was in

effect), the number of abortions for teenagers under the age of 18 dropped

from 2,327 to 1,395—a decline of 40.1% — and the decline in the abortion rate

14

law has also furthered these state interests.

Il. THE COURT SHOULD REEXANMINE ROE V. WADE

AND OVERRULE IT.

In Webster v. Reproductive Health Service, five Justices of

this Court expressed the view that Roe’s trimester framework is

“unworkable,” “flawed,” and “problematic.” 106 L.Ed.2d at

435-36 (Rehnquist, C.J., joined by Kennedy, J. and White, J.);

Id. at 443 (O'Connor, J., concurring); Id. at 445 (Scalia, J.,

concurring). However, only Justice Scalia stated that he was

willing to reexamine Roe and overrule it explicitly. And, al-

though Justices Rehnquist, White and Kennedy would have

abandoned the Roe trimester framework in Webster, '? Justice

O'Connor did not feel it necessary to reject that framework

for this age group was 32.2%. Figures based on data contained in Reported

Induced Abortions, published yearly by the Minnesota Department of Health.

For the same time period and age group, the number of births dropped from

2,083 to 1,654—a decline of 18.6% —and the birthrate dropped statewide by

7.9%. Figures obtained from Minnesota Department of Health computer

printouts regarding births and female population size. Also during this time

period, the number of pregnancies (abortions plus births) for Minnesota teens

under age 18 dropped from 4,360 to 3,049—a decline of 30,1%—and the

pregnancy rate decreased 20.9%. Id.

Thus, not only does it appear that the parental notice law has reduced the

number of teen abortions, it also appears that the law has had a beneficial

impact on reducing the overall teen pregnancy rate. Indeed, that teens are

avoiding pregnancy altogether is also supported by the statements made by a

pregnant teen seeking an abortion in Utah. In response to a question from the

judge regarding whether she had attempted to prevent the pregnancy the

pregnant girl indicated that she had not since she thought she could easily

obtain an abortion without her parents learning about it. H.B. v. Wilkinson,

639 F.Supp. 952, 956 (D.Utah 1986). Presumably, this girl would have used

preventive measures or avoided sexual activity had she known, in advance,

that her parents would be notified in the event she became pregnant and

sought an abortion.

12. It should be noted that while Justice Rehnquist stated that Roe need

not be reevaluated because Missouri had chosen viability as the point at which

it wished to protect fetal life, that statement fails to recognize that Missouri

“chose” the point of viability to regulate on behalf of fetal life only because this

Court struck down its prior law which protected the unborn child throughout

pregnancy, in Danforth v. Rodgers, 414 U.S. 1035 (1973).

15

despite her continued belief that it “cannot be supported as a

legitimate or useful framework” and has “no justification in law

or logic.” Akron, 462 U.S. at 453, 459.

Amici urge the Court to abandon this piecemeal approach

because it effectively places the state legislatures in no-man’s-

land. Amici are required to attempt to divine the views of the

various Justices regarding the extent to which abortion is

tonstitutionally protected in order to enact legislation which will

protect unborn children to the fullest extent possible. This. of

course, is a very difficult task given the variety of opinions issued

in Webster.

Consequently, amici respectfully submit that the Court

should determine the prgper benchmark by which statutes

regulating abortion should be judged before evaluating the

constitutionality of those statutes. Such a determination would

be greatly preferable to the unpredictable course resulting from

the division of opinion in Webster.

The issue of abortion is divisive and hotly disputed in the

legislative arena as well as this Court. As Justice O'Connor

stated in Thornburgh, this Court’s abortion decisions “have

already worked a major distortion in the Court's constitutional

jurisprudence” and have had an “institutionally debilitating

effect” on the Court. Thornburgh, 476 U.S. at 814 (O'Connor,

J., dissenting). Amici submit that the absence of an identifiable

standard after Webster —thus requiring the state legislatures to

speculate about the scope of the “limited” nature of the right to

abort —will have a similar “institutionally debilitating effect”

upon the State General Assemblies.'

Without definite guidance from the Court regarding the

constitutional limits on their ability to enact legislation, the

states will be forced to address the issue with great uncertainty

again and again--to the potential detriment of other pressing

business. Given that the members of the General Assemblies of

the various states take an oath to uphold the Constitution, it is

13. Significantly, whenever the General Assembly is wrong in its assess-

ment, the Commonwealth may be penalized by having substantial awards of

attorneys’ fees assessed against it.

16

appropriate for this Court to declare whether the right of privacy

protected by the Constitution includes the right to obtain an

abortion. And, if the Constitution presently does not prohibit

states from protecting fetal life, the Court should make this

known to the states so that they may be allowed to regulate to

the fullest extent constitutionally permissible, if they so

choose. !4

14. Although only a few states would probably limit abortions to those

necessary to preserve a womans life, dire predictions abound of women dying

from “back alley” abortions. These predictions are simply unfounded. For

example, a leading member of the pre-Roe “abortion reform” movement, Dr.

Bernard N. Nathanson (co-founder of the National Abortion Rights Action

League), has admitted to nis organization’s knowing falsification of “back-alley”

abortion death statistics:

How many deaths were we talking about when abortion was illegal? In

N.A.R.A.L. we generally emphasized the drama of the individual case,

not the mass statistics, but when we spoke of the latter it was always

“5,000-10,000 deaths a year.” I confess that I knew the figures were totally

false, and I suppose the others did too if they stopped to think of it. But

in the ‘morality’ of our revolution, it was a useful figure, widely accepted,

so why go out of the way to correct it with F nest statistics? The overriding

concern was to get the laws eliminated, and anything within reason that

had to be done was permissible.

B.N. Nathanson, M.D., Aborting America, at 193 (1979).

In 1972 prior to Roe, 33 states prohibited abortions except where

necessary to preserve the life of the mother, while others permitted abortion

in various circumstances. The CDC report on induced abortions shows that

during 1972 (when medical technology was not as advanced as today) 24

women died from legal abortions while 39 died from illegal abortions. Centers

for Disease Control: Abortion Surveillance 1981, p. 51, Figure 8. It is unlikely

that, in the present political climate, 33 states will be able to pass legislation

limiting abortions to life-of-the-mother situations. But even if this many states

were to do so, with advances in medical care, it is exceedingly unlikely that

anywhere near 39 women would die of illegal abortions.

Moreover, in 1973, after Roe made abortion legal on demand, 25 women

died from legal abortions and 19 died from illegal abortions. Thus, legalizing

abortion on demand has had little impact on the number of maternal deaths

from abortion. Indeed, between 1973 and 1982 (the last year for which

statistics are available) while abortions have been legal on demand, almost four

times as many women have died from legal abortion as from illegal abortions.

Id.

17

At the core of the majority opinion in Roe there operates

the fundamental fallacy that state legislatures are constitution-

ally forbidden to provide significant legal protection for human

life at its most vulnerable stage. Yet it is state legislatures which

are expressly designed as fora for the resolution and continuing

adjustment of such difficult governmental questions. Roe’s dis-

regard for the judgment of state legislators casts this Court in the

role of deciding essentially legislative questions, and transfers

the burden of correcting “unwise” legislative judgments from

the electoral process to the federal courts. Not only does this

assumption of the legislative role sap the legitimacy of the

courts, it has failed to achieve the political stabilization of the

issue of abortion which was its evident purpose. Roe has only

served to postpone the achievement of that stabilization.

In an earlier time, Justice Holmes urged the prompt

correction of the fallacious premise of Swift v. Tyson, 16 Pet. 1

(1842):

[T]he fallacy has resulted in an unconstitutional assumption

of powers by the courts of the United States which no lapse

of time or respectable array of opinion should make us

hesitate to correct.

Meanwhile, unborn children die at a rate of 1.5 million per year--with

approximately 1%, or 15,000 per year (220,000 since Roe), being killed

between the 20th week of pregnancy and birth. Centers for Disease Control:

Abortion Surveillance 1981, p.iv, Summary Table. Such late-term abortions

must be allowed for any reason relevant to the “health” of the woman. Roe v.

Wade, 410 U.S. at 163. As defined in Doe v. Bolton, “health” is broad, indeed,

including emotional well-being and the woman's family situation. 410 U.S.

179, 192 (1973); A.C.O.G. v. Thornburgh, 737 F.2d 283, 299 (3rd Cir. 1984)

(the broad definition of “health” applies to abortions after viability as well as

before viability). Indeed, few late-term abortions are performed due to risk to

the physical health of the mother. A recent study indicated that 71% of the

women obtaining abortions after the 16th week of pregnancy did so because

they did not recognize that they were pregnant or had misjudged gestation.

Torres & Forrest, Why do Women Have Abortions?, 20 Family Planning

Perspectives 169, 174 (Table 4) (1988), Maternal health as a reason for

late-term abortion did not have sufficient statistical significance even to be

listed in the table. Id. And, the study states that women “were less likely to be

having a later abortion . . . if they were having health problems. . .” Id.

18

Black & White Taxicab and Transfer Co. v. Brown & Yellow

Taxicab and Transfer Co., 276 U.S. 518, 533 (1928).

What was at stake in the abandonment of the rule of federal

common law of Swift v. Tyson was primarily parameters of

federal-state relationships and rights of private property. Roe

has not only skewed legislative-judicial relationships, it has cost

the rights of over 20 million potential citizens to have any say at

all over their own life or death. The tragedy of Roe is certainly

manifest in the loss of human life it has occasioned, but it is also

manifest in the powerlessness to correct that situation which has

been enforced on the voting citizens of this nation.

CONCLUSION

For the foregoing reasons, amici curiae request that this

Court uphold Minnesota's parental notice law in its entirety and

reexamine and overrule Roe v. Wade so that the states may be

given greater flexibility to protect unborn human life.

Respectfully submitted,

*Maura K. Quinlan

Philip J. Murren

BALL, SKELLY, MURREN & CONNELL

511 North Second Street

P. O. Box 1108

Harrisburg, PA 17108

(717) 232-8731

Attorneys for Amici Curiae

*Counsel of Record

September 29, 1989

APPENDIX

i ED a a

APPENDIX A

THE AMICI CURIAE

The amici curiae consist of members of the General Assem-

bly of the Commonwealth of Pennsylvania, including the follow-

ing:

Senators: D. Michael Fisher (R) Allegheny; Edward Ww.

Helfrick (R) Westmoreland; J. William Lincoln (D) Fayette;

Robert J. Mellow (D) Lackawanna; Raphael J. Musto (D)

Luzerne; Terry L. Punt (R) Franklin; M. Joseph Rocks (R)

Philadelphia; Frank A. Salvatore (R) Philadelphia; John J.

Schumaker (R) Dauphin; William J. Stewart (D) Cambria.

House Members: John E. Barley (R) Lancaster; Fred

Belardi (D) Lackawanna; Robert E. Belfanti, Jr. (D) Nor-

thumberland; Jerry Birmelin (R) Wayne; Kevin Blaum (D)

Luzerne; Karl W. Boyes (R) Erie; Raymond Bunt, Jr. (R)

Montgomery; James M. Burd (R) Butler; Alvin C. Bush (R)

Lycoming; Thomas R. Caltagirone (D) Berks; Edgar A.

Carlson (R) Tioga; Gaynor Cawley (D) Lackawanna; Richard

J. Cessar (R) Allegheny; Mario J. Civero, Jr. (R) Delaware;

Nicholas A. Colafella (D) Beaver; Anthony L. Colaizzo (D)

Washington; Anthony M. DeLuca (Dy Allegheny; Thomas

W. Dempsey (R) Lycoming; Scott Dietterick (R) Luzerne;

Rudolph Dininni (R) Dauphin; Jim Distler (R) Elk; Bernard

J. Dombrowski (D) (Erie); Thomas J. Fee (D) Lawrence;

Patrick E. Fleagle (R) Franklin; A. Carville Foster (R) York;

Stephen F. Freind (R) Delaware; James J. Gallen (R) Berks;

Ron Gamble (D) Allegheny; Frank J. Gigliotti (D) Alleg-

heny; Leonard Q. Gruppo (R) Northampton; George C.

Hasay (R) Luzerne; Arthur D. Hershey (R) Chester; Stanley

J. Jarolin (D) Luzerne; Edwin G. Johnson (R) Blair; Ralph.

Kaiser (D) Allegheny; Ted V. Kondrich (R) Allegheny;

Gerard A. Kosinski (D) Philadetphia; Susan Laughlin (D)

Beaver; Dennis E. Leh (R) Berks; William R. Lloyd, Jr. (D)

A-l’

A-2

Somerset; Edward J. Lucyk (D) Schuylkill; Joseph Marko-

sek (D) Allegheny; Keith R. McCall (D) Carbon; Christo-

pher K. McNally (D) Allegheny; Emil Mrkonic (D) Alleg-

heny; Dennis M. O’Brien (R) Philadelphia; Richard D.

Olasz (D) Allegheny; John M. Perzel (R) Philadelphia;

Merle H. Phillips (R) Northumberland; Joseph R. Pitts (R)

Chester; Jere W. Schuler (R) Lancaster; Frank A. Serafini

(R) Lackawanna; Edward G. Stabeck (D) Lackawanna;

Thomas B. Stish (D) Luzerne; Jere L. Strittmatter (R)

Lancaster; Ted Stuban (D) Columbia; Leona G. Telek (R)

Cambria; Thomas M. Tigue (D) Luzerne; Fred A. Trello

(D) Allegheny; Peter R. Vroon (R) Chester; Christopher R.

Wogan (R) Philadelphia; Frank W. Yandrisevits (D) Nor-

thampton.

_