Amicus Curiae Brief — Hodgson v. Minnesota

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No. 88-1125 ~

No. 88-1309

In the

Supreme Court of the United States

OcrosBer Term, 1989

HODGSON, _Et AL.,

APPELLANTS AND CROSS APPELLEES,

MINNESOTA,

APPELLEES AND CROSS APPELLANTS.

On appeal from the United States Court of Appeals

for the Eighth Circuit

No. 88-805

OHIO,

APPELLANT,

AKRON CENTER FOR REPRODUCTIVE HEALTH,

APPELLEE.

“’n appeal from the United States Court of Appeals

for the Sixth Circuit

BRIEF AMICI CURIAE IN SUPPORT OF HODGSON

APPELLANTS AND AKRON APPELLEES BY

The Center for Population Options, et al.

(Complete list of amici curiae appears on first page)

Joun H. HeENN

(Counsel of Record)

NINA JOAN KIMBALL

Fo.ey, Hoac & E.Lior

One Post Office Square

Boston, Massachusetts 02109

(617) 482-1390

Blanchard Press, Inc., Boston, Mass. — Law Printers (617) 426-6690

te ee

— —

ee ae ee. ee ee se

The Center for Population Options

“Planned Parenthood League of Massachusetts, Inc.

Girls Clubs of America

Massachusetts Judicial Consent for Minors Lawyer Referral Panel

Mobilization for Youth Health Services, Inc.

United States Student Association

YWCA of Brooklyn

Students and Youth Against Racism

William Kassen, Comm. on Child Development Research & Public Policy

American Public Health Association

National Family Planning and Reproductive Health Association

Abortion Rights Mobilization

Abortion Rights Council

Choices Women’s Medical Center

Child Care Law Center

National Organization for Women

American Association of University Women

American Jewish Congress

National Council of Jewish Women

Women’s Law Project

Women’s Action Alliance, Inc.

National Gay & Lesbian Task Force

National Gay Rights Advocates

Lambda Legal Defense and Education Fund

National Council for Research on Women

Minority Prison Project

All-Peoples Congress

Women’s Bar Association of Massachusetts

California Women Lawyers

Women’s Bar Association of Illinois

Women Lawyers Association of Los Angeles

New York State Coalition Against Domestic Violence

Tucson Women’s Commission

New York Women in Criminal Justice

Missouri Women’s Network

Connecticut Women’s Education and Legal Fund, Inc.

Hawaii Women Lawyers

North Carolina Equity

San Francisco Women Lawyers Alliance

Queen’s Bench of the San Francisco Bay Area

Fresno Free College Foundation |

TABLE OF CONTENTS

Page

ESS TCO POTEET EETETTTE TS ii

Interest of Amici Curiae.......... 6.6606 l

EIST TET TT ETET EET TTT l

EP EEE ED cen enebcbocccccccosccccccecs: 4

I. A Decision By Tuis Courr To Take Away or Con-

STRAIN THE FUNDAMENTAL RicHt To CHoose WouLp

DevASTATE TEENAGE GIRIS ..................... 4

A. Teenage Pregnancy Is Almost Always Unin-

ee ee ccc ekcosccccecec: 5

B. Teenage Pregnancy and Childbearing Is Highly

Risky Physically and Psychologically for Teen-

age Girls and the Children They Bear ........ 6

C. Pregnant Teenagers, Teenage Mothers and

Their Families Are More Likely to Lose Educa-

tional and Economic Opportunities and To Be

Dependent Upon Public Support ........... 9

D. Teenage Girls Need Even More Privacy in

Matters of Sexuality Than Older Women and

Forced Parental Involvement Harms, Rather

Than Enhances, the Quality of Their Decision

Making in Matters of Reproductive Rights .... 12

Il. THe FUNDAMENTAL Ricut oF Minors To Exercise

Tuer Richt To CHoose SHoutp Nor Be Conopt-

TIONED ON PARENTAL Notice OR CONSENT, AND CER-

TAINLY Not WirHout A MEANINGFUL JUDICIAL OR

De ak ccc ceneeeecs 14

A. Parental Notification Laws and Parental Con-

sent Laws Are Functionally Equivalent Be-

cause They Cause the Same Harm, and Because

For Minors They Impose the Same Burden .... 15

B. Parental Notification or Consent Requirements

Are Unduly Burdensome and Fail in Operation

to Serve Their Intended Purposes............ 16

ii Table of Contents

Page

1. Parental Notification or Consent Require-

ments Do Not Protect Minors From Mak-

ing Immature Decisions ............... 16

2. Parental Notification or Consent Require-

ments Do Not Enhance Intrafamily Com-

GI 6b 6-6 ehxc écccdavaddesdeas: 18

3. Parental Notification or Consent Require-

ments Harm Pregnant Teenage Girls by

Delaying Their Abortion Choice ........ 19

4. The Requirement That, to Avoid a Court

Hearing, Both Parents Must Be Notified is

Unduly Burdensome and Contrary to the

State's Asserted Purposes in Many Family

SED Sc nabwout deuetacbsccsthcues 21

C. If Court Upholds Parental Notification, it Must

Preserve a Judicial or Other By-Pass to Protect

Minors’ Privacy Rights, and the By-Pass Must

Be Meaningful and Workable............... 22

1. By-Pass Must Be Preserved ............. 22

2. By-Pass Must Be Meaningful and Work-

RN Gakic cake va cdesddnllendetuseniel 23

Ss « c bue¥h cee kube bens ceuaunsdavusseeaad<s 27

TABLE OF AUTHORITIES

Cases:

Akron v. Akron Center for Reproductive Health, 462

ee a bc teudkecdeeebuneuneek ian 14, 17, 22

Akron Center for Reproductive Health v. Rosen, 633 F.

Supp. 1123 (N.D. Ohio 1986), aff'd, Akron Center for

Reproductive Health v. Slaby, 854 F.2d 852 (6th Cir.

1988), jurisdiction noted, 109 S.Ct. 3239 (1989) ... 25, 28

Baird v. Attorney Gen., 371 Mass. 741 (1977) .......... 23

Bellotti v. Baird, 443 U.S. 622 (1979).............. passim

Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417

DsCGhECaNKvert de> keeeeuleeseuduntbortena 26

Table of Contents iii

Page

Ex Parte Anonymous, 531 So.2d 901 (Ala. 1988) ........ 27

H.L. v. Matheson, 450 U.S. 398 (1981)................ 15

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

rev'd on legal grounds, 853 F.2d 1452 (8th Cir. 1988)

(en banc), cert. granted, 109 S.Ct. 3240 (1989) ... passim

In re T. W., 543 So.2d 837 (Fla. App. 5 Dist. 1989) ...... 26

Planned Parenthood of Central Missouri v. Danforth,

FC SEPT TTTTTTTITT ree Tee 14, 22

Planned Parenthood League of Massachusetts v. Bellotti,

868 F.2d 459 (Ist Cir. 1989)... 0... eee eee 26°

Roe v. Wade, 410 U.S. 113 (1973) ..............-.. 14,17

Superintendent of Belchertown State School v. Saikewicz,

TB Bian, THB oc ccc cece ccccccccccccccccess 26

Thornburgh v. American College of Obstetricians &

Gynecologists, 476 U.S. 747 (1986) .............. 14, 17

Webster v. Reproductive Health Servs., 109 S.Ct. 3040

ST hieahsebesctsiunciecadeeies 14

La. Rev. Stat. Ann. § 40:1299:35:5 (1989 Cum. Supp.) .. 25

1989 Me. Acts Ch. 573, § 2 ¥ (2), (3), (6) ........ 23, 25, 26

Mass. Gen. L. ch. 112 § 12F (1983 & 1989 Cum. Supp.).. 16

Mass. Gen. L. ch. 112 § 12S (1983 & 1989 Cum. Supp.).. 24

Minn. Stat. Ann. § 144.343(1)-(7) (1989) ........ 14, 16, 21

Nev. Rev. Stat. § 442.255.2(c) (1986 Supp.)............ 25

Ohio Rev. Code § 2151.85 (1988 Supp.) .............-. 14

Ohio Rev. Code § 2505.073 (1988 Supp.) .............. 14

Ohio Rev. Code § 2919.12 (1988 Supp.) ............... 14

Wis. Stat. § 146.78(5) (1989) ..... 6.66. 23

Wyo. Stat. § 35-6-118 (1989 Cum. Supp.) ............. 25

iv Table of Contents

Page

Other Authorities:

Adler & Dolcini, Psychological Issues in Abortion for

Adolescents, in Adolescent Abortion: Psychological and

Legal Issues 84 (Melton ed. 1986) .................. )

Adolescent Pregnancy and Childbearing — Rates, Trends

and Research Findings From the CPR- NICHD

Sc wnkibhcter ered sUeads ches sbceeewnsees 10, 11

Alan Guttmacher Institute, Teenage Pregnancy in the

ee van ucsccewaeenauenaa 2 oe

Alan Guttmacher Institute, Teenage Pregnancy: The

Problem That Hasn't Gone Away (1981).. 2, 3,5, 6,8, 20

American Psychological Association, Interdivisional

Committee on Adolescent Abortion, Adolescent Abor-

tion: Psychological and Legal Issues, 42 Am. Psycholo-

EE ake cdiuieedivdestbivaviseediete’s e+ y)

Baldwin & Cain, The Children of Teenage Parents, 12

Fam. Plan. Persp. 34 (1980)..............0 cee. 10

Binkin, Gold & Cates, Illegal Abortion Deaths in the

United States: Why Are They Still Occurring? 14 Fam.

Pe EY ian bacndsddgdwenciecbuawes 12

Blum, Resnick & Stark, The Impact of a Notification

Law on Adolescent Abortion Decision-Making, 77 Am.

J. Pub. Health 619 (1987).................... 3, 13, 18

Bracken & Kasl, Delay in Seeking Induced Abortion: A

Review and Theoretical Analysis, 121 Am. J. Obstet-

rics & Gynecology 1008 (1975) ...................5. 20

Cartoof & Klerman, Parental Consent for Abortion: Im-

pact of the Massachusetts Law, 76 Am. J. Pub. Health

SEE ay DOE REE ER mK rar 5, 6, 13, 18

Cates, Adolescent Abortions in the United States 1 J.

Adolescent Health Care 18 (1980).............. 7,9, 20

Cates & Grimes, Morbidity and Mortality of Abortion in

the United States, in Abortion and Sterilization: Med-

ical and Social Aspects 155 (Hodgson ed. 1981)... 7,17, 19

Cates, Schultz & Grimes, The Risks Associated With

Teenage Abortion, 309 N. Eng. J. Medicine 621 (1983) 7

Table of Contents Vv

Page

Clary, Minor Women Obtaining Abortions: A Study of

Parental Notification in a Metropolitan Area 72 Am.

a * eee 13, 15, 19

Center for Population Options [CPO], Estimates of Pub-

lic Costs for Teenage Childbearing (1986) ........... ll

CPO, Estimates of Public Costs for Teenage Childbear-

Rn é 6eeewndhe us eEbhesehonhwe detune anus li

CPO, 1988 Repart: Estimates of Public Cost for Teenage

Childbearing in 1987 (1988).................445. 2,11

CPO, The Facts: Teenage Childbearing, Education, and

I ice ie ubednyscdévensws 2,10, 11

CPO, The Facts: Teenage Sexuality, Pregnancy, and

oc oe bis ssid een bewcheueeedte 4

David, Abortion Obtained and Denied: Psychosocial

Risks, Statement prepared for presentation to the Sub-

committee on Human Resources and Intergovernmen-

tal Relations of the Committee on Government Opera-

tions of the U.S. House of Representatives (Mar.

tot elle dn ces Swadel beehenditedds ll

Donovan, Judging Teenagers: How Minors Fare When

They Seek Court-Authorized Abortions, 15 Fam. Plan.

a iin Gono biSnc'Cisscerocssennnes: 13

Henshaw, Characteristics of U.S. Women Having Abor-

tions, 1982-1983, 19 Fam. Plan. Persp. 5 (1987) ...... 2

Hofferth, Contraceptive Decisionmaking Among Adoles-

cents, in Risking the Future: Adolescent Sexuality,

Pregnancy, and Childbearing, Vol. U1. (Hofferth &

6 5 e i ee debe n eiedenenesede ex's 6

Hunter, Time Limits on Abortion, in Reproductive Laws

for the 1990s (Cohen & Taub eds. 1989)............ 7,8

Institute of Medicine, Prenatal Care: Reaching Mothers,

Reaching Infants (Brown ed. 1988)............... 8, 12

Institute of Medicine, Preventing Low Birth Weight

DP sclieebutdivdndaahavesctéeawssekedeen ee 8,9

vi Table of Contents

Page

Jones, Forrest, Goldman, Henshaw, Lincoln, Rosoff,

Westoff & Wulf, Teenage Pregnancy in Industrialized

CRIED 8.0 sc cccccccscctesescsessuetoses 2,5

Lewis, Minors’ Competence to Consent to Abortion, 42

Am. Psychologist 84 (1987) ..............005. 9, 16, 17

Mackinson, The Health Consequences of Teenage Fer-

tility, 17 Fam. Plan. Persp. 132 (1985) ............. 7,8

Marecek, Consequences of Adolescent Childbearing and

Abortion, in Adolescent Abortion: Psychological and

Legal Issues 96 (Melton ed. 1986) ................ 9, 10

Marsiglio, Adolescent Fathers in the United States: Their

Initial Living Arrangements, Marital Experience and

Educational Outcomes, 19 Fam. Plan. Persp. 240

DS Setidial binds dcieeeddtbeniae eked ceuhes i 10

Melton, Legal Regulation of Adolescent Abortion: Unin-

tended Effects, 42 Am. Psychologist 79 (1987) ..... 18, 19

National Commission to Prevent Infant Mortality, Death

Before Life: The Tragedy of Infant Mortality (1988) . 7,8

National Center for Health Statistics, Advance Report of

Final Natality Statistics, Monthly Vital Statistics

ING 4 tc eccccddessisriescocsstsebes 8

Ory, Mortality Associated with: Fertility and Fertility

Control, 15 Fam. Plan. Persp. 59 (1983) ........... 7,17

Planned Parenthood League of Massachusetts, The

Massachusetts Parental/Judicial Consent Law for

Minors Seeking Abortion (1988) ............. 18, 24, 25

Risking The Future: Adolescent Sexuality, Pregnancy and

Childbearing, Vol. I (Hayes ed. 1986) ...... 7, 11, 19, 20

Pusso, Adolescent Abortion: The Epidemiological Con-

text, in Adolescent Abortion: Psychological and Legal

Issues 40 (Melton ed. 1986)................00.00005. 20

Sacker & Neuhoff, Medical and Psychosocial Risk Factors

in the Pregnant Adolescent, in Pregnancy in Adoles-

ence: Needs, Problems, and Management (Stuart &

ns cc nue ctucceeeuss shee peacdeawass 7

Table of Contents vii

Page

Shaman, Constitutional Fact: The Perception of Reality

by the Supreme Court, 35 U. Fla. L. Rev. 236 (1983)... 14

Social Factors, Not Age, Are Found to Affect Risk of Low

Birth Weight, 15 Fam. Plan. Persp. 142 (1984) ....... 8

Substantially Higher Morbidity and Mortality Rates

Found Among Infants Born to Adolescent Mothers, 16

Fam. Plan. Persp. 91 (1984).....................5.. 8

Teicher, A Solution to the Chronic Problem of Living:

Adolescent Attempted Suicide, in Current Issues of

Adolescent Psychiatry 129 (Schoolar ed. 1973)........ 9

Tietze & Henshaw, Induced Abortion: A World Review

ERE sh Sa inh ecb edb eceeesoeseenss4 7

Torres, Does Your Mother Know ...? 10 Fam. Plan.

ns 5550 6c tree este eeneces ses 3, 13, 18

Torres, Forrest & Eisman, Telling Parents: Clinic Policies

and Adolescents’ Use of Family Planning and Abortion

Services, 12 Fam. Plan. Persp. 284 (1980) 3, 13, 15,17, 18

Ventura, Taffel & Mosher, Estimates of Pregnancies and

Pregnancy Rates for the United States, 1976-85, 78

Am. J. Pub. Health 506 (1988)..................... 2

Yates & Pliner, Judging Maturity in the Courts: The

Massachusetts Consent Statute, 78 Am. J. Pub. Health

ET Uineke 1606480 ds bus skves eb eets eens 19, 24

Zabin & Clark, Institutional Factors Affecting Teen-

agers’ Choice and Reasons for Delay in Attending a

Family Planning Clinic, 15 Fam. Plan. Persp. 25

Phi seul oeuaksheea seeks caevcetn eee 5, 8, 12

Zelnick & Kantner, Sexual Activity, Contraceptive Use

and Pregnancy Among Metropolitan-Area Teenagers:

1971-1979, 12 Fam. Plan. Persp. 230 (1980).......... 5

Interest of Amici Curiae

The Center for Population Options and other amici, whose

interests are identified in Appendix A, are individuals and

organizations concerned with problems of teenage pregnancy

and too-early childbearing, and the need for confidential

access to safe, legal abortion services for minors. Based on their

experience and expertise with teenage girls, amici wish to

bring to the Court's attention facts concerning the medical

risks and societal cost of teenage pregnancy and too-early

childbearing, and to urge that the Court allow minors to exer-

cise the fundamental right to choose abortion without the

compelled involvement of their parents.'

Summary of Argument

This brief focuses on pregnant teenage girls, on the individ-

ual and societal importance of preserving their right to make a

personal individual choice between abortion and childbirth

without the compelled involvement of their parents, and on

the devastating harm that removing or restricting that right

would cause to teenage girls in particular. At minimum, pres-

ervation of their right to choose requires that the state not

compel parental notice or consent unless it provides for a

meaningful judicial or other alternative.

Whatever we might wish, sexual activity and unintended

pregnancies have become a concrete reality of teenage girls’

lives. Because most teenage pregnancies are unintended, and

because unwanted childbirth and motherhood are so excep-

tionally burdensome for a teenage girl, a pregnant teenager's

right to determine her future must include the right to choose

safe, legal abortion instead of childbirth. Legislatively-com-

pelled parental notification can be the functional equivalent of

a parental veto of the abortion choice. Teenage girls, there-

fore, need to be able to make this decision with the support of

' This brief is filed with the consent of the parties.

those they choose, including parents, but without the forced

involvement of their parents, which could result in delays,

outright denial of abortion or severe, even violent, conse-

quences.

The life-shaping importance to teenage girls of their existing

right to make a personal, individual choice whether to termi-

nate a pregnancy is illustrated in these striking facts:

¢ Over 1 million teenagers become pregnant each year.*

¢ 84% of all teenage pregnancies (married and unmarried)

are unintended.*

¢ 92% of premarital teenage pregnancies are unintended.‘

* 42% of pregnant teenage girls choose abortion each year,

and 44% of these are under the age of 18.°

¢ One in four teenage mothers drops out of high school,

and only one in fifty finishes college.*

¢ In 1987, families begun with a teenage birth cost the fed-

eral government $19.27 billion in welfare payments.’

* Alan Guttmacher Institute [AGI], Teenage Pregnancy in the United

States, Table 4 (1989) [AGI, Teenage Pregnancy in the U.S.}; Ventura,

Taffel & Mosher, Estimates of Pregnancies and Pregnancy Rates for the

United States, 1976-85, 78 Am. J. Pub. Health 506, 508, Table 2 (1988) (data

for 1972 to 1985; 1985 is latest year for which detailed statistics on abortion

are available); AGI, Teenage Pregnancy: The Problem That Hasn't Cone

Away 17 (1981) [AGI, Teenage Pregnancy).

* Jones, Forrest, Goldman, Henshaw, Lincoln, Rosoff, Westoff & Wulf,

Teenage Pregnancy in Industrialized Countries 40 (1986) [Jones, et al.}.

Calculations by CPO from cited data.

* Id.

° AGI, Teenage Pregnancy in the U.S., supra n. 2, Table 1; Henshaw,

Characteristics of U.S. Women Having Abortions, 1982-83, 19 Fam. Plan.

Persp. 5 (1987).

* Center for Population Options [CPO], The Facts: Teenage Childbear-

ing, Education, and Employment (1987).

” CPO, 1988 Report: Estimates of Public Cost for Teenage Childbearing in

1987 at 2 (1988) [CPO, 1988 Report] (calculating payments under Food

Stamps, Medicaid and Aid to Families with Dependent Children (AFDC)

programs). The $19.27 billion represents more than half of all payments

under these three programs.

¢ Parental notification requirements do not significantly

increase parental involvement in the abortion decision.®

¢ Forced parental notification of the decision to abort

would cause 20% of teenage girls who would not volun-

tarily consult their parents to self abort or have an illegal

abortion rather than notify their parents.°

e Only 4% of unmarried teenage mothers surrender their

infants for adoption. '®

As this Court (including Chief Justice Rehnquist) observed

in its leading case concerning minors and abortion:

[T]he potentially severe detriment facing a pregnant

woman is not mitigated by her minority. Indeed, con-

sidering her probable education, employment skills,

financial resources, and emotional maturity, unwanted

motherhood may be exceptionally burdensome for a

minor. In addition, the fact of having a child brings with

it adult legal responsibility, for parenthood, like attain-

ment of the age of majority, is one of the traditional cri-

teria for the termination of the legal disabilities of minor-

ity. In sum, there are few situations in which denying a

minor the right to make an important decision will have

consequences so grave and indelible."

* Hodgson v. Minnesota, 648 F.Supp. 756, 775 (D. Minn. 1986), rev'd on

legal grounds, 853 F.2d 1452 (8th Cir. 1988) (en banc); Blum, Resnick &

Stark, The Impact of a Parental Notification Law on Adolescent Abortion

Decision-Making, 77 Am. J. Pub. Health 619, 620 (1987); Torres, Does Your

Mother Know ... ?, 10 Fam. Plan. Persp. 280, 281 (1978).

® Torres, Forrest & Eisman, Telling Parents: Clinic Policies and

Adolescents’ Use of Family Planning and Abortion Services, 12 Fam. Plan.

Persp. 284, 288-289 & Table 7 (1980).

‘© AGI, Teenage Pregnancy, supra n. 2, at 27.

'"' Bellotti v. Baird, 443 U.S. 622, 642 (1979) [ Bellotti 11) (plurality opin-

ion) (emphasis added). The statement quoted in text surely commanded the

support of eight members of the Court. See id. at 652 (concurring opinion of

Justices Stevens, Brennan, Marshall, and Blackmun).

Part I of this brief, thus, will describe the unintended and

unanticipated nature of most teenage pregnancy; the height-

ened physical and psychological risks to teenage girls of preg-

nancy and childbearing, which greatly exceed the risks of

abortion at any stage of pregnancy; the overwhelming costs to

teenage girls and to society of teenage pregnancy and too-early

childbearing; the privacy needs of teenage girls in matters of

sexuality and reproductive choice; and the severe, even vio-

lent, harm that follows from compelling unwanted parental

involvement in the abortion decision. Part II will describe how

a minor must be able to exercise her fundamental right to

choose abortion without the compelled participation of her

parents; will explain why minors must at least retain a judicial

consent (“by-pass’’) or other alternative to such compelled par-

ticipation; and will propose rules and guidelines for by-pass

alternatives to compelled parental participation (specifically

referring to those that have been successfully used in Massa-

chusetts for nearly ten years).

Argument

I. A Decision sy THis Court To TAKE AWAY OR CONSTRAIN

THE FUNDAMENTAL RIGHT TO CHoose WouLp DEVASTATE

TEENAGE GIRLS.

This Court would devastate the lives of teenage girls by

erecting such insuperable barriers to their long-recognized

fundamental right to choose between abortion and childbirth

as compelled parental consent or notification. Teenage sexual

activity and unintended pregnancies are concrete realities of

American life today. Constraining the right to choose abortion

by forcing parental involvement in the decision will not reduce

teenage sexual activity or unintended teenage pregnancy.'*

'? In the United States today, seven out of ten teenage girls and eight out of

ten teenage boys have sexual intercourse by the time they reach age twenty.

CPO, The Facts: Teenage Sexuality, Pregnancy, and Parenthood (1987). As

to unintended pregnancies, see supra notes 2-7 and statistics in the accom-

panying text.

What it will do is delay the abortion choice, provoke unneces-

sary crisis and disharmony in family relations and dramatic-

ally increase unwanted teenage childbearing, all with pro-

foundly adverse costs to teenage girls’ lives and futures.

A. Teenage Pregnancy Is Almost Always Unintended.

Teenage girls do not become pregnant by design. Eight out

of ten of the 1.1 million teenage pregnancies in the United

States each year are unintended.'* Most teenagers do not use

contraceptives or use them inconsistently, especially in the

early months of sexual activity, whether due to ignorance or

ambivalence about contraception, or ambivalence about sex-

uality, or both.'* Thus, among unmarried teenagers who be-

Studies show that the restrictions on the availability of abortion caused by

parental notification and consent laws do not reduce teen pregnancy. Car-

toof & Klerman, Parental Consent for Abortion: Impact of the Massachusetts

Law, 76 Am. J. Pub. Health 397, 400 (1986). The most effective way to

reduce teen pregnancy is not to restrict or deny access to abortion but to

increase sex education and the availability of contraception. A study compar-

ing teenage pregnancy in the United States with that of other industrialized

countries found sexual activity in the United States was comparable to that in

other countries, but that teenage pregnancy and birth rates were lower in

other countries because of greater availability of sex education, contracep-

tives and abortion services. Jones, et al., supra n. 3, at 234-35.

'? Jones, et al., supra n. 3. 92% of pregnancies to unwed teenage girls are

unintended and 51% of pregnancies to married teens are unintended. Alto-

gether, approximately 84% of all teenage pregnancies are unintended, since

the vast majority of teen pregnancies (almost 80% ) occur out-of-wedlock. Id.

'* AGI, Teenage Pregnancy, supra n. 2, at 14-16; Zelnick & Kantner,

Sexual Activity, Contraceptive Use and Pregnancy Among Metropolitan-

Area Teenagers: 1971-1979, 12 Fam. Plan. Persp. 230, 236, Table 8 (1980);

Zabin & Clark, Institutional Factors Affecting Teenagers’ Choice and

Reasons for Delay in Attending a Family Planning Clinic, 15 Fam. Plan.

Persp. 25 (1983). Zabin’s study reports that teens tend to delay almost a year

(median of 11.5 months) after becoming sexually active before going to a

family planning clinic. Moreover, nearly two thirds of unmarried teenage

girls reported that they never used contraceptives or did so inconsistently.

AGI, Teenage Pregnancy, supra n. 2, at 14. The reasons for failure to use

contraceptives vary, including those who thought they could not become

pregnant, those who did not expect to have sexual intercourse, those who

“couldn’t [use them] under the circumstances,” and those who did not know

how to get contraceptives. /d.

come pregnant, fifty percent of pregnancies occur within the

first six months of becoming sexually active; twenty percent

occur within the first month.'® Forty-two percent of all teen-

age girls (married or unmarried) choose to resolve their un-

wanted pregnancies through abortion.'® These statistics,

which reflect the relatively low impact of current contracep-

tive availability and education on the teenage pregnancy rate,

demonstrate that the vast majority of teenage girls do not focus

on the issue of whether to bear a child and how childbearing

will affect their future until an unintended pregnancy forces

them to do so.

At this critical juncture in teenage girls’ lives, abortion

becomes an especially important — and in many cases life-

saving — reality. Common sense, as well as the results of abor-

tion restrictions directed specifically at minors,'’ teaches that

erecting barriers to the right to choose abortion will not reduce

teenage sexual activity and pregnancy; it will simply increase

unwanted teenage childbearing.

B. Teenage Pregnancy and Childbearing Is Highly

Risky Physically and Psychologically for Teenage

Girls and the Children They Bear.

Adolescent pregnancies carried to term, and resulting child-

bearing, are usually very detrimental physically and psycho-

logically for teenage girls, as well as for the infants they bear.

During pregnancy, teenagers are at much higher risk of suffer-

ing from serious medical complications, including iron-defi-

ciency anemia, pregnancy-induced hypertension (“toxemia”,

which is a leading cause of mortality), complications from

small pelvises, and cervical immaturity resulting in premature

'S Hofferth, Contraceptive Decisionmaking Among Adolescents, in Risk-

ing the Future: Adolescent Sexuality, Pregnancy, and Childbearing, Vol. II.,

at 64 (Hofferth & Hayes eds. 1988) [Risking Vol. 11]; ACI, Teenage Preg-

nancy, supra n. 2, at 16, 19.

'®© AGI, Teenage Pregnancy in the U.S., supra n. 2, Table 1.

'’ Cartoof & Klerman, supra n. 12, at 400.

births.'* Mortality rates from continued pregnancy and child-

bearing are much higher for teenage girls than for women

aged 20-24.'* Teenage girls aged 15-19 are twenty-four times

more likely to die from childbirth than from first-trimester

abortion,” and the dangers are considerably higher for girls

under age 15.*' By contrast, for all women, but especially for

teenage girls, abortion is one of the safest surgical procedures

doctors perform.” At no time during pregnancy do the risks of

abortion surpass the risks of continuing the pregnancy to deliv-

ery.” The same is true for rates of morbidity — serious illness

or injury with lasting effects — related to childbirth when

compared to abortion.**

A major reason why the health risks of pregnancy and child-

bearing are greater for teenage girls than for adult women is

'* Hunter, Time Limits on Abortion, in Reproductive Lews for the 1990s,

at 134 & n. 15 (Cohen & Taub eds. 1989); National Commission to Prevent

Infant Mortality, Death Before Life: The Tragedy of Infant Mortality,

Appendix at 103 (1988) [NCPIM]. Inadequate prenatal care, a problem

especially common for teenage girls, is associated with excessive weight gain,

premature labor, prolonged labor, vaginal infections and vaginal lacera-

tions. Mackinson, The Health Consequences of Teenage Fertility, 17 Fam.

Plan. Persp. 132, 134 (1985).

'© Ory, Mortality Associated with Fertility and Fertility Control, 15 Fam.

Plan. Persp. 57, 59, Table 2 (1983). Calculations by CPO from cited data.

* Id.

*! Sacker & Neuhoff, Medical and Psychosocial Risk Factors in the Preg-

nant Adolescent, in Pregnancy in Adolescence: Needs, Problems, and

Management 107 (Stuart & Wells eds. 1982), "'sking The Future: Adolescent

Sexuality, Pregnancy and Childbearing, Vol. 1, at 124 (C. Hayes ed. 1986)

[ Risking, Vol. I).

** Cates & Grimes, Morbidity and Mortality of Abortion in the United

States, in Abortion and Sterilization: Medical and Social Aspects, 155, 177

(Hodgson, ed. 1981). “Complications following induced abortion are

generally lower among adolescents than among older women, regardless of

the gestation at which the abortion is performed or the method used.” Risk-

ing, Vol. 1, supra n. 21, at 125; see also, Cates, Adolescent Abortions in the

United States, 1 J. Adolescent Health Care 18, 19-22 (1980) {Cates}; Cates,

Schultz & Grimes, The Risks Associated With Teenage Abortion, 309

N. Eng. J. of Medicine 621 (1983).

* Tietze & Henshaw, Induced Abortion: A World Review 1986, at 110,

111 (1986).

“ Cates, supra n. 22, at 20; Cates & Grimes, supra n. 22.

that teenagers delay seeking prenatal care if they seek it at

all.25 In New York City, more than one third of pregnant teen-

age girls received no prenatal care or only last-trimester care,

compared to eighteen percent for women as a whole.”

Teenage pregnancy, exacerbated by inadequate prenatal

care, also leads to premature births and low birth weight,”

which in turn are leading causes of infant morbidity and mor-

tality. Low birth-weight infants are at increased risk of neuro-

developmental problems, especially cerebral palsy, seizure dis-

orders and mental retardation.** Children of teenage mothers

are twice as likely to die in infancy than those born to women

in their 20s, and are also more likely to die than children of

women in their 40s, whose children are also a high-risk

group.” Low birth weight is also associated with longer-term

* Mackinson, supra n. 18, at 134. Teens tend to seek prenatal care later

than adult women because of its cost, ambivalence or denial concerning their

pregnancy, a desire for secrecy and confidentiality, difficulty in scheduling

appointments, and/or lack of knowledge about the health care system. Insti-

tute of Medicine, Prenatal Care: Reaching Mothers, Reaching Infants 78,

101 (Brown ed. 1988) [Inst. of Medicine, Prenatal Care}. Policies of some

clinics and hospitals to notify parents when minors use their services affects

minors’ decision to seek prenatal care and choice of clinics. See Zabin &

Clark, supra n. 14, at 26, 27, 29.

* Hunter, supra n. 18, at 134, citing to New York City Dep't of Public

Health, Summary of Vital Statistics 16, 17 (1986). Nationally, 13 percent of

teens receive late or no prenatal care whereas only 6 percent of women as a

whole receive late or no prenatal care. National Center for Health Statistics,

Advance Report of Final Natality Statistics, Monthly Vital Statistics Report

38:3 Table 30 (1989) [NCHS].

27 AGI, Teenage Pregnancy, supra n. 2, at 29; NCHS, supra n. 26,

Table 15.

** Institute of Medicine, Preventing Low Birthweight 26-29, 32-33, 37

(1985); Substantially Higher Morbidity and Mortality Rates Found Among

Infants Born to Adolescent Mothers, 16 Fam. Plan. Persp. 91-92 (1984).

*® AGI, Teenage Pregnancy, supra n. 2, at 29. Studies show that other

factors such as the mother’s socioeconomic status, health care and nutritional

habits and education also contribute to health and developmental problems

of low birth-weight babies. Teenage mothers are at a high risk of experi-

encing these characteristics. Mackinson, supra n. 18, at 137-38; NCPIM,

supra n. 18, at 103; Social Factors, Not Age, Are Found to Affect Risk of

Low Birth Weight, 15 Fam. Plan. Persp. 142-43 (1984).

~_—

problems, including a greater frequency of illness, and

developmental problems such as lack of success in school .*°

An unwanted pregnancy is a serious and emotionally trau-

matic event in a teenager's life. Before abortions were legal

and accessible to minors in a confidential manner, a large pro-

portion of teenage girls who attempted or succeeded in suicide

thought they were, or actually were, pregnant.*' Few teen-

agers have adverse psychological reactions to abortion, and

most are relieved to have terminated an unwanted preg-

nancy:™ “[t)here is no research evidence to support” the

assumption that “adolescents are especially vulnerable to seri-

ous psychological harm as a result of having an abortion.”** To

the contrary, pregnancy continuation poses “far greater psy-

chological, physical, and economic risks to the adolescent than

does abortion.”

C. Pregnant Teenagers, Teenage Mothers and Their

Families Are More Likely to Lose Educational and

Economic Opportunities and to Be Dependent Upon

Public Support.

Childbearing irrevocably alters the life of a teenage girl.

When a woman is ready to bear a child, motherhood is one of

the most rewarding and fulfilling of life’s experiences. But un-

wanted motherhood is devastating, especially for a teenage

* Inst. of Medicine, supra n. 28, at 32-33.

* Teicher, A Solution to the Chronic Problem of Living: Adolescent

Attempted Suicide, in Current Issues of Adolescent Psychiatry 129, 136

(Schoolar ed. 1973).

* Adler & Dolcini, Psychological Issues in Abortion for Adolescents, in

Adolescent Abortion: Psychological and Legal Issues 84 (Melton ed. 1986).

* American Psychological Association, Interdivisional Committee on

Adolescent Abortion, Adolescent Abortion: Psychological and Legal Issues,

42 Am. Psychologist 73, 74 (1987) [APA].

* Lewis, Minors’ Competence to Consent to Abortion, 42 Am. Psycholo-

gist 84, 87 (1987); see also Marecek, Consequences of Adolescent Childbear-

ing and Abortion, in Adolescent Abortion: Psychological and Legal Issues

96-115 (Melton ed. 1986); Adler & Dolcini, supra n. 32, at 90; Cates, supra

n. 22, at 22.

girl. The cost of too-early childbearing is borne not just by the

teenager, whose future is suddenly restricted, but by the child

she bears and by society as a whole. These costs exist today —

in a world in which teenagers have a right of abortion choice.

The elimination or constriction of that choice could only make

those costs vastly higher.

Pregnancy is the leading reason teenage girls drop out of

school. One in four teenage mothers drops out of high school

and only one in fifty graduates from college. By comparison,

one in five women who put off childbearing until their

mid-20s graduates from college.** Teenage mothers’ family

responsibilities and frequently truncated education lead them

into lower-paying, lower-status jobs, where they accumulate

less work experience and earn lower annual wages than

women who postpone childbearing.”

Children born to teenagers from an unwanted pregnancy

will be disadvantaged educationally, socially, and psycholog-

ically.” They tend to have lower I.Q. and achievement scores,

and less success in school.** According to expert testimony

before Congress on behalf of the American Public Health Asso-

ciation, children born of unwanted pregnancies experienced

lower scholastic achievement, had less job satisfaction, fewer

and less satisfying relations with. friends, lovers and spouses,

and began sexual activity earlier than children born of ac-

% CPO, Teenage Childbearing, supra n. 6; Risking, Vol. I, supra n. 15,

at 125-28. Teenage fathers are also more likely to drop out of high school

than their counterparts who remained childless throughout their teens. The

lower high school completion rate for teenage fathers restricts their financial

ability to support their partner and child. Marsiglio, Adolescent Fathers in

the United States: Their Initial Living Arrangements, Marital Experience

and Educational Outcomes, 19 Fam. Plan. Persp. 241, 247, 249 (1987).

%* CPO, Teenage Childbearing, supra n. 6; Risking, Vol. 1, supra n. 21,

at 130-32.

* See generally, Marecek, supra n. 34.

% Baldwin & Cain, The Children of Teenage Parents, 12 Fam. Plan.

Persp. 34, 37 (1980); Adolescent Pregnancy and Childbearing — Rates,

Trends and Research Findings From the CPR, NICHD 10-11 (1988) [ Adoles-

cent Pregnancy and Childbearing).

cepted pregnancies.” “In the aggregate, unwantedness in

early pregnancy and involuntary child-bearing have a detri-

mental effect on the subsequent psychosocial development of

the child with socially undesirable longer term implica-

tions.”* That these children could be both unwanted, and

forced upon a teenage girl by the state, is doubly tragic.

Teenage motherhood also imposes enormous costs on soci-

ety. Teenage mothers, whose educational and economic

achievement is severely restricted, are more likely to become

dependent on public support. Fifty-three percent of AFDC

payments are allotted to families that began when the mother

was a teenager.*' In 1987 alone, the federal government spent

$19.27 billion in AFDC, Medicaid and Food Stamp benefits

on families in which the mother first gave birth as a teenager.**

It is estimated that over the next twenty years, the federal

government will spend $5.7 billion in welfare payments to all

babies born in 1987 to teenage girls.*® Moreover, children of

teenage parents are more likely to become teenage parents

themselves, thus perpetuating the cycle of poverty begun by a

teenage birth.“

Too-early childbearing is already a serious public health

problem. Erecting barriers to the right to choose abortion will

reverse the recent success in reducing the teenage birth rate

* David, Abortion Obtained and Denied: Psychosocial Risks, Statement

prepared for presentation to the Subcommittee on Human Resources and

Intergovernmental Relations of the Committee on Government Operations

of the U.S. House of Representatives, at 6 (Mar. 1989).

Id.

“ CPO, Estimates of Public Costs for Teenage Childbearing (1986); CPO,

Estimates of Public Costs for Teenage Childbearing (1987); CPO, 1988

Report, supra n. 7.

“ CPO, 1988 Report, supra n. 7, at 2. In 1975, 64 percent of AFDC

mothers under age 30 had been teenage mothers compared to 24 percent of

American women as a whole between age 20 and 30. Adolescent Pregnancy

and Childbearing, supra n. 38, at 12.

* CPO, 1988 Report, supra n. 7, at 3.

“ CPO, Teenage Childbearing, supra n. 6; Risking, Vol. 1, supra n. 21, at

134; Adolescent Pregnancy and Childbearing, supra n. 38, at 11.

and frustrate efforts to bring more women into early prenatal

care,*® making an already tragic situation worse.

D. Teenage Girls Need Even More Privacy in Matters of

Sexuality Than Older Women and Forced Parental

Involvement Harms, Rather Than Enhances, the

Quality of Their Decision Making in Matters of

Reproductive Rights.

Many teenage girls who are faced with reproductive deci-

sions are just becoming acquainted with their own sexuality.“

Their ambivalence and discomfort over sexual matters en-

hance their need for confidentiality and privacy in matters

of reproductive choice, exceeding that of adult women.*’ For

example, confidentiality is a primary reason teenagers choose

a particular family planning clinic.** Forced parental notifica-

tion of contraceptive use also leads to a decline in adolescent

clinic use and effective use of contraceptives, but not to a

decline in sexual activity, thus leading to a rise in unintended

pregnancies among teens.** Although most teens, particularly

young teens, voluntarily involve a parent in a pregnancy deci-

** AGI, Teenage Pregnancy in the U.S., supra n. 2, Table 5.

“ Fifty percent of pregnancies among unmarried teenagers occur during

the first six months of sexual activity and twenty percent occur during the

first month. See supra n. 15 and accompanying text.

*’ Unmarried teenage girls are especially concerned to keep confidential

the existence of a pregnancy and their decision whether to terminate it. For

example, one study found that a desire to keep the pregnancy secret and a

need for confidentiality in obtaining prenatal health care services led many

teens to seek late prenatal! care and influenced their choice in health care pro-

viders. Institute of Medicine, Prenatal Care, supra n. 25, at 78. A study of 17

deaths following post-Roe illegal abortions conciuded that a desire for

secrecy was the primary reason two teenagers who died had self aborted.

Binkin, Gold & Cates, Illegal Abortion Deaths in the United States: Why are

They Still Occurring? 14 Fam. Plan. Persp. 163, 165 (1982); see also Bellotti

Il, 443 U.S. at 644 (requiring “anonymity” for minors’ judicial consent for

abortion proceedings).

* Zabin & Clark, supra n. 14, at 26, Table 1.

*” Torres, supra n. &, at 282. One study found that 56% of minors who

attended a family planning clinic without their parents’ knowledge (which

sion,” those teenage girls who choose not to involve their

parents do so for good reasons, ranging from a concern for

their parents’ feelings to fear of violence or other serious nega-

tive consequences, to fear of being prevented from obtaining

an abortion.”

Parental notification and consent requirements, where they

exist, have failed significantly to increase parental involve-

ment in their daughters’ reproductive decisions. Instead,

most minors who do not choose to consult their parents find

ways to avoid compelled parental involvement. For example,

more than half of minors who attend family planning clinics -

without their parents’ knowledge would stop attending if their

parents were notified. A chilling thirty-nine percent of these

girls stated that they would have an illegal or self-induced

abortion rather than notify their parents as a condition of a

legal abortion. Some would leave home, and four in ten sur-

veyed said that they would carry to term rather than inform

their parents of their decision to abort, thus giving up the exer-

cise of their fundamental right to choose abortion.”

represented 23% of those attending) would stop attending if their parents

were notified. Of those, 65% would stop using medically prescribed contra-

ceptives (i.e., pill, IUD, diaphragm) and would resort to non-medical meth-

ods (i.e., condom, foam, withdrawal), 10% would use no contraception at

all, and only 10% surveyed said they would refrain from intercourse. Torres,

Forrest & Eisman, supra n. 9, at 291, Table 10.

* Studies show that approximately 55% percent of girls under 18 volun-

tarily discuss matters of reproductive choice with one or both parents.

Torres, Forrest & Eisman, supra n. 9, at 287 (55% discuss decision to have

abortion with parents); Torres, supra n. 8, at 281 (55% discuss participation

in family planning clinic with parents).

*! Clary, Minor Women Obtaining Abortions: A Study of Parental Notifi-

cation in a Metropolitan Area, 72 Am. J. Pub. Health 283, 284 (1982);

Donovan, Judging Teenagers: How Minors Fare When They Seek Court-

Authorized Abortions, 15 Fam. Plan. Persp. 259, 260-262 (1983).

* Blum, Resnick & Stark, supra n. 8, at 620; Cartoof & Klerman, supra n.

12, at 400; Torres, supra n. 8, at 282.

* Torres, Forrest & Eisman, supra n. 9, at 289, Table 7. This study found

that 55% of minors attending a family planning clinic did so with their

parents’ knowledge and 1% were not sure whether their parents knew. 21%

of those surveyed would not voluntarily inform their parents, but would still

Il. THe FUNDAMENTAL RIGHT oF Minors To Exercise THEIR

Richt To CHoose SHOULD Not Be ConpITIONED ON

PARENTAL Notice OR CONSENT, AND CERTAINLY NOT

WirHout A MEANINGFUL JUDICIAL OR COMPARABLE By-

Pass.

The right to terminate a pregnancy free from unwarranted

governmental intrusion remains fundamental for both adult

women and minor girls, and regulations that impinge on

fundamental rights are assessed with heightened scrutiny.”

Employing heightened scrutiny, the Court must strike down as

unconstitutional an unduly burdensome state regulation that

the state fails to demonstrate is narrowly tailored to further a

compelling interest.

The Minnesota and Ohio statutes,” though ostensibly

meant to protect minors from making immature decisions and

to enhance intrafamily communications, in fact fail to accom-

plish these purposes. At the same time, they impose severe

burdens on teenage girls and their families, the very groups

they are meant to protect. Accordingly, these statutes are, in

attend the clinic if their parents were required to be notified. The remaining

23% said they would not attend the clinic if their parents were notified: 9%

(which represents 39% of the 23% who:would no longer attend the clinic)

would have an illegal or self-induced abortion; 9% would carry to term; 2%

would leave home: and 3% said they did not know what they would do. Id.

* Thornburgh v. American College of Obstetricians & Gynecologists, 476

U.S. 747, 759 (1986); Bellotti v. Baird, 443 U.S. 622, 633 (1979) (Bellotti I1);

Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74-75

(1976); Roe v. Wade, 410 U.S. 113, 153 (1973); see Webster v. Reproductive

Health Servs., 109 S.Ct. 3040, 3058 (1989).

55 Webster, 109 S.Ct. at 3063 (O'Connor, J., concurring) (regulation that

“unduly burdens” right to seek abortion is unconstitutional); Akron v. Akron

Center for Reproductive Health, 462 U.S. 416, 427 (1983); Bellotti II, 443

U.S. at 640; Roe v. Wade, 410 U.S. at 155.

% Id.; Shaman, Constitutional Fact: The Perception of Reality by the

Supreme Court, 35 U. Fla. L. Rev. 236, 245 (1983) (“To uphold a regulation

without determining that it will in fact [further the state’s asserted interest}

. would be inconsistent with the principles of heightened scrutiny.”).

* Minn. Stat. Ann. § 144.343(2)-(7) (1989); Ohio Rev. Code §§ 2151.85,

2505.073, 2919.12 (1988 Supp.).

the constitutional sense, not only unduly burdensome, they are

not minimally rational.

A. Parental Notification Laws and Parental Consent

Laws Are Functionally Equivalent Because They

Cause the Same Harm, and Because For Minors

They Impose the Same Burden.

For minors, there is no real-world difference between

parental consent and notification laws.** The dangers posed by

such requirements are the same: compelled involvement of

parents can lead to severely negative, even violent, parental

reactions, including preventing the minor from having the

desired abortion.” According to one study, twenty percent of

girls who had decided to have an abortion without their par-

ents’ knowledge would carry to term if their parents were

notified of their decision to have an abortion.” In reviewing

Minnesota’s two-parent notification requirement, the District

Court found as a fact that revelation of a pregnancy or pro-

posed abortion can lead to obstruction of the desired abortion

and, particularly in dysfunctional families, violence and

abuse.*' Parental notification requirements, as well as consent

requirements, therefore, can easily act as a veto of a minor's

abortion decision. By definition, such an outright veto unduly

burdens a minor’s right to choose.

* Three members of the present Court and Justice Powell have recognized

that parental notification requirements are the functional equivalent of con-

sent in the burdens they impose on a minor's exercise of her right to choose.

See H.L. v. Matheson, 450 U.S. 398, 420 & n. 9 (1981) (Powell, J., concur-

ring); id. at 437-441 (Marshall, J., dissenting, joined by JJ. Brennan &

Blackmun).

*® Approximately 30% of minors surveyed in one study who did not inform

their parents did so for fear of serious negative consequences in the form of

physical abuse, other retaliation or being prevented from obtaining the abor-

tion. Clary, supra n. 51, at 284.

*' Hodgson v. Minnesota, 648 F.Supp. 756, 768-769, 773 (D. Minn. 1986),

rev'd on legal grounds, 853 F.2d 1452 (8th Cir. 1988) (en banc), cert.

granted, 109 S.Ct. 3240 (1989).

B. Parental Notification or Consent Requirements Are

Unduly Burdensome and Fail in Operation to Serve

Their Intended Purposes.

Parental notification and consent laws are unconstitutional

because they fail to achieve their intended purposes: that of

protecting pregnant minors from uninformed or immature

abortion decisions, or that of fostering healthy intrafamily

communication concerning the decision.® Indeed, such laws

impose further irrational, gratuitous and useless burdens on

minors by damaging their family relationships and delaying

their access to abortion services. These statutes were in fact

enacted for the unconstitutional purpose of denying access to

abortion services.

1. Parental Notification or Consent Requirements

Do Not Protect Minors From Making Imma-

ture Decisions.

Parental notification or consent requirements are overly

broad and do not in fact protect minors from making imma-

ture decisions. The Minnesota and Ohio statutes, by failing to

distinguish mature from immature minors, sweep too broadly.

Adolescents as they grow older are generally competent to rec-

ognize and assess the consequences of their decisions.®* Indeed,

many states that have enacted parental notification or consent

requirements for abortion, including Minnesota and Massa-

chusetts, recognize that minors may be competent to make

decisions about their own health care.“ Minors who are gen-

* Bellotti II, 443 U.S. at 634.

® Lewis, supra n. 34, at 85-87.

* Minnesota allows any minor to give independent consent for diagnosis

and treatment for pregnancy, childbearing, venereal disease, alcohol and

drug abuse, regardless of his or her maturity. Minn. Stat. Ann. § 144.343(1).

In Massachusetts, a pregnant minor or a minor living apart from and finan-

cially independent of his or her parents may consent to all forms of medical

treatment, including treatment for childbirth, except abortion or steriliza-

tion. Mass. Gen L. ch. 112 § 12F (1983 & 1989 Cum. Supp.).

erally less competent to make important decisions, i.e. those

who are younger and those who tend to be more conflicted

about the decision, generally consult their parents voluntar-

ily.** Thus, a notification requirement that covers all minors

regardless of age or maturity sweeps too broadly and is not

narrowly tailored to achieving the state’s asserted interest of

protecting minors from making immature decisions.

Second, assuming arguendo that parental notification and

consent requirements were properly motivated, their failure to

“protect” immature minors is apparent in their irrational con-

sequences. No intelligible principle could dictate that the best

interests of a girl who is so young as to be considered immature

and who does not want a child, would best be served by a

state-imposed requirement that results in her unwillingly

becoming a mother.

The real purpose of these statutes is to deny access to abor-

tion. Since abortion is one of the safest medical procedures

doctors perform — safer at all stages than childbirth — the

special treatment of the abortion decision in these statutes

must have as its purpose some reason other than protecting

immature minors from making hasty or inadequately-consid-

ered decisions about their health care. Such statutes are over-

inclusive because mature minors are not allowed to consent to

an abortion; and they are under-inclusive because they allow

minors regardless of their maturity to consent to other health

care treatment that imposes far greater health risks than abor-

tion.” These regulations are neither narrowly tailored, nor

even rationally related, to the State’s interest in protecting

minors from making immature decisions, and are thus uncon-

stitutional.®’

* Lewis, supra n. 34, at 87; Torres, Forrest, & Eisman, supra n. 9, at 288.

* These statutes allow pregnant minors to consent to medical care relating

to childbirth, yet teenage girls aged 15-19 are twenty-four times more likely

to die from childbirth than from first trimester abortion. Ory, supra n. 19, at

59, Table 2. Even an appendectomy is 100 times more dangerous than a legal

induced abortion. Cates & Grimes, supra n. 22, at 170.

*’ Thornburgh, 476 U.S. at 763; Akron, 462 U.S. at 427; Bellotti 11, 443

U.S. at 640; Roe v. Wade, 410 U.S. at 155.

2. Parental Notification or Consent Requirements Do

Not Enhance Intrafamily Communications.

These statutes also fail to further, and in practice under-

mine, the state’s alternative asserted purpose of fostering pro-

ductive intrafamily communication concerning a minor's

abortion decision. Most teenagers voluntarily involve their

parents.® But for those who choose not to involve their par-

ents, these statutes do not significantly increase parents’

involvement.”° Moreover, the evidence at trial in Hodgson

failed to identify any beneficial effect on intrafamily commu-

nication of forced notification. Experts credited by the court

testified that voluntariness has been found to be the hallmark

of productive family communication, and that forced commu-

* See Melton, Legal Regulation of Adolescent Abortion: Unintended

Effects, 42 Am. Psychologist 79 (1987).

* One study found that in Minnesota 65.3% of minors voluntarily consult

at least one parent. Blum, Resnick & Stark, supra n. 8, at 620. In Massachu-

setts, approximately 75% of minors get the consent of their parents for their

abortion. Planned Parenthood League of Massachusetts, The Massachusetts

Parental/Judicial Consent Law for Minors Seeking Abortion 3 (1988)

[PPLM]. Two studies of minors attending clinics found that 55% voluntarily

informed their parents of their participation in the clinic and of their decision

to have an abortion. Torres, supra n. 8, at 281 (clinic use); Torres, Forrest &

Eisman, supra n. 9, at 287 (abortion decision).

7° One study found that the primary impact of the Massachusetts consent

statute was to drive minors out of state to obtain a confidential abortion.

Cartoof & Klerman, supra n. 12, at 399. A study comparing the notification

rate of minors in Minnesota with that of minors in Wisconsin (which has no

notification or consent statute) found only a slightly higher percentage of

Minnesota minors notified both parents (as required by statute) than did

Wisconsin minors, and that the percentage of minors in both states that

voluntarily notified at least one parent was statistically indistinguishable

(65.3% compared to 62.1%). Blum, Resnick & Stark, supra n. 8, at 620.

Witnesses who provided counseling and abortion services to minors both

before and after enactment of Minnesota’s statute testified at trial in Hodgson

that they did not observe any post-enactment change in the level of parental

participation. 648 F.Supp. at 775. The court explicitly considered and

rejected the possibility that the very existence of the statute had encouraged

minors, particularly immature, non-best-interest ones, to inform parents of

their pregnancy. /d.

S57 i en ee

nication not only fails to promote productive relations but

typically damages them. These experts further testified that

revelation of a pregnancy or proposed abortion through com-

pulsion or inadvertence “is almost universally negative” and

can provoke crisis and disharmony.”' Such provocation is par-

ticularly dangerous in dysfunctional families in which violence

and abuse often result from revelation of a pregnancy or desire

to terminate it.”

3. Parental Notification or Consent Requirements

Harm Pregnant Teenage Girls by Delaying Their |

Abortion Choice.

“The abortion decision is one that simply cannot be post-

poned.””* Constricting the right to choose abortion by erecting

parental notification or consent requirements (even with a by-

pass) harms teenage girls disproportionately by delaying their

abortion choice. And delay is always harmful.

While abortion at any stage of pregnancy is safer for teenage

girls than childbirth, delay in seeking and obtaining an abor-

tion, particularly for girls entering their second trimester, has

the largest single effect on the risk to teenage girls of complica-

tions from abortion.” Yet, for various reasons, teenagers are

less likely than older women to obtain abortions during the

safer, earlier weeks of gestation.”

"! 648 F.Supp. at 766-770. Experts conclude that communication between

parents and children about sexual matters is typically closed, and the forced

involvement of parents would not lead to more open, productive communi-

cation. Melton, supra n. 67, at 81. _

7? Melton, supra n. 67, at 81; Clary, supra n. 51 at 284.

Bellotti 11, 443 U.S. at 643.

™ Cates & Grimes, supra n. 22, at 158; Yates & Pliner, Judging Maturity

in the Courts: The Massachusetts Consent Statute 78 Am. J. Pub. Health 646,

648 (1988); see also Hodgson, 648 F.Supp. at 765. After eight weeks’ gesta-

tion, the risk of major complications from abortion rises approximately

15-20% for each week of delay. Cates & Grimes, supra n. 22, at 158.

* Risking, Vol. I, supra note 24, at 114. A national survey found that only

34% of abortions obtained by girls ages 15 and younger are performed dur-

ing the first (and safest) eight weeks of gestation, compared with 41% of

Parental notification and consent requirements necessarily

impose additional delay, not only because the minor must wait

until the requirements are satisfied, but because the require-

ments impose another hard and inevitably time-consuming

decision on a minor: whether to proceed with such compelled

parental involvement, or to pursue alternatives (e.g., going

out-of-state or using a judicial by-pass if available). Such fur-

ther delays only increase the medical risks associated with the

abortion procedure to a significant degree.

Even short delays could heighten a patient's emotional ten-

sion, increase the costs of the procedure, and push a teenage

girl into the second trimester of a pregnancy, when the abor-

tion procedure entails significantly greater financial cost and

medical risk.”* Any increases in the financial costs of the pro-

cedure impose heavy, even insurmountable, burdens on teen-

agers as a group, and fall most heavily on poor teenagers, who

tend disproportionately to be members of minority groups. By

imposing additional medical risks and prohibitive costs on the

abortions obtained by girls ages 15-19, and 51% of those obtained by women

ages 20-24. AGI, Teenage Pregnancy, supra n. 2, at 55. Adolescents (19 and

under) are twice as likely as older women to obtain abortions after twelve

weeks. Cates, supra n. 22, at 20. One reason for delay is limited access to

abortion services, particularly in rural areas, due to difficulties in travel

(especially in states with great distances between clinics) and expense. In

addition, many teenagers, particularly the very young, fail to recognize the

early signs of pregnancy. This may be due to ignorance or because many

adolescent girls ordinarily experience menstrual irregularities and therefore

do not distinguish them from early signs of pregnancy. See, e.g., AGI,

Teenage Pregnancy, supra n. 2, at 55; Risking, Vol. 1, supra n. 21, at 114;

Russo, Adolescent Abortion: The Epidemiological Context, in Adolescent

Abortion: Psychological and Legal Issues 40, 57 (Melton ed. 1986); Bracken

& Kasl, Delay in Seeking Induced Abortion: A Review and Theoretical

Analysis, 121 Am. J. Obstetrics & Gynecology 1008-1019 (1975).

"® Hodgson, 648 F.Supp. at 762. In Hodgson, the District Court found as a

matter of fact that the cost of abortion increases with gestational age because

of the increased skill necessary to perform the procedure. Id. at 761. The

Court cited the following fee schedule from one clinic: under 12 weeks, $225;

12-14 weeks, $275; 16-18 weeks, $450; 18-19 weeks, $550; 19-2] weeks,

$650. After 21 weeks, patients are referred to a particular hospital where, at

22 weeks, the fee is $1600-1800. Id.

abortion choice, parental notification and consent require-

ments run counter to one of the primary reasons abortion was

legalized sixteen years ago — to reduce the devastating health

risks of illegal abortion.

4. The Requirement That, to Avoid a Court Hearing,

Both Parents Must Be Notified is Unduly Burden-

some and Contrary to the State’s Asserted Purposes

in Many Family Situations.

The two-parent notification requirement of the Minnesota

statute is not even minimally rational. It contains no exception

for a divorced parent or for parents who are separated or

absent, or who have never married, or for dysfunctional fam-

ilies in which one resident parent is likely to become violent or

abusive to either the young woman or the other parent upon

being informed that a daughter is seeking an abortion with the

other spouse’s approval.”

The two-parent consultation requirement was found in

Minnesota to be a significant burden on minors which under-

mined, rather than promoted, healthy intrafamily communi-

cation. State-mandated contact with an absent, disinterested,

estranged, separated, or potentially violent second biological

parent was found to be frequently detrimental to the pregnant

woman and, indeed, to the one parent who has been con-

sulted, resulting in reduced intrafamily communication.”

In Minnesota, 20-25% of minors seeking judicial authoriza-

tion voluntarily consulted with or were accompanied to hear-

ings by one parent, demonstrating the severe problems caused

by requiring notice to both parents. Indeed, two-parent con-

sultation requirements had the perverse effect of inhibiting

parent-child communication: When the daughter and one

parent agree that contact with the other parent will be coun-

™ Minn. Stat. Ann. § 144.343(3).

Hodgson, 648 F.Supp. at 769 (“[iJn these instances, the requirement

that minors notify both biological parents actually reduces parent-child com-

munication”) (emphasis supplied).

terproductive, a legally-imposed need to notify the second

parent or obtain a judicial waiver of notification “distracts the

minor and her parent and disrupts their communication.”

Voluntary communication with one parent is actually reduced

by a requirement that only consultation with both will suffice;

some minors were dissuaded from contacting even one parent

when only the consent of two would obviate the need for judi-

cial proceedings.*°

C. If Court Upholds Parental Notification, it Must

Preserve a Judicial or Other By-Pass to Protect

Minors’ Privacy Rights, and the By-Pass Must Be

Meaningful and Workable.

1. By-Pass Must Be Preserved.

This Court has properly held that “the State does not have

the constitutional authority to give a third party an absolute,

and possibly arbitrary, veto over the decision of the physician

and his patient to terminate the patient’s pregnancy.”®' Al-

though every minor may not be competent to make the abor-

tion decision by herself, for those who are competent, the

fundamental right to decide bars the state from delegating the

decision to another.

To protect all minors’ privacy rights to decide to terminate

their pregnancies without the forced involvement of their

parents, a state must provide a by-pass procedure that allows a

minor to seek the advice, counsel and support of another com-

petent adult who can help her make the decision herself and

who can determine, if the minor is not mature, whether it is

in her best interests to have the abortion.® A judicial deter-

Id. at 778.

* Id. at 769, 778.

*! Danforth, 428 U.S. at 74; see Akron, 462 U.S. at 439-440; Bellotti 11,

443 US. at 643.

* Ordinarily, the determination of a minor's competence to consent to

medical treatment is made by the minor's physician. In Massachusetts, for

mination is but one, and in many cases not the best, by-pass

procedure.*

Without a judicial by-pass or other alternative to parental

involvement in the abortion decision, four out of ten minors —

those who would choose not to consult their parents — will be

denied their fundamental right to choose to terminate their

pregnancy in private. Some will succumb to anti-choice pres-

sure or their parents’ will that they carry to term, others will

have an illegal abortion or self-abort, and others will suffer the

negative, even violent, consequences that the revelation of

their pregnancy or abortion decision causes. :

2. By-Pass Must Be Meaningful and Workable.

Amici wish to emphasize that by-pass does not cure the

burdens caused by forced parental notification or consent,

particularly two-parent notification or consent. Nor do amici

endorse the concept of judicial by-pass as the best way to pro-

tect minors’ constitutional rights. Nevertheless, it is the mini-

mum necessary to protect minors’ constitutional rights to

decide to terminate their pregnancy without an actual or de

example, the common law mature minor rule allows the physician to deter-

mine whether the minor is capable of giving informed consent to medical

treatment and whether it is in the minor’s best interests to notify his or her

parents. Baird v. Attorney Gen., 371 Mass. 741, 754 (1977). Immature

minors already require the consent of one parent. Id. at 753.

* Maine has just enacted a comprehensive statute that provides for paren-

tal consent or judicial by-pass, but also provides for critical and meaningful

alternatives. The statute authorizes a physician to perform an abortion on a

minor after the physician has received the informed written consent of that

minor and the physician has ensured that the consent is truly “informed” by

counseling the minor according to specific criteria and determining that the

minor is mentally and physically competent to give consent. See An Act to

Require Parental Consent to a Minor’s Abortion, 1989 Maine Acts Ch. 573,

§ 2 ¥ 2(2), (3) (amending 22 Me. Rev. Stat. Ann. § 1597-A).

Wisconsin requires providers of abortion services to encourage minors to

notify their parents unless they determine that the minor has a valid reason

not to do so. In that situation, the statute provides an alternative to parental

notification. The hospital or clinic personnel encourage the minor to notify

another family member, a close friend, a school counselor, social worker or

other appropriate person. Wis. Stat. Ann. § 146.78(5) (1989).

facto parental veto. Accordingly, a judicial by-pass provision

‘must be meaningful and workable.

Massachusetts has had the longest experience with judicial

by-pass, initiating the procedure in 1981. Over that time the

procedure has worked about as well as such a procedure could

for those who have chosen to use it: Thousands of minors have

petitioned the court, all but a minute handful of petitions have

been granted without appeal,** and the average time period

from the time an attorney is contacted and a hearing takes

place is 4-5 days.** Key to the “survivable” working of the

Massachusetts procedure are the Rules and Guidelines issued

by the Massachusetts courts. See Appendix B. These Rules and

Guidelines provide for the essential elements of expedition,

confidentiality, appointment of counsel, and the determina-

tion of maturity or best interests. Although the Massachusetts

by-pass procedure is not without its problems, this procedure

is, when the Rules and Guidelines are followed, faithful to the

teaching of Bellotti v. Baird, and, as confirmed by nearly ten

years of experience, representative of what such a procedure

must entail.

Time is of the essence when deciding to terminate a preg-

nancy, as each additional week of gestation increases the

health risks from abortion. To ensure that petitions are heard

expeditiously, the Rules and Guidelines specify that petitions

should be heard in chambers on any day the court is in session,

** Between April 1981 and February 1988, 5,460 minors sought judicial

consent for abortion in Massachusetts pursuant to Mass. Gen. L. ch. 112,

§ 12S. Only twelve petitions were denied: Of these nine were overturned on

appeal within three days, one minor petitioned another court, one went out

of state, and one minor obtained parental consent during appellate pro-

ceedings. PPLM, supra n. 68, at 2.

** Yates & Pliner, supra n. 74, at 648 (though 4.2-5.2 days was average

delay, specific delays ranged from one day to 39 days). Much of the reason

for expedition in Massachusetts is a combination of the efforts of amicus

Massachusetts Judicial Consent for Minors Lawyer Referral Panel and coop-

erative court personnel. This Court should not be so naive as to think that

lawyers and court personnel in other states would necessarily be as helpful.

Moreover, by-pass causes other delays: i.e., locating an attorney initially,

any appellate proceedings and scheduling the abortion procedure some time

after the hearing.

mer _ <n

expeditiously, and if possible on the same day of filing.** The

Rules and Guidelines provide for waiver of fees and for court-

appointed counsel, which is essential to navigate expeditiously

through any court procedures. To ensure confidentiality, only

a sealed affidavit contains the minor’s real name. She need not

state her name on any other documents or during the hearing,

her name should not appear in the transcript of the pro-

ceedings, and the in-chambers hearings are to be held out of

the presence of unnecessary court personnel. Moreover, state-

wide venue is provided so that a minor need not attend court

in her neighborhood.*’ !

Most importantly, and following the precise lead of Bellotti

II, the Massachusetts Rules and Guidelines set out a two-tiered

approach under which judges are to determine whether to

grant the petition. First the judge must determine whether the

minor is mature enough to make the decision. Only if the

judge determines that she is not mature, does the judge move

to the second tier of inquiry, whether the abortion would be in

her best interests. The Rules and Guidelines further set forth

the appropriate inquiry when making these determinations,

* App. B at B-3, { 2. Ideally, a statute should specify very short deadlines

for scheduling hearings, rendering decisions, and hearing and deciding

appeals in order to avoid delays such as the potential 3-week delay wrought

by the Ohio statute. Ohio allows 5 business days for scheduling the initial

hearing, 4 days for docketing the appeal and 5 days for the appellate hearing,

and calls for decisions “immediately” after the hearing. Akron Center for

Reproductive Health v. Rosen, 633 F.Supp. 1123, 1141-1142 (N.D. Ohio

1986), aff'd, Akron Center for Reproductive Health v. Slaby, 854 F.2d 852

(6th Cir. 1988), jurisdiction noted, 109 S.Ct. 3239 (1989). Compare La. Rev.

Stat. Ann. § 40:1299:35:5 (1989 Cum. Supp.) (hearings to be held within 48

hours of filing of application, for both initial petition and appeal); Nev. Rev.

Stat. Ann. § 442.255.2(c) (1986) (hearing must be held within 2 days of filing

and decision rendered within 1 day of hearing), with Maine Acts Ch. 573 § 2

{ 6(C) (5 days both for initial hearing and for appeal); Wyo. Stat. § 35-6-118

(1989 Cum. Supp.) (5 days for initial hearing, no guideline for appeal).

*" App. B at B-2, {{ 2-3; B-3 to B-4, {{ 4-5. Contrast with the Ohio prac-

tice, which requires a minor to provide her true name and address on the

complaint. Rosen, 633 F.Supp. at 1143-44. Yet, even with the Massachusetts

guidelines, a minor's confidentiality can be breached when persons she

knows recognize her at court. See PPLM, supra n. 68, at 4.

including the minor’s age, school and work experience,

whether the decision is her own and whether she has discussed

it with others.**

The Rules and Guidelines specifically caution that a judge

should not question a minor in such a way as to promote “a

particular set of moral values.” They direct judges not to in-

quire into the minor's or her parents views on the morality of

abortion, whether the minor considers the fetus to be an

“unborn child,” or whether the minor believes she is destroy-

ing life.*

Only if the judge fails to find the minor mature, should he

or she consider whether the abortion is in the minor's best

interests. The Rules and Guidelines then propose that judges

apply the doctrine of “substituted judgment”” in conducting

the best interests inquiry, explaining,

[t]hat doctrine essentially requires a court to determine

what an incompetent person would choose were she fully

* App. B at B-4, ff 6-8.

App. B at B-4, § 7. Unfortunately, in Massachusetts, and one could

predict elsewhere, this guideline is far from uniformly followed. See Planned

Parenthood League of Massachusetts v. Bellotti, 868 F.2d 459, 466 (Ist Cir.

1989). Nevertheless, former Massachusetts Superior Court Judge Paul

Garrity, who testified in Hodgson about his experience with the Massachu-

setts statute, admitted that he is personally opposed to abortion, yet he

heeded the Guidelines’ admonition not to let his personal views interfere. He

found every minor who appeared before him mature enough to make the

decision. Tr. at 1322-1325, Hodgson.

Other statutes’ lack of standards for determining maturity and best inter-

ests are an open invitation for judges improperly to question the minor about

her moral and religious views. For example, the Maine statute's catch-all

provision that allows a judge to consider “[a]ny other evidence that the court

may find useful,” 1989 Maine Acts Ch. 573 § 2 { 6(C)(3), opens the door to

such improper inquiry. See also In re T. W., 543 So.2d 837, 841 (Fla. App. 5

Dist. 1989) (Florida statute's lack of guidelines for determining maturity or

best interests imposes clear danger that judges will render decision on basis of

their own moral, religious or political beliefs rather than on a constitution-

ally permissible basis).

728, 750 (1977); Brophy v. New England Sinai Hosp., Inc., 398 Mass. 417,

431 (1986).

competent, while bearing in mind her expressed choice

and partial competency. Various considerations may be

relevant to a “best interest” determination. As to this

finding, the court may inquire into the minor's reasons

for not seeking her parents’ consent. Where the minor is

accompanied by one parent who supports her petition,

that support should be given great if not dispositive

weight.*'

This Guideline is, of course, critical because it ensures that a

judge does not assess a minor’s best interests according to the

judge’s moral views of abortion.”

If followed, rules such as the Massachusetts Rules and

Guidelines can properly shield minors from harassing ques-

tions by judges, expedite the proceedings to avoid undue

deiay, and protect the minor’s privacy and confidentiality as

much as possible under the circumstances.

Conclusion

To exercise their fundamental right to reproductive choice,

minors need access to reliable information about childbearing

and abortion from a competent. adult, including a parent,

if they choose, or from trained counselors and physicians so

that they may ultimately make the decision that is best for

*! App. B at B-4 to B-5 § 8.

* Application of the substituted judgment standard would have prevented

the four-week delay in obtaining an abortion for a minor in Alabama where

the judge determined that an abortion was not in her best interests because

her prognosis for delivering a baby was fair! See Ex Parte Anonymous, 531

So.2d 901, 902-903 (Ala. 1988). The minor, 12 years old and 14-16 weeks

pregnant, whose mother was in a psychiatric ward and father had left home,

testified that she did not want to have the baby, could not take care of the

baby or herself, and that her two aunts agreed with her decision. After find-

ing that she was not mature, the trial judge denied her petition ruling that, at

14-16 weeks gestation, her prognosis for delivery was fair. Jd. Although the

ruling was reversed on appeal as clearly improper, four weeks elapsed during

appeals to the appellate court, which remanded instead of granting the peti-

tion outright, and to the Supreme Court of Alabama.

themselves. If this Court is truly concerned with the quality of

childbearing decision making by minors, it must not deter

minors who will not voluntarily consult their parents from get-

ting the counseling and health services that they desperately

need for a safe abortion or a safe pregnancy. Forced parental

notification or consent bars the provision of safe abortion

counseling and services to those individuals who need help the

most — minors who feel they cannot involve their parents in

their reproductive decisions. To protect a minor's privacy, if

such notification is upheld, a meaningful by-pass is required,

as eight members of this Court recognized in Bellotti v. Baird.

Guidelines such as those in Massachusetts provide the mini-

mum essential ingredients of a meaningful, workable by-pass

procedure.

For the foregoing reasons, the judgment below in Hodgson

v. Minnesota should be.reversed in part, and the judgment in

Ohio v. Akron Center for Reproductive Health should be

affirmed. —

Respectfully Submitted,

JouHn H. HENN

(Cou: sel of Record)

NINA J“ AN KIMBALL

Fo.ey, Hoac & E ior

One Post Office Square

Boston, Massachusetts 02109

(617) 482-1390

Dated: September 1, 1989 Attorneys for Amici Curiae

A-1

APPENDIX A

Interests of Amici

The Center for Population Options (CPO) is a national,

non-profit organization dedicated to the prevention of unin-

tended adolescent pregnancy and too-early childbearing. CPO

develops programs to increase opportunities for young people

through education, comprehensive health care, and access to

family planning services.

Planned Parenthood League of Massachusetts, Inc. is a non-

profit organization which, with others, is the certified class

representative of minor women who are engaged in an on-

going challenge to the Massachusetts minors’ abortion parental

consent/judicial by-pass statute, Mass. Gen. L. Ch. 112, §12S,

which has been in effect longer than any other such statute in

the nation, and which was enacted in direct response to the

striking down of the predecessor §12S by the Court in Bellotti

v. Baird. *

Girls Clubs of America serves more than 250,000 girls and

young women ages 6-18 nationally through programs and

advocacy. Preventing adolescent pregnancy is an important

goal of the organization. A major objective of its program in

this area is to improve communications between parents and

their daughters.

The Massachusetts Judicial Consent for Minors Lawyer

Referral Panel is a volunteer association of over two hundred

Massachusetts lawyers who for the last eight years have repre-

sented more than 6,000 pregnant minors seeking judicial con-

sent for an abortion (in lieu of parental consent) under Mass.

Gen. Laws ch. 112, §12S.

Mobilization for Youth Health Services, Inc. is concerned

that the erosion of Roe v. Wade will lead us back to the days

where social class and ability-to-pay were highly determina-

* 443 U.S. 622 (1979) (Bellotti 11). The history of the new §12S and the

litigation challenging it is set forth in part in Planned Parenthood League of

Massachusetts v. Bellotti, 868 F.2d 459 (1st Cir. 1989).

A-2

minative of whether choice was available and, if available,

whether that choice was exercised under conditions of

hygiene, care, and skill normally accepted as standard for the

medical profession. Social realities being what they are, the

victims of the curtailment of an essential right for women

would be millions of disadvantaged and poor women in the

United States.

The United States Student Association (USSA) is a nation-

wide non-profit membership organization which represents

approximately two million students at approximately 200 col-

leges and universities throughout the United States. USSA has

a strong commitment to ensuring access to higher education

and the right to self-determination for all individuals regard-

less of age, gender, economic status, race, disability, sexual/

affectional orientation, or veteran status.

Brooklyn YWCA (Young Women’s Christian Association) is

part of the oldest and largest worldwide women’s membership

organization dedicated to empowering women. The Brooklyn

YWCA opposes any effort to restrict the access of poor and

young women to quality health care services, as well as any

attempt to deny them their_right to reproductive freedom.

Students and Youth Against Racism is a national organiza-

tion based in New York City with chapters nationwide whose

women members include students and youth from many com-

munities. It supports the right of all young women to make the

decision to terminate a pregnancy through abortion, without

restrictions, if they so choose. To deny safe, legal abortion

would seriously harm the health of and discriminate against

untold numbers of young women, especially the poor, unem-

ployed, and Black, Latino, Asian and Native Americans, who,

without the funds to obtain safe abortions, would have to

resort to dangerous health-threatening procedures.

Professor William Kassen, a child psychologist at Yale

University, is a member of the National Academy of Sciences

and the vice chairman of the Committee on Child Develop-

A-3

ment Research and Public Policy that proposed and contrib-

uted to the report Risking the Future: Adolescent Sexuality,

Pregnancy. and Childbearing.

The American Public Health Association, established in

1872, is a national nongovernmental professional society rep-

resenting 55,000 members in all disciplines and specialities in

public health. APHA is devoted to the universal protection

and promotion of public health, and the equality of health

services for all persons.

The National Family Planning and Reproductive Health

Association, Inc. (NFPRHA) is a non-profit membership corpo-

ration designed to improve and expand the delivery of compre-

hensive family planning and reproductive health care informa-

tion and services throughout the United States. NFPRHA

represents over 85 percent of the agencies and organizations

that operate family planning programs with funds received

under Title X of the Public Health Services Act of 1970.

Abortions Rights Mobilization (ARM) is a Section 501(c)(3)

organization, which uses lawsuits, education and other techni-

ques “to implement and guarantee a women’s right to legal

abortion as decreed by the U.S. Supreme Court,” following

ARM’s by-laws.

Abortion Rights Council (ARC) was founded in 1968 and

currently has 5,000 members and 12,000 supporters in the

State of Minnesota. It has as its sole purpose keeping abortions

safe and legal for all women. ARC opposes any further restric-

tions on women’s access to abortions and supports the princi-

ples established in Roe v. Wade.

Choices Women’s Medical Center is a New York State

licensed medical facility serving over 30,000 patients a year in

the New York City area for family planning, abortion and pre-

natal care. Since its founding in 1971, Choices Women’s Med-

ical Center has been at the forefront of insuring high quality

feminist women’s health care to its patients and fighting polit-

ically to retain the right to choose.

A-4

Child Care Law Center in San Francisco, California is the

only legal services organization in the country exclusively dedi-

cated to expanding the supply of affordable, quality child

care. It has a particular emphasis on serving the needs of low-

income women, and as such it strongly supports the rights of

low-income women to have equal access to health services,

including abortion.

The National Organization for Women (NOW) is the largest

feminist organization in the United States. Fundamental to

NOW’s purpose is the right of women to control their own

bodies and to determine if and when to bear children.

Women’s right to reproductive freedom impacts not only their

right to privacy, but also their health and safety.

The American Association of University Women (AAUW), a

network of 140,000 college-educated women, promotes equity

for women and girls. The AAUW supports the right of every

woman and girl to safe and comprehensive reproductive

health care. AAUW believes that decisions concerning repro-

ductive health care are personal ones, and that the right to

make informed decisions should be available to all women.

The American Jewish Congress, an organization of Ameri-

can Jews founded in 1918, is fully committed to protecting the

right of all women to exercise reproductive choices. While it

believes that involving parents in the choices of their teenage

daughters is desirable, it believes that such involvement can-

not be mandated by law, because study after study demon-

strates that these laws are wholly ineffective, even, in many

cases, counterproductive.

The National Council of Jewish Women, founded in 1893

and numbering 100,000 members across the United States, is

dedicated, in the spirit of Judaism, to advancing human

welfare and the democratic way of life through a combination

of social action, education and community service. It has

adopted a National Resolution to work for “the protection of

every female’s right to choose abortion, and the elimination of

obstacles that limit reproductive freedom.”

The Women’s Law Project (WLP) is a non-profit law firm

dedicated to advancing the status and opportunities of

A-5

women. WLP believes that the right to reproductive choice is

an essential component of women’s ability to play an equal

role with men in this society, and has engaged in extensive liti-

gation and public education designed to protect women’s legal

right to abortion.

The Women’s Action Alliance, Inc. in New York City works

extensively with community-based organizations serving

women of color, young women, and low-income women. We

are keenly aware of the importance of maintaining a full range

of reproductive options for these and all women. If abortion

services or access to abortion were to be restricted, these

women would have no alternative but to seek dangerous alter-

natives to safe and legal abortion.

The National Gay & Lesbian Task Force (NGLTF) is a

national membership advocacy and political organization

founded in 1973, to protect and advance the civil and social

rights of lesbians and gay men. NGLTF strongly supports the

reproductive freedom of all women and the expansion of a

fundamental right to privacy of all people in the area of

reproductive and sexual decision-making.

The National Gay Rights Advocates (NGRA) is a non-profit

public-interest law firm founded in 1978, which engages in

impact litigation throughout the country on behalf of lesbians

and gay men. Preserving the constitutional rights to liberty

and privacy, rights that are principal components of a

woman’s right to choose abortion, are of fundamental concern

to NGRA’s work and its membership.

Lambda Legal Defense and Education Fund, Inc., founded

in 1973, is the nation’s oldest and largest national legal

advocacy organization working in furtherance of the rights of

lesbians and gay men. As an organization representing the

lesbian and gay community’s belief in the constitutional right

to liberty and bodily autonomy, Lambda strongly supports the

position that women in our society are constitutionally en-

titled to make their own decisions about whether to choose

abortion.

A-6

The National Council for Research on Women is an inde-

pendent association of established centers and organizations

that provide institutional resources for feminist research, pol-

icy analysis, and educational programs for women and girls.

The Minority Prison Project of Memphis, Tennessee works

for the protection of the men, women, and children im-

prisoned in the United States. We work to try and regain the

rights for these humans, under the Constitution, that is denied

them daily.

All-Peoples Congress, based in New York City, is a national

organization with chapters in communities in many major

cities whose women members are Black, Latino, Asian,

Native, white, students, lesbians, workers, unemployed, dis-

abled, seniors, single heads of households and those on fixed

incomes. It strongly supports a comprehensive federal pro-

gram of guaranteed reproductive rights and health care for all

women, which includes safe, legal, affordable abortion.

The Women’s Bar Association of Massachusetts (WBA),

with over 1,000 members, is committed to the advancement of

women attorneys, to the protection of all women in the legal

system, and has been particularly concerned with the protec-

tion of a woman’s right to choice. The WBA also sponsors a

panel of attorneys who represent ‘minors seeking judicial con-

sent for abortion (amicus Massachusetts Judicial Consent for

Minors Lawyer Referral Panel).

California Women Lawyers (CWL) is an organization of

several thousand women lawyers founded in 1973 for the pri-

mary purpose of improving the situation of women in the State

of California. CWL is committed to all issues affecting a

woman’s right to choice, lobbying against various parental

consent bills and working with a broad-based coalition to

encourage funding and support for programs supportive of

choice.

The Women’s Bar Association of Illinois (““WBAI”’) was

founded in 1914 for the purpose of promoting and fostering

the interests and welfare of women and women attorneys and

A-7

to maintain the honor and dignity of the legal profession.

WBAI’s 1,000 members have long campaigned for individual

rights and liberties, including the right of women to make

reproductive decisions free from governmental interference.

Women Lawyers’ Association of Los Angeles (WLALA),

founded in 1919, is the largest local bar association in the State

of California emphasizing the concerns of women. WLALA

has as members over 1,200 female and male lawyers, judges,

and law students who are personally and professionally con-

cerned with the importance of preserving a woman’s right to

choose for herself whether to terminate a pregnancy.

The New York State Coalition Against Domestic Violence is

a membership organization of battered women’s shelters, safe

home projects, counseling and advocacy organizations and

individuals committed to empowering women and helping

them to lead violence-free lives. The Coalition believes in

women’s rights to choice and in the accessibility of services to

all women, regardless of economic status. This includes every

woman's right to reproductive choice and to medical

assistance.

The Tucson Women’s Commission was founded in late 1975

by the Mayor and Council of the City of Tucson to assist

women in attaining full equality of opportunity in all aspects

of life. The Tucson Women’s Commission also maintains that

public policy in the best interest of women will support a full

range of options, information, and services so that every

woman has the ability to make her own decision about when,

whether, and under what conditions to bear a child.

New York Women in Criminal Justice is an organization of

women whose members include police, probation, and correc-

tion officers; judges, attorneys, and social workers; others who

work in the criminal justice system; inmates and ex-offenders.

In furtherance of our concern that offenders who go through

the system not come out worse than when they went in, we

strongly support the right of a woman to choose abortion,

knowing that the offspring of women in prison become the

A-8

dysfunctional children in school and often the criminals of

the future.

The Missouri Women’s Network is a banding together of

Missouri organizations and individual women and men to fa-

cilitate communication, promote education, and to strengthen

advocacy for women’s issues based on the 1977 National Plan

of Action for Women (adopted in Houston).

The Connecticut Women’s Educational and Legal Fund,

Inc., with over 400 members, is a non-profit public interest

law firm advocating for women’s rights. As an organization

working for equality, we believe that every woman, without

regard to age, religious belief, income, race or disability, must

be able to control her own health and reproduction.

Hawaii Women Lawyers is dedicated to the improvement

of the status of women attorneys and the support of issues of

concern to all women, so as to promote the advancement of

all women.

North Carolina Equity, a non-profit organization, is dedi-

cated to the economic advancement of women. We support

women’s full realization and exercise of their most basic legal

rights, including a woman’s right to control her own body.

This right must include her right to choose an abortion.

The San Francisco Women Lawyers Alliance is a progres-

sive, activist bar organization that was founded in 1983 to pro-

vide a vehicle through which women lawyers could address

women’s issues and enhance the position of women in our

society. One of the issues of particular concern to our member-

ship is freedom of choice and reproductive rights for all

women.

Queen’s Bench of the San Francisco Bay Area, founded in

1912, is the largest bar association in the Northern California

area established to promote the interests of women attorneys.

Queen’s Bench is concerned in maintaining a woman's funda-

mental right of choice to terminate a pregnancy that was

established in Roe v. Wade.

A-9

Fresno Free College Foundation is a community organiza-

tion with offices in Fresno, California. Its origin in 1968 is con-

nected to an academic freedom case and, since that time, it

has, in various ways, been supportive of academic freedom

and the civil liberties of students, professors, and citizens.

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APPENDIX B

STANDING ORDER 5-81. UNIFORM PROCEDURES

REGARDING PETITIONS FOR ABORTION AUTHORI-

ZATION UNDER G.L. c. 112, s. 12 TO INCLUDE AS

AN ATTACHMENT SUGGESTED GUIDELINES,

ORIGINALLY SET FORTH IN PLANNED PARENT-

HOOD LEAGUE OF MASSACHUSETTS v. BELLOTTI,

NO. 81-124 CIVIL (SUPREME JUDICIAL COURT

FOR SUFFOLK COUNTY; LIACOS, J. SINGLE

JUSTICE) (JUNE 16, 1981)

(Amended)

Applicable to All Counties

Effective August 1, 1981

(1) Upon the filing of a petition or motion (petition) under

G.L. ec. 112, § 12S, inserted by St.1980, ch. 240 (a copy of

which is attached), the Clerk-Magistrate (clerk) shall immedi-

ately bring the matter to the attention of the Regional Admin-

istrative Justice or His/Her Designee who will either hear the

petition in his/her session or, through the clerk, assign it for a

hearing in another session.

In any event, the matter shall be given priority over all other

cases then pending “so that the court may reach a decision

promptly and without delay so as to serve the best interests of

the pregnant woman.” G.L. c. 112, § 12S, inserted by

St. 1980, ch. 240. In this regard, the court should not decline to

decide a case brought under § 12S because of any pleading

omissions or other technical defects and shall assist the minor,

particularly if unrepresented by counsel, in presenting rele-

vant facts and by liberally construing the pleadings. (A copy of

a form petition, which is to be made easily available to peti-

tioners, is attached.)

If the position is filed in a county in which no session is being

held, the clerk of court who received the petition shall imme-

diately notify the Chief Justice of the Superior Court by tele-

phone of the pending petition. The Chief Justice shall then

take such action as is necessary to reach a decision promptly

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and without delay so as to serve the best interests of the preg-

nant woman.

(2) Although § 12S permits a pregnant woman less than

eighteen years of age to participate in proceedings in the

Superior Court Department in her own behalf, it is preferable

that the minor be represented by counsel. The statute requires

that the court advise her that she has a right to court-ap-

pointed counsel and that the court shall, upon her request,

provide her with such counsel.

Also, the court may appoint a guardian ad litem to repre-

sent the minor or may make such other orders as necessary

pursuant to Mass.R.Civ.P. 17(b). The compensation for coun-

sel and/or for the guardian ad litem shall be certified by the

justice as an expense incident to the operation of the court. If

the minor requests waiver of costs and fees, as provided by

St. 1980, c. 539, such costs and fees are to be waived.

(3) As provided by § 12S, all proceedings shall be confiden-

tial and all pleadings and other papers fiied shall be designated

anonymously. For example, the proceedings shall be titled

Mary Moe, Mary Doe, etc. If the minor files papers which do

not insure her anonymity, the court shall have the papers pro-

. cessed in a manner which will insure anonymity and shall

return the defective papers to the minor or her counsel. An

affidavit shall accompany the papers in the case. Such affi-

davit shall reveal the minor’s true identity. The affidavit shall

be sealed in an envelope which will be identifiable by having

the docket number of the case inscribed upon it. All such

envelopes shall be kept in a separate file by the clerks of

the various courts. All papers in the proceeding shall be

impounded.

The clerks of the various courts should undertake to insure

that the minor’s contact with the clerk’s office is confidential

and expeditious to the fullest extent practicable. For example,

assistance in filing a petition should be provided in a confiden-

tial setting, such as a private office. Similarly, one or more

persons in the clerk’s office should be at all times available to

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answer questions asked by a minor, either in person or by

phone, and to assist the minor in expeditiously presenting her

petition to the court. Each clerk shall designate one or more

persons to receive and process § 12S petitions and shall insure

that one such person is available to insure prompt treatment.

(4) All proceedings under c. 112, § 12S, shall be conducted

jury-waived with a court reporter present. The statute re-

quires the court to make in writing specific factual findings

and legal conclusions supporting his or her decision and to

order that a record of evidence be maintained which includes

his or her own findings and conclusions. :

(5) Suggested guidelines, originally emanating from a

memorandum of the Single Justice for Suffolk County in

Planned Parenthood League of Massachusetts v. Bellotti, No.

81-124 Civil (Supreme Judicial Court for Suffolk County;

Liacos, J. Single Justice) (June 16, 1981), are attached hereto.

SUGGESTED GUIDELINES

The following guidelines for handling § 12S petitions (“peti-

tions”) are suggested to the Superior Court. These guidelines

are intended to supplement amended Superior Court Standing

Order No. 5-81 and not to replace it.

1. Petitions should ordinarily be heard on any day the

court is in session.

2. Petitions should be heard as expeditiously as possible

upon filing with the Clerk/Magistrate’s office, and on the same

day if practical.

3. All technical defects in the proceedings and in the

pleadings and papers should ordinarily be disregarded by the

Court and by the Clerk/Magistrate.

4. Hearings must be confidential and should be held in the

_ judge’s lobby except where physically impossible. The peti-

tioner (“minor”) should be permitted to have present any per-

son she desires (social worker, counselor, parent, friend), but

the judge should exclude all unnecessary court personnel or

others. The minor should be free to choose whether to go for-

ward without counsel.

B-4

5. The minor should not be required to state her true

name. After explaining the impoundment procedures used to

ensure confidentiality, the judge may wish to ask the minor

her true first name in order to address her by it during the

hearing. The transcript should not contain the minor’s full

true name since she will have previously stated her identity on

a sealed affidavit held by the Clerk/Magistrate pursuant to

Superior Court Standing Order 12-80.

6. It is contemplated that the judge will conduct the hear-

ing on a “two-tier” basis with “maturity” determined first,

and “best interest” addressed only if maturity is not found.

7. As to the “maturity” finding, inquiry may be appropri-

ate in such areas as the minor’s age and school and work ex-

perience, any history of mental illness or other treatment relat-

ing to mental competence, and whether the abortion decision

is a personal decision and not one forced upon the minor by

another and whether the minor has discussed her decision with

other persons. In any inquiry as to the minor's maturity and

her understanding of the nature, consequences and signifi-

cance of her abortion choice, or in any inquiry as to her best

interests, it is suggested that the judge should avoid the crea-

tion of the appearance of seeking to promote a particular set of

moral values by inquiring into the minor's or her parents’

views as to the morality of abortion; or into whether the minor

considers a fetus to be an “unborn child,” as to whether the

minor believes she is in some way taking or destroying life.

8. Where the court finds a minor is not mature, it must

make a determination of whether the abortion or childbirth

alternative is in her “best interest”. The court may be guided

in making such a determination by the substantially coexten-

sive doctrine of substituted judgment. That doctrine essen-

tially requires a court to determine what an incompetent per-

son would choose were she fully competent, while bearing in

mind her expressed choice and partial competency. Various

considerations may be relevant to a “best interest” determina-

tion. As to this finding, the court may inquire into the minor's

B-5

reasons for not seeking her parents’ consent. Where the minor

is accompanied by one parent who supports her petition, that

support should be given great if not dispositive weight.

9. Where the court preliminarily concludes that the minor

is mature, appointment of a guardian ad litem should ordi-

narily be unnecessary. Where the court preliminarily con-

cludes that the minor is not fully mature, it should consider

whether such an appointment is necessary to assure protection

of the minor’s best interest or whether it would lead to

unnecessary delay, particularly if the minor is represented by

counsel, or has been counseled by competent professionals, or"

is accompanied by a parent or other adult.

10. In view of the statutory mandate for expeditious deci-

sions, petitions may be decided in chambers and should, in any

event, be decided as promptly as possible, and ordinarily

within twenty-four hours or less. The Clerk/Magistrate should

inform the minor of the decision as soon as possible and in the

manner which the minor requests.

1l. The Judge or Clerk/Magistrate should give the minor a

copy of an order under § 12S bearing the court’s docket num-

ber, and a copy of her sealed affidavit bearing the same docket

number. Where the decision can be made immediately, the

Judge may choose to have the minor wait, deliver the order

and a copy of the affidavit to her, and seal the original affi-

davit in her presence.

12. A petition should not be denied or a hearing delayed

solely because the minor has not selected a particular clinic,

hospital or doctor for performance of the abortion. If the judge

authorizes an abortion for an immature minor on the “best

interest” basis, he may inquire into her contemplated plans in

order to assure himself that the particular course of medical

treatment she intends to follow will be in her best interests.

13. Appointed counsel in § 12S proceedings should be paid

for in the same fashion as in criminal cases or in such other

fashion as the Chief Administrative Justice of the Trial Court

finds is best suited for such proceedings.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.