The Fight Over Teen-age Abortion

Last July in Webster v. Reproductive Health Services a severely fractured Court upheld a Missouri statute that prohibited abortions in publicly funded hospitals. The decision limited yet did not overturn Roe v. Wade. Still it left open the possibility that the Court might do just that if given a better instrument. Attention then turned to the next set of abortion cases it would consider. Or, rather, attention turned to one of the three cases on the Court’s docket, Turnock v. Ragsdale, which challenged an Illinois statute requiring outpatient clinics that provide abortions during the first three months of pregnancy to have their operating rooms meet expensive hospital standards. These standards, which the lower court found to be without medical justification, would put many clinics out of business and force the others to charge fees that many women would have difficulty paying, if they could pay at all. It would thus seriously curtail the right to abortion. As Ronald Dworkin wrote in these pages:

Since the Webster decision holds that states may forbid abortion in any public hospital or facility, upholding the Illinois statute would have the same effect, for many women, as denying them any right even to an early abortion.”¹

It was this possibility that captured a public imagination already inspired by the Webster decision.

It became clear from Justice Rehnquist’s opinion in Webster that at least he and Justices Kennedy and White were interested in rewriting Roe v. Wade, if not, like Justice Scalia, abandoning it outright. The Ragsdale case was understood to give them the opportunity to do so, and advocates of abortion rights in both parties around the country began to coalesce in the months after Webster. Neil Hartigan, the Illinois attorney general who had aggressively pursued Ragsdale through the lower courts, then had a change of heart. He undertook frantic eleventh-hour negotiations with the ACLU, which had brought the suit, to settle the case.

The settlement, just two weeks before the Court was to hear the case, was expedient not only because it removed the case from the Justices’ reach; it was expedient for Mr. Hartigan personally. An astute politician, he had just announced his desire to run for governor. As the success of pro-choice candidates in Virginia and California was then showing, and rifts in the Republican party show today, championing abortion rights may no longer be a liability for politicians; in fact, it may even be a necessity.

Since the Ragsdale case was settled, public interest in the Court’s abortion cases has waned. It will be at least another year before the Justices are presented with an opportunity to scuttle Roe—an opportunity provided by neither of the two remaining cases, Hodgson v. Minnesota or Ohio v. Akron Center for Reproductive Health, both of which challenge state laws requiring that one or both parents be informed before a minor can get an abortion. But the Webster decision proves that Roe need not be overturned to be effectively nullified, and this is what both cases have the potential of doing to a quarter of all those who obtain abortions annually—eleven-to eighteen-year-old girls.

About 2,825 teen-age girls got pregnant last November 29, the day the Supreme Court heard oral arguments in Hodgson v. Minnesota and Ohio v. Akron Center for Reproductive Health.² About the same number will become pregnant on the day this spring or summer when the Court issues its opinions. These are average days that add up to an average year of well over a million teen-age pregnancies, nearly half of which end in abortion. The other half, the babies carried to term, are dealt one of fate’s lesser hands (although a better hand, arguably, than those not born at all). They will be twice as likely to die in infancy as babies born to mothers in their twenties; they will have lower birth weights and the problems associated with low birth weight like mental retardation and cerebral palsy; they will be fed, housed, and clothed primarily by state and federal welfare departments.³ Three years ago, the government spent $19.27 billion in benefits to families in which the mother first gave birth as a teenager.⁴ As poverty has become “feminized,” it has become a teen-age wasteland—and this, overwhelmingly, at a time when abortion has been legal and abortion services widely available.

Researchers have consistently showed that unmarried teenagers who choose to abort their pregnancies have a stronger “sense of the future” than the ones who choose to have and keep their babies. They are better students. Their parents are better educated.⁵ Predictably, race and class are also descriptive. In their comprehensive review of the existing data on teen-age pregnancy, Risking the Future, an interdisciplinary panel of experts convened by the National Research Council in 1984 found that though black teenagers are more likely than white teenagers to get pregnant, “whites are more likely than blacks to terminate an unintended pregnancy, and that girls from families with higher socioeconomic status are more likely to abort than those from poverty backgrounds, especially from families on welfare.”⁶ But it would be wrong to suppose that teen-age abortion is largely confined to the white middle class. Twice as many black, predominantly poor girls get pregnant as do whites, and two times as many black pregnancies end in abortion: 68.9 per 1,000 black girls compared with 35.8 per 1,000 white girls. ⁷ These are the girls who will be most vulnerable to laws restricting teenagers’ access to abortion services.

The cases before the Supreme Court concern two such laws, both of which require parents of unmarried girls under eighteen to be notified that their daughter is having an abortion before the abortion can be performed. The Minnesota law at issue in Hodgson is the more restrictive of the two: it requires the notification of both biological parents, whether or not they are married, whether or not one or the other has ever met the child, whether or not the parents are abusive. (In explaining to the Court why the statute requires parents who do not have custody of their children to be notified—and half of the minors in the state do not live with both biological parents—John Tunheim, chief deputy attorney general, said, “I submit that there’s no evidence in this record or no reason for the belief that a non-custodial parent is not fit to assist a minor during a difficult time in her life.” Abortion, however, is the only medical procedure in the state where both parents of a minor must be notified.)

The Minnesota law was in effect between 1981 and 1986, when it was challenged by the American Civil Liberties Union, which used evidence gathered over the five years to successfully convince a three-judge panel of the United States Court of Appeals for the Eighth Circuit that there was “no factual basis upon which this court can find that [the Minnesota statute] on the whole furthers in any meaningful way the state’s interest in protecting pregnant minors or assuring family integrity.”⁸ When the composition of the court changed in 1987, and the full court, now with a majority of Reagan appointees, met en banc, the decision was reversed.

In the Ohio case there is no history of the law’s effects, since before it was ever put into practice the Sixth Circuit Court of Appeals ordered that it not be enforced. Lawyers for Planned Parenthood, who are fighting the Ohio law, claim that had it been in effect it would have created a system that could take a pregnant girl more than three weeks to negotiate her way through it. Since deaths resulting from abortion are estimated to increase approximately 20 percent for each week of gestation from the eighth to the fifteenth week of pregnancy and 50 percent after that,⁹ the burden of a three-week delay, they argue, is unconstitutional because the state of Ohio has no “compelling interest” in requiring a pregnant girl to talk with her parents since that conversation would pose a danger to her health.¹⁰

Laws requiring parental notice or parental consent before a teenager can have an abortion are not new. At present, thirty-one states have them, although two thirds are not currently enforced under several of the Court’s previous rulings. As early as 1976, just three years after Roe v. Wade, the Supreme Court held in Planned Parenthood of Central Missouri v. Danforth that a teenager’s right to privacy when deciding whether or not to have an abortion was weaker than an adult woman’s, and that a state could legitimately require her parents’ participation in that decision. Nevertheless, it struck down the law at issue in Danforth, which required the consent of at least one parent for all first trimester abortions on unmarried minors, on the grounds that it allowed parents “an absolute and possibly arbitrary veto.”

Three years later, in Bellotti v. Baird, a case which challenged the Massachusetts parental consent law, the Court refined its thinking, enumerating the reasons why states were justified in limiting the privacy rights of minors: “the peculiar vulnerability of children,” “their inability to make critical decisions in an informed, mature manner,” and “the importance of parental role in childrearing.” However, the Court said, if the state does require parental consent, it must also provide, for girls who feel they cannot get their parents’ approval, another way to get permission for the abortion from a neutral third party, usually a judge.

This alternative procedure, known as a “judicial bypass,” is at the heart of the Minnesota and Ohio cases. Both states are arguing that parental notification statutes do not require bypass procedures. Their logic is rather neat: in Danforth and Bellotti, the Court was ruling on parental consent laws, not parental notice laws, and notice, unlike consent, does not offer parents a veto over their daughter’s abortion decision—it is merely informational—therefore, if no veto is possible, no alternative procedure is necessary.

The objections one can raise to this line of reasoning—that it’s primarily a semantic argument, that it is based on an idealized, storybook version of family life, that in a certain number of cases telling parents will have the practical effect of an arbitrary veto—each attests to the narrowness of these provisions, and each suggests, too, that for their authors consequences do not matter.

These laws do not propose to outlaw abortion (and so lack the moral authority of those that do). Instead they propose to throw a few obstacles in the path of those who are already limping along—the girls who cannot talk to their parents, the girls without the money to travel to states without restrictions, the girls from broken homes. A quarter of all the bypass hearings held in Minnesota were attended by a mother and her teen-aged daughter, who had been compelled by law to petition the judge not to inform the girl’s absent/incestuous/alcoholic/violent father of her pregnancy and abortion. If the Court agrees that parental notification laws do not require a bypass mechanism, and if it accepts Minnesota’s new-age family piety, this appeal would be foreclosed.

There are many reasons why girls do not want their parents to know that they want an abortion.¹¹ They aren’t especially complicated reasons, although some may seem more meritorious than others. A girl may be afraid of disappointing her parents, she may be afraid of their wrath, she may be a victim of incest or other forms of parental abuse. “Mary Moe,” a seventeen-year-old from Roxbury, Massachusetts, whom I met at the Middle sex County Courthouse in Cambridge last fall, is in many ways typical of other girls in her situation. A high school senior who wants to go to music school, she is afraid of telling her mother she’s pregnant again, and that she is still incapable of taking on the responsibility of a baby. A year ago, when Mary was sixteen, her mother angrily consented to an abortion. Many of the other kids in her housing project have children, Mary told me. Like her, most started having sex when they were in the sixth grade, between eleven and twelve years old.

Last time, when friends there found out she was pregnant they urged her to have the baby; her kids could be friends with their kids, they said. Then, when they heard she had had an abortion, they turned on her and said she was a murderer. So did her boyfriend. So did her mother. Afraid of antagonizing her this time, Mary decided to use the bypass procedure available in Massachusetts. She made arrangements with a lawyer, who had been referred to her by Planned Parenthood and paid for by the state, to meet with a judge. This took many days and many furtive phone calls. The judge would decide if she was mature enough to make the abortion decision without involving her mother or, if she was not, if an abortion would be in her best interest anyway.

In his chambers, Superior Court Judge Joseph Mitchell delivered a rapid-fire round of questions to Mary: how far along is she, what grade is she in, does she know the risks of abortion? He dwelled on nothing. Three minutes later, the whole proceeding, which is supposed to assess the minor’s competence to give informed consent, was over. It was the 265th judicial bypass case the judge heard last year and his 265th approval. It is no wonder that he is the judge the lawyers seek out. Before the year was out he had ruled in half of the nine hundred or so bypass procedures in the state.

In Judge Mitchell’s view, which he shares with no other judge I’ve heard of in Massachusetts, the fact that a teenager is sitting in his chambers at all is evidence of her maturity. To get this far she has had to see doctors, talk to counselors, arrange for a lawyer. She has had to get herself to court. But court, he says, is not the proper venue to discuss her situation. The proper place is a doctor’s office. Abortion, the judge believes, should be a matter solely between “the young lady and her physician.”

Most young women, especially poor young women on Medicaid, do not have a relationship with a physician, and they are unlikely to develop one at an abortion clinic, where doctor and patient tend to meet for the first time in the operating room. Abortion clinics provide counselors, but as kind and compassionate and skilled as they may be, they see patients in a setting biased toward surgery. This is why the Court recognized the need for involving parents in what is likely to be a serious and complicated decision. But the reason for requiring parental involvement is not that the moral dimensions of the abortion decision are appreciably different for teen-age girls from those of grown women. Rather, the reason for parental involvement is to protect girls so that their decision may be informed, uncoerced, and intelligent. This is why the court required a substitute for the actual parent.¹²

In its brief, Minnesota seems to take into account Bellotti, which allowed girls to bypass the requirement for parental consent, when it explains the rationale behind its parental notification statute:

While [the statute] does not contain an express statement of its purposes, its primary purposes are apparent from its language. These include the recognition and fostering of parent-child relationships [and] promoting counsel to a child in a difficult and traumatic choice.¹³

One might expect the law, then, as a matter of course, to provide an alternative for those girls who cannot obtain that counsel from their parents. Instead, though, the brief turns on its heels and goes in a completely different direction (where the kindly, avuncular Dr. Welby reverts back to the stern paterfamilias of Father Knows Best), when it states that the law is intended to provide “for notice to those who are naturally most concerned for the child’s welfare.” What sounds tautological—the purpose of a parental notice law is to provide notice to parents—is not, but instead is a very definite, and possibly even dangerous, change from the benign paternalism of Bellotti to a sense of parenthood as a property right. In its brief Minnesota makes the claim that

in this case the other interests are fundamental ones of far longer standing than is Roe v. Wade, i.e., that the presumptive right and duty to raise children and be involved in their lives and decisions rightfully belongs to parents…. Thus, it is submitted that the Court should strike a balance among the various rights and interests by permitting parents the most basic…tool of the parenting function, knowledge. [emphasis added]¹⁴

What is this knowledge for? Justice Scalia, questioning John Tunheim, the Minnesota chief deputy attorney general, summed it up:

Mr. Tunheim, I had assumed that the purpose of this provision—maybe you will tell me otherwise—but I had assumed…apart from whether it would do the child good or not…that there’s a parental interest involved as well as a filial interest, isn’t that so? [emphasis added] ¹⁵

While children have always been less than whole persons in the eyes of the law, and it was not until 1967 that the Supreme Court allowed that minors are “persons” as defined by the Bill of Rights and the Fourteenth Amendment, parental interests have not been considered absolute or necessarily dominant by American courts and legislatures. Most states, including Minnesota and Ohio, recognize that parents do not always have the right to know, that sometimes parental knowledge, or the threat of telling parents, might not only not do a child good, it might do a child harm. This is why they make a point of ensuring the confidentiality of minors who seek birth control, drug abuse counseling, and prenatal care. Parental notice or consent as a precondition for these services, it is believed, will discourage youngsters from getting help.

These examples are instructive. If a child is forced to tell parents that he or she is in drug treatment the child might then drop out of treatment; if a child must notify parents that she wants birth control pills the child might be drawn to have unprotected intercourse: similarly, if a young girl is made to tell her parents she is having an abortion, she may be discouraged from having one. This, one might surmise, is the real intent of a parental consent law without a bypass mechanism. In fact, in its brief, the State of Ohio suggests this:

The state notifies parents when a minor child is charged as a truant, a delinquent, an unruly child or a traffic offender. While parents could react with hostility to the knowledge that their child was acting outside the law, just as they could react hostilely to their daughter’s pregnancy, such a possibility does not mandate the necessity for a bypass procedure.¹⁶

The bypass, to be sure, is not perfect or even refined. It is riddled with defects. For one thing, it tends to favor the most resourceful girls, the ones who are sophisticated enough to find a lawyer. (Being resourceful doesn’t necessarily have to do with money—the girls with the money tend to travel to states that don’t have restrictions.) For another, going through the bypass procedure takes time, and time increases the health risks to the patient and the cost of the operation. In 1981, after the consent law went into effect in Massachusetts, Boston’s Brigham and Women’s Hospital reported an increase in the number of teenagers requesting second trimester abortions.¹⁷ According to the National Academy of Sciences panel, 82 percent of those who provide abortions will not perform abortions after the first trimester.¹⁸

The bypass system is troubling, too, because it invites breaches in confidentiality. According to the American Civil Liberties Union, as many as twenty-three strangers learned of a girl’s pregnancy as she went through the court system in Minnesota. In small towns, some of those twenty-three may be neighbors, rather than strangers. Judges have also been known to use the bypass hearing as a stage for harassment, like the judge in Massachusetts who asks the girls why they can’t keep their knees together, or the one who invents game-show hypotheticals to “test” the minors’ maturity. (During one hearing, according to a lawyer who was there, this judge is reported to have asked a fifteen-year-old girl how she would spend a thousand dollars if suddenly someone gave it to her. I’d put in the bank, she told him. No, he said, you have to spend it. I don’t want to spend it, she said, I want to save it. You can’t, said the judge. All right, she said, I’d take a vacation in the Caribbean. The Caribbean? the judge asked. Well, what if you had the choice between a week in the Caribbean, a week in Europe, and two weeks in California, which would you choose? The Caribbean, she said. Why not Europe? the judge asked. I don’t speak French, the girl replied. The matter seemed to end there, but later, when the judge was reviewing her school reports he noticed that she studied Spanish. Spanish? he asked her. Are you sure you don’t want to reconsider going to Europe?) Still, despite its defects, the bypass has the potential to be a counterweight to a teenager’s right to privacy and her parents’ right to raise her.

The importance of the bypass became obvious to me a few months ago when I spent a few days at two abortion clinics in Kentucky not long after a parental consent statute had been enacted. (It has since been enjoined.) Although the statute contained a bypass provision, no one had actually used it; girls who did not want to tell their parents were going out of state, often to Ohio. On this day a sixteen-year-old called a clinic in Lexington to cancel her abortion for the third time. Her father, an alcoholic Vietnam veteran with no fixed address, had agreed to the abortion, but every time he was supposed to take her to the clinic he disappeared. The girl’s mother was dead. The girl, who lived in a small rural town two hours from Lexington, did not have the money or the transportation to go out of state. She was already in the second trimester of pregnancy and she was desperate, talking on the phone about “ending it all.” When the clinic director suggested that the girl go to court to get a waiver, she balked. She had been in court for months after her mother died, while relatives wrangled over who would get custody of her, she said. She did not want to go back there. The clinic director asked her to think about it and call back the next day. She never called.

The next day, though, another sixteen-year-old, a bright, confident girl, a high school cheerleader, was accompanied by both her parents to an abortion clinic in Louisville. She was relieved to have her parents with her, she said (although, she admitted, she would not have told them she was pregnant without the prompting of the law), especially when the Operation Rescue-type “street counselors” followed them from their car to the clinic waving a one-inch plastic model of a fetus while urging the girl not to kill her baby. Her parents, though, were not as sanguine about the law. They resented the fact that the state demanded their participation in their daughter’s abortion. “For myself, I don’t believe in abortion,” her mother said. “I’m a Catholic. This was her decision.” Her father said, “My daughter is capable of making her own decision.”

Although neither girl availed herself of the bypass procedure, each case nevertheless suggests its importance, because it shows that none of these girls, none of their situations, is exactly the same, while the law, without a bypass provision, treats all girls and all families alike. In other words, a parental notification statute that includes a bypass option offers the possibility that individual cases can be considered individually.

Nearly ten years ago now, in the first year the Minnesota parental notification statute was in effect, the number of abortions for teen-agers in Minneapolis decreased almost in exact proportion to the number of births to teen-age mothers. That was when the law contained a bypass provision. Without it, not only is it likely that even more unwanted babies will be born to unmarried teen-age mothers, but that more teen-agers, by force of circumstance or personality, will delay their abortions to the edge of fetal viability when it is more dangerous, more complicated, more costly, and morally most compromised.