Bellotti v. Baird – Oral Argument – March 23, 1976

Media for Bellotti v. Baird

Audio Transcription for Opinion Announcement – July 01, 1976 in Bellotti v. Baird

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S. Stephen Rosenfeld:

We will hear arguments next in 75-73, Bellotti, the Attorney General of Massachusetts against Baird and 75-109, Hunerwadel against Baird.

Mr. Rosenfeld you may proceed whenever you are ready.

Mr. Chief Justice and may it please the Court.

This is an appeal from the order of a Three-judge court in the District of Massachusetts.

The majority of that court enjoined the defendants from enforcing Mass General Law’s Chapter 112, Section 12P and related sections.

The majority also declared that Section 12P was unconstitutional on its face.

This statute was originally enacted on August 2, 1974 and it provides that before an unmarried minor in this case, a child under 18, may obtain an abortion, the physician involved must obtain both her consent and the consent of her parents.

Importantly, if either parent refuses, a state court Judge is explicitly authorized by the statute to give his consent for good cause shown.

The action is brought by the plaintiffs on October 30, 1974, the day before Section 12P was to go into effect and the principal plaintiffs were Gerald Zupnick, a physician performing abortions and two pregnant minors who were seeking abortions without the knowledge of their parents.

A single judge entered a temporary order restraining the enforcement of 12P and convened a Three-judge Court and subsequently granted intervention to parents of unmarried minor daughters in Massachusetts and those intervenors are represented today by Mr. Brian Riley whose argument will follow mine.

The Three-judge Court after four days of hearings issued its opinion on April 28, 1975 and the majority found the Section unconstitutional on its face because it invaded fundamental privacy interest of minors.

The court acknowledged that all the experts both the plaintiff’s experts and the defendant’s experts believed that parental involvement was very important and helpful to the child at this crucial time.

The Court, however, construed the statute on its own and found that in its view, the statute created parental rights that were independent of the interest of the child.

Therefore, asserted the court, parents would be authorized under the statute to refuse consent in order to punish the child or for other misguided reasons.

William H. Rehnquist:

Did the Three-judge District Court had the benefit of any state court construction in reaching that interpretation?

S. Stephen Rosenfeld:

No, it did not, Your Honor, because the statute in fact had never been allowed to go into effect and no case had therefore come up to the state court.

William H. Rehnquist:

Did the Three-judge Court give any consideration or was it asked to give any consideration to abstaining in order to prevent the Massachusetts Courts to interpret the meaning of the statute?

S. Stephen Rosenfeld:

Yes, it was asked to abstain, Your Honor, and it decided that such abstention was unnecessary without giving reasons.

Therefore, it will be argued that a quite apart from abstention, the existence of the judicial review provision provides the opportunity for a narrowing construction in the state court, and therefore, justifies a finding that at least on its face, the statute is not invalid because of this opportunity for a narrowing construction.

William H. Rehnquist:

Well, then you say in affect that even though the Three-judge Court is not to abstained, it was obligated to construe the State Statute more narrowly than it did?

S. Stephen Rosenfeld:

I am suggesting that there were alternatives, Your Honor.

It could have abstained, but even if it decided that this was the kind of case, it should decide on the merits since the only attack was a facial attack.

The existence of a good cause provision for the state court to grant consent was sufficient basis for finding that at least on its face, the statute was valid because a state court utilizing common law principles well established in Massachusetts might narrow the statute to come within constitutional limits.

William H. Rehnquist:

So, you say that the Three-judge District Court should have left the statute standing and in particular cases, perhaps there might have been an unconstitutional application, but it would be sufficient for that evil for the day, so to speak?

S. Stephen Rosenfeld:

That is right, Your Honor.

On this very point, the District Court found that the provision in the statute for consent to the abortion by a state court Judge would not protect the child’s privacy interest because, again, in a District Court’s view, it was part of a statute enacted for the benefit of parents and not for children.

Warren E. Burger:

The parents of a 12 or 13-year-old girl compel, often they compel the child to have an abortion under the Massachusetts Statute?

S. Stephen Rosenfeld:

I would say, Your Honor that that would be consent, and that therefore, the abortions —

Warren E. Burger:

I should contemplate that the child is first taking the procedure and her parents second now force the situation where the child takes no position at all.

Perhaps, she is not capable of making any.

Warren E. Burger:

May the parents go to the doctor and the child has nothing to say about it?

S. Stephen Rosenfeld:

Not on the face of the statute, Your Honor, because on the statute requires that the physician obtain a consent of both the minor and their parents.

So, it contemplates that at least in the first instance, the judgment of the child will be taken into account, but in addition, the judgment of the parents will also be given the opportunity to participate in a decision for the minor’s abortion.

Warren E. Burger:

In what other areas under Massachusetts law is the consent, the affirmative consent of a minor required to be given?

S. Stephen Rosenfeld:

Your Honor, there are a number of provisions and in fact, they are set out in the dissent to District Court’s opinion in a footnote.

They deal in areas of adoption and various kinds of licenses on the consent of parents is required.

Specifically, Your Honor, as an example, no child — in the adoption of a minor child the consent of both that minor child and the natural parents is required before the adoption can be approved by a state court.

Final point, I wanted to make about the District Court’s opinion is that the District Court found that parental consent was unnecessary because in the Court’s own words, a substantial number of minor females on their own were capable of informed consent about whether or not to have an abortion.

Today in our argument, the state will focus briefly on three issues.

First, the rights and interests of parents and child under the Fourteenth Amendment and Section 12P.

Second, the state’s interest in enacting 12P and finally the important role that the statute gives to the state court to authorize the consent or to authorize an abortion for good cause shown where individual circumstances so suggest.

State’s view of the daughter’s rights and the parent’s interests are decidedly different from either the plaintiff’s or the intervenor’s or the District Court.

With regards to parents, contrary to the District Court and to intervenors, the state does not believe that this statute or any other source in law gives parents the right to refuse consent for reason other than the child’s wellbeing.

We do believe that parents have an interest, the interest in assessing what will best serve the child’s needs.

Parent’s interest we believe is a derivative one and is entirely a function of their greater relative capacity for judgment.

Thus, we believe it was wrong for the District Court to separate out and exalt what it labeled as parental rights.

With regard to minors, we believe that minors have a constitutionally protected interest in privacy and it includes the abortion decision.

However; in legislation affecting minors, the state may take account of differences in capacity between minors and adults and enact broader legislation for minors.

In other words, it is the state’s position that adults and children both have rights of privacy protected by the constitution, but the state may pursue different and important interests when legislating specifically for minors.

Turning to the interests of the state which justified the requirement of parental consent, they are as follows.

First, the statute seeks to support the role of the family in a situation where the need for family and family support is plainly called into play.

It assumes not the parents will be punitive, but they will be supportive and assisted.

Thurgood Marshall:

That goes to the fact that even if the girl is living away from home or the other side of town and has not seen her parents for the last three years?

S. Stephen Rosenfeld:

Your Honor, in Massachusetts —

Thurgood Marshall:

(Inaudible)

S. Stephen Rosenfeld:

No, the statute will not, Your Honor, because of the provision for consent by a state court for good cause shown.

We believe that the common law principle of the freedom emancipation of the minor would be a factor.

Thurgood Marshall:

You are (Inaudible) that we want to keep the family together?

S. Stephen Rosenfeld:

Where it is together or?

Thurgood Marshall:

It applies to all whether they are together or not?

S. Stephen Rosenfeld:

It applies in the first instance to all, Your Honor.

Yes, that is right.

We believe that nothing in the record establishes the contrary proposition to the fact that parents will be supportive where the family unit exists.

The second —

William H. Rehnquist:

The plaintiff in this case was alleged to be residing with her parents?

S. Stephen Rosenfeld:

That is quite right, Your Honor, she was residing with her parents.

The second state interest is its health and welfare interest, ensuring participation and decisions about a minor’s abortion by those who know best her medical and emotional history.

It is an effort to guarantee that this history will be brought to bear on the abortion decision.

Some parents may object not to the abortion itself, but to the conditions under which it is performed.

For example, taking from the record, there maybe instances and indeed are instances where abortions are performed on minors with little or no counseling or where that counseling goes on, it goes on in groups with no opportunity for individual understanding of the plight of the particular minor.

Often, it may happen, and does happen that physicians will perform abortions with no prior knowledge of the child and possibly an inadequate knowledge of her prior medical or emotional history.

Warren E. Burger:

According to page 23 of the jurisdictional statements, the dissenting opinion in the footnote, the doctor’s response was that usually it is the first time he has met the person when he walks into the room to perform as he said, because of this an average of half a dozen or more abortions at one session.

S. Stephen Rosenfeld:

Usually.

Warren E. Burger:

Now, is there some — with a minor, is there some consultation by some other counseling person that precedes that?

S. Stephen Rosenfeld:

Your Honor, in all cases, there is as the record shows, an hour of prior conversation with adults and minors mixed together and often in groups.

Warren E. Burger:

But not with the physician?

S. Stephen Rosenfeld:

Not with the physician.

Although the record suggests that on occasion the physician may participate to some degree, but the usual situation is that the physician sees the child for the first time when she comes into actually to have the surgery done.

Harry A. Blackmun:

Well, one way for the state to attack that problem would be to require that a physician consult with the patient, is it not?

S. Stephen Rosenfeld:

Right.

Harry A. Blackmun:

Rather than to go about the way they have done it?

S. Stephen Rosenfeld:

That is one method, Your Honor, assuming that the patient would be in the position to be able to appreciate and make a judgment with regard to the abortion decision and as we say, this interest is one of a number of interests that we think that the state is pursuing in enacting Section 12P.

We believe that the parents might fairly condition an abortion on having that abortion done not under the circumstances that I have just described, but under the circumstances that exist and are available in the City of Boston, for example, at the Beth Israel Hospital, as is reflected in the record.

We believe that the health and welfare interest of the state here goes beyond its support of the family unit.

This interest, I am now speaking of, is usually characterized as parent’s patriarch.

It is the state’s own independent concern for protecting the minor.

Now, the state recognizes that neither this concern nor its concern for family would justify an outright prohibition of abortion as was the case with the Texas Statute in Roe v. Wade such as —

Harry A. Blackmun:

In understanding this case for your Massachusetts Statute, it is different from the Missouri one and that it requires the consent of both parents?

S. Stephen Rosenfeld:

It does, Your Honor that is a difference.

Harry A. Blackmun:

So that here then one parent has absolute veto power.

S. Stephen Rosenfeld:

Well, we disagree that the veto power is absolute, but both parents do have the power over the consent, the criteria of consent.

Harry A. Blackmun:

Even when they were separated?

S. Stephen Rosenfeld:

No, Your Honor.

If they were separated, but not divorced, the statute is unclear as to what the situation would be in that instance, but the statute may explain that where required in appropriate circumstances, one guardian, if you will, will do.

And again, the underscore the importance of the state court could cause provision to deal with the individual circumstances such as you have suggested.

We feel that in this area, individual circumstances are the norm and not the exception and that a statute must take account of that.

Any statute must take account of that by giving some flexibility and an opportunity for a construction consistent with the constitution, the state’s interest, and the interest of the child.

Harry A. Blackmun:

I do not think I have this straight.

You say if parents are separated that the consent of only one is necessary?

S. Stephen Rosenfeld:

I am saying that on its face, the consent of both would be necessary because you have used the word separated rather than divorced.

But I believe that if the separation were, if you will, a divorce in fact, this certainly would be, I believe it would be sufficient given the statute for the consent of one parent to suffice any provision for state court involvement is there on the face of the Section 12P.

Harry A. Blackmun:

If one parent were diseased or has deserted his or her family, that then only the consent of one would be sufficient?

S. Stephen Rosenfeld:

Yes, that is right, Your Honor.

Harry A. Blackmun:

Alright and It does not seem to me to tie into your statute really —

S. Stephen Rosenfeld:

Well, it certainly does not fit the word deserted on its face and I am not suggesting that the statute as written would guarantee that the consent of only one parent would suffice in that instance.

I believe, Your Honor, that the legislature in enacting any statute can only deal specifically with so many situations and the responsibility beyond that is to provide a process whereby additional individual circumstances can be dealt with to avoid the rigidity and over breadth that would otherwise be the case.

It is important in our view to know, Your Honor, that this is the only statute of all the parental consent provisions dealt with by lower courts that provides explicitly for the involvement of a state court and provides that the state court quite apart from what the parents have done, may provide the consent and I want to turn now, Your Honor, to that judicial review provision.

We believe that in the end, the state recognizes that there has to be a process to focus directly on the child’s interest and privacy and by giving a state court a role, the state believes that Section 12P provides the kind of flexibility and satisfies this need to take account of individual circumstances.

There are specifically two common law principles that the state court is likely to use in applying 12P’s good cause standard.

First is to mature minor role.

It is a well-established common law rule in Massachusetts that when the minor shows a capacity for informed judgment, the rationale for parental consent ceases and the Court should authorize an abortion.

It is important to point out that with this common law rule, Your Honor, this is not a conclusive or irrebuttable presumption that the statute sets up.

It is a irrebuttable presumption and the process is provided where by that presumption can be rebutted.

The second common law principle is the Court’s independent responsibility to act in the child’s best interest.

Even if the mature, minor rule does not apply, the common law compels in Massachusetts that the consent be given.

If the Court making its own independent assessment finds that abortion would be in the child’s best interest.

We believe in light of these principles that there is good reason to believe that the statute will be applied faithful to the constitution.

The state submits that it should be given the opportunity to exercise its police power within these self-imposed limits.

For these —

John Paul Stevens:

Mr. Rosenfeld, does the statute tell us anything about the procedure that is to be followed at such a hearing?

John Paul Stevens:

For example, are the parents of the mother entitled to notice and to participate?

S. Stephen Rosenfeld:

The statute does not speak specifically to those items.

It does suggest that no guardian ad litem need to be appointed, and for the pregnant minor to have the process that the statute provides.

John Paul Stevens:

Would you construe the statute as permitting the pregnant minor to go before the Court without giving notice to her parents?

Thereby —

S. Stephen Rosenfeld:

Yes, we would, Your Honor.

We speak to this in our briefs.

Specifically we believe that since the statute says that common law rights are preserved and since the common law provides this opportunity for the minor child in consent situations that the minor could attempt to go into Court and it would be up to the Court as part of its good cause decision to decide whether or not the parents need to be consulted in the first instance.

And of course, there is also a provision for anonymity in the State Courts.

John Paul Stevens:

You are then suggesting that the decision can be made without the benefit of the family history, which you suggest it was a reason for the parental consent?

S. Stephen Rosenfeld:

Well only, Your Honor, only if a state court Judge familiar with these kinds of cases, were to exercise his judgment in that regard, and I do not believe that any general rule, any inflexible rule can be stated that would dictate an outcome in one direction or the other.

What I do believe is that the difficulty of these questions does not compel a conclusion that the state has no role in the area of protecting minors, and protecting the minors’ best interest, and we believe that is what the state has done in this statute.

John Paul Stevens:

But, it is the view of the state, if I understand you correctly then that the interest of the pregnant minor’s parents is insufficient to entitle them to notice in a hearing of this kind?

S. Stephen Rosenfeld:

No, excuse me, Your Honor.

What I suggest is, if a child went into state court saying that in this instance, the individual circumstances were such that it would be damaging to notify the parents because of some individual circumstance, the state court would have to decide.

The first, the threshold question it would have to decide before deciding whether or not to consent of the abortion, it would have to decide whether or not the parents should be notified, and whether or not the hearing should be held.

We believe that the statute must say suggest that in most instances, the parents should be notified.

Indeed that is the policy of the statute.

I am saying there maybe that rare occasion, where it would be the state court Judge might decide it is unnecessary, or in fact harmful to inform the parents, and in that case, the state court might proceed to the next question, that is whether or not to grant its consent to the child’s abortion.

Potter Stewart:

Mr. Rosenfeld, how does the statute change the common law of Massachusetts, if at all?

S. Stephen Rosenfeld:

Well, Your Honor, this statute we believe quantifies the common law.

We believe, for example, that the two parent requirement is one of long existence in Massachusetts.

We believe it is a quantification.

It is a subsequent — excuse me?

Potter Stewart:

So it does not change the common law?

S. Stephen Rosenfeld:

It does not, but I have an additional point, Your Honor.

Of course it provides for a fine, a criminal fine, and there was no provision for a fine and common law does not provide for any jail sentence I might add.

One additional point, if I may Your Honor, there was a statute passed in the last six months which deals with the consent.

It is raised in the plaintiff’s Supreme Court —

Potter Stewart:

It is the common law?

S. Stephen Rosenfeld:

It does change the common law.

Does change the usual procedure?

S. Stephen Rosenfeld:

It does, Your Honor.

I frankly, I think the record is inadequate to deal with that statute here and I think the statute that has been passed is an ambiguous one, and I believe that this Court should deal with the constitutionality of one statute at a time.

Thank you very much.

Warren E. Burger:

Mr. Riley.

Brian A. Riley:

Mr. Chief Justice, members of the Court.

At the outset, we wish to make it clear that this is not an abortion case in our mind, but rather deals with the issues of medical treatment of minors and informed consent.

The fundamental issue raised by this appeal is whether the parents would be given the opportunity to exercise their right and duty to guide and protect their children in medical decisions.

This includes abortions as well as all other medical decisions.

The intervenors submit that Roe versus Wade and Doe versus Bolton lend no support to the plaintiff’s contentions.

Wade and Bolton involved an adult woman’s right to effectuate a reasoned and informed decision to terminate a pregnancy.

These cases concerned adult woman who have always been considered capable of giving a valid and informed consent to medical treatment.

In the present case, however, we are concerned of minors.

Minors have always been deemed incapable as a class of giving an informed consent to medical treatment.

The Court in Bolton held that an abortion is merely a medical procedure and should not be differentiated from other medical procedures.

The same is true of minors who seek medical treatment.

They should not be treated differently than minors who seek other forms of medical treatment.

The Lower Court acknowledged this fact when it held that Dr. Zupnick could not legally perform abortions on minors that were not capable of giving an informed consent.

The Lower Court found, however, that it was insignificant that there were certain number of minors who are capable of in fact giving an informed consent.

The Court nevertheless found that in determining whether a particular minor is or is not capable of giving an informed consent that there would be factual questions to weigh in each case.

The essence of this appeal is who should weigh these factual questions.

Who should determine whether a particular girl is capable of giving an informed consent?

Who should assist her in this decision making process?

Should it be the doctor, should it be her parents, or should it be a judge of the Superior Court?

The intervenors submit that the parents, at least in the first instance, should aid her in this decision.

This is in accord with a long line of decisions which hold that the care, custody, and nurture of children reside first in parents and in no one else.

The intervenors submit that parents at least in this first instance, should be given the opportunity, opportunity to guide their children in this decision.

This is not only their right, but it is also their duty and obligation to do so.

All the experts in this case agree that an unplanned pregnancy for a minor girl is accompanied by a great period of stress.

Brian A. Riley:

These girls are typically scared, frightened, they are desperate children.

One expert described these girls as upset, withdrawn, non-communicative, and anxious.

Expert testimony reveals that such an adolescent is often compelled to seek an immediate solution to the problem.

They want instant relief.

It is crucial at this point, that this decision to abort be the product of an informed and reasoned consent, and not merely a desire for instant relief from the crisis she faces at the moment.

The minor girl is entitled to and must obtain proper guidance in assessing the risk, the complications, and the alternatives to the abortion procedure.

This guidance is generally supplied to her in all other surgical procedures.

It is important that the girl resolve in her mind, that whatever choice she makes, is the product of reflection and not a reaction to the crisis that she is in.

All of the experts agreed that parental support and guidance is extremely necessary to help a child through this difficult period in her life.

It is submitted that the great majority of parents will provide their children with the proper guidance and support that they are entitled to.

Parents are the ones who are most interested in ensuring that their daughter receives proper medical care and guidance.

Parents are best suited to aid her in choosing a doctor and a medical facility which offers the quality of interest and sensitivity that can deal with this delicate problem for the child.

Finally, parental concern and involvement will ensure that there is proper follow-up medical care for the child if it is necessary, whether it be medical or psychiatric, or both.

Although the great majority of parents would act in the best interests of their minor children, the intervenors acknowledge that some may not.

The question then, is who should fill this void?

Should it be the doctor or should it be the state?

The intervenors submit that is should be a Judge of the Superior Court rather than a doctor.

Judges have always been resorted to, when a conflict develops over whether a parent is acting in the best interest of their child’s health and well being.

Judges have always been resorted to, to determine whether or not a particular child is in need of a particular medical procedure.

Harry A. Blackmun:

Mr. Riley, enlighten me on the Massachusetts situation.

How available is a procedure of this kind time-wise in the Superior Court in Massachusetts?

Is there a three-year waiting period or –?

Brian A. Riley:

It is a very informal procedure in my mind.

Harry A. Blackmun:

Well, I am not asking about formality or informality.

I am asking about time?

Brian A. Riley:

I would say that a child could go into the Court and have a hearing within the day that she goes in, and there is a daily motion session in most of the Courts of Commonwealth of Massachusetts where —

Harry A. Blackmun:

There is not the backlog that would delay this for weeks?

Brian A. Riley:

No.

I would imagine that a matter of this nature would take presence on the calendar and that the —

Harry A. Blackmun:

Well, does your statute still provide?

Harry A. Blackmun:

The answer is no, and I am really asking that we hear here constantly about the delay in Courts.

We are aware of it pretty well on the federal side, and I am really asking what the Massachusetts situation is.

If someone wanted relief by way of a Court hearing whether she would have to wait for one month or three years, this is a time imperative situation, is it not?

Brian A. Riley:

Well, in other situations where medical treatment is necessary, for example, a blood transfusion or other medical treatment that is necessary and has to be performed within a particular period of time, state court systems have been able to adjust and adopt themselves to deal with that problem and provide the necessary hearing and make the necessary determination as to whether or not–

Harry A. Blackmun:

I am not asking that some have not, and I am asking what the Massachusetts situation is, apparently you do not know?

Brian A. Riley:

Well, as far as the Supreme Court judge may have a hearing, the statute provides a hearing as he deems necessary.

There would need to be no guardian appointed for the child.

It is my opinion that the rules of Court have been developed.

This statute has never gone into effect.

The Courts themselves in the Superior Court have their own rules of Court to deal with particular procedures.

They do this with criminal matters and with civil matters.

They could create an expeditious procedure to deal with the problem.

Warren E. Burger:

(Inaudible) procedure in your equity side of the Courts of Massachusetts?

Brian A. Riley:

We have a temporary restraining order.

Warren E. Burger:

You mean, they are on immediate application, it is?

Brian A. Riley:

It is daily in most counties.

Warren E. Burger:

Your time has expired Mr. Riley.

Brian A. Riley:

Thank you.

Warren E. Burger:

Lucas?

Roy Lucas:

Mr. Chief Justice and may it please the Court.

The Three-judge Court below and many other Courts facing these issues across the United States have viewed these issues in a fundamentally different way from that suggested by the Commonwealth and by the intervenors.

It is generally been presumed that statutes of these kind mean what they say.

Namely, that in the first instance, one or both parents have a right to veto the exercise of access to abortion on behalf of a minor, regardless of the health condition or the circumstances of the minor.

The statutes on their face and as they are written expressly place a medical decision in the unfettered discretion of two persons other than the patient and persons other than the physician.

It is not even an expressed exception in this statute to protect the life of the young woman, or to protect the health of the young woman.

There is not even any mention of her health solely that of the power of the parents to veto and consent and indeed there is no exception made in the statute in the case of rape or statutory rape, and nowhere is there any mention of the possibility of the physician’s judgment in an exceptional case allowing an abortion that —

Harry A. Blackmun:

(Voice Overlap) shown an exception, Mr. Lucas?

Roy Lucas:

Excuse me, Your Honor?

Harry A. Blackmun:

I say you have spoken of unfettered control, is not the Massachusetts for a good cause shown provision and exception?

Roy Lucas:

That is one potential exception but it is totally undefined and there are an infinite number of circumstances in which there could be good cause according to the patient but not according to the Superior Court.

Roy Lucas:

The problem with the good cause clause is that it in effect sets up an obstacle course which is designed to defeat the exercise of a constitutional right by a minor.

There is no other statute in the Commonwealth which requires a person to go to Court, to be able to exercise a fundamental right.

It is our position that the good cause clause is even worse than the multiple physician consultation requirement in Doe versus Bolton.

It is even worse than the requirement of hospital committing in Doe versus Bolton.

At least those requirements had physicians reviewing the matter.

Here you have parents and you have the Superior Court judge without any provision whatsoever for example for an expedited hearing.

There is no provision for the patient having access to legal counsel and they —

William H. Rehnquist:

Are you suggesting that the Massachusetts Courts would not either on their probate side or on their equity side make some provision for expedited hearing if they thought there was an emergency even though the statute does not so many words say they should?

Roy Lucas:

We are suggesting that, Mr. Justice Rehnquist.

Well, in view of the statute, the statute could have provided for an expedited cause, and provided —

William H. Rehnquist:

I take it when you say that you are suggesting it, you are relying on some provision on Massachusetts law or some customer practice in Massachusetts that you know of, now what is it?

Roy Lucas:

No, I am not.

There is no provision on one way or another and —

William H. Rehnquist:

Correct, but certainly I do not know if you practiced in Massachusetts or not, but I would gather that in most states there are any number of Court rules or customs that are made to accommodate the situations where the statute is completely silent on the point?

Roy Lucas:

That is true.

It is theoretically possible that the minor could obtain some relief immediately in state court, but–

Thurgood Marshall:

You do not know what the Supreme Court of Massachusetts might set up as rules, do you?

Roy Lucas:

We have no idea what they might do?

Thurgood Marshall:

And you made no effort to find that?

Roy Lucas:

Well, we have certainly ascertained that there is no law on this subject because the statute was enjoined.

Thurgood Marshall:

But you did not get the material because you ran in favor of the Court before they even get the chance to look at it?

Roy Lucas:

That is correct, we did and —

Thurgood Marshall:

So, how do we know what will be done in the state court?

We do not know and you do not know, and nobody knows.

Roy Lucas:

Our position would be —

Thurgood Marshall:

You do not know what Supreme Court of Massachusetts speaks, is that right?

Roy Lucas:

That is correct and the state has not suggested any reasonable ways in which it would be likely under traditional abstention principles enunciated by the Courts.

Thurgood Marshall:

In fact the state did ask the Court to abstain?

Roy Lucas:

The state asked the Court to abstain, yes and the Court refused to.

Thurgood Marshall:

The Court did not and they did not give any reason for it?

Roy Lucas:

That is true.

They regarded the good cause clause as something which was not substantial enough to justify extended discussion and —

Thurgood Marshall:

Suppose the Supreme Court of Massachusetts would say that this statute required that the judge get the best medical assistance that he can get and the best medical adviser he can get and that it be expeditiously held within 24 hours.

That would take you at that point, would it not?

Roy Lucas:

We would still assert that the minor cannot be burdened with being required to be in the Court.

Warren E. Burger:

Do you have any statutes about expediting applications for temporary restraining orders or is that a matter of practice and the local rules of Court?

Roy Lucas:

I do not know in Massachusetts law.

I would presume that there would be an expedited TRO here.

Warren E. Burger:

In most states, a temporary restraining order can be obtained without notice to anyone by walking in and finding the judge and presenting the matter to him, is that not so?

Roy Lucas:

That is true.

I can imagine the Judge granting on ex part temporary restraining order without notice to the parents here and it has been our position consistently that requiring the patient to even notify the parents could be seriously disrupted with the patient’s life and disrupted with the family to the extent that a notification requirement would be something we would be opposed to.

And in particular, the abstention cases on this Court have tended to indicate that there should be some reasonable basis to believe that a state court construction would avoid the constitutional questions and we do not believe —

Warren E. Burger:

Suppose a 12-year-old or 13-year-old girl had inherited very substantial amount of money or real estate securities, jammed it to transfer them, laying aside for the moment that no person in his right mind would accept the transfer or pay anything for it, from a 12-year-old or 13-year-old, how do you distinguish the right of a 12-year-old or 13-year-old girl to give away a home worth $500,000.00 and a million dollars worth of securities without the consent of her parents or her guardian or anyone else and the situation confronting us here?

Roy Lucas:

We would that on the grounds that that was primarily economic and social welfare legislation under the distinction the Court adopted in Dandridge v. Williamson and cases as I mentioned.

Warren E. Burger:

The court can control that the state cannot control on the child’s dealing with her property?

Roy Lucas:

Yes, we would think that —

Warren E. Burger:

But cannot control in the health area?

Roy Lucas:

Yes, we would think that is true.

There is certainly no emergency in the property area either and there was testimony in the record here that delay could cause the possibility of minors seeking out illegal non-medical abortions and that would be one of the main problems and the delay here could take the minor over in to the 2nd trimester of pregnancy where the procedure would be more complicated and more difficult.

Warren E. Burger:

The assumption that in each cases that there would be an undue delay, but you have, at least for me satisfied me that the Courts of Massachusetts would not give, looking at this whole statutory structure, would not give the highest priority to a swift determination of these questions?

Roy Lucas:

Even if they did.

Even if we assumed that the state courts could reach the issue within one week or two, there would be some medical cases where that would be hazardous and on top of that, the state court has no guidelines whatsoever in which to know what factors to look into.

That is our chief problem with it is that the Roe v. Wade indicated.

Warren E. Burger:

(Inaudible) the equity judges have managed to get along pretty well for a couple of hundred years on general equity principles, is it not?

Roy Lucas:

That is true but in this particular case, there is no guidance whatsoever for what practice they should take into account.

That is the principal problem with the good cause.

William H. Rehnquist:

Well, the Supreme Judicial Court of Massachusetts at least had gone part way towards curing that if it did had a chance?

Roy Lucas:

It could have gone some of the distance, yes it could have.

There are so many different types of problems that could come up.

There, we could enumerate —

William H. Rehnquist:

You think that the more different the problems and the more diverse the problems are, the more you make out a classical case where the District Court should have abstained.

Here the constitutional question of the necessity of the parent’s consent is one that is reserved and rolled and the District Court had an opportunity with this consent provision to say and let the state court put it in a different posture and come back here and tell them, then we will decide the constitutional question.

It seems to me hard to justify their failure to abstain?

Roy Lucas:

Yes, we will disagree with that strongly because the state court would have to litigate.

The burden that they put on the Courts to take into account all the different ages, all the different health conditions, the rape situation, the incest situation, the different reasons the parents might have on withholding consent would impose a tremendous burden on the state courts if not on the federal courts some people would go in to 1983 actions.

William H. Rehnquist:

Well presumably, the Massachusetts legislature was willing to have that burden placed on the state courts when it enacted the statute?

Roy Lucas:

Presumably, they were yes.

But, presumably certainly, there is no indication what legislative motive would have been which is not relevant here, but the effect and the impact of the statute is to put a tremendous burden on the minor, a tremendous burden that the minor would not have in any other circumstance.

One of the equal protection issues in this case is the fact that the new statute was passed last summer allows a pregnant minor to consent to any other procedure except abortion or sterilization.

And, if the state interest is so strong in the abortion area, then why are they not strong for any other form of treatment.

A minor can consent to all forms of prenatal care and surgery under that statute.

The minor could consent even to a major operation such as a cesarean section under the new statute without having to go to Court.

The minor has to go to Court for no other type of procedure which is accepted under the medical right statute that was passed last summer.

William H. Rehnquist:

You think the plaintiff in this case would have had standing to attack the statute if in fact her parents had consented her or would have consented if she asked them?

Roy Lucas:

I would not — if her parents had consented, I would think that she had no standing.

William H. Rehnquist:

Well then, do you not think the state has quite illegitimate objection to the District Court’s refusal to divulge to the state which who was defending the action, the names of the parents because really, all we have is the assertion of the plaintiff that her parents did not consent.

The state never had an opportunity to examine the parents and see whether perhaps they might have consented?

Roy Lucas:

Well, our position was not that the disclosure of the patient’s name and bringing the parents into the case would have been unnecessary because of other parties withstanding in the case and it would have been destructive and damaging to the patient.

William H. Rehnquist:

You said a moment ago that if her parents had in fact consented she would not have standing to bring the case?

Roy Lucas:

That is true.

She would not have been hurt by the statute at all.

William H. Rehnquist:

If the state was never enable to find out in effect whether she had standing because they were not permitted to examine her parents as to whether they would have consented?

Roy Lucas:

If her parents had been willing to consent then there would have been no reason for her to become involved in the litigation and to have taken such care to avoid exposure of her name.

William H. Rehnquist:

Well, all we have is her say so. Ordinarily in a lawsuit you are entitled to examine, all she did was make representations as to what her parents would have done.

Ordinarily in a lawsuit, you are entitled to examine the people about them, the representations are made to see if they are proved out?

Roy Lucas:

That would be true ordinarily but in this case I do not think that it was essential.

In this case a Three-judge Court did not have the opportunity to observe her demeanor and question her in camera for at least probably a two-hour hearing that we had and it would be against the common sense to think that there would be any reason why she would lie about that.

Why she would say her parents –?

Warren E. Burger:

Twenty-five reasons could occur to me in less than not many seconds on why a girl who has already made in all these briefs a strong case and I think accurately that this is a period of great stress.

She is afraid to tell her parents.

Warren E. Burger:

It is also certainly so that I can take it as a common knowledge that frequently adolescent people feel that way, but when they do in fact consult their parents, they find much more rapport than they anticipated?

Roy Lucas:

In many cases that would be true.

We have a great deal —

Warren E. Burger:

How you can you generalize as you were saying that the Court could decide in talking with her?

Roy Lucas:

Perhaps —

Warren E. Burger:

Whether in fact her parents were likely to consent?

Roy Lucas:

Perhaps I misunderstood Mr. Justice Rehnquist’s the question.

I thought this question was whether the parents may have in fact already consented and if the parents had already consented or would have been willing to consent —

William H. Rehnquist:

What he is probing out — what he was probing out and what I am concerned about is how do we know if the parents would not have consented and that there would have been no case here at all?

Roy Lucas:

We certainly do not, we do not know that.

We —

Warren E. Burger:

Is that not the business of the Courts to find out before they bring them out on this stage of litigation?

Roy Lucas:

Well, with other parties who had standing in the litigation it was not really necessary.

I think the District Court determined that her right not to have her parents notified was of sufficient privacy and constitutional dimension to justify the limited inquiry in her particular case.

Warren E. Burger:

As I understand, these other parties have not yet resolved of course for the finality?

Roy Lucas:

That is true.

The physician in particular, we feel that his standing was recognized in Roe v. Bolton and that would be clear on that particular issue and the Court did make a rule allowing intervenors to participate in the case.

The intervenors extensively represented the parents of minors who could become pregnant, who might become pregnant and want to obtain abortions in Massachusetts.

So there were two sets of attorneys on the other side to protect any possible interest.

I do not see how another third set of attorneys for the parents could have affected the presentation of the litigation or the outcome in view of the standing of the other parties.

Warren E. Burger:

We will never know that, will we?

Roy Lucas:

That is true and also the Court addressed the case in terms of the statute on its face rather than as applied to this particular minor and the Court made an express determination that this minor was fully confident to bring the action and that she was confident to give an informed consent and that was another reason for dispensing with notifying her parents.

Warren E. Burger:

Well, this girl –?

Roy Lucas:

She was 16.

Warren E. Burger:

Sixteen.

Roy Lucas:

Yes, Your Honor.

Warren E. Burger:

(Inaudible) case for that kind of statement in your case was a 16-year-old girl than with the 12, of course I am sure you (Voice Overlap)

Roy Lucas:

That is certainly true.

We had a great deal of testimony concerning the problem of 12, 13, 14-year-olds and the testimony from Dr. Jane Hudson and Dr. Carol Natalson indicated that certainly maturity decreases with age, but there would be instances where some 12, 13, and 14-year-olds could give an informed consent equal to or better than that of a 18 or 19-year-old, that it was an individualized case and this where the opinion in Roe v. Wade expressing the need for physician’s discretion comes in very strongly that a physician and the counselor in the facility would have to more carefully talk with and more carefully obtain a consent from a minor who was 13 or 14 in order to make sure that this minor had a full understanding.

Thank you, Your Honor.

Warren E. Burger:

Thank you gentlemen.

Mr. Lucas you still have 14 minutes left.

Roy Lucas:

Thank you, your Honor.

Early in the day the question was raised whether they were pending any malpractice battery cases on the subject of abortion for minors and we would call the Court’s attention to foot note 5 of the motion to affirm and brief filed by the appellees in this case which cites a case pending in Vermont.

It is the only we know of.

We have looked to see if there are any others.

The case was pending in the Superior Court and it is being certified at the Supreme Court of Vermont for argument being May by mutual stipulation of the party since —

Warren E. Burger:

Foot note 5.

Roy Lucas:

On foot note 5 on page 4 of the green pamphlet, Bogart versus Vermont Women’s Health Center.

Vermont has no statute requiring parental consent.

In this case, the uncontested stipulation shows that the minor changed her mind after her parents found out about her having an abortion and that the parents have sued for battery.

When we were discussing the abstention doctrine, the appellees were particularly concerned with the cases of Lake Carrie’s Association and Harris County Commissioners, the latter being from the last term and we would refer the Court to the language in Lake Carrie as about abstention being invoked only in very special circumstances which justified the delay and the expense and to Harris County which indicated that if the state courts would be likely to construe the statute to avoid the constitutional question.

It has been our feeling that there is insufficient evidence to indicate that the state courts would be able to resolve the constitutional questions in this particular instance.

The idea of a 14, or 15, or 16-year-old being able to make her way to through maze of State or Federal Courts is particular with her parents on the other side and not even being able to have access to legal services representations as the Federal Legal Services Corporation Act bans the use of those funds in representing anyone to help obtain an abortion.

I think from a very practical standpoint, it would be an insuperable burden for most minors and a burden which is not imposed on any other form of medical care or any other constitutional right.

There were four days of testimony in this case in an effort to sift out with numerous experts the underlying factual issues which are so sensitive and so important in the case.

Mary Moe testified in Camara before the Three-judge Federal Court.

They made an expressed finding that she had made a considered decision to have an abortion.

She has had two hours of counseling from the registered nurse at the clinic.

She had received materials from the county health clinic perhaps over 40 days before.

There was a period in the record of 43 days which passed before her pregnancy test could be positive before it could be determined in which she had an opportunity to give thought and give consideration to the subject.

The intervenors had a child psychiatrist sit in on her testimony and that this is perhaps significant that the child’s psychiatrist, when he testified at the trial did not in even one sentence questioned her confidence and her ability to consent to the procedure.

Warren E. Burger:

Such a minor girl would have a cause of action against a doctor who either because of the statute or independent of any statute refused to perform the procedure without the consent of the parents?

Roy Lucas:

No, Your Honor, I do not think that she would, unless in a very rare set of circumstances.

I think the physician would have an obligation to refer her somewhere else if possible and if that place was known and he may be liable for not referring, but the physician has his own individual rights.

Warren E. Burger:

I am concerned about the malpractice aspect and the problem of taking on the burden of proving later that a 12-year-old girl giving an informed consent, could simply say without the consent of the parents I will not have anything to do with it?

Roy Lucas:

I think the doctor could do that and I think some doctors do and some doctors will.

Even in jurisdictions where the question is up in the air, I think that has often been the case and in many hospitals that has often been the case.

I think that great many people are waiting the outcome of this litigation from the Court because of the very important problems that have come up with teenagers wanting access to abortion and access to contraception and physicians being concerned as to whether they can legally without risk of litigation provide them with that equality.

The issue of civil remedies is not specifically raised in the case.

Roy Lucas:

I think a great many people will be looking to this decision to see whether a physician could recognize a minor’s constitutional right and perform an abortion on a minor or provide a minor with contraceptive so they do not have parental consent.

It is fairly clear in the Federal Family Planning Programs because they provide that family planning services, at least insofar as contraception is concerned, will be provided without regard to age.

John Paul Stevens:

Mr. Lucas, could I ask you a question that has run through my mind as I listened to the argument.

You suppose the statute would be constitutional that required the consent of both parents before a child could obtain a tattoo?

Roy Lucas:

That is a very interesting question.

I would think that the child’s right in this particular case would not merely rise to the statute, that the right of access to abortion rises.

The tattoo would be something more of a whimsical nature, but on the other hand there are a lot of constitutional protections extended to conduct which is —

John Paul Stevens:

(Inaudible) think for example growing long hair is whimsical in nature that has been given constitutional protection, at least in some circuits, I wonder if it is right to affect one’s appearance by having some kind of a special emblem on an arm or something like that might be somewhat —

Roy Lucas:

I think that is a really kind of case that could go either way.

It is a kind of case that would go depending on what rights were eventually recognized to think such as hair and personal appearance and I am aware of Your Honor’s position in the Seventh Circuit on the hair question and it would be our position that if the right of personal appearance were recognized as a fundamental right then the minor would be able to do this without parental consent and it maybe on the other hand that there is no substantial reason for forbidding her or him to have tattoo or something of that nature.

Warren E. Burger:

What if it was a symbol, an anti war symbol, you get the First Amendment involved in the tattoo then?

Roy Lucas:

That could come up in something very simple to Tinker context.

It would be our feeling that while the plaintiffs in the Tinker case were on the same side as their parents, but the parents could not have eradicated the impact of this Court’s decision in Tinker by saying that they will not consent to their children engaging in those activities, particularly with the state backing them up with criminal sanctions.

I do not think the school could have said that only those minors whose parents will give them written permission to demonstrate and wear armbands will be permitted to do so.

I think this would apply in the Emery Gold (ph) area too, that parents could not conduct and control and weigh constitutional rights of a minor in a juvenile offender proceeding.

William H. Rehnquist:

(Inaudible) to follow-up on Justice Steven’s question, instead of just wanting to wear an armband, they wanted to have an armband tattoo in such a way that there was medical evidence to suggest there was some danger attached.

Now, would your answer still be the same?

Roy Lucas:

I think my answer would be different in a case like that.

The state itself could theoretically band tattooing if there were evidence of hepatitis outbreaks and things of that nature.

If there were no evidence whatsoever of it being harmful to the minors that would be a whole different story.

Harry A. Blackmun:

Let it make it a little easier or harder then.

What about girl is having her ears pierced for earrings?

Roy Lucas:

That again gets in the same area as the personal appearance and the hair area.

I do not know what the outcome of that would be in this Court, but it is a right that it is not as important to minors as the right of control of their reproductive freedom, their right of access to abortion.

It could be things said in this Court’s opinion about the dangers —

Harry A. Blackmun:

There are dangers of infection with ear piercing as you know?

Roy Lucas:

Yes and I am not sure —

Harry A. Blackmun:

Unless so when a nurse does it then why not a physician does it?

Roy Lucas:

I would not be surprised of that.

John Paul Stevens:

How critical your argument is the fact that both parents’ consent is required?

John Paul Stevens:

You are relying heavily on matter that you need consent entirely?

Roy Lucas:

We are not.

We clearly feel that the consent of one parent is just as unconstitutional as requiring the consent of both.

That with both, you have the problem of arbitrary reasons, or no reasons, or unreasonable reasons from two different people.

It causes more delay.

John Paul Stevens:

Two consent requirements really change the constitutional issue?

Roy Lucas:

No, I do not.

John Paul Stevens:

Yeah, I just wanted to make sure.

Lewis F. Powell, Jr.:

Mr. Lucas before you go on, I suppose Massachusetts has a customary law requiring parental consent for matter to marry?

Roy Lucas:

Yes, Your Honor that is true.

Lewis F. Powell, Jr.:

I wanted to ask your opinion of verdict that was addressed in the case that preceded yours is whether you think the reasoning, the rationale of the Three-judge Court in your case, if adopted by us, would necessitate the invalidating of the Massachusetts consent to marriage statute?

Roy Lucas:

I do not think it would.

I would agree precisely with what Mr. Susman said that this right is a more important and more fundamental lasting right and that the state interest in preventing your marriages are much more compelling.

in fact, the the other side, here I do not think the state has any substantial interest in preventing a minor from having access to an abortion when she can give an informed consent and there is no danger of medical problems, but the state can offer a lot of compelling reasons for postponing the age of marriage and it is just a brief postponement, a thing would apply to the right to vote, I think.

Lewis F. Powell, Jr.:

State in the same reasons suggested, have included the parental interest in the child’s welfare?

Roy Lucas:

That would not be —

Lewis F. Powell, Jr.:

Included in both instances I take it, the consent to marriage and the consent to abortion?

Roy Lucas:

Yes, Justice Powell.

We realize that is one that has been offered, but we do not think that, that interest independently would support the restriction on the right to marry.

That interest is one of many interests and that in this particular case the parent’s interest does not outweigh the minor’s interest.

In that case, the parent’s interest and a lot of other interests outweigh the minor’s interest in becoming married.

There are great many reasons.

The impact on education and the economic condition of minors for getting married when they are very young, the high divorce rate, and a lot of those factors which can be used to justify the age.

We located in the record the testimony on the subject of minors that were 12, 13, 14, and 15 and there were statements from two of very experienced experts to the effect that, example Dr. Hudson at page 79 stated that some 12-year-olds will be more mature than 18-year-olds and at page 176 Dr. Carol Natalson who was a psychiatrist in the field, stated that one can find a 13-year-old was better able to make good decision than a 17-year-old, and Dr. Summer Sturgess who has been active in the adolescent medicine field for a long time, just about at the very outset of his testimony, that age was simply was no criteria, no conclusive criteria of maturity.

Thurgood Marshall:

You are saying that some 18-year-olds, 17-year-olds, and no more than 21-year-olds, if sol why cannot they get married without consent?

Roy Lucas:

Because of the other state interest that justifies drawing some line at some point in that.

Thurgood Marshall:

I do not see any difference in the state is interest on this point, when you say that 12-year-old got more sense than some 17-year-old.

What you mean is some exceptionally intelligent 12-year-olds have more sense than some stupid 17-year-old, you do not know the average?

Roy Lucas:

That is perfectly correct, Your Honor.

Thurgood Marshall:

But what good is it to your argument?

Roy Lucas:

It is just to illustrate that if you ban abortions for someone under age 14, there are going to be a few whose rights are very important to them.

They maybe members of a class that 90% them cannot consent, but there is other 10% have important rights that justify being recognized and it is —

Warren E. Burger:

(Inaudible) that legislators must deal with?

Roy Lucas:

It does come up in the line drawing area situations that we discussed in the brief.

There are just different issues and different factors in different cases.

Here, we are dealing with the right that has been recognized as fundamental for all persons in Roe v. Wade and we are simply asserting that.

Warren E. Burger:

Is not the right to marry a fundamental right?.

Roy Lucas:

Yes it is, Your Honor.

Certainly the Loving case and the other–

Warren E. Burger:

Do you think the state can regulate it?

Roy Lucas:

We would agree with that.

The state has much more compelling reasons for regulating in that particular context.

In Massachusetts for example while the marriage is voidable for someone very young, a marriage of a 12-year-old woman and a 14-year-old young man is not void under statute.

The 18 maybe the general age, but if someone manages to get married at age 12 or age 14 it is valid.

It is not voidable, but it is not that invalid.

There was also some testimony as to the practical issues in the case of what if a minor could not obtain parental consent and we refer the Court to page 76 of the appendix, one of the witnesses indicated that there was reason to believe that minors would be seeking illegal abortions.

I suppose minors that are financially well-off in Massachusetts could cross over into Vermont or if Vermont does not require parental consent expressly.

Referring to prior decisions of this Court on the rights of minors, there is certain general principles that we have been able to suggest.

There is no case that we have encountered which upholds the rights of parents over the rights of minors when both are asserting rights of constitutional dimension and I believe my time is over.

Thank you, Your Honors.

Warren E. Burger:

Thank you, gentlemen.

The case is submitted.