PLANNED PARENTHOOD OF MISSOURI v. DANFORTH
Legal provision: Due Process
Argument of Frank Susman
Chief Justice Warren E. Burger: We will hear arguments first this morning in number 74-1151 and 1419, Planned Parenthood against Danforth, and Danforth against Planned Parenthood.
Mr. Susman you may precede whenever you are ready.
Mr. Frank Susman: Mr. Chief Justice and may it please the Court.
Just a little over three years ago, this Court spoke firmly and clearly, not as an advocate of abortion, but as an advocate of each individual woman’s right under her then existing particular circumstances, and in consultation with her physician to terminate her pregnancy.
Subject to certain and delineating, compelling state interest, a right to abortion was then recognized as equal to the right to bear children.
In the intervening three years, many things have remained static and many other things have changed. Unchanged in particular are certain fundamental observations that were made by this Court in its decision in Roe versus Wade.
This includes one; the fact of the sensitive and emotional nature of the abortion controversy and the deep and seemingly absolute convictions that the subject inspires, noted by the Court at page 116.
Secondly, was the support of the Court’s position by broadly based and concerned organizations, which included and still include today things such as the American Medical Association, the American College of Obstetricians and Gynecologist, the American Public Health Association and the American Bar Association, also noted in the Court’s opinion, at pages 144 to 146.
And thirdly, was the relative safety of abortion, when compared to the mortality risk normally associated with child birth, noted by the Court at page 149.
And lastly, was the observation that those trained in the respective disciplines of Medicine, Philosophy and Theology, are unable to arrive at any consensus of a question of when life begins, noted by the Court at page 159.
But I would suggest that even more dramatic are those changes which have been directly wrought by those -- the court’s decision of that day.
The first is that Septic Abortions in the United States have decreased by 50%.
Secondly, Maternal Mortality associated with pregnancy has decreased by 80% in the United States.
And Thirdly, Illegitimate Births have also dramatically decreased.
It is somehow cruelly ironic that that area of medical practice, afforded the greatest constitutional protection by this Court, is the same area of medical practice over which the State of Missouri has seen fit to exercise the greatest legislative control.
In 1971, just five years ago, approximately 38% of the world’s population had access to safe medical and legal abortions.
Only five years later now in 1976, two-thirds of the world’s population enjoys that right.
No democracy has ever reversed the trend of liberalizing abortion once accomplished and yet the District Court’s opinion below has severely throttled and restricted this Court’s opinions of Roe versus Wade and Doe versus Bolton and has hampered the medical progress and the reproductive freedom for women, granted by this court in 1973, in which was over a hundred years in coming to pass.
In addition, there is a side effect of restrictive abortions and particularly those in the second trimester and that is that it threatens to cripple all of the advances made in amniocentesis, by which today approximately 60 serious genetic chromosomal disorders can now be diagnosed.
We would also point out that the District Court’s opinion below, is the only Federal Court challenged to uphold major legislation or policy in the area of abortion since January 22nd of 1973.
In all other cases in which policy or legislation was challenged, it was voided as not meeting the requirements of Roe and Doe.
The jurisdiction of this Court is clear under the holdings in Gonzales and M.T.M. This Court in Roe and Doe, and subsequent courts, which have had little difficulty in understanding the opinions rendered by this Court, have set up certain standards and tests by which abortion legislation and abortion policy is to be judged and they include among others; number one, the delineation of the period of gestation in the various periods, frequently called trimesters, but not truly so, at the first trimester and then the second period running up to the point of viability and the period afterwards.
They have consistently held that regulations not observing these distinctions as set forward in the Court’s opinions are invalid.
Secondly is the test of equating abortion with other procedures, a test first enunciated by the Eight Circuit in a case entitled Doe versus Pelker (ph).
In that case the Eight Circuit pointed out that anytime the states seeks to single out abortion from among the hundreds and thousands of other medical and surgical procedures for special attention, it has imposed an extra layer of regulation and an extra burden and thus is invalid.
Thirdly are the tests referred to the by the Court itself, those of compelling state interest, placing a stronger burden upon the state who attempts to pass such regulations.
Along with the compelling state interest test of course, is the fact that any regulations enacted, which conform to those test must be narrowly drawn and we suggest as we will go through each of these sections that are challenged here this morning, that they are not so narrowly drawn.
Again, is a test which is required that abortion be treated equally with childbirth and that it not be legislatively disfavored by the legislation which is enacted, particularly in light of the fact that abortion for periods well into the second trimester are still safer in the mortality rates for childbirth.
And lastly as the observation, the effect of any restrictions upon access to abortion are more onerous for the poor and for the young.
It is basically of course very difficult to go into any great detail in any of this sections due to the time that it is allotted, and therefore, we will attempt to only take them in order as they appear in the statute.
First Section that was challenged is Section 2(2), which involves the definition of viability.
The statute provides that viability is defined as follows, “that stage of fetal development, when the life of the unborn child maybe continued indefinitely outside of the womb by natural or artificial life support of systems.”
This section needs to be read of course in conjunction with Section 5, providing the no-abortion not necessary for life or health maybe performed after the period of viability as statutorily defined.
This Court in speaking of viability, spoke about it in several different ways and on three separated occasions.
First on page 160 of the decision in Roe, it referred the viability as usually being placed about seven months, twenty-eight weeks, but may occur earlier even at twenty-four weeks.
Secondly, on page 163, the Court said that point of time in which the fetus then presumably has the capability of meaningful life outside the mother’s womb and in the third place also on page 160, the Court referred to when the fetus is potentially able to live outside the mother’s womb or be it with artificial aid.
We do not believe as the State contends that the Court may only look to one of these meanings, and thereby incorporate it statutorily into the statute.
We believe that all three must be look like -- look at and taken as a group.
First of all this restriction in definition invades the first trimester.
By the mere addition of the word indefinitely which do not appear in the Supreme Court’s decision, which dictionary is defined as indeterminate, it provides for remote possibility even for seconds of survival, and yet the idea of brief respiratory gasp or fleeting heartbeats are not considered by the American College of Obstetricians and Gynecologists as life.
Fleeting heartbeats and respiratory gasps are still considered to qualify as a stillbirth under those definitions.
Three courts, three Federal Courts have held that in fact this Court’s language as to twenty-eight weeks, but perhaps occurring at twenty-four was not dicta.
That in fact it was to be a lower limit beyond which states could not allow viability to occur under then existing medical evidence before this Court in 1973.
The problem of defining viability involves whether you are talking about a remote possibility of survival as opposed to perhaps a probability.
This was a problem in the now celebrated trial of Dr. Ethan (ph) in Boston.
We would suggest that the standard be as follows; that there be a irrebuttable and conclusive presumption that viability does not occur before twenty-four weeks.
And we agree with the three federal courts that have interpreted the Court's decision as saying that this was not intended to be dicta, but was to be a holding.
And we further believe that in those cases, the fetus being beyond twenty-four weeks in gestation, that the State has a burden to prove beyond a reasonable doubt that that particular fetus in question would have survived and not the possibility.
The fact that one in a thousand at that particular stage of gestation might survive is no answer to the Doctor whose faced of making the decision at the time, as to whether the particular fetus is viable.
We also feel that it is necessary to have some form of absolute lower limit, because in practice it has been shown that the physician of course would tend to err on the side of safety for himself and the legal processes and not necessarily with only the woman’s interest in mind.
Second Section challenged is that Section 3(2) requiring patient's consent.
This makes it a crime to perform an abortion without requiring the woman to certify in writing that her consent is informed and freely given and not the result of coercion.
It applies to all stages of pregnancy, and it singles out abortion from all other medical and surgical procedures and makes the physician obtain a specific form of consent at the peril of being convicted of a crime.
Chief Justice Warren E. Burger: What is the traditional, the traditional obligation of the physician with respect to a patient independent of abortion is just patience?
Mr. Frank Susman: The obligation --
Chief Justice Warren E. Burger: Under his obligation with respect to the measures he must take, even if he thinks the patient maybe, probably dead, but possibly may have life that can be preserved.
What is the traditional obligation of the physician?
Mr. Frank Susman: I assume, Mr. Chief Justice, you are referring to normal patients or fetus’ surviving birth.
I believe the obligations --
Chief Justice Warren E. Burger: No, I am talking about people?
Mr. Frank Susman: I believe the --
Chief Justice Warren E. Burger: A man, a man rundown by an automobile and the physician happens to come and all of the vital signs appear to be negative, but he sees some that might indicate the possibility of survival, what is his obligation?
Mr. Frank Susman: Legally, I do not -- if we are trying to -- I do not think we are getting into the Good Samaritan type of a problem.
Chief Justice Warren E. Burger: The Doctor, Doctor is not just a Good Samaritan?
Mr. Frank Susman: I think he has an obligation --
Chief Justice Warren E. Burger: (Voice Overlap) first --
Mr. Frank Susman: Under the normal Manslaughter-type Statutes, to use the ordinary means to preserve life, I do not believe that he has the obligation and most religious groups would agree that there is no obligation to use extraordinary methods of continuing heartbeat or respiration.
He certainly has the obligation to use, assuming he is that patient’s physician, he has the obligation under the normal Manslaughter Statutes to use all ordinary means to preserve life.
The normal consent, the physicians always, whether minors or adults, have an obligation to obtain an inform consent.
The reason of course that physician is normally in any surgical procedure obtain written consents from the patient, is to have some record and to protect themselves from future potential civil liability, but this is the only statute making it a crime not to obtain a certain type of consent.
The fact that the statute requires the consent in this case, be in writing, informed, freely given and not the result of coercion, in no manner accomplishes that fact.
It does not in any way guarantee that that consent is informed, freely given are not the result of coercion.
It merely requires the woman so state.
Justice William H. Rehnquist: Well, would you have any objection to a simple requirement that the consent be informed, freely given and so forth, if it were not required to be in writing?
Mr. Frank Susman: If the requirement were to single out abortion from all the hundreds and thousands of other medical and surgical procedures, I would.
I think it is --
Justice William H. Rehnquist: I thought you have said this was the general standard by which consent was judged for any sort of an operation?
Mr. Frank Susman: I believe it is, but if abortion again is to be singled out for -- at the risk of criminal peril, I do not think it can be sustained.
A general statute requiring informed consent of all procedures would be acceptable.
Justice William H. Rehnquist: Well, what if the legislature had determined or had some basis for deciding that in a particular type of operation there was more reason to question the consents that were given than in another type, would it not be permitted to address that problem?
Mr. Frank Susman: I believe it would, but I do not believe that this particular statute addresses that problem because it does not in any way define what constitutes informed.
It merely states that it must be informed.
It does not state as to whether it should be informed as to the procedures, the risk, the complications, the results.
It gives no indication again at the risk of criminal peril to the physician what constitutes an informed consent, An informed consent basically in civil liability -- civil liability cases requires extra testimony at least in Missouri of other Doctors as to whether or not the consent given was informed.
Justice Potter Stewart: And why is this invalid?
Mr. Frank Susman: This particular -- because patient consent clause we believe is invalid; number one because it applies to all trimesters contrary to the Court’s decision in Roe.
Justice Potter Stewart: But the court did not deal with this in Roe?
Mr. Frank Susman: It did not deal specifically with the consents, but we believe that the Court stated that there was to be no regulation during the first trimester.
This we believe falls into the area of regulation.
Chief Justice Warren E. Burger: But would you include in that no-regulation language you are referring to, that the State could not require a medical report to be filed with the health department?
Mr. Frank Susman: Yes we would and that is part of it.
Chief Justice Warren E. Burger: The State cannot demand a report?
Mr. Frank Susman: If abortion is being singled out, the reporting and record keeping considerations we do not believe that it can be.
Chief Justice Warren E. Burger: What provision, what provision of the constitution do you rely on there?
Mr. Frank Susman: Well, I think all of these rights have to go back to the Fourteenth Amendment, the right of privacy upon which the Court based its decision in Roe.
This is -- record-keeping requirements, the patient’s consent requirements have been judged by precious courts and also awarded based on the decisions in Roe and Doe, of infringing into the first trimester.
In the Kentucky case, a Three-Judge Federal Court panel, a case entitled Wolfe versus Schroering, specifically held in regard to patient consent that it was over broad because it also involved the first trimester.
In addition, the Hudson panel in Minnesota voided the same type of patient consent for the reasons that it affected the first trimester and also it singled out abortion, and it was unnecessary for either maternal or fetal health.
The second -- I hope I have answered the question, the second question -- the section, excuse me.
The second Section challenged is Section 3(3), which is that requiring the consent of a woman’s spouse for the procedure.
This question is really, whether or not the husband has the right to control the medical treatment of his wife.
The question of course was not decided in Roe.
In fact, there is a footnote saying there was no need to decide the question at that time.
Approximately nationwide 30% of the women obtaining abortions are married.
We believe that this requirement unduly interferes with the physician-patient relationship, and injects unnecessarily the husband into the medical consultation.
There is no other statute in the State of Missouri, which requires spousal consent for a medical act.
It also, there is no room for compromise in such a section.
It is an all or none type of situation.
The husband either is given a veto right or he has no rights.
Unfortunately, there is very little room for compromise in this type of a situation.
Chief Justice Warren E. Burger: Does the State of Missouri could lawfully require consent of the spouse to any major surgical procedure on the other spouse?
Mr. Frank Susman: No, I do not.
They have not chosen to do so --
Chief Justice Warren E. Burger: I am not worried whether they did. Can they do so constitutionally, you say they can?
Mr. Frank Susman: I think it is less -- I think it would be harder to void such statutes than they would in this area.
There has been a constitutional guarantees to reproductive medicine in many ways, whether be contraception, sterilization, abortion, and that type of constitutional protection and guarantees have not yet been extended to other types of medical procedures.
While I personally believe that requiring spousal consent for any type of surgery is invalid, I do not believe the decisions of this Court addressed -- have gone that far, but I would personally object to them.
This provision also requires and applies to all stages of pregnancy.
It allows the decision of the spouse to override the decision of a woman and her doctor.
All the Doctors at trial testified that it was not normal medical practice to obtain the consent of the spouse in order for medical procedures upon a wife, including items such as sterilization.
There is also we would suggest no compelling state interest for maternal health in requiring the spouse’s consent.
The State suggests that the reason to require it is the husband’s interest, not in the fetus, not in the child, but the husband’s and the state's compelling state interest in the marital relationship, a new compelling state interest and one not mentioned in Roe and Doe.
First of all of course, the reason that the husband’s interest is in the marital relationship and not in the fetus is, that the statute does not require the husband be the father of the fetus.
He need not have fathered this particular pregnancy, but yet his consent is still required.
In addition, he may not even be locatable.
He may have deserted his spouse ten years previously, and if she does not know where she is he still must require his consent and no exceptions are made.
We would also suggest that you may have the -- well, have the case where the father has not fathered the pregnancy or the fetus and yet he withholds his consent for the woman, and then would have no legal liability for the upbringing or raising of the child because it would not be his child.
There is an unanimous line of cases dealing with spousal consent, both in State Courts, the one state court case mainly being Jones versus Smith in Florida.
Punitive fathers have also been held in the decision by Justice Stevens in Doe versus Bellin Memorial Hospital, not to be indispensable parties to a case in which a woman sought an abortion at a private hospital.
Other Federal Courts, panels in Doe versus Rampton, Roe versus Gerstein(ph) and three or four others, the most recent not cited in the appellant's brief is a case entitled Weekes versus Cocnic (ph) decided in a District Court in Louisiana in January of this year, all have held that spousal consent is a void requirement.
There has been no case upholding a spousal consent clause.
Missouri does not seem fit to require spousal consent for either artificial insemination, sterilization, or hysterectomy, or any other procedure for that matter.
The next Section would be Section 3(4), which is the parental consent.
This also interferes with the doctor-patient relationship.
Again, no other criminal statute singles out parental consent as necessary for the treatment of minors.
Minors in Missouri may specifically be treated for VD, drugs and pregnancy, excluding abortion, by statute without knowledge, without consent of the parents.
In other words, they may perhaps be sterilized, receive contraception, bear children and do all the other pregnancy and appropriation-related acts without the consent of the parents with the sole exception of abortion.
In fact, minors for example who already have children were now widowed and divorced with children under 18 would still require consent of the parents for any future pregnancy in order to terminate it.
Chief Justice Warren E. Burger: Does the State of Missouri recognize the doctrine of emancipation of person by marriage?
Mr. Frank Susman: Once the minor would be married, the only -- the parental consent clause only applies to unmarried minors under 18.
If she became married then she would switch over to the spousal concern clause.
So she is going --
Justice Potter Stewart: Your point is then if she became widowed and was still under 18, the parental consents clause --?
Mr. Frank Susman: Even if she already had children.
Justice Potter Stewart: Come back into operation?
Mr. Frank Susman: That is correct, which bring back --
Chief Justice Warren E. Burger: Does the death of the husband cancels off the emancipation?
Mr. Frank Susman: Yes, particularly in light of this specific stature --
Chief Justice Warren E. Burger: The Supreme Court of Missouri ever held that?
Mr. Frank Susman: Well, the Supreme Court of Missouri of course has never ruled on this statute.
They have --
Chief Justice Warren E. Burger: It might come up in other areas.
Emancipation would come up in any situation, would it not?
Mr. Frank Susman: We have no real, to my knowledge, no real emancipation case.
This has been a problem in child support cases arising on disillusions of marriages and there are no hard and fast cases dealing with what makes a minor emancipated in the State of Missouri.
We also suggest there is no compelling state interest.
In regard to both the spousal and the parental consent clauses, the State suggests that somehow marital harmony will be preserved by requiring the consent of the spouses or the consent of the parents from minor.
It is difficult to believe how marital harmony is better preserved are requiring a child or a wife to have a child he does not want, then to preserve it by allowing her to terminate that pregnancy when the parents or the husband does not desire her to do so.
Neither one we suggest that contributes to marital harmony, and neither one contributes to more or less marital harmony.
In regard to parental consent we should also note that the morbidity and mortality rates for minors having been pregnant are much greater than they are for adults.
And all of the factors that this Court recognized, at page 150 of its decision, are adversely and multiplied for minors than they were for the adults then under consideration, all of the emotional distress and psychological burdens that an unwanted pregnancy places.
Again in the case of parental consent, while they can require by withholding their consent a child to have -- to give birth, the parents would have no legal obligation or responsibility to raise that child or that grandchild.
It would solely be the responsibility for her life of the minor, the unwed minor.
In analogous situation minors have been held in two recent federal court cases not to require parental consent to receive contraception and we suggest that these cases are very much on point.
Justice Byron R. White: Mr. Susman, do you disagree with Judge Webster’s view on the parental consent, namely that depends on the ability of the mother to give consent rather than a specific age or do you say no consent at all?
Mr. Frank Susman: I do, I think every inform, consent. Doctors face the same question when treating an adult.
The mere fact that the adult is over 21 does not really mean automatically that she is capable of giving an informed consent.
I think informed consent regardless of age has to be based in each individual case upon the age, maturity, education, intelligence and judgment of the individual then confronting the physician and each case must be looked at independently whether over or under the age of majority.
I would --
Justice Byron R. White: Your view just to be sure I understand is that the parental consent should neither be required for any age or any state of mentality or anything else for that matter?
Mr. Frank Susman: That is not correct.
If the physician in the talking with the child and the patient, the minor patient, determines that she is incapable, based upon the various factors I have delineated is capable of giving parental consent, then I think of course the right to give or to withhold must pass to some other responsible individual.
Whether or not it should be the parents, whether or not it should be a guardian appointed by the court is another question, but if a minor is incapable than certainly someone else, rather than to have the decision made to default.
I will reserve whatever remaining time I have for rebuttal.
Chief Justice Warren E. Burger: Very well Mr. Susman.
Mr. Attorney General.
Argument of John C. Danforth
Mr. John C. Danforth: Mr. Chief Justice may it please the Court.
The one overriding issue in this case is whether state legislatures still retain the power to regulate in major areas, traditionally within their power.
In resolving this issue, the Court is faced with several very important sub questions.
First, does the state legislature still have the power to define the terms and obligations of marriage?
Second, does the legislature still have the power to protect minors from their own immaturity, where stressful and tenuous decisions must be made?
Third, does the legislature still have the power to enact reasonable regulations of a trade or profession for the sake of public health, safety and welfare?
It is the position of the State of Missouri that the answer to each of these questions is yes.
First with respect to spousal consent; the legislature of our State has in effect said through the statute that inherent in marriage is that certain decisions are made jointly by husband and wife or they are not made at all, that this is the very definition of what marriage is all about.
The legislature has done this elsewhere, not only in the State of Missouri, but in other States as well.
For example; if a woman has given birth to a child and then decides that she wants to place the child for adoption, if the woman is not married, she alone can make that decision.
If the woman is married, her husband must join in that decision to place the child for adoption.
The right to consent is not in the punitive father in the State of Missouri.
The right to consent to an adoption is in the husband, because this is fundamental decision relating to what the family is all about.
With respect to artificial inseminations, those States which have legislated on this subject and Missouri is not one of them, have provided specifically that in the case of a married woman, the legitimization of the child depends upon the consent of the husband, if the woman is married.
In the case of sterilization, two or three states that have legislated in this area have provided expressly that if the woman is married, her husband must join in approval of sterilization, Missouri is not one of those States.
Obviously, legislatures have provided all over the country that where real property is conveyed during a marriage, the husband or wife must join and consent to that conveyance.
The fact that the matter is that it has historically been the job and the province of state legislatures to provide by legislation that certain fundamental decisions for the marital entity have to be made by both parties, especially where change is required.
And this definition of marriage, this power of legislatures rather than the courts, to define what marriage is all about has been recognized by this Court for at least the last one hundred years.
Expressly in the case of Reynolds versus United States, which incidentally involve a fundamental constitutional right, namely religion, where the Court held that a statute prohibiting polygamy was not unconstitutional.
Likewise in the case of Maynard versus Hill, decided by this Court in 1888, the Court expressly said in that case that it is the job of the legislature and the courts to define the meaning of marriage and terms and the obligations of marriage and what marriage is and we believe that this power which has always been in the legislature should be in the legislature now as well.
Justice Thurgood Marshall: Attorney General, is there any statute in Missouri that require the consent of the spouse to a medical procedure?
Mr. John C. Danforth: No, Sir.
Justice Thurgood Marshall: This is the only one?
Mr. John C. Danforth: That is right.
This is also the only medical procedure or the most striking medical procedure, Mr. Justice Marshall, that would alter the nature of the family and would change the direction that the family has taken.
Unknown Speaker: (Inaudible)
Mr. John C. Danforth: Pardon?
Unknown Speaker: (Inaudible)
Mr. John C. Danforth: That is my conclusion, Sir.
Justice Harry A. Blackmun: Not just hysterectomy, Mr. Attorney General?
Mr. John C. Danforth: No Sir, no consent required by the legislature --
Justice Harry A. Blackmun: Well how do you, how do you reconcile that with what you have just said?
Mr. John C. Danforth: Well, I do not believe Mr. Justice Blackmun, that it is necessary for the general assembly to cover every possible type of medical situation and the series substantiates to render one particular statute constitutional.
Furthermore you have a case where the woman is pregnant and is married where something has happened in the marriage itself and that condition is either going to yield to an addition to the family which is proximate and immediate, or it is going to be aborted.
And it is our position that it is for the state legislature to say that that decision can be and must be jointly made and that there is no constitutional provision which provides that the woman and the woman alone without the consent of the husband can make that kind of decision.
Chief Justice Warren E. Burger: In your answer to Mr. Justice Blackmun, are you implying that the State of Missouri has the right and still has the reserve right to legislate in these other areas to require, for example, spousal consent for sterilization or any other procedure?
Mr. John C. Danforth: I think it does, Your Honor.
I believe that the legislature could so provide that has not in this case, I think that the issue becomes elevated to a much different plain when the birth of a -- of a coming child is involved and I would also say that whereas Mr. Susman said that if the husband is not the father of the child, he has no legal obligations.
I think that is just wrong.
I think that is a misstatement of law.
If the husband approves of the wife having the baby, he assumes responsibility for that baby.
In fact, there is no stronger presumption in the law than that a husband is in fact the father of any child born of that marriage.
Justice Byron R. White: Mr. Attorney General, I am not sure I understood your answer to Justice Blackmun’s question about hysterectomy.
Is it your answer that that procedure would not have a profound effect on the long run family situation?
Mr. John C. Danforth: I think it -- yes, I think it would.
I think that --
Justice Byron R. White: Previously I thought you have said that the distinguishing feature of this statute was that if involved the only procedure, which would have that kind of effect on the family, it seems to me that it there is a little inconsistency?
Mr. John C. Danforth: Well, I think that this type of statute involving an abortion is a change in a family situation which is already been commenced, that is the future baby is on the way, in this case and I think that the legislature could reasonably say that unlike a hysterectomy, which may or may not be called for for any number of medical reasons and abortion which is essentially an elective procedure by the woman which terminates the pregnancy is one that the husband has a particular interest in.
I would point out also that the legislature obviously does regulate the institution of marriage in a number of different ways.
It provides the statutes under which people become married.
It provides the grounds for divorce and the procedures for that divorce.
The criminal laws of the state do prohibit the way in which people can use their own bodies during a marriage.
Adultery and bigamy are both criminal offenses in the State of Missouri.
Justice Thurgood Marshall: When, last did you have a conviction of adultery in Missouri?
Mr. John C. Danforth: I do not know, Your Honor.
I do not know.
With respect to the requirement of parental consent, the legislature has in effect said in the statute that where decisions are to be made, minors, that is people under the age of 18, simply do not have the maturity to make this kind of stressful and tenuous decision.
The statute provides only for the consent of a parent if a child has not yet reached her 18th birthday.
Chief Justice Warren E. Burger: In Missouri, under the contract law, is apparent as in most states liable for unnecessary obligations incurred by a minor child?
Mr. John C. Danforth: I think that is correct, Your Honor.
Chief Justice Warren E. Burger: Then if the child without the knowledge or consent of the parent is contracted for this surgical procedure, the parents would be liable?
Mr. John C. Danforth: I do not know because I do not know if this would be construed as being the necessary.
Chief Justice Warren E. Burger: I say liable if, liable if, I had not finished, liable if there could be a showing that this was -- fell within the category of necessaries?
Mr. John C. Danforth: Yes.
However, I think the whole point in what the Court stressed in Roe versus Wade is that abortion, unlike most medical procedures, is generally elective.
That is it is one where the woman makes a decision, and the evidence at trial is that decision is a stressful and a tenuous decision, it is a difficult decision.
In Roe versus Wade, and I think this is a very important point, the Court indicated that the decision to have an abortion was a decision that that the woman should make in consultation with her responsible physician.
But the facts in this case are that there is no consultation with the physician whatever, that the physician makes no decision whatever.
That in fact what happens is that the physician is one of a number of doctors on a roster, who shows up for say one morning a week and performs in a period; and this is the case and evidence in the trial, Reproductive Health Services, which is the abortion clinic in the City of Saint Louis, the physician shows up and in a period of three-and-a-half hours performs eight abortions on total strangers and there is absolutely no counseling or medical input from the physician.
There is a degree of counseling from people who appear to have no special expertise in counseling, no knowledge of what they are doing, and I would say a strong presumption in their case that they have some extra grind in seeing that abortions are conducted.
The State in the case of minors does in a number of different ways, regulate and limit what minors can do.
Minors are not treated by the State of Missouri in the same manner as adults.
Minors in our state may not vote.
Minors may not buy liquor.
Minors may not buy cigarettes.
Minors may not sue or be sued without a guardian ad litem or a next friend.
Minors may void contracts.
Minors after they reach majority may set aside real estate conveyances.
The consent of a parent is required when a minor marries.
The consent of a parent is required in Missouri when a minor buys firearms, when a minor buys sells property to a pawn broker and even when a minor goes into a pool hall in our state, the consent of a parent is required.
Chief Justice Warren E. Burger: Under Missouri law, if an abortion were performed say on twelve-year-old or a thirteen-year-old girl, in this clinic, in the process you have described and if afterwards she said that her -- that she was incapable of giving consent because of her immaturity and youth, that is her chronological age and immaturity, would she under the Missouri law have a malpractice suit against the doctor on an assault to take the theory?
Mr. John C. Danforth: I think it would be a battery.
Chief Justice Warren E. Burger: Battery as -- battery type of theory, yes.
Mr. John C. Danforth: Yes Sir and of course then the question is well what -- then why have a criminal statute and of course the reason is that a girl between the ages of ten and seventeen and there is evidence that children ten-years-old have sought abortions in our state, between the ages of ten and that the oldest, the eighteenth birthday, going off secretly to have an abortion and having it and not telling the parent, the parent would be none the wiser, and there would be no battery, there would be no lawsuit brought.
Chief Justice Warren E. Burger: (Inaudible) Missouri or any other states, any such an actions for malpractice on battery theory have been brought by minors, is there any history of that (Inaudible)?
Mr. John C. Danforth: I do not know I am sorry, I do not know the answer to that.
Chief Justice Warren E. Burger: Does the doctor in those circumstances, let us say a twelve-year-old girl, under Missouri practice as distinguished from statutory requirement, get a signed consent from the girl?
Mr. John C. Danforth: Yes.
Chief Justice Warren E. Burger: Without any, without any other, the intervention of any other person?
Mr. John C. Danforth: The standard practice, and this was the evidence of the trial, the standard practice was prior to the passage of the law and of course now the effectiveness has been stayed by this Court so I think it is probably still the case, is that the standard practice was to obtain the written consent of the individual and also the written consent of the parent if the individual was a minor.
Now, an argument has been made here that why not judge this case on its own.
Why presume that every child under the age of eighteen is incapable of an informed consent, but the legislature, as a matter of fact, provides age levels for voting, for drinking, for everything else.
It does not say that there is no constitutional right for a bright mature person who is sixteen or seventeen years old to vote in the State of Missouri, even though voting is a fundamental right.
It would be absolutely unworkable to try to judge the maturity of each person and if the maturity of each individual minor is to be to judged, we would submit that the parent is the only person who is qualified to make that judgment.
I think anyone who has ever had a teenage child will know that the child, one minute can act very mature and the next minute can act very immature and an amateur councilor on the basis of one hour of amateur counseling, I do not think can make that kind of judgment as to whether or not the child is mature enough to have an abortion.
Justice Harry A. Blackmun: What is the age of minority or majority in Missouri?
Mr. John C. Danforth: Well, it is changing, Justice Blackmun.
It was twenty-one and it has been in the process of change in our legislature to eighteen.
Now, the legislature purported to change the age majority in fell swoop by simply deleting the word twenty-one and rewriting eighteen, that was held unconstitutional by our state courts and now is taking the statute seriatim and changing them from twenty-one to eighteen.
Justice Harry A. Blackmun: Mr. General, is pattern the same for males as for females?
Mr. John C. Danforth: Yes, I think there is an exception for age to agree to be married.
That is the age where parental consent is required for marriage and statutory rape I believe is different.
Justice William H. Rehnquist: Well, is there a statutory rape that can be committed on a man in Missouri?
Mr. John C. Danforth: I am sorry, I do not know the answer to that question.
Chief Justice Warren E. Burger: What is the statutory age again of consent in the statutory rape area?
Mr. John C. Danforth: I think it is fifteen for a -- but I do not have that on my fingertips.
I would also point out that --
Chief Justice Warren E. Burger: What is the age for a minor getting married?
Mr. John C. Danforth: Eighteen.
Chief Justice Warren E. Burger: Eighteen, well for fifteen year old boy or girl want to get married, what --?
Mr. John C. Danforth: Would require the consent of a parent?
Chief Justice Warren E. Burger: I suppose -- what, what in Missouri law would be the status of the marriage if in fact Clergyman or a Justice of peace performed it, laying aside their possible criminal violation, would it be a valid marriage?
Mr. John C. Danforth: I do not think so.
I would guess it would be void.
Now, that section of the statute on which most of the evidence was presented at trial had to deal with the prohibition of one of the various mid-trimester means of abortion called saline amniocentesis and what happened in this case was that the Missouri General Assembly, on the basis of hearings that were held and medical evidence that was presented, both orally and written medical journals that were presented, determined that the saline method of abortion was the most dangerous of the two fundamental alternative methods of mid-trimester abortion.
Saline is not a first trimester method of abortion.
It is purely a post first trimester abortion.
There are other post trimester methods.
Hysterectomy and hysterotomy are two.
They are concededly more dangerous than saline.
However, where hysterectomy and hysterotomy are called for there is no alternative to them, and therefore, the General Assembly had outlawed hysterectomies and hysterotomies, it would have outlawed abortions during the second trimester, and it did not do so.
With respect to saline, there is an alternate method of abortion in mid-trimesters called prostaglandin.
Prostaglandin is a different kind of method.
It is readily available and it is safer and there was substantial evidence presented to the General Assembly for this point.
There was substantial evidence presented at trial for this point, including the testimony of the Chief of Obstetrics at the Yale-New Haven Hospital, who said that if in his opinion if a doctor used saline instead of prostaglandin, the doctor would be liable for malpractice.
Roe versus Wade of course allows --
Unknown Speaker: (Inaudible) testimony?
Mr. John C. Danforth: I am sorry Sir?
Unknown Speaker: Any opposing testimony?
Mr. John C. Danforth: There was a testimony from a Doctor Perinier (ph) in New York who is probably the leading practitioner and expert in the field of saline, and he felt that saline was a very safe method and the safest method.
Before -- that was at trial, before the General Assembly there was certainly notice.
I think representatives of the pro-abortion groups were present at the hearing.
I am not sure whether or not evidence was presented at the legislative hearing on the relative safety of prostaglandin and saline.
Unknown Speaker: Is there some evidence in this record about the unavailability of the other procedure?
Mr. John C. Danforth: In our record?
Yes Sir, there is, the testimony of Doctor Anderson about the availability of it.
Doctor Anderson testified that prostaglandin had been approved, after a trial period, approved by the FDA for use as of January 1974.
That the Uptron (ph) Company which is the manufacturer of prostaglandin, restricted its sale to certain medical centers and teaching hospitals for the first six months of 1974, so that as he put it, information as to its use could trickle out through the medical community.
As of July 1974, when the trial of -- or when Doctor Anderson's deposition was taken, he said that this was available in small hospitals also throughout the country.
So as of July 1974, it was available in small hospitals.
The decision of the District Court was predicated on the finding of alternative methods for the trimester abortion.
There are certain very rare cases, statistically very rare cases where prostaglandin is contrary-indicated, and those very rare cases substantially less than one percent of all mid-trimester abortions, the testimony of Doctor Anderson was that the person -- the patient could be treated and then given prostaglandin after the treatment.
Also, in addition to prostaglandin, there are other alternative methods called mechanical stimuli which can be used to accomplish a mid-trimester abortion.
Roe versus Wade of course allowed the state to promulgate reasonable regulations for maternal health after the first trimester.
The State of Missouri, our state legislature did in fact take the court up on that statement and this is exactly what the prohibition of saline is all about.
The government -- one point is made by the appellants in this case that there is a constitutional right to practice medicine, I take it free from governmental regulation.
We simply reject that theory and the Court rejected that theory in the case of Unites States versus Moore, which you decided last December, involving the use of whatever the substitute for heroine is called to treat heroin addiction.
Method, thank you -- and in that case the Court said that the Department of Health, Education and Welfare together with the Justice Department, the Attorney General could set forth the permissible standards for treating heroin addiction.
Justice John Paul Stevens: Mr. Attorney General, can I -- I want to be sure I had something straight.
Did I correctly understand you to say that the hearings before the legislature did not include any testimony about the relative safety of the saline procedure?
Mr. John C. Danforth: Yes it did, Sir.
Justice John Paul Stevens: Oh! It did.
Mr. John C. Danforth: Most definitely did.
Both oral testimony and written material, medical journal articles and the like were presented, comparing saline with prostaglandin and those medical journals were presented to the District Court in this case, introduced at the District Court level in this case and furthermore there were public hearings, both sides had an opportunity to present evidence --
Justice John Paul Stevens: What did you said a yes was, but you were not sure there was any testimony in those hearings that the alternative procedure was safer?
Mr. John C. Danforth: No, that is right, that is correct, but there is certainly was every opportunity to, and this was a two-year process of passing this law and went through two legislative sessions and the question of saline was debated both in hearings and on floor of both houses of the state legislature.
So, it was not a kind of a secret move to push across prostaglandin.
I do not believe, and it is the position of our state that Roe versus Wade and Doe versus Bolton, so exulted the constitutional right to an abortion, that all of these traditional areas of state legislative action have somehow been suddenly wiped-out as a result of Roe and Doe.
And I find it difficult to imagine how the rights to an abortion can be used to wipe-out the state traditional authority to regulate in the case of marriage, in the case of protecting minors and in the case of the operation of a trade or profession, without having a serious of Pandora’s Boxes open with the respect to State powers.
Now, we think for example that if the State cannot define the terms of marriage in this circumstance, it would equally fall that the State statute requiring special consent for adoption, placing a child for adoption would fall, and that any state restraint on using your body as you like in adultery or bigamy that those prohibitions would fall as well.
If a minor cannot be protected from her own improvidence and immaturity, were this kind of stressful and tenuous decision is called for, I do not see how any state statute treating minors different -- differently from adults could pass constitutional muster and if the State cannot regulate the practice of medicine, I think that we are right back in the box of Wagner versus New York and the cases which followed.
Chief Justice Warren E. Burger: Thank you, Mr. Attorney General.
Mr. Susman, in your view, do the statutory provisions in Missouri fall those relating to the necessity of parental consent for marriage as a person is under age eighteen and others like it?
Rebuttal of Frank Susman
Mr. Frank Susman: While realizing that marriage, voting, are also fundamental rights upon which the State has imposed certain age limits, I cannot put those personally in the same class as an abortion, because those rights to marriage and those rights to vote are only postponed for a limited and a small number of years, they are rights that are postponed and the damage for postponing, excuse me?
Chief Justice Warren E. Burger: Your answer is that the statutory rape age limits will survive and --?
Mr. Frank Susman: That is correct.
If you look at the alternatives or the disastrous consequences of postponing for three-years the right to vote and the right to marriage as opposed to the right to terminate a pregnancy, because your religious beliefs may differ from most of your parents who are given a veto right for any reason or for no reason whatsoever to say no, I cannot not put them into the same class.
Chief Justice Warren E. Burger: You put the statutory rape age limit in the same category, if that is a valid?
Mr. Frank Susman: Yes I do.
Chief Justice Warren E. Burger: What do you have -- do you have any comment on the problem of a malpractice suit against a doctor based on the claim that the state by statute has said that a minor at the age of twelve or thirteen cannot legally consent in a rape case, therefore, it should follow, would that be the argument, it cannot consent to abortion, and therefore, rendered the doctor, the aborting doctor liable of malpractice?
Mr. Frank Susman: I think the malpractice, civil liability of problems in regard to giving abortions to minors is no more nor no less than those of deciding on whether or not any patient, regardless of age is giving an informed consent based on the procedure at hand.
Chief Justice Warren E. Burger: What you are saying is a twelve-year-old girl is capable of giving an informed consent?
Mr. Frank Susman: I think certainly --
Chief Justice Warren E. Burger: To an abortion?
Mr. Frank Susman: -- the number of twelve-year-old girls is much less than the number of thirteen-year-old girls, but I would not be willing a blanket statement that there are no twelve-year-old girls who are capable of giving consent to an abortion.
Justice William H. Rehnquist: And you say the legislature cannot draw any line on the basis that there are a lot more thirteen-year-olds who are capable than there are twelve-year-olds who are capable?
Mr. Frank Susman: I do not believe that they can, particularly in light of in this particular statute, the parents can say no for any reason or for no reason whatsoever, even the difference in religious beliefs is for -- there are no guidelines under which their consent can be withheld, it is completely arbitrary.
Justice William H. Rehnquist: Can you tell that without the state courts ever having construed the statute?
Mr. Frank Susman: I think you can because I think the statute is so literal that it cannot be read in any other way.
You must have a parent -- parental consent or else it is a crime for the doctor to perform the procedure and if you -- I have no time left.
Chief Justice Warren E. Burger: (Inaudible)
Mr. Frank Susman: Thank you.
I would like to say just a few words if I could about saline which was risen and which I was not able to reach due to the time factors.
Chief Justice Warren E. Burger: You may have another two-minutes --
Mr. Frank Susman: --Thank you.
Chief Justice Warren E. Burger: -- at this time.
Mr. Frank Susman: First of all the testimony was unequivocal that saline is the procedure of choice for post first-trimester.
In over 75% of all cases in this country, there was no evidence whatsoever in the record that prostaglandins were available much less in use anywhere in the State of Missouri.
And as a matter of fact, as a fact, they are not presently being used by anyone in the State of Missouri as a procedure.
In addition all of the evidence also without exception showed that saline is still safer than sal -- I am sorry, that saline -- saline mortality rates are less than those of natural childbirth.
Doctor Anderson, the appellees, the only medical witness of appellees who had any experience in the abortion field testified that if confronted with a case in which prostaglandins were contrary-indicated, saline would be his procedure of choice.
I would only conclude by saying that the sole exception again of this case, all of the statutes in each and every one of this sections, has been reviewed by other courts adopted by the States and on each and every occasion was struck down.
We would implore this Court to stand by the language and intent of 1973 decisions and not to allow the unwarranted encumbrances upon the rights of women and their physicians, to drive women back to the septic and illegal avenues of relief which were so prevalent prior to 1973, and which then existed as the only avenues of relief for the poor, the young and the unsophisticated.
Chief Justice Warren E. Burger: Thank you gentleman.
The case is submitted.