BELLOTTI v. BAIRD

Transcript: 

Argument of Garrick F. Cole

Chief Justice Warren E. Burger: This case is submitted.

We'll hear arguments next in Bellotti against Baird and the consolidated case.

Mr. Cole, I think you may proceed whenever you're ready.

Mr. Garrick F. Cole: Thank you.

Mr. Chief Justice and may it please the Court.

My name is Garrick Cole.

I'm an Assistant Attorney General, Commonwealth of Massachusetts, and I'm here before you today on behalf of the Attorney General of the Commonwealth and its district attorneys, the named defendants in this matter.

The Attorney General was sued because he is the chief law enforcement officer in charge with enforcement of the statute.

After summarizing briefly the prior proceedings in this case, reviewing the results of the abstention process and stating the significant facts, I propose to concentrate my argument this afternoon on two questions: whether the Court should consider the statute constitutional on its face and whether the District Court's remedy, a declaration of total unconstitutionality and an injunction against enforcement of any aspect of the statute in the first trimester, the second trimester, and the third trimester as to immature minors or as to mature minors, whether the Court should consider that remedy appropriate.

We are content to rely upon the arguments in our briefs concerning the other issues.

The District Court's handling of discovery and the matter of costs on appeal in this Court and our prior appeal.

As the Court may review from the briefs, this matter was commenced in 1974 in the District of Massachusetts before a three-judge District Court as a Civil Rights action seeking invalidation of a state statute.

The Court had this case before it in Jan-- excuse me, in July of-- for decision in July of 1976 which had vacated the District Court's decision on abstention grounds and send it back for further proceedings.

Those further proceedings occurred in 1977 and the case was retried in October of 1977.

In 1978-- in May of 1978, the District Court entered its decision, an order which we seek review here in this Court today, enjoining the statute, as I've said, the enforcement of the statute in its entirety and declaring the statute unconstitutional on its face.

Now, abstention-- the process of abstention which this Court directed the District Court pursue has had a substantial impact on the issues that are before us today.

As a result of abstention, the meaning of the statute is now clear and its purpose is certain.

Those purposes, as authoritatively construed by our Supreme Judicial Court, are to promote the best interests of pregnant adolescence and children by stimulating parental consultation accompanied by judicial supervision within the framework of the constitution.

As a result of abstention, gone is any suggestion of parental veto.

Gone, also, is any question concerning the promptness of judicial proceedings, and gone is any implication of improper or discriminatory intent.

The statute, we submit, that, as before the Court today, stands in the long tradition of state legislation enacted to protect and promote the best interests of its minor citizens.

So, as a re--

Justice Harry A. Blackmun: Is there any possible disagreement as to this note between the parties?

Mr. Garrick F. Cole: I'm sorry, Your Honor, as to the meaning of the statute?

Justice Harry A. Blackmun: No, as to just what you said, that the best interest of the minors is the rule under the Massachusetts statute.

Mr. Garrick F. Cole: Mr. Justice Blackmun, I believe not.

I believe that the Supreme Judicial Court's opinion on this -- in this regard is quite definite, that the judge's decision should --

Justice Harry A. Blackmun: That's the way I read it, but I wonder whether you knew as between counsel on the opposing side of the putty and whether there's any disagreement as to this.

Mr. Garrick F. Cole: I think --

Justice Harry A. Blackmun: Maybe I'll ask them.

Mr. Garrick F. Cole: Perhaps you might, Your Honor.

I think they may make an argument that, well, I'd look them to make that argument, whatever argument it may be.

Justice Potter Stewart: Well, in any event, what the Court clearly also held was that the district judge was not permitted to find that this was a mature minor capable of -- as an equivalent to an adult so far as being able to decide his -- her best interest by her own lights, and that that was sufficient, therefore, to approve the abortion.

It had to say that the -- your Supreme Judicial Court held that “no, that's not enough and that's not the judge's function.

The judge's function is to decide even if this is equivalent to an adult woman so far as maturity and ability to make her own decisions that, nonetheless, it's the judge's function to decide in his opinion whether it's in the best interest of this person to have the abortion.”

That's correct, isn't it?

Mr. Garrick F. Cole: That is correct, Your Honor.

I --

Justice Potter Stewart: And, I think that is one of the issues between you.

Mr. Garrick F. Cole: Well, let me just suggest why I don't think that means that an answer to Justice Blackmun's question should've been different from what --

Justice Potter Stewart: I didn't suggest it should've.

Mr. Garrick F. Cole: Alright.

Justice Potter Stewart: I just placed it.

Mr. Garrick F. Cole: I think it's important, in responding to your question, that we realize that the Supreme Judicial Court placed its comments in that regard in a context.

And, it said “assuming that this requirement and this purpose on the part of the Superior Court judge is constitutional, then we believe that it is constant with the long-established tradition of judicial supervision over the welfare of minors that the Court not stop simply at a finding of maturity of informed understanding but, rather, look and see whether there are things which it sees which the child or adolescent may not see for whatever reason, make a determination on that basis.

So, I think that, for that reason, the Supreme Judicial Court's suggestion as to the judge's proper role is constant, once again, with the tradition which we believe this statute stands.

Chief Justice Warren E. Burger: I suspect, for the purposes of your case, you might be willing to accept the very emphatic arguments that you've just heard in the preceding case that a 16-year-old is not capable of making any decision in f -- affecting his rights or her rights alone and without advice.

Mr. Garrick F. Cole: Well, Your Honor, we don't share that view.

I don't think the evidence supports that view.

I think the District Court found, however, and the expert testimony is that age does bear relationship to the ability of a child or adolescent to make an informed decision, that the older the child generally, more probable as an individual --

Chief Justice Warren E. Burger: You're not arguing for any per se rule in any event.

Mr. Garrick F. Cole: No, Your Honor, we're not.

We're certainly not.

Justice Potter Stewart: But, as I understand it, just to be -- I want to be --

Mr. Garrick F. Cole: Sure.

Justice Potter Stewart: I do understand this --

Mr. Garrick F. Cole: Sure.

Justice Potter Stewart: -- because it's quite important to me.

Mr. Garrick F. Cole: Yes.

Justice Potter Stewart: As I see this, your Supreme Judicial Court held that even though the trial judge finds that this particular minor is the equivalent of a rational mature adult so far as decision making goes, nonetheless, since she is in fact a minor, then the district judge, despite her wish to have an abortion, can say “I find it's in your best interest not to.”

Mr. Garrick F. Cole: The judge?

Justice Potter Stewart: Which, of course, he could not do if she were in fact an adult.

Mr. Garrick F. Cole: That's absolutely true, Your Honor.

She couldn't -- he could not do that if she were an adult, and the Supreme Judicial Court suggestion in its opinion is that the Superior Court judge should perform that function if it's constitutional to do so.

We suggest that, under our analysis of the situation, that it ought to be constitutional for the judge to do that because maturity, in the sense of informed understanding, is not always a guarantee.

Indeed, I would suspect in this area it's virtually no guarantee at all that an adolescent or a child has the life experience, has the understanding of the abortion decision which a judge, who is familiar with these problems perhaps over a period of ti -- sequence of cases may acquire --

Justice Potter Stewart: Well, it's undoubtedly true that most adults, during the course of their lifetimes, make decisions which are foolish decisions but a free society allows them to do so.

Mr. Garrick F. Cole: Absolutely.

Justice Potter Stewart: And protects them in doing so.

Mr. Garrick F. Cole: Absolutely, Your Honor, and I think that, as this Court has recognized in other contexts, it's peculiar circumstances of minority which sometimes justify, indeed do justify, the states taking a more protective role than it otherwise would be permitted to do in a case of an adult.

And, I believe that the SJC's suggestion to that regard, Your Honor, is consistent with this Court's observation in other contexts.

Justice Harry A. Blackmun: Mr. Cole, just straighten me out.

If this mature minor were a widow, the situation would be different, would it not?

Mr. Garrick F. Cole: Well, the situation is that -- your honor is referring to Section 12 (f) of the statute and the answer is yes, as a result of the provision, except for the proposition that Section 12 (s) does not apply to abortions.

So, the fact that and I think I should perhaps explore that point at this point so that you understand it, Section 12 (f) if a general, as the Supreme Judicial Court says in its opinion, legislative mature minor rule, but it applies only in a very limited set of circumstances.

It applies only to those minors who meet its six criteria and their now criteria, to some degree they codify the common law notion of emancipation, but they go a little broader.

But, they're still quite now and Section 12 (f) on its face does not apply as a result to the vast majority of children, male or female, who live with their families in Massachusetts.

Now, it's also true, Mr. Justice Blackmun, that it does not apply to abortion or sterilization, neither does Section 12 (e) dealing with methadone maintenance.

The legislature has made a determination, we suggest one which ought to be within its constitutional power to do, that some healthcare decisions, maybe a lot of them, maybe ones which inf -- include very serious surgical procedures or other things of that nature ought to be within the adolescent's ability to decide for his or herself and others should not.

And, abortion, sterilization, and methadone maintenance are three of those legislatively singled out severe and controversial decisions which the legislature has determined an adolescent should -- or a a child should not be able to decide.

As a result of the Supreme Judicial Court's ruling, we suggest that there are only two questions of substantive quality before the Court.

First, is the statute invalid simply because, I'm on its face now, it requires parental consultation and notice in every case -- in all cases and is it invalid on its face simply because it requires physicians who attend mature minors to adhere to the same requirements which govern the conduct of physicians who attend immature minors?

Now, appreciation of the narrowness of these questions, it seems to me, a narrowness that derives from the process of abstention, is a helpful basis for turning to a consideration of the facts at issue in this case.

The facts are important, we believe, because they show the tenor and complexity of the judgment which the legislature has made.

They are predominantly legislative in nature, however, because we are not talking about a -- as applied attack.

I'm talking about any individual minors.

We're talking about the general power of the legislature.

Skipping briefly through them, I want to suggest to the Court that pregnancy among adolescence is an increasingly serious and common phenomenon.

Approximately 1 million adolescence between the ages of 15 and 19 become pregnant each year, and approximately 30,000 adolescence under the age of 15 become --

Justice Thurgood Marshall: Mr. Attorney General, how about a young, below 18, who has left home?

Mr. Garrick F. Cole: As to a question that was --

Justice Thurgood Marshall: I'm trying to find it.

Mr. Garrick F. Cole: As a person to -- who has no parental --

Justice Thurgood Marshall: Yes.

Mr. Garrick F. Cole: Yes, the statute deals with that Mr. Justice Marshall.

Justice Thurgood Marshall: We could -- I couldn't --

Justice Potter Stewart: The statute deals with the parents who have left home, parents who deserted their child.

Justice Thurgood Marshall: How come about the child who leaves and gets an apartment and lives by herself.

Mr. Garrick F. Cole: Right.

Justice Potter Stewart: It doesn't seem to make any exception for that.

Mr. Garrick F. Cole: Well, there is a s -- I'm sorry.

Your question prompts my memory.

In the SJC opinion, there is a mention, and perhaps my associate can find it for me --

Justice Thurgood Marshall: Yes.

Mr. Garrick F. Cole: The situation in which a no-substitute parent is available.

Justice Thurgood Marshall: Right.

Mr. Garrick F. Cole: And the situation there would be that, I suppose, that someone either who could perform that function would do it for the child or on the child's behalf --

Justice Thurgood Marshall: Well, here's a child that's living by itself, taking care of herself, and not depending on anybody.

Whose business is it, except hers?

Mr. Garrick F. Cole: Right.

Well, Your Honor, in the --

Justice Thurgood Marshall: It seems a lot different from the ordinary case.

Mr. Garrick F. Cole: Yes, I agree with you.

What you're really talking about, I suppose in the common law notion --

Justice Thurgood Marshall: Would be an exception, I gather.

Mr. Garrick F. Cole: Is the -- yes, is the emancipated minor situation.

Justice Thurgood Marshall: Yes, that's what I mean.

Mr. Garrick F. Cole: Yes, and I see the thrust of that argument.

The legislature's judgment is that abortion is a terribly difficult consideration and a child who is able to make many other decisions, indeed, virtually all of them on their own behalf may find herself totally at sea when she faces this one.

Justice Thurgood Marshall: She also has to face suicide when she gets over that.

Mr. Garrick F. Cole: If she doesn't do it, yes.

Justice Thurgood Marshall: We're going to need them here so they need to go out from that.

Mr. Garrick F. Cole: Right, I understand your point, Your Honor, and I--

Justice Thurgood Marshall: I guess a real question, is there some people that you and I know that are mature at 17 and some who are not mature at 30?

I guess that's the answer, isn't it?

Mr. Garrick F. Cole: It's absolutely true, Your Honor, and we use bright lines, somewhat arbitrary distinctions.

There's no question about it.

We face that problem.

The cite, if you're interested, Mr. Justice Marshall, appears in the Northeastern Reporter on page 294 to that discussion of the --

Justice Thurgood Marshall: I didn't get the volume.

Mr. Garrick F. Cole: I'm sorry.

It is 316 Northeaster 2nd 294.

Return to the facts in this case.

The evidence establishes that abortion surgery, although it is, and from medical risk point of view, relatively safe, is not without its hazards.

And, the evidence indicates that complication rates vary from one-half of 1% to as much as 5% for abortions -- excuse me -- performed in the first trimester by the usual suction method.

They are much higher when one considers abortions performed in the second semester by other methods.

The evidence also establishes that pregnancy and abortion have serious psychological ramifications for adolescents in particular and that the problem of recidivism.

I should define that term in the way that the experts at trial used it, the reoccurrence of unwanted pregnancies among adolescence and children is astonishingly severe.

And, plaintiffs' expert testified that, among her patients, the rate was approximately 25%, that is to say, one out of every four children whom she councils come back again with another unwanted pregnancy.

And, the literature supports in very -- varying places that the rates could be as high as 95% in a given sampling.

Justice Potter Stewart: While we're talking about what the record shows as to the facts of life, am I correct in my recollection or understanding that I read in this brief that there are cases on record where girls as young as five years old can become pregnant?

Mr. Garrick F. Cole: Yes, Your Honor, that's true.

It's in the record.

It's in the request for admissions.

If I can just find that in my notes here, I can give you the exact cite.

It's approximately Request for Admission No. 50 or something like that in our Request for Admissions Volume 1 of the transcript.

Yes, sir, that is true.

It's a case -- a reported case.

Justice Potter Stewart: In the United States of America?

Mr. Garrick F. Cole: No, it was not.

It was, I believe, in Peru.

It's in a volume of -- we got it from a book on adolescent gynecology.

Justice Potter Stewart: Are years the same length down there as they are here?

Mr. Garrick F. Cole: Your Honor, it's an astonishing fact, but there are children who, I believe she commenced menstruating at 18 months.

I should note in passing now, as my time is flee -- flying, that we object and continue to object to the introduction of evidence in the briefs of appellees in this case concerning the actual operation of the Massachusetts Superior Court system.

We feel the -- this matter, as Justice -- Judge Aldrich ruled at trial, was an issue not relevant to a facial attack and, therefore, we do not think that it's a matter which the Court should properly consider.

Turning quickly to my argument on the merits, although this is a facial attack on a statute -- state statute, plaintiffs' claims and the District Court's opinion concentrate on very narrow criticisms.

They concentrate upon the effect the statute has on very narrow groups of minors.

Now, we don't believe -- we submit, this Court's cases don't permit the District Court to strike a state statute under these circumstances.

Starting from the beginning, parental consent and its appropriateness, our argument is that it's a longstanding tradition recognized in the law and Mr. Justice Stevens' opinions and opinions of Mr. Justice Brennan in the Carey case note the importance of parental counseling, and the parties all agree that supportive parental counseling is the b -- is in the best interests of minors.

So, we start from that proposition.

The evidence also contains support that the-- of the importance of the parental support in the con -- in the minds of professionals, of the American Academy of Pediatrics.

The Court may be aware from reading our brief and looking at the record, the American Academy of Pediatrics in 1973 had before it the question precisely of whether minors, adolescents, and children should be able to consent to the performance of abortions and sterilization on their own behalf.

And, the testimony and exhibits on file indicate that the American Academy of Pediatrics decide the answer to that question ought to be no.

Of what then do plaintiffs complain?

Placing aside the question of the --

Justice Harry A. Blackmun: Of course, the important word in your phrasing of it is “supporting,” isn't it?

Mr. Garrick F. Cole: Yes, Your Honor, that's quite so.

And, I was -- I'm going to turn to that question right now.

Of what then do plaintiffs complain?

They -- placing aside the immature minor question, the confusion which we deal with in our brief over that, because --

Justice Harry A. Blackmun: Am I not correct?

Your statute requires it, irrespective of whether or not it is supportive.

Mr. Garrick F. Cole: Your Honor, on its face, the statute applies to the relationship does not probe beneath it and, yes, consultation is required even though some parents may not be supportive.

Now, we appreciate that problem.

We have never -- did not -- I see my time has expired.

I'll have to stop there.

Argument of Brian A. Riley

Chief Justice Warren E. Burger: Mr. Riley.

Mr. Brian A. Riley: Mr. Chief Justice and may it please the Court.

My name is Brian Riley and I represent the appellant, Jane Hunerwadel, who was permitted to intervene in the District Court.

Mrs. Hunerwadel was the mother of three unmarried girls of childbearing age.

At the time this action was commenced, she had no knowledge of the true identity of Mary Moe.

She was permitted to intervene on behalf of herself and as representative of a class of Massachusetts parents having minor girls of childbearing age who might -- who are or might become pregnant and choose not to inform their parents as to the nature of their pregnancy and as to whether or not they were going to seek an abortion.

The intervener contends that the Massachusetts statute, as interpreted by a unanimous decision of the Supreme Judicial Court, is constitutional on its face.

The intervener contends that the Massachusetts statute is constitutional because it reflects a long line of decisions that this Court, holding that parents have the primary right, duty, and obligation to provide guidance and protection to their minor children.

This Court has only intervened -- interfered with the primary right and duty of parents when the parents have not acted in the best interest of their minor children.

This Court has held that parents are entitled to laws which aids them -- aid them in the discharge of their obligations.

The Massachusetts statutes consistent with this body of law, first, it provides that the minor must seek parental consent and guidance before she may attain an abortion.

This part of the statute reflects the privacy of the family unit.

However, it does provide that a judge of the Superior Court, an inbred mechanism in the statute may grant consent where such consent is in the best interest of the minor child.

The record demonstrates the rationale for such a statute.

All of the experts agreed that, for a minor girl, an unplanned pregnancy is accompanied by a period of great stress.

Typically, these girls are scared, they're frightened, they're desperate.

One of the experts described these girls as upset, withdrawn, non-communicative, and anxious.

Expert testimony also reveals that such girls are compelled to seek an immediate solution to the problem.

In short, they want immediate relief.

And, yet, the experts state in this case that immediate relief is not proper.

There ought to be a period of reflection.

This is where the role of the parents becomes critically important.

All the experts again agree that the great majority of parents who give support and guidance to their children.

They also agreed that parental support and involvement is extremely important and should be encouraged in every instance.

It's important that if the girl makes the decision to have the abortion that is the product of reflection and thought, and not the reaction to a crisis.

The testimony of the intervener, Mrs. Hunerwadel, demonstrates the important role the parents can play in this decision.

First, parents are made aware of the pregnancy and they have an opportunity to discuss the pregnancy and the reasons and the circumstances that led to it.

That's a fundamental right, if a girl's daughter -- if the daughter is pregnant, the parents ought to be made aware of that.

It shouldn't be kept secret.

Second, if the pregnancy is symptomatic of other problems, whether they'd be emotional or not, affecting the girl, the parents can begin to initiate steps to resolve those problems.

Third, if it's determined that the abortion is in the best interest of the minor girl, the parents will be given the opportunity to assist their daughter in selecting the proper medical facility which best fits the girl's needs.

Justice Thurgood Marshall: That depends on the wealth of the parents, doesn't it?

Mr. Brian A. Riley: I think there are many various facilities that are available that could be provided to a minor, and some may be more expensive or less expensive.

Justice Thurgood Marshall: You think?

And, I --

Justice Thurgood Marshall: Do you think?

Mr. Brian A. Riley: I think that some doctors would be -- may charge a small fee and provide a better service than someone who may charge a large fee --

Justice Thurgood Marshall: But, do you think?

Chief Justice Warren E. Burger: Some are free, are they not?

Mr. Brian A. Riley: Excuse me, Your Honor?

Chief Justice Warren E. Burger: Some are free.

Mr. Brian A. Riley: Yes, Your Honor, some are free.

Justice Thurgood Marshall: The psychiatric is free in Massachusetts?

Mr. Brian A. Riley: Alright, depending upon the --

Justice Thurgood Marshall: That's depending upon whether or not a young girl should have an abortion.

Mr. Brian A. Riley: There are neighborhood counseling services, Your Honor, and --

Justice Thurgood Marshall: For free?

Mr. Brian A. Riley: That are available, and I don't think that it -- that that -- it's the availability the parents have to seek this type of assistance whether or not that --

Justice Thurgood Marshall: Of course --

Mr. Brian A. Riley: -- assistance should be available to --

Justice Thurgood Marshall: One year is an important factor.

Mr. Brian A. Riley: That is, Your Honor, but then, again, the girls, if they need it, should be given the opportunity to get it.

Now, whether or not everyone is entitled to it is another issue which I think is beyond the scope of this case.

The parents will have the opportunity to ensure that the child receives the best possible medical treatment by selecting the appropriate position and medical facility.

By so doing, the parents can ensure that the child receive proper counseling and backup care in the event of an emergency.

Finally, the parents can ensure that the child receives proper post-abortion counseling and psychiatric care if necessary.

A majority of the District Court found that the statute's requirement of parental consultation is unconstitutional because some parents may be physically or emotionally unwell.

First of all, the record establishes that it is real that a minor's fears about adverse parental reaction are in fact realized.

It is also common that children have many fears about adverse parental reaction which are plainly unfounded and never realized in fact.

It's common knowledge.

Second, that statute should be -- not be judged on the rare exceptions to the rule but should be judged on the broad sweep of the statute's purpose.

Majority of the District Court questions the value of giving parents a “last-minute consultation with their daughter.”

The majority seems to imply that if parents have not discussed the problem of the unplanned pregnancy, that it would probably won't be beneficial to give them an opportunity to talk to the girl when it's time that she may want one.

Despite the obvious shortcomings with this statement, it's found better to give parents that last opportunity to help their daughter and to let them have a last-minute consultation possibly with a physician that may only have a narrow clinical interest in the abortion procedure or have solely a monetary interest in the abortion procedure.

The facts of the present case illustrate this point.

Justice Harry A. Blackmun: Mr. Riley, can I interrupt with one question?

Mr. Brian A. Riley: Yes, Your Honor.

Justice Harry A. Blackmun: Are you and your associate asking the Court to overrule Danforth?

It seems to me, all the arguments you've made are really met by that decision, aren't they?

Mr. Brian A. Riley: Excuse me, Your Honor?

Justice Harry A. Blackmun: Are you asking the Court to overrule the Danforth case?

Mr. Brian A. Riley: No, Your Honor.

Justice Harry A. Blackmun: Have you said anything that really isn't an attack on that case?

Mr. Brian A. Riley: I think that -- I believe I attempted to make the point earlier that the statute, first, provides for parental consultation and, secondarily, provides for judicial review of that decision.

Justice Harry A. Blackmun: The only difference- - there are two differences that I want.

You've got two-- you need two parents here and you only needed one parent there, and you have judicial review here.

They are the only differences.

Mr. Brian A. Riley: One of the re --

Justice Harry A. Blackmun: All these other arguments fit that statute too, don't they?

Mr. Brian A. Riley: One of the reasons advanced in the -- by the District Court for declaring the statute unconstitutional was because it required consultation in all instances, and I don't think that that was resolved in the Danforth case.

We're trying to -- attempting to demonstrate to the Court why the broad sweep of the statute is beneficial for the child.

Inbred in the statute and consistent with previous cases of this Court, if the parents fail, if the parents don't accomplish what they are under a duty to perform, then the state can move in and, I think, once the state moves in, they are acting in the best interest of the minor girl.

Never once has this Court ever advanced the theory that the child should become removed from both the state, removed from the family, and placed into the hands of the third party who is in no way responsible either legally by the parent-child relationship, or by the parens patriae relationship with the state for the welfare of that child in the long run.

And -- but the facts of this case demonstrate the need that why there should be the intervention by the parents or the Court.

In the present case, Dr. Zupnick, one of the plaintiffs, resides in New York.

He travels to Boston two days a week to perform abortions, the parents say.

He receives anywhere from $600 to $900 for two days' work in Boston.

He does not participate in pre-abortion decision making process.

Counseling is done in groups by paraprofessionals.

At the time this action was commenced, Mary Moe was 16 years old and living at home with her parents.

Mary Moe received an abortion by Dr. Zupnick.

Her entire involvement with Dr. Zupnick lasts five to seven minutes, the time it took the abortion.

Had Mary Moe's parents been involved or the Court been involved, the last-minute consultation may very well, whether it'd be with the parents or the Court, given rise to the selection of a physician who would've given her much more thorough medical treatment and much more thorough pre-abortion counseling.

Mary Moe was aborted on October 31, 1976.

Several weeks later, at deposition, she was asked whether she had received the required follow-up medical exam.

She had not.

Two months later, at the time of trial, she was again asked whether she had received the required follow-up medical exam.

Again, she responded that she had not.

When asked why, she responded that she want -- had to wait until she received her Christmas money from her grandmother and her brother so that she could pay for the post-abortion checkup.

The intervener contends that the --

Chief Justice Warren E. Burger: Your time has expired, counsel.

Mr. Brian A. Riley: Such untenable situation should not be tolerated by the Court.

Thank you.

Argument of Joseph J. Balliro

Chief Justice Warren E. Burger: Mr. Balliro.

Mr. Joseph J. Balliro: Mr. Chief Justice and may it please the Court.

My name is Joseph Balliro and I will address the Court with respect to those issues involved in appellee's brief concerned with the undue burdens in the context of the due process argument.

My colleague, Mr. Henn, will address the Court on behalf of the appellees with respect to the equal protection arguments.

At the outset, I'd like to say that it should be emphasized that this is a criminal statute that effectively prevents, by its sanction, the minor from obtaining access to abortion facilities that she may want in order to terminate her pregnancy.

Justice Potter Stewart: Against whom do the criminal sections run?

Mr. Joseph J. Balliro: The ones performing the abortion, if Your Honor please.

Justice Potter Stewart: Not against the minor?

Mr. Joseph J. Balliro: Not against the minor.

I might point out in response to Justice Stewart's question of the penalties provide for fines between $100 and $2,000 and where the maximum or any -- practically, any amount of those fines imposed, it would effectively preclude abortion facilities being available for the overwhelming majority of minors.

Justice Potter Stewart: That is, minors who have not received the consent of their parents.

Mr. Joseph J. Balliro: Or who don't have a great deal of money.

Justice Potter Stewart: Well, now, this doesn't talk anything about money.

It's just talking about --

Mr. Joseph J. Balliro: No.

Justice Potter Stewart: -- consent of parents.

Mr. Joseph J. Balliro: That's correct.

In a long line of --

Chief Justice Warren E. Burger: It might be in a free clinic, might it not?

Mr. Joseph J. Balliro: That's possible --

Chief Justice Warren E. Burger: I think we have some free clinics in Massachusetts.

Mr. Joseph J. Balliro: We not only have free clinics, but even clinics run by the appellees in this case, Mr. Chief Justice, provide, in a very substantial percentage of cases, free services for those who they're satisfied are indigent.

In the record, Appellee demonstrates that.

Chief Justice Warren E. Burger: Do those free clinics supported by the State of Massachusetts or by private funding or do you know?

Mr. Joseph J. Balliro: None of them is supported either by the Commonwealth of Massachusetts or by Federal funding.

As a matter of fact, I can't think off-hand, Your Honor, of any entirely free clinic but, with respect to the existing clinics that provide abortion services, almost all of them, in one way or another or to some extent or another, will afford indigents free services to a greater degree, if Your Honor please, with respect to the appellees in this case and, more often than not, other existing abortion facilities in Massachusetts will refer indigents to the appellee clinic in this case.

In a long line of cases, beginning perhaps back as early as Griswold, this Court has clearly established that the right to decide whether or not to terminate a pregnancy is a fundamental right constitutionally protected and insulated from interference unless warranted by some compelling state interest.

And, in Bellotti against Baird, this Court recognized that the unmarried minor has a fundamental right to an abortion.

Now that right cannot be unduly burdened.

Now, when this case first came before this Court, the burdens imposed by the statute were somewhat unclear, and I don't think that it makes too much difference, Your Honors, whether or not it was unclear either because of the representations that were made concerning the interpretation of the statute at that time by the Attorney General's Office or whether they were unclear as a result of the fact that the District Court failed to abstain, but the fact of the matter is that we now have the benefit or the answers provided by the Supreme Judicial Court of the Commonwealth of Massachusetts to some-nine questions that were certified to it.

And, I would suggest respectfully that those burdens fall generally into two categories.

First, those required by the necessity for two-parent consent and then those required by what the District Court described and which we adopt as judicial override.

The statute first requires that the minor obtained the consent of both parents, and it makes no difference that the minor is mature and capable of giving an informed consent.

It makes no difference that a physician may agree with her or the concerned friends, adults, or otherwise may agree with her.

It makes no difference whether or not one or both of the parents have previously expressed views that very strongly indicate the probability of aggression or hostility toward the child were she ever to get pregnant.

And, as a matter of fact, this record --

Justice Potter Stewart: And a minor in Massachusetts is, for this purpose, is a girl, was it 18 or --

Mr. Joseph J. Balliro: Under 18.

Justice Potter Stewart: Under 18?

Mr. Joseph J. Balliro: Under 18, Your Honor.

Justice Potter Stewart: If she's reached her 18th birthday, she's not a minor.

Mr. Joseph J. Balliro: She's an adult.

Justice Potter Stewart: Thank you.

Mr. Joseph J. Balliro: And, as a matter of fact, this record, with respect to the appellee Mary Moe, describes exactly that kind of a hostility and aggression having been expressed by at least one of her parents or father who, she testified, had indicated that, this was before she was pregnant, that if she ever got pregnant he was likely to kill her boyfriend.

It makes no difference if the parents have expressed unalterable views that are opposed to abortion.

Even if those use include the forcing of her carrying to term as punishment for whatever transgression the parent might feel the child did by becoming pregnant.

And, it makes no difference if the parents have been separated for years and one of the other or both have never displayed any warmth, any love, or any affection for the child.

The only exception to that, as far as the statute is concerned, is with respect to the legal definition of desertion, whether or not one of the parents deserted the other parent.

And, it makes no difference, may it please the Court, if the most renowned physician or group of physicians or psychiatrists were to attest to irreparable or long-lasting harm to the minor if forced unreasonably or arbitrarily or against her will to have an abortion.

And, according to the statute as it's written in the face of that kind of overwhelming interest as to what would be in the best interest of the child, even a dispassionate judge could not order that that abortion proceed without notification and consultation of the parent-- parents, both of them.

In short, this statute that talks in terms of a good cause and the statute that the Supreme Judicial Court of the Commonwealth of Massachusetts discussed in terms of both the Court and parents conducting themselves in a manner that would be to the best interest of the child would compel notification, consultation, and the obtaining of consent of both parents in total disregard of what every thinking person in a significant number of cases, I submit, would agree was totally irrational and dangerly harm-- dangerously harmful both to the child herself and very well to her parents, as the record in this case shows, because that judge would be forced to direct that notification of that pregnancy be made to parents even though, for example, one of them may be suffering from a very severe hot condition that could very well be triggered into something a lot more serious where that parent would find out that its child was pregnant.

As far back as Roe against Wade, reaffirmed by this Court in Carey against Population Services, this Court has spoken in terms of the necessity of there being a compelling state interest as necessary to justify regulation of a right so fundamental as to whether to bear a child in that, more importantly, any such regulation be narrowly drawn.

Far from being narrowly drawn, we suggest that, obviously, the two-parent consent requirement of this statute is about as broadly drawn as any statute could be.

Justice John Paul Stevens: Mr. Balliro, just to use that as an example, as I remember the Supreme Judicial Court's comments on the case, they suggested that if the statute were too broadly construed, the Federal Court might sustain its constitutionally on -- constitutionality only in part rather than taking it as a whole.

What would be wrong with the view that the Court should've simply held the two-parent consent requirement unconstitutional but sus -- or maybe unconstitutional as applied to the mature minor, but that the statute should be saved with respect to the immature minor where in -- at least in case where the consent of one parent might well be supportive or at least consultation?

Mr. Joseph J. Balliro: Mr. Justice --

Justice John Paul Stevens: Is it necessary to examine the whole thing on a facial basis, in other words?

Mr. Joseph J. Balliro: I believe that it is and I would adopt the District Court finding that respect.

And, more particularly, it's description of the Supreme Judicial Court's method of saving a part or major part of the constitution of this statute by its chameleon change of color to satisfy whatever this Court might feel is necessary in order for any part of it to survive constitutionally is not a view of severability that I can adopt.

I would adopt the District Court's view, Justice Stevens, with respect to --

Justice John Paul Stevens: Well, I'm sure you would, but do you want to try and persuade us why we should do it?

Mr. Joseph J. Balliro: Well, first of all, I think you wouldn't be doing justice to the legislature of the Commonwealth of Massachusetts.

I think if you did that, you would then wind up with a statute that was directly contrary to what the expressed view of the legislature of the Commonwealth was, that there'd be a two-parent consent.

And, I don't think that it should be the function of the Federal Court to make that kind of a distortion.

Justice John Paul Stevens: No, but the highest Court of the state has said that if we can't have the total picture that's been presented, we want as much of it as can possibly be saved.

Mr. Joseph J. Balliro: That's what the Supreme Judicial Courts held --

Justice John Paul Stevens: That's right.

Mr. Joseph J. Balliro: -- in the Commonwealth of Massachusetts.

Justice John Paul Stevens: That's the highest Court of Massachusetts.

Mr. Joseph J. Balliro: That's correct, but that's not the legislature of --

Justice William H. Rehnquist: Well, but our cases have said many times that when the Supreme Court of a state speaks interpreting a statute, it's just as if the legislature had spoken.

Chief Justice Warren E. Burger: They have said what the legislature provides.

Mr. Joseph J. Balliro: Well, Justice Rehnquist and Mr. Chief Justice, perhaps the greatest difficulty I have with severing out that portion of the legislature -- legislative requirement is in my strong feeling that, with respect to the rest of the statute, in almost every aspect it's so unduly burdens that it would not survive if that were to be done anyway.

Justice William H. Rehnquist: Well, that's a separate argument.

Mr. Joseph J. Balliro: But, it's my answer to your question.

Justice Harry A. Blackmun: Mr. Bellotti -- Balliro, have you ever known of another instance where your Supreme Judicial Court has said, “this is the way the statute is construed, but if it isn't alright and the Federal Court thinks it ought to go another way, we'll go along that way”?

Mr. Joseph J. Balliro: I don't --

Justice Harry A. Blackmun: Is this common in the holes of the Supreme Judicial Court of Massachusetts?

Mr. Joseph J. Balliro: Your Honor, it's not only uncommon in Massachusetts and nor do I know of any other instance in -- with respect to the Commonwealth of Massachusetts where the Supreme Judicial Court has ever spoken in that sense, but I don't know of any other decision, at least I've never been acquainted with one in which --

Justice Harry A. Blackmun: Well, there are a couple of Harvard law professors, ex-Harvard law professors on that Court and I wondered if this is what they're teaching these days.

Mr. Joseph J. Balliro: I don't think they teach that at Harvard, if Your Honor pleases.

Conceding the uncontradicted fact that parental guidance is desirable, nonetheless, the also unconstradicted fact in this record is that an appreciable number of -- in an appreciable number of cases, the requirement of obtaining parental consent of both parents will lead to a disaster either for the child, the parents, or both.

And, I note, Mr. Chief Justice, that my time is up.

Argument of John H. Henn

Chief Justice Warren E. Burger: Mr. Henn.

Mr. John H. Henn: Mr. Chief Justice and may it please the Court.

My name is John Henn and I represent the appellees, Planned Parenthood League of Massachusetts and others in this case.

The Massachusetts statute, Section 12 (s), singles out the unmarried minor who chooses abortion for imposition of a uniquely burdensome and discriminatory set of restrictions.

What the state has done is to invidiously classify into one group all minors who have never been married and who want an abortion, and into the other group every other kind of minor.

Now, these other kinds of minors consist of, first, any minor who wants to continue her pregnancy, second, any minor who has ever been married and who wants an abortion and, third, any minor who wants any kind of medical treatment however serious other than abortion.

For all these other minors, Massachusetts either has no requirement of parental involvement at all or has requirements which are much less burdensome than those imposed by Section 12 (s).

Now, let me illustrate this.

The case of the minor who wants to continue her pregnancy is obviously the most simple.

She faces no requirements of parental involvement whatever regardless of her maturity.

The case of the minor who is or ever has been married and who wants an abortion is also simple.

Under the Massachusetts emancipated minor statute, Section 12(f), she is exempted from all parental involvement requirements regardless of her maturity.

Chief Justice Warren E. Burger: Is it possible, under Massachusetts law, this statute or any other where a parent to compel the child to submit to an abortion?

Mr. John H. Henn: It is not, Your Honor.

As to the minor --

Justice Potter Stewart: The law makes all sorts of distinctions between married and unmarried people, minors, doesn't it?

Mr. John H. Henn: The were law in Massachusetts law --

Justice Potter Stewart: I mean, until a person is married and during his or her minority, under the ordinary concepts of common law, her parents speak for the minor.

After marriage, that's no longer true and that's, from time and memorial, been recognized by the law.

There are all sorts of distinctions made, depending upon that difference in status, aren't there?

Mr. John H. Henn: There are a number of distinctions with respect to minority, obviously --

Justice Potter Stewart: And with respect to marriage.

Mr. John H. Henn: And with respect to marriage, but I'm focusing now on the medical treatment area and I want to distinguish how uniquely Massachusetts has treated only the minor who has the status of being unmarried and who wants the treatment of abortion.

Let me do that--

Justice Potter Stewart: It treats unmarried minors differently from married minors in many, many other different ways, doesn't it?

Mr. John H. Henn: It does, Your Honor.

Chief Justice Warren E. Burger: The very concept of emancipation does so, does it not?

Mr. John H. Henn: That does, Your Honor, and emancipation has now been statutorily codified so that, if I may turn to the third case of the minor who wants any form of medical treatment whatever other than abortion from plastic surgery to amputation, she may obtain that in one out of three ways, all of which are more liberal than what the unmarried minor wanting an abortion uniquely faces.

That minor who wants some other medical treatment may, if she fits within one of the protected categories of the emancipated minor statute, be exempted from all parental involvement whatever regardless of her factual maturity.

Even if she does not fit within the statute, she can, if mature, be exempted under the common law mature minor rule from all parental involvement, at least if her doctor decides that parental notification is against her best interest.

And, finally, if she neither falls under the statute nor under the common law rule, she will have to obtain the consent of but one parent.

In short --

Justice Harry A. Blackmun: Mr. Henn, if these are all equal protection arguments, as I understand it, the remedy for that I suppose would be to enjoin the enforcement of the statute to the extent that there's any disparity.

In other words, change it to require one-parent consent or, in the case of a mature minor, hold it invalid as to that.

Mr. John H. Henn: In response to that and in response to your earlier question to Mr. Balliro with respect to preservations of some portion of the statute, we suggest the statute cannot be preserved, first, for the reason my brother already mentioned, namely that the State Court has authoritatively spoken as to the legislative intent.

Second, that it would be unprecedented for the Federal Court to take a statute, eliminate its construction and, indeed, its text and rewrite it.

And, third, you would have here by way of the construction suggested, distinguishing between mature and immature minor, a criminal statute which would make a physician's potential exposure to criminal liability turn on whether he correctly assessed maturity versus immaturity.

Just as this last month, this Court considered a statute where a physician could or could not be criminally liable depending on how he assess the question of viability.

Each of those questions are questions in which experts have differ.

Justice Harry A. Blackmun: Well, I suppose the doctors have to make that precise judgment in the non-abortionary in the cases you just described.

Mr. John H. Henn: They do -- they do, Your Honor, but they do only with respect to exposure to a potential battery suit in connection with an immature minor.

The result of the Massachusetts overall system is that, for any case you can think of, except the unmarried minor wanting an abortion, Massachusetts law either leaves it up to the minor and her physician or, at most, requires one parent's consent.

Section 12 (s) stands in stark contrast in this otherwise liberal approach.

Under Section 12 (s) and only under that statute, an unmarried minor could actually be forced to bear an unwanted child.

And, the consequence of letting the statute go into effect, as the facts found by the District Court show, which have not been challenged as clearly erroneous, the consequence would be to deter unmarried minors from seeking legal abortions, to force some of them to travel out of state or into the hands of backroom abortionists, and to force still others to bear unwanted and usually illegitimate children.

Justice Harry A. Blackmun: Your argument is that it's irrational, or close to that, for the legislature to say that the abortion decision is different from these other medical decisions.

Mr. John H. Henn: It -- that is, in terms of all of the range of other abortion decisions, it is -- it's probably even irrational --

Justice Harry A. Blackmun: No, you are saying the distinction between abortions and other medical procedures where only one parental -- consent of only parent is required.

Mr. John H. Henn: We suggest that --

Justice Harry A. Blackmun: That there is -- the legislature could not rationally consider one of those decisions more serious than the other.

Mr. John H. Henn: I think the test would be a test of more heightened scrutiny, namely the significant state interest test, but I think it -- think it is even irrational to single abortion out where there is still a system which provides substantially the same kind of protection for minors who at least are incapable of making decisions.

That is the common law rule.

It does not say that a minor incapable of consenting to abortion can nevertheless get an abortion.

The common law rule is still the common law rule of battery which would require one --

Justice Harry A. Blackmun: But I was focusing on the cases outside the common law rule, those where you do not have a mature minor.

Your objection there is --

Mr. John H. Henn: Those cases --

Justice Harry A. Blackmun: That you have --

Mr. John H. Henn: But, the two common law rules, Your Honor.

There's the common -- there's the new mature minor common law rule.

Justice Harry A. Blackmun: Well, let's take the case of the minor who is not a mature minor.

Mr. John H. Henn: Correct.

Justice Harry A. Blackmun: There, on the -- your argument is that, in medical procedures other than abortion, the consent of one parent is sufficient and whereas --

Mr. John H. Henn: Correct.

Justice Harry A. Blackmun: And, whereas, consent of two parents is required in an abortion case.

Mr. John H. Henn: In this case.

Justice Harry A. Blackmun: And, you're saying there is no valid distinction between abortions and other medical procedures that would justify a difference in the kind of parental consent required.

Mr. John H. Henn: That's -- there, at least, is no significant state interest in that distinction because the two-parent consent rule here is not only intermently burdensome in itself, adding an additional consent requirement, but it triggers the minor's exposure to all the other burdens of the statute.

For example, the discriminatory burden of judicial veto where, in the case other than abortion, a minor may obtain the medical treatment she wants upon the concurrent consents of herself, to the extent of her capacity, one parent, and her physician.

But, uniquely under this statute, a judge may veto those concurrent consents even if the other parent has not opposed the abortion in Court but merely declines to execute the required consent form, and the statute requires that a consent form be executed.

Now, Your Honor --

Chief Justice Warren E. Burger: Mr. Henn, it may -- probably is not terribly important, but I wonder if either in presentations to the legislature on the arguments in the Supreme Judicial Court of Massachusetts there was any -- discretion of any kind about the predicament of the physician who performs the abortion after this Supreme Judicial Court decision, assuming it is sustained, who is later confronted with a malpractice suit or a battery suit by a 14-year-old or 15-year-old girl after she's matured several years later on the grounds that she was incapable of giving consent and, therefore, it would be a battery, in most states, if there was no adequate consent?

Mr. John H. Henn: Well, if Section 12 (s) were invalidated, I think -- in other words, if the District Court opinion in this case were upheld, then I think the physician would have a good faith defense under the, I believe, third paragraph of Section 12 (f) which, in my view, ought to apply which would provide a good faith defense either if he was reasonably mislead by the minor as to her competence or mislead as to her age.

Otherwise, it is, and indeed would be, the common law rule as to all medical procedures comparing the common law mature minor rule with the more traditional common law battery rule that a physician's judgment, with respect to maturity, is subject to exposure, if he errs and decides the minor is mature, to a possible battery suit.

I think there should properly be a good faith defense in that, and I can't say the common law itself is clear in part because the mature minor rule was only announced in this case by the Supreme Judicial Court.

Now, the deterrent burdens which my brother, Mr. Balliro, has discussed at some length are ones which, in our view, make this statute a statute which is not safe from the Court's holding in Danforth.

The suggestion has been that Section 12 (s), its provision for going to Court as an alternative somehow makes this case different from Danforth.

But, the burdens of going into Court were found, as a fact, to be severely detrimental, and I call the Court's attention to the findings at pages 1,001 and 1,002 of 450 (f) set in this case.

Those findings were that the burden of going to Court is a “heavy burden,” that the -- that an expert witness testified, credibly and without contradiction, that going into Court would be severely detrimental to the minor, testified that if the minor -- that most minors, at least if obliged to get parent's consent would not -- or many minors would not go to Court but, instead, would seek illegal alternatives and, quite importantly, found that if a minor did go to Court, she was in an impossible situation.

If she prevailed, that is, she beat her parents in Court, that was hardly going to help her family situation and, if she lost, if her parents forced her to bear an unwanted child, that was hardly going to help her family situation either.

Now, Your Honor, I would like -- Your Honors, I would like to turn to the suggested state interest which appellants have proposed in this case.

The first suggested state interest is that of protecting against immature decision making. I submit this state interest is already met by existing Massachusetts law which provides for physicians to make individual assessments of maturity.

And, surely, the requirement of parental notice when, by hypothesis against a minor's best interest, not to mention judicial veto of a mature minor's decision, have nothing whatever to do with protecting against immature decision making.

Indeed, where the state truly concerned to prevent immature decisions, this statute is obviously under inclusive.

It does not impose any requirements even if consultation or counseling on any minor who wants to have a child, however foolish or immature that wish may be.

And, similarly, the statute sweeps far beyond any requirement of encouraging parental consultation.

It requires consent or notice of a lawsuit in every case even if, by hypothesis, harmful to the minor.

An example of a consultation statue is attached to our brief.

Our brief is the buffed colored brief, as the Maryland statute and, while the factual workings of that statute I can't speak to, that is the -- at least an example of the kind of statute which would encourage consultation in the normal case, but leave it up to the physician to decide whether to dispense with it in cases where parental cases would be harmful to the minor.

There are no judicial proceedings required and the physician may not be made criminally liable for his decision.

As to the matter of remedy, the District Court was surely correct in invalidating the statute in its face.

The claims of all unmarried minors who wish abortion were before the District Court and those are the minors to whom the statute applies, there is no as applied analysis therefore, that would be appropriate and this Court has not applied such analysis in its review of prior abortion statutes.

In summary, we submit that the District Court properly invalidated the entire statute as imposing undue burdens and unjustified discriminations with respect to a minor's abortion choice.

Thank you very much.

Chief Justice Warren E. Burger: Thank you, Gentlemen.

The case is submitted.