Ruling on Teens' Abortion Rights Seen as Major Test

By DAVID G. SAVAGE

Nov. 26, 1989 12 AM PT

TIMES STAFF WRITER

MINNEAPOLIS — At age 17 and pregnant, Amy S. thought the trip to the abortion clinic would be dismal, even scary.

What she learned there proved even more frightening than she had imagined. Because she did not want to tell both her mother and her ailing father about her pregnancy, she would have to go to the county courthouse and explain her predicament to a judge.

“It was the worst, most degrading thing I’ve ever gone through,” said Amy, now a junior at the University of Minnesota. “To stand there in front of a judge, answering very personal questions. Everyone staring at you like you’re some kind of criminal. It was awful.”

Amy was one of 7,000 girls under 18 who sought abortions in Minnesota between 1981 and 1986, before a federal judge declared the law unconstitutional. Half of them chose to tell both of their parents. The others, including Amy, said they would not or could not. Under the state law then in effect, their only choice was to seek permission from a judge.

Amy got her abortion, without her parents’ knowledge, after a brief court hearing four years ago.

This Wednesday, the Supreme Court will consider Amy’s ordeal and whether her rights--or her parents’--were violated by it.

Lawyers for the Minnesota teen-agers say that forcing the girls to notify their parents or a judge violates their right to privacy. State lawyers say that letting the girls get an abortion on their own--even with the judge’s permission--violates the parents’ right to raise their children without interference.

The Minnesota case, along with a companion appeal from Ohio, marks the first abortion test in the high court since the justices voted last July to broaden the states’ authority to regulate abortions. And it may have considerably more impact.

Last July’s decision, in a Missouri case called Webster vs. Reproductive Health Services, held only that a state may forbid its employees and facilities from playing a role in abortions. But the vast majority of abortions take place in private doctors’ offices and clinics.

By contrast, about one-third of the estimated 1.5 million abortions nationwide are performed on teen-agers. Thirty-one states, including California as well as Minnesota, have laws requiring teen-agers either to notify their parents or to gain their consent before receiving abortions.

Because of court challenges, only a handful of these laws are now enforced. The Supreme Court ruling in the Minnesota case could trigger the enforcement of those laws, or it could wipe them from the books.

Among the abortion cases before the Supreme Court since it legalized the procedure in its 1973 Roe vs. Wade decision, the Minnesota case is unique.

The other cases stemmed from legal challenges to laws that had yet to go into effect. The court arguments were abstract and hypothetical.

By contrast, the Minnesota law was in effect for five years. A federal judge conducted a five-week trial in 1986 to examine how the law worked in practice.

That will provide an uncommon opportunity for Justice Sandra Day O’Connor, the Supreme Court’s swing vote on the abortion issue. O’Connor has long urged the federal courts to wait until laws had been implemented, rather than weighing speculative claims about a law’s potential impact, before reviewing their constitutionality.

If a law puts an “undue burden” on a woman’s right to choose an abortion, it should be struck down, O’Connor has said. If not, it should be upheld as constitutional.

Although opinion polls show parental notification laws to be the most popular of abortion restrictions, the Supreme Court has been divided over their constitutionality. In splintered rulings from 1976 to 1983, the justices put forth two conflicting principles:

--No one, including a parent, may block a young woman’s choice to end her pregnancy.

--Parents have a legitimate interest in being involved in all matters affecting their daughter’s life and welfare.

One way to resolve the inherent conflict, the court advised in 1979, is to create a “judicial bypass” for a teen-ager who cannot or will not consult with her parents.

This is what Minnesota tried. And now, all the parties to the case before the court agree on one point: “Judicial bypass” is a bad idea.

Teen-agers like Amy call it traumatic and humiliating. Anti-abortion activists say judges simply “rubber stamp” abortion requests.

And a judge who heard more than 1,000 abortion appeals from teen-agers called it a waste of his time and theirs.

“You could see this was very stressful for these kids,” Judge Allen Oleisky of the Hennepin County Juvenile Court said in an interview. “They took time out from school. They had to play all sorts of games. They lied to their parents and their friends to come down here. I can’t see it (the law) did any good for anyone.”

Girls from all over the state went to the courthouse in downtown Minneapolis seeking permission to get an abortion without telling their parents. Many traveled for hours from rural areas to avoid the small-town courthouses where someone might recognize them.

It was not unusual, Oleisky said, for girls to show up in cheerleaders’ outfits. They used their cheerleading activity to explain their absence from home or school.

Nearly one-fourth of the girls showed up at court with their mothers, according to Oleisky. Under the Minnesota law, both parents had to be notified before the abortion, even if the parents were divorced and the father had no contact with the family.

Heather P., another female plaintiff in the case before the Supreme Court, was 14 years old when she went to court with her mother seeking permission to get an abortion without notifying her father.

Her memories of her father are dim and not very pleasant. “They were divorced when I was 5,” she said in an interview. “He was an alcoholic, and I remember him hitting my mother.” Being forced to tell her father about her pregnancy “was like being required to tell a stranger about it,” she said.

What was her mother’s reaction to the required approval by a judge? “She was mad,” said Heather, now 18. “She thought the whole thing was stupid. It was my body and my decision; we didn’t see why we needed this man’s approval.”

Heather received her abortion. Under the law, the judge was to waive the two-parent notification requirement for teen-agers he considered to be “mature” and for those for whom an abortion would be in their “best interest.”

In practice, all but a handful of the 3,500 requests were granted. The few denials were for young women who told the judge they did not want abortions but were forced to by boyfriends or mothers.

Even state Sen. Gene Waldorf (D-St. Paul), sponsor of the 1981 Minnesota law, now agrees that the judicial bypass should be scrapped.

“It hasn’t worked,” he said. “The girls are coached on what to say, and the judge has no way of knowing their real situation.”

But there is disagreement over what should replace the old system.

Abortion clinic directors and the young women who brought the case now before the Supreme Court, with the backing of the American Civil Liberties Union and the Planned Parenthood Federation, say the decision should rest with the pregnant girl.

About half of teen-agers, they say, will tell their parents that they are seeking an abortion whether there is a law or not. Beyond that, they say, the state cannot mandate good communication between parents and children.

Sen. Waldorf says he favors requiring all pregnant teen-agers to consult with their parents except in instances of child abuse or incest. The leader of the state’s most powerful anti-abortion group agrees, pointing out that parents have an accepted right to make decisions about medical care.

“If my daughter wanted to go on a school field trip, I’d have to sign a consent form,” said Jackie Schwietz, co-director of the Minnesota Citizens Concerned for Life, which drafted the parental notification law. “I resent it as a parent that the Meadowbrook Clinic (the area’s largest abortion provider) thinks they know what’s better for my daughter than I do.”

In fact, the parental notification laws are an exception to an exception. Typically, parents must consent before a doctor can treat a minor under age 18.

However, most states also have broad confidentiality statutes that permit teen-agers to be treated for sexually transmitted diseases, to obtain birth control, to have pregnancy tests, even to deliver a child--all without informing their parents. Minnesota’s parental notification law was written as an exception to this general confidentiality statute.

In a 1986 trial, U.S. District Judge Donald D. Alsop, a Republican appointed by President Richard M. Nixon, heard testimony on the law’s impact from scores of young women as well as from counselors, psychologists and juvenile court judges. Concluding that the law appeared to have “no beneficial effect,” he declared it unconstitutional.

For teen-agers who refused to tell their parents of the pregnancy, the forced appearance before a judge was merely a “traumatic distraction,” Alsop said.

The judge concluded that the requirement that the teen-ager notify an absent parent was irrational. “Notification of an abusive or even a disinterested absent parent may reintroduce that parent’s disruptive or unhelpful participation into the family at a time of acute stress,” he wrote.

The ACLU and Planned Parenthood were delighted. Their strategy of laying out the history of how the law had worked in practice appeared to have paid off.

“We were pretty certain the judge was not with us when that trial started,” said Thomas Webber, executive director of Planned Parenthood of Minnesota. “He was turned around by the evidence.”

In 1987, a three-judge panel of the U.S. 8th Circuit Court of Appeals upheld Alsop’s ruling. But then the full appeals court voted to reconsider that decision and then reversed it last year on a 7-2 vote. Six of the seven judges voting to overturn Alsop’s ruling and to reinstate the law were appointees of President Ronald Reagan.

The new appeals court opinion essentially ignored the trial findings. Evidence gathered there might call into question the “practical wisdom” of the Minnesota law, the court said, but it did not make it unconstitutional.

The court upheld even the two-parent requirement as applied to absentee parents. Parents have “significant interests . . . in the rearing and welfare of their children,” the appeals court said, and “these interests are (not) contingent upon the parent having custody of the child.” As long as the judicial bypass was available to teen-agers who could not tell their parents, the entire law was constitutional, the court concluded.

Both sides appealed to the Supreme Court. The ACLU says the appeals court ruling is wrong and the entire law should be struck down as unconstitutional. (Hodgson vs. Minnesota, 88-1125.)

Attorneys for Minnesota, led by Atty. Gen. Hubert H. (Skip) Humphrey, the son of the former vice president, say the parental notification requirement should be reinstated without the judicial bypass. (Minnesota vs. Hodgson, 88-1309.)

In addition to hearing arguments over the Minnesota law, the justices have also scheduled debate over an Ohio parental notification law that has yet to go into effect. (Ohio vs. Akron Center for Reproductive Health, 88-805.) Rulings in both cases are expected by June.

The court will hear only indirectly from young women such as Amy and Heather.

“I had grown up in a nice neighborhood,” said Amy, the University of Minnesota student. “No one in my high school ever got pregnant.” She did, however, in her senior year.

Although she looks forward to having children some day, it was out of the question then, she said. So too was telling both of her parents, especially with her father recovering from a serious illness.

“It was my mistake, and I was going to take care of it myself,” she said. Although she says she has no regrets about the abortion, she remains offended that the state required her to go to the courthouse like a criminal and plead her case before a juvenile court judge.

TEEN-AGERS AND THEIR PARENTS: Abortion Laws in 31 States Alabama: consent required

Alaska: consent, but law not enforced

Arizona: consent, but law declared unconstitutional

Arkansas: notification required

California: consent, but enjoined by court order

Delaware: consent, but law not enforced

Florida: consent, but law struck down as unconstitutional

Georgia: notification, but enjoined by court order

Idaho: notification, but law not enforced

Illinois: notification, but law enjoined by court order

Indiana: consent required

Kentucky: consent required