Split High Court Taking Up Role of Parents in Abortion

A teen-ager who gets pregnant usually faces at least two tough questions: Should she get an abortion and should she tell her parents? Lawmakers in Illinois and 21 other states, including California, want to require that she may not do the one without doing the other.

Today, the Supreme Court--apparently divided 4 to 4 on the abortion issue and with one seat vacant--will hear attorneys for Illinois argue for the authority to ensure that parents have time for “meaningful consultation” with their daughter before she has an abortion.

Last year, a federal appeals court here rejected the Illinois law before it went into effect, concluding that a required notification of both parents, followed by a 24-hour wait, unduly hindered the girl’s right to end her pregnancy. In September, another appeals court threw out Minnesota’s parental notice law after a trial court found that it blocked abortions for teen-agers from troubled homes.

Supporters of those laws say they do nothing more than give parents a right to counsel their daughters at a difficult time.

“This is an attempt to allay a lifetime of nightmares for a teen-ager as to whether she made the right decision,” said John T. O’Connell, a Democratic state legislator and sponsor of the Illinois law. “The parents have an overriding interest in being a part of that decision, and the state has an obligation to protect that interest.”

Critics, maintaining that state laws cannot force families to communicate better, charge that their real purpose is to prevent teen-agers from getting abortions.

‘My experience is that most girls will talk to their parents about it. We encourage them to do so. But some of them can’t, and they won’t,” said Patricia Dougherty, director of education for Planned Parenthood in Chicago. “They (anti-abortionists) are just trying to make it harder for them. They can’t stop abortions for most women, so they have gone after the women with the least political clout: poor women and teens.”

The Supreme Court at various times has offered support for both sides of this argument.

In 1973, when the court first declared that women have a constitutional right to an abortion in the landmark case of Roe vs. Wade, the justices said also that the right “is not absolute.” Moreover, they said, “some state regulation . . . is appropriate” to protect the health of the patient and the unborn child.

Conflicting Principles

In the years since then, many states have tried out a variety of regulations, most of which have been struck down by the court as barely disguised attempts to prohibit abortion. The high court, in half a dozen abortion rulings since Roe vs. Wade, has put forth two often conflicting principles: first, all females have a constitutional right to get an abortion during the first months of pregnancy and, second, parents and state officials have a right to influence that decision for minors.

Justice Lewis F. Powell Jr. was the swing vote in those cases. He voted with the liberal majority to ensure women the right to end their pregnancies but switched to the conservative side in two rulings that said parents deserve a voice when their daughters seek an abortion.

Powell has since retired, and the remaining justices appear evenly split on the issue. Four of them--William J. Brennan Jr., Thurgood Marshall, Harry A. Blackmun and John Paul Stevens--regularly vote in favor of a woman’s right to an abortion. Blackmun, in particular, has contended that the decision to end a pregnancy is best left to a woman and her doctors.

Four Support Regulation

Meanwhile, the four other justices--Byron R. White, Sandra Day O’Connor, Antonin Scalia and Chief Justice William H. Rehnquist--believe that the states have broad power to regulate or prohibit abortion.

If there is a swing vote now, it may be Stevens. In past rulings, he has indicated that he would support laws requiring a notice to parents but not their consent.

About 1.5 million abortions are performed in the United States each year, one-third of which are said to involve teen-age girls. Right-to-life groups say more than 80% of adults polled believe that parents should have a role in deciding whether their daughters have an abortion.

In the Illinois case, the court must weigh the interest of parents against the rights of their daughters.

In 1983, a large majority of the Illinois Legislature concluded that “immature minors often lack the ability to make fully informed choices that take account of the immediate and long-range consequences” of having an abortion. To encourage “parental consultation,” the state said that a doctor may not perform an abortion on a minor until he has notified both parents and waited 24 hours.

May Go to Juvenile Court

A girl who does not wish to tell her parents may go to a juvenile court judge, who must decide whether she is “mature and well-informed enough to make the abortion decision on her own.”

Seven states--Arizona, Georgia, Kentucky, Minnesota, Mississippi, Ohio and Nevada--have similar laws, with a required waiting period and an optional “judicial bypass.”

“We’re defending the minor’s right to get that consultation,” said Illinois Deputy Atty. Gen. Michael J. Hayes. Without the mandated waiting period, “(minors) could be prepped on the operating table when the parents are called,” said Hayes, who will represent state Atty. Gen. Neil Hartigan in the case.

The Chicago obstetrician who sued to block enforcement of the law said it will dissuade teen-agers from seeing a reputable doctor.

“If they get the message that we are the carrier of tales to their parents, they won’t come in,” Dr. David Zbaraz said. “There’s no question every physician will encourage them to tell their parents, but some (teen-agers) won’t. They’ll say: ‘My dad will kill me’ or worse.

“I worry about delays, too. In this procedure, a week’s delay or several weeks can greatly increase the risks,” he said.

Court Option Questioned

Critics such as Zbaraz and lawyers for the American Civil Liberties Union scoff at the idea of giving girls the option of going to court rather than telling their parents. “You have a 15-year-old who is too scared to tell anyone she’s pregnant and you want her to go tell a judge?” Zbaraz asked incredulously.

“The girls who went through this in Minnesota said it was more traumatic to go to court than to have the abortion,” said Colleen K. Connell, the ACLU lawyer opposing the Illinois law. “To lawyers, this ‘judicial bypass’ sounds like a great idea, but it is not for a teen-ager in a traumatic situation,” she said.

“If all these girls lived in a ‘Father Knows Best’ world, this would make sense, but they don’t,” Connell added.

In this case, Hartigan vs. Zbaraz, 85-673, the ACLU lawyers have created a tactical problem for themselves. They obtained a federal court order blocking the law before it went into effect, but, as a result, they lack evidence to show that the law harms teen-age girls.

Privately, they hope that the Supreme Court will fail to issue a clear ruling in the Illinois case and instead will agree to hear an appeal from Minnesota, where a parental notification law was in effect for five years.

California’s law, enacted by the state Legislature in September and scheduled to go into effect Jan. 1, requires an unwed girl to get the written consent of one parent before having an abortion. Failing that, the girl may seek permission from a juvenile court judge.

A narrowly drawn high court ruling focusing on the Illinois case might not affect California’s law. However, legal experts expect that the court will be forced to consider several state laws on abortions for minors.

“Everybody seems to be rushing to pass these laws, so this is where the fight will be,” said Janet Benshoof, counsel for the ACLU’s Reproductive Freedom Project.

Right-to-life lawyers contend that teen-age girls will avoid getting pregnant when they recognize that abortion is not easily available. Maura Quinlan, counsel for Americans United for Life, says the number of abortions and the number of births to teen-agers declined after Illinois’ parental notification law went into effect.

“That is certainly a beneficial effect,” she said.

Emotional Trauma Cited

But the American Psychological Assn. and the American College of Obstetricians and Gynecologists argue that it is flatly wrong to say such state laws protect the emotional and physical health of pregnant girls.

In briefs filed with the court, the psychologists said that recent research has found that the emotional trauma of being pregnant and having an unwanted child is more severe than ending a pregnancy through abortion. And the physicians said the medical risks of giving birth are vastly greater for a teen-ager than having an early abortion.

After hearing arguments in the Illinois case today, the justices will meet Thursday to vote in closed session. The announcement of the decision and a written opinion will not be released for several months.