The MacNeil/Lehrer Report; Teenage Abortion

[Intermittent beeping] [Voice-over] Funding for this program has been provided by this station and other public television stations, and by grants from Exxon Corporation, Allied Chemical Corporation, and the Corporation for Public Broadcasting. [Robert MacNeil] More than 1 million American teenage girls become pregnant each year, more than a third of them decide to have abortions. Can the state require that parents be consulted? [Opening music] Good evening.

For the million or more teenagers who get pregnant each year, what to do about it may become the most agonizing decision of their lives. Whether even to tell their parents may be a terrible choice, whether to bear the child and keep it, give it up for adoption, or have it aborted, may be an even more difficult decision, both for the girl and her parents. Can a youngster make such a decision on her own with only a doctor to consult? Does it violate her constitutional rights to insist that her parents or a court give their consent? Today, those questions went to the U.S. Supreme Court, in a case involving the constitutionality of a state law in Massachusetts. Tonight we look at the perplexing question of abortion for teenagers and who should advise them. Jim? [Jim Lehrer] Robin, the legal history on the consent question goes like this. In 1973, the Supreme Court ruled states cannot ban abortions in the first 12 weeks of pregnancy. More than a dozen states countered by passing laws prohibiting abortions on minors without parental consent.

These were immediately challenged in lower courts and invalidated, all except in Missouri. Its parental consent law was sustained and went on to the Supreme Court. In 1976, in a case now known as the Danforth Decision, the high court threw out the Missouri law. But at the same time Missouri was before it, a challenge to the Massachusetts law was there too. The Supreme Court sent it back for reconsideration by the lower courts because it was somewhat different: giving the teenager the right to go to court to challenge her parents' no abortion decision. Now that case is back for a final Supreme Court ruling. The lower courts have been decided that the Massachusetts law is unconstitutional and the pro-parents' consent forces having appealed that decision. Robin? [Robert MacNeil] In addition to the oral arguments heard today by the Justices, a number of groups have filed friend of the court briefs. One signer of a brief approved by more than 50 organizations is Harriet Pilpel, a New York attorney. Ms. Pilpel is general counsel to Planned Parenthood, and she's active in the American Civil Liberties Union.

Ms. Pilpel, I gather in your brief today you argue that the Massachusetts law is unconstitutional. Why? [Harriet Pilpel] Well there are many reasons that-- legal and factual. Nobody disputes that it would be a good idea for young people to consult their parents if they're willing to do so. The only question posed by the Massachusetts law is what is the effect of a law which requires them to consult their parents in every case. The result of such a law is not to restore family unity, but rather to fracture a situation which is already badly broken up and force young people to go into childbirth that they don't want or to resort to illegal abortionists. What the Supreme Court held, as was just indicated, was that a flat requirement of parental consent in all cases violated minors' rights of privacy. And that right is obviously a very important and fundamental right. The Court, the United States Supreme Court, has said over and over again that minors are not second-class citizens, that they have all kinds of constitutional rights and that one of these constitutional rights is a right with reference to their own reproductive

lives, to take care of their own reproductive behavior. [Robert MacNeil] To put it very simply, your argument is that constitutionally, a girl cannot be required to get her parents' consent to have an abortion if she wants one. [Harriet Pilpel] Yes, that's true. The reason she can't constitutionally is partly that she can't, as a matter of fact, wishing simply does not make it so, and in this situation, the wish may be father to the thought, but it's not father to the fact. The fact is that a requirement of parental consent succeeds only in delaying an abortion if one is going to be performed and an abortion is much more dangerous after the initial weeks. It also succeeds in further widening the gap between parents and children. And in a very real sense, it's not necessary because it is not true that the only choices are between a minor consulting her parents or just consulting a doctor. There are all kinds of other counselors who are available, counselors whom she is willing

of her own free will to consult. [Robert MacNeil] Counselors such as? [Harriet Pilpel] Such as clergymen, social workers, counselors at abortion facilities, an older sister, an aunt, a friend of the family. In most cases, a minor has some adult whom she is willing to consult and talk with, but you could be reasonably certain that if she's not willing to consult and talk with her parents, it's because that relationship, at least with reference to sex, has been broken and is of no effect, and that happened a long time ago. [Robert MacNeil] If you reject the idea of parental consent, do you not violate the rights of parents to oversee their children or to act, as they see it, in their childrens' best interest? [Harriet Pilpel] Well, of course, I'd have to reluctantly point out that parents don't act always in their children's best interest. One out of five children in the United States, a recent study suggests, is abused by parents. In some pregnancies, the father is the cause of the pregnancy, and it seems rather odd that one would have to get his consent.

Furthermore, most young people who engage in sexual activity do so against the wishes and without the knowledge of their parents. So their parents have lost control in that sphere anyhow, and indeed we might say that the kids are partially emancipated insofar as their sex behavior is concerned. You cannot restore unity to a family where there is no unity. Consequently, what the parents are complaining about happened a long time before any statute came into existence and a statute will not force their children to consult them. [Robert MacNeil] Well, thank you. We'll come back. Jim? [Jim Lehrer] Briefs supporting the other side of the argument were also filed, of course. One was on behalf of the Right to Life Movement, prepared by the Movement's legal and educational arm, Americans United for Life. Patrick Trueman is the group's executive director and general counsel. Mr. Trueman, what is your legal argument in support of the Massachusetts law? [Patrick Trueman] Well, the question really breaks down to who is in the best position to aid that distraught minor, and is it the abortionist, is it Planned Parenthood, or is it the parents?

A long history of constitutional decisions has recognized the parents' primary responsibility over their children. The 14th Amendment specifically was grounded in the theory that parents, this bond, this natural bond between parents and their children must be protected. So our brief points out to the court that the 14th Amendment supports parental rights, a long history of cases decided by the Supreme Court reaffirms those substantial rights of the parents. And in the abortion situation, the parents must not be driven apart from their minor. And indeed, the parents are entitled to consult with their minor child. [Jim Lehrer] What about the rights of privacy afforded the minor in this case? Do you think they're just superseded by the rights of the parents? [Patrick Trueman] No, I think the Supreme Court has said in Danforth that the minor has some rights. But the court has not said that it may override the parental rights.

I think it should be kept in mind that that right to abortion, which was created in 1973, the court says, is founded in the 14th Amendment. 14th Amendment specifically doesn't mention it, it wasn't enacted for that purpose, of course, it was a post-Civil War amendment designed to protect the former slave, and however, the right of parents certainly was grounded in the 14th Amendment. And certainly one of the marks and badges of slavery was the destruction of the family unit, the fact that the slave could be sold off, that the children could be sold off. So this is one of the motivating factors for the enactment of the 14th Amendment. And now to say that this newfound constitutional right to abortion can somehow supersede the specifically given right, the specifically recognized right of the parents, is just a constitutional absurdity. [Jim Lehrer] Do you not agree, though, that the Supreme Court in the Danforth decision came very close to saying just that by invalidating the Missouri Law, which required parental consent?

[Patrick Trueman] I do not. The Supreme Court specifically said at the end of its decision that its decision on that day was not meant to say that every minor, regardless of the minor's maturity, may have the right to abortion without parental knowledge or consent. And I think what the Court is going to ultimately decide, in the case that I had argued today, is that certain mature minors may have an abortion, but that right, with respect to abortion, cannot destroy the parental rights. And so you must balance those rights, and the balancing would involve, as certainly the Massachusetts Law would require, would involve involvement of the parents in every situation. [Jim Lehrer] And of course, under the Massachusetts case, the law as written, if there is a dispute, the teenager could then take the case to court, and you're saying that the court could be the valid one to decide what is a mature teenager. Is that right? [Patrick Trueman] I think the courts are always the ones that decide questions when fundamental rights are in conflict.

And here you have the fundamental right of the parent on one hand, and the fundamental right on the minor. Neither right can destroy the other in the court, attempts to balance them out in some reasonable standard, and I think the Massachusetts standard is a reasonable one. [Jim Lehrer] Mr. Trueman, let me ask you this finally. Of course, your movement is opposed to abortions for the most part, period. Is it your belief that under the Massachusetts law, or a law similar to that, where parental consent is required, or a court decree is required, that this will result in fewer abortions being performed? [Patrick Trueman] Well, I think any birthright counselor, or anyone who has dealt with a problem pregnancy, and aiding that child, or a woman to bring that child to term, can tell you that when it's a minor that's involved, and the counselor and the minor go to the parents, the first reaction, of course, is disappointment. It may be the parents are terribly disappointed. But the fact is, the next question, or the next-- the resolution of the problem normally involves the parent helping the child. The child may be very afraid of telling the parent, but the parent has over a number of

years in raising that child, built up a great deal of love for that child, and it is the parent that can best help that child, and to that extent, to the extent that the minor can come together with the parent, with the one that can help the child best, we believe that no doubt many pregnancies will be brought to terms, and many minors who would have otherwise aborted and not involved their parents would make a better decision. [Jim Lehrer] All right. Thank you. Robin? [Robert MacNeil] Yes, legally speaking, Ms. Pilpel, how do you counter this argument? [Harriet Pilpel] Well, it seems quite clear that Mr. Trueman is a little bit wrong about the Danforth case. What the court held in the Danforth case was that a flat requirement of parental involvement, every case, was unconstitutional. The Massachusetts statute does provide for parental consultation in every single case. So it seems to me clearly unconstitutional, and it should be contrasted with a Massachusetts law with reference to other medical services. In the Massachusetts law, a minor of any age, apparently, can get services, medical services

of any kind if she's pregnant or, quote, believes that she is pregnant, so that she can go through a pregnancy without telling her parents or getting parental consent. She can have a cesarean section or whatever, without involving her parents at all. It is only abortion and sterilization, which is not involved here, of which that's true. As far as consulting a loving parent, if there is a loving parent, the experience is that overwhelmingly young people will be willing to consult that parent. [Robin MacNeil] Whether the law says so or not. [Harriet Pilpel] Whether the law says so or not. But if there is not a loving parent, if there is an angry parent, a punishing parent, a parent who has threatened that they're going to kill one or the other or the participants for the act which resulted in the abortion, then no amount of involvement of the parents is going to help. And some other counselor will have to be found. [Robin MacNeil] Yes. What is your answer to that, Mr. Townsend-- Trueman? [Patrick Trueman] Well, I think the answer is this, the mere fact or the mere assertion by Ms. Pilpel that there are some parents who would abuse their child, that mere assertion should not destroy

the constitutional rights of parents throughout the country. So the mere fact that a certain percentage may react in an adverse way towards that child shouldn't prohibit the other parents from being the primary one who can care for that child. [Robin MacNeil] How would you, Mr. Trueman, balance the girls' rights versus the parents' rights constitutionally? How do you strike that balance? [Patrick Trueman] Well, I think the Massachusetts standard has attempted to-- I'm just taking this out because I-- [Jim Lehrer] You're getting some echo in your ear. All right. [Robin MacNeil] Did you hear my question, Mr. Trueman? [Patrick Trueman] Yes, I did. But I said that the Massachusetts standard is an attempt to balance. It does not allow the parents to override the minor's right in every circumstance. However, it does require that the parent be involved. It requires that their constitutional rights be recognized.

It does not destroy those rights. [Robert MacNeil] Yes. And your reaction to that? [Harriet Pilpel] My reaction to that is that where consultation is required in every case, it's required in every case, and I agree with Mr. Trueman that in many cases it's desirable and should be required, we are now really talking about a minority of cases in which the involvement of the parents may definitely not serve the best interests of the minor. As the Supreme Court itself put it the last time this case was before it, which was a few years ago, they said that there must be provision for a mature minor to decide on abortion without any parental consultation. And for even an immature minor to be advised with reference to abortion, and whether it's in her best interest without involving her parents at all, since the Massachusetts statute does involve parents in every case, and there really is not much difference between consultation and consent. It should be noted that when minors are told that their confidences with their physician, their consultation will not be held confidentially, they just don't go to the physician anymore.

That has been shown over and over again. In a clinic in the Midwest where there was some indication that the parents of the minors who were going for birth control services might be notified, immediately 50% of the young people who attended the clinic never showed up again. [Robert MacNeil] All right, well, we'll move on, Jim. [Jim Lehrer] All right, moving now from the legal argument to the practical or more operational aspects of the consent question. First to Bill Baird, who operates two abortion clinics, one in Boston, the other in Long Island, New York, which made headlines last week when it was firebombed. Mr. Baird is the man who brought the original court challenge to the Massachusetts law. Mr. Baird, why do you feel parents' consent is not necessary before performing an abortion in one of your clinics on a minor? [Bill Baird] Because I certainly think it's discriminatory. If that youngster selects to continue a pregnancy, she doesn't have to have her mother's permission. She can go through childbirth as she likes to, needs no one's aid, no one's consent, does it on her own.

If she elects to have intercourse, doesn't need her parents' permission. If she elects to be treated for venereal disease, doesn't need anyone's permission. I think it's high time that we stop this nonsense of thinking that we own young people by virtue of their age. I think young people are quite capable of making their judgment, but I must out of fairness to the audience, I must take exception with both attorneys. I've lived and breathed this case for five years. There's a serious error that was committed on this broadcast. What was said with the attorneys was this, the law says that you cannot get both parents' permission, you may go to a judge for good cause. If the judge feels, for good cause, whatever that may mean to him or to you or anyone else, then he might grant permission. If he doesn't grant permission, that youngster is forced to go through that pregnancy against her will. When we well know that abortions are nine times safer than childbirth, indeed, we're playing with her life. I maintain not my opponent here, not any of the judges, not the parents, have a right to take a third party, put her life at stake, such as maternal death rate figures, and make her go through that pregnancy.

And that's what the decision means for good cause before a judge, and I regret no one has pointed that out yet. [Jim Lehrer] Do you feel that young people are capable of making that decision? [Bill Baird] I've been asked that so many times. The question asked earlier is-- [Jim Lehrer] Well I'm asking you again. [Bill Baird] Surely. Somebody says to me, well what would you do with a 12-year-old, could a 12-year-old make the decision to have an abortion? Just reverse that, Jim. Can a 12-year-old make the decision to have a child? Then after having a child, make the decision whether to keep the child or to place it up for adoption? When are we going to say if we're going to permit a 12-year-old to become a parent and there's no way you can stop it, then are you going to deny that same 12-year-old the right from having an abortion? [Jim Lehrer] Are you or your people or a doctor qualified to help a young girl make this decision? [Bill Baird] I certainly think after 15 years of experience we've got a reputation across this nation, the doctors are all skilled, they share the same viewpoint that I do, that if that youngster wants to continue that pregnancy, we defend to the death her right to do it, if she wants to interrupt it we would do the same.

I've had parents who would call up and say, "I want my daughter aborted, I don't want to be a grandmother." And on the other side of the coin, I've had parents call me up and say, "don't help my daughter. Let God punish her." The fundamental argument is this: not abortion. The argument is, can you force a pregnant woman to continue-- or female-- to continue that pregnancy against her will? [Jim Lehrer] What do you do in your clinics when you feel that a girl, for whatever reason, is not capable of making that decision on her own? [Bill Baird] I've got 15 years experience, probably more than anyone in this nation. I have never met that one single time. But hypothetically, if you would say to me, if somebody were mentally retarded or something such as that, you would have a court appointed guardian for that. But up until this case, we have never yet in my 15 years run into a case where a woman could say, Bill Baird, I need help to make the decision to have the abortion or not. What it really shows, Jim, in my judgment, is it's a continual put down of young people. Someday, we're going to mature as a nation to realize that young people do have rights. I heard my opponent say citizens. The bill of rights never said citizens under 18, okay, or over 18.

The bill of rights is meant for all of us, and that means the proper medical care for all people. Again, all I ask anyone listening to this broadcast is, you have no control of a teenager if she wants to have a child, even though it's nine times more dangerous to her life. But if she wants the abortion, needs two people's permission. Might also point out one quick point: if she has a baby, say she's 13. If she wants an abortion next year, she doesn't need anyone's permission. But if she's 17, she needs both parents' permission or a judge for good cause. [Jim Lehrer] All right. Thank you. Robin? [Robert MacNeil] New York is one of the states which doesn't require parental consent for abortion, but at least one abortion clinic here does. Its founder and director is Merle Hoffman. Ms. Hoffman, first of all, how many abortions has your clinic done? [Merle Hoffman] To date, since 1971, about 35,000. [Robert MacNeil] And how many on teenagers? [Merle Hoffman] Seven to ten percent. [Robert MacNeil] And what ages, typically, are teenagers? [Merle Hoffman] 13 to 19, more from 16 to 19 than below.

[Robert MacNeil] Why do you require parents' consent at your clinic? [Merle Hoffman] Because I think I am in the challenging position of translating law and medicine and feminism into reality. Ms. Pilpel, who I respect greatly, brought up the fact that if a young girl has to get parental consent, it could push her over the limit into the second trimester. We found the exact opposite. What very often happens is a teenager will put off the knowledge of her own pregnancy, it's called denial. "It'll go away. It can't really be me." And by the time they may arrive at choices, they are, in fact, 13 or 14 weeks pregnant. If then, this young person is told, "go back and tell your parents because you must have a hospital procedure and the hospital will not see you unless you have consent," you are then throwing her back into another one, two, three, or four weeks and pushing her up into a high second trimester, dangerous abortion. [Robert MacNeil] Do parents often withhold consent, in your experience?

[Merle Hoffman] I have not very rarely have I seen them withhold consent. In fact, they welcome the opportunity to vent their feelings, to become assisting to their young people. [Robert MacNeil] Is it usually the girl who comes to you or the parents at your clinic in the case of young teenagers? [Merle Hoffman] It's the young person usually. [Robert MacNeil]. The young person. How do you get consent? Do you get it in writing on a kind of legal form to protect you legally, or is it informal? [Merle Hoffman] Well, you see consent, that's another legal problem, actually. Is it enough for someone to sign their name? Consent has to be given in a person's language. If someone speaks Russian, I have to have a Russian consent. So for a young person, we have to be able to have them see a counselor individually for as long as it takes for that person, that teenager to understand. [Robert MacNeil] Mr. Baird just said that it was well established that abortions were nine times safer for a young girl than to take a baby to full-term or birth. Is that correct? [Merle Hoffman] Yeah, it is true. Young women who do carry to term run very high risk of child death or their own problems with the delivery.

We also have a prenatal program of choices because we are the philosophy of the name. So we're involved in that aspect. [Robert MacNeil] Mr. Baird also says in his long experience, he mentioned 15 years, young people are capable of making up their own minds, in instance, the 12-year-old. In your experience, do you believe that? [Merle Hoffman] Um, some are. I am, as a psychologist and responsible for a lot of young people, young women, I'm not comfortable with a 12 or 13-year-old who will come in with really no ability in my mind to discern what a consent means and, you know, put her money down and say "I want an abortion," I personally am uncomfortable with that. [Robert MacNeil] I see. Well, thank you. Jim? [Jim Lehrer] Mr. Baird, you are not uncomfortable with that. [Bill Baird] No, I, although Merle's an old ally, I'm very fascinated. She may not be comfortable with it, but what would one suggest if that 13-year-old walked into her clinic and says, "I elect to have a child?" Would Ms. Hoffman say, "well, you need your parents' permission to have a child?" Obviously, the answer is no. I think it's rather incredible that any one of my allies could possibly appear on a network broadcast with me and suggest that we would violate the rights of privacy of any human

being based on their age. [Jim Lehrer] Well, let's give her a chance to reply to that, Ms. Hoffman? He finds what you're saying is incredible. [Merle Hoffman] Well, all right. I am an ally, a political ally, but I also am a speaker. As a woman, a feminist, a psychologist who sees young women all the time every day, and I am tired of seeing them in a sense manipulated by the media and a lot of rhetoric, Bill. I do not feel comfortable because I don't think they're informed. No, I don't. And we do, we do like to involve the parents in the delivery if we have a prenatal program. [Bill Baird] Can I--? [Jim Lehrer] Yeah. [Bill Baird] May I just ask Ms. Hoffman, what in the world would you do if the 12-year-old says, or the 14-year-old says, "I feel quite comfortable with my sexuality, I'm a feminist, I believe in my own rights, I resent your trying to contact my parents. In fact, if you do, I'll hire a Pilpel or Bill Baird to represent a lawsuit against you for violating my rights of privacy.

You've no right to do that, Merle." [Merle Hoffman] That doesn't frighten me, Bill. Actually, what I would say in that case is "fine, I respect that. You do not have to have parental consent, but because of medical reasons at the center, and because of our philosophy, I would like some kind of guardianship," or perhaps she's an emancipated minor, Bill, and in that case, she doesn't need any guardianship. [Bill Baird] I might point out in 1972, the US Supreme Court said, if the right of privacy means anything and is the right of the individual to be free, as you know, that was a Baird v. Eisenstadt case at legalized birth control, they never said the right of the adult, so I'm really frustrated in understanding why we would force a teenager to get someone else's permission. [Jim Lehrer] Let me bring Mr. Trueman back in there on that question about the, what the Constitution says about the distinction that Mr. Baird says it does not make between all citizens and young citizens, old citizens, et cetera. [Patrick Trueman] Well, the Constitution certainly makes a distinction with respect to minors. The Constitution, and this is what the Baird v. Bellotti case at the court argued today, is

all about. The court recognizes in its abortion decisions, even, that there are very substantial distinction between minors and adults, and the court is not yet settled on how those distinctions can be reconciled in the abortion situation. I think it's clear the court is acknowledging some right on behalf of the minor, but it is not saying that that right can override the parents' rights. [Jim Lehrer] Not an absolute right. [Patrick Trueman] Certainly not an absolute right. The court has already said that. [pause] May I point out one other thing? It's someone ought to point out the conflict of interest between Mr. Baird's abortionist and that minor child who comes to him. The abortionist championed this right to choice, and who is the choice made with, this stranger, this person who has a financial interest, this person who will gain money by aborting the child. Yet, that individual is the one that Mr. Baird is seeking to have as the one that will be the primary individual to help that minor make the decision, and we would argue it should be the parents. [Jim Lehrer] Mr. Baird? [Bill Baird] May I just shoot right down your throat very quickly. William Lynch, who filed a brief on one of these cases, who, you know very well as a member

of the National Board of the Right to Life Groups, said he wanted to intervene in my case because, quote, he has a financial interest in childbirth. So one can turn around and make the same counter-argument that, by continuing through the pregnancy, one has a financial interest. [Patrick Trueman] The parents have no financial interest. [Bill Baird] But I also point out, you as an attorney has a financial interest. So, I don't, in fact, even the newsman interviewing us has a financial interest. What we're trying to point out is that people have a right to be independently free of making choices over their own bodies. [Jim Lehrer] We must go. Robin? [Robert MacNeil] Yes. Thank you all for joining us this evening and good night, Jim. That's all for tonight. We'll be back tomorrow night. I'm Robert McNeil. Good night. [Jazzy outro music] [Voice-over] For a transcript send $1 to the MacNeil Lehrer Report, Box 345 New York, NY 10019. The MacNeil-Lehrer Report was produced by WNET and WETA.

They are solely responsible for its content. Funding for this program has been provided by this station and other public television stations and by grants from Exxon Corporation, Allied Chemical Corporation, and the Corporation for Public Broadcasting.