Abortion’s Hardest Cases: In the Supreme Court and in Louisiana

Afterward, when their daughter was buried and their hearts broken, the Bells could see everything clearly. Until then, they had not thought about their teenager’s getting pregnant or what they would do if she did. They did not know that there was any such thing as a parental-consent law.

But there is such a law in Indiana, where the Bells live and where their daughter Becky, 17, died after an illegal abortion. In 1984 the state legislature voted to require a minor to get a parent’s permission for an abortion or else to convince a judge that she is mature enough to make the decision on her own.

Becky, whose room in Indianapolis is still filled with stuffed animals and riding gear, felt she could do neither. She had gone to Planned Parenthood for a pregnancy test, the Bells learned as they tried to retrace the steps she took during those final days, and there she was told of the Indiana law. No one knows what happened between that moment and her death two months later. When the Bells went through Becky’s purse after she died, they found telephone numbers of abortion clinics in Kentucky, which did not require parental consent. “Becky just happened to live in the wrong state,” says her father.

Should a teenage girl have the right — and the burden — of deciding about abortion on her own? Isn’t abortion at least as serious a medical procedure as a tonsillectomy or a tooth extraction, both of which require parental involvement in most states? Shouldn’t the law force a parent and a child to communicate, especially if the child is in trouble?

Last week the Supreme Court faced these tough questions in its first abortion rulings since the landmark Webster decision last July. In a 5-to-4 vote, the Justices upheld a Minnesota law requiring unwed teenagers to notify both parents before an abortion if the law allows minors to go to a judge instead. In a 6-to-3 vote, the court upheld Ohio’s requirement that a physician notify one parent of a pregnant minor of her intent to have an abortion; it also provided for judicial bypass.

The close votes and the widely divergent opinions reveal a court still divided over abortion and, in these cases, over the state of the family. Justice Anthony Kennedy voted to uphold the Minnesota law, with or without the judicial bypass, reasoning that to keep parents in the dark about a daughter’s abortion “is to risk, or perpetuate, estrangement or alienation from the child when she is in the greatest need of parental guidance and support.” But even he conceded that at times “notifying one or both parents will not be in the minor’s best interest.”

Just two days after the court’s ruling, pro-life activists were applauding an even more stunning victory: the Louisiana legislature gave final approval to the nation’s most restrictive abortion law. The bill would make abortion a punishable criminal act unless the life of the mother was at stake. It allows no exception for victims of rape or incest.

The Louisiana bill and the court’s rulings bring to a head the two fierce battles fought this past year: the pro-life movement’s push to deny abortion to all pregnant women, even victims of rape and incest; and the pro-choice movement’s effort to strike down parental-involvement laws as back-door ways to restrict abortion that do nothing to improve communication between parent and child.

How to deal with rape and incest and parental involvement are so-called wedge issues, a way for each side in the abortion debate to prove the unreasonableness of the other side. Even those who strongly favor a woman’s right to choose find themselves troubled by the notion of a girl’s right to choose, so parental consent or notification has been a comparatively easy sell: 33 states have passed such laws. By forcing the pro-choice movement to challenge this trend, the pro-life movement has been able to paint its opponents as antifamily, bent on weakening the bond between the generations, encouraging teenage promiscuity and fostering a libertine attitude toward sex that results in more than 400,000 teenage abortions a year.

If this seems extreme, the same is true — but with the sides reversed — on the equally emotional issue of what to do about a child conceived in the violence of rape or incest. The pro-life movement brooks no exception to the absolute position that all abortions, except those to save the life of the mother, are wrong, even ones intended to terminate the progeny of a rapist. Yet this stance may be their undoing. Louisiana’s Governor Buddy Roemer, a self-described “right-to-lifer,” has promised to veto the just-passed antiabortion bill because it makes no exceptions for rape and incest.

Sometimes when it is not feasible to make abortions following rape or incest illegal, the movement settles for cutting off Medicaid funds. “Rape and incest are tragedies,” says Illinois Congressman Henry Hyde, author of the federal restriction, “but why visit on the second victim, the unborn child that is the product of that criminal act, capital punishment?” Forcing only poor women to have the children of their rapists, says the pro-choice movement, shows how heartless the right-to-life movement is.

Yet this issue, like that of parental involvement, is not so simple. The victim of rape or incest is often herself an innocent child in need of saving. Pamela (a pseudonym) was a seventh-grader in Washington when she was allegedly raped by her stepfather. When her mother discovered she was pregnant, she took her to a Planned Parenthood clinic just ten blocks from the White House to arrange an abortion. “She was pitiful,” recalls clinic director Mary Vandenbroucke, who had to break the news that Medicaid would not pay the $400 cost of an abortion, even for a case like Pamela’s. Although the mother works two jobs, as a part-time government clerk and a cashier in a fast-food restaurant at night, she takes home just $289 every two weeks. Rather than turn away an indigent victim of incest, Planned Parenthood agreed to perform the procedure for $100.

Because cases like Becky’s and Pamela’s are so difficult to sort out, they have become this year’s combat zone. In the fight to win over the ambivalent majority of Americans, the pro-choice movement is on the wrong side of parental consent: 69% of adult Americans favor laws requiring a teenage girl to get her parents’ permission before having an abortion, according to a TIME/ CNN survey. Similarly, pro-lifers lose support over rape and incest: 84% of those polled believe the Government should pay when a rape victim needs an abortion and cannot afford it, and 77% when incest is involved.

Both sides in the abortion fight could score political points by showing moderation on these issues, and both would remove easy targets for their – adversaries. “Parental notification is not a battle pro-choicers should fight in public, although the pro-lifers force them to. It defies the common sense of most people,” says William Schneider, resident fellow of the American Enterprise Institute. “The same goes for being against abortion for victims of rape and incest. People think you’re from Mars; it offends them.” But neither side is backing down. Their reasons show how intractable are abortion’s hardest cases.

Parents, Teenage Sex and Abortion

Better than a parent’s control over abortion would be a world in which children too young to understand the power of sex did not engage in it, and one in which those unprepared to be pregnant did not become so. Since long before Juliet met Romeo, adults have been trying to convince adolescents barely able to decide what to wear in the morning that they are not mature enough to manage the complicated and overwhelming feelings that come with a sexual relationship. But for just as long, teenagers have been unpersuaded. Surveys show that at least half the young people between the ages of 15 and 19 are sexually active, and 24% of teenage girls will become pregnant by age 18.

Nonetheless, communication about sex between parents and children is stuck in the Dark Ages. Says one Washington psychiatrist: “Parents and children don’t want to know about each other as sexual beings. Sex is the point of separation, the country into which a parent does not travel with a child.” That is one reason why school sex-education courses, which put the subject at a clinical remove, have become the norm.

But when sex moves from the private to the open and a teenager is pregnant, children who normally turn to a parent in a time of trouble will usually do so whether or not there is a law requiring it and whether or not they have been talking about sex. In Massachusetts, which requires teens to obtain the permission of both parents or of a judge, about 75% of the girls who have abortions share the decision with their parents. Levels of parental involvement are equally high in neighboring Connecticut and New Hampshire, where such consent is not required. “I see no point whatsoever in the parent- involvement laws,” says Jamie Ann Sabino, an attorney who chairs the Lawyer Referral Panel on Judicial Consent for Minors in Massachusetts. “These girls didn’t go to their parents because of them.”

Teenagers who do not want to talk to their parents often find a way to avoid * it: they go before a judge, or they go out of state; they wait until their condition becomes obvious and have a dangerous, second-trimester abortion; or they have a baby by default. Justice Thurgood Marshall described the dilemma in his dissent in the Minnesota case: “This scheme forces a young woman in an already dire situation to choose between two fundamentally unacceptable alternatives: notifying a possibly dictatorial or even abusive parent or justifying her profoundly personal decision in an intimidating judicial proceeding to a black-robed stranger.”

There is some evidence supporting the contention that parental-involvement laws restrict access to abortions. In a brief, opponents of the Minnesota law, which took effect in 1981, cite a study conducted between 1980 and 1984 indicating that the birthrate for 15-to-17-year-olds in Minneapolis rose 38.4%, while the birthrate for 18-to-19-year-olds, not covered by the law, rose only 0.3%. In the 20 months after Massachusetts put its parental-consent law into effect in 1981, 1 of every 3 teenage abortions was done out of state, while those within the state dropped 43%. Former Superior Court Judge Paul Garrity, who is pro-life by sentiment, feels that the law exists to “harass these kids.”

Garrity, who presided over hundreds of judicial-bypass hearings, also believes that a youngster can be a good judge of whether parents can handle an unwanted pregnancy on top of their own difficulties or even whether the parents want to be involved. Of the teenagers who came before him, Garrity says, “To a person, they were scared to death, but they did know what they wanted.” An alcoholic mother, a drug-addicted father, an absent or neglectful parent are some of the reasons teenagers cite for not going home for help. The fact that only half the minors in Minnesota live with both biological parents persuaded Justice Sandra Day O’Connor to agree with the more liberal Justice John Paul Stevens on the need for judicial bypass.

An anomaly in the movement to require a parent’s consent to an abortion is that there is no law requiring parental approval of staying pregnant and bearing a child, with its life-changing, lifelong consequences. There are compelling health and safety arguments against pregnancy: teenage girls are 24 times as likely to die of childbirth as of a first-trimester abortion, according to the Alan Guttmacher Institute. While having a child is one part of the full and complex life of a woman, it often turns out to be the % defining, and confining, fact of a teenager’s existence. Eight out of 10 girls who have babies at 17 or younger drop out of high school. Children born of teenagers are much more likely to grow up in poverty and be undereducated and poorly housed. Children born of teenage mothers are twice as likely to die in infancy as are those born of women in their 20s, and they are much more likely to be raised in resentment and rage.

It is unlikely that politicians could write laws to improve communications in unhappy families, or keep teenagers from becoming pregnant, or provide wise and caring parents when they do. Still, making the argument against parental involvement is like arguing for the right to burn the American flag — politically, it is a tough case no matter how right the reasoning. Now that the Supreme Court has put its stamp of approval on some notification laws, the two sides head back to the legislatures. Says Kate Michelman, executive director of the National Abortion Rights Action League (NARAL): “On the heels of this week’s court decisions, we again confront the reality that the right to choose literally hangs by a thread in post-Webster America.”

Rape and Incest

Two wrongs do not make a right, both sides argue. Pro-life advocates say an unborn child, innocent of the actions of the father, should not become a second victim; murder should not follow a rape. The pro-choice side responds that a woman forced to bear a child conceived in rape or incest is violated twice, once by the criminal and then by an uncaring state that forces her to carry and give birth to the incarnation of her assailant.

Until recently, the primary arena for this fight has been Congress, where since 1977 the Hyde Amendment has denied Medicaid funding for abortions unless a woman’s life is endangered. A significant triumph for the right-to-life movement in the first years after abortion was legalized, the amendment has become the lightning rod for pro-choice advocates on the Hill. Last year Congresswoman Barbara Boxer introduced a proposal to restore abortion funds for women who are assaulted. “Why should the Government leave their side at such a moment of crisis?” she demanded. Hyde called his opponents “the death squads of the left” and “the pro-killer crowd.” California Democratic Congressman George Miller, arguing for the Boxer amendment, implored his colleagues not to turn the “disgusting, violent, solitary act of rape into a gang rape by the Congress of the U.S.”

The Boxer amendment passed both houses in October 1989, garnering the votes of otherwise pro-life legislators like South Carolina Republican Congressman Arthur Ravenel Jr. But George Bush vetoed the bill, and the House failed to muster the two-thirds majority required for an override. While Hyde and his supporters contend that abortion is wrong no matter what the circumstances, Bush says abortion should be legal for victims of rape or incest. He just does not want to pay for such abortions, a stance that allowed Boxer to tag him as “a kinder and gentler man ((who)) executes the cruelest veto on the poorest, most vulnerable victims of society.”

Twenty-nine states have legislated the equivalent of the Hyde Amendment and restrict Medicaid funds to women in life-threatening situations. Ten states pay for abortions in which rape and incest are involved; twelve states, including Washington, New York and California, still fund all abortions.

The congressional fight is a holding action until the right-to-life movement can push through a state law that forces the Supreme Court to review Roe v. Wade. Louisiana’s law might be the one. Right-to-life leaders think they have a chance to override Governor Roemer’s threatened veto. But they may lose more conservatives like Garey Forster, a self-described “confused Catholic,” who voted against the bill because it was “too harsh, too final.” A doctor can be sentenced to a minimum of one year at hard labor and charged a $10,000 fine; a woman can be punished as an accessory to the crime, just as if she were driving a getaway car.

Short of banning abortion outright, the pro-life movement is lobbying legislatures to impose reporting requirements on victims of rape and incest that would make such abortions nearly impossible to obtain. Says the National Right to Life Committee’s spokeswoman, Susan Smith: “We do everything we can to eliminate abortions and to prevent funding for rape and incest, but where it is inevitable we lobby for tight reporting requirements to prevent fraud.” The new tactic was explained at the National Right to Life Committee convention in Sacramento last month by Scott Fischbach, the group’s field coordinator: Laws that ban some abortions, he said, “can lead up to the point of stopping them all.”

Smith and Fischbach scored a temporary victory in Idaho last March with passage of a bill that would have permitted legal abortions only if a woman’s life was endangered, if an incest victim was under 18, or if the rape was $ reported to the police within seven days (when a victim would not yet know whether she was pregnant). Pro-life Governor Cecil Andrus vetoed the bill, calling the seven-day provision punitive and “without compassion.” He added, “On the eighth day, ((the woman)) ceases to be the victim and becomes a criminal.”

Strict reporting requirements are a vestige of the way the legal system treats rape victims. It has taken years to reverse the assumption that women fabricate claims of rape and incest or that they somehow bring the crime on themselves. Until recent reforms, a victim’s testimony alone was not enough to convict a rapist, although it was enough to convict any other kind of criminal. Even now, a rape victim who goes to court often finds herself on trial as much as her attacker is. As a result, rape is one of the most underreported crimes in America. The Senate Judiciary Committee estimates that a woman is raped every six minutes in the U.S.

The Idaho veto and the pending one in Louisiana have not caused pro-lifers to retreat from their position on rape and incest. National Right to Life Committee spokeswoman Smith cites Pennsylvania’s experience to show that women lie about rape. When the state did not require that rape or incest be reported to appropriate authorities, an average of 36 rape-related abortions a month were paid for by the state. When reporting requirements took effect in 1988, that number went down to about three a month.

Relatively few abortions are at stake here — less than 1% of the 1.6 million abortions performed annually result from rape or incest — yet the pro-life movement is determined to fight over each one. The movement insists that its position springs from religious beliefs that allow no compromise. Indeed, the harsh logic of the abortion argument makes the exception for rape and incest vulnerable to a charge of hypocrisy. If all fetal life is sacred, as pro-lifers insist, there should be no distinction between pregnancies that result from consensual sex and those that result from force. Otherwise, bearing a child becomes a woman’s punishment for sex.

Whatever the political costs, activists on each side of the abortion debate have vowed to battle it out, somehow assured they can win over the middle. NARAL’s Michelman is determined to convince the public that parental-consent laws are a sham. Pro-life and pro-choice forces in Congress pledge to wage the fight over funds for rape and incest victims again and again, every time Boxer or her allies attach a rider to a bill. “We’ll debate this till we’re blue in the face, and there will be blood all over the chamber,” says Hyde. And despite the defeat snatched from the jaws of victory in Idaho, and perhaps Louisiana, the pro-life lobby will continue to press for recriminalizing abortion in all the states.

Polls show that most Americans feel ambivalent about abortion and that the two sides in the debate fail to express the moral ambiguity at the heart of the matter. The irreconcilable answers people give to pollsters are, in part, an expression of society’s inability to come to grips publicly with so private an issue. In a Los Angeles Times poll last year, 61% of those interviewed said abortion is morally wrong; 57% of them believe it is murder, yet 51% think it should remain a woman’s decision. When rape and incest and parental authority enter into the mix, the numbers become ever more confusing.

What happened last week in Louisiana and the court was as much about the state of the family as it was about abortion. The Louisiana legislation conjures up a world where all children are born into families that will take care of them, whether their conception came about through love or violence. By contrast, the court decisions addressed a world that seems to have spun out of control, where pregnant children have to be forced to talk to their parents. Who would not wish for a Father Knows Best kind of life, where teenagers delayed becoming parents until they were no longer children, where youngsters in trouble could turn to families full of wise advice, where rape and incest were unknown and abortion was an unusual remedy for a rare misfortune? But dealing with the world as it is, the Justices, like most Americans, still find themselves struggling for a messy middle ground.

CHART: NOT AVAILABLE

CREDIT: From a telephone poll of 1,000 adult Americans taken for TIME/CNN on May 8-9 by Yankelovich Clancy Shulman. Sampling error is plus or minus 3%.

CAPTION: Do you favor or oppose a law requiring a teenager to have her parents’ consent before an abortion?

If a rape victim becomes pregnant and cannot afford an abortion, should the government pay for it?

If your teenage daughter becomes pregnant, would you advise her to:

If your teenage son made someone pregnant, would you advise him to:

Should a teenager be able to do the following without parental consent: