Justices Weigh Suit Attacking Abortion Limits

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Washington--A lawyer for the State of Illinois urged the U.S. Supreme Court last week to uphold a state law requiring that physicians notify the parents of minor girls seeking abortions and wait 24 hours before performing the procedures.

The lawyer, Michael J. Hayes, noted that a federal appellate decision overturning a part of the law in May 1985 had cast doubt on the constitutionality of 22 other state laws requiring either parental notification or consent before girls can terminate their pregnancies.

"Other states are confused and unclear," Mr. Hayes said. "They need to know whether the boundaries of the statutes fit within the constitutional framework."

Colleen K. Connell, the lawyer representing the class of doctors and girls who challenged the law, argued that the lower-court proceedings were incomplete and that the Justices therefore should decline to rule on the substantive issues raised in the suit.

But if the Court disagrees with that point, she added, it should vote to strike down the law because it violates girls' due-process right to privacy under the 14th Amendment in their decisions on whether or not to bear children.

In August, a federal appellate court declared a similar law in Minnesota unconstitutional. A federal district court struck down a comparable Georgia statute in September.

Law Has 'Bypass' Provision

The case before the High Court, Hartigan v. Zbaraz (Case No. 85-673), centers on a law passed over Gov. James R. Thompson's veto in 1983. Under the statute, doctors can be charged with a misdemeanor if they disregard the parental-notification and 24-hour-delay requirements.

The law also includes a "bypass" provision that permits state circuit courts to waive the notification requirement if they determine that the girl seeking the abortion is mature enough to reach her own decision or that notifying her parents would not be in her best interest.

In passing the law, the legislature asked the Illinois Supreme Court to issue rules "as necessary" to ensure that judicial proceedings under the bypass provision "are handled in an expeditious and confidential manner." The state high court has not yet issued such rules.

In late 1983, two Chicago-area physicians filed a class action in federal district court on behalf of doctors and minor girls affected by the law. They claimed that the notification requirement and mandatory 24-hour delay violated a minor's 14th Amendment right to terminate her pregnancy.

The suit also charged that the bypass provision was constitutionally defective because it did not ensure, as the Supreme Court had ordered in previous decisions, that the proceedings would sufficiently protect a woman's right to privacy and anonymity and be completed quickly enough to allow a safe abortion.

A federal district judge held all aspects of the law unconstitutional in 1984. A year later, the U.S. Court of Appeals for the Seventh Circuit agreed that the notification requirement and 24-hour waiting period were too burdensome on minors, but reserved judgment on the bypass provision.

Standing alone, the bypass provision appeared to violate the 14th Amendment, the appeals court said. But, it noted, the state supremecourt had failed to promulgate rules for the bypass procedure. The appellate court returned the case to the district court and instructed it to hold new hearings after the state high court had acted.

The U.S. Supreme Court had originally scheduled the case for argument last spring. In an unusual move, the Justices rescheduled the hearing for last week and directed the lawyers to file new briefs addressing whether the appellate ruling was sufficiently final to permit the High Court to invoke jurisdiction over the matter.

Jurisdictional Question

Much of last week's hearing was devoted to the jurisdictional question posed by the Court.

Mr. Hayes, the state's lawyer, told the Justices that it was "clear'' that the Seventh Circuit Court's orders in the case were final and that it was not necessary for the state high court to issue rules on the bypass provision.

Turning to the merits of the case, he argued that in passing the law, the legislature was invoking its "sufficient interest" in protecting the rights of parents to be involved in their minor daughters' decisions on abortion. He added that the law "protects minors from the consequences of their own immaturity."

Mr. Hayes also maintained that the bypass provision passed constitutional muster even in the absence of rules from the state high court. "There is no reason to assume that state courts will disobey the requirement that proceedings be held in an expeditious and confidential manner," he said.

Burden Not Met

Ms. Connell, a lawyer for the American Civil Liberties Union, which is representing the plaintiffs, argued that the state had "not met its burden to raise the issues it now raises."

"The statute by its own terms is incomplete" because of the absence of rules from the state high court, Ms. Connell contended.

Regarding the constitutional issues, she argued that the law as it now exists "cannot provide a guarantee of an expedited appeal and confidentiality."

"This is at odds with previous decisions by this Court that such intensely private proceedings must ensure confidentiality," she said.

Ms. Connell also noted that the bypass provision does not ensure an expedited appeal if a state circuit judge decides a girl is not mature enough to reach her own decision. "In abortion matters, time is of the essence," she said.

She added that the state had not demonstrated that the mandatory waiting period would produce any positive results. "The delay will result in medical harm in return for nothing," she said.

The Court is expected to hand down its ruling in the case by next June.

Other Action

In other action last week, the Court:

Let stand a federal appellate court's decision last February that an Ohio vocational school district did not discriminate against a female guidance counselor when it decided to lay her off in 1982 and retain a male colleague. The woman argued that she was more qualified than the man who was kept on the job. The case was Board of Education of the East Polaris Joint Vocational School District v. Tye (No. 87-144).

Declined to review a federal appeals court's ruling last May that struck down the South Bend, Ind., school board's policy of protecting black teachers from layoffs.

In 1985, the High Court ruled that a similar affirmative-action policy in Jackson, Mich., violated more senior white teachers' rights under the equal-protection clause of the 14th Amendment. The Indiana case was South Bend Community School Corporation v. Britton (No. 87-282).

Left intact a federal appellate ruling last April that the director of the Head Start program in Cleveland, Miss., did not violate the 14th Amendment's due-process requirements when he fired the program's assistant director in 1983. The former assistant director argued that administrative hearings held after his dismissal did not satisfy constitutional requirements. The case was Vence v. Bolivar County Community-Action Program (No. 87-433).

Vol. 07, Issue 10

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