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Philip W. Buchen Files
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Supreme Court of the United States. (02/02/1790 - )
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The original documents are located in Box 1, folder "Abortion (2)" of the Philip Buchen
Files at the Gerald R. Ford Presidential Library.
Copyright Notice
The copyright law of the United States (Title 17, United States Code) governs the making of
photocopies or other reproductions of copyrighted material. Gerald R. Ford donated to the United
States of America his copyrights in all of his unpublished writings in National Archives collections.
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copyright claim, please contact the Gerald R. Ford Presidential Library.
Digitized from Box 1 of the Philip Buchen Files at the Gerald R. Ford Presidential Library
THE WHITE HOUSE
Copient 2/6
WASHINGTON
Date: 2-
TO:
Bobbie Kilberg
FROM: Max L. Friedersdorf
For Your Information
Please Handle
Please See Me
Comments, Please
Other Evailent. Pb.
send in formational FORD
copin to Chinag GERELO
LIBRARY
manh, hissen,
Hartmann, monton.
THE WHITE HOUSE
WASHINGTON
INFORMATION
February 6, 1976
MEMORANDUM FOR THE PRESIDENT
THROUGH:
PHIL BUCHEN T.W.B.
FROM:
BOBBIE GREENE KILBERG
bet
SUBJECT:
Proposed Constitutional Amendments
on Abortion
Max Friedersdorf has asked me to prepare for your information an
analysis of the various constitutional amendments that have been
introduced in the 94th Congress on abortion.
There are three basic types of constitutional amendments dealing
with abortion:
(1) a right to life amendment which would prohibit state
action in the area of abortion;
(2) a right to life amendment which would prohibit both
state and private action in the area of abortion; and
(3) a states' rights amendment which would give each
state the authority to allow, regulate or prohibit
abortions.
The Constitutional Amendments Subcommittee of the Senate
Judiciary Committee considered a number of anti-abortion
amendments in 1975 and voted not to report any out of the
Subcommittee. The Civil Rights and Constitutional Rights
Subcommittee of the House Judiciary Committee held two days
of hearings on anti-abortion amendments on February 4 and 5
of this year, but it is most unlikely that any amendment will be
reported out of the Subcommittee.
Below is a description of each of the basic types of anti-abortic
constitutional amendments, more than 50 of which have been
FORD
introduced in the House and the Senate:
GERALD
LIBRARY
-2-
(1) Right to life constitutional amendment which would prohibit
state action in the area of abortion
Congressman Erlenborn (R., Ill.) has introduced H.J. Res. 99, a
state action amendment prohibiting both abortion from conception
and euthanasia. No explicit exception is made in the abortion pro-
hibition to protect the life of the mother. The proposed amendment
reads as follows:
Section 1. Neither the United States nor any state
shall deprive any human being, from conception, of
life without due process of law; nor deny to any human
being, from conception, within its jurisdiction, the
equal protection of the law.
Section 2. Neither the United States nor any state
shall deprive any human being of life on account of age,
illness, or incapacity.
Section 3. Congress and the several States shall have
power to enforce this article by appropriate legislation.
The Fourteenth Amendment definition of state action would apply to
this amendment. Among H.J. Res. 99's co-sponsors are Congress-
man Delaney (D., N. Y.), Congressman Eilberg (D., Pa.), and
Congressman Mazzoli (D., Ky.). According to the minority counsel
of the House Civil Rights and Constitutional Rights Subcommittee,
the state action approach was not seriously focused upon in the
Subcommittee's hearings.
(2) Amendment to prohibit all state and private action in the
area of abortion
H.J. Res. 311, introduced by Congressman Latta (R., Ohio), is
typical of this type of amendment. It states as follows:
Section 1. With respect to the right to life, the
word 'person' as used in this Article and in the Fifth
and Fourteenth Articles of amendment to the Constitu-
tion of the United States applies to all human beings
BERALD FORD LIBRARY
-3-
irrespective of age, health, function, or condition of
dependency, including their unborn offspring at every
stage of their biological development.
Section 2. No unborn person shall be deprived of
life by any person: Provided, however, that nothing
in this article shall prohibit a law preventing only
those medical procedures required to prevent the
death of the mother.
Section 3. The Congress and the several States
shall have power to enforce this article by appropriate
legislation.
This amendment forbids euthanasia as well as abortion, and it does
contain an exception to protect the life of the mother.
Among the Congressmen who either have co-sponsored H.J. Res. 311
or have introduced similar amendments are Madden (D., Ind. ), Quie
(R., Minn.), Erlenborn, Delaney, Smith (R., Nebr. ), Hyde (R., Ill. ),
Goldwater, Jr. (R., Calif.), Oberstar (D., Minn.) and Lagomarsino
(R., Calif.). In the Senate, Senator Buckley has introduced two con-
stitutional amendments, one of which is identical to the Latta wording
and both of which contain the same intent. The Buckley amendments
were S.J. Res. 10 and 11 which were re-introduced as S.J. Res.
140 and 141 in October, 1975 after the former resolutions were voted
down in Subcommittee by votes of 2-to-5. The co-sponsors of the
Buckley amendments are Senators Bartlett, Curtis, Eastland, Garn,
Hatfield, Helms, Proxmire and Young.
All of the right to life bills in this category, except one introduced by
Congressman Delaney and one introduced by Senator Helms, contain
a provision to save the life of the mother. The Helms amendment
was voted down in Subcommittee by a vote of 2-to-5. One resolution,
H.J. Res. 451, introduced by Congressman Blouin (D., Iowa) and
co-sponsored by four other Democrats, requires that while protecting
the life of the mother "every reasonable effort" must be made to
preserve the life of her unborn offspring.
Another variation in the right to life amendments is a resolution
introduced by Congressman Karth (D., Minn.) (H. J. Res. 8.700RD
GERALD
LIBRARY
-4-
that contains an exception to allow termination of a pregnancy of no
more than ten days' duration which resulted from rape. No distinc-
tion is made between statutory and forcible rape.
None of the state action or private action right to life amendments
contain an exception for the mental illness of the mother.
(3) States' rights amendment which would give each state the
authority to allow, regulate or prohibit abortions
The basic states' rights amendment has been introduced in the House
as H.J. Res. 96 by Congressman Whitehurst (R., Va.) and in the
Senate as S.J. Res. 91 by Senator Scott of Virginia. The Whitehurst
amendment was co-sponsored by you when you were in the House and
is presently co-sponsored by Congressmen Rhodes, Steiger (R., Ariz.),
Treen (R., La.) and Wampler (R., Va.), among others. Senator
Scott's resolution was voted down in the Senate Subcommittee by a
vote of 3-to-5.
The basic Whitehurst provision reads as follows:
Section 1. Nothing in this Constitution shall bar
any State or territory or the District of Columbia,
with regard to any area over which it has jurisdiction,
from allowing, regulating, or prohibiting the practice
of abortion.
This states' rights amendment does not specifically provide an excep-
tion to save the life of the mother.
The minority counsel of the House Judiciary Civil Rights and Consti-
tutional Rights Subcommittee is of the opinion that the language of the
Whitehurst and Scott amendments could be interpreted by the courts
as being consistent with the Supreme Court's 1973 abortion decisions
and thus defeat the intent of the amendments. Other lawyers disagree
with this opinion, and cite as especially important a clear legislative
history.
Another states' rights approach is illustrated by S.J. Res. 143, an
amendment re-introduced by Senator Burdick after his amendment
was not reported out of Subcommittee by a vote of 4-to-4. An iden-
tical amendment was introduced in the House by Congresswoman
LIBRARY GERALD ? FORD
-5-
Sullivan (D., Mo. ). Burdick's amendment is both anti-abortion and
anti-euthanasia and reserves to the states and to the Congress within
Federal jurisdictions the affirmative power to protect life.
The Congress within Federal jurisdictions and the
several States within their respective jurisdictions
shall have power to protect life, including the unborn,
at every state [sic] of biological development irre-
spective of age, health, or condition of physical
dependency.
The Burdick amendment does not contain an exception to save the
life of the mother.
Right to life and states' rights amendments which do not provide an
exception to save the life of the mother would create a condition of
competing fundamental rights if ratified. While the unborn child's
right to life would be constitutionally protected, so would the mother's
right to life under the Fifth and Fourteenth Amendments. While it
could be legally logical to hold that the ratification of the new amend-
ment would supersede the right of the mother to life under the Fifth
and Fourteenth Amendments, it is inconceivable to the Solicitor
General and to most other attorneys that the Supreme Court would
ever in fact rule that the mother's life must be sacrificed for the
unborn child's life.
The following are the positions on the issue of anti-abortion consti-
tutional amendments of the House and Senate Republican leadership:
Congressman Rhodes: co-sponsor of Whitehurst states' rights
amendment to give each state the authority to allow, regulate
or prohibit abortions.
Congressman Conable: has generally stated that he is not com-
pletely happy with the Supreme Court decision, and he had asked
the Chairman of the Judiciary Subcommittee to hold hearings 50
that all views could be fully aired. Congressman Conable has
not come out in favor of a constitutional amendment.
GERALD FORD LIBRARY
-6-
Congressman Michel: opposes abortion on demand and abortion
as a contraceptive device. However, he favors abortion when
a pregnancy is a danger to a mother's life, or when a woman
has been raped. He does not favor abortion in the case of
mental illness. The Congressman also does not favor a con-
stitutional amendment on the issue but feels that it may be
possible to present the Supreme Court with arguments that
might cause it to reconsider its 1973 decisions. He is pres-
ently looking into this possibility.
Senator Scott: presently does not favor a constitutional
amendment.
Senator Griffen: has not supported a constitutional amendment.
Senator Tower: would consider the possibility of supporting
a states' rights amendment.
The following are the positions on the issue of anti-abortion constitutional
amendments of the Republican and Democratic Presidential candidates:
Reagan: favors state action and private action right to life
amendment except where necessary to save the mother's life
or to end a pregnancy caused by rape.
Carter, Jackson, Shriver: believe abortion is wrong; do not
favor Supreme Court fuling; do not favor either right to life or
states' rights amendment.
Bayh, Harris, Udall: agree with Supreme Court decision.
Wallace: favors right to life amendment.
FORD & GERALD LIBRARY
THE WHITE HOUSE
WASHINGTON
DATE 2/13/76
TO: Phil Buchen
FROM: SARAH MASSENGALE
As filing
FORD i LIBRARY BERVID
THE WHITE HOUSE
WASHINGTON
January 27, 1976
MEMORANDUM FOR THE FILE
FROM:
SARAH MASSENGALE
SUBJECT:
Meeting with representatives of three anti-abortion
groups, Thursday, January 22, 1976, 10:45-11:15 a.m.
Participants
Ms. Nellie Grey, March for Life Committee
Ms. Randy Engle, U.S. Coalition for Life
Reverend Harold Brown, Chrisitan Action Council
(Dr. Mildred Jefferson, National Right to Life, was unable
to attend)
Philip Buchen
Marjorie Lynch, HEW
Judy Wolf, DOJ
Bobbie Kilberg, Counsel's Office
H. P. Goldfield, Counsel's Office
Judy Hope, Domestic Council
Sarah Massengale, Domestic Council
This meeting was requested by Ms. Grey to be held on the
day of the Pro-Life march protesting the 1973 Supreme Court
decisions on abortion.
Ms. Massengale indicated that the purpose of the meeting since
FORD
it had been requested by Ms. Grey was to listen to what the
three organization representatives had to say.
LIBRARY
Ms. Grey said that a purpose of the meeting was to establish
communication and contact with the persons within the Federal
Government who could be responsive to the concerns of the
various "anti-abortion" or "pro-life" groups. She expressed
strong concern about "tax dollars being used to pay for abortions.
Ms. Grey indicated that even though the government could not
prohibit abortion it was not necessary to encourage and to fund
abortions.
In addition to challenging "liberal" state laws in the courts,
Ms. Grey wanted to open a dialogue with people at HEW and at
Justice who could re-examine the legality of Federal actions
(e.g. HEW reimbursement for abortions for Medicaid patients).
Ms. Lynch and Ms. Wolf each indicated that they would be willing
to talk again with Ms. Grey and her colleagues.
- 2 -
Reverend Brown said that his major concern was the enactment
of a "pro-life" amendment to the Constitution but that he
realized the proper realm for action on that was the Congress,
not the Executive Branch.
Ms. Engle expressed her opposition to: HEW abortion policy,
HEW and AID family planning, population control and birth
control, policies and programs, fetal research, and sex
education in the schools.
The representatives of the Administration listened to the
concerns expressed. All present agreed that further communica-
tion would be directed to HEW (Ms. Lynch) and Justice (Ms. Wolf).
.
LIBRAMY GERALD FORD
Defense
abortion
THE WHITE HOUSE
WASHINGTON
March 16, 1976
Dear Ms. Meyer:
Thank you for your letter of February 10 commenting
on the President's position on abortion. I read your
constitutional analysis with interest and appreciate
your taking the time to write me.
Sincerely,
ThilpW.Buchen Philip Buchen
Counsel to the President
Hermine Herta Meyer, Esquire
4701 Willard Avenue
Chevy Chase, Maryland 20015
FORD i LIBRARY 028ALD
Charlenes
THE WHITE HOUSE
WASHINGTON
August 11, 1976
MEMORANDUM FOR:
JIM CANNON
SARAH MASSENGALE
Bobere
FROM:
BOBBIE GREENE KILBERG
SUBJECT:
Parental Consent to Abortions:
Bellotti V. Baird, 44 L.W. 5221
(July 1, 1976)
Attached is a copy of the memorandum which I sent to
you on August 6 on the Supreme Court abortion decision
in Planned Parenthood V. Danforth. In the Planned
Parenthood case, the Court declared unconstitutional
a provision in a Missouri statute which required the
written consent of a parent or person in loco parentis
for an abortion for an unmarried woman under 18 years
of age. The Court held that a State may not impose a
blanket requirement of a parental veto:
"
the State does not have the constitu-
tional authority to give a third party an
absolute, and possibly arbitrary, veto over
the decision of the physician and his patient
to terminate the patient's pregnancy, regard-
less of the reason for withholding the consent."
However, the Court also emphasized that its holding did
"not suggest that every minor, regardless of age or
maturity, may give effective consent for termination of
her pregnancy. And it went on to note that the fault
with the statutory provision was "that it imposes a
special consent provision
...
and does so without a
sufficient justification for the restriction." (Emphasis
added.)
In the case of Bellotti V. Baird, decided the same day
as Planned Parenthood, the Supreme Court held that a
three-judge Federal district court should not have ruled
on the constitutionality of a 1974 Massachusetts abortion
statute but rather should have certified to the Massa,
chusetts Supreme Judicial Court appropriate questions
GERALDOR
LIBRARY
-2-
concerning the meaning of the statute and the abortion
procedure it imposed. The district court had held the
statute unconstitutional because it created a parental
veto over the performance of abortion on minor children
in that it applied even to those minors capable of giving
informed consent. The statute required parental consent
to an abortion for an unmarried minor less than 18 but
provided that, if the parents refused to consent, con-
sent could be obtained by court order "for good cause
shown, after such hearing as he /judge7 deems necessary.
(Statutory provision at Tab A.)
The Supreme Court vacated the judgment of the district
court and instructed that court to abstain pending con-
struction of the statute by the Massachusetts courts
and to certify appropriate questions to the State court.
In so ruling, the Supreme Court held that abstention was
appropriate where an unconstrued State statute was
susceptible of a construction by the State judiciary that
" might avoid in whole or in part the necessity for Federal
constitutional adjudication, or at least materially change
the nature of the problem. It also stated that the
Massachusetts statute was susceptible to appellants'
interpretation that, while it prefers parental consulta-
tion and consent, it permits a minor capable of giving
informed consent to obtain a court order allowing abortion
without parental consultation and further permits even a
minor incapable of giving informed consent to obtain an
abortion order without parental consultation where it is
shown that abortion would be in her best interest. The
implication was that such an interpretation would avoid
or substantially modify the Federal constitutional
challenge to the statute.
The Supreme Court noted that at the same time it had
struck down the Missouri statute that created a parental
veto, it had held that a requirement of written consent
on the part of a pregnant adult was not unconstitutional
unless it unduly burdened the right to seek an abortion.
Referring back to the Bellotti case before it, the Court
noted that it was concerned with a statute directed
towards minors, "as to whom there are unquestionably
greater risks of inability to give an informed consent.
Without holding that a requirement of a court hearing
would not unduly burden the right of a mature adult,
we think it clear that in the instant case
adoption of appellants' interpretation would 'at
leastord GERALD LIBRARY
-3-
materially change the nature of the problem' that appel-
lants claim is presented. "
The Court finally noted that in light of its disapproval
of a parental veto in the Planned Parenthood case, it
assumed that the lower Massachusetts courts, if called
upon to enforce the statute pending interpretation by
the Supreme Judicial Court, would "not impose this most
serious barrier" and that as the issue thus would become
one of "relative burden" rather than "total denial of
access. "
CC: Phil Buchen
FORD i OFRALD LIBRARY
THE WHITE HOUSE
WASHINGTON
August 6, 1976
MEMORANDUM FOR:
JIM CANNON
SARAH MASSENGALE
Bobbi
FROM:
BOBBIE GREENE KILBERG
SUBJECT:
Supreme Court Abortion Decision
in Planned Parenthood V. Danforth
(July 1, 1976)
Attached is a memo to me from H. P. Goldfield of our staff
summarizing the Danforth case. The decision specifically declared
unconstitutional Section 3 of a Missouri statute which required
spousal or parental consent (for unmarried women under age 18).
for abortions in the first trimester of pregnancy. However, because
of the wording of the statute and the 1973 Supreme Court decision in
Roe v. Wade, it is likely that a requirement for spousal or parental
consent in the second or third trimesters of pregnancy would be
equally unconstitutional.
A ttachment
FORD is LIBRARY GRAMED
THE WHITE HOUSE
WASHINGTON
August 5, 1976
MEMORANDUM FOR:
BOBBIE GREENE KILBERG
FROM:
H. P. GOLDFIELD
SUBJECT:
Planned Parenthood V. Danforth
44 U.S. L. W. 5197 (July 1, 1976)
Facts
Two Missouri physicians challenge the constitutionality of the Missouri
abortion statute which required:
1.) voluntary and informed consent: before submitting to an
abortion during the first 12 weeks of pregnancy, a woman must consent
in writing to the procedure and certify that her consent is informed
and freely given;
2.) spousal consent: the written consent of the spouse of a woman
seeking an abortion is required unless a licensed physician certifies that
the abortion is necessary to preserve the woman's life;
3.) parental consent for minors seeking abortions: the written
consent of a parent or person in loco parentis is required for the
abortion of an unmarried woman under age 18.
Holding and Opinion
The Supreme Court upheld the constitutionality of the informed consent
provision, but struck down the provisions requiring parental and spousal
consent.
1.) voluntary and informed consent: In determining that the state
may constitutionally require a woman to consent in writing to an abortion,
the Court reasoned that the decision to abort is often stressful and,
therefore, the state-has an interest in insuring that the woman is fully
aware of the consequences of her decision.
2.) spousal consent: The Court ruled that the spousal consent
provision did not comport with the standard of Roe V. Wade since the
state cannot "delegate to a spouse a veto power which the state itself is
absolutely and totally prohibited from exercising during the first
trimester of pregnancy."
FORD is LIBRAR GERALD
-2-
3.) parental consent: For substantially the same reasons as in
the case of spousal consent provision, the Court ruled that the state
may not impose a parental consent requirement as a condition to a
minor's abortion during the first 12 weeks of pregnancy. The Court
reasoned that there is no significant state interest in conditioning
an abortion on the consent of a parent.
FORD is LIBRARY GERALD
STATUTE
The Act, Stat. 1974, C. 706, UND 1, amended Mass. Gen.
Laws Ann., C. 112 (Professions and Occupations), by
adding §§ 12H through 12R. Section 12P provides:
" (1) If the mother is less than eighteen
years of age and has not married, the consent
of both the mother and her parents is required.
If one or both of the mother's parents refuse
such consent, consent may be obtained by order
of a judge of the superior court for good cause
shown, after such hearing as he deems neces-
sary. Such a hearing will not require the
appointment of a guardian for the mother.
"If one of the parents has died or has
deserted his or her family, consent by the
remaining parent is sufficient. If both
parents have died or have deserted their
family, consent of the mother's guardian or
other person having duties similar to a
guardian, or any person who had assumed the
care and custody of the mother is sufficient.
" (2) The commissioner of public health
shall prescribe a written form for such con-
sent. Such form shall be signed by the proper
person or persons and given to the physician
performing the abortion who shall maintain it
in his permanent files.
"Nothing in this section shall be construed
as abolishing or limiting any common law rights
of any other person or persons relative to con-
sent to the performance of an abortion for pur-
poses of any civil action or any injunctive
relief under section twelve R."
FORD
GERALD
LIBRARY
6-29-767
The United States LAW WEEK
44 LW 5221
ples rest on more than the fussiness of judges. They
tutional adjudication, or at least materially change the nature of
reflect the conviction that under our constitutional sys-
the problem." Harrison V. NAACP, 360 U. S. 167, 177.
tem courts are not roving commissions assigned to pass
(b) Here the 1974 statute is susceptible of appellants' interpre-
Con-
tation that while it prefers parental consultation and consent it
judgment on the validity of the Nation's laws.
permits a minor capable of giving informed consent to obtain a
stitutional judgments are justified only out of the
court order allowing abortion without parental consultation and
necessity of adjudicating rights in particular cases be-
further permits even a minor incapable of giving informed con-
tween the litigants brought before the Court." Broad-
sent to obtain an abortion order without parental consultation
rick V. Oklahoma, 413 U.S., at 610-611 (citation omitted).
where it is shown that abortion would be in her best interests,
Today's holding threatens to make just such "roving com-
and such an interpretation would avoid or substantially modify
the federal constitutional challenge to the statute.
missions" of the federal courts.
(c) In regard to the claim of impermissible discrimination due
MICHAEL L. BOICOURT, Assistant Attorney General, State of
to the 1975 statute, it would be appropriate for the District Court
Missouri (JOHN C. DANFORTH, Attorney General, with him on the
also to certify a question concerning this statute, and the extent
brief) for petitioner; FRANK SUSMAN, St. Louis, Missouri
to which its procedures differ from the procedures required under
(SUSMAN, SCHERMER, WILLER & RIMMEL, with him on the
the 1974 statute.
brief) for respondents.
393 F. Supp. 847, vacated and remanded.
Nos. 75-73 AND 75-109
BLACKMUN, J., delivered the opinion for a unanimous Court.
MR. JUSTICE BLACKMUN delivered the opinion of the
Francis X. Bellotti, Attor-
Court.
ney General of Massa-
In this case, a three-judge District Court for the Dis-
chusetts, et al.,
trict of Massachusetts enjoined the operation of certain
Appellants,
On Appeals from the United
provisions of a 1974 Massachusetts statute that govern
75-73
v.
States District Court for
the type of consent required before an abortion may be
William Baird et al.
the District of Massachu-
performed on an unmarried woman under the age of 18.
setts.
In SO acting, the court denied by implication a motion
Jane Hunerwadel, etc.,
by appellants that the court abstain from deciding the
Appellant,
issue pending authoritative construction of the statute
75-109
v.
by the Supreme Judicial Court of Massachusetts. We
William Baird et al.
hold that the court should have abstained, and we vacate
the judgment and remand the case for certification of
[July 1, 1976]
relevant issues of state law to the Supreme Judicial
Syllabus
Court, and for abstention pending the decision of that
tribunal.
A 1974 Massachusetts statute governs the type of consent, including
parental consent, required before an abortion may be performed
I
on an unmarried woman under the age of 18. Appellees, an abor-
tion counseling organization, its president and its medical director,
On August 2, 1974, The General Court of Massachu-
and several unmarried women who were pregnant at the time,
setts (the Legislature), over the Governor's veto, en-
brought a class action against appellant Attorney General and
acted legislation entitled "An Act to protect unborn
District Attorneys, claiming that the statute violates the Due
Process and Equal Protection Clauses of the Fourteenth Amend-
children and maternal health within present constitu-
ment. A temporary restraining order was entered prior to the
tional limits." The Act, Stat. 1974, C. 706, § 1, amended
effective date of the statute. Thereafter, a three-judge District
Mass. Gen. Laws Ann., c. 112 (Professions and Occupa-
Court held the statute unconstitutional as creating a "parental
tions), by adding §§ 12H through 12R.1 Section 12P
veto" over the performance of abortions on minor children in
provides:
that it applied even to those minors capable of giving informed
consent, and permanently enjoined its operation, denying by im-
"Section 12P.
plication appellants' motion that the court abstain from deciding
"(1)' If the mother is less than eighteen years of
the issue pending authoritative construction of the statute by the
age and has not married, the consent of both the
Massachusetts Supreme Judicial Court. In 1975, after the Dis-
mother and her parents is required. If one or both
trict Court's decision Massachusetts enacted a statute dealing
with consent by minors to medical procedures other than abor-
tion and sterilization, and in this Court appellees raised an addi-
1 Prior to the passage of the 1974 Act there were already in
tional claim of impermissible distinction between the consent
existence a § 12H and a § 12/ of c. 112. These were added by
procedures applicable to minors in the area of abortion under the
Stat. 1973, c. 173, §1, and c. 521, § respectively. The former
1974 statute and the consent required by the 1975 statute in re-
called for the printing of the physician's name on a prescription
gard to other medical procedures. Held: The District Court
blank, and the latter concerned one's right not to participate in an
should have abstained from deciding the constitutional issue and
abortion or sterilization procedure, and to be frees from damage
should have certified to the Massachussets Supreme Judicial Court
claims or discipline for exercising that right.
appropriate questions concerning the meaning of the 1974 statute
These pre-existing §§ 12H and 12/ have not been repealed.
and the procedure it imposes.
Consequently, due to this legislative oversight, Massachusetts has
(a) Abstention is appropriate where an unconstrued state stat-
two statutes denominated § 12H of C. 112 and two denominated
ute is susceptible of a construction by the state judiciary that
§ 12/ of that chapter. This opinion, however, concerns only the
"might avoid in whole or in part the necessity for federal consti-
1974 legislation.
44 LW 5222
The United States LAW WEEK
6-29-76
of the mother's parents refuse such consent, consent
this action in the United States District Court for the
may be obtained by order of a judge of the superior
District of Massachusetts, asserting jurisdiction under
court for good cause shown, after such hearing as
28 U. S. C. §§ 1343 (3), 1331, and 2201, and 42 U. S. C.
he deems necessary. Such a hearing will not re-
§ 1983, and claiming that § 12P violates the Due Process
quire the appointment of a guardian for the mother.
and Equal Protection Clauses of the Fourteenth Amend-
"If one of the parents has died or has deserted
ment. They sought injunctive and declaratory relief,
his or her family, consent by the remaining parent is
and requestcd the empaneling of a three-judge court
sufficient. If both parents have died or have de-
pursuant to 28 U. S. C. §§ 2281 and 2284.
serted their family, consent of the mother's guardian
On October 31, the single District Judge issued an
or other person having duties similar to a guardian,
order temporarily restraining the enforcement of the pa-
or any person who had assumed the care and cus-
rental consent requirement of § 12P, and accepting the
tody of the mother is sufficient.
request for a three-judge court. Record Doc. 2.
"(2) The commissioner of public health shall
The plaintiffs, and the classes they purported to repre-
prescribe a written form for such consent. Such
sent, are:
form shall be signed by the proper person or per-
1. William Baird, a citizen of New York.
sons and given to the physician performing the
abortion who shall maintain it in his permanent
2. Parents Aid Society, Inc., a Massachusetts not-for-
files.
profit corporation. Baird is president of the corporation
"Nothing in this section shall be construed as
and is director and chief counselor of the center it oper-
abolishing or limiting any common law rights of
ates in Boston for the purpose of providing, inter alia,
any other person or persons relative to consent to
abortion and counseling services. Baird and Parents Aid
the performance of an abortion for purposes of any
claim to represent all abortion centers and their admin-
civil action or any injunctive relief under section
istrators in Massachusetts who, on a regular and recur-
twelve R."
ring basis, deal with pregnant minors. App. 13, 43.
3. Mary Moes I, II, III, and IV, four minors under
All nonemergency abortions are made subject to the
the age of 18, pregnant at the time of the filing of the
provisions of § 12P by § 12N.2 Violations of § 12N are
suit, and residing in Massachusetts. Each alleged that
punishable under § 12Q by a fine of not less than $100
she wished to terminate her pregnancy and did not wish
nor more than $2,000.3 Section 12R provides that the
to inform either of her parents.' Id., at 16-18, 19-22.
Attorney General or any person whose consent is re-
The Moes claimed to represent all pregnant minors capa-
quired may petition the superior court for an order en-
ble of, and willing to give, informed consent to an abor-
joining the performance of any abortion.
tion, but who decline to seek the consent of both parents,
II
as required by § 12P. Id., at 13, 43.
4. Gerald Zupnick, M. D., a physician licensed to prac-
On October 30, 1974, one day prior to the effective
tice in Massachusetts. He is the medical director of
date of the Act,5 plaintiffs, who are appellees here, filed
the center operated by Parents Aid. He claims to rep-
"Section 12N.
resent all physicians in Massachusetts who, without pa-
"Except in an emergency requiring immediate action, no abortion
may be performed under sections twelve I [before 24 weeks] or
become a law." Mass. Gen. Laws Ann. Const. Amend., Art. 48,
twelve J [24 weeks or more] unless
Ref., Pt. 1.
"(1) the written informed consent of the proper person or per-
G Because of the temporary restraining order and the injunction
sons has been delivered to the physician performing the abortion
subsequently issued by the three-judge court, Juris. Statement A-33,
as set forth in section twelve P and
A-34; App. 45-46, the parental consent provisions of § 12P have
"(2) if the abortion is during or after the thirteenth week of
not yet been effective.
pregnancy it is performed in a hospital duly authorized to provide
The complaint as originally filed, named only Mary Moe I and
facilities for general surgery.
Mary Moe II as the pregnant minor plaintiffs, with affidavits con-
"Except in an emergency requiring immediate action, no abortion
cerning their status attached. App. 16-18. Thereafter, in Novem-
may be performed under section twelve J unless performed in a
ber 1974, affidavits were executed by Mary Moe III and Mary Moe
hospital duly authorized to provide facilities for obstetrical
IV. App. 19-22. The motion to certify the plaintiffs' classes,
services."
filed December 9, 1974, refers to the four Mary Moes. Similarly,
3 "Section 12Q provides in pertinent part:
the District Court referred to the fact that four Mary Moes were
"Any person who willfully violates the provisions of sections
named in the action. 393 F. Supp. 847, 849 (Mass. 1975). The
twelve N or twelve 0 shall be punished by a fine of not less than
record does not disclose how or when Mary Moes III and IV were
one hundred dollars nor more than two thousand dollars."
added as parties plaintiff. In any event, Mary Moes II, III, and
"Section 12R.
IV were dismissed from the suit for failure to adduce evidence
"The attorney general or any person whose consent is required
supporting their standing, id., at 849 n. 1, and they have not ap-
either pursuant to section twelve P or under common law, may
pealed that ruling. The way in which Mary Moes III and IV en-
petition the superior court for an order enjoining the performance
tered the case, therefore, is of no concern to us here.
of any abortion that may be performed contrary to the provisions
We note that the fact the pregnancy of Mary Moe I has been
of sections twelve I through twelve Q."
terminated (through an abortion performed under the protection
5 Unless a statute is declared an emergency or may not be made
of the temporary restraining order entered by the District Court,
the subject of a referendum petition, a law passed by the General
id., at 850 n. 4) in no way moots the case. Roe V. Wade, 410 U. S.
Court does not take effect "earlier than ninety days after it has
113, 124-125 (1973).
6-29-76
The United States LAW WEEK
44 LW 5223
rental consent, see minor patients seeking abortions.
to represent the interests of parents of unmarried minor
Ibid.
women of childbearing age, id., at 849-850. It found
The defendants in the action, who are the appellants
that "a substantial number of females under the age of
in No. 75-73 (and who are hereinafter referred to as the
18 are capable of forming a valid consent," and viewed
appellants), are the Attorney General of Massachusetts,
the overall question as "whether the state can be per-
and the district attorneys of all the counties in the
mitted to restrain the free exercise of that consent, to the
Commonwealth.
extent that it has endeavored to do so." Id., at 855.
Appellant in No. 75-109 (hereinafter referred to as the
In regard to the meaning of § 12P, the majority made
intervenor-appellant) is Jane Hunerwadel, a resident and
the following comments:
citizen of Massachusetts, and parent of an unmarried
"1. The statute does not purport to require simply
minor female of childbearing age. Hunerwadel was per-
that parents be notified and given an opportunity to
mitted by the District Court to intervene as a defendant
communicate with the minor, her chosen physician,
on behalf of herself and all others similarly situated."
or others. We mention this obvious fact because
Record Doc. 8.
of the persistence of defendants and intervenor in
On November 13, appellants filed a "Motion to dismiss
arguing that the legislature could properly enact
and/or for summary judgment," arguing, inter alia, that
such a statute. Whether it could is not before us,
the District Court "should abstain from deciding any is-
and there is no reason for our considering it.
sue in this case." Record Doc. 4, p. 2. In their mem-
"2. The statute does not exclude those capable of
orandum to the court in support of that motion, appel-
forming an intelligent consent, but applies to all
lants. in addition to other arguments, urged that § 12P,
minors. The statute's provision calling for the
particularly in view of its judicial review provision, "was
minor's own consent recognizes that at least some
susceptible of a construction by state courts that would
minors can consent, but the minor's consent must
avoid or modify any alleged federal constitutional ques-
be supplemented in every case, either by the con-
tion." Record Doc. 5, p. 12. They cited Railroad
sent of both parents, or by a court order.
Comm'n V. Pullman Co., 312 U. S. 496 (1940), and Lake
Carriers' Assn. V. MacMullen, 406 U. S. 498, 510-511
"4. The statute does not purport simply to pro-
(1972), for the proposition that where an unconstrued
vide a check on the validity of the minor's consent
state statute is susceptible to a constitutional construc-
and the wisdom of her decision from the standpoint
tion, a federal court should abstain from deciding a con-
of her interests alone. Rather, it recognizes and
stitutional challenge to the statute until a definitive state
provides rights in both parents, independent of, and
construction has been obtained.
hence potentially at variance with, her own personal
The District Court held hearings on the motion for a
interests." 393 F. Supp., at 855.
preliminary injunction; these were later merged into the
"The dissent is seemingly of the opinion that a
trial on the merits. It received testimony from various
reviewing Superior Court Judge would consider only
experts and from parties to the case, including Mary
the interests of the minor. We find no room in the
Moe I. On April 28, 1975, the three-judge District
statute for so limited an interpretation." Id., at 855
Court, by a divided vote, handed down a decision hold-
n. 10.
ing § 12P unconstitutional and void. 393 F. Supp. 847
"The parents not only must be consulted, they are
(Mass.). An order was entered declaring § P "and such
given a veto." Id., at 856.
other portions of the chapter [112] insofar as they make
The majority observed that "[N]either the Four-
specific reference thereto" void, and enjoining the de-
teenth Amendment nor the Bill of Rights is for adults
fendants from enforcing them. App. 45-46; Appellants'
alone,' In re Gault, 1967, 387 U. S. 1, 13," 393 F. Supp.,
Juris. Statement A-33, A-34.
at 856, and, accordingly, held that the State cannot con-
The majority held, inter alia, that appellees Mary Moe
trol a minor's abortion in the first trimester any more
I, Doctor Zupnick, and Parents Aid had standing to chal-
than it can control that of an adult. Re-emphasizing
lenge the operation of the statute, individually and as
that "the statute is cast not in terms of protecting the
representatives of their proposed classes, 393 F. Supp., at
minor
but in recognizing independent rights of par-
850-852," and that the intervenor-appellant had standing
ents," the majority concluded that [t]he question comes,
accordingly, do parents possess, apart from right to coun-
8 Also permitted to intervene as defendants were Kathleen Roth,
et al., parents situated similarly to Hunerwadel, and Jane Doe, an
sel and guide, competing rights of their own?" Ibid.
anonymous parent of a pregnant unmarried minor. The District
The majority found that in the instant situation, un-
Court dismissed all the intervenors except Hunerwadel for failure to
like others, the parents' interests often are adverse to
adduce facts necessary to show standing. 393 F. Supp., at 850.
those of the minor and, specifically rejecting the contrary
Technically, these dismissed intervenors, who have not appealed,
result in Planned Parenthood of Central M8. Danforth,
might well be classified as appellees under our Rule 10 (4). Their
status, however, does not affect the disposition of these cases.
392 F. Supp. 1362 (ED Mo. 1075), see ante, p.
In regard to appellee Baird, the majority stated: "In the light of
concluded:
the unassailable standing of other plaintiffs we do not pass on
"But even if it should be found that parents may
the question of Baird's standing." 393 F. Supp., at 851.
have rights of a Constitutional dimension vis-a-vis
44 LW 5224
The United States LAW WEEK
6-29-76
their child that are separate from the child's, we
They argue, inter aiia, and each in their or her own way,
would find that in the present area the individual
that § 12P properly preserves the primacy of the family
rights of the minor outweigh the rights of the par-
unit by reinforcing the role of parents in fundamental
ents, and must be protected." 393 F. Supp., at 857.
decisions affecting family members; that the District
The dissent argued that the parents of Mary Moe I,
Court erred in failing to join Moe's parents; that it
by not being informed of the action or joined as parties,
abused its discretion by failing to appoint a guardian
"have been deprived of their legal rights without due
ad litem; and that it erred in finding the statute facially
process of law," ibid., that the majority erred in refusing
invalid when it was capable of a construction that would
to appoint a guardian ad litem for Moe, and that it erred
withstand constitutional analysis.
in finding that she had the capacity to give a valid and
The interpretation placed on the statute by appellants
informed consent to an abortion. The dissent further
in this Court is of some importance and merits attention,
argued that parents possess constitutionally cognizable
for they are the officials charged with enforcement of the
rights in guiding the upbringing of their children, and
statute.10
that the statute is a proper exercise of state power in pro-
Appellants assert, first, that under the statute parental
tection of those parental rights. Id., at 857-865.
consent may not be refused on the basis of concerns
Most important. however, the dissent's view of the
exclusively of the parent. Indeed, "the 'competing' pa-
statute differed markedly from the interpretation adopted
rental right consists exclusively of the right to assess in-
by the majority. The dissent stated:
dependently, for their minor child, what will best serve
that child's best interest
"I find, therefore, no, conceivable constitutional
[I]n operation, the par-
objection to legislation providing in the case of a
ents' actual deliberation must range no further than
pregnant minor an additional condition designed to
would that of a pregnant adult making her own abortion
make certain that she receive parental or judicial
decision." Brief for Appellants 23. And the superior
guidance and counseling before having the abortion.
court's review will ensure that parental objection based
The requirement of consent of both parents 15 en-
upon other considerations will not operate to bar the
sures that both parents will provide counselling and
minor's abortion. Id., at 22-23. See also Brief for In-
guidance, each according to his or her best judg-
tervenor-Appellant 26.
ment. The statute expressly provides that the par-
Second, appellants argue that the last paragraph of
ents' refusal to consent is not final. The statute
§ 12P 11 preserves the "mature minor" rule in Massachu-
expressly gives the state courts the right to make a
setts, under which a child determined by a court to be
final determination. If the state courts find that
capable of giving informed consent will be allowed to
the minor is mature enough to give an informed con-
do SO. Appellants argue that under this rule, a pregnant
sent to the abortion and that she has been ade-
minor could file a complaint in superior court seeking
quately informed about the nature of an abortion
authorization for an abortion, and, i]mportantly, such
and its probable consequences to her, then we must
a complaint could be filed regardless of whether the par-
ents had been consulted or had withheld their consent."
assume that the courts will enter the necessary order
permitting her to exercise her constitutional right
Brief for Appellants 37-38 (emphasis in the original)
to the abortion." Id., at 864.
10 It is not entirely clear that appellants suggested the same in-
The indicated footnote reads:
terpretation in the District Court as they suggest here. See 393
"The majority speculate concerning possible in-
F. Supp., at 855. Nevertheless, the fact that the full arguments
terpretations of the 'for good cause shown' language.
in favor of abstention may not have been asserted in the District
Court does not bar this Court's consideration of the issue. Cf.
There is also some doubt whether the statute re-
Wisconsin V. Constantineau, 400 U.S. 433, 437 (1971).
quires consent of one or both parents. The con-
The practice of abstention is equitable in nature, see Railrcad
struction of the statute is a matter of state law. If
Comm'n V. Pullman Co., 312 U. S. 496, 500-501 (1941), and it
the majority believe the only constitutional infir-
would not be improper to consider the effect of delay caused by the
mities arise from their interpretation of the statute,
State's failure to suggest or seek a constitutional interpretation.
Cf. Baggett V. Bullitt, 377 U. S. 360, 379 (1964). In the instant
the majority should certify questions of state law to
case, however, there has been no injury to appellees' rights due
the Supreme Judicial Court of Massachusetts pur-
to the delay (if any) in the appellants' coming forward with the
suant to Rule 3:21 of that court in order to receive
interpretation they now espouse. As a result of the various orders
a definitive interpretation of the statute." Ibid.
of the District Court, the challenged portion of the statute has
never gone into effect. Nor can we adopt the view that once a
Both appellants and intervenor-appellant appealed.
request for abstention is made, it is beyond the power of the Dis-
We noted probable jurisdiction of each appeal and set
trict Court to consider possible interpretations that have not
the cases for oral argument with Planned Parenthood of
been put forth by the parties. Indeed, it would appear that ab-
Missouri V. Danforth, ante, and its companion cross-ap-
stention may be raised by the court sua sponte. See Railroad
peal. 423 U. S. 982 (1975).
Comm'n V. Pullman Co., supra. Cf. England V. Medical Examiners,
375 U.S. 411, 413 (1964).
III
11 "Nothing in this section shall be construed as abolishing or limit-
ing any common law rights of any other person or persons relative
Appellants and intervenor-appellant attack the Dis-
to consent to the performance of an abortion for purposes of any
trict Court's majority decision on a number of grounds.
civil action or any injunctive relief under section twelve R."
6-29-76
The United States LAW WEEK
44 LW 5225
Tr. of Oral Arg. 17. Appellants and the intervenor-
tween the privacy rights of the young woman and the
appellant assert that the procedure employed would be
rights of the parents as established by the statute."
structured so as to be speedy and nonburdensome, and
Ibid. Assuming that "good cause" has a broader mean-
would ensure anonymity. Brief for Appellants 38 n. 30;
ing, appellees argue that the hearing itself makes the
Brief for Intervenor-Appellant 26; Tr. of Oral Arg.
statute unconstitutional, because of the burden it im-
24-26.
poses and the delay it entails. Ibid.
Finally, appellants argue that under § 12P, a judge of
IV
the superior court may permit an abortion without pa-
rental consent for a minor incapable of rendering in-
In deciding this case, we need go no further than the
formed consent, provided that there is "good cause
claim that the District Court should have abstained
shown." Brief for Appellants 38. "Good cause" in-
pending construction of the statute by the Massachusetts
cludes a showing that the abortion is in the minor's best
courts. As we have held on numerous occasions, ab-
interests. Id., at 39.
stention is appropriate where an unconstrued state stat-
The picture thus painted by the respective appellants
ute is susceptible of a construction by the state judiciary
is of a statute that prefers parental consultation and con-
"which might avoid in whole or in part the necessity for
sent, but that permits a mature minor capable of giving
federal constitutional adjudication, or at least materially
informed consent to obtain, without undue burden, an
change the nature of the problem." Harrison V.
order permitting the abortion without parental consulta-
NAACP, 360 U. S. 167. 177 (1959). See also Colorado
tion, and, further, permits even a minor incapable of giv-
River Conservation. District V. United States, - U.S.
ing informed consent to obtain an order without parental
- (slip op. 12-13) (1976); Carey V. Sugar, - U.S.
consultation where there is a showing that the abortion
- (slip op. 6) (1976); Kusper V. Pontikes, 414 U. S. 51,
would be in her best interests. The statute, as thus
54-55 (1973); Lake Carriers' Assn. V. MacMullan, 406
read, would be fundamentally different from a statute
U. S., at 510-511 (1972); Zwickler V. Koota, 389 U. S.
that creates a "parental veto."
241, 249 (1967); Railroad Comm'n V. Pullman Co.,
Appellees, however, on their part, take an entirely
supra.
different view of the statute. They argue that the stat-
We do not accept appellees' assertion that the Su-
ute creates a right to a parental veto," that it creates an
preme Judicial Court of Massachusetts inevitably will
irrebuttable presumption that a minor is incapable of
interpret the statute so as to create a "parental veto,"
informed consent,14 and that the statute does not permit
require the superior court to act other than in the best
abortion without parental consent in the case of a ma-
interests of the minor, or impose undue burdens upon a
ture minor or, in the case of 3 minor incapable of giving
minor capable of giving an informed consent.
consent, where the parents are irrationally opposed to
In Planned Parenthood of Missouri V. Danforth, ante,
abortion.15
we today struck down a statute that created a parental
Appellees specifically object to abstention. Their ob-
veto. (Slip op., at -.) At the same time, however,
jection is based upon their opinion that "the statute
we held that a requirement of written consert on the
gives to parents of minors an unbridled veto," Brief for
part of a pregnant adult is not unconstitutional unless it
Appellees 49, and that once that veto is exercised, the
unduly burdens the right to seek an abortion. In this
minor has the burden of proving to the superior court
case, we are concerned with a statute directed towards
judge that "good cause" exists. Ibid. They view the
minors, as to whom there are unquestionably greater
"good cause" hearing as forcing the judge to choose "be-
risks of inability to give an informed consent. Without
holding that a requirement of a court hearing would not
12 See generally Planned Parenthood of Missouri V. Danjorth, ante,
unduly burden the rights of a mature adult, cf. Doe V.
at -; Poe V. Gerstein, 517 F. 2d 787 (CA5 1975), Juris. State-
Rampton, 366 F. Supp. 189 (Utah 1973), we think it
ment pending, No. 75-713; Jackson V. Guste, - F. Supp. -
clear that in the instant case adoption of appellants' in-
(Civ. No. 74-2425) (ED La. Jan. 26, 1976); Doe V. Zimmerman,
405 F. Supp. 534 (MD Pa. 1975); Doe V. Exon, - F. Supp. -
terpretation would "at least materially change the na-
(Civ. No. CV 75-L-146) (Neb. Oct. 8, 1975); Planned Parenthood
ture of the problem" that appellants claim is presented.
Assn. V. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975); Foe V. Van-
Harrison V. NAACP, 360 U.S., at 177.
derhoof, 389 F. Supp. 947 (Colo. 1975); Gary-Northwest Indiana
Whether the Supreme Judicial Court will so interpret
Women's Services V. Bowen, - F. Supp. - (Civ. No. H-74-289)
the statute, or whether it will interpret the statute to
(ND Ind. Jan. 3, 1975); Wolfe V. Schroering, 388 F. Supp. 631 (WD
require consideration of factors not mentioned above, im-
Ky. 1974); State V. Koome, 84 Wash. 2d 901, 530 P. 2d 260 (1975).
13 "[The statute can] force a pregnant sixteen-year-old to become
pose burdens more serious than those suggested. or create
a seventeen-ycar-old mother because her own mother wants a grand-
some unanticipated interference with the doctor-patient
child." Brief for Appellees 33.
relationship, we cannot now determine." Nor need W3
14 "[T]he parental consent statute constitutes a legislative decree
that no person under age 18 is competent to consent to an abortion.
This contravenes the line of decisions which have struck down cer-
16 As stated in n. 6, supra, the challenged portion
tain irrebutable presumptions as violative of due process." Id.,
has never gone into effect. The heated debate among the parties
at 42.
over the meaning of the statute is a strong indication of the ambR
""The statute has no exception for mr.ture minors, or other
guities it contains. We assume that the Supreme Judicial Court wall
minors with immature, emotionally upset parents." Id., at 46.
do everything in its power to interpret the Act in conformity with
44 LW 5226
The United States LAW WEEK
6-29-76
determine what factors are impermissible or at what
tinction will depend upon its degree and the justifica-
point review of consent and good cause in the case of a
tion for it. The constitutional issue cannot now be de-
minor becomes unduly burdensome. It is sufficient that
fined, however, for the degree of distinction between the
the statute is susceptible to the interpretation offered by
consent procedure for abortions and the consent pro-
appellants, and we so find, and that such an interpreta-
cedures for other medical procedures cannot be estab-
tion would avoid or substantially modify the federal con-
lished until the nature of the consent required for abor-
stitutional challenge to the statute, as it clearly would.
tions is established. In these circumstances, the federal
Indeed, in the absence of an authoritative construction,
court should stay its hand to the same extent as in a
it is impossible to define precisely the constitutional
challenge directly to the burdens created by the statute.
question presented.
Finally, we note that the Supreme Judicial Court of
Appellees also raise, however, a claim of impermissible
Massachusetts has adopted a Rule of Court under which
distinction between the consent procedures applicable to
an issue of interpretation of Massachusetts law may be
minors in the area of abortion, and the consent required
certified directly to that Court for prompt resolution.
in regard to other medical procedures. This issue has
Mass. Rules of Court, Sup. Jud. Ct. Rule 3:21 (1976).
come to the fore through the advent of a Massachusetts
This Court often has remarked that the equitable prac-
statute, enacted subsequent to the decision of the Dis-
tice of abstention is limited by considerations of "the
trict Court, dealing with consent by minors to medical
delay and expense to which application of the abstention
procedures other than abortion and sterilization." As
doctrine inevitably gives rise." Lake Carriers' Assn. V.
we hold today in Planned Parenthood, however, not all
MacMullan, 406 U. S., at 509, quoting England V. Med-
distinction between abortion and other procedures is for-
ical Examiners, 375 U. C. 411, 418 (1964). See Kusper
bidden. Ante, at The constitutionality of such dis-
V. Pontikes, 414 U. S., at 54. As we have also noted,
however, the availability of an adequate certification
its title: "An Act to protect within present constitutional limits."
procedure 18 "does, of course, in the long run save time,
See Boehning V. Indiana State Employee Assn., 423 U. S. 6 (1975).
energy, and resources and helps build a cooperative ju-
17 Prior to the enactment of that statute, the consent procedure
dicial federalism." Lehman Brothers V. Schein, 416
in regard to abortion, at least as interpreted by appellants, was argu-
U. S. 386, 391 (1974). This Court has utilized certifi-
ably merely a codification of the common law. See Brief for Appel-
lants 24-39. The new legislation, Stat. 1975, c. 564, approved Aug.
cation procedures in the past, as have courts of appeals.
28, 1975, reads:
Ibid. and cases cited therein at 390 nn. 5 and 6.
"Chapter 112 of the General Laws is hereby amended by striking
The importance of speed in resolution of the instant
out section 12F, as amended by section 1 of chapter 335 of the acts
case is manifest. Each day the statute is in effect, irre-
of 1971. and inserting in place thereof the following section:
trievable events, with substantial personal consequences,
"Section 12F.
occur. Although we do not mean to intimate that ab-
"No physician, dentist or hospital shall be held liable for damages
stention would be improper in this case were certifica-
for failure to obtain consent of a parent, legal guardian, or other per-
son having custody or control of a minor child, or of the spouse of a
tion not possible, the availability of certification greatly
patient, to emergency examination and treatment, including blood
simplifies the analysis. Further, in light of our disap-
transfusions, when delay in treatment will endanger the life, limb,
proval of a "parental veto" today in Planned Parenthood,
or mental well-being of the patient.
we must assume that the lower Massachusetts courts, if
"Any minor may give consent to his medical or dental care at the
called upon to enforce the statute pending interpretation
time such care is sought if (i) he is married, widowed, divorced;
or (ii) he is the parent of a child, in which case he may also give
by the Supreme Judicial Court, will not impose this most
consent to medical or dental care of the child; or (iii) he is a mem-
serious barrier. Insofar as the issue thus ceases to be-
ber of any of the armed forces; or (iv) she is pregnant or believes
come one of total denial of access and becomes one rather
herself to be pregnant; or (v) lie is living separate and apart from
of relative burden, the cost of abstention is reduced and
his parent or legal guardian, and is managing his own financial
affairs; or (vi) he reasonably believes himself to be suffering from or
to have come in contact with any disease defined as dangerous to
he is legally able to consent to such treatment under this section; or
the public health pursuant to section six of chapter one hundred and
(ii) relied in good faith upon the representations of such minor that
eleven; provided, however, that such minor may only consent to
he is over eighteen years of age.
care which relates to the diagnosis or treatment of such disease.
"All information and records kept in connection with the medical
"Consent shall not be granted under subparagraphs (ii) through
or dental care of a minor who consents thereto in accordance with
(vi), inclusive, for abortion or sterilization.
this section shall be confidential between the minor and the physician
"Consent given under this section shall not be subject to later dis-
or dentist, and shall not be released except upon the written consent
affirmance because of minority. The consent of the parent or legal
of the minor or a proper judicial order. When the physician or
guardian shall not be required to authorize such care and, notwith-
dentist attending a minor reasonably believes the condition of said
standing any other provisions of law, such parent or legal guardian
minor to be so serious that his life or limb is endangered, the phy-
shall not be liable for the payment for any care rendered pursuant
sician or dentist shall notify the parents, legal guardian or foster
to this section unless such parent or legal guardian has expressly
parents of said condition and shall inform the minor of said
agreed to pay for such care.
notification."
"No physician or dentist, nor any hospital, clinic or infirmary
18 There is no indication that the Massachusetts certification pro-
shall be liable, civilly and criminally, for not obtaining the consent
cedure is inadequate. Indeed, the dissent in the District Court
of the parent or legal guardian to render medical or dental care to a
cited a prior case in which the procedure was employed with no
minor, if, at the time such care was rendered, such person or facility:
apparent difficulty. 393 F. Supp., at 864 n. 15, citing Hendrickson
(i) relied in good faith upon the representations of such minor that
V. Sears, 495 F. 2d 513 (CAI 1974).
6-29-76
The United States LAW WEEK
44 LW 5227
the desirability of that equitable remedy accordingly
tion concerning the meaning of the new statute, and the
increased.
extent to which its procedures differ from the procedures
that must be followed under § 12P.
V
The judgment of the District Court is vacated, and the
We therefore hold that the District Court should have
case is remanded to that court for proceedings consistent
certified to the Supreme Judicial Court of Massachusetts
with this opinion.
appropriate questions concerning the meaning of § 12P
It is 30 ordered.
and the procedure it imposes. In regard to the claim
of impermissible discrimination due to the 1975 statute, a
S. STEPHEN ROSENFELD, Assistant Attorney General, State of
Massachusetts, and BRIAN A. RILEY, Boston, Massachusetts
claim not raised in the District Court but subject to in-
(FRANCIS X. BELLOTTI, Attorney General, MICHAEL EBY,
quiry through an amended complaint, or perhaps by
GARRICK F. COLE, Assistant Attorneys General, THOMAS P. Mc-
MAHON, MARY LAURA RUSSELL, THOMAS P. RUSSELL,
other means, we believe that it would not be inappro-
ROBERT J. REYNOLDS and MARY T. WELBY, with them on the
priate for the District Court, when any procedural re-
brief) for appellants: ROY LUCAS, Washington, D.C. (LUCAS &
STOLTZ and JOAN C. SCHMIDT, with him on the brief) for
quirement has been complied with, also to certify a ques-
appellees.
NOTICE: These opinions are subject to formal revision before
publication in the preliminary print of the United States Reports.
NOTE: Where it is deemed desirable, a syllabus (headnote) will be
Readers are requested to notify the Reporter of Decisions, Supreme
released at the time the opinion is issued. The syllabus
Court of the United States, Washington, D.C. 20543, of any
constitutes no part of the opinion of the Court but has been
typographical or other formal errors, in order that corrections may
prepared by the Reporter of Decisions for the convenience of the
be made before the preliminary print goes to press.
reader. See United States V. Detroit Lumber Co., 200 U.S. 321, 337.
aboution
THE WHITE HOUSE
WASHINGTON
September 4, 1976
MEMORANDUM FOR:
JIM CAVANAUGH
B X
FROM:
BOBBIE GREENE KILBERG
SUBJECT:
Solicitor General's Amicus
Brief in Beal V. Doe
In his amicus brief, Solicitor General Bork argues
that the Pennsylvania Medicaid plan satisfied the
rational basis test for equal protection under the
Fourteenth Amendment. The respondents have argued
that the bar on payments for non-therapeutic abortions
invidiously discriminates between "those who continue
their pregnancies to birth and those who seek to
terminate their pregnancies by abortion" and thus
that the limitation can be justified, if at all, only
if it promotes a "compelling state interest". Bork
has responded to this assertion as follows:
"Moreover, the fact that a woman has a
qualified right to an abortion does not
imply a correlative constitutional right
to free treatment. Individuals presumably
have a "right" to undergo many recognized
medical procedures by a licensed physician
but the Equal Protection Clause does not
affirmatively require a state to cover the
costs incurred by indigents in undergoing
such procedures."
Attachment
CC: Philip Buchen
Sarah Massengale
FORD CERALD LIBRARY
THE WHITE HOUSE
WASHINGTON
September 4, 1976
MEMORANDUM FOR:
JIM CAVANAUGH
BK
FROM:
BOBBIE GREENE KILBERG
SUBJECT:
Cases on Federal Funding
and Abortion
Sarah Massengale called last evening with the request
that I provide you this morning with information on the
amicus curiae brief filed in March, 1976 by Solicitor
General Bork in the case of Beal V. Doe. The brief
was filed in support of the petitioners request that
the U.S. Supreme Court grant certiorari to review a
1975 decision by the Third Circuit Court of Appeals
that held that the State of Pennsylvania was required
under the Medicaid program of Title XIX of the Social
Security Act to pay for non-therapeutic abortions.
Under Pennsylvania's Medicaid plan, payments for
abortions had been limited to those abortions which
were medically indicated, i.e. abortions certified by
physicians as necessary for the health of the woman or
necessary to prevent the birth of an infant with an in-
capacitating deformity or mental deficiency. Medicaid
payments for abortions that were not required for medical
reasons had been barred. This limitation had meant, in
effect, that women covered by Medicaid in Pennsylvania
who had voluntary, non-therapeutic abortions had to use
their own money to pay for the abortions.
In contrast to the Third Circuit decision, the Second and
Sixth Circuits had ruled that Title XIX permitted state
Medicaid plans to deny coverage of abortions that were not
medically necessary. In the 1975 Second Circuit decision
in Roe V. Norton, the Justice Department filed an amicus
brief in which it argued that the Medicaid statute required
only that necessary medical services be covered. Justice
&
FORD
GERALD
2
argued that since non-therapeutic abortions were not
"necessary medical services", states should have the
option to determine for themselves whether to include
those abortions in their Medicaid programs.
In his amicus brief, the Solicitor General stated that
the United States Government believed the Supreme Court
should review the Beal V. Doe case because of the con-
flicting decisions of the lower courts and the substantial
importance of the questions presented in the case to the
federal government's oversight responsibilities under
Title XIX. The Solicitor General further stated that
the Government was of the view that neither Title XIX of
the Social Security Act nor the Fourteenth Amendment to
the U.S. Constitution required a federally-funded state
Medicaid program to pay for abortions that were not
medically indicated.
The plaintiffs in the Beal V. Doe case had raised the
issue of both Title XIX and the equal protection clause
of the Fourteenth Amendment. The U.S. District Court
for the Western District of Pennsylvania ruled that the
Pennsylvania limitation of coverage to abortions that are
medically necessary did not contravene Title XIX but that
the state restriction as applied during the first trimester
of pregnancy did deny equal protection since it created
"an unlawful distinction between indigent women who choose
to carry their pregnancies to birth, and indigent women
who choose to terminate their pregnancies by abortion. "
The defendants appealed to the Third Circuit Court of
Appeals which held that Title XIX prohibits a participating
state from requiring a physician's certification of
medical necessity as a condition for funding during both
the first and second trimesters of pregnancy. In light
of this disposition, the court found it unnecessary to
address the constitutional question. Though the Second
and Sixth Circuits had ruled upon the statutory question,
the Solicitor General's amicus brief addressed itself
to both the statutory and constitutional questions since
they were both raised by the respondents in opposing the
granting of certiorari.
GERALD FORD
3
The Solicitor General's Office has informed me that the
U.S. Supreme Court has accepted certiorari in Beal V. Doe
but has not yet heard oral arguments on the merits. It
is also my understanding that the Solicitor General's
Office has decided not to file a separate brief on the
merits but I am attempting to double-check this.
The only other federal funding cases which I am aware of
involve hospitals and raise the general question of
whether a hospital that provides obstetric services is
required as a result of the 1973 Supreme Court abortion
decisions to also permit abortions to be performed on
their premises. Generally, the lower courts have found
that public hospitals do have a duty to permit abortions
to be performed on their premises but that private hos-
pitals do not. On December 1, 1975, the Supreme Court
refused to hear a challenge to a 1973 statute that per-
mitted federally aided private hospitals to decline, on
either religious or moral grounds, to permit abortions or
sterilizations. The specific case involved a hospital
in Montana run by a Roman Catholic Order.
Most of the litigation in regard to private hospitals has
turned on the question of government funding and "state
action. " The prevailing, though not unanimous, view of
the lower courts has been that the 1973 Supreme Court
abortion decisions prohibit only state-imposed bars to
abortion and do not cover bars imposed by private groups.
Most courts have held that even when the private hospitals
have sizable government funding, this funding is not
sufficient "state action" to bring the hospitals within
the law.
You may be interested to know that when Supreme Court
Justice Stevens was on the Seventh Circuit Court of
Appeals he wrote the majority opinion in the 1973 case of
Doe V. Bellin Memorial Hospital. In that case the Seventh
Circuit held as follows:
(1) that a private hospital, by accepting funds
under the Hill-Burton Act, did not surrender its
right to determine whether it would accept abortion
patients; and
FORD
CERALD
LIBRARY
4
(2) that notwithstanding the acceptance by private
hospital officials of financial support from both
Federal and state governments and the detailed
regulation of the hospital by the state, implemen-
tation of private hospital rules relating to abortions
did not constitute action "under color" of state
law within the meaning of civil rights statutes,
in the absence of a showing that the state sought
to influence hospitals' policy respecting abortions
either by direct regulation or by discriminatory
application of its powers or benefits.
CC:
Philip Buchen
Sarah Massengale
FORD
GERALD
LIBRARY
file
THE WHITE HOUSE
INFORMATION
WASHINGTON
September 21, 1976
MEMORANDUM FOR THE PRESIDENT
FROM:
SUBJECT:
JIM CANNON Jun
Study of Federal Funding for Abortions
This is a preliminary report on federal funding for abortions.
Background: On September 10th, in a meeting with the Catholic
Bishops, the question of the use of federal funds for abortions
was discussed. You indicated that you were directing the
Domestic Council and the Counsel's Office to study this issue.
Purpose of the Study: The purpose of this study is to deter-
mine what current laws do permit the use of federal funds for
abortions and to submit an evaluation of whether these funds
are used for abortions in ways that exceed the minimum required
by law.
Description: This study of the use of federal funds for
abortion is focusing on three basic elements:
-- The number of federal programs which make available
funds for abortion and the number of abortions provided
by these programs;
-- What is the statutory authority, or other legal basis,
for the availability of funds for abortion under the
various federal programs; and
-- An evaluation of whether the availability of funds
under the various federal programs goes beyond the
statutory or other legal minimum requirements.
All of the federal departments and agencies that have such
programs have been directed to provide pertinent information.
Our initial review of available data indicates that the figures
are so scattered, diffused and incomplete that we will never
get precise answers to your questions. However, in order to
get a thorough, objective and accurate report, we will have to
address the following difficulties:
FORD
GERALD
-2-
The diverse number of federal departments, agencies
and programs which have some authority for funding
abortions;
The variety of legal interpretations in different
jurisdictions and under diverse authorities; and
-- Precise statistics on the number of abortions are
difficult to verify because:
a) The different requirements for record keeping
under the various federal programs which fund
abortions; and
b) Abortions may be provided and recorded under
different medical diagnosis.
Legal History: The Supreme Court first ruled on the issue of
abortion on January 22, 1973 in two concurrent decisions. The
Court held 7-2 in both cases that on the basis of a constitu-
tional right to privacy States could not interfere with the
decision of a woman and her doctor to terminate a pregnancy
during its first three months. Further, while States could
exercise some control over abortion in the second three months,
on the basis of a legitimate state interest, they could consti-
tutionally ban abortion only in the last trimester.
A majority held that the historic rationale for laws controlling
abortion -- to protect the health and safety of a woman -- no
longer applied during the early stages of pregnancy.
But key questions remained unanswered, including the difficult
legal question of when life actually begins.
Pending Supreme Court Ruling: The Supreme Court has accepted
certiorari to a 1975 decision by the Third Circuit Court of
Appeals which held that the State of Pennsylvania was required
under Medicaid to pay for non-therapeutic abortions. A
memorandum on the case is attached at Tab A. This decision
could support the concept that abortions should be available
regardless of ability to pay, an issue that is raised in this
year's Labor-HEW appropriations abortion amendment.
The Court, which will convene in October, has not yet heard
oral arguments on the merits. The Solicitor General did file
an amicus curiae brief in March, 1976, supporting Pennsylvania's
request for review and its position that the state is not
required to pay under Medicaid for non-therapeutic abortion
(i.e. abortion on demand). The Solicitor General stated that
neither Title XIX of the Social Security Act nor the Fourteenth
Amendment to the U.S. Constitution required a federally-funded
state Medicaid program to pay for abortions that were not
FORD
medically indicated.
GERALD
LIBRARY
-3-
Specifically in regard to the Fourteenth Amendment, the
Solicitor General argued as follows:
Moreover, the fact that a woman has a qualified
right to an abortion does not imply a correlative
constitutional right to free treatment. Individuals
presumably have a "right" to undergo many recognized
medical procedures by a licensed physician but the
Equal Protection Clause does not affirmatively require
a state to cover the costs incurred by indigents in
undergoing such procedures.
1977 Labor-HEW Appropriations: As you know, the Labor-HEW
Appropriations bill includes an amendment restricting federal
funding of abortions. The effect of this provision is that
no funds in the appropriation can be used for abortions
"Except where the life of the mother would be endangered if
the fetus were carried to term".
The conference report is not as restrictive as the language
of the amendment and in some respects is contradictory;
for example, it indicates that abortion would be permitted
in cases of rape or incest.
The Conference Report states:
It is the intent of the Conferees to limit the financing
of abortions under the Medicaid program to instances
where the performance of an abortion is deemed by a
physician to be of medical necessity and to prohibit
payment for abortions as a method of family planning,
or for emotional or social convenience. It is not our
intent to preclude payment for abortions when the life
of the woman is clearly endangered, as in the case of
multiple sclerosis or renal disease, if the pregnancy
were carried to term. Nor is it the intent of the
Conferees to prohibit medical procedures necessary
for the termination of an ectopic pregnancy or for the
treatment of rape or incest victims; nor is it intended
to prohibit the use of drugs or devices to prevent
implantation of the fertilized ovum.
At issue here is whether the federal government will pay for
non-therapeutic abortions for the poor.
GERALE FORD
- 4 -
Preliminary Findings:
A. Current Policies: Our initial analysis indicates that
four agencies have legislative authority for medical services
which they have interpreted to include authority to permit
them to fund or provide abortions: HEW, DOD, VA, and Civil
Service Commission.
It is worth noting that the Congress has not acted consistently
to prohibit abortion as a means of family planning. For
example, AID, which has family planning authority, is prohibited
by Act of Congress from funding abortion. Similarly, in HEW
the Congress has prohibited abortion under Title X of the
Public Health Service Act (Family Planning) but has not
addressed this issue in family planning under Title XIX
(Medicaid) or Title XX (Social Services).
It is also worth noting that the Executive Branch over the
years has not been consistent. As an administrative matter,
HEW has decided that abortion can be a reimbursable service
under the family planning section of Title XX. CSA, however,
which has legislative authority for family planning has acted
administratively to prohibit the use of CSA funds for any
surgical procedures intended to cause abortion.
In December 1975, HEW, in order to comply with its General
Counsel's interpretation of the Supreme Court decision, ordered
all PHS facilities to provide abortions as a normal medical
procedure in all states. Previously this procedure was not
available where prohibited by State law, even if the State law
was unconstitutional.
In March 1971, as a result of an Executive Order by President
Nixon, the Secretary of Defense directed that military medical
facilities should observe applicable state laws regulating
abortion procedures in military medical facilities. In
September, 1975, in order to comply with the Supreme Court
decision of 1973, upon the ruling of its General Counsel,
DOD ordered all military facilities to provide therapeutic
abortions as a normal medical service for its beneficiaries
and their dependents. Outside of military medical facilities,
abortions are provided under the CHAMPUS program where this
practice is consistent with State law.
FORD & LIBRARY GERALD
- 5 -
The VA provides therapeutic abortions for a veteran when the
procedure approved by a properly constituted VA medical
board. Under the VA CHAMPUS program, survivors and dependents
of veterans who are or were totally disabled from a service-
connected disability can receive either therapeutic or
non-therapeutic abortions. This is the same benefit provided
certain dependents and survivors of active duty and retired
members of the Armed Forces under the CHAMPUS program and in
fact is administered by CHAMPUS as a result of a DOD/VA
agreement.
Under the Federal Employees Health Benefits Program the Civil
Service Commission provides abortion benefits for all covered
Federal employees and their families through the payment of
group health insurance premiums.
B. Current Practices: It is estimated that HEW is currently
financing between 250,000 and 300,000 abortions annually at a
cost of $45-55 million. No information exists for departmental
programs separating therapeutic from non-therapeutic abortions.
-- The Social and Rehabilitation Service provides most of
the funding for abortion services under Social Security
Act Title XIX (Medicaid) and Title XX (Social Services).
Expenditures for such abortion procedures must be
estimated since Social Services and Medicaid data
are not available on diagnostic or clinical classifi-
cation or surgical or medical procedures.
-- The Indian Health Service (IHS) provides comprehensive
health services to American Indians and Alaskan natives.
During fiscal year 1973, the IHS provided approximately
$750,000 for an estimated 3,100 abortion procedures.
-- The Bureau of Medical Services estimates that in Public
Health Service hospitals approximately $34,000 was
expended for abortion services in such hospitals during
fiscal year 1974.
In calendar year 1975 DOD provided 6,849 abortions in its own
facilities and 13,087 through CHAMPUS at an estimated cost of
$9 million.
During FY 76 only one veteran received a therapeutic abortion
in a VA hospital. Figures for dependents and survivors of
veterans are not kept separately from the CHAMPUS program
and are included with the DOD statistics.
GERALD FORD LIBRARY
- 6 -
The Federal Employees Health Benefits Program administered
by the Civil Service Commission is the single largest insured
group in the nation. There are no separately kept statistics
on the utilization of federal employee health benefits for
abortions.
Comments: The study is underway and we are proceeding to sort
out the legal issues and the details of current practices
under existing Federal programs.
The question of sorting out the statistics on what is the
current use of Federal funds for abortions will of necessity
involve a good deal of estimating. We will seek to provide
the most sound and responsible estimates that can be arrived
at.
Initial analysis indicates that in some cases it may be
difficult to determine the legal minimum requirements.
It is worth noting that the immediate legal context is
subject to change by:
a) Supreme Court decision in regard to the Pennsylvania
case over the required use of medicaid funds for
abortions,
b) Final resolution of the "Hyde" amendment in the Labor-
HEW Appropriations bill and subsequent legal challenges
to that provision.
In effect, the key question of federal funding for abortions
will in most instances crystalize into whether the poor are
denied a medical service which is available to the rest of
the population.
Summary: We can, at this stage, report that:
1. The data base in regard to funding abortions is
incomplete and confusing.
2. The legal basis for much of this funding is not always
clear and is in a process of change.
3. Both Congressional and Executive Branch actions have
lacked consistency.
4. The key issue is whether the federal government will
pay for non-therapeutic abortions for the poor.
BERALD FORD LIBRARY
THE WHITE HOUSE
WASHINGTON
September 4, 1976
MEMORANDUM FOR THE FILES
BM
FROM:
BOBBIE GREENE KILBERG
SUBJECT: Beal V. Doe and Other Cases Involving
Government Funding and Abortion
This is to provide information on the amicus curiae
brief file in March, 1976 by Solicitor General Bork
in the case of Beal V. Doe. The brief was filed in
support of the petitioners request that the U.S.
Supreme Court grant certiorari to review a 1975 deci-
sion by the Third Circuit Court of Appeals that held
that the State of Pennsylvania was required under the
Medicaid program of Title XIX of the Social Security
Act to pay for non-therapeutic abortions. Under
Pennsylvania's Medicaid plan, payments for abortions
had been limited to those abortions which were medically
indicated, i.e., abortions certified by physicians as
necessary for the health of the woman or necessary to
prevent the birth of an infant with an incapacitating
deformity or mental deficiency. Medicaid payments for
abortions that were not required for medical reasons
had been barred. This limitation had meant, in effect,
that women covered by Medicaid in Pennsylvania who had
voluntary, non-therapeutic abortions had to use their
own money to pay for the abortions.
In contrast to the Third Circuit decision, the Second
and Sixth Circuits had ruled that Title XIX permitted
State Medicaid plans to deny coverage of abortions that
were not medically necessary. In the 1975 Second Circuit
decision in Roe V. Norton, the Justice Department filed
an amicus brief in which it argued that the Medicaid
statute required only that necessary medical services
be covered. Justice argued that since non-therapeutic
abortions were not "necessary medical services", states
should have the option to determine for themselves
whether to include those abortions in their Medicaid
programs.
FORD i LIBRARY GERALD
-2-
In his amicus brief, the Solicitor General stated that
the United States Government believed the Supreme Court
should review the Beal V. Doe case because of the con-
flicting decisions of the lower courts and the substantial
importance of the questions presented in the case to the
federal government's oversight responsibilities under
Title XIX. The Solicitor General further stated that
the Government was of the view that neither Title XIX
of the Social Security Act nor the Fourteenth Amend-
ment to the U.S. Constitution required a federally-
funded state Medicaid program to pay for abortions
that were not medically indicated. Specifically in
regard to the Fourteenth Amendment, the Solicitor
General argued as follows:
Moreover, the fact that a woman has a qualified
right to an abortion does not imply a correlative
constitutional right to free treatment. Individuals
presumably have a "right" to undergo many recognized
medical procedures by a licensed physician but
the Equal Protection Clause does not affirmatively
require a state to cover the costs incurred by
indigents in undergoing such procedures.
The plaintiffs in the Beal V. Doe case had raised the
issue of both Title XIX and the equal protection clause
of the Fourteenth Amendment. The U.S. District Court
for the Western District of Pennsylvania ruled that the
Pennsylvania limitation of coverage to abortions that
are medically necessary did not contravene Title XIX
but that the state restriction as applied during the
first trimester of pregnancy did deny equal protection
since it created "an unlawful distinction between
indigent women who choose to carry their pregnancies
to birth, and indigent women who choose to terminate
their pregnancies by abortion." The defendants
appealed to the Third Circuit Court of Appeals which
held that Title XIX prohibits a participating state
from requiring a physician's certification of medical
necessity as a condition for funding during both the
first and second trimesters of pregnancy. In light
of this disposition, the court found it unnecessary
to address the constitutional question. Though the
Second and Sixth Circuits had ruled upon the statutory
question, the Solicitor General's amicus brief addressed
itself to both the statutory and constitutional ques-
tions since they were both raised by the respondents
in opposing the granting of certiorari.
is
FORD
GERALD
LIBRARY
-3-
The Supreme Court has accepted certiorari in Beal V.
Doe but has not yet heard oral arguments on the merits.
Government funding also is involved in a group of cases
involving the general question of whether hospitals that
provide obstetric services are required as a result of
the 1973 Supreme Court abortion decisions to permit
abortions to be performed on their premises. Generally,
the lower courts have found that public hospitals do
have a duty to permit abortions to be performed on
their premises but that private hospitals do not.
Most of the litigation in regard to private hospitals
has turned on the question of government funding and
"state action". The prevailing, though not unanimous,
view of the lower courts has been that even when
private hospitals have sizable government funding,
this funding is not sufficient "state action" to
require those hospitals to accept abortion patients,
absent a showing that the state sought to influence
a hospital's policy respecting abortions either by
direct regulation or by discriminatory application
of its powers or benefits. In addition, on December 1,
1975, the Supreme Court refused to hear a challenge to
a 1973 Federal statute that permitted federally aided
private hospitals to decline, on either religious or
moral grounds, to permit abortions or sterilizations.
FORD is GERALD LIBRARY
of
THE WHITE HOUSE
WASHINGTON
September 28, 1976
MEMORANDUM FOR: JIM CONNOR
THROUGH:
PHIL BUCHEN
T.
BK
FROM:
BOBBIE GREENE KILBERG
SUBJECT:
Cannon memo 9/21/76 re Study of
Federal Funding of Abortions
We participated in the drafting of the attached memo-
randum from Jim Cannon to the President, and we concur
in its contents.
Since this memorandum has not yet been sent into the
President, we would like to add an additional paragraph
to page 3 of the attachment at Tab A. That paragraph
will indicate that the Supreme Court has now accepted
certiorari in a case involving public hospitals and
the provision of abortion services. A re-typed page
which includes the additional paragraph is attached
(page 3 of Tab A).
Attachment
FORD : LIBRARY GERALD
-3-
The Supreme Court has accepted certiorari in Beal V.
Doe but has not yet heard oral arguments on the merits.
Government funding also is involved in a group of cases
involving the general question of whether hospitals that
provide obstetric services are required as a result of
the 1973 Supreme Court abortion decisions to permit
abortions to be performed on their premises. Generally,
the lower courts have found that public hospitals do
have a duty to permit abortions to be performed on
their premises but that private hospitals do not.
Most of the litigation in regard to private hospitals
has turned on the question of government funding and
"state action". The prevailing, though not unanimous,
view of the lower courts has been that even when
private hospitals have sizable government funding,
this funding is not sufficient "state action" to
require those hospitals to accept abortion patients,
absent a showing that the state sought to influence
a hospital's policy respecting abortions either by
direct regulation or by discriminatory application
of its powers or benefits. In addition, on December 1,
1975, the Supreme Court refused to hear a challenge to
a 1973 Federal statute that permitted federally aided
private hospitals to decline, on either religious or
moral grounds, to permit abortions or sterilizations.
On the question of public hospitals and the provision
of abortion services, the Supreme Court has accepted
certiorari in the case of Doe V. Poelker, 515 F.2d 541
(1975). In that case, the Eighth Circuit Court of
Appeals held that St. Louis, Missouri's policy pro-
hibiting all non-therapeutic abortions in its publicly
owned hospitals was unconstitutional "as a unwarranted
infringement on pregnant women's right to privacy and
as a denial of equal protection to indigent pregnant
women. " The Court of Appeals ruled that the two city-
owned hospital facilities had to be made available for
abortion services as they were for other medical services.
GERALD FORD LIBRARY
THE WHITE HOUSE
ACTION MEMORANDUM
WASHINGTON
LOG NO.:
Date:
September 28, 1976
Time:
FOR ACTION:
CC (for information):
Phil Buchen*
Jim Lynn
FROM THE STAFF SECRETARY
DUE: Date:
Thursday, September 30
Time:
10 A.M
SUBJECT:
Jim Cannon memo 9/21/76 re Study of Federal
Funding for Abortions
ACTION REQUESTED:
For Necessary Action
For Your Recommendations
Prepare Agenda and Brief
Draft Reply
X
For Your Comments
Draft Remarks
REMARKS:
*Phil Buchen - do you have any additional comments to make.
GERALD FORD LIBRARY
PLEASE ATTACH THIS COPY TO MATERIAL SUBMITTED.
If you have any questions or if you anticipate 1
Jim Connor
delay in submitting the required material, pleas
For the President
telephone the Staff Secretary immediately.
HEALTH.
Fale copy to: Im Bobbie
OF PATIENT
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
OFFICE OF THE SECRETARY
USA
WASHINGTON, D.C. 20201
OFFICE OF THE
GENERAL COUNSEL
October 1, 1976
MEMORANDUM FOR:
The Honorable Philip W. Buchen
Counsel to the President
FROM:
William H.
General Counsel
Taft, IV William H. 7aftn
SUBJECT:
Litigation Attacking the Anti-abortion
Provision in the Labor-HEW Appropriations
Act (Hyde Amendment)
We have been informed of the filing today of five separate law
suits challenging the constitutionality of the so called "Hyde
Amendment" to the HEW Appropriations Act. The Amendment, which
went into effect today, prohibits the use of any of the appropriated
funds "to perform abortions except where the life of the mother
would be endangered if the fetus were carried to term." "
All of the suits center upon the effect of the Amendment in denying
federal funds for abortions performed upon women welfare recipients
entitled to Medicaid.
The nature and status of the suits are as follows:
Eastern District of New York (Brooklyn). Two suits have been filed.
In one of them, brought by one or more planned parenthood groups,
Judge Dooling has issued a Temporary Restraining Order "preventing
the Secretary from "enforcing" the Hyde Amendment or withholding
reimbursement by reason of the Amendment." The TRO will be effective
for twenty days. In the meantime, we are to file a brief on October 12
in opposition to plaintiff's motion for a preliminary injunction.
There has been no action in the secondsuit, which was filed by a
city hospital association.
District of Columbia. Two separate suits have also been filed in
the District of Columbia -- one on behalf of welfare beneficiaries,
practicing physicians, and certain health clinics, and the other by
the National Abortion Rights Action League. Judge Waddy has issued
FORD is LIBRARY GERALD
- 2 -
a TRO in the first suit, and a hearing on the plaintiff's motion
for a preliminary injunction is set for October 12 before Judge
Sirica. No hearing has been sought or set in the other case.
District of New Jersey (Newark). Although an application for a
TRO accompanied the suit filed in New Jersey, Judge Barlow has
declined to issue such an order; and it is unlikely that any action
will be taken in this case before next week. We understand that
the suit has been brought by a family planning group associated
with Rutgers University.
We are coordinating the defense of these law suits with the
Department of Justice and will keep you advised of their status
and any other suits which may be filed on this subject.
CC: Secretary Mathews
FORD : LIBRARY
TION
11
DEPARTMENT OF HEALTH, EDUCATION, AND WELFARE
SECURITY
OFFICE OF THE SECRETARY
WASHINGTON, D.C. 20201
OFFICE OF THE
GENERAL COUNSEL
October 1, 1976
MEMORANDUM FOR:
The Honorable Philip W. Buchen
Counsel to the President
FROM:
William H. Taft, IV
General Counsel
William H. aft
SUBJECT:
Litigation Attacking the Anti-abortion
Provision in the Labor-HEW Appropriations
Act (Hyde Amendment)
We have been informed of the filing today of five separate law
suits challenging the constitutionality of the so called "Hyde
Amendment" to the HEW Appropriations Act. The Amendment, which
went into effect today, prohibits the use of any of the appropriated
funds "to perform abortions except where the life of the mother
would be' endangered if the fetus were carried to term."
All of the suits center upon the effect of the Amendment in denying
federal funds for abortions performed upon women welfare recipients
entitled to Medicaid.
The nature and status of the suits are as follows:
Eastern District of New York (Brooklyn). Two suits have been filed.
In one of them, brought by one or more planned parenthood groups,
Judge Dooling has issued a Temporary Restraining Order "preventing
the Secretary from "enforcing" the Hyde Amendment or withholding
reimbursement by reason of the Amendment." The TRO will be effective
for twenty days. In the meantime, WE are to file a brief on October 12
in opposition to plaintiff's motion for a preliminary injunction.
There has been no action in the secondsuit, which was filed by a
city hospital association.
District of Columbia. Two separate suits have also been filed in
the District of Columbia -- one on behalf of welfare beneficiaries,
practicing physicians, and certain health clinics, and the other by
the National Abortion Rights Action League. Judge Waddy has Issued
FORD
- 2 -
a TRO in the first suit, and a hearing on the plaintiff's motion
for a preliminary injunction is set for October 12 before Judge
Sirica. No hearing has been sought or set in the other case.
District of New Jersey (Newark). Although an application for a
TRO accompanied the suit filed in New Jersey, Judge Barlow has
declined to issue such an order; and it is unlikely that any action
will be taken in this case before next week. We understand that
the suit has been brought by a family planning group associated
with Rutgers University.
We are coordinating the defense of these law suits with the
Department of Justice and will keep you advised of their status
and any other suits which may be filed on this subject.
cc: Secretary Mathews
BERALD FORD VIBRARY
THE WHITE HOUSE
WASHINGTON
September 14, 1976
1
MEMORANDUM FOR: PHIL BUCHEN
9/14. "mided. be
Brube
FROM:
BOBBIE GREENE KILBERG
SUBJECT:
Draft Presidential Letters on Abortion
I received the attached memo from you for comment.
The question of a new Presidential letter on abortion
to be used by Correspondence was raised when Anne
Higgins presented a new version to Dave Gergen that
seemed to have a right to life rather than a states'
rights emphasis. Sarah and I reviewed and changed
Anne's version and the attached letters are the
result (Tab A).
Sarah and I were particularly concerned with two
points:
(1) that the letters state that the President
is bound by his oath of office to uphold
the law and thus the 1973 Supreme Court
abortion decisions; and
(2) that the letters not specifically mention
the Republican Platform.
Both these concerns have been taken care of in the
attached letters and, as you can see, they are very
similar to the letters that are presently being sent
out by Correspondence (Tab B).
Please have Shirley call me with your approval or
disapproval of the new letters.
Thanks.
FORD is LIBRARY GERALD
A
FORD LIBR
&
RRAD
THE WHITE HOUSE
WASHINGTON
September 10, 1976
MEMORANDUM FOR:
PHIL BUCHEN
ROBERT T. HARTMANN
JACK MARSH
MAX FRIEDERSDORF
JIM LYNN
DAVE GERGEN
FROM:
SUBJECT:
JIM CANNON Jan
Draft Presidential Letters on Abortion
Attached for your comments and recommendations are two
draft letters on the President's position on abortion to be
used by the correspondence section in replying to letters
on abortion. One is for the President's signature, the other
for Roland Elliott's.
Could you please reply to Sarah Massengale, Room 220, Ext. 6776
by Tuesday, September 14, close of business.
Thank you.
FORD i LIBRARY BERALD
LIB
ALD
FORD
i
THE WHITE HOUSE
WASHINGTON
DRAFT
Dear
President Ford has asked me to thank you for your
thoughtful message concerning the abortion issue. He
appreciates the concern which prompted you to share your
views on this matter.
As you know, the President is bound by his oath of
office to uphold the law as it was interpreted by the Supreme
Court in the 1973 decisions on abortion. As a matter of
personal philosophy, however, he has expressed his opposition
to abortion-on-demand, and has been on record supporting a
Constitutional Amendment that would return the power to
legislate on this matter to each state. He feels strongly
that abortion should only be available in very limited cases.
At the recent Eucharistic Congress in Philadelphia, the
President expressed his concern over the growing irreverence
for life. I am enclosing a copy of his remarks on that occasion.
The President is determined to do his best to serve the inter-
ests of all the American people. Toward this end he sincerely
appreciates hearing from concerned citizens like you.
Sincerely,
Roland Elliott
FORD & 07V839 LIBRARY
THE WHITE HOUSE
WASHINGTON
DRAFT
Dear
:
Thank you very much for your letter on the proposed
Human Life Amendments to the United States Constitution.
As President, I am bound by my oath of office to uphold the
law as it was interpreted by the Supreme Court in the 1973
decisions on abortion. As a matter of personal philosophy,
however, I am opposed to abortion on demand and am on record
supporting a Constitutional amendment that would return the
power to legislate on this matter to each state. My belief
is that abortion should be available only in very limited
cases.
At the recent Eucharistic Congress in Philadelphia
I expressed my concern over the growing irreverence for life.
I am enclosing a copy of my remarks for you.
I appreciate your taking the time to express your
views on this important subject.
Sincerely,
Gerald R. Ford
FORD is BERALD LIBRARY
RE: Abortion
THE WHITE HOUSE
WASHINGTON
February 27, 1976
Dear /5/
Thank you very much for your letter expressing
your concern about the serious matter of abor-
tion. AS President, I am bound by my oath of
office to uphold the law as it was interpreted
by the Supreme Court in the 1973 decisions on
abortion. As a matter of personal philosophy,
however, my belief is that abortion should be
available only in very limited cases.
I also feel that abortion is a matter better
decided == the State level and in 1973, as
Minority Leader of the House of Representatives,
I costomsored an amendment to restore to the
citizons of each State the power to regulate
abortion.
Your letter tells me that you truly care about
this problem. I share your concern. I hope
you will retain your high ideals and, by your
personal example, inspire others to care as
you co.
Sincerely,
/s/
revised - 3/25/76 - beo
///////
proofed - rks/beo
GRF:RLE:DS:/s/
(Rec. 3/25/76)
P-839 (2nd Rev.)
85
FORD & BERALD LIBRARY
P-40 (3rd. Rev.)
RE: Human Life Amendments to Constitution
(Con Abortion)
THE WHITE HOUSE
WASHINGTON
1976
GENERAL
WE 3
Dear /s/
Thank you very much for your letter on the
proposed Human Life Amendments to the
United States Constitution. As President
I am bound by my oath of office to uphold
the law as it was interpreted by the Supreme
Court in the 1973 decisions on abortion.
As a matter of personal philosophy, however,
my belief is that abortion should be avail-
able only in very limited cases.
I also feel that abortion is a matter better
decided at the State level and in 1973, as
Minority Leader of the House of Representatives,
I cosponsored an amendment to restore to the
citizens of each State the power to regulate
abortion.
I appreciate your taking the time to express
your views on this important subject.
Sincerely,
///s////
recut and revised 3/25/76 -lrc
////////
proofed lrc/rks
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GRF:RLE:DS:/s/
(Rec. 3/25/76)
P-40 (3rd Rev.)
60