The Supreme Court yesterday upheld a Utah State law making it a crime for doctors to perform an abortion on a minor without notifying her parents.
The court, in a 6-to-3 decision, cited "family integrity" in allowing states to give parents the right to know that their daughter is seeking an abortion. Under prior Supreme Court rulings, however, parents still may not veto the child's decision to have one.
The Utah law upheld yesterday is similar to statutes in three other states, including Maryland, and may other states are expected to consider them in the wake of the new opinion.
The abortion decision was one of two major actions yesterday in which the court expounded at length on the impact of pregnancy. The court upheld the constitionality of satutory rape laws, challenged because they punish men for having sex with underage women but do not punish women for having sex with underage men.
In that rulling, the court said the distinction was justified because only the women can become pregnant. "They suffer disproportionately the profound physical, emotional and psychological consequences of sexual activity," Justice William Rehnquist wrote for a sharply divided court.
Rehnquist said the threat of criminal penalties was a deterrent for men. The underage women already have what he called a "roughly" equivalent deterrent: getting pregnant.
The abortion ruling was a victory for antiabortion forces whose campaign to nullify or limit the Supreme Court's 1973 decision legalizing abortion has been proceeding on two fronts: on one, anti-abortionists have been seeking congressional legislation or a constitutional amendment blocking abortions entirely. On the other, the groups have tried to devise ways of making abortions as difficult as possible to obtain. The Utah measure upheld yesterday was one of those ways.
But yesterday's Utah ruling was only a partial victory because it approved parental notice only for unmarried women under 18 who are living with and dependent on their parents.It also left open the possibility that such laws could not be applied to women demonstrating sufficient maturity or a special need to keep the abortion decision to themselves.
A 15-year-old Utah girl -- identified only as H. L. -- challenged the parental notice law after being informed by her doctor that he would not perform the abortion unless he first notified her parents. The girl was living with her parents at the time and dependent on them for her support.
Citing prior Supreme Court decisions striking down parental consent requirements, the girl argued that the notice requirement also violated her right to privacy.
The Utah law, Chief Justice Warren E. Burger wrote yesterday, "gives neither parents nor judges a veto power over the minor's abortion decision. . . . As applied to immature and dependent minors, the statute plainly serves the important considerations of family integrity and protecting adolescents. . . ."
Parents "have an important 'guiding role' to play in the upbringing of the children," Burger said, "which presumptively includes counseling them on important decisions."
In addition, parental notice provides "an opportunity for parents to supply essential medical and other information to a physician. The medical, emotional and psychological consequences of an abortion are serious and can be lasting," he said. "This is particularly so when the patient is immature. . . .
"The Utah statute is reasonably calculated to protect minors . . . by enhancing the potential for parental consultation concerning a decision that has potentially traumatic and permanent consequences."
The court rejected the argument that abortions were being singled out for special treatment in contrast to other surgical procedures, like childbirth, tha do not require parental notice. "If the pregnant girl elects to carry her child to term, the medical decisions to be made entail few -- perhaps none -- of the potentially grave emotional and psychological consequences of the decision to abort," he said.
Burger was joined by Justices Potter Stewart, Bryon White, Lewis Powell and Rehnquist. Justice John Paul Stevens concurred in a separate statement. Justices Thurgood Marshall, William Brennan and Harry Blackmum (aurthor of the 1973 decision legalizing abortion) dissented.
The statutory rape case stemmed from the arrest of a 17-year-old California boy identified only as Michael M. The youth had sexual intercourse with a 16-year-old girl, who had been drinking, as they waited for a bus in Sonoma County, Calif. The girl submitted to the boy's advances, but not until he struck her in the face for resisting. The state did not charge him with forcible rape, however, but with the traditional crimed used when an older man has consensual sex with a woman under 18: statutory rape.
Thirty seven states, including Maryland, have in recent years passed gender-neutral sex offense laws. Under prior court rulings, gender distinctions in the law must be justified by a "substantial" reason. California argued that the reason in the statutory rape laws was that only women were the "victims" of the act because only they could become pregnant. Rehnquist, with Burger, Stewart and Powell, ruled that the justification was sufficient to uphold the law.
Gender distinctions can be valid where they "realistically" reflect differences between men and women that are relevant to the law in question, they said. "We are satisfied not only that the prevention of illegitimate pregnancy is at least one of the 'purposes' of the statute but that the state has a strong interest in preventing such pregnancy. At the risk of stating the abvious, teen-age pregnancies, which have increased dramatically over the last two decades, at least one of the 'purposes' of the statute but that the state has a strong interest in preventing such pregnancy. At the risk of stating the obvious, teen-age pregnancies, which have increased dramatically over the last two decades, have significant social, medical and economic consequences for both the mother and her child, and the state.
"Of particular concern to the state is that approximately half of all teen-age pregnancies end in abortion," the justices said. ". . . The statute at issue here protects women from sexual intercourse at an age when those consequences are particularly severe."
Justice Harry Blackmun filed a concurring statement in the case.
Justice Brennan was joined in a dissent by Justices White and Marshall. Justice Stevens wrote a separate dissent.
In a third action yesterday, the court ruled unconstitutional a Louisiana law that made the husband "head and master" of propety, allowing him to mortgage the jointly owned family home without telling the wife about it.
That gender distinction, which Louisiana has already repealed, "embodies the type of express gender-based discrimination that we have found unconstitutional," Marshall wrote for the court. He was joined in the opinion in Kirchberg vs. Feestra by Burger, Brennan, White, Blackbmum, Powell and Stevens. Stewart wrote a separate concurrence that Rehnquist joined.