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Ms. WEDDINGTON. And the third is one of the ironies of today's situation. Not only did Professor Horan teach Judy Mears, but Professor Witherspoon taught me when I was in law school.

I would request
Senator BAYH. Excuse me. Before we leave ERA
Ms. WEDDINGTON. Certainly.

Senator Bayh. You might, if the occasion arises, tell your colleagues in the Texas legislature that as the primary Senate sponsor of the equal rights amendment the Senator from Indiana had not the slightest thought that the equal rights amendment would affect abortion rights. It is an entirely different matter. It did not even come up in the debate on the matter.

And I think that is a red herring that has been brought into the field and has quite understandably caused concern in the minds of people who are here representing a different thought and a different position on this issue than you have.

Ms. WEDDINGTON. It would be very helpful and I will take those comments back for the hearing on Monday.

I would ask that my statement be made a part of the record if it is convenient, since much of it I will not need to repeat after the discussion with Judy Mears.

There are some basics, I think, to the whole abortion situation that are sometimes overlooked or easily forgotten. The first is that none of us are really for abortion. We are much more for family planning. But once the situation of an unwanted pregnancy occurs, then the question becomes what to do about it. I am one of those who is for all of the alternatives being available to all women, including the alternative of safe, legal abortion.

I have to disagree with Mr. Horan on his statement that there are 99 alternatives available. When a woman is pregnant and does not want to be, I see only two alternatives—to either continue the pregnancy or to terminate the pregnancy through an abortion.

I simply want to say in prefacing my remarks that none of us are out campaigning for more abortions. None of us are out campaigning that abortion is a good thing that everybody ought to have once a year. What we are saying is that where birth control fails or where it has not been used for whatever reason, there should be the alternative of a safe, legal abortion available to those women who choose it.

The second very basic thing I think we sometimes overlook is that there is a competing interest present, and that is the interest of the woman.

I will never forget talking to my father, who is a Methodist minister. He said for a long time when he thought of the issue of abortion he always thought of it in the abstract-woman versus every other consideration. He said it was quite different when he had a particular woman sitting across his desk asking for his counseling as a minister about what she should do in a particular fact situation. In that context, he did have to consider all of the different fact situations that enter in from the woman's point of view. For example, the physiological damage that sometimes can be involved in a pregnancy, particularly where it is a very young person that is involved, where it is a woman who has had pregnancies too closely spaced or where it is a woman who is over the age recommended for pregnancy.

One statistic that has come out from the Center of Disease Control is that there has been a 40-percent drop in maternal mortality since the first year that legal abortions became more widely available.

It seems to me that what the ERA is all about is trying to say that women should have full choices about how their lives are spent and what their life's plan is. And yet, when you say to a woman,

We will give you all those choices through the EŘA, but if you become pregnant, you must go through the pregnancy," we are in essence denying them the benefit of the equal rights amendment: the benefits in terms of pursuing their education, the benefits in terms of pursuing their jobs, the benefits in terms of pursuing their life's plan.

Certainly financial implications of pregnancy must be considered. The U.S. Department of Agriculture tells us that it now costs about $40,000 to raise a child from birth to his or her college education. Money is an important factor, especially for those in the lower-income levels.

You may have already seen it, but I would like to leave with you a copy of Arthur Fleming's statement to Senator Charles Percy on behalf of the Commission on Civil Rights. He points out that the Commission is not taking a stand for or against abortion on the moral issues involved. However, they do comment on the great impact of the issue on lower-income people and the availability of it. The Commission's sole position is that lower-income people should not have to go through all of the problems, which he details in his letter, that can arise if they do not have the availability of choice. I will leave that letter with your counsel, if I might.

Ms. WEDDINGTON. When you talked with Judy Mears about psychological factors, I believe you were referring to the question of the need for counseling. Perhaps the compromise that we could reach as legislators is a statute that would require all women who become pregnant to go through counseling, because our objection to statutes that require counseling only of those women who are considering the alternative of abortion through abortion clinics is that that counseling may indirectly become a way of discouraging the women from that particular alternative.

I have not seen the particular State statute involved that you discussed earlier. However, I do know that the legislation introduced in the Texas Legislature this session on the issue of counseling requires that the doctor have the woman sign a written statement that she has consented to the taking of the life of another individual, which is not my idea of counseling and informed consent.

So if we are going to say that all women who become pregnant should have counseling, that they should be counseled as to all of the alternatives, that they should be counseled about the different aspects of the impact of those alternatives on their lives, then I might agree.

I still think we must address the question of whether or not counseling is enforceable. An old saying indicates that what legislators try to do is to say that everyone should be good, and that is just not practical. However, if counseling is necessary for anybody, it is necessary for everybody who becomes pregnant because certainly there are psychological implications.

I can never forget as an attorney trying to formulate how I would tell Justice Burger what it would be like to be pregnant and not want to be. As many times as I practiced that delivery, I do not think I ever really got across to him the panic that a woman feels. I am not trying to say that men should not be involved in the abortion discussion, but perhaps there is a very special emotion that occurs within a woman when she finds that she is pregnant or fears that she is pregnant and does not want to be. That emotion is difficult to translate, but it certainly is something that must be considered.

In the Roe case there was a young unmarried woman who had the best job she had ever had, and she was afraid if her boss found out about the pregnancy she would lose her job. She was also very afraid of what society's judgment of her would be. There are implications in terms of tension between husbands and wives and many other implications we could talk about, but certainly there is a psychological impact.

i think we always must come back to the basic principle that we are not just talking about abortion. We are talking about a woman who is pregnant, and who, for various reasons, does not want to be. We are talking about the reasons why that is true, and then trying to make some judgment about what should be done.

Again, I think an interesting part of the abortion discussion is that it has only been since the Supreme Court decision and since many of us started working for making abortion available that those who are for compulsory pregnancy have really begun to work to make other alternatives available. They did not show near the interest in the availability of adoption, nor did they show near the interest in helping women who were unmarried and wanted to keep the child, as they have since we have tried to make abortions available.

I commend those actions but I think that all alternatives ought to be available. That is in essence what the Supreme Court said: that women should be allowed, as a matter of privacy, to determine for themselves whether they would continue or terminate a pregnancy. After weighing all of the other competing factors, the court felt that that interest was the predominant one. I submit that their decision was correct.

When we consider the decision of Roe v. Wade and what has happened since, the main thing to me is that numerous women in this country have been able to make a decision that they were not allowed to make prior to that time. They have avoided many consequences that I think none of us would say were good, by simply having the availability of that choice.

Judy Mears has covered three areas of cases since the Supreme Court decision: the regulation of clinics, the duties of hospitals, and medicaid coverage.

I would like to direct your attention for a moment to the issue of consent, both of parental consent and spousal consent. Once again, we should first talk about what we wish would happen. We would all wish that those persons who are minors and unmarried would discuss the situation of a pregnancy with their parents and feel that they could. Again, I will never forget talking to a Fort Worth physician who said that several times when girls have come to him, he has called their parents to discuss the possibility that the daughter might be pregnant and the parents' reaction was often, "Oh, my gosh, what will people think?" It took some counseling with the parents to get through that initial reaction.

We wish that everyone would talk with their parents, and we wish the parents would work with the pregnant girl through that crisis.

I think you and I would both agree that we would wish, where there is a marriage, that the two people would be able to talk about the situation and work out a solution agreeable to both.

However, given the fact that those alternatives, those best-of-allpossible-worlds, are not always possible, the question becomes if the girl and her parents cannot agree or if the man and his wife cannot agree, who makes the final decision? In my mind that has to be the woman, partially because of the consequences of the pregnancy on her that are not true of any of the other persons and partly because we are in the essence talking about her ability to make a choice.

And so it seems to me that the correct decision, while we wish things could be worked out, is that it must be the ability of the woman to make that decision finally for herself. That is what most of the court decisions have said.

Approximately 10 States have passed regulations that do require spousal consent, and approximately 13 States have passed laws that require parental consent. Several cases have overruled that kind of State requirement.

Coe v. Gerstein, which I cite in my written comments, used two different lines of reasoning. The first was that the court in Roe v. Wade talked about the woman's fundamental right. If it is the woman's right, her right must predominate above those of her parents or above those of the spouse. The second theme is that the court has said that the State does not have the right to veto an abortion in these kinds of situations; therefore, the State cannot delegate that veto authority to someone else, whether it be the parents or the husband.

In other words, the State cannot do indirectly what it cannot do directly by giving somebody else that power. Coe is one of the cases from Florida that does hold that you cannot require spousal consent or parental consent.

Dor v. Rampton from Utah is a similar case. Doe v. Doe is a case where a husband sought an injunction against his estranged wife to prevent her from having an abortion, and the court would not order the injunction. The court went on to say that it, as a court, would not order someone to do what was necessary to conceive or to avoid conception; therefore the court would not order one person to do something to make the other happy. The court did not feel that it could order an injunction to prevent the wife from having an abortion to please the husband.

Planned Parenthood of Central Missouri v. Danforth, which you have already discussed, is a case that the Supreme Court now has under appeal that possibly will finally decide the issue. On the issue of minor consent, let me also point out that many States now do give minors the right to consent to contraceptives and treatment for venereal disease without parental consent. It has always seemed to me that it is the same kind of conduct that might result in pregnancy or result in venereal disease. If a minor has the ability to make an informed decision about those matters, the minor should also have the ability to make an informed decision about abortion.

The States have said a minor who is unmarried cannot make the decision, but if a minor is married, they can. That simply, to me, is a distinction that does not make sense.

Senator Bays. Excuse me,just for my edification and for the record, what do the Missouri statutes hold relative to the capacity of a minor as far as birth control advice, counseling?

Ms. WEDDINGTON. I am not informed. May I see if there is anyone in the audience who is?

Senator Bayh. No, we can have it for the record.

Ms. WEDDINGTON. I would certainly be glad to look it up and submit it to you. [The material referred to follows:

CHAPTER 35. CONSENT TO MEDICAL TREATMENT Section 35.01. Who May Consent. 35.02. Consent Form. 35.03. Consent to Treatment by Minor.


Any of the following persons may consent to medical treatment of a minor when the person having the power to consent as otherwise provided by law cannot be contacted and actual notice to the contrary has not been given by that person:

(1) a grandparent;
(2) an adult brother or sister;
(3) an adult aunt or uncle;

(4) an educational institution in which the minor is enrolled that has received written authorization to consent from the person having the power to consent as otherwise provided by law;

(5) any adult who has care and control of the minor and has written authorization to consent from the person having the power to consent as otherwise provided by law; or

(6) any court having jurisdiction of the child.


(a) Consent to medical treatment under Section 35.01 of this code shall be in writing, signed by the person giving consent, and given to the doctor, hospital, or other medical facility that administers the treatment. (b) The consent must contain:

(1) the name of the minor;

(2) the name of one or both parents, if known, and the name of the managing conservator or guardian of the person, if either has been appointed;

(3) the name of the person giving consent and his relation to the minor child;

(4) a statement of the nature of the medical treatment to be given; and (5) the date on which the treatment is to begin.

SECTION 35.03. CONSENT TO TREATMENT BY MINOR (a) A minor may consent to the furnishing of hospital, medical, surgical, and dental care by a licensed physician or dentist if the minor:

(1) is on active duty with the armed services of the United States of America;

(2) is 16 years of age or older and resides separate and apart from his parents, managing conservator, or guardian, whether with or without the consent of the parents, managing conservator, or guardian and regardless of the duration of such residence, and is managing his own financial affairs, regardless of the source of the income;

(3) consents to the diagnosis and treatment of any infectious, contagious, or communicable disease which is required by law or regulation adopted pursuant to law to be reported by the licensed physician or dentist to a local health officer;

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