1 410 U.S. 113 (1973).

2 See Henshaw, Forrest, & Vort, Van Abortion Services in the United States, 1984 and 1985, 19 Fam. Plan. Persp. 63, 64 (1987)Google Scholar (reporting that almost 16 million abortions were performed between 1973-1985); C.E. Koop, Medical and Psychological Effects of Abortions 3 (Jan. 9, 1989) (final draft report, available from the Department of Health & Human Services (HHS) through Freedom of Information Act) (reporting that over 20 million abortions were performed in the United States between 1973-1989). Of course, some women undergo more than one abortion. See Leach, The Repeat Abortion Patient, 9 Fam. Plan. Persp. 37 (1977)Google Scholar (reporting that “13 percent of U.S. women who obtained legal abortions in 1974 had also obtained abortions previously“).

3 C.E. Koop, supra note 2, at 3.

4 See The Boston Women's Health Book Collective, The New Our Bodies, Ourselves 310 (1984) [hereinafter Our Bodies, Ourselves] (reporting that approximately one million women underwent illegal abortions each year in the 1950s).

5 Forrest, Unintended Pregnancy Among American Women, 19 Fam. Plan. Persp. 76, 77 (1987)Google Scholar.

6 For example, since Roe the United States has been the stage for demonstrations in front of abortions clinics, abortion clinic bombings, mass demonstrations in Washington D.C. by pro-choice and pro-life groups and litmus test inquiries of Supreme Court nominees.

7 C.E. Koop, supra note 2, at 15 (reporting that “as many as half of the women who have undergone abortion … are likely to deny having done so); A. Speckhard, The Psychosocial Aspects of Stress Following Abortion 74 (1987) (reporting that nearly half of the women studied do not tell their own physicians or family members about their abortions, and half obtain abortions out of state).

8 The author uses the term “unbiased counseling” to mean a counselor who recognizes differences among women, providing information and emotional support on an individual basis, without advocating a particular moral view of abortion. Biased counseling means that a counselor favors one position over another. For example, a counselor advocating abortion as the only option for women would be taking a “pro-abortion” position. Likewise, someone who believes that abortions are morally wrong or sinful would be taking a “pro-life” position. A pro-life individual may view this Note's description of and advocacy for unbiased counseling as having a bias favoring abortion as a choice.

9 109 S. Ct. 3040 (1989).

10 See infra pp. 504-05.

11 The author follows the Supreme Court's use of maternal health originally defined in Roe to describe the health of a pregnant woman. See infra notes 109-10 and accompanying text.

12 Doctors perform five major types of abortions in the United States: (1) vacuum aspiration, in which the cervix is dilated and the fetal tissue is sucked out of the uterus; (2) dilation and curettage (D&C) in which the cervix is dilated and the fetal tissue is scraped out of the uterus; (3) dilation and evacuation (D&E) in which the cervix is dilated overnight, then the fetus is removed with an aspirator, forceps or a curette; (4) saline abortion, in which a salt water solution is injected into the amniotic sac inside the uterus to induce labor and expel the dead fetus between eight and twenty-four hours later; and (5) prostaglandin abortion in which the hormone prostaglandin — instead of saline — is injected into the amniotic sac. C.E. Koop, supra note 2, at 7-8; Our Bodies, Ourselves, supra note 4, at 293-304.

13 C. Gilligan, In a Different Voice 71-75 (1982) (describing the choice of abortion as follows:

14 See Preterm Institute, A Resource Manual for Abortion Counselors (1976) [hereinafter Resource Manual], Although most states have no requirements for abortion counselors, abortion providers may have their own requirements. For example, a typical requirement may include an “undergraduate degree or experiential equivalent in an area of human development.” Preterm Institute, A Guide for Training Abortion Counselors II-7 (1976) [hereinafter Training Abortion Counselors]. Not only is relevant experience required, abortion providers also train their counselors on the job. Training may include reading mate oprial as well as films, demonstrations, role-playing and direct observations of counseling sessions. Id. at III-1-6. This initial training may last a few months; however, experienced counselors receive training as well. Id. at III-1.

15 Resource Manual, supra note 14, at 1-2.

16 Id. at II-1-2; see also Kahn-Edrington, Abortion Counseling, 8 Counseling Psychologist 37 (1979)Google Scholar (the abortion counselor's goals include: providing information and support, making sure the woman copes with the crisis and managing “the many complex aspects of each individual's situation“).

17 Resource Manual, supra note 14, at 1-3; Dauber, Zalar, & Goldstein, Abortion Counseling and Behavioral Change, 4 Fam. Plan. Persp. 23, 25 (1972)Google Scholar [hereinafter Dauber].

18 Resource Manual, supra note 14, at II-4; Dauber, supra note 17, at 25.

19 Discussion of the following areas may facilitate decisionmaking: (1) the woman's total life picture including her social and economic situation, plans for the future, role expectations for her age and background; (2) attitudes toward her pregnancy, the abortion, the fetus and contraception; (3) her relationship with the father, other children and family members; (4) the reactions of others; (5) subconscious desires to be pregnant; (6) issues of self-control; (7) alternatives and possible outcomes; (8) motivation for abortion; and (9) fears or misconceptions regarding abortion. Kahn-Edrington, supra note 16, at 37.

20 Resource Manual, supra note 14, at 1-5, II-9, 11-16; Dauber, supra note 17, at 25.

21 Resource Manual, supra note 14, at 11-10.

22 Id. at II-15.

23 Id. at II-16.

24 See id. at 11-16 (“The abortion counselor must be sure that the patient has made her decision freely and that she understands the alternatives available.“).

25 Id. at 1-8; Kahn-Edrington, supra note 16, at 37 (women typically fear the abortion itself, permanent damage or later complications).

26 Resource Manual, supra note 14, at 1-9; Dauber, supra note 17, at 26.

27 See Henshaw, Freestanding Abortion Clinics: Services, Structure, Fees, 14 Fam. Plan. Persp., Sept.-Oct. 1982, at 248, 253 (abortion counseling described as, at the minimum, pre-abortion counseling).

28 Henshaw, Forrest & Van Vort, supra note 2, at 63.

29 See Resource Manual, supra note 14, at 1-9.

30 Landy, & Lewit, Administrative, Counseling and Medical Practices in National Abortion Federation Facilities, 14 Fam. plan. Persp. 257 (1982)Google Scholar.

31 Henshaw, supra note 27, at 253.

32 See Leach, supra note 2, at 38 (twenty-five percent of the repeat abortion patients received no counseling at their previous abortion); Henshaw, supra note 27, at 253 (ninety percent of the abortion facilities counsel first abortion patients).

33 Henshaw, supra note 27, at 253.

34 Id.; Landy & Lewit, supra note 30, at 257.

35 Henshaw, supra note 27, at 253.

36 Landy & Lewit, supra note 30, at 257.

37 Henshaw, supra note 27, at 253.

38 Id.; cf. Jipping, Informed Consent To Abortion: A Refinement, 38 Case W. Res. 379-80 (1987-88)Google Scholar (arguing that for-profit abortion clinics sell abortions because the employees depend on abortions for their income; thus, women receive inadequate or no information from these clinics).

39 Henshaw, supra note 27, at 253.

40 C.E. Koop, supra note 2, at 14, 17-18 (these professionals include “family physicians, psychiatrists, clinical psychologists, marriage and family therapists, social workers, pastoral counselors, and the clergy“).

41 Id. at 14, 18-19 (stating that men are similarly affected by the abortion). Some women may experience both positive and negative feelings, for example, relief that the abortion is over and sadness that the pregnancy occurred in the first place.

42 See, e.g., Abortion — the Emotional Implications 46 (R. Kalmar ed. 1977) (the figures represent the average results of 17 studies tabulated in this book). Depending upon the study, the percentage of women who experience post-abortion trauma ranges from seven percent to forty percent. E.g., The Abortion Experience (H. Osofsky & J. Osofsky eds. 1973); Freeman, Abortion: Subjective Attitudes and Feelings, 10 Fam. Plan. Persp. 153 (1987)Google Scholar; but cf. C.E. Koop, supra note 2, at 14-15 (criticizing many of the studies evaluating the psychological effects of abortion as suffering from “methodological flaws” such as inadequate control groups or sampling techniques).

43 Koop conducted his own research with various political groups as well as with women who underwent abortions. C.E. Koop, supra note 2, at 2-3.

44 E.g., A. Speckhard, supra note 7; Adler, Abortion: A Social-Psychological Perspective, 35 J. Soc. Issues 100 (1979)Google Scholar [hereinafter Adler, Abortion); Adler, Emotional Responses of Women Following Therapeutic Abortion, 45 Amer. J. Orthopsychiat. 446 (1975)Google Scholar [hereinafter Adler, Emotional Responses﹜; Freeman, supra note 42, at 150; Leach, supra note 2, at 37; Smith, A Follow-Up Study of Women Who Request Abortion, 43 Amer. J. Orthopsychiat. 574 (1973)Google Scholar; The Abortion Experience, supra note 42; Abortion — The Emotional Implications, supra note 42; Adolescent Abortion — Psychological and Legal Issues (G. Melton ed. 1986) [hereinafter Adolescent Abortion].

45 E.g., Adler, Emotional Responses, supra note 44, at 448; C.E. Koop, supra note 2, at 17, 19; A. Speckhard, supra note 7, at 40-41. The actual percentages of women who experience different symptoms of post-abortion trauma vary widely depending on the study cited. Speckhard focuses only on women who experience post-abortion trauma. As a result, one hundred percent of her subjects experienced grief. In her study, 30 women were referred to her from clinicians. Each woman was individually interviewed for 45 minutes. Each woman told her story to the researcher, then answered questions further describing her trauma. Id. at 17-19.

In the Adler study, 70 women were interviewed two to three months post-abortion. Adler, Emotional Responses, supra note 44, at 448. On average, these women experienced mild to moderate regret: 2.26 on a scale of one (no regret) to five (extreme regret). The interviews were held in a non-profit abortion counseling referral agency, the initial point of contact between the women and the researchers. The Adler study focused on women's positive and negative reactions following abortion. Id. at 447, 449. Therefore, her results differ from those in the Speckhard study.

46 E.g., Adler, Emotional Responses, supra note 44, at 448 (on average, the 70 women interviewed at the follow-up study experienced mild to moderate guilt); A. Speckhard, supra note 7, at 42 (reporting that ninety-two percent of the women felt anger, rage or hostility. Some of this anger focused on “significant others who were viewed as having taken a coercive role in the abortion decision making process.“).

47 A. Speckhard, supra note 7, at 42-43. In her study, eighty-nine percent of the women feared that other people would find out about their abortions, and fifty-eight percent increasingly distrusted men. These men included “potential or actual sex partners [and] doctors of obstetrics or gynecology.” Because of this mistrust, some women “refused to visit a doctor for a lengthy period following the abortion.” Id. at 42-45.

48 Id. at 48-51 (following the abortion, seventy-three percent of the women reported grief, jealousy or extreme guilt while in the presence of infants or small children).

49 Id. at 55, 57 (remorse and guilt often triggered the decreased self-esteem).

50 Id. at 53-54 reporting that seventy-seven percent of the women told no one or few others about the pregnancy or abortion fearing negative judgment or disbelief).

51 E.g., Freeman, supra note 42, at 152-53 (out of 106 women studied, thirteen percent reported feelings of depression four months after the abortion); C.E. Koop, supra note 2, at 19; A. Speckhard, supra note 7, at 58 (ninety-two percent of the women reported feelings of depression); The Abortion Experience, supra note 42, at 240 (out of 107 women interviewed, thirteen percent reported feelings of moderate to severe depression post-abortion).

The disparity between the results of the Speckhard study and the two others arises from the sample. While Speckhard interviewed only women who experienced post-abortion trauma, Freeman and The Abortion Experience researchers studied a more random group.

52 A. Speckhard, supra note 7, at 59 (reporting that eighty-one percent of the women were “preoccupied] with the aborted child“).

53 E.g., Adler, Abortion, supra note 44, at 103; C.E. Koop, supra note 2, at 19; The Abortion Experience, supra note 42, at 240 (reporting that thirteen percent of the women experienced guilt).

54 A. Shostak & G. Mclouth, Men and Abortion 105, 123-24 (1984); see also A. Speckhard, supra note 7, at 45-47 (thirty-five percent of the women reported deterioration of the relationships in part due to the woman's new fear of sex).

55 E.g., C.E. Koop, supra note 2, at 19; A. Speckhard, supra note 7, at 50-51 (fifty-eight percent of the women reported increased ilicit and illicit drug use).

56 A. Speckhard, supra note 7, at 50-51 (sixty-one percent of the women reported alcohol abuse).

57 Id. at 52, 54 (twenty-three percent of the women reported extreme weight gain and thirty-one percent reported extreme weight loss).

58 Id. at 41-42 (frequent crying was reported by eighty-one percent of the women studied).

59 M at 56-57 (sixty-five percent of the women reported suicidal thoughts).

60 Id. at 56-57 (thirty-one percent of the women reported attempted suicide, which typically involved an alcohol or drug overdose).

61 E.g., Adler, Abortion, supra note 44, at 103; Smith, supra note 44, at 580.

62 C.E. Koop, supra note 2, at 19.

63 E.g., A. Speckhard, supra note 7, at 15.

64 C.E. Koop, supra note 2, at 14.

65 A. Speckhard, supra note 7, at 60. External factors are those outside the woman's personality; internal factors are those intrinsic to the woman herself.

66 E.g., Adler, Abortion, supra note 44, at 104-05; C.E. Koop, supra note 2, at 15-16.

67 A. Speckhard, supra note 7, at 80-81.

68 Adler, Abortion, supra note 44, at 109.

69 A. Speckhard, supra note 7, at 85.

70 Adler, Emotional Responses, supra note 44, at 450. Single women undergo eighty-one percent of all abortions. C.E. Koop, supra note 2, at 10.

71 Adler, Abortion, supra note 44, at 109. Women without children make up approximately half of all aborters. Freeman, supra note 42, at 151.

72 Leach, supra note 2, at 39.

73 Resource Manual, supra note 14, at 11-11.

74 E.g., Adler, Abortion, supra note 44, at 109; C.E. Koop, supra note 2, at 15.

75 E.g., Adler, Emotional Responses, supra note 44, at 449; C.E. Koop, supra note 2, at 15.

76 Resource Manual, supra note 14, at 11-14.

77 C.E. Koop, supra note 2, at 15.

78 Minors undergo ten percent of all abortions. See id. at 10.

79 Adolescent Abortion, supra note 44, at 84-85.

80 See Adler, Emotional Responses, supra note 44, at 448-50.

81 Adler, Abortion, supra note 44, at 110.

82 Resource Manual, supra note 14, at 11-12.

83 Id.; Kahn-Edrington, supra note 16, at 38.

84 Kahn-Edrington, supra note 16, at 38.

85 Id.

86 A. Speckhard, supra note 7, at 76-78.

87 Adolescent Abortion, supra note 44, at 83.

88 Dauber, supra note 17, at 27.

89 Resource Manual, supra note 14, at II-1.

90 Adler, Abortion, supra note 44, at 108.

91 Smith, supra note 44, at 583.

92 Dauber, supra note 17, at 27.

93 Adler, Abortion, supra note 44, at 108.

94 See Dauber, supra note 17, at 25.

95 See Smith, supra note 44, at 583.

96 A. Speckhard, supra note 7, at 69-71.

97 Id. at 42-43.

98 Inadequate counseling includes: “insufficient or inadequate information about: the abortion itself; i.e., what the abortion would do to the woman and fetus; fetal development; options other than abortion; and risk of physical and emotional trauma.” Id. at 70-71.

99 Id. at 80-83.

100 Some women will experience post-abortion trauma even though they have received unbiased counseling. A number of these women may then erroneously blame the counselor for their post-abortion trauma. See C.E. Koop, supra note 2, at 20. Part III of this Note recommends increased pre-abortion counseling for all women, especially women at risk, and postabortion counseling for women experiencing post-abortion trauma.

101 Freeman, supra note 42, at 154.

102 Examples of these groups include Victims of Abortion, Women Exploited By Abortion (WEBA) and Women Exploited. Members of these groups are women who have undergone abortions followed by extreme post-abortion trauma. Women Exploited describes itself this way:

Brief of Amici Curiae, United Families Foundation and Women Exploited, at 1, City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983) (No. 81-746).

103 A. Speckhard, supra note 7, at 83.

104 Id.

105 Id. at 84.

106 Id.

107 Id.

108 Id.

109 Roe v. Wade, 410 U.S. 113, 153 (1973).

110 Id. at 179, 192.

111 Id. at 163.

112 Id. at 163-64. Strict scrutiny means that in order for a particular statute to survive, the government must demonstrate that it has a compelling interest in the issue and this interest “justifies the limitation of fundamental constitutional values.” 2 R. Rotunda, J. Nowak & J. Young, Treatise on Constitutional Law 324 (1986).

113 462 U.S. 416 (1983).

114 Id. at 430, 448. A counselor or other qualified individual may provide any necessary information to obtain a woman's consent as efficiently as the attending physician. Id. at 448.

115 Id. at 451.

116 476 U.S. 747 (1986).

117 Id. at 762; Akron, 462 U.S. at 444. In Akron, the ordinance stated:

Akron, Ohio, Codified Ordinances ch. 1870.06(B)(5) (1978), cited in Akron, 462 U.S. at 423 n.5.

In Thornburgh, the statute required the attending physician to provide the following information to each woman seeking an abortion: “[T]here may be detrimental physical and psychological effects [of abortion] which are not accurately foreseeable … [and there are] medical risks associated with the particular abortion procedure to be employed including … risks of infection, hemorrhage, [and] danger to subsequent pregnancies and fertility.” 18 Pa. Cons. Stat. Ann. § 3205 (Purdon 1983).

118 In Akron, the ordinance required a woman to receive the following information:

Akron, Ohio, Codified Ordinances ch. 1870.06(B)(3) (1978), cited in Akron, 462 U.S. at 423 n.5. The statute in Thornburgh had similar requirements, although the information provided was less graphic. 19 Pa. Cons. Stat. Ann. §§ 3205, 3208 (Purdon 1983).

119 Thornburgh, 476 U.S. at 759 (“The States are not free, under the guise of maternal health, to intimidate women into continuing pregnancies.“); Akron, 462 U.S. at 444 (concluding that a state may not mandate information “designed to influence the woman's informed choice between abortion or childbirth“).

120 See Akron, 462 U.S. at 471-72 (O'Connor, J., dissenting).

121 See id. at 473-74.

122 Roe v. Wade, 410 U.S. 113, 163 (1973).

123 Id.

124 The Court has clearly stated that state or federal government may refuse to fund most abortions. In Maher v. Roe, 432 U.S. 464 (1977) and Harris v. McRae, 448 U.S. 297 (1980), the Court held that an indigent woman has no constitutional right to a state or federally funded abortion, unless she needs an abortion to save her life.

If a state may refuse to fund abortions, it may also refuse to fund abortion counseling. In Bowen v. Kendrick, 108 S. Ct. 2562 (1988), the Court allowed federal grants to adolescent family planning programs which severed themselves from abortions or abortion counseling. To receive funds, the program must not voluntarily disclose information regarding abortion or abortion counseling. Id. at 2567. Thus, if a pregnant teenager desires abortion counseling, she must ask for it. Id. If she is ambivalent about her pregnancy, a delay might prevent her from making an informed decision. If she receives information on adoption counseling and pre-natal care, but not abortion counseling, she cannot make an informed decision about which choice — abortion, adoption or keeping — is best for her.

Two lower courts split on the issue of funding family planning facilities. In Commonwealth v. Secretary of Health & Human Services, 873 F.2d 1520 (1st Cir. 1989), the First Circuit held that Title X funded family planning facilities could not be prohibited from giving “non-directive” counseling to a pregnant woman. The prohibition of non-directive counseling by removing abortion as an option violated a woman's constitutional right to choose abortion. Id. at 1539. However, in State v. Bowen, 863 F.2d 46 (2d Cir. 1988), the Second Circuit affirmed without opinion the district court's holding that conditional funding does not violate the constitutional rights of the recipients or of women seeking abortions.

Commentators call the refusal to fund abortions or abortion counseling, while funding childbirth and counseling favoring childbirth, a type of “unconstitutional condition.” E.g., Sullivan, Unconstitutional Conditions, 102 Harv. L. Rev. 1413 (1989)Google Scholar. According to this doctrine “[g]overnment may not grant a benefit on the condition that the beneficiary surrender a constitutional right, even if the government may withhold that benefit altogether.” Id. at 1415. Professor Sullivan argued that courts fail to ask the right questions when deciding abortion and counseling funding cases. For example, in refusing to fund abortions, the Court asserted that “ ‘[penalties’ coerce, ‘non-subsidies’ do not.” To the Court, refusal to fund abortions is a non-subsidy. However, the Court failed to ask whether funding childbirth but not abortion “makes childbirth an option that poor women cannot refuse and thereby ‘coerces’ reproductive choice.” Similarly, even though the Title X statute requires “physical and financial” separation of public and private funds, the two courts reviewing these restrictions fail to ask “whether requiring rigid segregation of public and private expenditures itself burdens recipients’ constitutional rights.” Id. at 1467-68.

A state may fund abortion counseling to enhance maternal health. If a state chooses to fund abortion counseling, the legislature must first decide what types of counseling deserve funding. If a state funds counseling without first determining which counseling best helps women, the state may fund programs that are unproductive or diminish maternal health.

This Note recommends a framework of abortion counseling regulation. See infra pp. 507-12. Funding benefits women by lowering costs. Lowering costs allows more women access to abortion counseling, reducing the risk of post-abortion trauma. Therefore, this Note also recommends state funding for abortion counseling. However, arguing for funding presents problems given the case law, while the case law itself is problematic given its unconstitutional conditions. Because of the complexities of this issue, a complete discussion of funding for abortion counseling is beyond the scope of this Note.

125 428 U.S. 52 (1976).

126 Id. at 65.

127 Id. at 67.

128 Id. Physicians ordinarily obtain informed consent prior to surgery to avoid malpractice suits. However, the state does not write the content of other informed consent forms. If the state were to dictate the content, a physician's ability to give individualized treatment would be constrained.

129 City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 449 (1985).

130 109 S. Ct. 3040 (1989).

131 The relevant sections of the Missouri statute include:

Mo. Rev. Stat. § 1.205-188.215 (1986).

132 Webster, 109 S. Ct. at 3053.

133 The Court directed the Court of Appeals to vacate the District Court's judgment with instructions to dismiss with prejudice. Id. at 3053-54.

In declaring this issue moot, the Court ignored the free speech and privacy problems arising from the statute. The counseling restriction actually violates a publicly employed physician's first amendment right to provide a female patient with information concerning abortion. Brief Amicus Curiae of the American Civil Liberties Union, The National Education Association, People for the American Way, The Newspaper Guild, The National Writers Union and The Fresno Free College Foundation at 14, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989) (No. 88-605). Furthermore, “[b]y attempting to silence certain physicians, Missouri seeks to prevent them from performing their ethical and legal obligations to their patients consistent with existing medical science, and thereby deprive patients of information they need in order to decide whether to have a child.” Brief for Privacy as Amicus Curiae Supporting Appellees at 16, Webster v. Reproductive Health Servs., 109 S. Ct. 3040 (1989) (No. 88-605).

Although the Amici briefs focused on restrictions on physicians, the statute forbids any public employee from engaging in abortion when a woman's life is not in danger. Thus, women who usually rely on the state for their health care needs must either turn to private abortion providers to receive counseling, or decide whether to abort without any counseling. Both alternatives leave women with a high risk for post-abortion trauma. See infra note 166.

134 Webster, 109 S. Ct. at 3056-57 (plurality opinion joined by Rehnquist, J., Kennedy, J., and White, J.).

135 Id. at 3057 (“We do not see why the State's interest in protecting potential human life should come into existence only at the point of viability, and that there should therefore be a rigid line allowing state regulation after viability but prohibiting it before viability.“).

136 Id. at 3058.

137 In denning informed consent, the Court failed to include a woman's resolution of feelings and ambivalence about the abortion itself. In interpreting law on counseling, the Court never addressed post-abortion counseling, neglecting some women's need to grieve. These issues have not been argued before the Court. However, the Court is free, in dicta, to give directions or guidelines to the states on an issue related to the particular statute in dispute.

138 The Court treats minor females seeking abortions differently than adult women. Two variations on adolescent counseling appear in the cases: parental consent and parental notice.

Although the Court's doctrine remains unclear, it appears that a state may require a pregnant minor to obtain her parent's consent prior to her abortion, as long as she has the option of obtaining a judge's consent if she does not wish to tell her parents. Also, the state must allow a minor to demonstrate either that she is sufficiently mature to decide to abort or that an abortion is in her best interest. Bellotti v. Baird, 443 U.S. 622, 643-44 (1979) (plurality opinion) (Bellotti II). The Court reaffirmed the parental consent —judicial option in Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 493 (1983) (plurality opinion).

According to the Bellotti II court, adolescent females lack the constitutional rights of adult women for three reasons: “The peculiar vulnerability of children, their inability to make critical decisions in an informed, mature manner, and the importance of the parental role in child rearing.” Bellotti II, 443 U.S. at 634. Furthermore, a state may require a physician to notify an adolescent female's parents prior to performing the abortion. H.L. v. Matheson, 450 U.S. 398, 409 (1981). The Court reasoned that because parents counsel their children on important decisions, the decision to abort is important enough for mandated parental notice. Id. at 410-11.

Minors do have needs that may differ from those of adult women. Adolescent Abortion, supra note 44, at 75. Minors are less likely to acknowledge a pregnancy early on. Id. Or, they will look for assistance without telling their parents, again delaying the abortion. Id. at 76. Thus, adolescents obtain a higher percentage of late abortions, which carry more emotional trauma than early abortions. See A. Speckhard, supra note 7, at 76. However, some parents may not be the appropriate “counselors” in certain situations. For example, some parents may become so angry over their daughter's pregnancy that their anger would prevent a calm resolution of the problem. Therefore, they may not be the best evaluators of their daughter's desire to terminate her pregnancy. See Matheson, 450 U.S. at 439-40 (Marshall, J., dissenting).

On November 29, 1989, the Court heard arguments regarding the issue of parental notice in two cases, Ohio v. Akron Center for Reproductive Health, 854 F.2d 852 (6th Cir. 1988), petition for cert, filed, 57 U.S.L.W. 3851 (U.S.July 3, 1989) (No. 88-805), and the companion cases Hodgson v. Minnesota, Minnesota v. Hodgson, 853 F.2d 1452 (8th Cir. 1988), petitions for cert, filed, 57 U.S.L.W. 3852 (U.S.July 3, 1989) (No. 88-1125), (88-1309). The Boston Globe, Nov. 30, 1989, at 9, col. 1. In Akron Center, the Court will decide: (1) if a judicial bypass procedure is constitutionally required in a parental notice statute; (2) if the parental notification statute which contains the bypass procedure violates a minor's due process; and (3) if the minor's physician must give notice. In Hodgson v. Minnesota, the Court will decide: (1) if both biological parents must be notified; and (2) if a 48 hour waiting period, after constructive notice to the parents, is constitutional. In Minnesota v. Hodgson, the Court will decide if a state may constitutionally require a physician to attempt parental notification at least 48 hours before performing an abortion.

This Note considers minors a subset of women at risk, thus focusing only on counseling the minor herself. The issues of parental consent and parental notice, although touching on abortion counseling, are beyond the scope of this Note. For a discussion of the rights of minors to obtain abortions, see The Supreme Court, 1980 Term, 95 Harv. L. Rev. 142 (1981) (analyzing Matheson and arguing for a mature minor standard); Note, Judicial Consent to Abort: Assessing a Minor's Maturity, 54 Geo. Wash. L. Rev. 90 (1985) (arguing that state certified health professionals, rather than judges, should determine whether a minor is sufficiently mature to undergo an abortion).

139 See supra note 121 and accompanying text. Outside the legal system, informed consent contains two parts. Lasagna, The Professional-Patient Dialogue, Hastings Center Rep., Aug. 1983, at 10 (excerpted recommendations from the President's Commission for the Study of Ethical Problems in Medicine and Biomedical and Behavioral Research). First, patients must voluntarily choose their own medical care. Second, to do so, health care practitioners must provide the following information: patient condition and alternative treatments, including “benefits, risks, costs … and significant uncertainties surrounding any of this information.” Id. For women seeking abortions, informed consent then becomes the benefits, risks and costs associated with undergoing an abortion, continuing a pregnancy, keeping a baby or giving it up for adoption.

Informed consent does not mean “reciting the contents of a form that details the risks of particular treatments.” Id. Therefore, states should not impose their bias on women seeking abortions with mandated consent forms detailing only the risks of abortions. However, “[p]atients should have access to the information they need to help them understand their conditions and make treatment decisions.” Id. at 11 (emphasis added).

140 See id. at 9 (reporting that detailed informed consent forms may “disturb as well as enlighten“).

141 Our Bodies, Ourselves, supra note 4, at 224 (reporting that continuing a pregnancy has a mortality rate between 1 and 40 times that of a legal abortion); Id. at 385 (reporting that “cesareans, being major operations, carry two to four times greater risk of death than vaginal deliveries“).

142 Cohen, Posnerism, Pluralism, Pessimism, 67 B.U.L. Rev. 105 (1987) (describing adoption loss on the part of the birth mothers); see also C.E. Koop, supra note 2, at 23 (“To give birth and to place a child for adoption is an unselfish act that requires great emotional strength and courage.“).

143 C.E. Koop, supra note 2, at 12, 18; Note, supra note 138, at 105-06 (stating that teenage mothers frequently leave high school and ultimately face long-term poverty).

144 C.E. Koop, supra note 2, at 18 (citing studies in which children of mothers denied abortions suffered more emotionally than other children); Note, supra note 138, at 106 (stating that because of inadequate prenatal care, teenage mothers give birth to children with physical or mental disabilities at a higher rate than adult mothers).

145 See supra note 40 and accompanying text.

146 See C.E. Koop, supra note 2, at 24.

147 ” Webster v. Reproductive Health Servs., 109 S. Ct. 3040, 3057-58 (1989).

148 Justice Blackmun, the author of Roe, wrote a stinging dissent to the recommended dissolution of the trimester framework: “The plurality does not bother to explain [the] alleged flaws in Roe. Bald assertion masquerades as reasoning. The object, quite clearly, is not to persuade, but to prevail.” Id. at 3072 (Blackmun, J., concurring in part, dissenting in part).

149 “ The plurality would clear the way once again for government to force upon women the physical labor and specific and direct medical and psychological harms that may accompany carrying a fetus to term.” Id. at 3077 (Blackmun, J., concurring in part, dissenting in part).

150 In addition to the adolescent cases, next term the Court had planned to review Turnock v. Ragsdale, 841 F.2d 1358 (7th Cir. 1988). On November 22, 1989, Tumock was settled out of court after negotiations between the American Civil Liberties Union and the State of Illinois. Both sides wanted to settle. The ACLU feared losing the case. The state Attorney General, who is a candidate for governor, maintains a pro-choice stance. The Boston Globe, Nov. 23, 1989 at 1, col. 1. Even though the case was settled, it raised important issues which may appear before the court in future cases. One of the issues in Tumock would have asked whether a state may prevent an abortion counselor from having a financial interest in the woman's decision. The lower court held that this restriction interferes with the doctor-patient relationship by preventing the woman's physician from counseling her. 841 F.2d at 1373. The implication of this restriction, however, goes even further. Under this rule, abortion counselors may not work for an abortion provider, but must completely sever themselves from abortion providers. This rule clearly overrides the standard practice of the on-site abortion counseling described in Part I. If abortion providers do not employ counselors, more women will receive no pre-abortion counseling, thus increasing the likelihood of post-abortion trauma.

151 Of the 50 states only Florida and Oklahoma have statutes directly regulating abortion counselors.

A state legislature may simply not write a statute regulating abortion counselors. Or, a legislature may write a non-restrictiye statute describing or defining counseling, but providing no counseling requirements. Florida, for example, defines an “abortion referral or counseling agency” as “any person, group, or organization, whether funded publicly or privately, that provides advice or help to persons in obtaining abortions.” Fla. Stat. Ann. § 390.025 (West 1986).

152 Okla. Stat. Ann. tit. 63, § 1-736 (West 1984).

153 W. Va. Code § 16-2F-3 (1985) states:

154 E.g., Nev. Rev. Stat. Ann. § 442.252 (Michie 1987) (“No physician may perform an abortion in this state unless, before he performs it, he certifies in writing that the woman gave her informed written consent, freely and without coercion.“).

155 E.g., S.D. Codified Laws Ann. § 34-23A-10 (1986) (“All physicians performing abortions and facilities wherein abortions are performed shall make available to all women seeking abortions from them, upon request, information concerning professional social service and counseling service agencies in the state which provide a full spectrum of alternative solutions for problem pregnancies.“) (emphasis added).

156 E.g., Fla. Stat. Ann. § 390.025 (West 1986) (“An abortion referral or counseling agency … shall furnish such person with a full and detailed explanation of abortion, including the effects of and alternatives to abortion.“); Okla. Stat. Ann. tit. 63, § 1-736 (West 1984) (any hospital providing abortion counseling must include in the counseling “factual information, including explicit discussion of the development of the unborn child … [and] a thorough discussion of the alternatives to abortion and the availability of agencies and services to assist her if she chooses not to have an abortion.“).

157 E.g., Idaho Code § 18-609 (1987). A woman must receive the following information:

• (2) (a) Descriptions of the services available to assist a woman through a pregnancy, at childbirth and while the child is dependent, including adoption services, a comprehensive list of the names, addresses, and telephone numbers of public and private agencies that provide such services and financial aid available;

• (b) Descriptions of the physical characteristics of a normal fetus, described at two (2) week intervals, beginning with the fourth week and ending with the twentyfourth week of development, accompanied by scientifically verified photographs of a fetus during such stages of development. The description shall include information about physiological and anatomical characteristics, brain and heart function, and the presence of external members and internal organs during the applicable stages of development; and

• (c) Descriptions of the abortion procedures used in current medical practices at the various stages of growth of the fetus and any reasonable foreseeable complications and risks to the mother, including those related to subsequent child bearing.

158 E.g., id. (“If the attending physician reasonably determines that due to circumstances peculiar to a specific pregnant patient, disclosure of the material is likely to cause a severe and long lasting detrimental effect on the health of such pregnant patient, disclosure of the [specified information] shall not be required.“).

159 E.g., Tenn. Code Ann. § 39-4-202(b)(5) (1982) (“[N]umerous public and private agencies and services are available to assist her during her pregnancy and after the birth of her child … [and] her physician will provide her with a list of such agencies and the services available if she so requests … .“).

160 E.g., Idaho Code § 18-609 (1987); see note 157-58.

161 Idaho Code § 18-609(3) (1987).

162 R.I. Const, art I, § 2, states: “Nothing in this section shall be construed to grant or secure any right relating to abortion or the funding thereof.“

163 A state may refuse funding for abortions except to save the mother's life. E.g., S.D. Codified Laws Ann. § 28-6-4.5 (1984).

164 Guidelines may be written by the state legislature, or by the implementing agency. A few states already use guidelines as part of their abortion statutes. For example, the Maryland Department of Health and Mental Hygiene writes “rules and regulations for abortion referral services, including medical standards and guidelines for referral procedure and training for the staff.” MD. Health-Gen. Code Ann. § 20-205 (1987). Furthermore, the Idaho legislature allows doctors to perform abortions within certain guidelines. Guidelines include such factors as: (1) a woman's age; (2) her physical, emotional or psychological health; (3) pregnancy resulting from rape or incest; (4) potential stigma of unwed motherhood; (5) potential stress of giving birth to an unwanted child; or (6) any other factor the doctor deems appropriate when consulting with the pregnant woman. Idaho Code § 18-608 (1987).

165 In 1986, the average cost of a nonhospital first trimester abortion was $238.00. Henshaw, Forrest & Van Vort, supra note 2, at 69. Abortion clinics charged less than doctor's offices — $209.00 versus $272.00, on average.

166 In fact, the informed consent form and the mandated waiting period struck down in Akron and Thomburgh would have helped some women resolve ambivalent feelings. These women need to know more about the procedure and its physical and emotional risks. Such a statute could contain a provision for a mandated waiting period for women at risk only, thereby possibly avoiding unconstitutionality under Akron. This type of provision might mandate physicians or counselors to identify women at risk. Then, any identified woman would be required to wait for a state mandated period of time prior to giving consent or undergoing the abortion. Because many abortion providers refer ambivalent women for additional counseling in any case, this codification might not injure the abortion providers. See supra note 22 and accompanying text. Such a statute would injure women; even women at risk who would benefit from more time.

A mandated waiting period could harm women in the following ways. A woman who must wait must make two trips to the abortion provider. One might agree with Justice O'Connor's dissent in Akron, that two trips is a minimal inconvenience compared to undergoing an abortion one later regrets. See supra notes 120-21 and accompanying text.

In fact, the inconvenience may be minimal only in appearance. If a state may require a 24-hour waiting period to allow women time to reflect on their decision, it can be argued that a 48 hour, 72 hour or even a week waiting period is equally justifiable. A woman in France or Italy must wait one week after her initial consultation prior to undergoing an abortion. C. Tietze & S. Henshaw, Induced Abortion: A World Review 21-22 (1986). With every week of continued pregnancy, the risks of abortion-related complications increase. Our Bodies, Ourselves, supra note 4, at 294-97.

A state, by forcing a woman to wait, may actually increase her risk of post-abortion trauma. For example, if she is 12 weeks pregnant and the state forces her to wait one week, she may actually be forced to wait four weeks for medical reasons. The period between 12 and 16 weeks is too late for many doctors to perform vacuum aspiration and D&C abortions, and too early for them to perform saline or prostaglandin induction abortions. After the 12th week, the uterus becomes soft and is more susceptible to injury than before the 12th week. Id. at 296-97. Therefore, the use of vacuum aspiration and D&C — the most common and safest methods of first-trimester abortions — decreases dramatically after the 12th week. Id. at 296. However, before the 16th week, doctors cannot safely perform induction abortions because the amniotic sac is too small to be located accurately. Id.; see also supra note 12. Between the 12th and 16th week, doctors may safely perform a D&E abortion. However, D&E's are not widely available, because fewer doctors are trained to perform D&E's than other types of abortions. Our Bodies, Ourselves, supra note 4, at 303; see also supra note 12. Therefore, a woman may suffer the increased physical and emotional harm of an induction abortion, when she could have undergone a less traumatic first-trimester abortion.

A shorter waiting period may harm women as well. Allowing the state to set any waiting period removes the doctor's and counselor's ability to provide individualized treatment. See Akron, 462 U.S. at 450. Moreover, a state mandated waiting period interferes with a woman's privacy. See id. at 451. Furthermore, three times as many women experience anxiety and depression prior to abortion than after abortion. See Freeman, supra note 42, at 152.

167 Henshaw, supra note 27, at 253-54. The percentages of abortion providers requiring in-house pregnancy tests vary depending on the type of provider. For example, eighty-two percent of large clinics and eighty-nine percent of non-profit clinics provide pregnancy tests while only thirty percent of doctors’ offices provide tests. Overall, sixty-eight percent of providers provide a pregnancy test before performing an abortion.

168 A woman who receives her pregnancy test results from someplace other than the abortion provider may receive identification counseling from the abortion provider's telephone counselor. See infra note 170.

169 See supra notes 66-86 and accompanying text.

170 A telephone counselor is often a woman's first contact with the abortion provider. See Resource Manual, supra note 14, at 1-2. This counselor elicits certain information when making an appointment for an abortion, such as results of any pregnancy tests, age and marital status. Id.

A telephone counselor can also identify some women at risk fairly easily, including, those who are under age 18, single, childless or repeat aborters. Other factors may appear only after in-depth or in-pefson counseling, such as ambivalence about pregnancy or abortion, fafhily or religious conflicts or internalized feelings against nonmarital sex. Determining the trimester of pregnancy may require a medical examination in addition to counseling. A telephone counselor should make the initial determination of how many counseling sessions a woman may need prior to undergoing an abortion.

171 Brief for Amicus Curiae, American Psychological Association at 8, City of Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1982) (No. 81-716) (stating in opposition to the Akron ordinance that some women would be psychologically harmed by graphic and inaccurate descriptions of the abortion and fetal development).

172 MacGuire, A Catholic Theologian Visits an Abortion Clinic, 13 Ms., Dec. 1984, at 129 (describing a clinic which provides this information upon request).

173 A. Speckhard, supra note 7, at 77 (describing a situation where a woman was told by her doctor that a saline abortion would induce mild cramping, when in fact she experienced severe pain and fetal kicking, thus suffering emotional harm in addition to the physical pain).

174 Although this Note focuses on counselors, doctors must also treat the women with sensitivity and care to reduce the potential for emotional trauma. A doctor who aborts negligently can cause horrific trauma, as described by a woman who underwent a 12th week D&C:

Balamaci, Fischer, Greenwalt, Hoover, Kahn, Neves & Zahn, Cover, People, Aug. 5, 1985, at 83 [hereinafter Balamaci].

175 See Freeman, supra note 42, at 154.

176 See id.

177 Literature may be written specifically for the woman herself, her parents or her husband or boyfriend. See, e.g., M. Benson, The Last Choice (1989) (This somewhat mystical although very useful and touching booklet guides a woman through deciding whether to undergo an abortion, then gives healing techniques to overcome the feelings of loss. It is available from Sirius Endeavors, Wilmington, Delaware.); A. Baker, After her Abortion (1981) (This is a more traditional booklet written for the woman's family and friends describing how to give support while not rendering judgment. It is available from The Hope Clinic for Women, Ltd., Granite City, Illinois.).

178 C.E. Koop, supra note 2, at 19.

179 «. at 21:

During the pre-abortion counseling session, a trained counselor might be able to determine whether a woman is ambivalent. Because of the variability among women, a counselor should not presume that a woman does or does not feel ambivalent.

180 E.g., Margaret S. v. Edwards, 794 F.2d 994 (5th Cir. 1986) (holding that a statute requiring physicians to personally inform their patients of the options for fetal disposal, including, cremation, burial or medical waste, is unconstitutional).

181 C.E. Koop, supra note 2, at 11 (reporting that “ninety percent of women who have had abortions had them during the … first trimester of pregnancy (12 weeks)“).

182 Roe v. Wade, 410 U.S. 113, 164-65 (1975) (stating that the potential life of the fetus is protected most heavily during the third trimester).

183 Our Bodies, Ourselves, supra note 4, at 293.

184 A. Speckhard, supra note 7, at 76.

185 See supra note 17 and accompanying text.

186 See Henshaw, supra note 27, at 253-54. Most abortion providers perform abortions within four days of a woman's initial contact with them. Women wait slightly longer to obtain abortions from non-profit clinics and doctors’ offices than from for-profit clinics. Id.

187 Under the current system, a woman at risk wrongly identified may undergo an abortion without adequate counseling and emotional preparation, increasing the likelihood of post-abortion trauma. Under the recommended framework, her counseling begins a few days earlier. Therefore, if she is wrongly identified initially, she still has time to both review any written information provided by the counselor and obtain additional pre-abortion counseling. Both the written information and the additional counseling aid her decision, reducing the risk of post-abortion trauma.

188 See supra note 101 and accompanying text.

189 C.E. Koop, supra note 2, at 28.

190 Martz, McKillop, Foote, & Padgett, The Battle Over Abortion — Countdown: The Wars Within the States, NewsWeek, July 17, 1989, at 24. The following 22 states appear as battlegrounds between pro-choice and pro-life forces within state governments: Arizona, Colorado, Connecticut, Delaware, Illinois, Kansas, Maryland, Massachusetts, Michigan, Montana, Nevada, New Hampshire, New Jersey, North Carolina, North Dakota, Ohio, Oregon, Rhode Island, South Dakota, Tennessee, Virginia and Wisconsin.

191 A woman experiencing post-abortion trauma may feel or know that others do not support her grief, but would have supported her if she had experienced a miscarriage. Of course, a miscarriage differs from an abortion in a very basic way — a miscarriage is the involuntary termination of a wanted pregnancy, while an abortion is the voluntary termination of an unwanted pregnancy. See Our Bodies Ourselves, supra note 4, at 291, 426. However, the feelings of trauma are very similar. After experiencing a miscarriage, nearly all women feel grief, anger and guilt. These feelings may last for months, increasing on the date the baby would have been born. Id. at 427. One role of the abortion counselor is to recognize the similarities between abortion and grief following a miscarriage.

192 See supra notes 103-08 and accompanying text.

193 See supra notes 30-32 and accompanying text.

194 See Henshaw, supra note 27, at 253, 255.

195 C.E. Koop, supra note 2, at 3.

196 See supra note 42 and accompanying text.

197 See supra notes 87-95 and accompanying text.

198 See Our Bodies, Ourselves, supra note 4, at 224 (stating that a chance of death from undergoing an illegal abortion is 1 in 3000, compared to 1 in 100,000 from undergoing a legal first trimester abortion).

199 A woman who underwent a saline abortion after extensive pre-abortion counseling exemplifies this point of view with her story, which continues to underscore the need for training among all abortion personnel:

Balamaci, supra note 174, at 82-83.

200 See supra notes 102-05 and accompanying text.

201 E.g., Weba, Before you make the decision … , n.d. (not paginated) (“Weba members now realize how wrong their decision was … [our] goal is to educate all women about the effects of abortion with the hope they would seek an alternative“). One Weba member describes her “mistake” this way:

S. Walton, I Needed To Know The Facts Of Life, n.d. (not paginated) (emphasis added).

202 By “the opposition” I mean all pro-life groups. These groups align themselves under the National Right-to-Life Committee, which has an estimated membership of 11 million individuals and affiliates in every state. Our Bodies, Ourselves, supra note 4, at 313.

203 One might think that allowing women to grieve by experiencing abortion as the death of a child might encourage the pro-life movement's cause. However, the context in which the woman grieves influences how she feels about abortion. Because certain conservative groups provide only conditional acceptance, a woman must view her own abortion as murder for the group to emotionally support her. Post-abortion counseling led by a trained counselor requires no condition.