Two Wrongs Won’t Make It Right

Incest Case Exposes Shortcomings
of Judicial and Medical Reviews of Abortion Cases

By David C. Reardon, Ph.D.

On July 17th, 1998, a Michigan judge issued a temporary restraining order blocking the parents of a 12-year-old girl from transporting her to Kansas for a late-term partial-birth abortion. The girl was 28 weeks pregnant and had allegedly been impregnated by her 17-year-old brother. She and her family came to the United States from India about a year ago and speak little English.

Prosecutors began investigating the incest charge on July 7th after receiving a tip from one of the girl’s relatives, who had just learned the girl was pregnant. The girl’s brother has since been charged with first-degree criminal sexual conduct — a felony charge that could result in life in prison and possible deportation — but Macomb County Prosecutor Carl Marlinga has said he would accept a plea to a lesser charge.

Abortions after 24 weeks are banned in Michigan except to save the life of the mother. When the parents began to make arrangements for an abortion in Kansas, Marlinga asked Probate Judge Pamela Gilbert O’Sullivan to assume custody of the girl so she wouldn’t be rushed into an abortion by her embarrassed parents.

According to newspaper reports, there were indications that the girl did not want to have an abortion. The judge issued the restraining order until the girl could undergo a psychological evaluation. A week later, on July 24, Marlinga asked the judge to withdraw the restraining order. He said the parents’ attorneys had assured him that the girl and her parents had received counseling from experts who agreed an abortion would be in her best interests. The judge granted the prosecutor’s request without hearing any testimony or cross-examination of these experts.

At last report, the girl had undergone a late-term, partial birth abortion at George Tiller’s abortion business in Wichita, Kansas. She was about 29 weeks pregnant. Approximately 70 percent of babies born at 29 weeks gestation survive without major complications.

the remainder of this article will examine three points demonstrated by this case: (1) the judicial review process doesn’t work; (2) abortionists are recommending abortions despite evidence that it will not help and will almost certainly injure their patients; and (3) society has consistently failed to give incest victims the love and support they need.

Putting Girls at Risk: Non-Adversarial Proceedings

This case highlights a grave failing in the way courts review cases involving abortion for minors. This procedural problem exists whenever (1) the minor is a ward of the state, as in this case, or (2) the minor is seeking judicial bypass in a state with requirements for parental notice. The problem is that these hearings are non-adversarial. In other words, there is no attorney representing the position that abortion is harmful and not in the girl’s best interests.

In the Michigan case, the attorneys for this girl and her parents simply had to find “qualified experts” who were willing to provide sworn statements supporting the view that abortion was in her best interests.

Because there was no attorney representing the other view, these experts, their qualifications, and the medical basis for their conclusions were not subject to cross examination. Nor was the court given the opportunity to hear experts who held the opposite view–that abortion was contraindicated.

In short, the system ensures that judges hear only one side of the evidence–the pro-abortion side.

Since their rulings must be based on the preponderance of evidence presented, they have very little leeway to refuse the recommendation of any “expert” provided by an abortion clinic. The result is that judicial bypass hearings are almost always “rubber stamp” procedures. Without a process that provides for cross examination of witnesses and the introduction of testimony from experts who would dispute the girl’s maturity or the benefit of abortion to her, judges cannot actually “judge” the evidence.

Instead, the judge’s role has been reduced to simply certifying that the girl’s/clinic’s attorneys have met the minimum threshold requirement of providing an “expert opinion” that the girl is mature or would benefit from an abortion.

The one-sided nature of such hearings has already forced at least one judge to resign from the bench. In 1995, Omaha judge Joseph Moylan asked to be excused from his first judicial bypass hearing because Nebraska’s new law required that the presiding judge “shall” approve of the abortion if the preponderance of evidence supported the conclusion that the girl is mature or that the abortion would be in her best interests.

Moylan’s superior refused to excuse him from the case on the grounds that if one such request was granted, other judges would want out of abortion cases, too. Knowing that the evidence would all be presented from one side, and that he would be bound by the “preponderance” of that evidence, Moylan resigned rather than violate his conscience by participating in the approval of an abortion.

The solution to this problem is simple. State laws should be amended to require the courts to appoint an attorney to argue the position that (1) the abortion is contrary to the girl’s best interests, (2) she is not mature enough to make this dangerous choice without her parents’ knowledge, and/or (3) there is no evidence of abuse that would justify excluding the parents from being informed.

Sadly, none of the pro-life groups that have been notified of this problem in their parental notice laws have made any efforts to correct it. In the meantime, even judges who agree that abortion is dangerous can do little to protect our teenagers from the “experts.”

The “Mental Health” Loophole

When the Michigan story first made the headlines, pro-abortion groups immediately began to promote the notion that abortion was necessary to protect this girl’s mental health, or at least to facilitate her healing from the emotional trauma of incest. It is worth noting that while many abortion advocates offered their “expert” opinions, none offered any evidence to support their claims.

Why? Because there is not one shred of evidence to support the idea that abortion ever benefits a woman’s mental health even in general, much less in the specific case of an incest victim. Instead, this girl is at an extraordinary high risk of suffering severe emotional harm because of her abortion.

Listing just a few of the known risk factors for more severe post-abortion reactions clearly demonstrates that abortion was contraindicated for this girl. These risk factors include: being a teenager, having a second or third trimester abortion, having a history of mental illness or unresolved psychological trauma, being pressured to abort by others, and aborting in violation of prior moral beliefs against abortion.

Despite these risk factors, Tiller recommended a late-term abortion on the grounds that it would benefit the girl’s mental health.

Tiller made this recommendation to take advantage of a “loop hole” in Kansas law that allows for partial-birth abortion when “continuation of the pregnancy will cause a substantial and irreversible impairment of a major physical or mental function of the pregnant woman.”

Physical risks aside (and there is no evidence that childbirth would have been more dangerous to this girl than a late-term abortion procedure was) it is clear that the emotional damage associated with incest and incest pregnancy had already been done. There is no evidence that continuing the pregnancy through the last few weeks would have caused any additional “substantial” or “irreversible” emotional damage. Indeed, as will be shown below, all the evidence suggests that abortion would cause far more harm than good.

Hopefully the state attorney general will eventually force Tiller to face a grand jury and produce the medical evidence supporting his position that abortion was necessary to prevent this young girl, or any of his other late-term abortion patients, from suffering “substantial and irreversible impairment” of their mental health. It is certain that if Tiller is ever called to task, any “evidence” he produces will be long on personal opinions and bereft of any substantiated medical research.

Ignoring Victims to Promote Abortion

In the debate surrounding this case, it was clear that the most important voices are being drowned out by the politics of abortion. The silenced voices are those of other women who themselves became pregnant as a result of incest.

Our Elliot Institute research associates have interviewed more than a dozen such women. Some placed their children for adoption. Others submitted to abortion. Of the latter, none chose abortion freely.

One 15-year-old girl was drugged and strapped to the table by an abortionist who insisted that her parents knew best. Years later, she wrote to us: “I grieve every day for my daughter. I have struggled to forget the abuse and the abortion. I can do neither. All I think of is, ‘I should have done more, fought more, struggled more for the life of my child.'”

In every case we have reviewed, incest victims rejected abortion for one or all of the following reasons:

First, they saw their pregnancies as a way to expose and stop the incest.

Second, as victims of exploitation, they longed for a truly loving and non-exploitative relationship. They envisioned this hope as being fulfilled in a baby of their own whom they could love and protect.

Third, they had strong ideals about right and wrong. One of these ideas was that younger children, even unborn children, should always be protected.

Adults tend to dismiss the maternal instincts of a 12-year-old as a “playing with dolls” fantasy. But just because a 12-year-old may not be mature enough to raise a child by herself does not mean that she is incapable of loving and bonding with her pre-born child.

Incest victims grow up in a world of exploitation and deception. Yet abortion prolongs their victimization because by its very nature, it demands still more deception.

Because incest pregnancies are almost always discovered late, the unborn babies these girls are carrying are identical to the endoscopic images so popular with expectant parents: beautifully-formed babies who move their fingers, kick, cry, suck their thumbs, and peacefully sleep in the warmth of their mothers’ wombs. No doubt any adult pushing a young incest victim toward an abortion would immediately agree that such pictures and films must be carefully hidden from her.

And certainly the abortionists can never honestly tell these young girls how their babies will be dismembered. Such ghastly details would surely have sent her screaming from the room.

It takes a sophisticated mind, one that has mastered the philosophical arguments about choice and personhood, to justify a pragmatic choice for abortion. For girls who would have nightmares if they witnessed the killing of a deformed puppy, the thought of killing a human baby, much less their own child, is unfathomable.

So, they must be deceived, if only “for their own good.”

But such deceptions cannot be sustained forever.

Edith Young, an incest victim who was impregnated by her stepfather when she was 12, did not understand what had happened during her abortion until she pieced the facts together during a health class three years later. The revelation knocked her over like an eighteen-wheeler. She became depressed, suicidal, and alcoholic.

“There have been a countless number of nights when I’ve gone without sleep just so I wouldn’t dream,” Edith wrote at age 38. “Often I cry. Cry because I could not stop the attacks. Cry because my daughter is dead. And I cry because it still hurts . . . . My daughter, how I miss her. . . . Even though I didn’t have any say about the abortion, it has had a greater impact on my life than the rape/incest. . . . Problems are not ended by abortion, but only made worse.”

All the other incest victims we surveyed vehemently expressed the same belief: abortion made their problems worse. Yet society continues to turn a deaf ear to their stories. Like their parents, we want to offer them a “quick fix.”

This girl’s parents may have left Kansas with the feeling that though they had done something to correct an embarrassing family problem and restore their daughter’s life to the way it “should be.” But it was a false hope. Perhaps they have already begun to discover that it was all just a comforting lie.

Unfortunately, for the pregnant incest victim, this isn’t a choice between having a baby or not having a baby. The choice is really between having a baby or having an abortion.

The latter is a frighteningly real, traumatic, life-changing event. Like the incest, it too will remain in her memory forever.

Originally published in The Post-Abortion Review Vol. 6(3), Summer 1998. Copyright 1998 Elliot Institute.

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