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SUPREME COURT OF THE UNITED STATES
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No. 88-1125
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1990.SCT.43379 <http://www.versuslaw.com>; 497 U.S. 417, 110 S.
Ct. 2926, 111 L. Ed. 2d 344, 58 U.S.L.W. 4957
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*fn* decided: June 25, 1990.
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HODGSON ET AL.
v.
MINNESOTA ET AL.
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CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH
CIRCUIT.
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Janet Benshoof argued the cause for petitioners in No. 88-1125 and
respondents in No. 88-1309. With her on the briefs were Rachel N. Pine,
Lynn M. Paltrow, Kathryn Kolbert, John A. Powell, William Z. Pentelovitch,
and Rebecca A. Palmer.
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John R. Tunheim, Chief Deputy Attorney General of Minnesota, argued
the cause for respondents in No. 88-1125 and petitioners in No. 88-1309.
With him on the briefs were Hubert H. Humphrey III, Attorney General,
Catharine F. Haukedahl, Solicitor General, Kenneth E. Raschke, Jr.,
Assistant Attorney General, and John B. Galus, Special Assistant Attorney
General.*fn**
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Stevens, J., announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, IV, and VII, in which
Brennan, Marshall, Blackmun, and O'connor, JJ., joined, an opinion with
respect to Part III, in which Brennan, J., joined, an opinion with respect
to Parts V and VI, in which O'connor, J., joined, and a dissenting opinion
with respect to Part VIII. O'connor, J., filed an opinion concurring in
part and concurring in the judgment, post, p. 458. Marshall, J., filed an
opinion concurring in part, concurring in the judgment in part, and
dissenting in part, in which Brennan and Blackmun, JJ., joined, post, p.
461. Scalia, J., filed an opinion concurring in the judgment in part and
dissenting in part, post, p. 479. Kennedy, J., filed an opinion concurring
in the judgment in part and dissenting in part, in which Rehnquist, C. J.,
and White and Scalia, JJ., joined, post, p. 480.
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Author: Stevens
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JUSTICE STEVENS announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, IV, and VII, an opinion
with respect to Part III in which JUSTICE BRENNAN joins, an opinion with
respect to Parts V and VI in which JUSTICE O'CONNOR joins, and a
dissenting opinion with respect to Part VIII.
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A Minnesota statute, Minn. Stat. 144.343(2)-(7) (1988), provides, with
certain exceptions, that no abortion shall be performed on a woman under
18 years of age until at least 48 hours after both of her parents have
been notified. In subdivisions 2-4 of the statute the notice is mandatory
unless (1) the attending physician certifies that an immediate abortion is
necessary to prevent the woman's death and there is insufficient time to
provide the required notice; (2) both of her parents have consented in
writing; or (3) the woman declares that she is a victim of parental abuse
or neglect, in which event notice of her declaration must be given to the
proper authorities. The United States Court of Appeals for the Eighth
Circuit, sitting en banc, unanimously held this provision
unconstitutional. In No. 88-1309, we granted the State's petition to
review that holding. Subdivision 6 of the same statute provides that if a
court enjoins the enforcement of subdivision 2, the same notice
requirement shall be effective unless the pregnant woman obtains a court
order permitting the abortion to proceed. By a vote of 7 to 3, the Court
of Appeals upheld the constitutionality of subdivision 6. In No. 88-1125,
we granted the plaintiffs' petition to review that holding.
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For reasons that follow, we now conclude that the requirement of
notice to both of the pregnant minor's parents is not reasonably related
to legitimate state interests and that subdivision 2 is unconstitutional.
A different majority of the Court, for reasons stated in separate
opinions, concludes that subdivision 6 is constitutional. Accordingly, the
judgment of the Court of Appeals in its entirety is
affirmed.
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I
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The parental notice statute was enacted in 1981 as an amendment to the
Minors' Consent to Health Services Act. The earlier statute, which remains
in effect as subdivision 1 of 144.343 and as 144.346, had modified the
common-law requirement of parental consent for any medical procedure
performed on minors. It authorized "[a]ny minor" to give effective consent
without any parental involvement for the treatment of "pregnancy and
conditions associated therewith, venereal disease, alcohol and other drug
abuse."*fn1 The
statute, unlike others of its age,*fn2 applied to abortion services.
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The 1981 amendment qualified the authority of an "unemancipated
minor"*fn3 to give effective consent to an abortion by
requiring that either her physician or an agent notify "the parent"
personally or by certified mail at least 48 hours before the procedure is
performed.*fn4 The term "parent" is defined in subdivision
3 to mean "both parents of the pregnant woman if they are both living." No
exception is made for a
divorced parent, a non-custodial parent, or a biological parent who never
married or lived with the pregnant woman's mother.*fn5 The statute does provide, however, that if
only one parent is living, or "if the second one cannot be located through
reasonably diligent effort," notice to one parent is sufficient.*fn6 It also makes exceptions for cases in which
emergency treatment prior to notice "is necessary to prevent the woman's
death," both parents have already given their consent in writing, or the
proper authorities are advised that the minor is a victim of sexual or
physical abuse.*fn7 The statute subjects a person performing an
abortion in violation of its terms to criminal sanctions and to civil
liability in an action brought by any person "wrongfully denied
notification."*fn8 Subdivision
6 authorizes a judicial bypass of the two-parent notice requirement if
subdivision 2 is ever "temporarily or permanently" enjoined by judicial
order. If the pregnant minor can convince "any judge of a court of
competent jurisdiction" that she is "mature and capable of giving informed
consent to the proposed abortion," or that an abortion without notice to
both parents would be in her best interest, the court can authorize the
physician to proceed without notice. The statute provides that the bypass
procedure shall be confidential, that it shall be expedited, that the
minor has a right to court-appointed counsel, and that she shall be
afforded free access to the court "24 hours a day, seven days a week." An
order denying an abortion can be appealed on an expedited basis, but an
order authorizing an abortion without notification is not subject to
appeal.*fn9 The
statute contains a severability provision, but it does not include a
statement of its purposes. The Minnesota Attorney General has advised us
that those purposes are apparent from the statutory text and that they
"include the recognition and fostering of parent-child relationships,
promoting counsel to a child in a difficult and traumatic choice, and
providing for notice to those who are naturally most concerned for the
child's welfare."*fn10 The District Court found that the primary
purpose of the legislation was to protect the well-being of minors by
encouraging them to discuss with their parents the decision whether to
terminate their pregnancies.*fn11 It also found that the legislature was
motivated by a desire
to deter and dissuade minors from choosing to terminate their
pregnancies.*fn12 The Attorney General, however, disclaims
any reliance on this purpose.*fn13
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II
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This litigation was commenced on July 30, 1981, two days before the
effective date of the parental notification statute. The plaintiffs
include two Minnesota doctors who specialize in obstetrics and gynecology,
four clinics providing abortion and contraceptive services in metropolitan
areas in Minnesota, six pregnant minors representing a class of pregnant
minors, and the mother of a pregnant minor. Plaintiffs alleged that the
statute violated the Due Process and Equal Protection Clauses of the
Fourteenth Amendment and various provisions of the Minnesota
Constitution.
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Based on the allegations in their verified complaint, the District
Court entered a temporary restraining order enjoining the
enforcement of subdivision 2 of the statute. After a hearing, the court
entered a preliminary injunction which still remains in effect. App. 31.
The District Court refused, however, to rule on the validity of the
judicial bypass procedure in advance of trial.*fn14
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In 1986, after a 5-week trial, the District Court concluded that both
the two-parent notification requirement and the 48-hour waiting period
were invalid. It further concluded that the definition of the term
"parent," which is carried over into the notification requirement, was not
severable from the remainder of the statute. The court declared the entire
statute unconstitutional and enjoined the defendants from enforcing
it.
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A three-judge panel of the Court of Appeals affirmed. The court first
held that a compulsory notification requirement is invalid if it does not
provide the pregnant minor with the option of an alternative court
procedure in which she can demonstrate either her maturity or that
performance of an abortion without notification would be in her best
interests. App. to Pet. for Cert. in No. 88-1125, p. 62a. Second, relying
heavily on the findings of the District Court concerning the impact of a
two-parent notice requirement on families in which the parents are
divorced, separated, or unmarried, the panel also concluded that the
unconstitutional notification requirement could not be saved by the
judicial bypass. The court reasoned that a mature minor and her custodial
parent are in a better position than a court to determine whether
notifying the non-custodial parent would be in the child's best interests
and that they should not be forced to submit to a "Hobson's choice"
between an unconstitutional notice requirement and a burdensome court
bypass.*fn15 The panel further held
that the two-parent notice requirement was not severable.*fn16
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The panel opinion was vacated, and the Court of Appeals reheard the
case en banc. 853 F.2d 1452 (CA8 1988). The court
unanimously and summarily rejected the State's submission that the
two-parent notice requirement was constitutional without any bypass
procedure. Id., at 1456-1457. The majority concluded, however, that
subdivision 6 of the statute was valid. It agreed with the District Court
that the development of a full factual record may demonstrate that a
facially valid statute is "unconstitutional in operation," id., at 1459,
and that "the . . . detailed factual findings concerning the general
difficulties of obtaining an abortion in Minnesota and the trauma of the
bypass procedure, compared to its effectiveness, raise considerable
questions about the practical wisdom
of this statute." Ibid. In the majority's opinion, however, those
questions were for the legislature to consider because the statute served
valid state interests: the interest in "'encouraging an unmarried pregnant
minor to seek the help and advice of her parents in making the very
important decision whether or not to bear a child,'"*fn17 as well as the independent interest of
the parents in the upbringing of their children.*fn18
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After noting that the State did not challenge the District Court's
findings, id., at 1462, the court concluded that these findings placed
undue emphasis on one-parent and no-parent households. For even though the
two-parent notice requirement may not further the interests of the
pregnant minor in such cases, the rights of "best-interest" and mature
minors were nevertheless protected by the bypass procedure. More
importantly, "as applied to all pregnant minors, regardless of their
family circumstances, the district court did not consider whether parental
and family interests (as distinguished from the interests of the minor
alone) justified the two-parent notice requirement." Id., at 1463. The
court wrote:
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"The district court enjoined the entire statute because of the impact
of the two-parent notice requirement primarily upon one group of pregnant
minors, without considering the effect of the bypass, or the parental and
family interests which have been recognized by the Supreme Court. In
concentrating upon the impact of the statute on the pregnant minor not
living with both parents, and on the mature or non best-interest pregnant minor,
the district court gave only limited consideration to the 50% or more
pregnant minors who live with both parents and to pregnant minors who are
immature and whose best interests may require parental involvement. The
district court's determination that an undue burden on the one group
renders the statute unconstitutional for all is contrary to the Supreme
Court's decision that a notice-consent/bypass procedure plainly serves
important state interests and is narrowly drawn to protect only those
interests. . . . Considering the statute as a whole and as applied to all
pregnant minors, the two-parent notice requirement does not
unconstitutionally burden the minor's abortion right." Id., at 1464-1465
(citation omitted).
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The Court of Appeals also rejected the argument that the 48-hour
waiting period imposed a significant burden on the minor's abortion right,
finding that the waiting period could run concurrently with the scheduling
of an appointment for the procedure. Accordingly, the court reversed the
judgment of the District Court without reaching the question of
severability.*fn19
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In dissent, two members of the court criticized the majority for
ignoring "the evidence amassed in a five-week trial," for relying on the
judicial bypass procedure "to uphold an unconstitutional two-parent
notification requirement," and for creating "a new right, apparently of
constitutional dimension, for non-custodial parents to receive notice of
their minor children's activities." Id., at 1466. One of the dissenters
joined a third dissenter in expressing the opinion that "a single-parent
notification requirement would withstand constitutional challenge." Id.,
at 1472. We granted certiorari, 492 U.S. 917 (1989). III
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There is a natural difference between men and women: Only women have
the capacity to bear children. A woman's decision to conceive or to bear a
child is a component of her liberty that is protected by the Due Process
Clause of the Fourteenth Amendment to the Constitution. See Harris v.
McRae, 448 U.S. 297, 316-318 (1980); Carey v.
Population Services International, 431 U.S. 678, 685,
687 (1977); Cleveland Bd. of Education v. LaFleur, 414 U.S. 632, 639-640 (1974); Roe v. Wade, 410 U.S. 113, 152-153 (1973); id., at 168-170 (Stewart, J., concurring);
Eisenstadt v. Baird, 405 U.S. 438, 453 (1972);
Griswold v. Connecticut, 381 U.S. 479, 502-503 (1965)
(WHITE, J., concurring in judgment). That Clause, as interpreted in those
cases, protects the woman's right to make such decisions independently and
privately, see Whalen v. Roe, 429 U.S. 589, 598-600,
and n. 23 (1977), free of unwarranted governmental
intrusion.
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"Moreover, the potentially severe detriment facing a pregnant woman,
see Roe v. Wade, 410 U.S., at 153, is not mitigated
by her minority. Indeed, considering her probable education, employment
skills, financial resources, and emotional maturity, unwanted motherhood
may be exceptionally burdensome for a minor. In addition, the fact of
having a child brings with it adult legal responsibility, for parenthood,
like attainment of the age of majority, is one of the traditional criteria
for the termination of the legal disabilities of minority. In sum, there
are few situations in which denying a minor the right to make an important
decision will have consequences so grave and indelible." Bellotti v.
Baird, 443 U.S. 622, 642 (1979) (Bellotti II)
(opinion of Powell, J.).
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As we stated in Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74 (1976), the right to make this
decision "do[es] not mature and come into being magically only when one
attains the state-defined age of majority." Thus, the constitutional
protection against unjustified state intrusion into the process of
deciding whether or not to bear a child extends to pregnant minors as well
as adult women.
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In cases involving abortion, as in cases involving the right to travel
or the right to marry, the identification of the constitutionally
protected interest is merely the beginning of the analysis. State
regulation of travel and of marriage is obviously permissible even though
a State may not categorically exclude nonresidents from its borders,
Shapiro v. Thompson, 394 U.S. 618, 631 (1969), or
deny prisoners the right to marry, Turner v. Safley, 482 U.S.
78, 94-99 (1987). But the regulation of constitutionally
protected decisions, such as where a person shall reside or whom he or she
shall marry, must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made. Cf. Turner v.
Safley, supra; Loving v. Virginia, 388 U.S. 1, 12
(1967). In the abortion area, a State may have no obligation to spend its
own money, or use its own facilities, to subsidize nontherapeutic
abortions for minors or adults. See, e. g., Maher v. Roe, 432
U.S. 464 (1977); cf. Webster v. Reproductive Health Services, 492 U.S. 490, 508-511 (1989); id., at 523-524
(O'CONNOR, J., concurring in part and concurring in judgment). A State's
value judgment favoring childbirth over abortion may provide adequate
support for decisions involving such allocation of public funds, but not
for simply substituting a state decision for an individual decision that a
woman has a right to make for herself. Otherwise, the interest in liberty
protected by the Due Process Clause would be a nullity. A state policy
favoring childbirth over abortion is not in itself a sufficient
justification for overriding the woman's decision or for placing
"obstacles -- absolute or otherwise -- in the pregnant woman's path to an
abortion." Maher, 432 U.S., at 474; see also Harris
v. McRae, 448 U.S., at 315-316. In
these cases the State of Minnesota does not rest its defense of this
statute on any such value judgment. Indeed, it affirmatively disavows that
state interest as a basis for upholding this law.*fn20 Moreover, it is clear that the state
judges who have interpreted the statute in over 3,000 decisions
implementing its bypass procedures have found no legislative intent to
disfavor the decision to terminate a pregnancy. On the contrary, in all
but a handful of cases they have approved such decisions.*fn21 Because the Minnesota statute
unquestionably places obstacles in the pregnant minor's path to an
abortion, the State has the burden of establishing its constitutionality.
Under any analysis, the Minnesota statute cannot be sustained if the
obstacles it imposes are not reasonably related to legitimate state
interests. Cf. Turner v. Safley, 482 U.S., at 97;
Carey v. Population Services International, 431 U.S., at 704 (opinion of Powell, J.); Doe v. Bolton, 410 U.S.
179, 194-195, 199 (1973).
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IV The
Court has considered the constitutionality of statutes providing for
parental consent or parental notification in six abortion cases decided
during the last 14 years.*fn22 Although the Massachusetts statute
reviewed in Bellotti v. Baird, 428 U.S. 132 (1976)
(Bellotti I), and Bellotti II required the consent of both parents, and
the Utah statute reviewed in H. L. Page 437} v. Matheson, 450
U.S. 398 (1981), required notice to "the parents,"*fn23 none of the opinions in any of those
cases focused on the possible significance of making the consent or the
notice requirement applicable to both parents instead of just one. In
contrast, the arguments in these cases, as well as the extensive findings
of the District Court, are directed primarily at that distinction. It is
therefore appropriate to summarize these findings before addressing the
constitutionality of the 48-hour waiting period or the two-parent
notification requirement, particularly since none of the findings has been
challenged in either this Court or the Court of Appeals.
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Approximately one out of every two marriages ends in divorce. 648 F.
Supp. 756, 768 (Minn. 1986). Unrebutted evidence indicates that only 50%
of minors in the State of Minnesota reside with both biological parents.
Ibid. ; App. 125-126. This conclusion is substantially corroborated by a
study indicating that 9% of the minors in Minnesota live with neither
parent and 33% live with only one parent. 648 F. Supp., at 768.*fn24 The
District Court found -- on the basis of extensive testimony at trial --
that the two-parent notification requirement had particularly harmful
effects on both the minor and the custodial parent when the parents were
divorced or separated. Relations between the minor and absent parent were
not reestablished as a result of the forced notification, thereby often
producing disappointment in the minor "when an anticipated reestablishment
of her relationship with the absent parent d[id] not occur." Moreover,
"[t]he reaction of the custodial parent to the requirement of forced
notification is often one of anger, resentment and frustration at the
intrusion of the absent parent," and fear that notification will threaten
the custody rights of the parent or otherwise promote intrafamily
violence. Tragically, those fears were often realized:
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"Involuntary involvement of the second biological parent is especially
detrimental when the minor comes from an abusive, dysfunctional family.
Notification of the minor's pregnancy and abortion decision can provoke
violence, even where the parents are divorced or separated. Studies have
shown that violence and harassment may continue well beyond the divorce,
especially when children are involved.
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". . . Furthermore, a mother's perception in a dysfunctional family
that there will be violence if the father learns of the daughter's
pregnancy is likely to be an accurate perception." Id., at
769.
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The District Court further found:
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"Twenty to twenty-five percent of the minors who go to court either
are accompanied by one parent who knows and consents to the abortion or
have already told one parent of their intent to terminate their pregnancy.
The vast majority of these voluntarily informed parents are
women who are divorced or separated from spouses whom they have not seen
in years. Going to court to avoid notifying the other parent burdens the
privacy of both the minor and the accompanying parent. The custodial
parents are angry that their consent is not sufficient and fear that
notification will bring the absent parent back into the family in an
intrusive and abusive way." Ibid.
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The District Court also found that the two-parent notification
requirement had adverse effects in families in which the minor lives with
both parents. These effects were particularly pronounced in the
distressingly large number of cases in which family violence is a serious
problem. The court found that many minors in Minnesota "live in fear of
violence by family members" and "are, in fact, victims of rape, incest,
neglect and violence."*fn25 The District Court found that few minors
can take advantage of the exception for a minor who declares that she is a
victim of sexual or physical abuse because of the obligation to report the
information to the authorities and the attendant loss of privacy. See
Findings 46 and 47, F.
Supp., at 764.*fn26 This concern about family violence helps
to explain why the District Court found that in many instances the
requirement that both parents be notified actually impairs family
communication. Minors who otherwise would inform one parent were unwilling
to do so when such notification likely would also involve the parent in
the torturous ordeal of explaining to a court why the second parent should
not be notified. The court found:
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"Minors who ordinarily would notify one parent may be dissuaded from
doing so by the two-parent requirement. A minor who must go to court for
authorization in any event may elect not to tell either parent. In these
instances, the requirement that minors notify both biological parents
actually reduces parent-child communication." Id., at 769.*fn27
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The great majority of bypass petitions are filed in the three
metropolitan counties in Minnesota, where courts schedule bypass hearings
on a regular basis and have in place procedures for hearing emergency
petitions. Id., at 762. Courts in the nonmetropolitan areas are acquainted
with the statute and, for the most part, apply it conscientiously, but a
number of counties are served by judges who are unwilling to hear bypass
petitions. Id., at 763. Aside from the unavoidable notification
of court officials, the confidentiality of minors has been maintained.
Ibid.
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During the period between August 1, 1981, and March 1, 1986, 3,573
judicial bypass petitions were filed in Minnesota courts. All but 15 were
granted.*fn28 The judges who adjudicated over 90% of
these petitions testified; none of them identified any positive effects of
the law.*fn29 The court experience produced fear,
tension, anxiety, and shame among minors, causing
some who were mature, and some whose best interests would have been served
by an abortion, to "forego the bypass option and either notify their
parents or carry to term." Finding 44, 648 F. Supp., at 763. Among parents who supported their daughters in the bypass
proceedings, the court experience evoked similar reactions.*fn30
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Scheduling petitions in the Minnesota court typically required minors
to wait only two or three days for hearings. The District Court found,
however, that the statutory waiting period of 48 hours was frequently
compounded by a number of other factors that "commonly" created a delay of
72 hours, id., at 764-765, and, "in many cases" a delay of a week or more
in effecting a decision to terminate a pregnancy. Id., at 765. A delay of
that magnitude increased the medical risk associated with the abortion
procedure to "a statistically significant degree." Finding 43,
648 F. Supp., at 763. While recognizing that a
mandatory delay following the notice to a minor's parent served the
State's interest in protecting pregnant minors, the court found that that
interest could be served by a shorter waiting period. Id., at
779-780.
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At least 37 witnesses testified to the issue whether the statute
furthered the State's interest in protecting pregnant minors. Only two
witnesses testified that a two-parent notification statute did minors more
good than harm; neither of these witnesses had direct experience with the
Minnesota statute. Summarizing its findings on the question whether the
statute as a whole furthered the State's interests, the District Court
wrote:
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"Of the remaining witnesses who spoke to the issue whether Minn. Stat.
144.343 effectuates the State's interest in protecting pregnant minors,
all but four of these
are personally involved in the statute's implementation in Minnesota. They
are judges, public defenders, guardians ad litem, and clinic counselors.
None of these witnesses testified that the statute has a beneficial effect
upon the minors whom it affects. Some testified the law has a negligible
[e]ffect upon intra-family communication and upon the minors'
decision-making process. Others testified the statute has a deleterious
effect on the well-being of the minors to whom it applies because it
increases the stress attendant to the abortion decision without creating
any corresponding benefit. Thus five weeks of trial have produced no
factual basis upon which this court can find that Minn. Stat.
144.343(2)-(7) on the whole furthers in any meaningful way the state's
interest in protecting pregnant minors or assuring family integrity." Id.,
at 775.
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Focusing specifically on the statutory requirement that both parents
be notified, the District Court concluded:
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"The court finds that this requirement places a significant burden
upon pregnant minors who do not live with both parents. Particularly in
these cases, notification of an abusive, or even a disinterested, absent
parent has the effect of reintroducing that parent's disruptive or
unhelpful participation into the family at a time of acute stress.
Similarly, the two-parent notification requirement places a significant
obstacle in the path of minors in two parent homes who voluntarily have
consulted with one parent but not with the other out of fear of
psychological, sexual, or physical abuse toward either the minor or the
notified parent. In either case, the alternative of going to court to seek
authorization to proceed without notifying the second parent introduces a
traumatic distraction into her relationship with the parent whom the minor
has notified. The anxiety attending either option tends to interfere with
and burden the parent-child communication the
minor voluntarily initiated with the custodial parent.
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". . . Indeed, 20 to 25% of minors seeking judicial authorization to
proceed with an abortion without parental notification are accompanied to
court by one parent, or at least have obtained the approval of one parent.
In these cases the necessity either to notify the second parent despite
the agreement of both the minor and the notified parent that such
notification is undesirable, or to obtain a judicial waiver of the
notification requirement, distracts the minor and her parent and disrupts
their communication. Thus the need to notify the second parent or to make
a burdensome court appearance actively interferes with the parent-child
communication voluntarily initiated by the child, communication assertedly
at the heart of the State's purpose in requiring notification of both
parents. In these cases, requiring notification of both parents
affirmatively discourages parent-child communication." Id., at
777-778.
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V
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Three separate but related interests -- the interest in the welfare of
the pregnant minor, the interest of the parents, and the interest of the
family unit -- are relevant to our consideration of the constitutionality
of the 48-hour waiting period and the two-parent notification
requirement.
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The State has a strong and legitimate interest in the welfare of its
young citizens, whose immaturity, inexperience, and lack of judgment may
sometimes impair their ability to exercise their rights wisely. See
Bellotti II, 443 U.S., at 634-639 (opinion of Powell,
J.); Prince v. Massachusetts, 321 U.S. 158, 166-167
(1944).*fn31 That interest, which justifies state-imposed
requirements that a minor obtain his or her parent's consent before
undergoing an operation, marrying, or entering military service, see
Parham v. J. R., 442 U.S. 584, 603-604 (1979);
Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 95 (WHITE, J., concurring in part and dissenting in part); id.,
at 102-103 (STEVENS, J., concurring in part and dissenting in part),
extends also to the minor's decision to terminate her pregnancy. Although
the Court has held that parents may not exercise "an absolute, and
possibly arbitrary, veto" over that decision, Danforth, 428
U.S., at 74, it has never challenged a State's reasonable
judgment that the decision should be made after notification to and
consultation with a parent. See Ohio v. Akron Center for Reproductive
Health, post, at 510-511; Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416, 428, n. 10, 439 (1983); H. L. v.
Matheson, 450 U.S., at 409-410; Bellotti II, 443 U.S., at 640-641 (opinion of Powell, J.);
Danforth, 428 U.S., at 75. As Justice Stewart, joined
by Justice Powell, pointed out in his concurrence in Danforth
:
|
| [50] |
"There can be little doubt that the State furthers a constitutionally
permissible end by encouraging an unmarried pregnant minor to seek the
help and advice of her parents in making the very important decision
whether or not to bear a child." Id., at 91.
|
| [51] |
Parents have an interest in controlling the education and upbringing
of their children but that interest is "a counterpart of the
responsibilities they have assumed." Lehr v. Robertson, 463 U.S.
248, 257 (1983); see also Parham, 442 U.S., at 602 (citing 1 W. Blackstone, Commentaries *447; J.
Kent, Commentaries on American Law *190); Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). The fact of biological
parentage generally offers a person only "an opportunity . . . to develop
a relationship with his offspring." Lehr, 463 U.S., at 262; see also Caban v. Mohammed, 441 U.S. 380, 397 (1979) (Stewart, J., dissenting). But the
demonstration of commitment to the child through the assumption of
personal, financial, or custodial responsibility may give the natural
parent a stake in the relationship with the child rising to the level of a
liberty interest. See Stanley v. Illinois, 405 U.S. 645, 651 (1972); Lehr, 463 U.S., at 261;
Michael H. v. Gerald D., 491 U.S. 110, 157-160 (1989)
(WHITE, J., dissenting); cf. Caban, 441 U.S., at 393,
n. 14. But see Michael H., 491 U.S., at 123-127
(plurality opinion).
|
| [52] |
While the State has a legitimate interest in the creation and
dissolution of the marriage contract, see Sosna v. Iowa, 419
U.S. 393, 404 (1975); Maynard v. Hill, 125 U.S. 190, 205 (1888), the family has a privacy interest in the
upbringing and education of children and the intimacies of the marital
relationship which is protected by the Constitution against undue state
interference. See Wisconsin v. Yoder, 406 U.S. 205,
233-234 (1972); Griswold v. Connecticut, 381 U.S., at 495-496 (Goldberg, J., concurring); Poe v. Ullman,
367 U.S. 497, 551-552 (1961) (Harlan, J.,
dissenting); Gilbert v. Minnesota, 254 U.S. 325,
335-336 (1920) (Brandeis, J., dissenting); see also Michael H.,
491 U.S., at 132 (O'CONNOR, J., concurring in part);
Roberts v. United States Jaycees, 468 U.S. 609,
618-620 (1984); Cleveland Bd. of Education v. LaFleur, 414 U.S.,
at 639-640. The family may assign one parent to guide the
children's education and the other to look after their health.*fn32 "The statist notion that governmental
power should supersede parental authority in Connecticut,
381 U.S. 479, 496 (1965) (Goldberg, J., concurring)."
Id., at 651.*fn33
|
| [53] |
VI
|
| [54] |
We think it is clear that a requirement that a minor wait 48 hours
after notifying a single parent of her intention to get an abortion would
reasonably further the legitimate state interest in ensuring that the
minor's decision is knowing and intelligent. We have held that when a
parent or another person has assumed "primary responsibility" for a
minor's well-being, the State may properly enact "laws designed to aid
discharge of that responsibility." Ginsberg v. New York, 390
U.S. 629, 639 (1968). To the extent that subdivision 2 of the
Minnesota statute requires notification of only one parent, it does just
that. The brief waiting period provides the parent the opportunity to
consult with his or her spouse and a family physician, and it permits the
parent to inquire into the competency of the doctor performing the
abortion, discuss the religious or moral implications of the abortion
decision, and provide the daughter needed guidance and counsel in evaluating
the impact of the decision on her future. See Zbaraz v. Hartigan, 763 F.2d 1532, 1552 (CA7 1985) (Coffey, J.,
dissenting), aff'd by an equally divided Court, 484 U.S. 171 (1987).
|
| [55] |
The 48-hour delay imposes only a minimal burden on the right of the
minor to decide whether or not to terminate her pregnancy. Although the
District Court found that scheduling factors, weather, and the minor's
school and work commitments may combine, in many cases, to create a delay
of a week or longer between the initiation of notification and the
abortion, 648 F. Supp., at 765, there is no evidence
that the 48-hour period itself is unreasonable or longer than appropriate
for adequate consultation between parent and child. The statute does not
impose any period of delay once a court, acting in loco parentis, or the
parents express their agreement that the minor is mature or that the
procedure would be in her best interest. Indeed, as the Court of Appeals
noted and the record reveals,*fn34 the 48-hour waiting period may run
concurrently with the time necessary to make an appointment for the
procedure, thus resulting in little or no delay.*fn35 VII
|
| [56] |
It is equally clear that the requirement that both parents be
notified, whether or not both wish to be notified or have assumed
responsibility for the upbringing of the child, does not reasonably
further any legitimate state interest. The usual justification for a
parental consent or notification provision is that it supports the
authority of a parent who is presumed to act in the minor's best interest
and thereby assures that the minor's decision to terminate her pregnancy
is knowing, intelligent, and deliberate. To the extent that such an
interest is legitimate, it would be fully served by a requirement that the
minor notify one parent who can then seek the counsel of his or her mate
or any other party, when such advice and support is deemed necessary to
help the child make a difficult decision. In the ideal family setting, of
course, notice to either parent would normally constitute notice to both.
A statute requiring two-parent notification would not further any state
interest in those instances. In many families, however, the parent
notified by the child would not notify the other parent. In those cases
the State has no legitimate interest in questioning one parent's judgment
that notice to the other parent would not assist the minor or in presuming
that the parent who has assumed parental duties is incompetent to make
decisions regarding the health and welfare of the child.
|
| [57] |
Not only does two-parent notification fail to serve any state interest
with respect to functioning families, it disserves the state interest in
protecting and assisting the minor with respect to dysfunctional families.
The record reveals that in the thousands of dysfunctional families
affected by this statute, the two-parent notice requirement proved
positively harmful to the minor and her family. The testimony at
trial established that this requirement, ostensibly designed for the
benefit of the minor, resulted in major trauma to the child, and often to
a parent as well. In some cases, the parents were divorced and the second
parent did not have custody or otherwise participate in the child's
upbringing. App. 244-245; id., at 466; id., at 115. In these
circumstances, the privacy of the parent and child was violated, even when
they suffered no other physical or psychological harm. In other instances,
however, the second parent had either deserted or abused the child, id.,
at 462, 464, had died under tragic circumstances, id., at 120-121, or was
not notified because of the considered judgment that notification would
inflict unnecessary stress on a parent who was ill. Id., at 204, 465.*fn36 In these circumstances, the statute was
not merely ineffectual in achieving the State's goals but actually
counterproductive. The focus on notifying the second parent distracted
both the parent and minor from the minor's imminent abortion
decision.
|
| [58] |
The State does not rely primarily on the best interests of the minor
in defending this statute. Rather, it argues that, in the ideal family,
the minor should make her decision only after
consultation with both parents who should naturally be concerned with the
child's welfare and that the State has an interest in protecting the
independent right of the parents "to determine and strive for what they
believe to be best for their children." Minn. Br. 26. Neither of these
reasons can justify the two-parent notification requirement. The second
parent may well have an interest in the minor's abortion decision, making
full communication among all members of a family desirable in some cases,
but such communication may not be decreed by the State. The State has no
more interest in requiring all family members to talk with one another
than it has in requiring certain of them to live together. In Moore v.
East Cleveland, 431 U.S. 494 (1977), we invalidated a
zoning ordinance which "slic[ed] deeply into the family itself," id., at
498, permitting the city to "standardiz[e] its children -- and its adults
-- by forcing all to live in certain narrowly defined family patterns."
Id., at 506. Although the ordinance was supported by state interests other
than the State's interest in substituting its conception of family life
for the family's own view, the ordinance's relation to those state
interests was too "tenuous" to satisfy constitutional standards. By
implication, a state interest in standardizing its children and adults,
making the "private realm of family life" conform to some state-designed
ideal, is not a legitimate state interest at all. See also Meyer v.
Nebraska, 262 U.S., at 399-400 (right to establish a
home and bring up children may not be interfered with by legislative
action which is without "reasonable relation to some purpose within the
competency of the State to effect").
|
| [59] |
Nor can any state interest in protecting a parent's interest in
shaping a child's values and lifestyle overcome the liberty interests of a
minor acting with the consent of a single parent or court. See Bellotti
II, 443 U.S. 622 (1979); Bellotti I, 428
U.S. 132 (1976); Planned Parenthood of Central Mo. v. Danforth,
428 U.S. 52 (1976). In Danforth, the majority
identified the only state interest in requiring parental consent as
that in "the safeguarding of the family unit and of parental authority"
and held that that state interest was insufficient to support the
requirement that mature minors receive parental consent. The Court
summarily concluded that "[a]ny independent interest the parent may have
in the termination of the minor daughter's pregnancy is no more weighty
than the right of privacy of the competent minor mature enough to have
become pregnant." Id., at 75. It follows that the combined force of the
separate interest of one parent and the minor's privacy interest must
outweigh the separate interest of the second parent.
|
| [60] |
In Bellotti I and Bellotti II, we also identified the difference
between parental interests and the child's best interest. Although the
District Court invalidated the Massachusetts statute there under review on
the grounds that it permitted a parent or the court, acting in loco
parentis, to refuse consent based on the parent's own interests, the state
attorney general argued that the parental right consisted "'exclusively of
the right to assess independently, for their minor child, what will serve
that child's best interest.'" 428 U.S., at 144.
Because we believed that the attorney general's interpretation "would
avoid or substantially modify the federal constitutional challenge," id.,
at 148, we ordered the District Court to certify the state-law question to
the Supreme Judicial Court of Massachusetts. Id., at 151-152. On review in
this Court for the second time, after the Supreme Judicial Court stated
unambiguously that the "good cause" standard required the judge to grant
consent to an abortion found to be in the minor's best interest, 443 U.S., at 630, 644 (opinion of Powell, J.), we
confirmed that such a construction satisfied "some of the concerns" about
the statute's constitutionality, id., at 644, and thereby avoided "much of
what was objectionable in the statute successfully challenged in
Danforth," id., at 645. Indeed, the constitutional defects that Justice
Powell identified in the statute -- its failure to allow a minor who is
found to be mature and fully competent to make the abortion decision
independently and its requirement of parental consultation even when an
abortion without notification would be in the minor's best interests --
are predicated on the assumption that the justification for any rule
requiring parental involvement in the abortion decision rests entirely on
the best interests of the child. Id., at 651.*fn37
|
| [61] |
Unsurprisingly, the Minnesota two-parent notification requirement is
an oddity among state and federal consent provisions governing the health,
welfare, and education of children. A minor desiring to enlist in the
armed services or the Reserve Officers' Training Corps (ROTC) need only
obtain the consent of "his parent or guardian." 10 U.S.C. 505(a),
2104(b)(4), 2107(b)(4). The consent of " a parent or guardian" is also
sufficient to obtain a passport for foreign travel from the United States
Department of State, 22 CFR 51.27 (1989) (emphasis added), and to
participate as a subject in most forms of medical research, 45 CFR 46.404,
46.405 (1988). In virtually every State, the consent of one parent is
enough to obtain a driver's license or operator's permit. The same may be
said with respect to the decision to submit to any medical or surgical
procedure other than an abortion.*fn38 Indeed, the only other Minnesota statute
that the State has identified which requires two-parent consent is
that authorizing the minor to change his name. Tr. of Oral Arg. 30, 32;
Reply Brief for Petitioner in No. 88-1309, p. 5 (citing Minn. Stat. 259.10
(1988)). These statutes provide testimony to the unreasonableness of the
Minnesota two-parent notification requirement and to the ease with which
the State can adopt less burdensome means to protect the minor's welfare.
Cf. Clark v. Jeter, 486 U.S. 456, 464 (1988); Turner
v. Safley, 482 U.S., at 98. We therefore hold that
this requirement violates the Constitution.
|
| [62] |
VIII
|
| [63] |
The Court holds that the constitutional objection to the two-parent
notice requirement is removed by the judicial bypass option provided in
subdivision 6 of the Minnesota statute. I respectfully dissent from that
holding.
|
| [64] |
A majority of the Court has previously held that a statute requiring
one parent's consent to a minor's abortion will be upheld if the State
provides an "'alternative procedure whereby a pregnant minor may
demonstrate that she is sufficiently mature to make the abortion decision
herself or that, despite her immaturity, an abortion would be in her best
interests.'" Planned Parenthood Assn. of Kansas City, Mo., Inc. v.
Ashcroft, 462 U.S. 476, 491 (1983) (opinion of
Powell, J.); id., at 505 (opinion of O'CONNOR, J.). Indeed, in Bellotti
II, four Members of the Court expressed the same opinion about a statute
requiring the consent of both parents. See 443 U.S., at 643-644 (opinion of Powell, J.). Neither of those precedents
should control our decision today.
|
| [65] |
In Bellotti II, eight Members of the Court joined the judgment holding
the Massachusetts statute unconstitutional. Thus, the Court did not hold
that the judicial bypass set forth in that statute was valid; it held just
the opposite. Moreover, the discussion of the minimum requirements for a
valid judicial bypass in Justice Powell's opinion was joined by only three
other Members of the Court. Indeed, neither the arguments of the parties,
nor any of the opinions in the case, considered
the significant difference between a statute requiring the involvement of
both parents in the abortion decision and a statute that merely requires
the involvement of one. Thus, the doctrine of stare decisis does not
require that the standards articulated in Justice Powell's opinion be
applied to a statute that mandates the involvement of both
parents.
|
| [66] |
Unlike Bellotti II, the judgment in Ashcroft sustained the
constitutionality of the statute containing a judicial bypass as an
alternative to the requirement of one parent's consent to a minor's
abortion. The distinctions between notice and consent and between
notification of both parents rather than just one arguably constitute a
sufficient response to an argument resting on stare decisis. Further
analysis is necessary, however, because, at least on the surface, the
consent requirement would appear to be more onerous than a requirement of
mere notice.
|
| [67] |
The significance of the distinction between a statute requiring the
consent of one parent and a statute requiring notice to both parents must
be tested by the relationship of the respective requirements to legitimate
state interests. We have concluded that the State has a strong and
legitimate interest in providing a pregnant minor with the advice and
support of a parent during the decisional period. A general rule requiring
the minor to obtain the consent of one parent reasonably furthers that
interest. An exception from the general rule is necessary to protect the
minor from an arbitrary veto that is motivated by the separate concerns of
the parent rather than the best interest of the child. Cf. Parham v. J.
R., 442 U.S., at 604-608. But the need for an
exception does not undermine the conclusion that the general rule is
perfectly reasonable -- just as a rule requiring the consent of either
parent for any other medical procedure would surely be reasonable if an
exception were made for those emergencies in which, for example, a parent
might deny lifesaving treatment
to a child on religious grounds. See id., at 602-603.
|
| [68] |
For reasons already set forth at length, a rule requiring consent or
notification of both parents is not reasonably related to the state
interest in giving the pregnant minor the benefit of parental advice. The
State has not called our attention to, nor am I aware of, any other
medical situation in Minnesota or elsewhere in which the provision of
treatment for a child has been conditioned on notice to, or consent by,
both parents rather than just one. Indeed, the fact that one-parent
consent is the virtually uniform rule for any other activity which affects
the minor's health, safety, or welfare emphasizes the aberrant quality of
the two-parent notice requirement.
|
| [69] |
A judicial bypass that is designed to handle exceptions from a
reasonable general rule, and thereby preserve the constitutionality of
that rule, is quite different from a requirement that a minor -- or a
minor and one of her parents -- must apply to a court for permission to
avoid the application of a rule that is not reasonably related to
legitimate state goals. A requirement that a minor acting with the consent
of both parents apply to a court for permission to effectuate her decision
clearly would constitute an unjustified official interference with the
privacy of the minor and her family. The requirement that the bypass
procedure must be invoked when the minor and one parent agree that the
other parent should not be notified represents an equally unjustified
governmental intrusion into the family's decisional process. When the
parents are living together and have joint custody over the child, the
State has no legitimate interest in the communication between father and
mother about the child. "[W]here the parents are divorced, the minor
and/or custodial parent, and not a court, is in the best position to
determine whether notifying the non-custodial parent would be in the
child's best interests." App. to Pet. for Cert. in No. 88-1125, p. 69a. As
the Court of Appeals panel originally concluded,
the "minor and custodial parent, . . . by virtue of their major interest
and superior position, should alone have the opportunity to decide to
whom, if anyone, notice of the minor's abortion decision should be given."
Ibid. (citation omitted). I agree with that conclusion.
|
| [70] |
The judgment of the Court of Appeals in its entirety is
affirmed.
|
| [71] |
It is so ordered.
|
| [72] |
Disposition
|
| [73] |
853 F.2d 1452, affirmed.
|
| [74] |
JUSTICE O'CONNOR, concurring in part and concurring in the judgment in
part.
|
| [75] |
I I
join all but Parts III and VIII of JUSTICE STEVENS' opinion. While I agree
with some of the central points made in Part III, I cannot join the
broader discussion. I agree that the Court has characterized "[a] woman's
decision to conceive or to bear a child [as] a component of her liberty
that is protected by the Due Process Clause of the Fourteenth Amendment to
the Constitution." Ante, at 434. See, e. g., Carey v. Population Services
International, 431 U.S. 678, 685, 687 (1977);
Griswold v. Connecticut, 381 U.S. 479, 502-503 (1965)
(WHITE, J., concurring in judgment). This Court extended that liberty
interest to minors in Bellotti v. Baird, 443 U.S. 622, 642 (1979) (Bellotti II), and Planned Parenthood of
Central Mo. v. Danforth, 428 U.S. 52, 74 (1976),
albeit with some important limitations: "[P]arental notice and consent are
qualifications that typically may be imposed by the State on a minor's
right to make important decisions. As immature minors often lack the
ability to make fully informed choices that take account of both immediate
and long-range consequences, a State reasonably may determine that
parental consultation often is desirable and in the best interest of the
minor." Bellotti II, supra, at 640-641 (opinion of Powell, J.); see also
H. L. v. Matheson, 450 U.S. 398, 423 (1981) (STEVENS,
J., concurring in judgment); cf. Thompson v. Page 459} Oklahoma, 487 U.S. 815, 835 (1988) ("Inexperience, less
education, and less intelligence make the teenager less able to evaluate
the consequences of his or her conduct while at the same time he or she is
much more apt to be motivated by mere emotion or peer pressure than is an
adult"); Stanford v. Kentucky, 492 U.S. 361, 395
(1989) (BRENNAN, J., dissenting) ("[M]inors are treated differently from
adults in our laws, which reflects the simple truth derived from communal
experience, that juveniles as a class have not the level of maturation and
responsibility that we presume in adults and consider desirable for full
participation in the rights and duties of modern life")
|
| [76] |
It has been my understanding in this area that "[i]f the particular
regulation does not 'unduly burde[n]' the fundamental right, . . . then
our evaluation of that regulation is limited to our determination that the
regulation rationally relates to a legitimate state purpose." Akron v.
Akron Center for Reproductive Health, Inc., 462 U.S. 416, 453 (1983) (O'CONNOR, J., dissenting); see also Webster v.
Reproductive Health Services, 492 U.S. 490, 530
(1989) (O'CONNOR, J., concurring in part and concurring in judgment). It
is with that understanding that I agree with JUSTICE STEVENS' statement
that the "statute cannot be sustained if the obstacles it imposes are not
reasonably related to legitimate state interests. Cf. Turner v. Safley, 482 U.S., at 97; Carey v. Population Services
International 431 U.S., at 704 (opinion of Powell,
J.); Doe v. Bolton, 410 U.S. 179, 194-195, 199
(1973)." Ante, at 436.
|
| [77] |
I agree with JUSTICE STEVENS that Minnesota has offered no sufficient
justification for its interference with the family's decisionmaking
processes created by subdivision 2 of Minn. Stat. 144.343 (1980) --
two-parent notification. Subdivision 2 is the most stringent notification
statute in the country. See ante, at 425, n. 5. The only other State that
defines the generic term "parents," see, e. g., Tenn. Code Ann. 36-1-201,
Art. III (6) (Supp. 1989) (adoption statute) ("'Parents' means
either the singular or plural of the word 'parent'"); see also ante, at
437, n. 23, as "both parents" is Arkansas, and that statute provides for
numerous exceptions to the two-parent notification requirement and permits
bypassing notification where notification would not be in the best
interests of the minor. See Ark. Code Ann. 20-16-802, 20-16-804, 20-16-808
(Supp. 1989).
|
| [78] |
The Minnesota exception to notification for minors who are victims of
neglect or abuse is, in reality, a means of notifying the parents. As
JUSTICE STEVENS points out, see ante, at 426, n. 7, to avail herself of
the neglect or abuse exception, the minor must report the abuse. A report
requires the welfare agency to immediately "conduct an assessment." Minn.
Stat. 626.556(10)(a) (1988). If the agency interviews the victim, it must
notify the parent of the fact of the interview; if the parent is the
subject of an investigation, he has a right of access to the record of the
investigation. 626.556 (10)(c); 626.556(11); see also Tr. of Oral Arg. 19
("[I]t turns out that the reporting statute in Minnesota requires that
after it's reported to the welfare department, the welfare department has
to do an assessment and tell the parents about the assessment. This could
all be done in a time frame even before the abortion occurs"). The
combination of the abused minor's reluctance to report sexual or physical
abuse, see ante, at 440, n. 26, with the likelihood that invoking the
abuse exception for the purpose of avoiding notice will result in notice,
makes the abuse exception less than effectual.
|
| [79] |
Minnesota's two-parent notice requirement is all the more unreasonable
when one considers that only half of the minors in the State of Minnesota
reside with both biological parents. See ante, at 437. A third live with
only one parent. Ibid. Given its broad sweep and its failure to serve the
purposes asserted by the State in too many cases, I join the Court's
striking of subdivision 2. II
|
| [80] |
In a series of cases, this Court has explicitly approved judicial
bypass as a means of tailoring a parental consent provision so as to avoid
unduly burdening the minor's limited right to obtain an abortion. See
Bellotti v. Baird, 428 U.S. 132, 147-148 (1976);
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976); Bellotti II, 443 U.S., at 642-644 (opinion of Powell, J.). In Danforth, the Court stated
that the
|
| [81] |
"primary constitutional deficiency lies in [the notification
statute's] imposition of an absolute limitation on the minor's right to
obtain an abortion. . . . [A] materially different constitutional issue
would be presented under a provision requiring parental consent or
consultation in most cases but providing for prompt (i) judicial
resolution of any disagreement between the parent and the minor, or (ii)
judicial determination that the minor is mature enough to give an informed
consent without parental concurrence or that abortion in any event is in
the minor's best interest. Such a provision would not impose parental
approval as an absolute condition upon the minor's right but would assure
in most instances consultation between the parent and child."
428 U.S., at 90-91.
|
| [82] |
Subdivision 6 passes constitutional muster because the interference
with the internal operation of the family required by subdivision 2 simply
does not exist where the minor can avoid notifying one or both parents by
use of the bypass procedure.
|
| [83] |
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join,
concurring in part, concurring in the judgment in part, and dissenting in
part.
|
| [84] |
I concur in Parts I, II, IV, and VII of JUSTICE STEVENS' opinion for
the Court in No. 88-1309.*fn1 Although I do not
believe that the Constitution permits a State to require a minor to notify
or consult with a parent before obtaining an abortion, compare ante, at
445, with infra, at 463-472, I am in substantial agreement with the
remainder of the reasoning in Part V of JUSTICE STEVEN'S opinion. For the
reasons stated by the Court, ante, at 450-455, Minnesota's two-parent
notification requirement is not even reasonably related to a legitimate
state interest. Therefore, that requirement surely would not pass the
strict scrutiny applicable to restrictions on a woman's fundamental right
to have an abortion.
|
| [85] |
I dissent from the judgment of the Court in No. 89-1125, however, that
the judicial bypass option renders the parental notification and 48-hour
delay requirements constitutional. See ante, at 461 (opinion of O'CONNOR,
J.); post, at 497-501 (opinion of KENNEDY, J.). The bypass procedure
cannot save those requirements because the bypass itself is
unconstitutional both on its face and as applied. At the very least, this
scheme substantially burdens a woman's right to privacy without advancing
a compelling state interest. More significantly, in some instances it
usurps a young woman's control over her own body by giving either a parent
or a court the power effectively to veto her decision to have an
abortion.
|
| [86] |
I
|
| [87] |
This Court has consistently held since Roe v. Wade, 410 U.S.
113 (1973), that the constitutional right of privacy "is broad
enough to encompass a woman's decision whether or not to terminate her
pregnancy." Id., at 153. We have also repeatedly stated that "[a] woman's
right to make that choice freely is fundamental." Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. 747, 772 (1986). Accord, Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S. 416, 420, n. 1 (1983); Roe,
supra, at .
As we reiterated in American College of Obstetricians and Gynecologists,
supra, "Few decisions are more personal and intimate, more properly
private, or more basic to individual dignity and autonomy, than a woman's
decision -- with the guidance of her physician and within the limits
specified in Roe -- whether to end her pregnancy." Id., at 772.
Accordingly, we have subjected state laws limiting that right to the most
exacting scrutiny, requiring a State to show that such a law is narrowly
drawn to serve a compelling interest. Roe, supra, at 155; Akron Center for
Reproductive Health, supra, at 427. Only such strict judicial scrutiny is
sufficiently protective of a woman's right to make the intensely personal
decision whether to terminate her pregnancy.
|
| [88] |
Roe remains the law of the land. See Webster v. Reproductive Health
Services, 492 U.S. 490, 521 (1989) (plurality
opinion); id., at 525 (O'CONNOR, J., concurring in part and concurring in
judgment); id., at 537, 560 (BLACKMUN, J., concurring in part and
dissenting in part). Indeed, today's decision reaffirms the vitality of
Roe, as five Justices have voted to strike down a state law restricting a
woman's right to have an abortion. Accordingly, to be constitutional,
state restrictions on abortion must meet the rigorous test set forth
above.
|
| [89] |
II
|
| [90] |
I strongly disagree with the Court's conclusion that the State may
constitutionally force a minor woman either to notify both parents (or in
some cases only one parent)*fn2 and then wait 48 hours before proceeding
with an abortion, or disclose her intimate affairs to a judge and ask that
he grant her permission to have an abortion. See post, at 497-501 (opinion
of KENNEDY, J.). Cf. ante, at 448-449 (opinion of STEVENS, J.) (finding
that requiring minor to wait 48 hours after notifying one parent
reasonably furthers legitimate state interest). First,
the parental notification and delay requirements significantly restrict a
young woman's right to reproductive choice. I base my conclusion not on my
intuition about the needs and attitudes of young women, but on a sizable
and impressive collection of empirical data documenting the effects of
parental notification statutes and of delaying an abortion. Second, the
burdensome restrictions are not narrowly tailored to serve any compelling
state interest. Finally, for the reasons discussed in Part III, infra, the
judicial bypass procedure does not save the notice and delay
requirements.
|
| [91] |
A
|
| [92] |
Neither the scope of a woman's privacy right nor the magnitude of a
law's burden is diminished because a woman is a minor. Bellotti v. Baird, 443 U.S. 622, 642 (1979) (Bellotti II) (opinion of
Powell, J.); Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 74 (1976). Rather, a woman's minority status affects
only the nature of the State's interests. Although the Court considers the
burdens that the two-parent notification requirement imposes on a minor
woman's exercise of her right to privacy, ante, at 450-451, and n. 36, it
fails to recognize that forced notification of only one parent also
significantly burdens a young woman's right to have an abortion, see ante,
at 459-460 (opinion of O'CONNOR, J.); post, at 491-497 (opinion of
KENNEDY, J.). Cf. ante, at 448-449 (opinion of STEVENS, J.).
|
| [93] |
A substantial proportion of pregnant minors voluntarily consult with a
parent regardless of the existence of a notification requirement. See, e.
g., Torres, Forrest, & Eisman, Telling Parents: Clinic Policies and
Adolescents' Use of Family Planning and Abortion Services, 12 Family
Planning Perspectives 284, 287, 288, 290 (1980) (51% of minors discussed
abortion with parents in the absence of a parental consent or notification
requirement). Minors 15 years old or younger are even more likely
voluntarily to discuss the abortion decision with their parents. Id., at
290 (69% of such minors voluntarily discuss
abortion with parents). For these women, the notification requirement by
itself does not impose a significant burden. But for those young women who
would choose not to inform their parents, the burden is evident: The
notification requirement destroys their right to avoid disclosure of a
deeply personal matter. Cf. Whalen v. Roe, 429 U.S. 589, 599-600 (1977).
|
| [94] |
A notification requirement can also have severe physical and
psychological effects on a young woman. First, forced notification of one
parent, like forced notification of both parents, can be extremely
traumatic for a young woman, depending on the nature of her relationship
with her parents. Cf. ante, at 450-451, and n. 36. The disclosure of a
daughter's intention to have an abortion often leads to a family crisis,
characterized by severe parental anger and rejection. Osofsky &
Osofsky, Teenage Pregnancy: Psychosocial Considerations, 21 Clinical
Obstetrics and Gynecology 1161, 1164-1165 (1978). The impact of any
notification requirement is especially devastating for minors who live in
fear of physical, psychological, or sexual abuse. See, e. g., Clary, Minor
Women Obtaining Abortions: A Study of Parental Notification in a
Metropolitan Area, 72 American J. of Pub. Health 283, 284 (1982) (finding
that many minors chose not to inform parents voluntarily because of fear
of negative consequences such as physical punishment or other
retaliation). See also Tr. 911 (testimony of Dr. Elissa Benedek) (stating
that usually minors accurately predict parental reaction to news about
daughters' pregnancies). Cf. ante, at 438-440, and n. 25. Certainly, child
abuse is not limited to families with two parents.
|
| [95] |
Second, the prospect of having to notify a parent causes many young
women to delay their abortions, thereby increasing the health risks of the
procedure. See Cates, Schulz, & Grimes, The Risks Associated with
Teenage Abortion, 309 New England J. of Medicine 621, 623 (1983) (finding
that for women 19 years old and younger, the number of deaths per 100,000
abortions was 0.2 for the first 8 weeks of pregnancy, .6
for weeks 9 through 12, 3.4 for weeks 13 through 16, and 7.8 for week 17
and after). See also H. L. v. Matheson, 450 U.S. 398,
439 (1981) (MARSHALL, J., dissenting). The risks posed by this delay are
especially significant because adolescents already delay seeking medical
care until relatively late in their pregnancies, when risks are higher.
See 1 National Research Council, Risking the Future: Adolescent Sexuality,
Pregnancy, and Childbearing 114 (C. Hayes ed. 1987).
|
| [96] |
In addition, a notification requirement compels many minors seeking an
abortion to travel to a State without such a requirement to avoid
notifying a parent. Cartoof & Klerman, Parental Consent for Abortion:
Impact of the Massachusetts Law, 76 American J. of Pub. Health 397, 399
(1986) (finding that one-third of minors seeking abortions traveled
outside of State to avoid Massachusetts' parental notice requirement).
Other women may resort to the horrors of self-abortion or illegal abortion
rather than tell a parent. Torres, Forrest, & Eisman, supra, at 288
(9% of minors attending family planning clinics said they would have a
self-induced or illegal abortion rather then tell a parent); H. L. v.
Matheson, supra, at 439, and n. 26 (MARSHALL, J., dissenting). See also
Greydanus & Railsback, Abortion in Adolescence, 1 Seminars in
Adolescent Medicine 213, 214 (1985) (noting 100-times greater death rate
for women who obtain illegal abortions than for those who obtain legal
ones).*fn3 Still others would forgo an abortion
entirely and carry the fetus to term, Torres, Forrest, & Eisman,
supra, at 289, 291 (9% of minors in family planning clinics said they
would carry fetus to
term rather than inform parents of decision to abort), subjecting
themselves to the much greater health risks of pregnancy and childbirth
and to the physical, psychological, and financial hardships of unwanted
motherhood. See Greydanus & Railsback, supra, at 214 (noting that
minor's overall risk of dying from childbirth is over nine times greater
than risk of dying from legal abortion); Lewis, Minors' Competence to
Consent to Abortion, 42 American Psychologist 84, 87 (1987) ("[P]regnancy
continuation poses far greater psychological, physical, and economic risks
to the adolescent than does abortion") (citation omitted). See also
Bellotti II, 443 U.S., at 642 (opinion of Powell, J.)
("[C]onsidering her probable education, employment skills, financial
resources, and emotional maturity, unwanted motherhood may be
exceptionally burdensome for a minor"). Clearly, then, requiring
notification of one parent significantly burdens a young woman's right to
terminate her pregnancy.
|
| [97] |
B
|
| [98] |
The 48-hour delay after notification further aggravates the harm
caused by the pre -notification delay that may flow from a minor's fear of
notifying a parent. Moreover, the 48-hour delay burdens the rights of all
minors, including those who would voluntarily consult with one or both
parents.*fn4 JUSTICE STEVENS' assertion that the
48-hour delay "imposes only a minimal burden," ante, at 449; see also
post, at 496 (opinion of KENNEDY, J.), ignores the increased health risks
and costs that this delay entails. The District Court specifically found
as a matter of fact that "[d]elay of any length in performing an abortion
increases the statistical risk of mortality and morbidity." 648 F. Supp.
756, 765 (Minn 1986). Even a brief delay can have a particularly
detrimental impact if it pushes the abortion into the second trimester,
when the operation is substantially more risky and costly. Ibid. See also
C. Tietze & S. Henshaw, Induced Abortion: A World Review 1986, pp.
103-104 (6th ed. 1986) (rate of major complications nearly doubles in the
week following the end of the first trimester and increases significantly
thereafter). Moreover, the District Court found that the 48-hour delay
"frequently is compounded by scheduling factors such as clinic hours,
transportation requirements, weather, a minor's school and work
commitments, and sometimes a single parent's family and work commitments,"
often resulting in an effective delay of a week or more. 648 F.
Supp., at 765.*fn5 The increased risk caused by a delay of
that magnitude, the District Court found, is statistically significant at
any point in the pregnancy. Ibid. Certainly no pregnant woman facing these
heightened risks to her health would dismiss them as "minimal."*fn6 C
|
| [99] |
Because the parental notification and delay requirements burden a
young woman's right freely to decide whether to terminate her pregnancy,
the State must show that these requirements are justified by a compelling
state interest and are closely tailored to further that interest. The main
purpose of the notification requirement is to "protect the well-being of
minors by encouraging minors to discuss with their parents the decision
whether to terminate their pregnancies" Id., at 766. The 48-hour delay, in
turn, is designed to provide parents with adequate time to consult with
their daughters. Ante, at 448-449 (opinion of STEVENS, J.); post, at 496
(opinion of KENNEDY, J.). As JUSTICE STEVENS states, such consultation is
intended to ensure that the minor's decision is "knowing and intelligent."
Ante, at 448. I need not determine whether the State's interest ultimately
outweighs young women's privacy interests, however, because the strictures
here are not closely tailored to further the State's asserted
goal.
|
| [100] |
For the many young women who would voluntarily consult with a parent
before having an abortion, see supra, at 464-465, the notification and
delay requirements are superfluous, and so do not advance the State's
interest. The requirements affect only those women who would not otherwise
notify a parent. But compelled notification is unlikely to result in
productive consultation in families in which a daughter does not feel
comfortable consulting her parents about intimate or sexual matters. See
Melton, Legal Regulation of Adolescent Abortion: Unintended Effects, 42
American Psychologist 79, 81 (1987) (stating that in many families,
compelled parental notification is unlikely to result in meaningful
discussion about the daughter's predicament); Tr. 1357-1358 (testimony of
Dr. Steven Butzer) (stating that involuntary disclosure is disruptive to
family and has "almost universally negative" effects, in accord with
minor's expectations). Moreover,
in those families with a history of child abuse, a pregnant minor forced
to notify a parent is more likely to be greeted by physical assault or
psychological harrassment than open and caring conversation about her
predicament. See Tr. 316 (testimony of Dr. Lenore Walker) (stating that
forced notification in dysfunctional families is likely to sever
communication patterns and increase the risk of violence); H. L. v.
Matheson, 450 U.S., at 446 (MARSHALL, J.,
dissenting). Forced notification in such situations would amount to
punishing the daughter for the lack of a stable and communicative family
environment, when the blame for that situation lies principally, if not
entirely, with the parents. Parental notification in the less-than-ideal
family, therefore, would not lead to an informed decision by the minor.*fn7
|
| [101] |
The State also claims that the statute serves the interest of
protecting parents' independent right "to shape the[ir] child[ren]'s
values and life style[s]" and "to determine and strive for what they
believe to be best for their children." Brief for Petitioners in No.
88-1309, p. 26. If this is so, the statute is surely underinclusive, as it
does not require parental notification where the minor seeks medical
treatment for pregnancy, venereal disease, or alcohol and other drug
abuse. See Minn. Stat. 144.343(1) (1988). Are we to believe that Minnesota
parents have no interest in their children's well-being in these other
contexts?
|
| [102] |
In any event, parents' right to direct their children's upbringing is
a right against state interference with family matters. See, e. g., Prince
v. Massachusetts, 321 U.S. 158, 166 (1944) (noting
that this Court's decisions "have respected the private realm of family
life which the state cannot enter"). See also Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); Pierce v. Society of
Sisters, 268 U.S. 510, 534-535 (1925). Yet,
ironically, the State's requirements here affirmatively interfere in
family life by trying to force families to conform to the State's
archetype of the ideal family. Cf. Moore v. East Cleveland, 431
U.S. 494, 506 (1977) (plurality opinion) ("[T]he Constitution
prevents [the State] from standardizing its children -- and its adults --
by forcing all to live in certain narrowly defined family patterns");
ante, at 452. It is a strange constitutional alchemy that would transform
a limitation on state power into a justification for governmental
intrusion into family interactions. Moreover, as a practical matter,
"state intervention is hardly likely to resurrect parental authority that
the parents themselves are unable to preserve." H. L. v. Matheson, supra,
at 448 (MARSHALL, J., dissenting). See also Planned Parenthood of Central
Mo., 428 U.S., at 75 (finding it unlikely that
parental veto power over abortion "will enhance parental authority or
control where the minor and the non-consenting parent are so fundamentally
in conflict and the very existence of the pregnancy already has fractured
the family structure").
|
| [103] |
Even if the State's interest is construed as merely the facilitation
of the exercise of parental authority, the notification and delay
requirements are not narrowly drawn. Parental authority is not limitless.
Certainly where parental involvement threatens to harm the child, the
parent's authority must yield. Prince v. Massachusetts, supra, at 169-170;
H. L. v. Matheson, supra, at 449 (MARSHALL, J., dissenting). Yet the
notification and delay requirements facilitate the
exercise of parental authority even where it may physically or
psychologically harm the child. See supra, at 470.
|
| [104] |
Furthermore, the exercise of parental authority in some instances will
take the form of obstructing the minor's decision to have an abortion. A
parent who objects to the abortion, once notified, can exert strong
pressure on the minor -- in the form of stern disapproval, withdrawal of
financial support, or physical or emotional abuse -- to block her from
getting an abortion. See Bellotti II, 443 U.S., at 647 (opinion of Powell, J.) ("[M]any parents hold strong views
on the subject of abortion, and young pregnant minors, especially those
living at home, are particularly vulnerable to their parents' efforts to
obstruct . . . an abortion"). See also H. L. v. Matheson, 450
U.S., at 438-439 (MARSHALL, J., dissenting). In such
circumstances, the notification requirement becomes, in effect, a consent
requirement. As discussed below, infra, at 473, the State may not permit
any person, including a parent, to veto a woman's decision to terminate
her pregnancy. Because the notification and delay requirements effectively
give parents the opportunity to exercise an unconstitutional veto in some
situations, those requirements are not narrowly tailored to the State's
interest in facilitating legitimate exercises of parental
authority.
|
| [105] |
III
|
| [106] |
The parental notification and 48-hour delay requirements, then, do not
satisfy the strict scrutiny applicable to laws restricting a woman's
constitutional right to have an abortion. The judicial bypass procedure
cannot salvage those requirements because that procedure itself is
unconstitutional.
|
| [107] |
A
|
| [108] |
The State argues that the bypass procedure saves the notification and
delay requirements because it provides an alternative way to obtain a
legal abortion for minors who would be harmed by those requirements. This
Court has upheld a one-parent
consent requirement where the State provided an alternative judicial
procedure "'whereby a pregnant minor [could] demonstrate that she [was]
sufficiently mature to make the abortion decision herself or that, despite
her immaturity, an abortion would be in her best interests.'" Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S.
476, 491 (1983) (opinion of Powell, J.) (quoting Akron Center
for Reproductive Health, 462 U.S., at
439-440).
|
| [109] |
I continue to believe, however, that a judicial bypass procedure of
this sort is itself unconstitutional because it effectively gives a judge
"an absolute veto over the decision of the physician and his patient."
Planned Parenthood Assn. of Kansas City, supra, at 504 (BLACKMUN, J.,
concurring in part and dissenting in part); see also Bellotti II, 443 U.S., at 655 (STEVENS, J., concurring in
judgment) ("The provision of an absolute veto to a judge . . . is to me
particularly troubling. . . . It is inherent in the right to make the
abortion decision that the right may be exercised without public scrutiny
and in defiance of the contrary opinion of the sovereign or other third
parties") (footnote omitted); Planned Parenthood of Central Mo., supra, at
74 ("[T]he State does not have the constitutional 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,
regardless of the reason for withholding the consent"). No person may veto
any minor's decision, made in consultation with her physician, to
terminate her pregnancy. An "immature" minor has no less right to make
decisions regarding her own body than a mature adult.
|
| [110] |
Minnesota's bypass provision allows a judge to authorize an abortion
if he determines either that a woman is sufficiently mature to make the
decision on her own or, if she is not sufficiently mature, that an
abortion without parental notification would serve her best interests.
Minn. Stat. 144.343(6) (1988). Of course, if a judge refuses to authorize an
abortion, a young woman can then reevaluate whether she wants to notify a
parent. But many women will carry the fetus to term rather than notify a
parent. See supra, at 466-467. Other women may decide to inform a parent
but then confront parental pressure or abuse so severe as to obstruct the
abortion. For these women, the judge's refusal to authorize an abortion
effectively constitutes an absolute veto.
|
| [111] |
The constitutional defects in any provision allowing someone to veto a
woman's abortion decision are exacerbated by the vagueness of the
standards contained in this statute. The statute gives no guidance on how
a judge is to determine whether a minor is sufficiently "mature" and
"capable" to make the decision on her own. See Minn. Stat.
144.343(6)(c)(i) (1988) (judge shall authorize abortion if he "determines
that the pregnant woman is mature and capable of giving informed consent
to the proposed abortion"). Cf. Lewis, 42 American Psychologist, at 84, 87
(noting the absence of a judicial standard for assessing maturity). The
statute similarly is silent as to how a judge is to determine whether an
abortion without parental notification would serve an immature minor's
"best interests." 144.343(6)(c)(i) (judge shall authorize abortion for
immature minor without notification "if said judge concludes that the
pregnant woman's best interests would be served thereby"). Is the judge
expected to know more about the woman's medical needs or psychological
makeup than her doctor? Should he consider the woman's financial and
emotional status to determine the quality of life the woman and her future
child would enjoy in this world? Neither the record nor the Court answers
such questions. As JUSTICE STEVENS wrote in Bellotti II, the best interest
standard "provides little real guidance to the judge, and his decision
must necessarily reflect personal and societal values and mores whose
enforcement upon the minor -- particularly when contrary to her own
informed and reasonable decision -- is fundamentally at odds with privacy
interests underlying the constitutional protection afforded
to her decision." 443 U.S., at 655-656 (opinion
concurring in judgment). It is difficult to conceive of any reason, aside
from a judge's personal opposition to abortion, that would justify a
finding that an immature woman's best interests would be served by forcing
her to endure pregnancy and childbirth against her will.
|
| [112] |
B
|
| [113] |
Even if I did not believe that a judicial bypass procedure was
facially unconstitutional, the experience of Minnesota's procedure in
operation demonstrates that the bypass provision before us cannot save the
parental notification and delay requirements. This Court has addressed
judicial bypass procedures only in the context of facial challenges. See
Planned Parenthood Assn. of Kansas City, 462 U.S., at 490-493 (opinion of Powell, J.); Akron Center for Reproductive
Health, 462 U.S., at 439-442; Bellotti II,
443 U.S., at 643-644 (opinion of Powell, J.). The
Court has never considered the actual burdens a particular bypass
provision imposes on a woman's right to choose an abortion. Such
consideration establishes that, even if judges authorized every abortion
sought by petitioning minors, Minnesota's judicial bypass is far too
burdensome to remedy an otherwise unconstitutional statute.
|
| [114] |
The District Court found that the bypass procedure imposed significant
burdens on minors. First, "scheduling practices in Minnesota courts
typically require minors to wait two or three days between their first
contact with the court and the hearing on their petitions. This delay may
combine with other factors to result in a delay of a week or more." 648 F. Supp., at 763. As noted above, supra, at
467-468, a delay of only a few days can significantly increase the health
risks to the minor; a week-long delay inevitably does. Furthermore, in
several counties in Minnesota, no judge is willing to hear bypass
petitions, forcing women in those areas to travel long distances to obtain
a hearing. 648 F. Supp., at ;
Donovan, Judging Teenagers: How Minors Fare When They Seek
Court-Authorized Abortions, 15 Family Planning Perspectives 259, 264
(1983) (50% of Minnesota minors utilizing bypass were not residents of
city in which court was located); Melton, 42 American Psychologist, at 80
("In Minnesota, where judges in rural counties have often recused
themselves from participation in the abortion hearings, minors sometimes
have to travel a round-trip of more than 500 miles for the hearing"). The
burden of such travel, often requiring an overnight stay in a distant
city, is particularly heavy for poor women from rural areas. Furthermore,
a young woman's absence from home, school, or work during the time
required for such travel and for the hearing itself can jeopardize the
woman's confidentiality. See ibid.
|
| [115] |
The District Court also found that the bypass procedure can be
extremely traumatic for young women.
|
| [116] |
"The experience of going to court for a judicial authorization
produces fear and tension in many minors. Minors are apprehensive about
the prospect of facing an authority figure who holds in his hands the
power to veto their decision to proceed without notifying one or both
parents. Many minors are angry and resentful at being required to justify
their decision before complete strangers. Despite the confidentiality of
the proceeding, many minors resent having to reveal intimate details of
their personal and family lives to these strangers. Finally, many minors
are left feeling guilty and ashamed about their lifestyle and their
decision to terminate their pregnancy. Some mature minors and some minors
in whose best interests it is to proceed without notifying their parents
are so daunted by the judicial proceeding that they forego the bypass
option and either notify their parents or carry to term.
|
| [117] |
"Some minors are so upset by the bypass proceeding that they consider
it more difficult than the medical procedure itself. Indeed the anxiety
resulting from the bypass proceeding
may linger until the time of the medical procedure and thus render the
latter more difficult than necessary." 648 F. Supp., at 763-764.*fn8
|
| [118] |
Yet, despite the substantial burdens imposed by these proceedings, the
bypass is, in effect, a "rubber stamp," id., at 766 (testimony of Hon.
William Sweeney); only an extremely small number of petitions are denied,
id., at 765. See also Melton, supra, at 80 ("Available research indicates
that judicial bypass proceedings are merely pro forma. Although they
represent substantial intrusion on minors' privacy and take up significant
amounts of court time, there is no evidence that they promote more
reasoned decisionmaking or screen out adolescents who may be particularly
immature or vulnerable. . . . The hearings typically last less than 15
minutes. . . . Despite the complex issues involved (maturity and the best
interests of the minor), experts are rarely if ever called to testify").
The judges who have adjudicated over 90% of the bypass petitions between
1981 and 1986 could not identify any positive effects of the bypass
procedure. See 648 F. Supp., at 766; ante, at
441-442, and n. 29. The large number of women who undergo the bypass
process do not receive any sort of counseling from the court -- which is
not surprising, given the court's limited role and lack of expertise in
that area. The bypass process itself thus cannot serve the state interest
of promoting informed decisionmaking by all minors. If the State truly
were concerned about ensuring that
all minors consult with a knowledgeable and caring adult, it would provide
for some form of counseling rather than for a judicial procedure in which
a judge merely gives or withholds his consent.*fn9
|
| [119] |
Thus, regardless of one's view of the facial validity of a bypass
procedure, Minnesota's procedure in practice imposes an excessive burden
on young women's right to choose an abortion. Cf. Bellotti II,
443 U.S., at 655 (STEVENS, J., concurring in
judgment) ("[T]he need to commence judicial proceedings in order to obtain
a legal abortion would impose a burden at least as great as, and probably
greater than, that imposed on the minor child by the need to obtain the
consent of a parent"). Furthermore, the process does not serve the State's
interest of ensuring that minors' decisions are informed. Surely, then, a
State could not require that all minor women seeking an abortion obtain
judicial approval.*fn10 The Court's holding that the burdensome
bypass procedure saves the State's burdensome notification and delay
requirements thus
strikes me as the equivalent of saying that two wrongs make a right. I
cannot accept such a novel judicial calculus.
|
| [120] |
IV
|
| [121] |
A majority of the Court today strikes down an unreasonable and vastly
overbroad requirement that a pregnant minor notify both her parents of her
decision to obtain an abortion. With that decision I agree. At the same
time, though, a different majority holds that a State may require a young
woman to notify one or even both parents and then wait 48 hours before
having an abortion, as long as the State provides a judicial bypass
procedure. From that decision I vehemently dissent. This scheme forces a
young woman in an already dire situation to choose between two
fundamentally unacceptable alternatives: notifying a possibly dictatorial
or even abusive parent and justifying her profoundly personal decision in
an intimidating judicial proceeding to a blackrobed stranger. For such a
woman, this dilemma is more likely to result in trauma and pain than in an
informed and voluntary decision.
|
| [122] |
JUSTICE SCALIA, concurring in the judgment in part and dissenting in
part.
|
| [123] |
As I understand the various opinions today: One Justice holds that
two-parent notification is unconstitutional (at least in the present
circumstances) without judicial bypass, but constitutional with bypass,
ante, at 459-461 (O'CONNOR, J., concurring in part and concurring in
judgment in part); four Justices would hold that two-parent notification
is constitutional with or without bypass, post, at 488-497 (KENNEDY, J.,
concurring in judgment in part and dissenting in part); four Justices
would hold that two-parent notification is unconstitutional with or
without bypass, though the four apply two different standards, ante, at
455-458 (opinion of STEVENS, J.), ante, at 472-479 (MARSHALL, J.,
concurring in part, concurring in judgment in part and dissenting in
part); six
Justices hold that one-parent notification with bypass is constitutional,
though for two different sets of reasons, Ohio v. Akron Center for
Reproductive Health, post, at 510-517; post, at 522-524 (STEVENS, J.,
concurring in part and concurring in judgment); and three Justices would
hold that one-parent notification with bypass is unconstitutional, post,
at 526-527 (BLACKMUN, J., dissenting). One will search in vain the
document we are supposed to be construing for text that provides the basis
for the argument over these distinctions; and will find in our society's
tradition regarding abortion no hint that the distinctions are
constitutionally relevant, much less any indication how a constitutional
argument about them ought to be resolved. The random and unpredictable
results of our consequently unchanneled individual views make it
|