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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
increasingly evident, Term after Term, that the tools for this job are not
to be found in the lawyer's -- and hence not in the judge's -- workbox. I
continue to dissent from this enterprise of devising an Abortion Code, and
from the illusion that we have authority to do so.
|
| [124] |
JUSTICE KENNEDY, with whom THE CHIEF JUSTICE, JUSTICE WHITE, and
JUSTICE SCALIA join, concurring in the judgment in part and dissenting in
part.
|
| [125] |
"'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. That is a grave decision, and a girl of
tender years, under emotional stress, may be ill-equipped to make it
without mature advice and emotional support.'" Bellotti v. Baird (Bellotti
II), 443 U.S. 622, 640-641 (1979) (opinion of Powell,
J.) (quoting Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 91 (1976) (Stewart, J., concurring)); see also H. L.
v. Matheson, 450 U.S. 398, 409-411 (1981); id., at
422-423 (STEVENS, J., concurring in judgment); Danforth, supra, at 94-95
(WHITE, J., concurring in part and dissenting in part); id., at 102-103
(STEVENS, J., concurring in part
and dissenting in part). Today, the Court holds that a statute requiring a
minor to notify both parents that she plans to have an abortion is not a
permissible means of furthering the interest described with such
specificity in Bellotti II. This conclusion, which no doubt will come as a
surprise to most parents, is incompatible with our constitutional
tradition and any acceptable notion of judicial review of legislative
enactments. I dissent from the portion of the Court's judgment affirming
the Court of Appeal's conclusion that the Minnesota two-parent notice
statute is unconstitutional.
|
| [126] |
The Minnesota statute also provides, however, that if the two-parent
notice requirement is invalidated, the same notice requirement is
effective unless the pregnant minor obtains a court order permitting the
abortion to proceed. Minn. Stat. 144.343(6) (1988). The Court of Appeals
sustained this portion of the statute, in effect a two-parent notice
requirement with a judicial bypass. Five Members of the Court, the four
who join this opinion and JUSTICE O'CONNOR, agree with the Court of
Appeals' decision on this aspect of the statute. As announced by JUSTICE
STEVENS, who dissents from this part of the Court's decision, the Court of
Appeals' judgment on this portion of the statute is therefore
affirmed.
|
| [127] |
I
|
| [128] |
The provisions of the statute before us are straightforward. In
essence, the statute provides that before a physician in Minnesota may
perform an abortion on an unemancipated minor, the physician or the
physician's agent must notify both of the minor's parents, if each one can
be located through reasonable effort, either personally or by certified
mail at least 48 hours before the abortion is performed. Minn. Stat.
144.343(2)-(3) (1988). Notification is not required if the abortion is
necessary to prevent the minor's death; or if both parents have consented
to the abortion; or if the minor declares that she is the victim of sexual
abuse, neglect, or physical abuse. 144.343(4). Failure to comply with
these requirements is a misdemeanor, and the statute authorizes a civil
action against the non-complying physician by the minor's parents.
144.343(5).
|
| [129] |
The statute also provides that, if a court enjoins the notice
requirement of subdivision 2, parental notice under the subdivision shall
still be required, unless the minor obtains a court order dispensing with
it. Under the statute, the court is required to authorize the physician to
perform the abortion without parental notice if the court determines that
the minor is "mature and capable of giving informed consent to the
proposed abortion" or that "the performance of an abortion upon her
without notification of her parents, guardian, or conservator would be in
her best interests." 144.343(6).
|
| [130] |
II
|
| [131] |
The State identifies two interests served by the law. The first is the
State's interest in the welfare of pregnant minors. The second is the
State's interest in acknowledging and promoting the role of parents in the
care and upbringing of their children. JUSTICE STEVENS, writing for two
Members of the Court, acknowledges the legitimacy of the first interest,
but decides that the second interest is somehow illegitimate, at least as
to whichever parent a minor chooses not to notify. I cannot agree that the
Constitution prevents a State from keeping both parents informed of the
medical condition or medical treatment of their child under the terms and
conditions of this statute. The
welfare of the child has always been the central concern of laws with
regard to minors. The law does not give to children many rights given to
adults, and provides, in general, that children can exercise the rights
they do have only through and with parental consent. Parham v. J. R., 442 U.S. 584, 621 (1979) (Stewart, J., concurring in
judgment). Legislatures historically have acted on the basis of the
qualitative differences in maturity between children and adults, see
Schall v. Martin, 467 U.S. 253, 265-567 (1984);
Thompson Page 483} v. Oklahoma, 487 U.S. 815, 853-854
(1988) (O'CONNOR, J., concurring in judgment) (collecting cases); Stanford
v. Kentucky, 492 U.S. 361, 384 (1989) (BRENNAN, J.,
dissenting), and not without reason. Age is a rough but fair approximation
of maturity and judgment, and a State has an interest in seeing that a
child, when confronted with serious decisions such as whether or not to
abort a pregnancy, has the assistance of her parents in making the choice.
If anything is settled by our previous cases dealing with parental
notification and consent laws, it is this point. See Bellotti II, 443 U.S., at 640-641 (opinion of Powell, J.);
Matheson, 450 U.S., at 409-411; id., at 422-423
(STEVENS, J., concurring in judgment).
|
| [132] |
Protection of the right of each parent to participate in the
upbringing of her or his own children is a further discrete interest that
the State recognizes by the statute. The common law historically has given
recognition to the right of parents, not merely to be notified of their
children's actions, but to speak and act on their behalf. Absent a showing
of neglect or abuse, a father "possessed the paramount right to the
custody and control of his minor children, and to superintend their
education and nurture." J. Schouler, Law of Domestic Relations 337 (3d.
ed. 1882); see also 1 W. Blackstone, Commentaries *452-*453; 2 J. Kent,
Commentaries on American Law *203-*206; G. Field, Legal Relations of
Infants 63-80 (1888). In this century, the common law of most States has
abandoned the idea that parental rights are vested solely in fathers, with
mothers being viewed merely as agents of their husbands, cf. ante, at 446,
n. 32; it is now the case that each parent has parental rights and
parental responsibilities, see W. Keeton, D. Dobbs, R. Keeton, & D.
Owen, Prosser and Keeton on Law of Torts, ch. 4, 18, p. 115 (5th ed.
1984). Limitations have emerged on the prerogatives of parents to act
contrary to the best interests of the child with respect to matters such
as compulsory schooling and child labor. As a general matter, however, it
remains "cardinal
with us that the custody, care and nurture of the child reside first in
the parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder." Prince v.
Massachusetts, 321 U.S. 158, 166 (1944). "The history
and culture of Western civilization reflect a strong tradition of parental
concern for the nurture and upbringing of their children. This primary
role of the parents in the upbringing of their children is now established
beyond debate as an enduring American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232 (1972); see also Pierce v. Society
of Sisters, 268 U.S. 510, 535 (1925).
|
| [133] |
A State pursues a legitimate end under the Constitution when it
attempts to foster and preserve the parent-child relationship by giving
all parents the opportunity to participate in the care and nurture of
their children. We have held that parents have a liberty interest,
protected by the Constitution, in having a reasonable opportunity to
develop close relations with their children. See Santosky v. Kramer, 455 U.S. 745, 753-754 (1982); Caban v. Mohammed, 441 U.S. 380 (1979); Stanley v. Illinois,
405 U.S. 645, 651-652 (1972). We have recognized, of
course, that there are limits to the constitutional right of parents to
have custody of, or to participate in decisions affecting, their children.
If a parent has relinquished the opportunity to develop a relationship
with the child, and his or her only link to the child is biological, the
Constitution does not require a State to allow parental participation. See
Lehr v. Robertson, 463 U.S. 248, 261-265 (1983);
Quilloin v. Walcott, 434 U.S. 246, 254-256 (1978).
But the fact that the Constitution does not protect the parent-child
relationship in all circumstances does not mean that the State cannot
attempt to foster parental participation where the Constitution does not
demand that it do so. A State may seek to protect and facilitate the
parent-child bond on the assumption that parents will act in their child's
best interests. See Parham v. J. R., supra, at 602-603; Ginsberg v. New
York, 390 U.S. 629, 639 (1968). Indeed, we
have held that a State cannot terminate parental rights based upon a
presumption that a class of parents is unfit without affording individual
parents an opportunity to rebut the presumption. See Stanley, supra, at
654-658; Santosky, supra, at 753 ("The fundamental liberty interest of
natural parents in the care, custody, and management of their child does
not evaporate simply because they have not been model parents . . ."). If
a State cannot legislate on the broad assumption that classes of parents
are unfit and undeserving of parental rights without affording an
opportunity to rebut the assumption, it is at least permissible for a
State to legislate on the premise that parents, as a general rule, are
interested in their children's welfare and will act in accord with
it.
|
| [134] |
The Court's descriptions of the State's interests in this case are
caricatures, both of the law and of our most revered institutions. The
Court labels these interests as ones in "standardizing its children and
adults," and in ensuring that each family, to the extent possible,
"conform to some state-designed ideal." Ante, at 452; see also ante, at
471 (MARSHALL, J., concurring in part, concurring in judgment in part, and
dissenting in part) (accusing Minnesota of "trying to force families to
conform to the State's archetype of the ideal family"). Minnesota asserts
no such purpose, by explicit statement or by any permissible inference.
All that Minnesota asserts is an interest in seeing that parents know
about a vital decision facing their child. That interest is a valid one
without regard to whether the child is living with either one or both
parents, or to the attachment between the minor's parents. How the family
unit responds to such notice is, for the most part, beyond the State's
control. The State would no doubt prefer that all parents, after being
notified under the statute, would contact their daughters and assist them
in making their decisions with the child's best interests at heart; but it
has not, contrary to the Court's intimation, "decreed" communication, nor
could it. What the
State can do is make the communication possible by at least informing
parents of their daughter's intentions.
|
| [135] |
Minnesota has done no more than act upon the common-sense proposition
that, in assisting their daughter in deciding whether to have an abortion,
parents can best fulfill their roles if they have the same information
about their own child's medical condition and medical choices as the
child's doctor does; and that to deny parents this knowledge is to risk,
or perpetuate, estrangement or alienation from the child when she is in
the greatest need of parental guidance and support. The Court does the
State, and our constitutional tradition, sad disservice by impugning the
legitimacy of these elemental objectives.
|
| [136] |
Given the societal interest that underlies parental notice and consent
laws, it comes as no surprise that most States have enacted statutes
requiring that, in general, a physician must notify or obtain the consent
of at least one of her parents or legal guardian before performing an
abortion on a minor. See Wardle, "Time Enough": Webster v. Reproductive
Health Services and the Prudent Pace of Justice, 41 Fla. L. Rev. 881,
963-965 (1989) (collecting statutes). Five States, including Minnesota,
appear to require, as a general rule, the notification of both parents
before a physician may perform an abortion on a minor. See Ark. Code Ann.
20-16-801 through 20-16-808 (Supp. 1989); Idaho Code 18-610(6) (1987);
Tenn. Code Ann. 39-15-202(f) (Supp. 1989); Utah Code Ann. 76-7-304 (1990).
Another six States appear to require, with varying exceptions, the consent
of both parents. See Del. Code Ann., Tit. 24, 1790(b)(3) (1987); Ill. Rev.
Stat., ch. 38, para. 81-54(3) (1989); Ky. Rev. Stat. Ann. 311.732 (Michie
1990); Mass. Gen. Laws 112:12S (1988); Miss. Code. Ann. 41-41-53 (Supp.
1989); N. D. Cent. Code 14-02.1-03.1 (1981). Whether these statutes are
more or less restrictive than the Minnesota statute is not the issue,
although I pause to note that because the Court's decision today turns
upon its perception that the law's requirements, despite
its exceptions, are the most "stringent" in the country, see ante, at 459
(O'CONNOR, J., concurring in part and concurring in judgment), the Court's
decision has no import for the validity of these other statutes. What is
important is that Minnesota is not alone in acknowledging the vitality of
these governmental interests and adopting laws that, in the legislature's
judgment, are best suited to serving them while protecting the minor's
welfare.
|
| [137] |
On a more general level, the current trend among state legislatures is
to enact joint custody laws making it the norm for divorced or separated
parents to share the legal responsibility and authority for making
decisions concerning their children's care, education, religion, and
medical treatment. See 2 H. Clark, Law of Domestic Relations in the United
States 20.5 (2d ed. 1987); Folberg, Joint Custody Law -- The Second Wave,
23 J. Family L. 1, 14-55 (1984-1985) (collecting statutes). Under
Minnesota law, for example, there exists a presumption in divorce
proceedings that joint custody, if requested by either or both parents, is
in the best interests of the child. See Minn. Stat. 518.17(2) (Supp.
1989). Even if joint custody is not awarded, Minnesota law provides that
each parent, unless the court specifically directs otherwise to protect
the welfare of a parent or the child, "has the right of access to, and to
receive copies of, school, medical, dental, religious training, and other
important records and information about the minor children"; the
responsibility to "keep the other party informed as to the name and
address of the school of attendance of the minor children"; the
responsibility to "notify the other party of [an accident or serious
illness of a minor child], and the name of the health care provider and
the place of treatment"; and "the right to reasonable access and telephone
contact with the minor children." Minn. Stat. 518.17(3) (1988).
Minnesota's two-parent notification law does no more than apply these
general principles to the specific case of abortion. Federal
law contains similar provisions regulating the health and welfare of
children that require the notification or consent of both parents. For
example, one condition for obtaining a grant under the Adolescent Family
Life Act is that an applicant must provide assurances that it will "notify
the parents or guardians of any unemancipated minor requesting services
[relating to family planning] from the applicant and . . . will obtain the
permission of such parents or guardians with respect to the provision of
such services." 42 U. S. C. 300z-5(a)(22)(A)(i) (1982 ed.); see
300z-5(a)(22)(A)(ii) (requiring only notice to parents or guardians if the
unemancipated minor is pregnant). See also 42 U. S. C. 5671(d) (1982 ed.,
Supp. V) (authorizing funding for certain experimental juvenile drug and
alcohol treatment programs if safeguards are established for obtaining the
informed consent of the "parents or guardians" of minors); 50 U. S. C.
App. 454 (c)(4) (1982 ed.) (permitting induction of a 17-year-old into the
Armed Forces with the written consent of his "parents or guardian"); 45
CFR 46.408 (1989) (requiring consent of both parents before a minor may
participate in medical research posing more than a "minimal" risk of
harm). With all respect, I submit the Court today errs when it states that
Minnesota's two-parent notice law is an "oddity among state and federal
consent provisions." Ante, at 454.
|
| [138] |
III
|
| [139] |
At least two Members of the Court concede, as they must, that a State
has a legitimate interest in the welfare of the pregnant minor and that,
in furtherance of this interest, the State may require the minor to
notify, and consult with, one of her parents. See ante, at 444-446
(opinion of STEVENS, J.); cf. ante, at 469 (MARSHALL, J., concurring in
part, concurring in judgment in part, and dissenting in part). The Court
nonetheless holds the Minnesota statute unconstitutional because it
requires the minor to notify not one parent, but both parents, a
requirement that the Court says bears no
reasonable relation to the minor's welfare. See ante, at 450-455; cf.
ante, at 469-472 (MARSHALL, J., concurring in part, concurring in judgment
in part, and dissenting in part). The Court also concludes that Minnesota
does not have a legitimate interest in facilitating the participation of
both parents in the care and upbringing of their children. Given the
substantial protection that minors have under Minnesota law generally, and
under the statute in question, the judicial bypass provisions of the law
are not necessary to its validity. The two-parent notification law enacted
by Minnesota is, in my view, valid without the judicial bypass provision
of subdivision 6.
|
| [140] |
A
|
| [141] |
We have been over much of this ground before. It is beyond dispute
that in many families, whether the parents are living together or apart,
notice to both parents serves the interests of the parents and the minor,
and that the State can legislate with this fact in mind. In H. L. v.
Matheson, 450 U.S. 398 (1981), we considered the
constitutionality of a statute which required a physician, before
performing an abortion on a minor, to "'[n]otify, if possible, the
[minor's] parents or guardian.'" Id., at 400 (quoting Utah Code Ann.
76-7-304 (1978)) (emphasis added). We held that the statute, as applied to
unmarried, dependent, and immature minors, "plainly serves important state
interests, is narrowly drawn to protect only those interests, and does not
violate any guarantees of the Constitution." 450 U.S., at 413. Our holding was made with knowledge of the contentions,
supported by citations to medical and sociological literature, that are
proffered again today for the proposition that notification imposes
burdens on minors. See id., at 436-441 (MARSHALL, J., dissenting). We
nonetheless rejected arguments that a requirement of parental notification
was the equivalent of a requirement of parental consent, id., at 411; that
the statute was unconstitutional because it required notification only as
to abortions, and not as to other medical procedures,
id., at 412; and that the statute was unconstitutional because it might
deter some minors from seeking abortions, id., at 413.
|
| [142] |
Our decision was based upon the well-accepted premise that we must
defer to a reasonable judgment by the state legislature when it determines
what is sound public policy. JUSTICE STEVENS' opinion concurring in the
Court's judgment relied upon an explicit statement of this principle.
Concluding that the Utah statute requiring notification of both parents
was valid as to all unmarried minors, both mature and immature, JUSTICE
STEVENS reasoned that the State's interest in ensuring that a young woman
considering an abortion receive appropriate consultation was "plainly
sufficient to support a state legislature's determination that such
appropriate consultation should include parental advice." Id., at 423. The
Court today departs from this rule. It now suggests that a general
requirement that both parents be notified is unconstitutional because of
its own conclusion that the law is unnecessary when notice produces
favorable results, see ante, at 450, and irrational in all of the
instances when it produces unfavorable results, see ante, at 450-451. In
Matheson, JUSTICE STEVENS rejected these same arguments as insufficient to
establish that the Utah statute was unconstitutional:
|
| [143] |
"Of course, a conclusion that the Utah statute is invalid would not
prevent young pregnant women from voluntarily seeking the advice of their
parents prior to making the abortion decision. But the State may
legitimately decide that such consultation should be made more probable by
ensuring that parents are informed of their daughter's decision . . .
.
|
| [144] |
"Utah's interest in its parental-notice statute is not diminished by
the fact that there can be no guarantee that meaningful parent-child
communication will actually occur. Good-faith compliance with the
statute's requirements would
tend to facilitate communication between daughters and parents regarding
the abortion decision. The possibility that some parents will not react
with compassion and understanding upon being informed of their daughter's
predicament or that, even if they are receptive, they will incorrectly
advise her, does not undercut the legitimacy of the State's attempt to
establish a procedure that will enhance the probability that a pregnant
young woman exercise as wisely as possible her right to make the abortion
decision." 450 U.S., at 423-424 (emphasis
added).
|
| [145] |
JUSTICE STEVENS' reasoning was correct then, and it remains correct
today.
|
| [146] |
B
|
| [147] |
In applying the standards established in our prior decisions to the
cases at hand, "we must keep in mind that when we are concerned with
extremely sensitive issues, such as the one involved here, "the
appropriate forum for their resolution in a democracy is the legislature.
We should not forget that "legislatures are ultimate guardians of the
liberties and welfare of the people in quite as great a degree as the
courts." Missouri, K. & T. R. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.).' Maher v. Roe, 432 U.S.
464, 479-480 (1977) (footnote omitted)." Akron v. Akron Center
for Reproductive Health, Inc., 462 U.S. 416, 465
(1983) (O'CONNOR, J., dissenting). The Minnesota Legislature, like the
legislatures of many States, has found it necessary to address the issue
of parental notice in its statutory laws. In my view it has acted in a
permissible manner.
|
| [148] |
All must acknowledge that it was reasonable for the legislature to
conclude that in most cases notice to both parents will work to the
minor's benefit. See Bellotti II, 443 U.S., at 640,
n. 20 (opinion of Powell, J.) (parental involvement, if compassionate and
supportive, is highly desirable). This is true not only in what the Court
calls the "ideal family setting," where both parents and the minor live
under one roof, but
also where the minor no longer lives with both parents. The Court does not
deny that many absent parents maintain significant ties with their
children, and seek to participate in their lives, to guide, to teach, and
to care for them. It is beyond dispute that these attachments, in cases
not involving mistreatment or abuse, are essential to the minor's
well-being, and that parental notice is supportive of this kind of family
tie. Although it may be true that notice to one parent will often result
in notice to both, the State need not rely upon the decision of one parent
to notify the other, particularly where both parents maintain ties with
their daughter but not with each other, and when both parents share
responsibilities and duties with respect to the child.
|
| [149] |
I acknowledge that in some cases notifying both parents will not
produce desirable results despite the fact that no actual instance is in
the record before us, as the two-parent notification requirement was
enjoined before it went into effect. Cf. ante, at 438 (stating as a matter
of historical fact that the "two-parent notification requirement had
particularly harmful effects on both the minor and the custodial parent"
and that fears that notification of an absent parent would produce harmful
results " were often realized") (emphasis added). We need not decide
today, however, whether the Constitution permits a State to require that a
physician notify both biological parents before performing an abortion on
any minor, for the simple reason that Minnesota has not enacted such a
law.
|
| [150] |
The Minnesota statute in fact contains exceptions to ensure that the
statutory notice requirement does not apply if it proves a serious threat
to the minor's health or safety. First, the statute does not require
notice at all costs; to comply with the law, a physician need only use
"reasonably diligent effort" to locate and notify both of the minor's
parents. If the second parent cannot be located, as may be the case if the
parent has deserted the family or ceased to maintain contact with the
minor or the other parent, the only notice required is to the first
parent. Minn. Stat. 144.343(3) (1988). Second,
even where both parents can be located, notice is not required if the
physician certifies that the abortion is necessary to prevent the woman's
death and there is insufficient time to provide the required notice,
144.343(4)(a); if the minor's parents have authorized the abortion in
writing, 144.343(4)(b); or if the minor declares that she is the victim of
sexual abuse, neglect, or physical abuse, 144.343(4)(c). Under Minnesota
law, "neglect" of a minor means the failure of a parent "to supply a child
with necessary food, clothing, shelter or medical care when reasonably
able to do so or failure to protect a child from conditions or actions
which imminently and seriously endanger the child's physical or mental
health when reasonably able to do so," Minn. Stat. 626.556 (2)(c) (Supp.
1989); physical abuse is defined as "any physical injury inflicted by a
person responsible for the child's care on a child other than by
accidental means," 626.556(2)(d); and sexual abuse includes any sexual
contact by a parent or other person responsible for the child's care or in
a position of authority with respect to the child, 626.556(2)(a). I cannot
believe that these exceptions are too narrow to eliminate from the
statute's coverage those instances in which notice would place the minor
in danger of parental violence or other conduct that is a real threat to
the physical or mental health of the child.
|
| [151] |
The Court challenges the efficacy of this last exception because it
believes that the statutory requirement that a physician report a minor's
declaration of abuse to appropriate authorities, see Minn. Stat.
144.343(4)(c) (1988), will deter minors from using the exception. This is
not a proper basis for declaring the law invalid. Laws are not declared
unconstitutional because of some general reluctance to follow a statutory
scheme the legislature finds necessary to accomplish a legitimate state
objective. Beyond any question it is reasonable for the State to require
that physicians report declarations of abuse to ensure that mistreatment
is known to authorities responsible for the protection of minors. This requirement
is but a single manifestation of the broad duty in Minnesota to report
suspected cases of child abuse to the proper authorities. See Minn. Stat.
626.556(1) (1988) (declaring it to be the public policy of the State "to
protect children whose health or welfare may be jeopardized through
physical abuse, neglect or sexual abuse" and "to strengthen the family and
make the home, school, and community safer for children by promoting
responsible child care in all settings").
|
| [152] |
No one can contend that a minor who is pregnant is somehow less
deserving of the State's protection. It is reasonable to provide that any
minor who contends that she cannot notify her parent or parents because
she is the victim of neglect or abuse must allow the State to use its
power to investigate her declaration and protect her from harm. Any
parent, moreover, who responds to notice by threatening or harming the
minor or the other parent may be prosecuted by the State to the full
extent of its laws. See Minn. Stat. 518B.01 (1988) (Domestic Abuse Act);
Minn. Stat. 609.221, 609.222, 609.223, 609.224 (1988 and Supp. 1989)
(assault statutes); 609.341 through 609.345 (sexual abuse statutes);
609.378 (criminal neglect statute). Just as it relies upon such laws as
its first line of defense for dealing with all other instances of abuse in
family situations, so too is the State entitled to rely upon them
here.
|
| [153] |
Notwithstanding the exceptions and protections we have discussed, it
does remain possible, of course, that in some instances notifying one or
both parents will not be in the minor's best interests. Allegations of a
similar possibility, based upon sociological evidence similar to that
presented in this case, was made by the appellant in Matheson. See Brief
for Appellant in H. L. v. Matheson, O. T. 1980, No. 79-5903, pp. 10-11;
Brief for Planned Parenthood Federation of America, Inc., et al., as Amici
Curiae in Matheson 16-31. The Court there held that the parental
notification law was valid, at least as to immature minors, for the simple
reason that a law
is not invalid if it fails to further the governmental interest in every
instance. This point formed the cornerstone of JUSTICE STEVENS' concurring
opinion in Matheson, see 450 U.S., at 423-424, and it
finds its most explicit statement in the Court's opinion in Parham v. J.
R., 442 U.S., at 602-603:
|
| [154] |
"The law's concept of the family rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for
judgment required for making life's difficult decisions. More importantly,
historically, it has recognized that natural bonds of affection lead
parents to act in the best interests of their children. . .
.
|
| [155] |
"As with so many other legal presumptions, experience and reality may
rebut what the law accepts as a starting point; the incidence of child
neglect and abuse cases attest to this. That some parents 'may at times be
acting against the best interests of their children' . . . creates a basis
for caution, but is hardly a reason to discard wholesale those pages of
human experience that teach that parents generally do act in the child's
best interests."
|
| [156] |
The only cases in which a majority of the Court has deviated from this
principle are those in which a State sought to condition a minor's access
to abortion services upon receipt of her parent's consent to do so. In
Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976), the Court invalidated a Missouri law requiring that
a physician obtain the consent of one parent before performing an
abortion. The Court's reasoning was unmistakable: "[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." Id., at 74. The Court today, ignoring this
statement, relies heavily upon isolated passages from Danforth, see ante,
at 452-453, and other cases involving parental consent laws, see,
e. g., ante, at 453 (citing Bellotti II). JUSTICE MARSHALL, on the other
hand, expressly equates laws requiring parental consent with laws
requiring parental notification, see ante, at 471-472 (MARSHALL, J.,
concurring in part, concurring in judgment in part, and dissenting in
part).
|
| [157] |
The difference between notice and consent was apparent to us before
and is apparent now. Unlike parental consent laws, a law requiring
parental notice does not give any third party the legal right to make the
minor's decision for her, or to prevent her from obtaining an abortion
should she choose to have one performed. We have acknowledged this
distinction as "fundamental," and as one "substantially modify[ing] the
federal constitutional challenge." Bellotti v. Baird (Bellotti I), 428 U.S. 132, 145, 148 (1976); see also Matheson,
supra, at 411, n. 17. The law before us does not place an absolute
obstacle before any minor seeking to obtain an abortion, and it represents
a considered weighing of the competing interests of minors and their
parents.
|
| [158] |
"It cannot be doubted that as long as a state statute is within 'the
bounds of reason and [does not] assum[e] the character of a merely
arbitrary fiat . . . [then] [t]he State . . . must decide upon measures
that are needful for the protection of its people . . . .'" Akron, 462 U.S., at 459 (O'CONNOR, J., dissenting) (quoting
Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 204-205 (1912)). Like all laws of general application, the
Minnesota statute cannot produce perfect results in every situation to
which it applies; but the State is under no obligation to enact perfect
laws. The statute before us, including the 48-hour waiting period, which
is necessary to enable notified parents to consult with their daughter or
their daughter's physician, if they so wish, and results in little or no
delay, represents a permissible, reasoned attempt to preserve the parents'
role in a minor's decision to have an abortion without placing any
absolute obstacles before a minor who is determined to elect an abortion
for her own interest as she sees it. Section 144.343, without the judicial
bypass provision of subdivision 6, is constitutional. I would reverse the
contrary judgment of the Court of Appeals.
|
| [159] |
IV
|
| [160] |
Because a majority of the Court holds that the two-parent notice
requirement contained in subdivision 2 is unconstitutional, it is
necessary for the Court to consider whether the same notice requirement is
constitutional if the minor has the option of obtaining a court order
permitting the abortion to proceed in lieu of the required notice. Minn.
Stat. 144.343(6) (1988). Assuming, as I am bound to do for this part of
the analysis, that the notice provisions standing alone are invalid, I
conclude that the two-parent notice requirement with the judicial bypass
alternative is constitutional.
|
| [161] |
The Court concludes that Minnesota's two-parent notice law without a
judicial bypass is unconstitutional because of the possibility that, in
some cases, the rule would not work to the benefit of minors or their
parents. If one were to attempt to design a statute that would address the
Court's concerns, one would do precisely what Minnesota has done in
144.343(6): create a judicial mechanism to identify, and exempt from the
strictures of the law, those cases in which the minor is mature or in
which notification of the minor's parents is not in the minor's best
interests. The bypass procedure comports in all respects with our
precedents. See Bellotti II, 443 U.S., at 643-644
(opinion of Powell, J.); Planned Parenthood Assn. of Kansas City, Mo.,
Inc. v. Ashcroft, 462 U.S. 476, 491 (1983) (opinion
of Powell, J.); id., at 505 (O'CONNOR, J., concurring in judgment in part
and dissenting in part); Ohio v. Akron Center for Reproductive Health,
post, p. 502.
|
| [162] |
In providing for the bypass, Minnesota has done nothing other than
attempt to fit its legislation into the framework that we have supplied in
our previous cases. The simple fact is that our decision in Bellotti II
stands for the proposition that a two-parent consent law is constitutional
if it provides for
a sufficient judicial bypass alternative, and it requires us to sustain
the statute before us here. In Bellotti II, the Court considered the
constitutionality of a statute which required a physician to obtain, in
most circumstances, the consent of both of a minor's parents before
performing an abortion on the minor. See 443 U.S., at 625-626 (opinion of Powell, J.) (citing Mass. Gen. Laws. Ann.,
ch. 112, 12S (West Supp. 1979)). Although eight Members of the Court
concluded that the statute was unconstitutional, five indicated that they
would uphold a two-parent consent statute with an adequate judicial
bypass.
|
| [163] |
For four of the eight Justices forming the majority in Bellotti II,
the failure of the statute lay in its inadequate bypass procedure, not its
requirement that both of the minor's parents consent to the abortion. See 443 U.S., at 643 (opinion of Powell, J.). Justice
Powell's opinion specifically stated that "if the State decides to require
a pregnant minor to obtain one or both parents' consent to an abortion, it
also must provide an alternative procedure whereby authorization for the
abortion can be obtained," ibid. (emphasis added; footnote omitted), and
then stated the minimum requirements for such a procedure. In response to
the dissent's contention that his opinion was advisory, Justice Powell
stated that the four Members of the Court thought it
necessary
|
| [164] |
"to provide some guidance as to how a State constitutionally may
provide for adult involvement -- either by parents or a state official
such as a judge -- in the abortion decision of minors. In view of the
importance of the issue raised, and the protracted litigation to which
these parties already have been subjected, we think it would be
irresponsible simply to invalidate [the Massachusetts law] without stating
our views as to the controlling principles." Id., at 652, n.
32.
|
| [165] |
See also id., at 651-652 (REHNQUIST, J., concurring) (joining Justice
Powell's opinion because "unless and until [the Court is willing to
overrule Danforth ], literally thousands of judges cannot
be left with nothing more than the guidance offered by a truly fragmented
holding of this Court").
|
| [166] |
JUSTICE WHITE dissented from the Court's judgment that the
Massachusetts statute was unconstitutional. In his view no bypass was
necessary, so it must follow that a two-parent consent statute with an
adequate bypass procedure would have been valid. See id., at 656-657. In
sum, five Members of the Court in Bellotti II found, either by express
statement or by implication, that it was permissible under the
Constitution for a State to require the consent of two parents, as long as
it provides a consent substitute in the form of an adequate judicial
bypass procedure.
|
| [167] |
I cannot accept JUSTICE STEVENS' suggestion today that Justice Powell,
in announcing these rules, did not "conside[r]" the fact that he was doing
so in the context of a two-parent consent requirement, see ante, at 34.
The statute was explicit in its command that both parents consent to the
abortion. See 443 U.S., at 625-626. Justice Powell
indicated that he was aware of this fact, see id., at 630, and n. 10, and
the dissent drew a specific contrast between the two-parent consent
requirement then before the Court and the one-parent consent requirement
before the Court in Danforth, see id., at 656-657 (opinion of WHITE, J.);
see also id., at 653 (STEVENS, J., concurring in judgment). Aware of all
of these circumstances, Justice Powell stated the controlling principles
with specific reference to laws requiring the consent of "one or both"
parents. Id., at 643. Justice Powell's considered reasoning, coupled with
the dissenting views of JUSTICE WHITE, was intended to set forth the
dispositive principles of law for deciding the constitutionality of
parental consent laws. The Court has relied upon these principles in
deciding the constitutionality of laws requiring notice or the consent of
one parent, see Akron v. Akron Center for Reproductive Health, Inc., 462 U.S., at 439-442 (consent); Ohio v. Akron Center
for Reproductive Health, post, at 511-514 (notice). As Bellotti II dealt
with the far more demanding requirement
of two-parent consent, and approved of such a requirement when coupled
with a judicial bypass alternative, I must conclude that these same
principles validate a two-parent notice requirement when coupled with a
judicial bypass alternative.
|
| [168] |
A second precedent that compels the conclusion that a two-parent
notice law with a judicial bypass alternative is constitutional is our
decision in Matheson. There we held that a two-parent notice statute
without a bypass was constitutional as applied to immature minors whose
best interests would be served by notice. Like the statute before the
Court in Matheson, the Minnesota statute, as amended by subdivision 6,
requires a physician to notify the parents of those immature minors whose
best interest will be served by the communication.
|
| [169] |
If a two-parent notification law may be constitutional as applied to
immature minors whose best interests are served by the law, but not as
applied to minors who are mature or whose best interests are not so
served, a judicial bypass is an expeditious and efficient means by which
to separate the applications of the law which are constitutional from
those which are not. JUSTICE STEVENS' characterization of the judicial
bypass procedure discussed in our past cases as a necessary "exception" to
a "reasonable general rule," such as a one-parent consent requirement, see
ante, at 456, 457, is far off the mark. If a judicial bypass is mandated
by the Constitution at all, it must be because a general consent rule is
unreasonable in at least some of its applications, and the bypass is
necessary to save the statute. See, e. g., Bellotti II, supra, at 643
(opinion of Powell, J.); Matheson, 450 U.S., at 420
(Powell, J., concurring). No reason can be given for refusing to apply a
similar analysis to the less demanding case of a notice statute. It
follows that a similar result should obtain: A law that requires notice to
one or both parents is constitutional with a bypass. I thus concur in that
portion of the judgment announced, but not agreed with, by JUSTICE STEVENS
which
affirms the Court of Appeals' conclusion that 144.343(6) is
constitutional.
|
| [170] |
V
|
| [171] |
In this case, the Court rejects a legislature's judgment that parents
should at least be aware of their daughter's intention to seek an
abortion, even if the State does not empower the parents to control the
child's decision. That judgment is rejected although it rests upon a
tradition of a parental role in the care and upbringing of children that
is as old as civilization itself. Our precedents do not permit this
result.
|
| [172] |
It is true that for all too many young women the prospect of two
parents, perhaps even one parent, sustaining her with support that is
compassionate and committed is an illusion. Statistics on drug and alcohol
abuse by parents and documentations of child neglect and mistreatment are
but fragments of the evidence showing the tragic reality that becomes
day-to-day life for thousands of minors. But the Court errs in serious
degree when it commands its own solution to the cruel consequences of
individual misconduct, parental failure, and social ills. The legislative
authority is entitled to attempt to meet these wrongs by taking reasonable
measures to recognize and promote the primacy of the family tie, a concept
which this Court now seems intent on declaring a constitutional
irrelevance.
|
| |
|
| |
General Footnotes
|
| |
|
| [173] |
*fn* Together with No. 88-1309, Minnesota et
al. v. Hodgson et al., also on certiorari to the same court.
|
| |
|
| |
Counsel Footnotes
|
| |
|
| [174] |
*fn** Briefs of amici curiae urging reversal
were filed for the American Psychological Association et al. by Donald N.
Bersoff and Mark D. Schneider; and for the Anti-Defamation League of B'Nai
B'rith et al. by Kenneth J. Bialkin, Peggy L. Kerr, Meyer Eisenberg,
Justin J. Finger, Jeffrey P. Sinensky, Steven M. Freeman, Jill L. Kahn,
and Livia D. Thompson. Clarke D. Forsythe and Kent Masterson Brown filed a
brief for the Association of American Physicians and Surgeons as amicus
curiae urging affirmance. Briefs of amici curiae were filed for the United
States by Solicitor General Starr, Acting Assistant Attorney General
Schiffer, Deputy Solicitor General Merrill, Paul J. Larkin, Jr., Stephen
J. Marzen, and Steven R. Valentine; for the State of Louisiana et al. by
William J. Guste, Jr., Attorney General of Louisiana, Jenifer Schaye and
Meredith H. Lieux, Assistant Attorneys General, Jo Ann P. Levert, Thomas
A. Rayner, Robert K. Corbin, Attorney General of Arizona, William L.
Webster, Attorney General of Missouri, and Ernest D. Preate, Jr., Attorney
General of Pennsylvania; for 274 Organizations in Support of Roe v. Wade
by Kathleen M. Sullivan, Susan R. Estrich, Barbara Jordan, and Estelle H.
Rogers; for the American Academy of Medical Ethics by Joseph W.
Dellapenna; for the American College of Obstetricians and Gynecologists et
al. by Carter G. Phillips, Elizabeth H. Esty, Ann E. Allen, Stephan E.
Lawton, Laurie R. Rockett, and Joel I. Klein; for American Family
Association, Inc., by Peggy M. Coleman; for the Catholic League for
Religious and Civil Rights et al. by Nancy J. Gannon and Thomas W.
Strahan; for the Center for Population Options et al. by John H. Henn; for
the Elliot Institute for Social Sciences Research et al. by Stephen R.
Kaufmann; for Focus on the Family et al. by H. Robert Showers; for the
Knights of Columbus by Brendan V. Sullivan, Jr., Kevin J. Hasson, and Carl
A. Anderson; for the Luthern Church-Missouri Synod by Philip E. Draheim;
for the National Right to Life Committee, Inc., by James Bopp, Jr.; for
the United States Catholic Conference by Mark E. Chopko; for
Representative Christopher H. Smith et al. by Mr. Bopp; for Members of the
General Assembly of the Commonwealth of Pennsylvania by Maura K. Quinlin
and Philip J. Murren; for 13 Individual Members of the Panel on Adolescent
Pregnancy and Childbearing or the Committee on Child Development Research
and Public Policy by Hannah E. M. Lieberman and Pamela H. Anderson; and
for James Joseph Lynch, Jr., pro se.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [175] |
*fn1 Subdivision 1 of 144.343 presently
provides:
"Any minor may give effective consent for medical, mental and other
health services to determine the presence of or to treat pregnancy and
conditions associated therewith, venereal disease, alcohol and other drug
abuse, and the consent of no other person is required." The statute
permits the health professional treating the minor to notify parents only
when a failure to do so would jeopardize the minor's health. Minn. Stat.
144.346 (1988).
|
| [176] |
*fn2 See Haw. Rev. Stat. 577A-2 (1976); Mo. Rev.
Stat. 431.062 (Supp. 1971). See generally Pilpel & Zuckerman, Abortion
and the Rights of Minors, in Abortion, Society and the Law 275, 279-280
(D. Walbert & J. Butler eds. 1973).
|
| [177] |
*fn3 Although there is no statutory definition
of emancipation in Minnesota, see Streitz v. Streitz, 363 N. W. 2d 135,
137 (Minn. App. 1985), we have no reason to question the State's
representation that Minn. Stat. 144.341 and 144.342 (1988) apply to the
minor's decision to terminate her pregnancy. Brief for Respondents in No.
88-1125, p. 2, n. 2. Those sections provide that a minor who is living
separate and apart from her parents or who is either married or has borne
a child may give effective consent to medical services without the consent
of any other person.
The notification statute also applies to a woman for whom a guardian or
conservator has been appointed because of a finding of incompetency.
144.343(2). This portion of the statute is not challenged in this
case.
|
| [178] |
*fn4 Subdivision 2 provides:
"Notwithstanding the provisions of section 13.02, subdivision 8, no
abortion operation shall be performed upon an unemancipated minor . . . .
until at least 48 hours after written notice of the pending operation has
been delivered in the manner specified in subdivisions 2 to 4. "(a) The
notice shall be addressed to the parent at the usual place of abode of the
parent and delivered personally to the parent by the physician or an
agent. "(b) In lieu of the delivery required by clause (a), notice shall
be made by certified mail addressed to the parent at the usual place of
abode of the parent with return receipt requested and restricted delivery
to the addressee which means postal employee can only deliver the mail to
the authorized addressee. Time of delivery shall be deemed to occur at 12
o'clock noon on the next day on which regular mail delivery takes place,
subsequent to mailing."
|
| [179] |
*fn5 The Minnesota statute is the most intrusive
in the Nation. Of the 38 States that require parental participation in the
minor's decision to terminate her pregnancy, 27 make express that the
participation of only one parent is required. An additional three States,
Idaho, Tennessee, and Utah, require an unmarried minor to notify "the
parents or guardian" but do not specify whether "parents" refers to either
member of the parental unit or whether notice to one parent constitutes
constructive notice to both. See Idaho Code 18-609(6) (1987); Tenn. Code
Ann. 39-15-202(f) (Supp. 1989); Utah Code Ann. 76-7-304(2) (1990). In
contrast, Arkansas does require an unmarried minor to notify both parents
but provides exceptions where the second parent "cannot be located through
reasonably diligent effort," or a parent's "whereabouts are unknown," the
parent has not been in contact with the minor's custodial parent or the
minor for at least one year, or the parent is guilty of sexual abuse. Ark.
Code Ann. 20-16-802, 20-16-808 (Supp. 1989). Delaware requires the consent
only of parents who are residing in the same household; if the minor is
not living with both of her parents, the consent of one parent is
sufficient. Del. Code. Ann., Tit. 24, 1790(b)(3) (1987). Illinois law does
not require the consent of a parent who has deserted the family or is not
available. Ill. Rev. Stat., ch. 38, para. 81-54(3) (1989). Kentucky
requires an unmarried minor to obtain the consent of a legal guardian or
"both parents, if available," but provides that if both parents are not
available, the consent of the available parent shall suffice. Ky. Rev.
Stat. Ann. 311.732(2)(a), (b) (Michie 1990). Under Massachusetts law, an
unmarried minor need obtain the consent of only one parent if the other
parent "is unavailable to the physician within a reasonable time and in a
reasonable manner," or if the parents are divorced and the other parent
does not have custody. Mass. Gen. Laws 112:12S (1988). Mississippi law
requires only the consent of the parent with primary custody, care, and
control of the minor if the parents are divorced or unmarried and living
apart and, in all other cases, the consent of only one parent if the other
parent is not available in a reasonable time or manner. Miss. Code Ann.
41-41-53(2) (Supp. 1989). Finally, North Dakota requires only the consent
of the custodial parent if the parents are separated and divorced, or the
legal guardian if the minor is subject to guardianship. N. D. Cent. Code
14-02.1-03.1 (1981).
|
| [180] |
*fn6 Subdivision 3 provides, in part:
"For purposes of this section, 'parent' means both parents of the
pregnant woman if they are both living, one parent of the pregnant woman
if only one is living or if the second one cannot be located through
reasonably diligent effort, or the guardian or conservator if the pregnant
woman has one."
|
| [181] |
*fn7 Subdivision 4 provides:
"No notice shall be required under this section if: "(a) The attending
physician certifies in the pregnant woman's medical record that the
abortion is necessary to prevent the woman's death and there is
insufficient time to provide the required notice; or "(b) The abortion is
authorized in writing by the person or persons who are entitled to notice;
or "(c) The pregnant minor woman declares that she is a victim of sexual
abuse, neglect, or physical abuse as defined in section 626.556. Notice of
that declaration shall be made to the proper authorities as provided in
section 626.556, subdivision 3." Under Minn. Stat. 626.556 (1988), if the
minor declares that she is the victim of abuse, the notified physician or
physician's agent must report the abuse to the local welfare or law
enforcement agency within 24 hours, 626.556(3)(a), (3)(e), whereupon the
welfare agency "shall immediately conduct an assessment and offer
protective social services for purposes of preventing further abuses,
safeguarding and enhancing the welfare of the abused or neglected minor,
and preserving family life whenever possible." 626.556(10)(a). If the
agency interviews the victim, it must notify the parent of the fact of the
interview at the conclusion of the investigation unless it obtains a court
order. 626.556(10)(c). Individuals who are subjects of the investigation
have a right of access to the record of the investigation.
626.556(11).
|
| [182] |
*fn8 Subdivision 5 provides:
"Performance of an abortion in violation of this section shall be a
misdemeanor and shall be grounds for a civil action by a person wrongfully
denied notification. A person shall not be held liable under this section
if the person establishes by written evidence that the person relied upon
evidence sufficient to convince a careful and prudent person that the
representations of the pregnant woman regarding information necessary to
comply with this section are bona fide and true, or if the person has
attempted with reasonable diligence to deliver notice, but has been unable
to do so."
|
| [183] |
*fn9 Subdivision 6 provides:
"If subdivision 2 of this law is ever temporarily or permanently
restrained or enjoined by judicial order, subdivision 2 shall be enforced
as though the following paragraph were incorporated as paragraph (c) of
that subdivision; provided, however, that if such temporary or permanent
restraining order or injunction is ever stayed or dissolved, or otherwise
ceases to have effect, subdivision 2 shall have full force and effect,
without being modified by the addition to the following substitute
paragraph which shall have no force or effect until or unless an
injunction or restraining order is again in effect. "(c) (i) If such a
pregnant woman elects not to allow the notification of one or both of her
parents or guardian or conservator, any judge of a court of competent
jurisdiction shall, upon petition, or motion, and after an appropriate
hearing, authorize a physician to perform the abortion if said judge
determines that the pregnant women is mature and capable of giving
informed consent to the proposed abortion. If said judge determines that
the pregnant woman is not mature, or if the pregnant woman does not claim
to be mature, the judge shall determine whether the performance of an
abortion upon her without notification of her parents, guardian, or
conservator would be in her best interests and shall authorize a physician
to perform the abortion without such notification if said judge concludes
that the pregnant woman's best interests would be served thereby. "(ii)
Such a pregnant woman may participate in proceedings in the court on her
own behalf, and the court may appoint a guardian ad litem for her. The
court shall, however, advise her that she has a right to court appointed
counsel, and shall, upon her request, provide her with such counsel.
"(iii) Proceedings in the court under this section shall be confidential
and shall be given such precedence over other pending matters so that the
court may reach a decision promptly and without delay so as to serve the
best interests of the pregnant woman. A judge of the court who conducts
proceedings under this section shall make in writing specific factual
findings and legal conclusions supporting the decision and shall order a
record of the evidence to be maintained including the judge's own findings
and conclusions. "(iv) An expedited confidential appeal shall be available
to any such pregnant woman for whom the court denies an order authorizing
an abortion without notification. An order authorizing an abortion without
notification shall not be subject to appeal. No filing fees shall be
required of any such pregnant woman at either the trial or the appellate
level. Access to the trial court for the purposes of such a petition or
motion, and access to the appellate courts for purposes of making an
appeal from denial of the same, shall be afforded such a pregnant woman 24
hours a day, seven days a week."
|
| [184] |
*fn10 Brief for Petitioner in No. 88-1309, p. 4
(hereinafter Minn. Br.); see also id., at 8-9.
|
| [185] |
*fn11 "The Minnesota legislature had several
purposes in mind when it amended Minn. Stat. 144.343 in 1981. The primary
purpose was to protect the well-being of minors by encouraging minors to
discuss with their parents the decision whether to terminate their
pregnancies. Encouraging such discussion was intended to achieve several
salutory results. Parents can provide emotional support and guidance and
thus forestall irrational and emotional decision-making. Parents can also
provide information concerning the minor's medical history of which the
minor may not be aware. Parents can also supervise post-abortion care. In
addition, parents can support the minor's psychological well-being and
thus mitigate adverse psychological sequelae that may attend the abortion
procedure." 648 F. Supp. 756, 765-766 (Minn. 1986).
|
| [186] |
*fn12 The District Court's finding 59 reads as
follows:
"The court finds that a desire to deter and dissuade minors from
choosing to terminate their pregnancies also motivated the legislature.
Testimony before a legislative committee considering the proposed
notification requirement indicated that influential supporters of the
measure hoped it 'would save lives' by influencing minors to carry their
pregnancies to term rather than aborting." Id., at 766.
|
| [187] |
*fn13 "The court also found that a desire to
dissuade minors from choosing to terminate their pregnancies also
motivated the legislature. Finding 59, Hodgson Appendix 25a. This finding
was based on no more than the testimony before a legislative committee of
some supporters of the act who hoped it 'would save lives.' There is no
direct evidence, however, that this was the motive of any legislator."
Minn. Br. 4, n. 2.
|
| [188] |
*fn14 On January 23, 1985, the court granted
partial summary judgment in favor of defendants on several of the
plaintiffs' claims, but reserved ruling on the constitutionality of
subdivision 6 as applied until after trial.
|
| [189] |
*fn15 "Where the underlying notification
provision is unconstitutional because with respect to children of broken
families it fails to further the state's significant interests, however, a
mature minor or minor whose best interests are contrary to notifying the
non-custodial parent is forced to either suffer the unconstitutional
requirement or submit to the burdensome court bypass procedure. Such a
Hobson's choice fails to further any significant interest. Just as there
must be a constitutional judicial alternative to a notice requirement, so
there must be a constitutional notice or consent alternative to the court
bypass.
"The second reason for our conclusion that the court bypass procedure
does not save the two-parent notification requirement is that where 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. In situations where the
minor has a good relationship with the non-custodial parent but the
custodial parent does not, there is nothing to prevent the minor from
consulting with the non-custodial parent if she so desires. The minor and
custodial parent, however, 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." App. to Pet. for
Cert. in No. 88-1125, pp. 68a-69a (citations omitted).
|
| [190] |
*fn16 The panel did not reach the question of
the constitutionality or severability of the mandatory 48-hour waiting
period. A concurring judge agreed with the panel that a requirement that a
pregnant minor seeking an abortion notify a non-custodial parent could not
withstand constitutional scrutiny and was not saved by a court bypass
procedure. Id., at 72a.
|
| [191] |
*fn17 853 F.2d, at 1460,
quoting from Justice Powell's opinion in Bellotti v. Baird, 443
U.S. 622, 640-641 (1979) (Bellotti II).
|
| [192] |
*fn18 The court also suggested that the statute
furthered the "state interest in providing an opportunity for parents to
supply essential medical and other information to a physician,"
853 F.2d, at 1461, but the State has not argued here
that that interest provides an additional basis for upholding the
statute.
|
| [193] |
*fn19 The court also rejected the argument that
the statute violated the Equal Protection Clause by singling out abortion
as the only pregnancy-related medical procedure requiring notification.
Id., at 1466. The equal protection challenge is not renewed
here.
|
| [194] |
*fn20 See n. 14, supra.
|
| [195] |
*fn21 The District Court found:
"During the period for which statistics have been compiled, 3,573
bypass petitions were filed in Minnesota courts. Six petitions were
withdrawn before decision. Nine petitions were denied and 3,558 were
granted." Finding No. 55, 648 F. Supp., at
765.
|
| [196] |
*fn22 Planned Parenthood of Central Mo. v.
Danforth, 428 U.S. 52, 72-75 (1976); Bellotti v.
Baird, 428 U.S. 132 (1976) (Bellotti I); Bellotti II,
443 U.S. 622 (1979); H. L. v. Matheson, 450
U.S. 398 (1981); Akron v. Akron Center for Reproductive Health,
Inc., 462 U.S. 416, 439-442 (1983); and Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S.
476, 490-493 (1983); id., at 505 (O'CONNOR, J., concurring in
judgment in part and dissenting in part).
|
| [197] |
*fn23 The Utah statute reviewed in Matheson
required the physician to "[n]otify, if possible, the parents or guardian
of the woman upon whom the abortion is to be performed." Utah Code Ann.
76-7-304(2) (1990). Unlike the Minnesota statute under review today, the
Utah statute did not define the term "parents." The statute is ambiguous
as to whether the term refers to each parent individually or rather to the
parental unit, which could be represented by either the mother or the
father, and neither the argument nor the discussion in Matheson indicated
that notice to both parents was required. State law, to the extent it
addresses the issue, is to the contrary: Although Utah law provides that a
non-custodial parent retains the right to consent to marriage, enlistment,
and the performance of major medical or surgical treatment, the right to
notice of the minor's abortion is not among the parent's specific residual
rights and duties. Utah Code Ann. 78-3a-2(13) (Supp. 1989).
|
| [198] |
*fn24 The figures are not dissimilar to those
throughout the Nation. See, e. g., Brief for American Psychological
Association et al. as Amici Curiae 12-13 ("It is estimated that by age 17,
70 percent of white children born in 1980 will have spent at least some
time with only one parent, and 94 percent of black children will have
lived in one-parent homes") (citing Hofferth, Updating Children's Life
Course, 47 J. Marriage and Fam. 93 (1985)).
|
| [199] |
*fn25 "Studies indicating that family violence
occurs in two million families in the United States substantially
underestimate the actual number of such families. In Minnesota alone,
reports indicate that there are an average of 31,200 incidents of assault
on women by their partners each year. Based on these statistics, state
officials suggest that the 'battering' of women by their partners 'has
come to be recognized as perhaps the most frequently committed violent
crime in the state' of Minnesota. These numbers do not include incidents
of psychological or sexual abuse, low-level physical abuse, abuse of any
sort of the child of a batterer, or those incidents which are not
reported. Many minors in Minnesota live in fear of violence by family
members; many of them are, in fact, victims of rape, incest, neglect and
violence. It is impossible to accurately assess the magnitude of the
problem of family violence in Minnesota because members of dysfunctional
families are characteristically secretive about such matters and minors
are particularly reluctant to reveal violence or abuse in their families.
Thus the incidence of such family violence is dramatically underreported."
648 F. Supp., at 768-769.
|
| [200] |
*fn26 "Minors who are victims of sexual or
physical abuse often are reluctant to reveal the existence of the abuse to
those outside the home. More importantly, notification to government
authorities creates a substantial risk that the confidentiality of the
minor's decision to terminate her pregnancy will be lost. Thus, few minors
choose to declare they are victims of sexual or physical abuse despite the
prevalence of such abuse in Minnesota, as elsewhere." Id., at
764.
|
| [201] |
*fn27 As one of the guardians ad litem
testified, "We have had situations reported to me by my other guardians as
well as teenagers that I talked to myself who have said that they will
consider telling one parent, usually mom, sometimes dad, but since they
would have to go to court anyway, because they are absolutely sure they
don't want the other parent to know, they don't tell either one." App. 239
(Testimony of Susanne Smith).
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| [202] |
*fn28 See n. 21, supra.
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| [203] |
*fn29 One testified that minors found the
bypass procedure "'a very nerveracking experience,'" Finding 60, 648 F. Supp., at 766; another testified that the
minor's "'level of apprehension is twice what I normally see in court.'"
Ibid. A Massachusetts judge who heard similar petitions in that State
expressed the opinion that "going to court was 'absolutely' traumatic for
minors . . . 'at a very, very difficult time in their lives.'" Ibid. One
judge stated that he did not "perceive any useful public purpose to what I
am doing in these cases" and that he did not "see anything that is being
accomplished that is useful to anybody." Testimony of Gerald C. Martin,
App. in No. 86-5423 (CA8), pp. A-488 -- A-489.
The public defenders and guardians ad litem gave similar testimony. See
Testimony of Cynthia Daly (public defender), App. 187 (bypass "was another
hoop to jump through and a very damaging and stress-producing procedure
that didn't do any good"); Testimony of Susanne Smith (guardian ad litem),
id., at 234 ("The teenagers that we see in the guardian's office are very
nervous, very scared. Some of them are terrified about court processes.
They are often exhausted. . . . They are upset about and tell us that they
are upset about the fact that they have to explain very intimate details
of their personal lives to strangers. They talk about feeling that they
don't belong in the court system, that they are ashamed, embarrassed and
somehow that they are being punished for the situation they are in");
Testimony of Heather Sweetland (public defender), App. in No. 86-5423
(CA8), p. A-585 ("Most of the women that are my clients in these hearings
are scared . . . . Some of them will relax slightly but the majority of
them are very nervous"). Doctor Hodgson, one of the plaintiffs in this
case, testified that when her minor patients returned from the court
process, "some of them are wringing wet with perspiration. They're
markedly relieved, many of them. They -- they dread the court procedure
often more than the actual abortion procedure. And it -- it's frequently
necessary to give them a sedative of some kind beforehand." App.
468.
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| [204] |
*fn30 According to the testimony at trial,
parents who participated in the bypass procedure -- many of whom had never
before been in court -- were "real upset" about having to appear in court,
id., at 167, and were "angry, they were worried about their kid and they
were nervous too." Id., at 186.
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| [205] |
*fn31 "Properly understood . . . the tradition
of parental authority is not inconsistent with our tradition of individual
liberty; rather, the former is one of the basic presuppositions of the
latter. Legal restrictions on minors, especially those supportive of the
parental role, may be important to the child's chances for the full growth
and maturity that make eventual participation in a free society meaningful
and rewarding." Bellotti II, 443 U.S., at 638-639
(opinion of Powell, J.).
See also Stanford v. Kentucky, 492 U.S. 361,
394-396 (1989) (BRENNAN, J., dissenting); Thompson v. Oklahoma,
487 U.S. 815, 825-826, n. 23 (1988) (plurality
opinion).
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| [206] |
*fn32 Under common-law principles, one parent
has authority to act as agent for the other in matters of their child's
upbringing and education. See E. Spencer, Law of Domestic Relations 432
(1911); T. Reeve, Law of Baron and Femme 295 (1816).
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| [207] |
*fn33 "Certainly the safeguarding of the home
does not follow merely from the sanctity of property rights. The home
derives its pre-eminence as the seat of family life. And the integrity of
that life is something so fundamental that it has been found to draw to
its protection the principles of more than one explicitly granted
Constitutional right." Poe v. Ullman, 367 U.S. 497,
551-552 (1961) (Harlan, J., dissenting).
Far more than contraceptives, at issue in Poe and Griswold v.
Connecticut, 381 U.S. 479 (1965), the married couple
has a well-recognized interest in protecting the sanctity of their
communications from undue interference by the State. See, e. g., Stein v.
Bowman, 13 Pet. 209, 223 (1839) ("This rule is founded upon the deepest
and soundest principles of our nature. Principles which have grown out of
those domestic relations, that constitute the basis of civil society; and
which are essential to the enjoyment of that confidence which should
subsist between those who are connected by the nearest and dearest
relations of life. To break down or impair the great principles which
protect the sanctities of husband and wife, would be to destroy the best
solace of human existence"); 2 W. Best, Principles of Law of Evidence
994-995 (1st Am. ed. 1876); 1 S. Greenleaf, Law of Evidence 286-287 (12th
ed. 1866); 1 M. Phillips, Law of Evidence 69-80 (3d ed.
1849).
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| [208] |
*fn34 The record contains the telephone
training manual of one clinic which contemplates that notification will be
made on the date the patient contacts the clinic to arrange an abortion so
that the appointment can be scheduled for a few days later. Since that
clinic typically has a 1- to 2-day backlog, App. 146-147, the statutory
waiting period creates little delay.
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| [209] |
*fn35 Akron v. Akron Center for Reproductive
Health, Inc., 462 U.S., at 449, upon which the
plaintiffs rely, is not to the contrary. There we invalidated a provision
that required that mature women, capable of consenting to an abortion,
wait 24 hours after giving consent before undergoing an abortion. The only
legitimate state interest asserted was that the "woman's decision be
informed." Id., at 450. We decided that "if a woman, after appropriate
counseling, is prepared to give her written informed consent and proceed
with the abortion, a State may not demand that she delay the effectuation
of that decision." Id., at 450-451. By contrast, in this case, the State
asserts a legitimate interest in protecting minor women from their own
immaturity. As we explain in the text, the right of the minor to make an
informed decision to terminate her pregnancy is not defeated by the
48-hour waiting period. It is significant that the statute does not impose
a waiting period if a substitute competent decisionmaker -- a parent or
court -- gives affirmative consent to the abortion.
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| [210] |
*fn36 The most common reason for not notifying
the second parent was that that parent was a child- or spouse-batterer,
App. 204, and notification would have provoked further abuse. For example,
Judge Allen Oleisky, whose familiarity with the Minnesota statute is based
on his having heard over 1,000 petitions from minors, id., at 154,
testified that battering is a frequent crime in Minnesota, that parents
seek an exemption from the notification requirement because they have been
battered or are afraid of assault, and that notification of the father
would "set the whole thing off again in some cases." Id., at 166-167. See
also id., at 237, 245, 339. That testimony is confirmed by the
uncontradicted testimony of one of plaintiffs' experts that notice of a
daughter's pregnancy "would absolutely enrage [a batterer]. It would be
much like showing a red cape to a bull. That kind of information just
plays right into his worst fears and his most vulnerable spots. The sexual
jealousy, his dislike of his daughter going out with anybody else, would
make him very angry and would probably create severe abuse as well as long
term communication difficulties." Id., at 194 (Testimony of Lenore
Walker).
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| [211] |
*fn37 JUSTICE KENNEDY recognizes that parental
rights are coupled with parental responsibilities, post, at 483, and that
"a State [may] legislate on the premise that parents, as a general rule,
are interested in their children's welfare and will act in accord with
it," post, at 485. That, of course, is precisely our point. What the State
may not do is legislate on the generalized assumptions that a parent in an
intact family will not act in his or her child's best interests and will
fail to involve the other parent in the child's upbringing when that
involvement is appropriate.
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| [212] |
*fn38 See, e. g., Brief for American
Psychological Association et al. as Amici Curiae 6, n. 8 (state law
typically allows a minor parent -- whatever her age -- to consent to the
health care of her child); Brief for the American College of Obstetricians
and Gynecologists et al. as Amici Curiae 25 ("In areas that do not deal
with sexuality or substance abuse, states require, at most, a single
parent's consent before performing medical procedures on a
minor").
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Dissent Footnotes
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| [213] |
*fn1 I concur in Part VII on the understanding
that the opinion does not dispute that a minor's liberty interest alone
outweighs the interest of the second parent in shaping a child's values
and lifestyles, regardless of the interest of the first parent. Cf. ante,
at 452-453.
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| [214] |
*fn2 The statute provides for one-parent
notification where only one parent is living or where the second parent
"cannot be located through reasonably diligent effort." Minn. Stat.
144.343(3) (1988).
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| [215] |
*fn3 Dr. Jane Hodgson testified before the
District Court that one 14-year-old patient, in order to keep her
pregnancy private, tried to induce an abortion with the help of her
friends by inserting a metallic object into her vagina, thereby tearing
her body, scarring her cervix, and causing bleeding. When that attempt
failed to induce an abortion, the patient, then four or five months
pregnant, finally went to an abortion clinic. Because of the damage to the
patient's cervix, doctors had to perform a hysterotomy, meaning that that
woman must have a Cesarean section to deliver a child in the future. App.
462.
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| [216] |
*fn4 As JUSTICE STEVENS notes, ante, at 449,
and n. 35, the 48-hour delay does not apply if a parent or court consents
to the abortion.
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| [217] |
*fn5 Although these other factors would
constrain a young woman's ability to schedule an abortion even in the
absence of the 48-hour delay requirement, the addition of the immutable
statutory delay reduces both the woman's and the clinic's scheduling
flexibility and thus can exacerbate the effect of the other factors. For
instance, a woman might contact a clinic on Monday and find that her
schedule and the clinic's allow for only a Tuesday appointment for that
week. Without the 48-hour delay requirement, the woman could be treated
the next day; with the statutory delay, however, the woman would be forced
to wait a week.
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| [218] |
*fn6 JUSTICE STEVENS concludes that the 48-hour
delay requirement actually results in "little or no delay" because the
statutory period "may run concurrently with the time necessary to make an
appointment for the procedure." Ante, at 449. See also post, at 496
(opinion of KENNEDY, J.) ("48-hour waiting period . . . results in little
or no delay"); 853 F.2d 1452, 1465 (CA8 1988) (en
banc). JUSTICE STEVENS bases this conclusion on the testimony of the
coadministrator of one abortion clinic that a 1- or 2-day scheduling
backlog was typical. Ante, at 449, n. 34. "One or two days," however,
obviously means that the backlog is not necessarily 48 hours. Furthermore,
that witness also stated that if "a woman says that she must be seen on a
particular day our policy is we will always see her." App. 147. But
because of the mandated 48-hour delay, the clinic cannot honor a woman's
request for an abortion until at least two full days have elapsed. The
testimony therefore is hardly sufficient to justify ignoring the District
Court's factual finding with regard to the effects of the delay
requirement.
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| [219] |
*fn7 The State also asserts that the
requirements permit parents to provide doctors with relevant information
about their daughters' medical history and "to assist with ensuring that
proper after-care procedures are followed." Brief for Petitioners in No.
88-1309, pp. 34-36. See also ante, at 448 (opinion of JUSTICE STEVENS)
(delay period "permits the parent to inquire into the competency of the
doctor performing the abortion"). If these are actual state interests, it
seems peculiar that the State does not try to facilitate similar parental
involvement in minors' treatment for pregnancy and childbirth, see infra
this page, which pose far greater risks to the minor's health than
abortion, see supra, at 466-467. In any event, compelled notification is
unlikely to result in helpful parental involvement in those families in
which a parent reacts to the news of the daughter's predicament by
rejecting or abusing the young woman. See supra this page.
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| [220] |
*fn8 Dr. Hodgson testified that some minors
dread the court procedure so much that they become "wringing wet with
perspiration" and frequently require a sedative beforehand. App. 468. One
judge who has heard a significant number of bypass petitions testified
that the court experience is "'very nervewracking'" for young women. 648 F. Supp., at 766. Another testified that pregnant
minors' "'level of apprehension is twice what I normally see in court. . .
. You see all the typical things that you would see with somebody under
incredible amounts of stress, answering monosyllabically, tone of voice,
tenor of voice, shaky, wringing of hands, you know, one young lady had her
-- her hands were turning blue and it was warm in my office.'"
Ibid.
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| [221] |
*fn9 Maine, for example, requires that a minor
obtain the consent of a parent, guardian, or adult family member; undergo
a judicial bypass; or receive counseling from the physician or a counselor
according to specified criteria. See Me. Rev. Stat. Ann., Tit. 22, 1597-A
(Supp. 1989). Wisconsin requires abortion providers to encourage parental
notification unless they determine that the minor has a valid reason for
not notifying her parents. Wis. Stat. 146.78 (1987-1988). In the latter
situation, the provider must encourage -- but not require -- the minor to
notify "another family member, close family friend, school counselor,
social worker or other appropriate person." 146.78(5)(c). I express no
opinion on the constitutionality or efficacy of these schemes, but raise
them only as examples of alternatives that seem more closely related than
a judicial bypass procedure to the goal of ensuring that the minor's
decision is informed.
In any event, most abortion clinics already provide extensive
counseling. See 1 National Research Council, Risking the Future:
Adolescent Sexuality, Pregnancy, and Childbearing 191-192 (C. Hayes ed.
1987) (90% of abortion clinics routinely provide counseling for all
first-abortion patients, and all clinics make counseling available to all
patients on request).
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| [222] |
*fn10 Indeed, the State conceded in oral
argument before the Eighth Circuit, sitting en banc, that a judicial
approval provision by itself would be unconstitutional. See 853
F.2d, at 1469 (Lay, C. J.,
dissenting).
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