|Hodgson v. Minnesota
(Nos. 88-1125, 88-1309)
[ Stevens ]
[ O'Connor ]
[ Marshall ]
[ Scalia ]
[ Kennedy ]
Hodgson v. Minnesota
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
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.
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 [p423] 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 7-3, the Court of Appeals upheld the constitutionality of subdivision 6. In No. 88-1125, we granted the plaintiffs' petition to review that holding.
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.
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 "any 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." [n1] [p424] The statute, unlike others of its age, [n2] applied to abortion services.
The 1981 amendment qualified the authority of an "unemancipated minor" [n3] 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. [n4] 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 [p425] a divorced parent, a noncustodial parent, or a biological parent who never married or lived with the pregnant woman's mother. [n5] 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 [p426] sufficient. [n6] 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. [n7] 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." [n8] [p427]
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. [n9] [p428]
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. [n10]
The District Court found that the primary purpose of the legislation was to protect the wellbeing of minors by encouraging them to discuss with their parents the decision whether to terminate their pregnancies. [n11] It also found that the legislature was motivated by a [p429] desire to deter and dissuade minors from choosing to terminate their pregnancies. [n12] The Attorney General, however, disclaims any reliance on this purpose. [n13]
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.
Based on the allegations in their verified complaint, the District Court entered a temporary restraining order enjoining [p430] 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. [n14]
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.
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 noncustodial 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. [n15] The panel further [p431] held that the two-parent notice requirement was not severable. [n16]
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 [p432] 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," [n17]
as well as the independent interest of the parents in the upbringing of their children. [n18]
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:
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 [p433] 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). 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. [n19]
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 noncustodial 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). [p434]
There is a natural difference between men and women: only women have the capacity to bear children. A woman's decision to beget 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 Board 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.
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).
As we stated in Planned Parenthood of Central Missouri 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 [p435] 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.
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. [p436]
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. [n20] 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. [n21] 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 (1973).
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. [n22] 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. [497 U.S. 437] v. Matheson, 450 U.S. 398 (1981), required notice to "the parents," [n23] 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.
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. [n24] [p438]
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 intra-family violence. Tragically, those fears were often realized:
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.
. . . 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. The District Court further found:
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 [p439] 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.
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." [n25] 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, [p440] 648 F.Supp. at 764. [n26] 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:
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. [n27]
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 [p441] notification of court officials, the confidentiality of minors has been maintained. Ibid.
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. [n28] The judges who adjudicated over 90% of these petitions testified; none of them identified any positive effects of the law. [n29] The court experience produced fear, tension, anxiety, and shame among minors, [p442] causing some who were mature, and some whose best interests would have been served by an abortion, to "forgo 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. [n30]
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.
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:
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 [p443] 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 effect upon intra-family communication and upon the minors' decisionmaking process. Others testified the statute has a deleterious effect on the wellbeing 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. Focusing specifically on the statutory requirement that both parents be notified, the District Court concluded:
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 [p444] the minor voluntarily initiated with the custodial parent.
* * * *
. . . 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.
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.
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). [n31] That interest, which justifies [p445] 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 Missouri v. Danforth, 428 U.S. at 95 (WHITE, J., concurring in part and dissenting in part); id. at 102-103 (opinion 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:
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.
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 9442 U.S. 602602 (citing 1 W. Blackstone, Commentaries *447; [p446] 2 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).
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. v. Gerald D., 491 U.S. at 132 (O'CONNOR, J., concurring in part); Roberts v. United States Jaycees, 468 U.S. 609, 618-620 (1984); Cleveland Board of Education v. LaFleur, 414 U.S. 632, 639-640 (1974). The family may assign one parent to guide the children's education and the other to look after their health. [n32]
The statist notion that governmental power should supersede parental authority in [p447] all cases because some parents abuse and neglect children is repugnant to American tradition.
Parham, 442 U.S. at 603. We have long held that there exists a "private realm of family life which the state cannot enter." Prince v. Massachusetts, 321 U.S. at 166. Thus, when the government intrudes on choices concerning the arrangement of the household, this Court has carefully examined the "governmental interests advanced and the extent to which they are served by the challenged regulation." Moore v. East Cleveland, 431 U.S. 494, 499 (1977) (plurality opinion); id. at 507, 510-511 (BRENNAN, J., concurring); see also Meyer v. Nebraska, 262 U.S. 390, 399-400 (1923).
A natural parent who has demonstrated sufficient commitment to his or her children is thereafter entitled to raise the children free from undue state interference. As Justice WHITE explained in his opinion for the Court in Stanley v. Illinois, 405 U.S. 645 (1972):
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one's children have been deemed "essential," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), "basic civil rights of man," 262 U.S. 390, 399 (1923), "basic civil rights of man," Skinner v. Oklahoma, 316 U.S. 535, 541 (1942), and "[r]ights far more precious . . . than property rights," May v. Anderson, 345 U.S. 528, 533 (1953).
It is 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 integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, [262 U.S.] at 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, and the Ninth Amendment, Griswold v. [497 U.S. 448] Connecticut, 381 U.S. 479, 496 (1965) (Goldberg, J., concurring).
Id. at 651. [n33]
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 wellbeing, 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 [p449] 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).
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 the parents or a court, acting in loco parentis, 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, [n34] 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. [n35] [p450]
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.
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 [p451] 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. [n36] 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.
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 [p452] 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 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").
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 Missouri v. Danforth, 428 U.S. 52 (1976). In Danforth, the majority identified the only state interest in requiring parental consent [p453] 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.
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, 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 [p454] 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. [n37]
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), 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. [n38] Indeed, the only other Minnesota statute that the State has identified which requires two-parent consent [p455] 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. 78, 98 (1987). We therefore hold that this requirement violates the Constitution.
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.
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
alternate 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. Neither of those precedents should control our decision today.
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 four Members of the Court. Indeed, neither the arguments of the parties, nor any of the opinions in the case, [p456] 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.
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.
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 life-saving [p457] treatment to a child on religious grounds. See id. at 602-603.
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.
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 noncustodial 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 [p458] 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.
* * * *
The judgment of the Court of Appeals in its entirety is affirmed.
It is so ordered.
1. 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).
2. 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).
3. 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. 881125, 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.
4. 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.
5. 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. §§ 2016-802, 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, ¶ 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).
6. 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.
7. 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). lndividuals who are subjects of the investigation have a right of access to the record of the investigation. § 626.556(11).
8. 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.
9. 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 woman 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.
10. Brief for Petitioner in No. 88-1309, p. 4 (hereinafter Minn.Br.); see also id. at 8-9.
The Minnesota legislature had several purposes in mind when it amended Minn.Stat. § 144.343 in 1981. The primary purpose was to protect the wellbeing 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 salutary results. Parents can provide emotional support and guidance and thus forestall irrational and emotional decisionmaking. 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 wellbeing and thus mitigate adverse psychological sequelae that may attend the abortion procedure.
648 F.Supp. 756, 765-766 (Minn. 1 986).
12. 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.
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.
14. 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.
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 noncustodial 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 noncustodial parent would be in the child's best interests. In situations where the minor has a good relationship with the noncustodial parent but the custodial parent does not, there is nothing to prevent the minor from consulting with the noncustodial 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).
16. 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 noncustodial parent could not withstand constitutional scrutiny, and was not saved by a court bypass procedure. Id. at 72a.
17. 853 F.2d, at 1460, quoting from Justice Powell's opinion in Bellotti v. Baird, 443 U.S. 622, 640-641 (1979) (Bellotti II).
18. 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.
19. 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.
20. See n. 14, supra.
21. 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.
22. Planned Parenthood of Central Missouri 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).
23. 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 noncustodial 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).
24. 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)).
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.
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.
27. 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).
28. See n. 21, supra.
29. One testified that minors found the bypass procedure "a very nerve-racking 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.
30. 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.
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).
32. 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).
Certainly the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its preeminence 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).
34. 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.
35. 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.
36. The most common reason for not notifying the second parent was that that parent was a child or spouse-batterer, App. at 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's 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).
37. 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.
38. 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").