|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 MARSHALL, with whom Justice BRENNAN and Justice BLACKMUN join, concurring in part, concurring in the judgment in part, and dissenting in part.
I concur in Parts I, II, IV, and VII of Justice STEVENS' opinion for the Court in No. 88-1309. [n1] Although I do [p462] 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 the Court's opinion. For the reasons stated by Justice STEVENS, 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.
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 497-501 (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.
This Court has consistently held since Roe v. Wade, 410 U.S. 113"]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." 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, 410 U.S. at [p463] 155. 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. 476 U.S. 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, 410 U.S. at 155; Akron Center for Reproductive Health, supra, 462 U.S. 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.
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.
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 [n2]) 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). [p464] 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.
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) (plurality opinion); Planned Parenthood of Central Missouri 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.).
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 [p465] 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).
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.
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, [p466] 0.6 for weeks 9-12, 3.4 for weeks 13-16, 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).
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 than 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). [n3] 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 [p467] 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 (plurality opinion) ("[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.
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. [n4] 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 [p468] 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. [n5] 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." [n6] [p469]
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 wellbeing of minors by encouraging minors to discuss with their parents the decision whether to terminate their pregnancies
Id. at 766. The 44-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.
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). [p470] 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 harassment 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. [n7]
The State also claims that the statute serves the interest of protecting parents' independent right "to shape the[ir] child[ren]'s values and lifestyle[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 under-inclusive, 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 [p471] Minnesota parents have no interest in their children's wellbeing in these other contexts?
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) ("[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, 450 U.S. 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 nonconsenting parent are so fundamentally in conflict and the very existence of the pregnancy already has fractured the family structure").
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, 321 U.S. at 169-170; H.L. v. Matheson, supra, 450 U.S. at 449 (MARSHALL, J., dissenting). Yet the notification and delay requirements facilitate [p472] the exercise of parental authority even where it may physically or psychologically harm the child. See supra at 470.
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 (plurality opinion) ("[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.
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.
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 [p473] 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, 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).
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, 462 U.S. 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, 428 U.S. 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.
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 [p474] 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.
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 [p475] afforded to her decision.
443 U.S. at 655-656 (STEVENS, J., 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.
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 (plurality opinion). 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.
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 [p476] 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 763; 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.
The District Court also found that the bypass procedure can be extremely traumatic for young women.
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.
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 [p477] 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. [n8]
Yet, despite the substantial burdens imposed by these proceedings, the bypass is, in effect, a "rubber stamp," id. at 766 (testimony of Honorable 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 [p478] 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. [n9]
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. [n10] The Court's holding that the burdensome bypass procedure saves the State's burdensome notification and delay requirements [p479] thus strikes me as the equivalent of saying that two wrongs make a right. I cannot accept such a novel judicial calculus.
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 black-robed stranger. For such a woman, this dilemma is more likely to result in trauma and pain than in an informed and voluntary decision.
1. 1 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.
2. 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).
3. 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.
4. As Justice STEVENS notes, ante at 449, the 48-hour delay does not apply if a parent or court consents to the abortion.
5. 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.
6. 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 co-administrator of one abortion clinic that a one- or two-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.
7. 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 of 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, 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.
8. 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.
9. 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. Wisc.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).
10. 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).