|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 KENNEDY, with whom THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA join, concurring in the judgment in part and dissenting in part.
"There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support."
Bellotti v. Baird (Bellotti II), 443 U.S. 622, 640-641 (1979) (plurality opinion) (quoting Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 91 (1976) (Stewart, J., concurring)); see also H.L. v. Matheson, 450 U.S. 398, 409-411 (1981); id. at 422-423 (STEVENS, J., concurring in judgment); Danforth, supra, 428 U.S. at 94-95 (WHITE, J., concurring in part and dissenting in part); id. at 102-103 (STEVENS, J., concurring in [p481] part and dissenting in part). Today the Court holds that a statute requiring a minor to notify both parents that she plans to have an abortion is not a permissible means of furthering the interest described with such specificity in Bellotti II. This conclusion, which no doubt will come as a surprise to most parents, is incompatible with our constitutional tradition and any acceptable notion of judicial review of legislative enactments. I dissent from the portion of the Court's judgment affirming the Court of Appeals' conclusion that Minnesota two-parent notice statute is unconstitutional.
The Minnesota statute also provides, however, that if the two-parent notice requirement is invalidated, the same notice requirement is effective unless the pregnant minor obtains a court order permitting the abortion to proceed. Minn.Stat. § 144.343(6) (1988). The Court of Appeals sustained this portion of the statute, in effect a two-parent notice requirement with a judicial bypass. Five Members of the Court, the four who join this opinion and Justice O'CONNOR, agree with the Court of Appeals' decision on this aspect of the statute. As announced by Justice STEVENS, who dissents from this part of the Court's decision, the Court of Appeals' judgment on this portion of the statute is therefore affirmed.
The provisions of the statute before us are straightforward. In essence, the statute provides that, before a physician in Minnesota may perform an abortion on an unemancipated minor, the physician or the physician's agent must notify both of the minor's parents, if each one can be located through reasonable effort, either personally or by certified mail at least 48 hours before the abortion is performed. Minn. Stat. §§ 144.343(2)-(3) (1988). Notification is not required if the abortion is necessary to prevent the minor's death; or if both parents have consented to the abortion; or if the minor declares that she is the victim of sexual abuse, neglect, or physical abuse. § 144.343(4). Failure to comply [p482] with these requirements is a misdemeanor, and the statute authorizes a civil action against the noncomplying physician by the minor's parents. § 144.343(5).
The statute also provides that, if a court enjoins the notice requirement of subdivision 2, parental notice under the subdivision shall still be required unless the minor obtains a court order dispensing with it. Under the statute, the court is required to authorize the physician to perform the abortion without parental notice if the court determines that the minor is "mature and capable of giving informed consent to the proposed abortion" or that "the performance of an abortion upon her without notification of her parents, guardian, or conservator would be in her best interests." § 144.343(6).
The State identifies two interests served by the law. The first is the State's interest in the welfare of pregnant minors. The second is the State's interest in acknowledging and promoting the role of parents in the care and upbringing of their children. Justice STEVENS, writing for two Members of the Court, acknowledges the legitimacy of the first interest, but decides that the second interest is somehow illegitimate, at least as to whichever parent a minor chooses not to notify. I cannot agree that the Constitution prevents a State from keeping both parents informed of the medical condition or medical treatment of their child under the terms and conditions of this statute.
The welfare of the child has always been the central concern of laws with regard to minors. The law does not give to children many rights given to adults, and provides, in general, that children can exercise the rights they do have only through and with parental consent. Parham v. J.R., 442 U.S. 584, 621 (1979) (STEWART, J., concurring in judgment). Legislatures historically have acted on the basis of the qualitative differences in maturity between children and adults, see Schall v. Martin, 467 U.S. 253, 265-267 (1984); Thompson [p483] v. Oklahoma, 487 U.S. 815, 853-854 (1988) (O'CONNOR, J., concurring in judgment) (collecting cases); Stanford v. Kentucky, 492 U.S. 361, 384 (1989) (BRENNAN, J., dissenting), and not without reason. Age is a rough but fair approximation of maturity and judgment, and a State has an interest in seeing that a child, when confronted with serious decisions such as whether or not to abort a pregnancy, has the assistance of her parents in making the choice. If anything is settled by our previous cases dealing with parental notification and consent laws, it is this point. See Bellotti II, 443 U.S. at 640-641; Matheson, 450 U.S. at 409-411; id. at 422-423 (STEVENS, J., concurring in judgment).
Protection of the right of each parent to participate in the upbringing of her or his own children is a further discrete interest that the State recognizes by the statute. The common law historically has given recognition to the right of parents, not merely to be notified of their children's actions, but to speak and act on their behalf. Absent a showing of neglect or abuse, a father "possessed the paramount right to the custody and control of his minor children, and to superintend their education and nurture." J. Schouler, Law of Domestic Relations 337 (3d. ed. 1882); see also 1 W. Blackstone, Commentaries *452-*453; 2 J. Kent, Commentaries on American Law *203-*206; G. Field, Legal Relations of Infants 63-80 (1888). In this century, the common law of most States has abandoned the idea that parental rights are vested solely in fathers, with mothers being viewed merely as agents of their husbands, cf. ante at 446, n. 32; it is now the case that each parent has parental rights and parental responsibilities. See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the Law of Torts, ch. 4, § 18, p. 115 (5th ed. 1984). Limitations have emerged on the prerogatives of parents to act contrary to the best interests of the child with respect to matters such as compulsory schooling and child labor. As a general matter, however, it remains [p484]
cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.
Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
The history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.
A State pursues a legitimate end under the Constitution when it attempts to foster and preserve the parent-child relation by giving all parents the opportunity to participate in the care and nurture of their children. We have held that parents have a liberty interest, protected by the Constitution, in having a reasonable opportunity to develop close relations with their children. See Santosky v. Kramer, 455 U.S. 745, 753-754 (1982); Caban v. Mohammed, 441 U.S. 380 (1979); Stanley v. Illinois, 405 U.S. 645, 651-652 (1972). We have recognized, of course, that there are limits to the constitutional right of parents to have custody of or to participate in decisions affecting their children. If a parent has relinquished the opportunity to develop a relation with the child, and his or her only link to the child is biological, the Constitution does not require a State to allow parental participation. See Lehr v. Robertson, 463 U.S. 248, 261-265 (1983); Quilloin v. Walcott, 434 U.S. 246, 254-256 (1978). But the fact that the Constitution does not protect the parent-child relationship in all circumstances does not mean that the State cannot attempt to foster parental participation where the Constitution does not demand that it do so. A State may seek to protect and facilitate the parent-child bond on the assumption that parents will act in their child's best interests. See Parham v. J.R., supra, at 602-603; Ginsberg v. New York, 390 U.S. 629, 639 (1968). Indeed, [p485] we have held that a State cannot terminate parental rights based upon a presumption that a class of parents is unfit without affording individual parents an opportunity to rebut the presumption. See Stanley, supra, at 654-658; Santosky, supra, 455 U.S. at 753 ("The fundamental liberty interest of natural parents in the care, custody, and management of their child does not evaporate simply because they have not been model parents . . ."). If a State cannot legislate on the broad assumption that classes of parents are unfit and undeserving of parental rights without affording an opportunity to rebut the assumption, it is at least permissible for a State to legislate on the premise that parents, as a general rule, are interested in their children's welfare and will act in accord with it.
The Court's descriptions of the State's interests in this case are caricatures, both of the law and of our most revered institutions. The Court labels these interests as ones in "standardizing its children and adults,".and in ensuring that each family, to the extent possible, "conform to some state-designed ideal." Ante at 452; see also ante at 471 (MARSHALL, J., concurring in part, concurring in judgment in part, and dissenting in part) (accusing Minnesota of "trying to force families to conform to the State's archetype of the ideal family"). Minnesota asserts no such purpose, by explicit statement or by any permissible inference. All that Minnesota asserts is an interest in seeing that parents know about a vital decision facing their child. That interest is a valid one without regard to whether the child is living with either one or both parents, or to the attachment between the minor's parents. How the family unit responds to such notice is, for the most part, beyond the State's control. The State would no doubt prefer that all parents, after being notified under the statute, would contact their daughters and assist them in making their decisions with the child's best interests at heart; but it has not, contrary to the Court's intimation, "decreed" communication, nor could it. What [p486] the State can do is make the communication possible by at least informing parents of their daughter's intentions.
Minnesota has done no more than act upon the common-sense proposition that, in assisting their daughter in deciding whether to have an abortion, parents can best fulfill their roles if they have the same information about their own child's medical condition and medical choices as the child's doctor does; and that to deny parents this knowledge is to risk, or perpetuate, estrangement or alienation from the child when she is in the greatest need of parental guidance and support. The Court does the State, and our constitutional tradition, sad disservice by impugning the legitimacy of these elemental objectives.
Given the societal interest that underlies parental notice and consent laws, it comes as no surprise that most States have enacted statutes requiring that, in general, a physician must notify or obtain the consent of at least one of her parents or legal guardian before performing an abortion on a minor. See Wardle, "Time Enough": Webster v. Reproductive Health Services and the Prudent Pace of Justice, 41 Fla.L.Rev. 881, 963-965 (1989) (collecting statutes). Five States, including Minnesota, appear to require, as a general rule, the notification of both parents before a physician may perform an abortion on a minor. See Ark.Code Ann. §§ 20-16-801 through 20-16-808 (Supp. 1989); Idaho Code § 18-610(6) (1987); Tenn.Code Ann. § 39-4-202 (1982); Utah Code Ann. § 76-7-304 (1990). Another six States appear to require, with varying exceptions, the consent of both parents. See Del.Code Ann., Title 24, § 1790(b)(3) (1987); Ill.Rev. Stat., ch. 38, ¶ 81-54(3) (1989); Ky.Rev.Stat.Ann. § 311.732 (Michie 1990); Mass. Gen.Laws § 112, § 12S (1988); Miss.Code. Ann. § 41-41-53 (Supp.1989); N.D.Cent. Code § 14-02.1-03.1 (1981). Whether these statutes are more or less restrictive than the Minnesota statute is not the issue, although I pause to note that, because the Court's decision today turns upon its perception that the law's requirements, [p487] despite its exceptions, are the most "stringent" in the country, see ante at 459 (O'CONNOR, J., concurring in part and concurring in judgment), the Court's decision has no import for the validity of these other statutes. What is important is that Minnesota is not alone in acknowledging the vitality of these governmental interests and adopting laws that, in the legislature's judgment, are best suited to serving them while protecting the minor's welfare.
On a more general level, the current trend among state legislatures is to enact joint custody laws making it the norm for divorced or separated parents to share the legal responsibility and authority for making decisions concerning their children's care, education, religion, and medical treatment. See 2 H. Clark, Law of Domestic Relations in the United States § 20.5 (2d ed. 1987); Folberg, Joint Custody Law -- The Second Wave, 23 J.Family L. 1, 14-55 (1984-1985) (collecting statutes). Under Minnesota law, for example, there exists a presumption in divorce proceedings that joint custody, if requested by either or both parents, is in the best interests of the child. See Minn.Stat. § 518.17(2) (Supp.1989). Even if joint custody is not awarded, Minnesota law provides that each parent, unless the court specifically directs otherwise to protect the welfare of a parent or the child,
has the right of access to, and to receive copies of, school, medical, dental, religious training, and other important records and information about the minor children;
the responsibility to "keep the other party informed as to the name and address of the school of attendance of the minor children"; the responsibility to "notify the other party of [an accident or serious illness of a minor child], and the name of the health care provider and the place of treatment"; and "the right to reasonable access and telephone contact with the minor children." Minn.Stat. § 518.17(3) (1988). Minnesota's two-parent notification law does no more than apply these general principles to the specific case of abortion. [p488]
Federal law contains similar provisions regulating the health and welfare of children that require the notification or consent of both parents. For example, one condition for obtaining a grant under the Adolescent Family Life Act is that an applicant must provide assurances that it will
notify the parents or guardians of any unemancipated minor requesting services [relating to family planning] from the applicant and . . . will obtain the permission of such parents or guardians with respect to the provision of such services.
42 U.S.C. § 300z-5(a)(22)(A)(i) (1982 ed.); see § 300z-5(a)(22)(A)(ii) (requiring only notice to parents or guardians if the unemancipated minor is pregnant). See also 42 U.S.C. § 5671(d) (1982 ed., Supp. V) (authorizing funding for certain experimental juvenile drug and alcohol treatment programs if safeguards are established for obtaining the informed consent of the "parents or guardians" of minors); 50 U.S.C.App. § 454(c)(4) (1982 ed.) (permitting induction of 17-year-olds into the Armed Forces with the written consent of his "parents or guardian"); 45 CFR § 46.408 (1989) (requiring consent of both parents before a minor may participate in medical research posing more than a "minimal" risk of harm). With all respect, I submit the Court today errs when it states that Minnesota's two-parent notice law is an "oddity among state and federal consent provisions." Ante at 454.
At least two Members of the Court concede, as they must, that a State has a legitimate interest in the welfare of the pregnant minor and that, in furtherance of this interest, the State may require the minor to notify, and consult with, one of her parents. See ante at 444-446 (opinion of STEVENS, J.); cf. ante at 469 (MARSHALL, J., concurring in part, concurring in judgment in part, and dissenting in part). The Court nonetheless holds the Minnesota statute unconstitutional because it requires the minor to notify not one parent, but both parents, a requirement that the Court says bears [p489] no reasonable relation to the minor's welfare. See ante at 450-455; cf. ante at 469-472 (MARSHALL, J., concurring in part, concurring in judgment in part, and dissenting in part). The Court also concludes that Minnesota does not have a legitimate interest in facilitating the participation of both parents in the care and upbringing of their children. Given the substantial protection that minors have under Minnesota law generally, and under the statute in question, the judicial bypass provisions of the law are not necessary to its validity. The two-parent notification law enacted by Minnesota is, in my view, valid without the judicial bypass provision of subdivision 6.
We have been over much of this ground before. It is beyond dispute that in many families, whether the parents are living together or apart, notice to both parents serves the interests of the parents and the minor, and that the State can legislate with this fact in mind. In H.L. v. Matheson, 450 U.S. 398 (1981), we considered the constitutionality of a statute which required a physician, before performing an abortion on a minor, to "‘[n]otify, if possible, the [minor's] parents or guardian.'" Id. at 400 (quoting Utah Code Ann. § 76-7-304 (1978)) (emphasis added). We held that the statute, as applied to unmarried, dependent, and immature minors,
plainly serves important state interests, is narrowly drawn to protect only those interests, and does not violate any guarantees of the Constitution.
450 U.S. at 413. Our holding was made with knowledge of the contentions, supported by citations to medical and sociological literature, that are proffered again today for the proposition that notification imposes burdens on minors. See id. at 436-441 (MARSHALL, J., dissenting). We nonetheless rejected arguments that a requirement of parental notification was the equivalent of a requirement of parental consent, id. at 411; that the statute was unconstitutional because it required notification only as to abortions, and not as to other medical [p490] procedures, id. at 412; and that the statute was unconstitutional because it might deter some minors from seeking abortions, id. at 413.
Our decision was based upon the well-accepted premise that we must defer to a reasonable judgment by the state legislature when it determines what is sound public policy. Justice STEVENS's opinion concurring in the Court's judgment relied upon an explicit statement of this principle. Concluding that the Utah statute requiring notification of both parents was valid as to all unmarried minors, both mature and immature, Justice STEVENS reasoned that the State's interest in ensuring that a young woman considering an abortion receive appropriate consultation was "plainly sufficient to support a state legislature's determination that such appropriate consultation should include parental advice." Id. at 423. The Court today departs from this rule. It now suggests that a general requirement that both parents be notified is unconstitutional because of its own conclusion that the law is unnecessary when notice produces favorable results, see ante at 450, and irrational in all of the instances when it produces unfavorable results, see ante at 450-451. In Matheson, Justice STEVENS rejected these same arguments as insufficient to establish that the Utah statute was unconstitutional:
Of course, a conclusion that the Utah statute is invalid would not prevent young pregnant women from voluntarily seeking the advice of their parents prior to making the abortion decision. But the State may legitimately decide that such consultation should be made more probable by ensuring that parents are informed of their daughter's decision[.]
* * * *
Utah's interest in its parental-notice statute is not diminished by the fact that there can be no guarantee that meaningful parent-child communication will actually occur. Good-faith compliance with the statute's requirements [p491] would tend to facilitate communication between daughters and parents regarding the abortion decision. The possibility that some parents will not react with compassion and understanding upon being informed of their daughter's predicament or that, even if they are receptive, they will incorrectly advise her, does not undercut the legitimacy of the State's attempt to establish a procedure that will enhance the probability that a pregnant young woman exercise as wisely as possible her right to make the abortion decision.
450 U.S. at 423-424 (STEVENS, J., concurring in judgment) (emphasis added). Justice STEVENS' reasoning was correct then and it remains correct today.
In applying the standards established in our prior decisions to the case at hand,
we must keep in mind that when we are concerned with extremely sensitive issues, such as the one involved here, "the appropriate forum for their resolution in a democracy is the legislature. We should not forget that ‘legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.' Missouri, K & T R. Co. v. May, 194 U.S. 267, 270 (1904) (Holmes, J.)." Maher, 432 U.S. at 479-480 (footnote omitted).
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 465 (1983) (O'CONNOR, J., dissenting). The Minnesota Legislature, like the legislatures of many States, has found it necessary to address the issue of parental notice in its statutory laws. In my view it has acted in a permissible manner.
All must acknowledge that it was reasonable for the legislature to conclude that, in most cases, notice to both parents will work to the minor's benefit. See Bellotti II, 443 U.S. at 640, n. 20 (parental involvement, if compassionate and supportive, is highly desirable). This is true not only in what the Court calls the "ideal family setting," where both parents and the minor live under one roof, [p492] but also where the minor no longer lives with both parents. The Court does not deny that many absent parents maintain significant ties with their children, and seek to participate in their lives, to guide, to teach, and to care for them. It is beyond dispute that these attachments, in cases not involving mistreatment or abuse, are essential to the minor's wellbeing, and that parental notice is supportive of this kind of family tie. Although it may be true that notice to one parent will often result in notice to both, the State need not rely upon the decision of one parent to notify the other, particularly where both parents maintain ties with their daughter but not with each other, and when both parents share responsibilities and duties with respect to the child.
I acknowledge that, in some cases, notifying both parents will not produce desirable results despite the fact that no actual instance is in the record before us, as the two-parent notification requirement was enjoined before it went into effect. Cf. ante at 438 (stating as a matter of historical fact that the "two-parent notification requirement had particularly harmful effects on both the minor and the custodial parent" and that fears that notification of an absent parent would produce harmful results "were often realized") (emphasis added). We need not decide today, however, whether the Constitution permits a State to require that a physician notify both biological parents before performing an abortion on any minor, for the simple reason that Minnesota has not enacted such a law.
The Minnesota statute in fact contains exceptions to ensure that the statutory notice requirement does not apply if it proves a serious threat to the minor's health or safety. First, the statute does not require notice at all costs; to comply with the law, a physician need only use "reasonably diligent effort" to locate and notify both of the minor's parents. If the second parent cannot be located, as may be the case if the parent has deserted the family or ceased to maintain contact with the minor or the other parent, the only notice required is to the first parent. Minn.Stat. § 144.343(3) (1988). [p493]
Second, even where both parents can be located, notice is not required if the physician certifies that the abortion is necessary to prevent the woman's death and there is insufficient time to provide the required notice, § 144.343(4)(a); if the minor's parents have authorized the abortion in writing, § 144.343(4)(b); or if the minor declares that she is the victim of sexual abuse, neglect, or physical abuse, § 144.343(4)(c). Under Minnesota law, "neglect" of a minor means the failure of a parent
to supply a child with necessary food, clothing, shelter or medical care when reasonably able to do so or failure to protect a child from conditions or actions which imminently and seriously endanger the child's physical or mental health when reasonably able to do so,
Minn.Stat. § 626.556(2)(c) (Supp.1989); physical abuse is defined as "any physical injury inflicted by a person responsible for the child's care on a child other than by accidental means," § 626.556(2)(d); and sexual abuse includes any sexual contact by a parent or other person responsible for the child's care or in a position of authority with respect to the child. § 626.556(2)(a). I cannot believe that these exceptions are too narrow to eliminate from the statute's coverage those instances in which notice would place the minor in danger of parental violence or other conduct that is a real threat to the physical or mental health of the child.
The Court challenges the efficacy of this last exception because it believes that the statutory requirement that a physician report a minor's declaration of abuse to appropriate authorities, see § 144.343(4)(c), will deter minors from using the exception. This is not a proper basis for declaring the law invalid. Laws are not declared unconstitutional because of some general reluctance to follow a statutory scheme the legislature finds necessary to accomplish a legitimate state objective. Beyond any question, it is reasonable for the State to require that physicians report declarations of abuse to ensure that mistreatment is known to authorities responsible for the protection of minors. This [p494] requirement is but a single manifestation of the broad duty in Minnesota to report suspected cases of child abuse to the proper authorities. See Minn.Stat. § 626.556(1) (1988) (declaring it to be the public policy of the State "to protect children whose health or welfare may be jeopardized through physical abuse, neglect or sexual abuse" and "to strengthen the family and make the home, school, and community safer for children by promoting responsible child care in all settings").
No one can contend that a minor who is pregnant is somehow less deserving of the State's protection. It is reasonable to provide that any minor who contends that she cannot notify her parent or parents because she is the victim of neglect or abuse allow the State to use its power to investigate her declaration and protect her from harm. Any parent, moreover, who responds to notice by threatening or harming the minor or the other parent may be prosecuted by the State to the full extent of its laws. See Minn.Stat. § 518B.01 (1988) (Domestic Abuse Act); Minn.Stat. §§ 609.221, 609.222, 609.223, 609.224 (1988 and Supp. 1989) (assault statutes); §§ 609.341 through 609.345 (sexual abuse statutes); § 609.378 (criminal neglect statute). Just as it relies upon such laws as its first line of defense for dealing with all other instances of abuse in family situations, so too is the State entitled to rely upon them here.
Notwithstanding the exceptions and protections we have discussed, it does remain possible, of course, that in some instances notifying one or both parents will not be in the minor's best interests. Allegations of a similar possibility, based upon sociological evidence similar to that presented in this case, was made by the appellant in Matheson. See Brief for Appellant 10-11; Brief for Planned Parenthood Federation of America, Inc., et al., as Amici Curiae 1631 in Matheson, O.T.1980, No. 79-5903. The Court there held that the parental notification law was valid, at least as to immature minors, for the simple reason that a [p495] law is not invalid if it fails to further the governmental interest in every instance. This point formed the cornerstone of Justice STEVENS's concurring opinion in Matheson, see 450 U.S. at 423-424, and it finds its most explicit statement in the Court's opinion in Parham v. J.R., 442 U.S. at 602-603:
The law's concept of the family rests on a presumption that parents possess what a child lacks in maturity, experience, and capacity for judgment required for making life's difficult decisions. More importantly, historically, it has recognized that natural bonds of affection lead parents to act in the best interests of their children. . . .
As with so many other legal presumptions, experience and reality may rebut what the law accepts as a starting point; the incidence of child neglect and abuse cases attest to this. That some parents may at times be acting against the best interests of their children . . . creates a basis for caution, but is hardly a reason to discard wholesale those pages of human experience that teach that parents generally do act in the child's best interests.
The only cases in which a majority of the Court has deviated from this principle are those in which a State sought to condition a minor's access to abortion services upon receipt of her parent's consent to do so. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), the Court invalidated a Missouri law requiring that a physician obtain the consent of one parent before performing an abortion. The Court's reasoning was unmistakable:
[T]he State does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent.
Id. at 74. The Court today, ignoring this statement, relies heavily upon isolated passages from Danforth, see ante at 452-453, and other cases involving parental consent laws, [p496] see, e.g., ante at 453 (citing Bellotti II). Justice MARSHALL, on the other hand, expressly equates laws requiring parental consent with laws requiring parental notification, see ante at 471-472 (MARSHALL, J., concurring in part, concurring in judgment in part, and dissenting in part).
The difference between notice and consent was apparent to us before, and is apparent now. Unlike parental consent laws, a law requiring parental notice does not give any third party the legal right to make the minor's decision for her, or to prevent her from obtaining an abortion should she choose to have one performed. We have acknowledged this distinction as "fundamental," and as one "substantially modify[ing] the federal constitutional challenge." Bellotti v. Baird (Bellotti I), 428 U.S. 132, 145, 148 (1976); see also Matheson, supra, 450 U.S. at 411, n. 17. The law before us does not place an absolute obstacle before any minor seeking to obtain an abortion, and it represents a considered weighing of the competing interests of minors and their parents.
It cannot be doubted that, as long as a state statute is within "the bounds of reason and [does not] assum[e] the character of a merely arbitrary fiat . . . [then] [t]he State . . . must decide upon measures that are needful for the protection of its people. . . . "
Akron, 462 U.S. at 459 (O'CONNOR, J., dissenting) (quoting Purity Extract & Tonic Co. v. Lynch, 226 U.S. 192, 204-205 (1912)). Like all laws of general application, the Minnesota statute cannot produce perfect results in every situation to which it applies; but the State is under no obligation to enact perfect laws. The statute before us, including the 48-hour waiting period, which is necessary to enable notified parents to consult with their daughter or their daughter's physician, if they so wish, and results in little or no delay, represents a permissible, reasoned attempt to preserve the parents' role in a minor's decision to have an abortion without placing any absolute obstacles before a minor who is determined to elect an abortion for her own interest as she sees it. Section 144.343, without the [p497] judicial bypass provision of subdivision 6, is constitutional. I would reverse the contrary judgment of the Court. of Appeals.
Because a majority of the Court holds that the two-parent notice requirement contained in subdivision 2 is unconstitutional, it is necessary for the Court to consider whether the same notice requirement is constitutional if the minor has the option of obtaining a court order permitting the abortion to proceed in lieu of the required notice. Minn.Stat. § 144.343(6) (1988). Assuming, as I am bound to do for this part of the analysis, that the notice provisions standing alone are invalid, I conclude that the two-parent notice requirement with the judicial bypass alternative is constitutional.
The Court concludes that Minnesota's two-parent notice law without a judicial bypass is unconstitutional because of the possibility that, in some cases, the rule would not work to the benefit of minors or their parents. If one were to attempt to design a statute that would address the Court's concerns, one would do precisely what Minnesota has done in § 144.343(6): create a judicial mechanism to identify, and exempt from the strictures of the law, those cases in which the minor is mature or in which notification of the minor's parents is not in the minor's best interests. The bypass procedure comports in all respects with our precedents. See Bellotti II, 443 U.S. at 643-644; Planned Parenthood Assn. of Kansas City, Mo. v. Ashcroft, 462 U.S. 476, 491 (1983) (opinion of Powell, J.); id. at 505 (O'CONNOR, J., concurring in judgment in part and dissenting in part); Ohio v. Akron Center for Reproductive Health, post, p. 502.
In providing for the bypass, Minnesota has done nothing other than attempt to fit its legislation into the framework that we have supplied in our previous cases. The simple fact is that our decision in Bellotti II stands for the proposition that a two-parent consent law is constitutional if it provides [p498] for a sufficient judicial bypass alternative, and it requires us to sustain the statute before us here. In Bellotti II, the Court considered the constitutionality of a statute which required a physician to obtain, in most circumstances, the consent of both of a minor's parents before performing an abortion on the minor. See 443 U.S. at 625-626 (citing Mass.Gen.Laws. Ann., ch. 112, § 12S (West Supp.1979)). Although eight Members of the Court concluded that the statute was unconstitutional, five indicated that they would uphold a two-parent consent statute with an adequate judicial bypass.
For four of the eight Justices forming the majority in Bellotti II, the failure of the statute lay in its inadequate bypass procedure, not its requirement that both of the minor's parents consent to the abortion. See 443 U.S. at 643 (opinion of Powell, J.). Justice Powell's opinion specifically stated that
if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained,
ibid. (emphasis added), and then stated the minimum requirements for such a procedure. In response to the dissent's contention that his opinion was advisory, Justice Powell stated that the four Members of the Court thought it necessary
to provide some guidance as to how a State constitutionally may provide for adult involvement -- either by parents or a state official such as a judge -- in the abortion decision of minors. In view of the importance of the issue raised, and the protracted litigation to which these parties already have been subjected, we think it would be irresponsible simply to invalidate [the Massachusetts law] without stating our views as to the controlling principles.
Id. at 652, n. 32. See also id. at 651-652 (REHNQUIST, J., concurring) (joining Justice Powell's opinion because "unless and until [the Court is willing to overrule Danforth], literally thousands of judges [p499] cannot be left with nothing more than the guidance offered by a truly fragmented holding of this Court").
Justice WHITE dissented from the Court's judgment that the Massachusetts statute was unconstitutional. In his view, no bypass was necessary, so it must follow that a two-parent consent statute with an adequate bypass procedure would have been valid. See id. at 656-657 (dissenting opinion). In sum, five Members of the Court in Bellotti II found, either by express statement or by implication, that it was permissible under the Constitution for a State to require the consent of two parents, as long as it provides a consent substitute in the form of an adequate judicial bypass procedure.
I cannot accept Justice STEVENS' suggestion today that the plurality, in announcing these rules, did not "consider" the fact that it was doing so in the context of a two-parent consent requirement, see ante at 34. The statute was explicit in its command that both parents consent to the abortion. See 443 U.S. at 625-626. The plurality indicated that it was aware of this fact, see id. at 630, and n. 10, and the dissent drew a specific contrast between the two-parent consent requirement then before the Court and the one-parent consent requirement before the Court in Danforth. See id. at 653 (STEVENS, J., concurring in judgment). Aware of all of these circumstances, the plurality stated the controlling principles with specific reference to laws requiring the consent of "one or both" parents. Id. at 643. The plurality's considered reasoning, coupled with the dissenting views of Justice WHITE, was intended to set forth the dispositive principles of law for deciding the constitutionality of parental consent laws. The Court has relied upon these principles in deciding the constitutionality of laws requiring notice or the consent of one parent, see Akron v. Akron Center for Reproductive Health, 462 U.S. at 439-442 (consent); Ohio v. Akron Center for Reproductive Health, post at 511-514 (notice). As Bellotti II dealt with the far more demanding [p500] requirement of two-parent consent, and approved of such a requirement when coupled with a judicial bypass alternative, I must conclude that these same principles validate a two-parent notice requirement when coupled with a judicial bypass alternative.
A second precedent that compels the conclusion that a two-parent notice law with a judicial bypass alternative is constitutional is our decision in Matheson. There we held that a two-parent notice statute without a bypass was constitutional as applied to immature minors whose best interests would be served by notice. Like the statute before the Court in Matheson, the Minnesota statute, as amended by subdivision 6, requires a physician to notify the parents of those immature minors whose best interest will be served by the communication.
If a two-parent notification law may be constitutional as applied to immature minors whose best interests are served by the law, but not as applied to minors who are mature or whose best interests are not so served, a judicial bypass is an expeditious and efficient means by which to separate the applications of the law which are constitutional from those which are not. Justice STEVENS' characterization of the judicial bypass procedure discussed in our past cases as a necessary "exception" to a "reasonable general rule," such as a one-parent consent requirement, see ante at 456, 457, is far off the mark. If a judicial bypass is mandated by the Constitution at all, it must be because a general consent rule is unreasonable in at least some of its applications, and the bypass is necessary to save the statute. See, e.g., Bellotti II, 443 U.S. at 643; Matheson, 450 U.S. at 420 (Powell, J., concurring). No reason can be given for refusing to apply a similar analysis to the less demanding case of a notice statute. It follows that a similar result should obtain: a law that requires notice to one or both parents is constitutional with a bypass. I thus concur in that portion of the judgment announced, but not agreed with, by Justice STEVENS [p501] which affirms the Court of Appeals' conclusion that § 144.343(6) is constitutional.
In this case, the Court rejects a legislature's judgment that parents should at least be aware of their daughter's intention to seek an abortion, even if the State does not empower the parents to control the child's decision. That judgment is rejected, although it rests upon a tradition of a parental role in the care and upbringing of children that is as old as civilization itself. Our precedents do not permit this result.
It is true that, for all too many young women, the prospect of two parents, perhaps even one parent, sustaining her with support that is compassionate and committed is an illusion. Statistics on drug and alcohol abuse by parents and documentations of child neglect and mistreatment are but fragments of the evidence showing the tragic reality that becomes day-to-day life for thousands of minors. But the Court errs in serious degree when it commands its own solution to the cruel consequences of individual misconduct, parental failure, and social ills. The legislative authority is entitled to attempt to meet these wrongs by taking reasonable measures to recognize and promote the primacy of the family tie, a concept which this Court now seems intent on declaring a constitutional irrelevance.