No. 88-805

[June 25, 1990]

Justice Stevens, concurring in part and concurring in the judgment.

As the Court emphasizes, appellees have challenged the Ohio statute only on its face. The State may presume that, in most of its applications, the statute will reasonably further its legitimate interest in protecting the welfare of its minor citizens. See H.L. v. Matheson, 450 U.S. 398, 422-423 (1981) (Stevens, J., concurring in judgment). In some of its applications, however, the one-parent notice requirement will not reasonably further that interest. There will be exceptional situations in which notice will cause a realistic risk of physical harm to the pregnant woman, will cause trauma to an ill parent, or will enable the parent to prevent the abortion for reasons that are unrelated to the best interests of the minor. The Ohio statute recognizes that possibility by providing a judicial bypass. The question in this case is whether that statutory protection for the exceptional case is so obviously inadequate that the entire statute should be invalidated. I am not willing to reach that conclusion before the statute has been implemented and the significance of its restrictions evaluated in the light of its administration. I therefore agree that the Court of Appeals' judgment must be reversed and I join Parts I-IV of the Court's opinion. [n.1]

The Court correctly states that we have not decided the specific question whether a judicial bypass procedure is necessary in order to save the constitutionality of a single parent notice statute. See ante, at 5. We have, however, squarely held that a requirement of preabortion parental notice in all cases involving pregnant minors is unconstitutional. Although it need not take the form of a judicial bypass, the State must provide an adequate mechanism for cases in which the minor is mature or notice would not be in her best interests.

In Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 (1983), the city argued that the constitutionality of its ordinance requiring parental consent was saved by the minor's opportunity to invoke the State's juvenile court procedures. We held the same day in Planned Parenthood Assn. of Kansas City, Mo. v. Ashcroft, 462 U.S. 476, 493 (1983) (opinion of Powell, J.), that a similar provision which did not require parental notification avoided any constitutional infirmities in a such a statute. We rejected the argument in Akron, however, because the procedures in that case required that the parent be given notice when the minor's petition was filed. Writing for six Justices, including the author of the Court's opinion in H.L. v. Matheson, supra, Justice Powell explained:

"Even assuming that the Ohio courts would construe these provisions as permitting a minor to obtain judicial approval for the 'proper or necessary ... medical or surgical care' of an abortion, where her parents had refused to provide that care, the statute makes no provision for a mature or emancipated minor completely to avoid hostile parental involvement by demonstrating to the satisfaction of the court that she is capable of exercising her constitutional right to choose an abortion. On the contrary, the statute requires that the minor's parents be notified once a petition has been filed, [Ohio Rev. Code Ann.] 2151.28 [Supp. 1982], a requirement that in the case of a mature minor seeking an abortion would be unconstitutional. See H.L. v. Matheson, 450 U.S., at 420 (Powell, J., concurring); id., at 428, n.3 (Marshall, J., dissenting)." 462 U.S., at 441, n.31.

Thus, while a judicial bypass may not be necessary to take care of the cases in which the minor is mature or parental notice would not be in her best interests — and, indeed, may not be the preferable mechanism — the Court has held that some provision must be made for such cases.

The Ohio statute, on its face, provides a sufficient procedure for those cases. The pleading requirements and the constructive authorization and confidentiality provisions of the Act satisfy the standards established in Ashcroft, supra, for a judicial bypass. As the Court states, the minor is not bound by her initial choice of pleading form, ante, at 11, the constructive authorization provision functions as an additional "safety net" when the statutory deadlines are not met, ante, at 10, and the State has taken reasonable steps to ensure confidentiality, ante, at 7. The requirement that the minor prove maturity or best interests by clear and convincing evidence is supported by the presumption that notification to a parent will in most circumstances be in the minor's best interests: it is not unreasonable to require the minor, when assisted by counsel and a guardian ad litem, ante, at 11, 12-13, to overcome that presumption by clear and convincing evidence. Cf. Parham v. J.R., 442 U.S. 584, 610 (1979) ("[P]resumption that parents act in the best interests of their child" is relevant in determining what process is due in commitment proceeding). [n.2] I have more concern about the possible delay in the bypass procedure, but the statute permits the Ohio courts to expedite the procedure upon a showing of good cause, see ante, at 9 (citing Ohio Rev. Code Ann. 2505.073(A) (Supp. 1988)), and sensitive administration of the deadlines may demonstrate that my concern is unwarranted.

There is some tension between the statutory requirement that the treating physician notify the minor's parent and our decision in Akron, 462 U.S., at 446-449, that a State may not require the attending physician to personally counsel an abortion patient. One cannot overlook the possibility that this provision was motivated more by a legislative interest in placing obstacles in the woman's path to an abortion, see Maher v. Roe, 432 U.S. 464, 474 (1977), than by a genuine interest in fostering informed decisionmaking. I agree with the Court, however, that the Ohio statute requires only that the physician take "reasonable steps" to notify a minor's parent and that such notification may contribute to the de cisionmaking process. Ante, at 13-14. Accordingly, I am unable to conclude that this provision is unconstitutional on its face.


1 It is perhaps trite for a judge to reiterate the familiar proposition that an opinion about the facial constitutionality of a statute says nothing about the judge's views concerning the wisdom or unwisdom of the measure. I have made this observation before, see National League of Cities v. Usery, 426 U.S. 833, 881 (1976) (dissenting opinion), and am moved by Justice Blackmun's eloquent dissent to do so again. It would indeed be difficult to contend that each of the challenged provisions of the Ohio statute — or the entire mosaic — represents wise legislation.

2 The standard of proof for the minor's abortion decision is no more onerous than that for any medical procedure of which the parents may disapprove. Under Ohio law, a determination that a child is neglected or dependent, which is necessary before a court or guardian ad litem may authorize proper or necessary medical or surgical care, must be made by clear and convincing evidence. See Ohio Rev. Code Ann. 2151.35 (Supp. 1988); see also In re Willmann, 24 Ohio App. 3d 191, 198-199, 493 N.E. 2d 1380, 1389 (1986); In re Bibb, 70 Ohio App. 2d 117, 120, 435 N.E. 2d 96, 99 (1980).