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SUPREME COURT OF THE UNITED STATES
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No. 78-329
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1979.SCT.42409 <http://www.versuslaw.com>; 443 U.S. 622, 99
S. Ct. 3035, 61 L. Ed. 2d 797
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decided*fn*: July 2, 1979.
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BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS, ET AL.
v.
BAIRD
ET AL.
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APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MASSACHUSETTS.
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Garrick F. Cole, Assistant Attorney General of Massachusetts, argued
the cause for appellants in No. 78-329. With him on the briefs were
Francis X. Bellotti, Attorney General, pro se, and Michael B. Meyer and
Thomas R. Kiley, Assistant Attorneys General. Brian A. Riley argued the
cause for appellant in No. 78-330. With him on the brief was Thomas P.
Russell.
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Joseph J. Balliro argued the cause for appellees in both cases. With
him on the brief was Joan C. Schmidt. John H. Henn also argued the cause
for appellees in both cases. With him on the brief were Scott C.
Moriearty, Sandra L. Lynch, Loyd M. Starrett, and John Reinstein.*fn**
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Powell, J., announced the judgment of the Court and delivered an
opinion, in which Burger, C. J., and Stewart and Rehnquist, JJ., joined.
Rehnquist, J., filed a concurring opinion, post, p. 651. Stevens, J.,
filed an opinion concurring in the judgment, in which Brennan, Marshall,
and Blackmun, JJ., joined, post, p. 652. White, J., filed a dissenting
opinion, post, p. 656.
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Author: Powell
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[ 61 L. Ed. Page
624]
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MR. JUSTICE POWELL announced the judgment of the Court and delivered
an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR.
JUSTICE REHNQUIST joined.
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These appeals present a challenge to the constitutionality of a state
statute regulating the access of minors to abortions. They require us to
continue the inquiry we began in Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52 (1976), and Bellotti v. Baird, 428 U.S. 132 (1976).
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[ 61 L. Ed. Page
625]
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I
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A
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On August 2, 1974, the Legislature of the Commonwealth of
Massachusetts passed, over the Governor's veto, an Act pertaining to
abortions performed within the State. 1974 Mass. Acts, ch. 706. According
to its title, the statute was intended to regulate abortions "within
present constitutional limits." Shortly before the Act was to go into
effect, the class action from which these appeals arise was commenced in
the District Court*fn1 to enjoin, as unconstitutional, the
provision of the Act now codified as Mass. Gen. Laws Ann., ch. 112, 12S
(West Supp. 1979).*fn2
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Section 12S provides in part:
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"If the mother is less than eighteen years of age and has not married,
the consent of both the mother and her parents [to an abortion to be
performed on the mother] is required. If one or both of the mother's
parents refuse such consent, consent may be obtained by order of a judge
of the superior court for good cause shown, after such hearing as he deems
necessary. Such a hearing will not require the appointment of a guardian
for the mother. If one of the parents has died or has deserted his or her
family, consent by the remaining parent is sufficient. If both parents
have died or have deserted their family, consent of the mother's guardian
or other
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[ 61 L. Ed. Page
626]
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person having duties similar to a guardian, or any person who had
assumed the care and custody of the mother is sufficient. The commissioner
of public health shall prescribe a written form for such consent. Such
form shall be signed by the proper person or persons and given to the
physician performing the abortion who shall maintain it in his permanent
files."
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Physicians performing abortions in the absence of the consent required
by 12S are subject to injunctions and criminal penalties. See Mass. Gen.
Laws Ann., ch. 112, 12Q, 12T, and 12U (West Supp. 1979).
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A three-judge District Court was convened to hear the case pursuant to
28 U. S. C. 2281 (1970 ed.), repealed by Pub. L. 94-381, 1, 90 Stat.
1119.*fn3 Plaintiffs in the suit, appellees in both
the cases before us now, were William Baird; Parents Aid Society, Inc.
(Parents Aid), of which Baird is founder and director; Gerald Zupnick, M.
D., who regularly performs abortions at the Parents Aid clinic; and an
unmarried minor, identified by the pseudonym "Mary Moe," who, at the
commencement of the suit, was pregnant, residing at home with her parents,
and desirous of obtaining an abortion without informing them.*fn4
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Mary Moe was permitted to represent the "class of unmarried minors in
Massachusetts who have adequate capacity to give a valid and informed
consent [to abortion], and who do not wish to involve their parents."
Baird v. Bellotti, 393 F.Supp. 847, 850 (Mass. 1975) (Baird I). Initially
there was some confusion whether the rights of minors who wish abortions
without parental involvement but who lack "adequate capacity" to give such
consent also could be adjudicated in
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[ 61 L. Ed. Page
627]
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the suit. The District Court ultimately determined that Dr. Zupnick
was entitled to assert the rights of these minors. See Baird v. Bellotti,
450 F.Supp. 997, 1001, and n. 6 (Mass. 1978).*fn5
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Planned Parenthood League of Massachusetts and Crittenton Hastings
House & Clinic, both organizations that provide counseling to pregnant
adolescents, and Phillip Stubblefield, M. D. (intervenors),*fn6 appeared as amici curiae on behalf of the
plaintiffs. The District Court "accepted [this group] in a status
something more than amici because of reservations about the adequacy of
plaintiffs' representation [of the plaintiff classes in the suit]." Id.,
at 999 n. 3.
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Defendants in the suit, appellants here in No. 78-329, were the
Attorney General of Massachusetts and the District Attorneys of all
counties in the State. Jane Hunerwadel was permitted to intervene as a
defendant and representative of the class of Massachusetts parents having
unmarried minor daughters who then were, or might become, pregnant. She
and the class she represents are appellants in No. 78-330.*fn7
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Following three days of testimony, the District Court issued an
opinion invalidating 12S. Baird I, supra. The court rejected appellees'
argument that all minors capable of becoming pregnant also are capable of
giving informed consent
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[ 61 L. Ed. Page
628]
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to an abortion, or that it always is in the best interests of a minor
who desires an abortion to have one. See 393 F.Supp., at 854. But the court was convinced that "a substantial number of
females under the age of 18 are capable of forming a valid consent," id.,
at 855, and "that a significant number of [these] are unwilling to tell
their parents." Id., at 853.
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In its analysis of the relevant constitutional principles, the court
stated that "there can be no doubt but that a female's constitutional
right to an abortion in the first trimester does not depend upon her
calendar age." Id., at 855-856. The court found no justification for the
parental consent limitation placed on that right by 12S, since it
concluded that the statute was "cast not in terms of protecting the minor,
. . . but in recognizing independent rights of parents." Id., at 856. The
"independent" parental rights protected by 12S, as the court understood
them, were wholly distinct from the best interests of the minor.*fn8
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B
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Appellants sought review in this Court, and we noted probable
jurisdiction. Bellotti v. Baird, 423 U.S. 982 (1975).
After briefing and oral argument, it became apparent that 12S was
susceptible of a construction that "would avoid or substantially modify
the federal constitutional challenge to the statute." Bellotti v. Baird, 428 U.S. 132, 148 (1976) (Bellotti I). We therefore
vacated the judgment of the District Court, concluding that it should have
abstained and certified to the Supreme Judicial Court of Massachusetts
appropriate questions concerning the meaning of 12S, pursuant to existing
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[ 61 L. Ed. Page
629]
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procedure in that State. See Mass. Sup. Jud. Ct. Rule
3:21.
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On remand, the District Court certified nine questions to the Supreme
Judicial Court.*fn9 These were answered in an
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[ 61 L. Ed. Page
630]
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opinion styled Baird v. Attorney General, 371 Mass. 741, 360 N. E. 2d
288 (1977) (Attorney General). Among the more important aspects of 12S, as
authoritatively construed by the Supreme Judicial Court, are the
following:
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1. In deciding whether to grant consent to their daughter's abortion,
parents are required by 12S to consider exclusively what will serve her
best interests. See id., at 746-747, 360 N. E. 2d, at
292-293.
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2. The provision in 12S that judicial consent for an abortion shall be
granted, parental objections notwithstanding, "for good cause shown" means
that such consent shall be granted if found to be in the minor's best
interests. The judge "must disregard all parental objections, and other
considerations, which are not based exclusively" on that standard. Id., at
748, 360 N. E. 2d, at 293.
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3. Even if the judge in a 12S proceeding finds "that the minor is
capable of making, and has made, an informed and reasonable decision to
have an abortion," he is entitled to withhold consent "in circumstances
where he determines that the best interests of the minor will not be
served by an abortion.' Ibid., 360 N. E. 2d, at 293.
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4. As a general rule, a minor who desires an abortion may not obtain
judicial consent without first seeking both parents' consent. Exceptions
to the rule exist when a parent is not available or when the need for the
abortion constitutes "'an emergency requiring immediate action.'"*fn10 Id., at 750, 360 N. E. 2d, at 294. Unless
a parent is not available, he must be notified of any judicial proceedings
brought under 12S. Id., at 755-756, 360 N. E. 2d, at 297.
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[ 61 L. Ed. Page
6315]
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. The resolution of 12S cases and any appeals that follow can be
expected to be prompt. The name of the minor and her parents may be held
in confidence. If need be, the Supreme Judicial Court and the superior
courts can promulgate rules or issue orders to ensure that such
proceedings are handled expeditiously. Id., at 756-758, 360 N. E. 2d, at
297-298.
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6. Massachusetts Gen. Laws Ann., ch. 112, 12F (West Supp. 1979), which
provides, inter alia, that certain classes of minors may consent to most
kinds of medical care without parental approval, does not apply to
abortions, except as to minors who are married, widowed, or divorced. See
371 Mass., at 758-762, 360 N. E. 2d, at 298-300. Nor does the State's
common-law "mature minor rule" create an exception to 12S. Id., at
749-750, 360 N. E. 2d, at 294. See n. 27, infra.
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C
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Following the judgment of the Supreme Judicial Court, appellees
returned to the District Court and obtained a stay of the enforcement of
12S until its constitutionality could be determined. Baird v. Bellotti,
428 F.Supp. 854 (Mass. 1977) (Baird II). After permitting discovery by
both sides, holding a pretrial conference, and conducting further
hearings, the District Court again declared 12S unconstitutional and
enjoined its enforcement. Baird v. Bellotti, 450 F.Supp. 997 (Mass. 1978)
(Baird III). The court identified three particular aspects of the statute
which, in its view, rendered it unconstitutional.
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First, as construed by the Supreme Judicial Court, 12S requires
parental notice in virtually every case where the parent is available. The
court believed that the evidence warranted a finding "that many, perhaps a
large majority of 17-year olds are capable of informed consent, as are a
not insubstantial number of 16-year olds, and some even younger." Id., at
1001. In addition, the court concluded that it would not be in
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[ 61 L. Ed. Page
632]
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the best interests of some "immature" minors -- those incapable of
giving informed consent -- even to inform their parents of their intended
abortions. Although the court declined to decide whether the burden of
requiring a minor to take her parents to court was, per se, an
impermissible burden on her right to seek an abortion, it concluded that
Massachusetts could not constitutionally insist that parental permission
be sought or notice given "in those cases where a court, if given free
rein, would find that it was to the minor's best interests that one or
both of her parents not be informed . . . ." Id., at 1002.
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Second, the District Court held that 12S was defective in permitting a
judge to veto the abortion decision of a minor found to be capable of
giving informed consent. The court reasoned that upon a finding of
maturity and informed consent, the State no longer was entitled to impose
legal restrictions upon this decision. Id., at 1003. Given such a finding,
the court could see "no reasonable basis" for distinguishing between a
minor and an adult, and it therefore concluded that 12S was not only "an
undue burden in the due process sense, [but] a discriminatory denial of
equal protection [as well]." Id., at 1004.
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Finally, the court decided that 12S suffered from what it termed
"formal overbreadth," ibid., because the statute failed explicitly to
inform parents that they must consider only the minor's best interests in
deciding whether to grant consent. The court believed that, despite the
Supreme Judicial Court's construction of 12S, parents naturally would
infer from the statute that they were entitled to withhold consent for
other, impermissible reasons. This was thought to create a "chilling
effect" by enhancing the possibility that parental consent would be denied
wrongfully and that the minor would have to proceed in
court.
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Having identified these flaws in 12S, the District Court considered
whether it should engage in "judicial repair." Id., at 1005. It declined
either to sever the statute or to give
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[ 61 L. Ed. Page
633]
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it a construction different from that set out by the Supreme Judicial
Court, as that tribunal arguably had invited it to do. See Attorney
General, 371 Mass., at 745-746, 360 N. E. 2d, at 292. The District Court
therefore adhered to its previous position, declaring 12S unconstitutional
and permanently enjoining its enforcement.*fn11 Appellants sought review in this Court a
second time, and we again noted probable jurisdiction. 439 U.S.
925 (1978).
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II
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A child, merely on account of his minority, is not beyond the
protection of the Constitution. As the Court said in In re Gault, 387 U.S. 1, 13 (1967), "whatever may be their precise
impact, neither the Fourteenth Amendment nor the Bill of Rights is for
adults alone."*fn12 This observation, of course, is but the
beginning of the analysis. The Court long has recognized that the status
of minors under the law is unique in many respects. As Mr. Justice
Frankfurter aptly put it: "Children have a very special place in life
which law should reflect. Legal theories and their phrasing in other cases
readily lead to fallacious reasoning if uncritically transferred to
determination
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[ 61 L. Ed. Page
634]
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of a State's duty towards children." May v. Anderson, 345
U.S. 528, 536 (1953) (concurring opinion). The unique role in
our society of the family, the institution by which "we inculcate and pass
down many of our most cherished values, moral and cultural," Moore v. East
Cleveland, 431 U.S. 494, 503-504 (1977) (plurality
opinion), requires that constitutional principles be applied with
sensitivity and flexibility to the special needs of parents and children.
We have recognized three reasons justifying the conclusion that the
constitutional rights of children cannot be equated with those of adults:
the peculiar vulnerability of children; their inability to make critical
decisions in an informed, mature manner; and the importance of the
parental role in child rearing.
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A
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The Court's concern for the vulnerability of children is demonstrated
in its decisions dealing with minors' claims to constitutional protection
against deprivations of liberty or property interests by the State. With
respect to many of these claims, we have concluded that the child's right
is virtually coextensive with that of an adult. For example, the Court has
held that the Fourteenth Amendment's guarantee against the deprivation of
liberty without due process of law is applicable to children in juvenile
delinquency proceedings. In re Gault, supra. In particular, minors
involved in such proceedings are entitled to adequate notice, the
assistance of counsel, and the opportunity to confront their accusers.
They can be found guilty only upon proof beyond a reasonable doubt, and
they may assert the privilege against compulsory self-incrimination. In re
Winship, 397 U.S. 358 (1970); In re Gault, supra. See
also Ingraham v. Wright, 430 U.S. 651, 674 (1977)
(corporal punishment of schoolchildren implicates constitutionally
protected liberty interest); cf. Breed v. Jones, 421 U.S. 519 (1975) (Double Jeopardy Clause prohibits prosecuting
juvenile as an adult after an adjudicatory finding in juvenile court that
he had violated a criminal statute).
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[ 61 L. Ed. Page
635]
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Similarly, in Goss v. Lopez, 419 U.S. 565 (1975),
the Court held that children may not be deprived of certain property
interests without due process.
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These rulings have not been made on the uncritical assumption that the
constitutional rights of children are indistinguishable from those of
adults. Indeed, our acceptance of juvenile courts distinct from the adult
criminal justice system assumes that juvenile offenders constitutionally
may be treated differently from adults. In order to preserve this separate
avenue for dealing with minors, the Court has said that hearings in
juvenile delinquency cases need not necessarily "'conform with all of the
requirements of a criminal trial or even of the usual administrative
hearing.'" In re Gault, supra, at 30, quoting Kent v. United States, 383 U.S. 541, 562 (1966). Thus, juveniles are not
constitutionally entitled to trial by jury in delinquency adjudications.
McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Viewed
together, our cases show that although children generally are protected by
the same constitutional guarantees against governmental deprivations as
are adults, the State is entitled to adjust its legal system to account
for children's vulnerability and their needs for "concern, . . . sympathy,
and . . . paternal attention." Id., at 550 (plurality
opinion).
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B
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Second, the Court has held that the States validly may limit the
freedom of children to choose for themselves in the making of important,
affirmative choices with potentially serious consequences. These rulings
have been grounded in the recognition that, during the formative years of
childhood and adolescence, minors often lack the experience, perspective,
and judgment to recognize and avoid choices that could be detrimental to
them.*fn13
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[ 61 L. Ed. Page
636]
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Ginsberg v. New York, 390 U.S. 629 (1968),
illustrates well the Court's concern over the inability of children to
make mature choices, as the First Amendment rights involved are clear
examples of constitutionally protected freedoms of choice. At issue was a
criminal conviction for selling sexually oriented magazines to a minor
under the age of 17 in violation of a New York state law. It was conceded
that the conviction could not have stood under the First Amendment if
based upon a sale of the same material to an adult. Id., at 634.
Notwithstanding the importance the Court always has attached to First
Amendment rights, it concluded that "even where there is an invasion of
protected freedoms 'the power of the state to control the conduct of
children reaches beyond the scope of its authority over adults . . . ,'"
id., at 638, quoting Prince v. Massachusetts, 321 U.S. 158, 170 (1944).*fn14 The Court was convinced that the New York
Legislature rationally could conclude that the sale to children of the
magazines in question presented a danger against which they should be
guarded. Ginsberg, supra, at 641. It therefore rejected the
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[ 61 L. Ed. Page
637]
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argument that the New York law violated the constitutional rights of
minors.*fn15
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C
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Third, the guiding role of parents in the upbringing of their children
justifies limitations on the freedoms of minors. The State commonly
protects its youth from adverse governmental action and from their own
immaturity by requiring parental consent to or involvement in important
decisions by minors.*fn16 But an additional and more important
justification for state deference to parental control over children is
that "[the] child is not the mere creature of the State; those who nurture
him and direct his destiny have the right, coupled with the high duty, to
recognize and prepare him for additional obligations." Pierce v. Society
of Sisters, 268 U.S. 510, 535 (1925). "The duty to
prepare the child for 'additional obligations' . . .
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[ 61 L. Ed. Page
638]
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must be read to include the inculcation of moral standards, religious
beliefs, and elements of good citizenship." Wisconsin v. Yoder,
406 U.S. 205, 233 (1972). This affirmative process of
teaching, guiding, and inspiring by precept and example is essential to
the growth of young people into mature, socially responsible
citizens.
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We have believed in this country that this process, in large part, is
beyond the competence of impersonal political institutions. Indeed,
affirmative sponsorship of particular ethical, religious, or political
beliefs is something we expect the State not to attempt in a society
constitutionally committed to the ideal of individual liberty and freedom
of choice. Thus, "[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, supra, at 166 (emphasis
added).
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Unquestionably, there are many competing theories about the most
effective way for parents to fulfill their central role in assisting their
children on the way to responsible adulthood. While we do not pretend any
special wisdom on this subject, we cannot ignore that central to many of
these theories, and deeply rooted in our Nation's history and tradition,
is the belief that the parental role implies a substantial measure of
authority over one's children. Indeed, "constitutional interpretation has
consistently recognized that the parents' claim to authority in their own
household to direct the rearing of their children is basic in the
structure of our society." Ginsberg v. New York, supra, at
639.
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Properly understood, then, 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
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[ 61 L. Ed. Page
639]
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participation in a free society meaningful and rewarding.*fn17 Under the Constitution, the State can
"properly conclude that parents and others, teachers for example, who have
[the] primary responsibility for children's well-being are entitled to the
support of laws designed to aid discharge of that responsibility."
Ginsberg v. New York, 390 U.S., at 639.*fn18
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III
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With these principles in mind, we consider the specific constitutional
questions presented by these appeals. In 12S, Massachusetts has attempted
to reconcile the constitutional right of a woman, in consultation with her
physician, to choose to terminate her pregnancy as established by Roe v.
Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), with the special interest of the
State in encouraging an unmarried pregnant minor to seek the advice of her
parents in making the important decision whether or not to bear a child.
As noted above, 12S was before us in Bellotti I, 428 U.S. 132 (1976), where we remanded the case for interpretation of
its provisions by the Supreme Judicial Court of Massachusetts. We
previously had held in Planned Parenthood of Central Missouri v. Danforth,
428 U.S. 52 (1976), that a State could not lawfully
authorize an absolute parental veto over the decision of a minor to
terminate her pregnancy. Id., at 74. In
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[ 61 L. Ed. Page
640]
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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. It
seems unlikely that she will obtain adequate counsel and support from the
attending physician at an abortion clinic, where abortions for pregnant
minors frequently take place." (Footnote omitted.)*fn21
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[ 61 L. Ed. Page
642]
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But we are concerned here with a constitutional right to seek an
abortion. The abortion decision differs in important ways from other
decisions that may be made during minority. The need to preserve the
constitutional right and the unique nature of the abortion decision,
especially when made by a minor, require a State to act with particular
sensitivity when it legislates to foster parental involvement in this
matter.
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| [52] |
A
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| [53] |
The pregnant minor's options are much different from those facing a
minor in other situations, such as deciding whether to marry. A minor not
permitted to marry before the age of majority is required simply to
postpone her decision. She and her intended spouse may preserve the
opportunity for later marriage should they continue to desire it. A
pregnant adolescent, however, cannot preserve for long the possibility of
aborting, which effectively expires in a matter of weeks from the onset of
pregnancy.
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| [54] |
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.
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| [55] |
Yet, an abortion may not be the best choice for the minor. The
circumstances in which this issue arises will vary widely. In a given
case, alternatives to abortion, such as marriage to the father of the
child, arranging for its adoption, or assuming the responsibilities of
motherhood with the assured support of
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[ 61 L. Ed. Page
643]
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family, may be feasible and relevant to the minor's best interests.
Nonetheless, the abortion decision is one that simply cannot be postponed,
or it will be made by default with far-reaching
consequences.
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| [56] |
For these reasons, as we held in Planned Parenthood of Central
Missouri v. Danforth, 428 U.S., at 74, "the State may
not impose a blanket provision . . . requiring the consent of a parent or
person in loco parentis as a condition for abortion of an unmarried minor
during the first 12 weeks of her pregnancy." Although, as stated in Part
II, supra, such deference to parents may be permissible with respect to
other choices facing a minor, the unique nature and consequences of the
abortion decision make it inappropriate "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." 428 U.S., at 74.
We therefore conclude 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*fn22 whereby authorization for the abortion
can be obtained.
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| [57] |
A pregnant minor is entitled in such a proceeding to show either: (1)
that she is mature enough and well enough informed to make her abortion
decision, in consultation with her physician, independently of her
parents' wishes;*fn23 or
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[ 61 L. Ed. Page
644]
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(2) that even if she is not able to make this decision independently,
the desired abortion would be in her best interests. The proceeding in
which this showing is made must assure that a resolution of the issue, and
any appeals that may follow, will be completed with anonymity and
sufficient expedition to provide an effective opportunity for an abortion
to be obtained. In sum, the procedure must ensure that the provision
requiring parental consent does not in fact amount to the "absolute, and
possibly arbitrary, veto" that was found impermissible in Danforth.
Ibid.
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| [58] |
B
|
| [59] |
It is against these requirements that 12S must be tested. We observe
initially that as authoritatively construed by the highest court of the
State, the statute satisfies some of the concerns that require special
treatment of a minor's abortion decision. It provides that if parental
consent is refused, authorization may be "obtained by order of a judge of
the superior court for good cause shown, after such hearing as he deems
necessary." A superior court judge presiding over a 12S proceeding "must
disregard all parental objections, and other considerations, which are not
based exclusively on what would serve the minor's best interests."*fn24 Attorney General,
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[ 61 L. Ed. Page
645371]
|
| |
Mass., at 748, 360 N. E. 2d, at 293. The Supreme Judicial Court also
stated: "Prompt resolution of a [ 12S] proceeding may be expected. . . .
The proceeding need not be brought in the minor's name and steps may be
taken, by impoundment or otherwise, to preserve confidentiality as to the
minor and her parents. . . . [We] believe that an early hearing and
decision on appeal from a judgment of a Superior Court judge may also be
achieved." Id., at 757-758, 360 N. E. 2d, at 298. The court added that if
these expectations were not met, either the superior court, in the
exercise of its rulemaking power, or the Supreme Judicial Court would be
willing to eliminate any undue burdens by rule or order. Ibid.*fn25
|
| [60] |
Despite these safeguards, which avoid much of what was objectionable
in the statute successfully challenged in Danforth, 12S falls short of
constitutional standards in certain respects. We now consider these.
|
[ 61 L. Ed. Page
646]
|
| |
(1)
|
| [61] |
Among the questions certified to the Supreme Judicial Court was
whether 12S permits any minors -- mature or immature -- to obtain judicial
consent to an abortion without any parental consultation whatsoever. See
n. 9, supra. The state court answered that, in general, it does not.
"[The] consent required by [ 12S must] be obtained for every non-emergency
abortion where the mother is less than eighteen years of age and
unmarried." Attorney General, supra, at 750, 360 N. E. 2d, at 294. The
text of 12S itself states an exception to this rule, making consent
unnecessary from any parent who has "died or has deserted his or her
family."*fn26 The Supreme Judicial Court construed the
statute as containing an additional exception: Consent need not be
obtained "where no parent (or statutory substitute) is available." 371
Mass., at 750, 360 N. E. 2d, at 294. The court also ruled that an
available parent must be given notice of any judicial proceedings brought
by a minor to obtain consent for an abortion.*fn27 Id., at 755-756, 360 N. E. 2d, at 297.
|
[ 61 L. Ed. Page
647]
|
| |
We think that, construed in this manner, 12S would impose an undue
burden upon the exercise by minors of the right to seek an abortion. As
the District Court recognized, "there are parents who would obstruct, and
perhaps altogether prevent, the minor's right to go to court." Baird III, 450 F.Supp., at 1001. There is no reason to believe
that this would be so in the majority of cases where consent is withheld.
But many 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 both an abortion and
their access to court. It would be unrealistic, therefore, to assume that
the mere existence of a legal right to seek relief in superior court
provides an effective avenue of relief for some of those who need it the
most.
|
| [62] |
We conclude, therefore, that under state regulation such as that
undertaken by Massachusetts, every minor must have the opportunity -- if
she so desires -- to go directly to a court without first consulting or
notifying her parents. If she satisfies the court that she is mature and
well enough informed to make intelligently the abortion decision on her
own, the court must authorize her to act without parental consultation or
consent. If she fails to satisfy the court that she is competent to make
this decision independently, she must be permitted to show that an
abortion nevertheless would be in her
|
[ 61 L. Ed. Page
648]
|
| |
best interests. If the court is persuaded that it is, the court must
authorize the abortion. If, however, the court is not persuaded by the
minor that she is mature or that the abortion would be in her best
interests, it may decline to sanction the operation.
|
| [63] |
There is, however, an important state interest in encouraging a family
rather than a judicial resolution of a minor's abortion decision. Also, as
we have observed above, parents naturally take an interest in the welfare
of their children -- an interest that is particularly strong where a
normal family relationship exists and where the child is living with one
or both parents. These factors properly may be taken into account by a
court called upon to determine whether an abortion in fact is in a minor's
best interests. If, all things considered, the court determines that an
abortion is in the minor's best interests, she is entitled to court
authorization without any parental involvement. On the other hand, the
court may deny the abortion request of an immature minor in the absence of
parental consultation if it concludes that her best interests would be
served thereby, or the court may in such a case defer decision until there
is parental consultation in which the court may participate. But this is
the full extent to which parental involvement may be required.*fn28 For the reasons stated above, the
constitutional right to seek an abortion may not be unduly burdened by
state-imposed conditions upon initial access to court.
|
| [64] |
(2)
|
| [65] |
Section 12S requires that both parents consent to a minor's abortion.
The District Court found it to be "custom" to perform other medical and
surgical procedures on minors with the consent of only one parent, and it
concluded that "nothing about abortions . . . requires the minor's
interest to be treated
|
[ 61 L. Ed. Page
649]
|
| |
differently." Baird I, 393 F.Supp., at 852. See
Baird III, supra, at 1004 n. 9.
|
| [66] |
We are not persuaded that, as a general rule, the requirement of
obtaining both parents' consent unconstitutionally burdens a minor's right
to seek an abortion. The abortion decision has implications far broader
than those associated with most other kinds of medical treatment. At least
when the parents are together and the pregnant minor is living at home,
both the father and mother have an interest -- one normally supportive --
in helping to determine the course that is in the best interests of a
daughter. Consent and involvement by parents in important decisions by
minors long have been recognized as protective of their immaturity. In the
case of the abortion decision, for reasons we have stated, the focus of
the parents' inquiry should be the best interests of their daughter. As
every pregnant minor is entitled in the first instance to go directly to
the court for a judicial determination without prior parental notice,
consultation, or consent, the general rule with respect to parental
consent does not unduly burden the constitutional right. Moreover, where
the pregnant minor goes to her parents and consent is denied, she still
must have recourse to a prompt judicial determination of her maturity or
best interests.*fn29
|
| [67] |
(3)
|
| [68] |
Another of the questions certified by the District Court to the
Supreme Judicial Court was the following: "If the superior court finds
that the minor is capable [of making], and has, in fact, made and adhered
to, an informed and reasonable decision to have an abortion, may the court
refuse its consent based on a finding that a parent's, or its own,
contrary decision
|
[ 61 L. Ed. Page
650]
|
| |
is a better one?" Attorney General, 371 Mass., at 747 n. 5, 360 N. E.
2d, at 293 n. 5. To this the state court answered:
|
| [69] |
"[We] do not view the judge's role as limited to a determination that
the minor is capable of making, and has made, an informed and reasonable
decision to have an abortion. Certainly the judge must make a
determination of those circumstances, but, if the statutory role of the
judge to determine the best interests of the minor is to be carried out,
he must make a finding on the basis of all relevant views presented to
him. We suspect that the judge will give great weight to the minor's
determination, if informed and reasonable, but in circumstances where he
determines that the best interests of the minor will not be served by an
abortion, the judge's determination should prevail, assuming that his
conclusion is supported by the evidence and adequate findings of fact."
Id., at 748, 360 N. E. 2d, at 293.
|
| [70] |
The Supreme Judicial Court's statement reflects the general rule that
a State may require a minor to wait until the age of majority before being
permitted to exercise legal rights independently. See n. 23, supra. But we
are concerned here with the exercise of a constitutional right of unique
character. See supra, at 642-643. As stated above, if the minor satisfies
a court that she has attained sufficient maturity to make a fully informed
decision, she then is entitled to make her abortion decision
independently. We therefore agree with the District Court that 12S cannot
constitutionally permit judicial disregard of the abortion decision of a
minor who has been determined to be mature and fully competent to assess
the implications of the choice she has made.*fn30
|
[ 61 L. Ed. Page
651]
|
| |
IV
|
| [71] |
Although it satisfies constitutional standards in large part, 12S
falls short of them in two respects: First, it permits judicial
authorization for an abortion to be withheld from a minor who is found by
the superior court to be mature and fully competent to make this decision
independently. Second, it requires parental consultation or notification
in every instance, without affording the pregnant minor an opportunity to
receive an independent judicial determination that she is mature enough to
consent or that an abortion would be in her best interests.*fn31 Accordingly, we affirm the judgment of
the District Court insofar as it invalidates this statute and enjoins its
enforcement.*fn32
|
| [72] |
Affirmed.
|
| [73] |
Disposition
|
| [74] |
450 F.Supp. 997, affirmed.
|
| [75] |
MR. JUSTICE REHNQUIST, concurring.
|
| [76] |
I join the opinion of MR. JUSTICE POWELL and the judgment of the
Court. At such time as this Court is willing to
|
[ 61 L. Ed. Page
652]
|
| |
reconsider its earlier decision in Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52 (1976), in which I
joined the opinion of MR. JUSTICE WHITE, dissenting in part, I shall be
more than willing to participate in that task. But unless and until that
time comes, literally thousands of judges cannot be left with nothing more
than the guidance offered by a truly fragmented holding of this
Court.
|
| [77] |
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE BLACKMUN join, concurring in the
judgment.
|
| [78] |
In Roe v. Wade, 410 U.S. 113, the Court held that
a woman's right to decide whether to terminate a pregnancy is
|
[ 61 L. Ed. Page
653]
|
| |
entitled to constitutional protection. In Planned Parenthood of
Central Missouri v. Danforth, 428 U.S. 52, 72-75, the
Court held that a pregnant minor's right to make the abortion decision may
not be conditioned on the consent of one parent. I am persuaded that these
decisions require affirmance of the District Court's holding that the
Massachusetts statute is unconstitutional.
|
| [79] |
The Massachusetts statute is, on its face, simple and straightforward.
It provides that every woman under 18 who has not married must secure the
consent of both her parents before receiving an abortion. "If one or both
of the mother's parents refuse such consent, consent may be obtained by
order of a judge of the superior court for good cause shown." Mass. Gen.
Laws Ann., ch. 112, 12S (West Supp. 1979).
|
| [80] |
Whatever confusion or uncertainty might have existed as to how this
statute was to operate, see Bellotti v. Baird, 428 U.S. 132, has been eliminated by the authoritative construction of
its provisions by the Massachusetts Supreme Judicial Court. See Baird v.
Attorney General, 371 Mass. 741, 360 N. E. 2d 288 (1977). The statute was
construed to require that every minor who wishes an abortion must first
seek the consent of both parents, unless a parent is not available or
unless the need for the abortion constitutes "'an emergency requiring
immediate action.'" Id., at 750, 360 N. E. 2d, at 294. Both parents, so
long as they are available, must also receive notice of judicial
proceedings brought under the statute by the minor. In those proceedings,
the task of the judge is to determine whether the best interests of the
minor will be served by an abortion. The decision is his to make, even if
he finds "that the minor is capable of making, and has made, an informed
and reasonable decision to have an abortion." Id., at 748, 360 N. E. 2d,
at 293. Thus, no minor in Massachusetts, no matter how mature and capable
of informed decisionmaking, may receive an abortion without the consent
|
[ 61 L. Ed. Page
654]
|
| |
of either both her parents or a superior court judge. In every
instance, the minor's decision to secure an abortion is subject to an
absolute third-party veto.*fn1
|
| [81] |
In Planned Parenthood of Central Missouri v. Danforth, supra, this
Court invalidated statutory provisions requiring the consent of the
husband of a married woman and of one parent of a pregnant minor to an
abortion. As to the spousal consent, the Court concluded that "we cannot
hold that the State has the constitutional authority to give the spouse
unilaterally the ability to prohibit the wife from terminating her
pregnancy, when the State itself lacks that right." 428 U.S., at
70. And as to the parental consent, the Court held that "[just]
as with the requirement of consent from the spouse, so here, the 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. These holdings, I think,
equally apply to the Massachusetts statute. The differences between the
two statutes are few. Unlike the Missouri statute, Massachusetts requires
the consent of both of the woman's parents. It does, of course, provide an
alternative in the form of a suit initiated by the woman in superior
court. But in that proceeding, the judge is afforded an absolute veto over
the minor's decisions, based on his judgment of her best interests. In
Massachusetts, then, as in Missouri, the State has imposed an "absolute
limitation on the minor's right to obtain an abortion," id., at 90
(STEWART, J., concurring), applicable to every pregnant minor in the State
who has not married.
|
[ 61 L. Ed. Page
655]
|
| |
The provision of an absolute veto to a judge -- or, potentially, to an
appointed administrator*fn2 -- is to me particularly troubling. The
constitutional right to make the abortion decision affords protection to
both of the privacy interests recognized in this Court's cases: "One is
the individual interest in avoiding disclosure of personal matters, and
another is the interest in independence in making certain kinds of
important decisions." Whalen v. Roe, 429 U.S. 589,
599-600 (footnotes omitted). 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. In Massachusetts, however, every minor who cannot secure the
consent of both her parents -- which under Danforth cannot be an absolute
prerequisite to an abortion -- is required to secure the consent of the
sovereign. As a practical matter, I would suppose that the 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.*fn3 Moreover, once this burden is met, the
only standard provided for the judge's decision is the best interest of
the minor. That 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
|
[ 61 L. Ed. Page
656]
|
| |
with privacy interests underlying the constitutional protection
afforded to her decision.
|
| [82] |
In short, it seems to me that this litigation is governed by Danforth
; to the extent this statute differs from that in Danforth, it is
potentially even more restrictive of the constitutional right to decide
whether or not to terminate a pregnancy. Because the statute has been once
authoritatively construed by the Massachusetts Supreme Judicial Court, and
because it is clear that the statute as written and construed is not
constitutional, I agree with MR. JUSTICE POWELL that the District Court's
judgment should be affirmed. Because his opinion goes further, however,
and addresses the constitutionality of an abortion statute that
Massachusetts has not enacted, I decline to join his opinion.*fn4
|
| [83] |
MR. JUSTICE WHITE, dissenting.
|
| [84] |
I was in dissent in Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52, 94-95 (1976), on the issue of
the validity of requiring the consent of a parent when an unmarried woman
under 18 years of age seeks an abortion. I continue to have the views I
expressed there and also agree with much of what MR. JUSTICE STEVENS said
in dissent in that
|
[ 61 L. Ed. Page
657]
|
| |
case. Id., at 101-105. I would not, therefore, strike down this
Massachusetts law.
|
| [85] |
But even if a parental consent requirement of the kind involved in
Danforth must be deemed invalid, that does not condemn the Massachusetts
law, which, when the parents object, authorizes a judge to permit an
abortion if he concludes that an abortion is in the best interests of the
child. Going beyond Danforth, the Court now holds it unconstitutional for
a State to require that in all cases parents receive notice that their
daughter seeks an abortion and, if they object to the abortion, an
opportunity to participate in a hearing that will determine whether it is
in the "best interests" of the child to undergo the surgery. Until now, I
would have thought inconceivable a holding that the United States
Constitution forbids even notice to parents when their minor child who
seeks surgery objects to such notice and is able to convince a judge that
the parents should be denied participation in the decision.
|
| [86] |
With all due respect, I dissent.
|
| |
|
| |
General Footnotes
|
| |
|
| [87] |
*fn* Together with No. 78-330, Hunerwadel v.
Baird et al., also on appeal from the same court.
|
| |
|
| |
Counsel Footnotes
|
| |
|
| [88] |
*fn** Stuart D. Hubbell and Robert A. Destro
filed a brief for the Catholic League for Religious and Civil Rights et
al. as amici curiae urging reversal in No. 78-329. Eve W. Paul, Harriet F.
Pilpel, and Sylvia A. Law filed a brief for the Planned Parenthood
Federation of America, Inc., et al. as amici curiae urging affirmance in
both cases. Briefs of amici curiae were filed by Victor G. Rosenblum,
Dennis J. Horan, and John D. Gorby in both cases for Americans United for
Life, Inc., et al.; and by George E. Reed and Patrick F. Geary in No.
78-329 for the United States Catholic Conference.
|
| |
|
| |
Opinion Footnotes
|
| |
|
| [89] |
*fn1 The court promptly issued a restraining
order which remained in effect until its decision on the merits.
Subsequent stays of enforcement were issued during the complex course of
this litigation, with the result that Mass. Gen. Laws Ann., ch. 112, 12S
(West Supp. 1979), never has been enforced by Massachusetts.
|
| [90] |
*fn2 As originally enacted, 12S was designated
as 12P of chapter 112. In 1977, the provision was renumbered as 12S, and
the numbering of subdivisions within the section was eliminated. No
changes of substance were made. We shall refer to the section as 12S
throughout this opinion.
|
| [91] |
*fn3 The proceedings before the court and the
substance of its opinion are described in detail in Bellotti v. Baird, 428 U.S. 132, 136-143 (1976).
|
| [92] |
*fn4 Three other minors in similar circumstances
were named in the complaint, but the complaint was dismissed as to them
for want of proof of standing. That decision has not been challenged on
appeal.
|
| [93] |
*fn5 Appellants argue that these "immature"
minors never were before the District Court and that the court's remedy
should have been tailored to grant relief only to the class of "mature"
minors. It is apparent from the District Court's opinions, however, that
it considered the constitutionality of 12S as applied to all pregnant
minors who might be affected by it. We accept that the rights of this
entire category of minors properly were subject to
adjudication.
|
| [94] |
*fn6 In 1978, the District Court permitted
postjudgment intervention by these parties, who now appear jointly before
this Court as intervenor-appellees.
|
| [95] |
*fn7 As their positions are closely aligned, if
not identical, appellants in Nos. 78-329 and 78-330 are hereinafter
referred to collectively as appellants.
|
| [96] |
*fn8 One member of the three-judge court
dissented, arguing that the decision of the majority to allow Mary Moe to
proceed in the case without notice to her parents denied them their
parental rights without due process of law, and that 12S was consistent
with the decisions of this Court recognizing the propriety of parental
control over the conduct of children. See 393 F.Supp., at
857-865.
|
| [97] |
*fn9 The nine questions certified by the
District Court, with footnotes omitted, are as follows:
"1. What standards, if any, does the statute establish for a parent to
apply when considering whether or not to grant consent? "a) Is the parent
to consider 'exclusively . . . what will serve the child's best interest'?
"b) If the parent is not limited to considering exclusively the minor's
best interests, can the parent take into consideration the 'long-term
consequences to the family and her parents' marriage relationship'? "c)
Other? "2. What standard or standards is the superior court to apply? "a)
Is the superior court to disregard all parental objections that are not
based exclusively on what would serve the minor's best interest? "b) If
the superior court finds that the minor is capable, and has, in fact, made
and adhered to, an informed and reasonable decision to have an abortion,
may the court refuse its consent based on a finding that a parent's, or
its own, contrary decision is a better one? "c) Other? "3. Does the
Massachusetts law permit a minor (a) 'capable of giving informed consent,'
or (b) 'incapable of giving informed consent,' 'to obtain [a court] order
without parental consultation'? "4. If the court answers any of question 3
in the affirmative, may the superior court, for good cause shown, enter an
order authorizing an abortion, (a), without prior notification to the
parents, and (b), without subsequent notification? "5. Will the Supreme
Judicial Court prescribe a set of procedures to implement c. 112, [ 12S]
which will expedite the application, hearing, and decision phases of the
superior court proceeding provided thereunder? Appeal? "6. To what degree
do the standards and procedures set forth in c. 112, 12F (Stat. 1975, c.
564), authorizing minors to give consent to medical and dental care in
specified circumstances, parallel the grounds and procedures for showing
good cause under c. 112, [ 12S]? "7. May a minor, upon a showing of
indigency, have court-appointed counsel? "8. Is it a defense to his
criminal prosecution if a physician performs an abortion solely with the
minor's own, valid, consent, that he reasonably, and in good faith, though
erroneously, believed that she was eighteen or more years old or had been
married? "9. Will the Court make any other comments about the statute
which, in its opinion, might assist us in determining whether it infringes
the United States Constitution?"
|
| [98] |
*fn10 Section 12S itself dispenses with the
need for the consent of any parent who "has died or has deserted his or
her family."
|
| [99] |
*fn11 The dissenting judge agreed that the
State could not permit a judge to override the decision of a minor found
to be mature and capable of giving informed consent to an abortion. He
disagreed with the remainder of the court's conclusions: the
best-interests limitation on the withholding of parental consent in the
Supreme Judicial Court's opinion, he argued, must be treated as if part of
the statutory language itself; and he read the evidentiary record as
proving that only rarely would a pregnant minor's interests be disserved
by consulting with her parents about a desired abortion. He also noted the
value to a judge in a 12S proceeding of having the parents before him as a
source of evidence as to the minor's maturity and what course would serve
her best interests. See Baird III, 450 F.Supp., at 1006-1020.
|
| [100] |
*fn12 Similarly, the Court said in Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976):
"Constitutional rights do not mature and come into being magically only
when one attains the state-defined age of majority. Minors, as well as
adults, are protected by the Constitution and possess constitutional
rights."
|
| [101] |
*fn13 As MR. JUSTICE STEWART wrote of the
exercise by minors of the First Amendment rights that "[secure] . . . the
liberty of each man to decide for himself what he will read and to what he
will listen," Ginsberg v. New York, 390 U.S. 629, 649
(1968) (concurring in result):
"[At] least in some precisely delineated areas, a child -- like someone
in a captive audience -- is not possessed of that full capacity for
individual choice which is the presupposition of First Amendment
guarantees. It is only upon such a premise, I should suppose, that a State
may deprive children of other rights -- the right to marry, for example,
or the right to vote -- deprivations that would be constitutionally
intolerable for adults." Id., at 649-650 (footnotes
omitted).
|
| [102] |
*fn14 In Prince an adult had permitted a child
in her custody to sell religious literature on a public street in
violation of a state child-labor statute. The child had been permitted to
engage in this activity upon her own sincere request. 321 U.S.,
at 162. In upholding the adult's conviction under the statute,
we found that "the interests of society to protect the welfare of
children" and to give them "opportunities for growth into free and
independent well-developed men and citizens," id., at 165, permitted the
State to enforce its statute, which "[concededly] . . . would be invalid,"
id., at 167, if made applicable to adults.
|
| [103] |
*fn15 Although the State has considerable
latitude in enacting laws affecting minors on the basis of their lesser
capacity for mature, affirmative choice, Tinker v. Des Moines School
Dist., 393 U.S. 503 (1969), illustrates that it may
not arbitrarily deprive them of their freedom of action altogether. The
Court held in Tinker that a schoolchild's First Amendment freedom of
expression entitled him, contrary to school policy, to attend school
wearing a black armband as a silent protest against American involvement
in the hostilities in Vietnam. The Court acknowledged that the State was
permitted to prohibit conduct otherwise shielded by the Constitution that
"for any reason -- whether it stems from time, place, or type of behavior
-- materially disrupts classwork or involves substantial disorder or
invasion of the rights of others." Id., at 513. It upheld the First
Amendment right of the schoolchildren in that case, however, not only
because it found no evidence in the record that their wearing of black
armbands threatened any substantial interference with the proper
objectives of the school district, but also because it appeared that the
challenged policy was intended primarily to stifle any debate whatsoever
-- even nondisruptive discussions -- on important political and moral
issues. See id., at 510.
|
| [104] |
*fn16 See, e. g., Mass. Gen. Laws Ann., ch.
207, 7, 24, 25, 33, 33A (West 1958 and Supp. 1979) (parental consent
required for marriage of person under 18); Mass. Gen. Laws Ann., ch. 119,
55A (West Supp. 1979) (waiver of counsel by minor in juvenile delinquency
proceedings must be made through parent or guardian).
|
| [105] |
*fn17 See Hafen, Children's Liberation and the
New Egalitarianism: Some Reservations About Abandoning Children to Their
"Rights," 1976 B. Y. U. L. Rev. 605.
|
| [106] |
*fn18 The Court's opinions discussed in the
text above -- Pierce, Yoder, Prince, and Ginsberg -- all have contributed
to a line of decisions suggesting the existence of a constitutional
parental right against undue, adverse interference by the State. See also
Smith v. Organization of Foster Families, 431 U.S. 816, 842-844 (1977); Carey v. Population Services
International, 431 U.S. 678, 708 (1977) (opinion of
POWELL, J.); Moore v. East Cleveland, 431 U.S. 494
(1977) (plurality opinion); Stanley v. Illinois, 405 U.S. 645, 651 (1972); Meyer v. Nebraska, 262 U.S. 390, 399 (1923). Cf. Parham v. J. R., 442 U.S. 584 (1979); id., at 621 (STEWART, J., concurring in
result).
|
| [107] |
*fn19 In Planned Parenthood of Central Missouri
v. Danforth, 428 U.S., at 75, "[we] [emphasized] that
our holding . . . [did] not suggest that every minor, regardless of age or
maturity, may give effective consent for termination of her
pregnancy."
|
| [108] |
*fn20 The expert testimony at the hearings in
the District Court uniformly was to the effect that parental involvement
in a minor's abortion decision, if compassionate and supportive, was
highly desirable. The findings of the court reflect this consensus. See
Baird I, 393 F.Supp., at 853.
|
| [109] |
*fn21 MR. JUSTICE STEWART's concurring opinion
in Danforth underscored the need for parental involvement in minors'
abortion decisions by describing the procedures followed at the clinic
operated by the Parents Aid Society and Dr. Gerald Zupnick:
"The counseling . . . occurs entirely on the day the abortion is to be
performed . . . . It lasts for two hours and takes place in groups that
include both minors and adults who are strangers to one another . . . .
The physician takes no part in this counseling process . . . . Counseling
is typically limited to a description of abortion procedures, possible
complications, and birth control techniques . . . . "The abortion itself
takes five to seven minutes . . . . The physician has no prior contact
with the minor, and on the days that abortions are being performed at the
[clinic], the physician . . . may be performing abortions on many other
adults and minors . . . . On busy days patients are scheduled in separate
groups, consisting usually of five patients . . . . After the abortion
[the physician] spends a brief period with the minor and others in the
group in the recovery room . . . ." 428 U.S., at 91-92, n. 2, quoting Brief for Appellants in Bellotti I, O. T.
1975, No. 75-73, pp. 43-44. In Roe v. Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), we emphasized the importance of the role of the
attending physician. Those cases involved adult women presumably capable
of selecting and obtaining a competent physician. In this case, however,
we are concerned only with minors who, according to the record, may range
in age from children of 12 years to 17-year-old teenagers. Even the latter
are less likely than adults to know or be able to recognize ethical,
qualified physicians, or to have the means to engage such professionals.
Many minors who bypass their parents probably will resort to an abortion
clinic, without being able to distinguish the competent and ethical from
those that are incompetent or unethical.
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| [110] |
*fn22 As 12S provides for involvement of the
state superior court in minors' abortion decisions, we discuss the
alternative procedure described in the text in terms of judicial
proceedings. We do not suggest, however, that a State choosing to require
parental consent could not delegate the alternative procedure to a
juvenile court or an administrative agency or officer. Indeed, much can be
said for employing procedures and a forum less formal than those
associated with a court of general jurisdiction.
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| [111] |
*fn23 The nature of both the State's interest
in fostering parental authority and the problem of determining "maturity"
makes clear why the State generally may resort to objective, though
inevitably arbitrary, criteria such as age limits, marital status, or
membership in the Armed Forces for lifting some or all of the legal
disabilities of minority. Not only is it difficult to define, let alone
determine, maturity, but also the fact that a minor may be very much an
adult in some respects does not mean that his or her need and opportunity
for growth under parental guidance and discipline have ended. As discussed
in the text, however, the peculiar nature of the abortion decision
requires the opportunity for case-by-case evaluations of the maturity of
pregnant minors.
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| [112] |
*fn24 The Supreme Judicial Court held that 12S
imposed this standard on the superior court in large part because it
construed the statute as containing the same restriction on parents. See
supra, at 630. The court concluded that the judge should not be entitled
"to exercise his authority on a standard broader than that to which a
parent must adhere." Attorney General, 371 Mass., at 748, 360 N. E. 2d, at
293.
Intervenors argue that, assuming state-supported parental involvement
in the minor's abortion decision is permissible, the State may not endorse
the withholding of parental consent for any reason not believed to be in
the minor's best interests. They agree with the District Court that, even
though 12S was construed by the highest state court to impose this
restriction, the statute is flawed because the restriction is not apparent
on its face. Intervenors thus concur in the District Court's assumption
that the statute will encourage parents to withhold consent for
impermissible reasons. See Baird III, 450 F.Supp., at 1004-1005; Baird II, 428 F.Supp. 854, 855-856 (Mass. 1977).
There is no basis for this assertion. As a general rule, the
interpretation of a state statute by the State's highest court "is as
though written into the ordinance itself," Poulos v. New Hampshire, 345 U.S. 395, 402 (1953), and we are obliged to view
the restriction on the parental-consent requirement "as if [ 12S] had been
so amended by the [Massachusetts] legislature." Winters v. New York, 333 U.S. 507, 514 (1948).
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| [113] |
*fn25 Intervenors take issue with the Supreme
Judicial Court's assurances that judicial proceedings will provide the
necessary confidentiality, lack of procedural burden, and speed of
resolution. In the absence of any evidence as to the operation of judicial
proceedings under 12S -- and there is none, since appellees successfully
sought to enjoin Massachusetts from putting it into effect -- we must
assume that the Supreme Judicial Court's judgment is
correct.
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| [114] |
*fn26 The statute also provides that "[if] both
parents have died or have deserted their family, consent of the mother's
guardian or other person having duties similar to a guardian, or any
person who had assumed the care and custody of the mother is
sufficient."
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| [115] |
*fn27 This reading of the statute requires
parental consultation and consent more strictly than appellants themselves
previously believed was necessary. In their first argument before this
Court, and again before the Supreme Judicial Court, appellants argued that
12S was not intended to abrogate Massachusetts' common-law "mature minor"
rule as it applies to abortions. See 428 U.S., at 144. They also suggested that, under some circumstances, 12S
might permit even immature minors to obtain judicial approval for an
abortion without any parental consultation. See 428 U.S., at
145; Attorney General, supra, at 751, 360 N. E. 2d, at 294. The
Supreme Judicial Court sketched the outlines of the mature minor rule that
would apply in the absence of 12S: "The mature minor rule calls for an
analysis of the nature of the operation, its likely benefit, and the
capacity of the particular minor to understand fully what the medical
procedure involves. . . . Judicial intervention is not required. If
judicial approval is obtained, however, the doctor is protected from a
subsequent claim that the circumstances did not warrant his reliance on
the mature minor rule, and, of course, the minor patient is afforded
advance protection against a misapplication of the rule." Id., at 752, 360
N. E. 2d, at 295. "We conclude that, apart from statutory limitations
which are constitutional, where the best interests of a minor will be
served by not notifying his or her parents of intended medical treatment
and where the minor is capable of giving informed consent to that
treatment, the mature minor rule applies in this Commonwealth." Id., at
754, 360 N. E. 2d, at 296. The Supreme Judicial Court held that the
commonlaw mature minor rule was inapplicable to abortions because it had
been legislatively superseded by 12S.
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| [116] |
*fn28 Of course, if the minor consults with her
parents voluntarily and they withhold consent, she is free to seek
judicial authorization for the abortion immediately.
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| [117] |
*fn29 There will be cases where the pregnant
minor has received approval of the abortion decision by one parent. In
that event, the parent can support the daughter's request for a prompt
judicial determination, and the parent's support should be given great, if
not dispositive, weight.
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| [118] |
*fn30 Appellees and intervenors have argued
that 12S violates the Equal Protection Clause of the Fourteenth Amendment.
As we have concluded that the statute is constitutionally infirm for other
reasons, there is no need to consider this question.
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| [119] |
*fn31 Section 12S evidently applies to all
non-emergency abortions performed on minors, without regard to the period
in pregnancy during which the procedure occurs. As the court below
recognized, most abortions are performed during the early stages of
pregnancy, before the end of the first trimester. See Baird III, 450 F.Supp., at 1001; Baird I, 393 F.Supp.,
at 853. This coincides approximately with the pre-viability
period during which a pregnant woman's right to decide, in consultation
with her physician, to have an abortion is most immune to state
intervention. See Roe v. Wade, 410 U.S., at 164-165.
The propriety of parental involvement in a minor's abortion decision
does not diminish as the pregnancy progresses and legitimate concerns for
the pregnant minor's health increase. Furthermore, the opportunity for
direct access to court which we have described is adequate to safeguard
throughout pregnancy the constitutionally protected interests of a minor
in the abortion decision. Thus, although a significant number of abortions
within the scope of 12S might be performed during the later stages of
pregnancy, we do not believe a different analysis of the statute is
required for them.
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| [120] |
*fn32 The opinion of MR. JUSTICE STEVENS,
concurring in the judgment, joined by three Members of the Court,
characterizes this opinion as "advisory" and the questions it addresses as
"hypothetical." Apparently, this is criticism of our attempt 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 decisions 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
12S without stating our views as to the controlling principles.
The statute before us today is the same one that was here in Bellotti
I. The issues it presents were not then deemed "hypothetical." In a
unanimous opinion, we remanded the case with directions that appropriate
questions be certified to the Supreme Judicial Court of Massachusetts
"concerning the meaning of [ 12S] and the procedure it imposes." 428 U.S., at 151. We directed that this be done
because, as stated in the opinion, we thought the construction of 12S
urged by appellants would "avoid or substantially modify the federal
constitutional challenge to the statute." Id., at 148. The central feature
of 12S was its provision that a state-court judge could make the ultimate
decision, when necessary, as to the exercise by a minor of the right to an
abortion. See id., at 145. We held that this "would be fundamentally
different from a statute that creates a 'parental veto' [of the kind
rejected in Danforth.]" Ibid. (footnote omitted). Thus, all Members of the
Court agreed that providing for decisionmaking authority in a judge was
not the kind of veto power held invalid in Danforth. The basic issues that
were before us in Bellotti I remain in the case, sharpened by the
construction of 12S by the Supreme Judicial Court.
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Concurrence Footnotes
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| [121] |
*fn1 By affording such a veto, the
Massachusetts statute does far more than simply provide for notice to the
parents. See post, at 657 (WHITE, J., dissenting). Neither Danforth nor
this case determines the constitutionality of a statute which does no more
than require notice to the parents, without affording them or any other
third party an absolute veto.
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| [122] |
*fn2 See ante, at 643 n. 22.
|
| [123] |
*fn3 A minor may secure the assistance of
counsel in filing and prosecuting her suit, but that is not guaranteed.
The Massachusetts Supreme Judicial Court in response to the question
whether a minor, upon a showing of indigency, may have court-appointed
counsel, "[construed] the statutes of the Commonwealth to authorize the
appointment of counsel or a guardian ad litem for an indigent minor at
public expense, if necessary, if the judge, in his discretion, concludes
that the best interests of the minor would be served by such an
appointment." Baird v. Attorney General, 371 Mass. 741, 764, 360 N. E. 2d
288, 301 (1977) (emphasis added).
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| [124] |
*fn4 Until and unless Massachusetts or another
State enacts a less restrictive statutory scheme, this Court has no
occasion to render an advisory opinion on the constitutionality of such a
scheme. A real statute -- rather than a mere outline of a possible statute
-- and a real case or controversy may well present questions that appear
quite different from the hypothetical questions MR. JUSTICE POWELL has
elected to address. Indeed, there is a certain irony in his suggestion
that a statute that is intended to vindicate "the special interest of the
State in encouraging an unmarried pregnant minor to seek the advice of her
parents in making the important decision whether or not to bear a child,"
see ante, at 639, need not require notice to the parents of the minor's
intended decision. That irony makes me wonder whether any legislature
concerned with parental consultation would, in the absence of today's
advisory opinion, have enacted a statute comparable to the one my Brethren
have discussed.
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