Subject:  OHIO v. AKRON CENTER FOR REPRODUCTIVE HEALTH, Syllabus



 
    NOTE: Where it is feasible, a syllabus (headnote) will be released, as
is being done in connection with this case, at the time the opinion is
issued.  The syllabus constitutes no part of the opinion of the Court but
has been prepared by the Reporter of Decisions for the convenience of the
reader.  See United States v. Detroit Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES


Syllabus


OHIO v. AKRON CENTER FOR REPRODUCTIVE
HEALTH et al.


appeal from the united states court of appeals for the sixth circuit

No. 88-805.  Argued November 29, 1989--Decided June 25, 1990

As enacted, Ohio's Amended Substitute House Bill 319 (H. B. 319) makes it a
crime for a physician or other person to perform an abortion on an
unmarried, unemancipated, minor woman, unless, inter alia, the physician
provides timely notice to one of the minor's parents or a juvenile court
issues an order authorizing the minor to consent.  To obtain a judicial
bypass of the notice requirement, the minor must present clear and
convincing proof that she has sufficient maturity and information to make
the abortion decision herself, that one of her parents has engaged in a
pattern of physical, emotional, or sexual abuse against her, or that notice
is not in her best interests.  Among other things, H. B. 319 also allows
the physician to give constructive notice if actual notice to the parent
proves impossible "after a reasonable effort"; requires the minor to file a
bypass complaint in the juvenile court on prescribed forms; requires that
court to appoint a guardian ad litem and an attorney for the minor if she
has not retained counsel; mandates expedited bypass hearings and decisions
in that court and expedited review by a court of appeals; provides
constructive authorization for the minor to consent to the abortion if
either court fails to act in a timely fashion; and specifies that both
courts must maintain the minor's anonymity and the confidentiality of all
papers.  Shortly before H. B. 319's effective date, appellees--an abortion
facility, one of its doctors, and an unmarried, unemancipated, minor woman
seeking an abortion there--and others filed a facial challenge to the
statute's constitutionality in the Federal District Court, which ultimately
issued an injunction preventing H. B. 319's enforcement.  The Court of
Appeals affirmed, concluding that various of the statute's provisions were
constitutionally defective.
Held: The judgment is reversed.
854 F. 2d 852, reversed.
    Justice Kennedy delivered the opinion of the Court with respect to
Parts I, II, III, and IV, concluding that, on its face, H. B. 319 does not
impose an undue, or otherwise unconstitutional, burden on a minor seeking
an abortion.  Pp. 4-14.
    1. House Bill 319 accords with this Court's cases addressing the
constitutionality of parental notice or consent statutes in the abortion
context.  Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52;
Bellotti v. Baird, 443 U. S. 622; H. L. v. Matheson, 450 U. S. 398; Planned
Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476;
Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416.  Pp.
4-11.
    (a) Whether or not the Fourteenth Amendment requires parental notice
statutes, as opposed to parental consent statutes, to contain judicial
bypass procedures, H. B. 319's bypass procedure is sufficient because it
meets the requirements identified in Danforth, Bellotti, Ashcroft, and
Akron for the more intrusive consent statutes, particularly the four
criteria set forth by the plurality in Bellotti, supra, at 643-644.  First,
the statute satisfies the requirement that the minor be allowed to show the
maturity to make her abortion decision without regard to her parents'
wishes.  Second, by requiring the juvenile court to authorize her consent
upon determining that the abortion is in her best interests and in cases
where she has shown a pattern of abuse, H. B. 319 satisfies the requirement
that she be allowed to show that, even if she cannot make the decision by
herself, the abortion would be in her best interests.  Third, the
requirement that a bypass procedure ensure the minor's anonymity is
satisfied, since H. B. 319 prohibits the juvenile court from notifying the
parents that the complainant is pregnant and wants an abortion and requires
both state courts to preserve her anonymity and the confidentiality of
court papers, and since state law makes it a crime for any state employee
to disclose documents not designated as public records.  Neither the mere
possibility of unauthorized, illegal disclosure by state employees nor the
fact that the H. B. 319 complaint forms require the minor to provide
identifying information for administrative purposes is dispositive.
Complete anonymity is not critical under this Court's decisions, and H. B.
319 takes reasonable steps to prevent the public from learning of the
minor's identity.  Fourth, H. B. 319's time limits on judicial action
satisfy the requirement that a bypass procedure be conducted with
expedition.  Even if, as appellees contend, the bypass procedure could take
up to 22 calendar days, including weekends and legal holidays, that
possibility does not suffice to invalidate the statute on its face.  See,
e. g., Ashcroft, supra, at 477, n. 4, 491, n. 16.  Pp. 5-9.
    (b) The Bellotti criteria need not be extended by imposing appellees'
suggested additional requirements on bypass procedures.  First, H. B. 319
is not rendered unconstitutional by the fact that its constructive
authorization provisions do not require an affirmative order authorizing
the physician to act in the event that either state court fails to act
within the prescribed time limits.  Absent a showing that those limits will
be ignored, the State may expect that its judges will follow mandated
procedural requirements.  Moreover, Ashcroft, supra, at 479-480, n. 4, does
not require constructive authorization provisions, which were added by Ohio
out of an abundance of caution and concern for the minor's interests.
Second, a bypass procedure such as Ohio's does not violate due process by
placing the burden of proof on the issues of maturity or best interests on
the minor or by requiring a heightened, clear and convincing evidence
standard of proof.  The plurality in Bellotti, supra, at 634, indicated
that a State may require the minor to bear the burden of proof on these
issues.  Moreover, a State may require a heightened standard of proof when,
as here, the bypass procedure contemplates an ex parte proceeding at which
no one opposes the minor's testimony and she is assisted by an attorney and
a guardian ad litem.  Third, H. B. 319's statutory scheme and the bypass
complaint forms do not deny an unwary and unrepresented minor the
opportunity to prove her case by requiring her to chose among three forms,
the first of which relates only to maturity, the second to best interests,
and the third to both.  Even assuming some initial confusion, it is
unlikely that the Ohio courts will treat a minor's choice of forms without
due care and understanding for her unrepresented status.  Moreover, she
does not make a binding election by her initial form choice, since H. B.
319 provides her with appointed counsel after filing the complaint and
allows her to move to amend the pleadings.  Pp. 9-11.
    2. Even assuming that H. B. 319 gives a minor a substantive, state- law
liberty or property right "to avoid unnecessary or hostile parental
involvement" upon proof of maturity or best interests, the statute does not
deprive her of this right without due process, since its confidentiality
provisions, expedited procedures, pleading form requirements, clear and
convincing evidence standard, and constructive authorization provisions are
valid on their face.  Pp. 12-13.
    3. House Bill 319 is not facially invalid simply because it requires
parental notice to be given by the physician rather than by some other
qualified person.  Since the physician has a superior ability to garner and
use important medical and psychological data supplied by a parent upon
receiving notice, a State may require the physician himself to take
reasonable steps to notify the parent.  See Matheson, supra, at 400, 411.
In addition, the conversation with an experienced and detached physician
may assist the parent in approaching the problem in a mature and balanced
way and thereby enable him to provide better advice to the minor than would
a conversation with a less experienced person.  Any imposition on the
physician's schedule is diminished by provisions allowing him to give
notice by mail if he cannot reach the parent "after a reasonable effort"
and to forgo notice in the event of certain emergencies, which provisions
constitute an adequate recognition of his professional status.  Akron,
supra, at 446-449, distinguished.  Pp. 13-14.
    Justice Kennedy, joined by The Chief Justice, Justice White, and
Justice Scalia, concluded in Part V that H. B. 319 constitutes a rational
way to further legitimate ends.  A free and enlightened society may decide
that each of its members should attain a clearer, more tolerant
understanding of the profound philosophic choices confronting a woman
considering an abortion, which decision will affect her own destiny and
dignity and the origins of the other human life within the embryo.  It is
both rational and fair for the State to conclude that, in most instances,
the beginnings of that understanding will be within the family, which will
strive to give a lonely or even terrified minor advice that is both
compassionate and mature.  Pp. 14-15.
    Justice Stevens, agreeing that H. B. 319 is not unconstitutional on its
face, concluded that, in some of its applications, the one-parent notice
requirement will not reasonably further the State's legitimate interest in
protecting the welfare of its minor citizens.  The question whether the
judicial bypass is so obviously inadequate for such exceptional situations
that the entire statute should be invalidated must await the statute's
implementation and the evaluation of the significance of its restrictions
in light of its administration.  The State must provide an adequate
mechanism for avoiding parental notification for cases in which the minor
is mature or notice would not be in her best interests.  See Akron v. Akron
Center for Reproductive Health, 462 U. S. 416, 441, n. 31.  Pp. 1-3.

Kennedy, J., announced the judgment of the Court, and delivered the opinion
of the Court with respect to Parts I, II, III, and IV, in which Rehnquist,
C. J., and White, Stevens, O'Connor, and Scalia, JJ., joined, and an
opinion with respect to Part V, in which Rehnquist, C. J., and White and
Scalia, JJ., joined.  Scalia, J., filed a concurring opinion.  Stevens, J.,
filed an opinion concurring in part and concurring in the judgment.
Blackmun, J., filed a dissenting opinion, in which Brennan and Marshall,
JJ., joined.

------------------------------------------------------------------------------




Subject: 88-805--OPINION, OHIO v. AKRON CENTER FOR REPRODUCTIVE HEALTH

NOTICE: This opinion is subject to formal revision before publication in
the preliminary print of the United States Reports.  Readers are requested
to notify the Reporter of Decisions, Supreme Court of the United States,
Washington, D. C. 20543, of any typographical or other formal errors, in
order that corrections may be made before the preliminary print goes to
press.
SUPREME COURT OF THE UNITED STATES


No. 88-805



OHIO, APPELLANT v. AKRON CENTER FOR
REPRODUCTIVE HEALTH et al.


on appeal from the united states court of appeals for the sixth circuit

[June 25, 1990]



    Justice Kennedy announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, III, and IV, and an
opinion with respect to Part V, in which The Chief Justice, and Justice
White, and Justice Scalia join.
    The Court of Appeals held invalid an Ohio statute that, with certain
exceptions, prohibits any person from performing an abortion on an
unmarried, unemancipated, minor woman absent notice to one of the woman's
parents or a court order of approval.  We reverse, for we determine that
the statute accords with our precedents on parental notice and consent in
the abortion context and does not violate the Fourteenth Amendment.

I


A
    The Ohio Legislature, in November 1985, enacted Amended Substitute
House Bill 319 (H. B. 319), which amended Ohio Rev. Code Ann. MDRV 2919.12
(1987), and created 15 2151.85 and 2505.073 (Supp. 1988).  Section
2919.12(B), the cornerstone of this legislation, makes it a criminal
offense, except in four specified circumstances, for a physician or other
person to perform an abortion on an unmarried and unemancipated woman under
eighteen years of age.  See MDRV 2919.12(D) (making the first offense a
misdemeanor and subsequent offenses felonies); MDRV 2919.12(E) (imposing
civil liability).
    The first and second circumstances in which a physician may perform an
abortion relate to parental notice and consent.  First, a physician may
perform an abortion if he provides "at least twenty-four hours actual
notice, in person or by telephone," to one of the women's parents (or her
guardian or custodian) of his intention to perform the abortion.  MDRV
2919.12(B)(1)(a)(i).  The physician, as an alternative, may notify a
minor's adult brother, sister, stepparent, or grandparent, if the minor and
the other relative each file an affidavit in the juvenile court stating
that the minor fears physical, sexual, or severe emotional abuse from one
of her parents.  See 15 2919.12(B)(1)(a)(i), 2919.12(B)(1)(b),
2919.12(B)(1)(c).  If the physician cannot give the notice "after a
reasonable effort," he may perform the abortion after "at least forty-eight
hours constructive notice" by both ordinary and certified mail.  MDRV
2919.12(B)(2).  Second, a physician may perform an abortion on the minor if
one of her parents (or her guardian or custodian) has consented to the
abortion in writing.  See MDRV 2919.12(B)(1)(a)(ii).
    The third and fourth circumstances depend on a judicial procedure that
allows a minor to bypass the notice and consent provisions just described.
The statute allows a phy sician to perform an abortion without notifying
one of the minor's parents or receiving the parent's consent if a juve-
nile court issues an order authorizing the minor to consent, MDRV
2919.12(B)(1)(a)(iii), or if a juvenile court or court of appeals, by its
inaction, provides constructive authorization for the minor to consent,
MDRV 2919.12(B)(1)(a)(iv).
    The bypass procedure requires the minor to file a complaint in the
juvenile court, stating (1) that she is pregnant; (2) that she is
unmarried, under 18 years of age, and unemancipated; (3) that she desires
to have an abortion without notifying one of her parents; (4) that she has
sufficient maturity and information to make an intelligent decision whether
to have an abortion without such notice, or that one of her parents has
engaged in a pattern of physical, sexual, or emotional abuse against her,
or that notice is not in her best interests; and (5) that she has or has
not retained an attorney.  15 2151.85(A)(1)-(5).  The Ohio Supreme Court,
as discussed below, has prescribed pleading forms for the minor to use.
See App. 6-14.
    The juvenile court must hold a hearing at the earliest possible time,
but not later than the fifth business day after the minor files the
complaint.  MDRV 2151.85(B)(1).  The court must render its decision
immediately after the conclusion of the hearing.  Ibid.  Failure to hold
the hearing within this time results in constructive authorization for the
minor to consent to the abortion.  Ibid.  At the hearing the court must
appoint a guardian ad litem and an attorney to represent the minor if she
has not retained her own counsel.  MDRV 2151.85(B) (2).  The minor must
prove her allegation of maturity, pattern of abuse, or best interests by
clear and convincing evidence, MDRV 2151.85(C), and the juvenile court must
conduct the hearing to preserve the anonymity of the complainant, keeping
all papers confidential.  15 2151.85(D), (F).
    The minor has the right to expedited review.  The statute provides
that, within four days days after the minor files a notice of appeal, the
clerk of the juvenile court shall deliver the notice of appeal and record
to the state court of appeals.  MDRV 2505.073(A).  The clerk of the court
of appeals dockets the appeal upon receipt of these items.  Ibid.  The
minor must file her brief within four days after the docketing.  Ibid.  If
she desires an oral argument, the court of appeals must hold one within
five days after the docketing and must issue a decision immediately after
oral argument.  Ibid.  If she waives the right to an oral argument, the
court of appeals must issue a decision within five days after the
docketing.  Ibid.  If the court of appeals does not comply with these time
limits, a constructive order results authorizing the minor to consent to
the abortion.  Ibid.

B
    Appellees in this action include the Akron Center for Reproductive
Health, a facility that provides abortions; Max Pierre Gaujean, M. D., a
physician who performs abortions at the Akron Center; and Rachael Roe, an
unmarried, unemancipated minor woman, who sought an abortion at the
facility.  In March 1986, days before the effective date of H. B. 319,
appellees and others brought a facial challenge to the constitutionality of
the statute in the United State District Court for the Northern District of
Ohio.  The District Court, after various proceedings, issued a preliminary
injunction and later a permanent injunction preventing the State of Ohio
from enforcing the statute.
    The Court of Appeals for the Sixth Circuit affirmed, concluding that H.
B. 319 had six constitutional defects.  These points, discussed below,
related to the sufficiency of the expedited procedures, the guarantee of
anonymity, the constructive authorization provisions, the clear and
convincing evidence standard, the pleading requirements, and the
physician's personal obligation to give notice to one of the minor's
parents.  The State of Ohio, on appeal under 28 U. S. C. MDRV 1254(2) (1982
ed.), challenges the Court of Appeals' decision in its entirety.  Appellees
seek affirmance on the grounds adopted by the Court of Appeals and on other
grounds as well.

II
    We have decided five cases addressing the constitutionality of parental
notice or parental consent statutes in the abortion context.  See Planned
Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976); Bellotti
v. Baird, 443 U. S. 622 (1979); H. L. v. Matheson, 450 U. S. 398 (1981);
Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S.
476 (1983); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S.
416 (1983).  We do not need to determine whether a statute that does not
accord with these cases would violate the Constitution, for we conclude
that H. B. 319 is consistent with them.

A
    This dispute turns, to a large extent, on the adequacy of H. B. 319's
judicial bypass procedure.  In analyzing this aspect of the dispute, we
note that, although our cases have required bypass procedures for parental
consent statutes, we have not decided whether parental notice statutes must
contain such procedures.  See Matheson, supra, at 413, and n. 25 (upholding
a notice statute without a bypass procedure as applied to immature,
dependent minors).  We leave the question open, because, whether or not the
Fourteenth Amendment requires notice statutes to contain bypass procedures,
H. B. 319's bypass procedure meets the requirements identified for parental
consent statutes in Danforth, Bellotti, Ashcroft, and Akron. Danforth
established that, in order to prevent another person from having an
absolute veto power over a minor's decision to have an abortion, a State
must provide some sort of bypass procedure if it elects to require parental
consent.  See 428 U. S., at 74.  As we hold today in Hodgson v. Minnesota,
ante, it is a corollary to the greater intrusiveness of consent statutes
that a bypass procedure that will suffice for a consent statute will
suffice also for a notice statute.  See also Matheson, supra, at 411, n. 17
(notice statutes are not equivalent to consent statutes because they do not
give anyone a veto power of over a minor's abortion decision).
    The plurality opinion in Bellotti stated four criteria that a bypass
procedure in a consent statute must satisfy.  Appellees contend that the
bypass procedure does not satisfy these criteria.  We disagree.  First, the
Bellotti plurality indicated that the procedure must allow the minor to
show that she possesses the maturity and information to make her abortion
decision, in consultation with her physician, without regard to her
parents' wishes.  See 443 U. S., at 643.  The Court reaffirmed this
requirement in Akron by holding that a State cannot presume the immaturity
of girls under the age of 15.  462 U. S., at 440.  In the case now before
us, we have no difficulty concluding that H. B. 319 allows a minor to show
maturity in conformity with the plurality opinion in Bellotti.  The statute
permits the minor to show that she "is sufficiently mature and well enough
informed to decide in telligently whether to have an abortion."  Ohio. Rev.
Code Ann. MDRV 2151.85(C)(1) (Supp. 1988).
    Second, the Bellotti plurality indicated that the procedure must allow
the minor to show that, even if she cannot make the abortion decision by
herself, "the desired abortion would be in her best interests."  443 U. S.,
at 644.  We believe that H. B. 319 satisfies the Bellotti language as
quoted.  The statute requires the juvenile court to authorize the minor's
consent where the court determines that the abortion is in the minor's best
interest and in cases where the minor has shown a pattern of physical,
sexual, or emotional abuse.  See Ohio Rev. Code Ann. MDRV 2151.85(C)(2)
(Supp. 1988).
    Third, the Bellotti plurality indicated that the procedure must insure
the minor's anonymity.  See 443 U. S., at 644.  H. B. 319 satisfies this
standard.  Section 2151.85(D) provides that "[t]he [juvenile] court shall
not notify the parents, guardian, or custodian of the complainant that she
is pregnant or that she wants to have an abortion."  Section 2151.85(F)
further states:

    "Each hearing under this section shall be conducted in a manner that
will preserve the anonymity of the complainant.  The complaint and all
other papers and records that pertain to an action commenced under this
section shall be kept confidential and are not public records."


Section 2505.073(B), in a similar fashion, requires the court of appeals to
preserve the minor's anonymity and confidentiality of all papers on appeal.
The State, in addition, makes it a criminal offense for an employee to
disclose documents not designated as public records.  See Ohio Rev. Code
Ann. 15 102.03(B), 102.99(B) (Supp. 1988).
    Appellees argue that the complaint forms prescribed by the Ohio Supreme
Court will require the minor to disclose her identity.  Unless the minor
has counsel, she must sign a complaint form to initiate the bypass
procedure and, even if she has counsel, she must supply the name of one of
her parents at four different places.  See App. 6-14 (pleading forms).
Appellees would prefer protections similar to those included in the
statutes that we reviewed in Bellotti and Ashcroft.  The statute in
Bellotti protected anonymity by permitting use of a pseudonym, see Planned
Parenthood League of Massachusetts v. Bellotti, 641 F. 2d 1006, 1025 (CA1
1981), and the statute in Ashcroft allowed the minor to sign the petition
with her initials, see 462 U. S., at 491, n. 16.  Appellees also maintain
that the Ohio laws requiring court employees not to disclose public
documents are irrelevant because the right to anonymity is broader than the
right not to have officials reveal one's identity to the public at large.
    Confidentiality differs from anonymity, but we do not believe that the
distinction has constitutional significance in the present context.  The
distinction has not played a part in our previous decisions, and, even if
the Bellotti plurality is taken as setting the standard, we do not find
complete anonymity critical.  H. B. 319, like the statutes in Bellotti and
Ashcroft, takes reasonable steps to prevent the public from learning of the
minor's identity.  We refuse to base a decision on the facial validity of a
statute on the mere possibility of unauthorized, illegal disclosure by
state employees.  H. B. 319, like many sophisticated judicial procedures,
requires participants to provide identifying information for administrative
purposes, not for public disclosure.
    Fourth, the Bellotti plurality indicated that courts must conduct a
bypass procedure with expedition to allow the minor an effective
opportunity to obtain the abortion.  See 443 U. S., at 644.  H. B. 319, as
noted above, requires the trial court to make its decision within five
"business day[s]" after the minor files her complaint, MDRV 2151.85(B)(1);
requires the court of appeals to docket an appeal within four "days" after
the minor files a notice of appeal, MDRV 2505.073(A); and requires the
court of appeals to render a decision within five "days" after docketing
the appeal, ibid.
    The District Court and the Court of Appeals assumed that all of the
references to days in MDRV 2151.85(B)(1) and MDRV 2505.073(A) meant
business days as opposed to calendar days.  Cf. Ohio Rule App. Proc. 14(A)
(excluding nonbusiness days from computations of less than seven days).
They calculated, as a result, that the procedure could take up to 22
calendar days because the minor could file at a time during the year in
which the 14 business days needed for the bypass procedure would encompass
three Saturdays, three Sundays, and two legal holidays.  Appellees
maintain, on the basis of an affidavit included in the record, that a
3-week delay could increase by a substantial measure both the costs and the
medical risks of an abortion.  See App. 18.  They conclude, as did those
courts, that H. B. 319 does not satisfy the Bellotti plurality's expedition
requirement.
    As a preliminary matter, the 22-day calculation conflicts with two
well-known rules of construction discussed in our abortion cases and
elsewhere.  "Where fairly possible, courts should construe a statute to
avoid a danger of unconstitutionality."  Ashcroft, 462 U. S., at 493
(opinion of Powell, J.).  Although we recognize that the other federal
courts " `are better schooled in and more able to interpret the laws of
their respective States' " than are we, Frisby v. Schultz, 487 U. S. 474,
482 (1988), the Court of Appeals' decision strikes us as dubious.
Interpreting the term "days" in MDRV 2505.073(A) to mean business days
instead of calendar days seems inappropriate and unnecessary because of the
express and contrasting use of "business day[s]" in MDRV 2151.85(B)(1).  In
addition, because appellees are making a facial challenge to a statute,
they must show that "no set of circumstances exists under which the Act
would be valid."  Webster, 492 U. S., at ---- (O'Connor, J., concurring).
The Court of Appeals should not have invalidated the Ohio statute on a
facial challenge based upon a worst-case analysis that may never occur.
Cf. Ohio Rev. Code MDRV 2505.073(A) (allowing the court of appeals, upon
the minor's motion, to shorten or extend the time periods).  Moreover,
under our precedents, the mere possibility that the procedure may require
up to twenty-two days in a rare case is plainly insufficient to invalidate
the statute on its face.  Ashcroft, for example, upheld a Missouri statute
that contained a bypass procedure that could require 17 calendar days plus
a sufficient time for deliberation and decisionmaking at both the trial and
appellate levels.  See 462 U. S., at 477, n. 4, 491, n. 16.

B
    Appellees ask us, in effect, to extend the criteria used by some
members of the Court in Bellotti and the cases following it by imposing
three additional requirements on bypass procedures.  First, they challenge
the constructive authorization provisions in H. B. 319, which enable a
minor to obtain an abortion without notifying one of her parents if either
the juvenile court or the court of appeals fails to act within the
prescribed time limits.  See Ohio Rev. Code Ann. 15 2151.85 (B)(1),
2505.073(A), and MDRV 2919.12(B)(1)(a)(iv) (1987 and Supp. 1988).  They
speculate that the absence of an affirmative order when a court fails to
process the minor's complaint will deter the physician from acting.
    We discern no constitutional defect in the statute.  Absent a
demonstrated pattern of abuse or defiance, a State may expect that its
judges will follow mandated procedural requirements.  There is no showing
that the time limitations imposed by H. B. 319 will be ignored.  With an
abundance of caution, and concern for the minor's interests, Ohio added the
constructive authorization provision in H. B. 319 to ensure expedition of
the bypass procedures even if these time limits are not met.  The State
Attorney General represents that a physician can obtain certified
documentation from the juvenile or appellate court that constructive
authorization has occurred.  Brief for Appellant 36.  We did not require a
similar safety net in the bypass procedures in Ashcroft, supra, at 479-480,
n. 4, and find no defect in the procedures that Ohio has provided.
    Second, appellees ask us to rule that a bypass procedure cannot require
a minor to prove maturity or best interests by a standard of clear and
convincing evidence.  They maintain that, when a State seeks to deprive an
individual of liberty interests, it must take upon itself the risk of
error.  See Santosky v. Kramer, 455 U. S. 745, 755 (1982).  House Bill 319
violates this standard, in their opinion, not only by placing the burden of
proof upon the minor, but also by imposing a heightened standard of proof.
    This contention lacks merit.  A State does not have to bear the burden
of proof on the issues of maturity or best interests.  The plurality
opinion in Bellotti indicates that a State may require the minor to prove
these facts in a bypass procedure.  See 443 U. S., at 643.  A State,
moreover, may require a heightened standard of proof when, as here, the
bypass procedure contemplates an ex parte proceeding at which no one
opposes the minor's testimony.  We find the clear and convincing standard
used in H. B. 319 acceptable.  The Ohio Supreme Court has stated:

"Clear and convincing evidence is that measure or degree of proof which
will produce in the mind of the trier of facts a firm belief or conviction
as to the allegations sought to be established.  It is intermediate, being
more than a mere preponderance, but not to the extent of such certainty as
is required beyond a reasonable doubt as in criminal cases.  It does not
mean clear and unequivocal."  Cross v. Ledford, 161 Ohio St. 469, 477, 120
N. E. 2d 118, 123 (1954) (emphasis deleted).


Our precedents do not require the State to set a lower standard.  Given
that the minor is assisted in the courtroom by an attorney as well as a
guardian ad litem, this aspect of H. B. 319 is not infirm under the
Constitution.
    Third, appellees contend that the pleading requirements in H. B. 319
create a trap for the unwary.  The minor, under the statutory scheme and
the requirements prescribed by the Ohio Supreme Court, must chose among
three pleading forms.  See Ohio Rev. Code MDRV 2151.85(C) (Supp. 1988);
App. 6-14.  The first alleges only maturity and the second alleges only
best interests.  She may not attempt to prove both maturity and best
interests unless she chooses the third form, which alleges both of these
facts.  Appellees contend that the complications imposed by this scheme
deny a minor the opportunity, required by the plurality in Bellotti, to
prove either maturity or best interests or both.  See 443 U. S., at
643-644.
    Even on the assumption that the pleading scheme could produce some
initial confusion because few minors would have counsel when pleading, the
simple and straightforward procedure does not deprive the minor of an
opportunity to prove her case.  It seems unlikely that the Ohio courts will
treat a minor's choice of complaint form without due care and understanding
for her unrepresented status.  In addition, we note that the minor does not
make a binding election by the initial choice of pleading form.  The minor,
under H. B. 319, receives appointed counsel after filing the complaint and
may move for leave to amend the pleadings.  See 2151.85(B) (2); Ohio Rule
Juvenile Proc. 22(B); see also Hambleton v. R. G. Barry Corp., 12 Ohio St.
3d 179, 183-184, 465 N. E. 2d 1298, 1302 (1984) (finding a liberal
amendment policy in the state civil rules).  Regardless of whether Ohio
could have written a simpler statute, H. B. 319 survives a facial
challenge.

III
    Appellees contend our inquiry does not end even if we decide that H. B.
319 conforms to Danforth, Bellotti, Matheson, Ashcroft, and Akron.  They
maintain that H. B. 319 gives a minor a state law substantive right "to
avoid unnecessary or hostile parental involvement" if she can demonstrate
that her maturity or best interests favor abortion without notifying one of
her parents.  They argue that H. B. 319 deprives the minor of this right
without due process because the pleading requirements, the alleged lack of
expedition and anonymity, and the clear and convincing evidence standard
make the bypass procedure unfair.  See Mathews v. Eldridge, 424 U. S. 319,
335 (1976).  We find no merit in this argument.
    The confidentiality provisions, the expedited procedures, and the
pleading form requirements, on their face, satisfy the dictates of minimal
due process.  We see little risk of erroneous deprivation under these
provisions and no need to require additional procedural safeguards.  The
clear and convincing evidence standard, for reasons we have described, does
not place an unconstitutional burden on the types of proof to be presented.
The minor is assisted by an attorney and a guardian ad litem and the
proceeding is ex parte.  The standard ensures that the judge will take
special care in deciding whether the minor's consent to an abortion should
proceed without parental notification.  As a final matter, given that the
statute provides definite and reasonable deadlines, Ohio Rev. Code Ann.
MDRV 2505.073(A), the constructive authorization provision, MDRV
2151.85(B)(1), also comports with due process on its face.

IV
    Appellees, as a final matter, contend that we should invalidate H. B.
319 in its entirety because the statute requires the parental notice to be
given by the physician who is to perform the abortion.  In Akron, the Court
found unconstitutional a requirement that the attending physician provide
the information and counseling relevant to informed consent.  See 462 U.
S., at 446-449.  Although the Court did not disapprove of informing a woman
of the health risks of an abortion, it explained that "[t]he State's
interest is in ensuring that the woman's consent is informed and
unpressured; the critical factor is whether she obtains the necessary
information and counseling from a qualified person, not the identity of the
person from whom she obtains it."  Id., at 448.  Appellees maintain, in a
similar fashion, that Ohio has no reason for requiring the minor's
physician, rather than some other qualified person, to notify one of the
minor's parents.
    Appellees, however, have failed to consider our precedent on this
matter.  We upheld, in Matheson, a statute that required a physician to
notify the minor's parents.  See 450 U. S., at 400.  The distinction
between notifying a minor's parents and informing a woman of the routine
risks of an abortion has ample justification; although counselors may
provide information about general risks as in Akron, appellees do not
contest the superior ability of a physician to garner and use information
supplied by a minor's parents upon receiving notice.  We continue to
believe that a State may require the physician himself or herself to take
reasonable steps to notify a minor's parent because the parent often will
provide important medical data to the physician.  As we explained in
Matheson,

"The medical, emotional, and psychological consequences of an abortion are
serious and can be lasting; this is particularly so when the patient is
immature.  An adequate medical and psychological case history is important
to the physician.  Parents can provide medical and psychological data,
refer the physician to other sources of medical history, such as family
physicians, and authorize family physicians to give relevant data."  450 U.
S., at 411 (footnote omitted).


The conversation with the physician, in addition, may enable a parent to
provide better advice to the minor.  The parent who must respond to an
event with complex philosophical and emotional dimensions is given some
access to an experienced and, in an ideal case, detached physician who can
assist the parent in approaching the problem in a mature and balanced way.
This access may benefit both the parent and child in a manner not possible
through notice by less qualified persons.
    Any imposition on a physician's schedule, by requiring him to give
notice when the minor does not have consent from one of her parents or
court authorization, must be evaluated in light of the complete statutory
scheme.  The statute allows the physician to send notice by mail if he
cannot reach the minor's parent "after a reasonable effort," Ohio Rev. Code
Ann. MDRV 2919.12(B)(1)(c)(2) (1987), and also allows him to forgo notice
in the event of certain emergencies, see MDRV 2919.12(C)(2).  These
provisions are an adequate recognition of the physician's professional
status.  On this facial challenge, we find the physician notification
requirement unobjectionable.

V
    The Ohio statute, in sum, does not impose an undue, or otherwise
unconstitutional, burden on a minor seeking an abortion.  We believe, in
addition, that the legislature acted in a rational manner in enacting H. B.
319.  A free and enlightened society may decide that each of its members
should attain a clearer, more tolerant understanding of the profound
philosophic choices confronted by a woman who is considering whether to
seek an abortion.  Her decision will embrace her own destiny and personal
dignity, and the origins of the other human life that lie within the
embryo.  The State is entitled to assume that, for most of its people, the
beginnings of that understanding will be within the family, society's most
intimate association.  It is both rational and fair for the State to
conclude that, in most instances, the family will strive to give a lonely
or even terrified minor advice that is both compassionate and mature.  The
statute in issue here is a rational way to further those ends.  It would
deny all dignity to the family to say that the State cannot take this
reasonable step in regulating its health professions to ensure that, in
most cases, a young woman will receive guidance and understanding from a
parent.  We uphold H. B. 319 on its face and reverse the Court of Appeals.

It is so ordered.


------------------------------------------------------------------------------




Subject: 88-805--CONCUR, OHIO v. AKRON CENTER FOR REPRODUCTIVE HEALTH

 
SUPREME COURT OF THE UNITED STATES


No. 88-805



OHIO, APPELLANT v. AKRON CENTER FOR
REPRODUCTIVE HEALTH et al.


on appeal from the united states court of appeals for the sixth circuit

[June 25, 1990]



    Justice Scalia, concurring.
    I join the opinion of the Court, because I agree that the Ohio statute
neither deprives minors of procedural due process nor contradicts our
holdings regarding the constitutional right to abortion.  I continue to
believe, however, as I said in my separate concurrence last Term in Webster
v. Reproductive Health Services, 492 U. S. ---- (1989), that the
Constitution contains no right to abortion.  It is not to be found in the
longstanding traditions of our society, nor can it be logically deduced
from the text of the Constitution--not, that is, without volunteering a
judicial answer to the nonjusticiable question of when human life begins.
Leaving this matter to the political process is not only legally correct,
it is pragmatically so.  That alone--and not lawyerly dissection of federal
judicial precedents--can produce compromises satisfying a sufficient mass
of the electorate that this deeply felt issue will cease distorting the
remainder of our democratic process.  The Court should end its disruptive
intrusion into this field as soon as possible.
------------------------------------------------------------------------------




Subject: 88-805--CONCUR, OHIO v. AKRON CENTER FOR REPRODUCTIVE HEALTH

 
SUPREME COURT OF THE UNITED STATES


No. 88-805



OHIO, APPELLANT v. AKRON CENTER FOR
REPRODUCTIVE HEALTH et al.


on appeal from the united states court of appeals for the sixth circuit

[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. {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.] MDRV 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 inter- ests of their
child" is relevant in determining what process is due in commitment
proceeding). {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. MDRV 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. MDRV 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).





Subject: 88-805--DISSENT, OHIO v. AKRON CENTER FOR REPRODUCTIVE HEALTH

 
SUPREME COURT OF THE UNITED STATES


No. 88-805



OHIO, APPELLANT v. AKRON CENTER FOR
REPRODUCTIVE HEALTH et al.


on appeal from the united states court of appeals for the sixth circuit


[June 25, 1990]



    Justice Blackmun, with whom Justice Brennan and Justice Marshall join,
dissenting.

I
    The constitutional right to "control the quintessentially intimate,
personal, and life-directing decision whether to carry a fetus to term,"
Webster v. Reproductive Health Services, ---- U. S. ----, ---- (1989)
(opinion concurring in part and dissenting in part), does "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."  Planned Parenthood of Central Mo. v.
Danforth, 428 U. S. 52, 74 (1976); Hodgson v. Minnesota, ante, at ----
(slip op. 13-14) ("[T]he constitutional protection against unjustified
state intrusion into the process of deciding whether or not to bear a child
extends to pregnant minors as well as adult women").  Although the Court
"has recognized that the State has somewhat broader authority to regulate
the activities of children than of adults," in doing so, the State
nevertheless must demonstrate that there is a "significant state interest
in conditioning an abortion . . . that is not present in the case of an
adult."  Danforth, 428 U. S., at 74-75 (emphasis added).  "Any independent
interest the parent may have in the termination of the minor daughter's
pregnancy is no more weighty than the right of privacy of the competent
minor mature enough to have become pregnant."  Id., at 75.
    "The abortion decision differs in important ways from other decisions
that may be made during minority.  The need to protect 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."  Bellotti v.
Baird, 443 U. S. 622, 642 (1979) (plurality opinion) (emphasis added)
(Bellotti II).  "Particular sensitivity" is mandated because "there are few
situations in which denying a minor the right to make an important decision
will have consequences so grave and indelible."  Ibid.  It should be
obvious that "considering her probable education, employment skills,
financial resources, and emotional maturity, unwanted motherhood may be
exceptionally burdensome for a minor."  Ibid.
    The State of Ohio has acted with particular insensitivity in enacting
the statute the Court today upholds.  Rather than create a judicial-bypass
system that reflects the sensitivity necessary when dealing with a minor
making this deeply intimate decision, Ohio has created a tortuous maze.
Moreover, the State has failed utterly to show that it has any significant
state interest in deliberately placing its pattern of obstacles in the path
of the pregnant minor seeking to exercise her constitutional right to
terminate a pregnancy.  The challenged provisions of the Ohio statute are
merely "poorly disguised elements of discouragement for the abortion
decision."  Thornburgh v. American College of Obstetricians &
Gynecologists, 476 U. S. 747, 763 (1986).

II
    The majority does not decide whether the Ohio parental- notice statute
must contain a judicial-bypass procedure because the majority concludes
that the bypass procedure in the statute "meets the requirements identified
for parental- consent statutes in Danforth, Bellotti, Ashcroft, and Akron."
Ante, at 5.  I conclude, however, that, because of the minor's emotional
vulnerability and financial dependency on her parents, and because of the
"unique nature of the abortion decision," Bellotti II, 443 U. S., at 642,
and its consequences, a parental-notice statute is tantamount to a
parental-consent statute.  As a practical matter, a notification
requirement will have the same deterrent effect on a pregnant minor seeking
to exercise her constitutional right as does a consent statute.  See Akron
v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 441, n. 31
(1983); H. L. v. Matheson, 450 U. S. 398, 420, n. 9 (1981) (concurring
opinion).  Thus a notice statute, like a consent statute, must contain a
bypass procedure that comports with the standards set forth in Bellotti II.
Because I disagree with the Court's conclusion that the Ohio bypass
procedure complies with the dictates of Bellotti II and its progeny, I
would strike down Ohio Amended Substitute House Bill 319.
    The Bellotti II plurality stated: "A pregnant minor is entitled in such
a [judicial bypass] 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; or
(2) that even if she is not able to make this decision independently, the
desired abortion would be in her best interests."  443 U. S., at 643-644
(footnote omitted).  The language of the Ohio statute purports to follow
the standards for a bypass procedure that are set forth in Bellotti II, but
at each stage along the way, the statute deliberately places "substantial
state- created obstacles in the pregnant [minor's] path to an abortion,"
Maher v. Roe, 432 U. S. 464, 477, n. 10 (1977), in the legislative hope
that she will stumble, perhaps fall, and at least ensuring that she
"conquer a multi-faceted obstacle course" before she is able to exercise
her constitutional right to an abortion.  Dellinger and Sperling, Abortion
and the Supreme Court: Retreat from Roe v. Wade, 138 U. Pa. L. Rev. 83, 100
(1989).  The majority considers each provision in a piecemeal fashion,
never acknowledging or assessing the "degree of burden that the entire
regime of abortion regulations places" on the minor.  Ibid.

A
    The obstacle course begins when the minor first enters the courthouse
to fill out the complaint forms.  The "pleading trap," as it appropriately
was described by the Court of Appeals, Akron Center for Reproductive Health
v. Slaby, 854 F. 2d 852, 863 (CA6 1988), requires the minor to choose among
three forms.  The first alleges only maturity; the second alleges only that
the abortion is in her best interest.  App. 6-11.  Only if the minor
chooses the third form, which alleges both, id., at 12-13, may the minor
attempt to prove both maturity and best interest as is her right under
Bellotti II.  See Ohio Rev. Code Ann. MDRV 2151.85(C)(3) (Supp. 1988).  The
majority makes light of what it acknowledges might be "some initial
confusion" of the unsophisticated minor who is trying to deal with an
unfamiliar and mystifying court system on an intensely intimate matter.
Ante, at 11.  The Court points out that the minor, with counsel appointed
after she filed the complaint, "may move for leave to amend the pleadings"
and avers that it "seems unlikely that the Ohio courts will treat a minor's
choice of complaint form without due care."  Ibid.  I would take the Ohio
Legislature's word, however, that its pleading requirement was intended to
be meaningful.  The constitutionality of a procedural provision cannot be
analyzed on the basis that it may have no effect.  If the pleading
requirement prevents some minors from showing either that they are mature
or that an abortion would be in their best interests, it plainly is
unconstitutional.
    The majority fails to elucidate any state interest in setting up this
barricade for the young pregnant woman--a barricade that will "serve only
to confuse . . . her and to heighten her anxiety."  Thornburgh, 476 U. S.,
at 762.  The justification the State put forward before the Court of
Appeals was the "absurd contention that `[a]ny minor claiming to be mature
and well enough informed to independently make such an important decision
as an abortion should also be mature enough to file her complaint under
[the appropriate subsection].' "  See 854 F. 2d, at 863, quoting Brief for
State of Ohio 43.  This proffered "justification" is even more harsh than
the Court of Appeals noted.  It excludes the mature minor who may not have
the intellectual capacity to understand these tangled forms and it spurns
the immature minor who is abused or who contends for some other reason that
an abortion without parental involvement would be in her best interest.
Surely, the goal of the court proceeding is to assist, not to entrap, the
young pregnant woman.
    The State's interest in "streamlining" the claims, belatedly asserted
for the first time before this Court, is no less absurd.  It is ludicrous
to confound the pregnant minor, forced to go to court at this time of
crisis in her life, with alternative complaint forms that must later be
rescinded by appointed counsel and replaced by the only form that is
constitutionally valid.  Moreover, this ridiculous pleading scheme leaves
to the judge's discretion whether the minor may amend her pleading and
attempt to prove both her maturity and best interest.  To allow the
resolution of this vital issue to turn on a judge's discretion does not
comport with Bellotti II's declaration that the minor who "fails to satisfy
the court that she is competent to make this decision independently . . .
must be permitted to show that an abortion nevertheless would be in her
best interests."  Bellotti II, 443 U. S., at 647-648 (emphasis added).

B
    As the pregnant minor attempts to find her way through the labyrinth
set up by the State of Ohio, she encounters yet another obstruction even
before she has completed the complaint form.  In Bellotti II, the plurality
insisted that the judicial bypass procedure "must assure that a resolution
of the issue, and any appeals that may follow, will be completed with
anonymity . . . ."  Id., at 644.  That statement was not some idle
procedural requirement, but stems from the proposition that the Due Process
Clause protects the woman's right to make her decision "independently and
privately."  Hodgson, ante, at 13.  The zone of privacy long has been held
to encompass an "individual interest in avoiding disclosure of personal
matters."  Whalen v. Roe, 429 U. S. 589, 599 (1977).  The Ohio statute does
not safeguard that right.  Far from keeping the identity of the minor
anonymous, the statute requires the minor to sign her full name and the
name of one of her parents on the complaint form.  See App. 6-14 (pleading
forms).  See ante, at 7.  ("Unless the minor has counsel, she must sign a
complaint form to initiate the bypass procedure and, even if she has
counsel, she must supply the name of one of her parents at four different
places.")  Acknowledging that "[c]onfidentiality differs from anonymity,"
the majority simply asserts that "complete anonymity" is not "critical."
Ibid.  That easy conclusion is irreconcilable with Bellotti's anonymity
requirement.  The definition of "anonymous" is "not named or identified."
Webster's Ninth New Collegiate Dictionary 88 (1983).  Complete anonymity,
then, appears to be the only kind of anonymity that a person could possibly
have.  The majority admits that case law regarding the anonymity
requirement has permitted no less.  See ante, at 7, citing Planned
Parenthood League of Massachusetts v. Bellotti, 641 F. 2d 1006, 1025 (CA1
1981) (pseudonym); Planned Parenthood Assn. of Kansas City, Missouri, Inc.
v. Ashcroft, 462 U. S. 476, 491, n. 16 (initials).  See also Thornburgh,
476 U. S., at 766 ("[T]he decision to terminate a pregnancy is an intensely
private one that must be protected in a way that assures anonymity").
    The majority points to Ohio laws requiring court employees not to
disclose public documents, blithely assuming that the "mere possibility of
unauthorized, illegal disclosure by state employees" is insufficient to
establish that the confidentiality of the proceeding is not protected.
Ante, at 7.  In fact, the provisions regarding the duty of court employees
not to disclose public documents amount to no more than "generally stated
principles of . . . confidentiality."  American College of Obstetricians v.
Thornburgh, 737 F. 2d 283, 297 (CA3 1984), aff'd on other grounds, 476 U.
S. 747 (1986).  As the District Court pointed out, there are no indications
of how a clerk's office, large or small, is to ensure that the records of
abortion cases will be distinguished from the records of all other cases
that are available to the public.  Akron Center for Reproductive Health v.
Rosen, 633 F. Supp. 1123, 1143-1144 (ND Ohio 1986).  Cf. Planned Parenthood
League of Massachusetts v. Bellotti, 641 F. 2d 1006, 1025 (CA1 1981) (minor
proceeds under pseudonym and affidavit containing her identity is kept in
separate, sealed file).  Nor are there measures for sealing the record
after the case is closed to prevent its public availability; Planned
Parenthood Assn. of the Atlanta Area, Inc. v. Harris, 670 F. Supp. 971, 991
(ND Ga. 1987) (noting with disapproval that Georgia statute made no
provision for court documents to be sealed).  This Court is well aware
that, unless special care is taken, court documents of an intimate nature
will find their way to the press and public.  See The Florida Star v. B. J.
F., ---- U. S. ---- (1989) (reporter in police room copied police report
and published article with rape victim's full name).  The State has offered
no justification for its failure to provide specific guidelines to be
followed by the Juvenile Court to ensure anonymity for the pregnant
minor--even though it has in place a procedure to assure the anonymity of
juveniles who have been adjudicated delinquent or unruly.  See Ohio Rev.
Code Ann. MDRV 2151.358 (1976) (detailed provision for sealing record and
for expungement of record).
    "A woman and her physician will necessarily be more reluctant to choose
an abortion if there exists a possibility that her decision and her
identity will become known publicly."  Thornburgh, 476 U. S., at 766.  A
minor, whose very purpose in going through a judicial-bypass proceeding is
to avoid notifying a hostile or abusive parent, would be most alarmed at
signing her name and the name of her parent on the complaint form.
Generalized statements concerning the confidentiality of records would be
of small comfort, even if she were aware of them.  True anonymity is
essential to an effective, meaningful bypass.  In the face of the forms
that the minor must actually deal with, the State's assurances that the
minor's privacy will be protected ring very hollow.  I would not permit the
State of Ohio to force a minor to forgo her anonymity in order to obtain a
waiver of the parental- notification requirement.

C
    Because a "pregnant adolescent . . . cannot preserve for long the
possibility of aborting, which effectively expires in a matter of weeks
from the onset of pregnancy," this Court has required that the State "must
assure" that the "resolution of the issue, and any appeals that may follow,
will be completed with . . . sufficient expedition to provide an effective
opportunity for an abortion to be obtained."  Bellotti II, 443 U. S., at
642, 644 (plurality opinion); see also H. L. v. Matheson, 450 U. S., at 412
(time is of the essence in an abortion decision).  Ohio's judicial-bypass
procedure can consume up to three weeks of a young woman's pregnancy.  I
would join the Sixth Circuit, the District Court, and the other federal
courts that have held that a time span of this length fails to guarantee a
sufficiently expedited procedure.  See 854 F. 2d, at 868; 633 F. Supp., at
1143.  See also, e. g., American College of Obstetricians & Gynecologists
v. Thornburgh, 656 F. Supp. 879, 887-888 (ED Pa. 1987) (statutory scheme
allowing 23 days for judicial proceeding is unconstitutional); Glick v.
McKay, 616 F. Supp. 322, 326-327 (Nev. 1985).
    The majority is unconcerned that "the procedure may require up to 22
days in a rare case."  Ante, at 9.  I doubt the "rarity" of such cases.  In
any event, the Court of Appeals appropriately pointed out that, because a
minor often does not learn of her pregnancy until a late stage in the first
trimester, time lost during that trimester is especially critical.  854 F.
2d, at 867-868.  The Court ignores the fact that the medical risks
surrounding abortion increase as pregnancy advances and that such delay may
push a woman into her second trimester, where the medical risks, economic
costs, and state regulation increase dramatically.  See Roe v. Wade, 410 U.
S. 113, 150, 163 (1973); H. L. v. Matheson, 450 U. S., at 439 and n. 25
(dissenting opinion).  Minors, who are more likely to seek later abortions
than adult women, {1} and who usually are not financially independent, will
suffer acutely from any delay.  See Ashcroft, 462 U. S., at 497-498
(opinion concurring in part and dissenting in part) (an increased cost
factor "may seem insignificant from the Court's comfortable perspective,"
but is not "equally insignificant" to "the unemployed teenager" for whom
this additional cost may well put an abortion beyond reach).  Because a
delay of up to 22 days may limit significantly a woman's ability to obtain
an abortion, I agree with the conclusions of the District Court and the
Court of Appeals that the statute violates this Court's command that a
judicial-bypass proceeding be conducted with sufficient speed to maintain
"an effective opportunity for an abortion to be obtained."  Bellotti II,
443 U. S., at 644. {2}

D
    The Ohio statute provides that if the juvenile or appellate courts fail
to act within the statutory time frame, an abortion without parental
notification is "constructively" authorized.  Although Ohio's Legislature
may have intended this provision to expedite the bypass procedure, the
confusion that will result from the constructive-authorization provision
will add further delay to the judicial-bypass proceeding, and is yet one
more obstruction in the path of the pregnant minor.  The physician risks
civil damages, criminal penalties, including imprisonment, as well as
revocation of his license for disobeying the statute's commands, but the
statute provides for no formal court order or other relief to safeguard the
physician from these penalties.  See 15 2151.85(B)(1); 2919.12(D);
2919.12(E); 4731.22(B)(23).  The State argues that a combination of a
date-stamped copy of the minor's complaint and a "docket sheet showing no
entry" would inform the physician that the abortion could proceed.  Brief
for Appellant 36.  Yet, the mere absence of an entry on a court's docket
sheet hardly would be reassuring to a physician facing such dire
consequences, and the State offers no reason why a formal order or some
kind of actual notification from the clerk of court would not be possible.
There is no doubt that the nebulous authorization envisioned by this
statute "in conjunction with a statute imposing strict civil and criminal
liability . . . could have a profound chilling effect on the willingness of
physicians to perform abortions . . . ."  Colautti v. Franklin, 439 U. S.
379, 396 (1979).  I agree with the Court of Appeals that the "practical
effect" of the "pocket approval" provision is to frustrate the minor's
right to an expedient disposition of her petition.  854 F. 2d, at 868.

E
    If the minor is able to wend her way through the intricate course of
preliminaries Ohio has set up for her and at last reaches the court
proceeding, the State shackles her even more tightly with still another
"extra layer and burden of regulation on the abortion decision."  Danforth,
428 U. S., at 66.  The minor must demonstrate by "clear and convincing
evidence" either (1) her maturity; (2) or that one of her parents has
engaged in a pattern of physical, sexual, or emotional abuse against her;
or (3) that notice to a parent is not in her best interest."  MDRV
2151.85(C).  The imposition of this heightened standard of proof unduly
burdens the minor's right to seek an abortion and demonstrates a
fundamental misunderstanding of the real nature of a court-bypass
proceeding.
    The function of a standard of proof is to " `instruct the factfinder
concerning the degree of confidence our society thinks he should have in
the correctness of factual conclusions,' " Addington v. Texas, 441 U. S.
418, 423 (1979), quoting In re Winship, 397 U. S. 358, 370 (1970)
(concurring opinion), and is "a societal judgment about how the risk of
error should be distributed between the litigants."  Santosky v. Kramer,
455 U. S. 745, 755 (1982).  By imposing such a stringent standard of proof,
this Ohio statute improperly places the risk of an erroneous decision on
the minor, the very person whose fundamental right is at stake.  Cf. id.,
at 756 (clear and convincing standard of proof usually has been employed to
preserve fundamental fairness in a variety of government-initiated
proceedings that threaten to deprive the individual involved with a
significant deprivation of liberty).  Even if the judge is satisfied that
the minor is mature or that an abortion is in her best interest, the court
may not authorize the procedure unless it additionally finds that the
evidence meets a "clear and convincing" standard of proof.
    The majority asserts that a State may require a heightened standard of
proof because the procedure is ex parte.  Ante, at 10.  According to the
majority, the only alternative to the "clear and convincing" standard is a
preponderance of the evidence standard, which would require proof by the
greater weight of the evidence.  The majority reasons that the
preponderance standard is unsuited to a Bellotti II bypass because, if the
minor presents any evidence at all, and no evidence is put forth in
opposition, the minor always will present the greater weight of the
evidence.  Yet, as the State explained at argument, the bypass procedure is
inquisitorial in nature, where the judge questions the minor to discover if
she meets the requirements set down in Bellotti II.  See Tr. of Oral Arg.
9.  The judge will be making this determination after a hearing that
resembles an interview, not an evidentiary proceeding. {3}  The District
Court observed, "the judge's decision will necessarily be based largely on
subjective standards without the benefit of any evidence other then a
woman's testimony."  633 F. Supp., at 1137.  Thus, unlike the procedure the
majority seems to envision, it is not the quantity of the evidence
presented that is crucial in the bypass proceeding; rather, the crucial
factors are the nature of the minor's statements to the judge and her
demeanor.  Contrary to the majority's theory, if the minor presents
evidence that she is mature, she still must satisfy the judge that this is
so, even without this heightened standard of proof.  The use of a
heightened standard in the very special context of Bellotti's court-bypass
procedure does little to facilitate a fair and reliable result and imports
an element from the adversarial process into this unique inquiry where it
has no rightful place.
    Although I think the provision is constitutionally infirm for all
minors, I am particularly concerned about the effect it will have on
sexually or physically abused minors.  I agree that parental interest in
the welfare of their children is "particularly strong where a normal family
relationship exists."  Bellotti II, 446 U. S., at 648 (emphasis added).  A
minor needs no statute to seek the support of loving parents.  Where trust
and confidence exist within the family structure, it is likely that
communication already exists. {4}  If that compassionate support is
lacking, an unwanted pregnancy is a poor way to generate it.
    Sadly, not all children in our country are fortunate enough to be
members of loving families.  For too many young pregnant women, parental
involvement in this most intimate decision threatens harm, rather than
promises comfort. {5}  The Court's selective blindness to this stark social
reality is bewildering and distressing.  Lacking the protection that young
people typically find in their intimate family associations, these minors
are desperately in need of constitutional protection.  The sexually or
physically abused minor may indeed be "lonely or even terrified," ante, at
14, not of the abortion procedure, but of an abusive family member. {6}
The Court's placid reference, ibid., to the "compassionate and mature"
advice the minor will receive from within the family must seem an
unbelievable and cruel irony to those children trapped in violent families.
{7}
    Under the system Ohio has set up, a sexually abused minor must go to
court and demonstrate to a complete stranger by clear and convincing
evidence that she has been the victim of a pattern of sexual abuse.  When
asked at argument what kind of evidence a minor would be required to adduce
at her bypass hearing, the State answered that the minor would tell her
side to the judge and the judge would consider how well "the minor is able
to articulate what her particular concerns are."  Tr. of Oral Arg. 9.  The
court procedure alone, in many cases, is extremely traumatic.  See Hodgson,
ante, at 20, and n. 29.  The State and the Court are impervious to the
additional burden imposed on the abused minor who, as any experienced
social worker or counselor knows, is often afraid and ashamed to reveal
what has happened to her to anyone outside the home.  The Ohio statute
forces that minor, despite her very real fears, to experience yet one more
hardship.  She must attempt, in public, and before strangers, to
"articulate what her particular concerns are" with sufficient clarity to
meet the State's "clear and convincing evidence" standard.  The upshot is
that for the abused minor the risk of error entails a risk of violence.
    I would affirm the judgments below on the grounds of the several
constitutional defects identified by the District Court and the Court of
Appeals.  The pleading requirements, the so-called and fragile guarantee of
anonymity, the insufficiency of the expedited procedures, the constructive-
authorization provision, and the "clear and convincing evidence"
requirement singly and collectively cross the limit of constitutional
acceptance.

III
    Even if the Ohio statute complied with the Bellotti II requirements for
a constitutional court bypass, I would conclude that the Ohio procedure is
unconstitutional because it requires the physician's personal and
nondelegable obligation to give the required statutory notice.
Particularly when viewed in context with the other impediments this statute
places in the minor's path, there is more than a "possibility" that the
physician-notification 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."  Ante, at 4 (Stevens, J., concurring in the
judgment).  Most telling in this regard is the fact that, according to the
Court of Appeals and the District Court, the State has never claimed that
personal notice by the physician was required to effectuate an interest in
the minor's health until the matter reached this Court.  In fact, the State
has taken three different positions as to its justification for this
provision.  See 854 F. 2d, at 862 ("[T]he state's interest is in insuring
that immature, unemancipated minors or minors whose best interests require
notification have an adequate opportunity for parental intervention.  The
state has made no showing that this interest is advanced by requiring the
attending physician, as opposed to another qualified, responsible person,
to effectuate notification"); 633 F. Supp., at 1135 ("[T]he state's attempt
to characterize this duty as `merely ministerial' does not advance its case
at all, but rather suggests that its interest in having the physician
perform this function is even less weighty than having him or her perform
counseling to obtain informed consent" [that was struck down in Akron v.
Akron Center for Reproductive Health, Inc., 462 U. S. 416]).  If these
chimerical health concerns now asserted in fact were the true motivation
behind this provision, I seriously doubt that the State would have taken so
long to say so.
    Even if the State's interest in the health of the minor were the
motivation behind the provision, the State never explains why it is that a
physician interested in obtaining information, or a parent interested in
providing information to a physician cannot do so following the actual
notification by some other competent professional, such as a nurse or
counselor.  And the State and the majority never explain why, if the
physician's ability to garner information from the parents is of such
paramount importance that only the physician may notify the parent, the
statute allows the physician to send notice by mail if he or she cannot
reach the minor's parent "after a reasonable effort."  MDRV 2919.12
(B)(1)(c)(2).
    The State's asserted interest in the minor's health care is especially
ironic in light of the statute's interference with her physician's
experienced professional judgment. {8}  "If a physician is licensed by the
State, he is recognized by the State as capable of exercising acceptable
clinical judgment," Doe v. Bolton, 410 U. S. 179, 199 (1973), and he should
be permitted to exercise that judgment as to whether he or another
professional should be the person who will notify a minor's parents of her
decision to terminate her pregnancy.  I have no doubt that the attending
physician, better than the Ohio Legislature, will know when a consultation
with the parent is necessary.  "If he fails in this, professional censure
and deprivation of his license are available remedies" already in place.
Ibid.  The strictures of this Ohio law not only unduly burden the minor's
right to an abortion, but impinge on the physician's professional
discretion in the practice of medicine. {9}

IV
    The Ohio Legislature, in its wisdom, in 1985 enacted its anti-abortion
statute.  That statute, when subjected to facial challenge, has been held
unconstitutional by the United States District Court for the Northern
District of Ohio and by the Court of Appeals for the Sixth Circuit.  It is
now, however, upheld on that challenge by a majority of this Court.  The
majority opinion takes up each challenged provision in turn; concludes,
with brief comment, that it is within the bounds of the plurality opinion
in Bellotti II; and moves on routinely and in the same fashion to the
succeeding provisions, one by one.  A plurality then concludes, in Part V
of the primary opinion, with hyperbole that can have but one result: to
further incite an American press, public, and pulpit already inflamed by
the pronouncement made by a plurality of this Court last Term in Webster v.
Reproductive Health Services, ---- U. S. ---- (1989).  The plurality
indulges in paternalistic comments about "profound philosophic choices";
the "woman's own destiny and personal dignity"; the "origins of the other
human life that lie within the embryo"; the family as "society's most
intimate association"; the striving of the family to give to the minor
"advice that is both compassionate and mature"; and the desired assumption
that "in most cases" the woman will receive "guidance and understanding
from a parent."  Ante, at 14-15.
    Some of this may be so "in most cases" and, it is to be hoped, in
judges' own and other warm and protected, nurturing family environments.
But those "most cases" need not rely on constitutional protections that are
so vital for others.  I have cautioned before that there is "another world
`out there' " that the Court "either chooses to ignore or refuses to
recognize."  Beal v. Doe, 432 U. S. 438, 463 (1977).  It is the unfortunate
denizens of that world, often frightened and forlorn, lacking the comfort
of loving parental guidance and mature advice, who most need the
constitutional protection that the Ohio Legislature set out to make as
difficult as possible to obtain.
    That that Legislature set forth with just such a goal is evident from
the statute it spawned.  The underlying nature of the Ohio statute is
proclaimed by its strident and offensively restrictive provisions.  It is
as though the Legislature said: "If the courts of the United States insist
on upholding a limited right to an abortion, let us make that abortion as
difficult as possible to obtain" because, basically, whether on professed
moral or religious grounds or whatever, "we believe that is the way it must
be."  This often may be the way legislation is enacted, but few are the
instances where the injustice is so evident and the impediments so gross as
those inflicted by the Ohio Legislature on these vulnerable and powerless
young women.

 
 
 
 
 

------------------------------------------------------------------------------
1
    Indeed, the threat of parental notice itself may cause a minor to delay
requesting assistance with her pregnancy.  See H. L. v. Matheson, 450 U.
S., at 439, and n. 25 (dissenting opinion).

2
    The majority finds comfort in Ashcroft and insists that this Court
upheld a Missouri statute that contained a bypass procedure "that could
require 17 calendar days plus a sufficient time for deliberation and
decisionmaking at both the trial and appellate levels."  Ante, at 9.  The
majority disregards the limited nature of the Ashcroft holding.  The Court
there looked only at the Missouri appellate procedure and determined that
the 24-hour deadline for docketing the appeal and the 5-day deadline for
completing the record and perfecting the appeal, together with the
requirement that the Missouri Supreme Court provide for expedited appeal by
court rule, provided a constitutionally sufficient "framework" for
complying with Bellotti's mandate for expedited appeals.  See 462 U. S., at
491, n. 16.  The Court made no ruling as to whether the Missouri law
provided constitutionally sufficient expedition at the initial stages of
the bypass.

3
    Bellotti II itself recognized the unique nature of the bypass procedure
when it required the minor merely to show or satisfy the court that she is
mature or that an abortion would be in her best interests, without imposing
any standard of proof.  See also 443 U. S., at 643, n. 22 ("much can be
said for employing procedures and a forum less formal than those associated
with a court of general jurisdiction").

4
    It has been said that the majority of all minors voluntarily tell their
parents about their pregnancy.  The overwhelming majority of those under 16
years of age do so.  See Torres et al., Telling Parents: Clinic Practices
and Adolescents' Use of Family Planning and Abortion Services, 12 Family
Planning Perspectives 284, 287-288, 291 (1980).

5
    In 1986, more than 1,000,000 children and adolescents suffered harm
from parental abuse or neglect, including sexual abuse.  See Brief for
American Psychological Association et al. as Amici Curiae 9-10, and sources
cited therein.  This figure is considered to be a minimum estimate because
the incidence of abuse is substantially underreported.  Pregnancy does not
deter, and may even precipitate, physical attacks on women.  Ibid.

6
    "[P]regnant minors may attempt to self-abort or to obtain an illegal
abortion rather than risk parental notification."  H. L. v. Matheson, 450
U. S., at 439, and n. 26 (dissenting opinion).

7
    The majority and the State of Ohio piously fail to mention what happens
to these unwanted babies, born to mothers who are little more than children
themselves, who have little opportunity, education, or life skills.  Too
often, the unwanted child becomes trapped in a cycle of poverty, despair,
and violence.  This Court, by experience, knows all too well that the
States are unable adequately to supervise and protect these vulnerable
citizens.  See Baltimore City Dept. of Social Services v. Bouknight, ----
U. S. ---- (1990); DeShaney v. Winnebago County Dept. of Social Services,
---- U. S. ---- (1989).

8
    In light of its asserted interest, I find it odd that Ohio allows
minors to consent to treatment for sexually transmitted diseases, Ohio Rev.
Code Ann. MDRV 3709.241 (1988), and drug and alcohol abuse, MDRV 3719.012
(A).  In each of these sensitive areas of health care, the State apparently
trusts the physician to use his informed medical judgment as to whether he
should question or inform the parent about the minor's medical and
psychological condition.

9
    The majority's reliance on H. L. v. Matheson is misplaced.  In that
case, unlike this one, the Utah Supreme Court had limited the steps that a
physician would have to take to notify the minor's parents.  See 450 U. S.,
at 405.  In contrast, in Akron, the Court pointed out that the "critical
factor is whether she obtains the necessary information and counseling from
a qualified person, not the identity of the person from whom she obtains
it."  462 U. S., at 448 (emphasis added).
