Subject:  HODGSON v. MINNESOTA, 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


HODGSON et al. v. MINNESOTA et al.


certiorari to the united states court of appeals for the eighth circuit

No. 88-1125.  Argued November 29, 1989--Decided June 25, 1990 {1}

Subdivision 2 of Minn. Stat. MDRV 144.343 provides that no abortion shall
be performed on a woman under 18 years of age until at least 48 hours after
both of her parents have been notified.  The two-parent notice requirement
is mandatory unless, inter alia, the woman declares that she is a victim of
parental abuse or neglect, in which event notice of her declaration must be
given to the proper authorities.  Subdivision 6 provides that, if a court
enjoins the enforcement of subdivision 2, the same two- parent notice
requirement is effective unless a court of competent jurisdiction orders
the abortion to proceed without notice upon proof by the minor that she is
"mature and capable of giving informed consent" or that an abortion without
notice to both parents would be in her best interest.  Two days before the
statute's effective date, a group consisting of doctors, clinics, pregnant
minors, and the mother of a pregnant minor filed suit in the District
Court, alleging that the statute violated the Due Process and Equal
Protection Clauses of the Fourteenth Amendment.  The court declared the
statute unconstitutional in its entirety and enjoined its enforcement.  The
Court of Appeals, sitting in banc, reversed.  Although it rejected the
State's submission that subdivision 2's two-parent notice requirement was
constitutional without any bypass procedure, the court held that
subdivision 6 was valid and that its bypass procedure saved the statute as
a whole.  The court also rejected the argument that the 48-hour waiting
period imposed a significant burden on the minor's abortion right.

Held: The judgment is affirmed.

853 F. 2d 1452, affirmed.

    Justice Stevens delivered the opinion of the Court with respect to
Parts I, II, IV, and VII, concluding that subdivision 2 of MDRV 144.343
violates the Constitution insofar as it requires two-parent notification.
Pp. 15-23, 28-34.

    (a) Since none of this Court's abortion decisions dealing with parental
consent or notification statutes focused on the possible significance of
making the consent or notice applicable to both parents instead of just
one, the District Court's extensive and unchallenged findings on the
question are significant.  On the basis of extensive trial testimony, the
District Court found, inter alia, that the two-parent notification
requirement had particularly harmful effects on both the minor and the
custodial parent when the parents were divorced or separated, especially in
the context of an abusive or dysfunctional family; that the requirement
also had adverse effects in families in which the minor lives with both
parents, particularly where family violence is a serious problem; that the
requirement actually impairs family communication in many instances, since
minors who otherwise would inform one parent were unwilling to do so when
such notification would involve going to court for a bypass in any event;
that few minors can take advantage of the abuse exception because of the
obligation to report the information to the authorities and the attendant
loss of privacy; and that the two-parent requirement did not further the
State's interests in protecting pregnant minors or assuring family
integrity.  The court also found that, in many cases, the statutory 48-hour
waiting period was extended to a week or more by scheduling considerations,
thereby increasing the risk associated with the abortion to a statistically
significant degree.  Pp. 15-23.

    (b) The requirement that both parents be notified, whether or not both
wish to be notified or have assumed responsibility for the upbringing of
the child, does not reasonably further any legitimate state interest.  Any
such interest in supporting the authority of a parent, who is presumed to
act in the minor's best interest, to assure that the abortion decision is
knowing, intelligent, and deliberate, would be fully served by a one-parent
notification requirement as to functioning families, where notice to either
parent would normally constitute notice to both.  As to the many families
in which the parent notified would not notify the other parent, the State
has no legitimate interest in questioning the first parent's judgment or in
presuming him or her incompetent to make decisions regarding the child's
health and welfare.  Moreover, as the record demonstrates, the two-parent
requirement actually disserves the state interest in protecting and
assisting the minor with respect to the thousands of dysfunctional families
affected by the statute, where the requirement proved positively harmful.
There is no merit to the argument that the two-parent requirement is
justified because, in the ideal family, the minor should make her decision
only after consultation with both parents, who should naturally be
concerned with her welfare.  The State has no legitimate interest in
conforming family life to a state-designed ideal by requiring family
members to talk together.  Nor can the State's interest in protecting a
parent's interest in shaping a child's values and lifestyle overcome the
liberty interests of a minor acting with the consent of a single parent or
court.  The combined force of the separate interest of one parent and the
minor's privacy interest outweighs the separate interest of the second
parent, and the justification for any rule requiring parental involvement
in the abortion decision rests entirely on the best interests of the child.
The fact that the two-parent requirement is virtually an oddity among state
and federal consent provisions governing childrens' health, welfare, and
education further demonstrates its unreasonableness and the ease with which
the State can adopt less burdensome means to protect the minor's welfare.
Pp. 28-34.

    Justice Stevens, joined by Justice O'Connor, concluded in Parts V and
VI that:

    1. Three separate but related interests are relevant to the
constitutionality of the 48-hour waiting period and the two-parent
notification requirement.  First, the State has a strong and legitimate
interest in the welfare of its young citizens, whose immaturity,
inexperience, and lack of judgment may sometimes impair their ability to
exercise their rights wisely.  That interest justifies a state-imposed
requirement that the minor notify and consult with a parent before
terminating her pregnancy.  See, e. g., Ohio v. Akron Center for
Reproductive Health, post, p. ----, at ----.  Second, parents have an
interest in controlling their childrens' education and upbringing, and a
natural parent's stake in the relationship with a child may rise to the
level of a protected liberty interest if the parent has demonstrated his
commitment by assuming personal, financial, or custodial responsibility for
the child.  Third, the family has a privacy interest in its childrens'
upbringing and education which is constitutionally protected against undue
state interference.  When government intrudes on the family's choices, the
governmental interests advanced and the extent to which they are served by
the challenged regulation must be carefully examined.  Pp. 23-26.

    2. To the extent that subdivision 2 of the state statute requires that
a minor wait 48 hours after notifying a single parent of her intention to
obtain an abortion, it reasonably furthers the legitimate state interest in
ensuring that the minor's decision is knowing and intelligent.  The State
may properly enact laws designed to aid a parent who has assumed "primary
responsibility" for a minor's well-being in discharging that
responsibility, and the 48-hour delay provides the parent the opportunity
to consult with his or her spouse and a family physician, to inquire into
the competency of the abortion doctor, and to discuss the decision's
religious and moral implications with the minor and provide needed guidance
and counsel as to how the decision will affect her future.  The delay
imposes only a minimal burden on the minor's rights.  The statute does not
impose any period of delay if the parents or a court, acting in loco
parentis, provide consent to the procedure.  Moreover, the record reveals
that the waiting period may run concurrently with the time necessary to
make an appointment for the abortion.  Pp. 27-28.

    Justice O'Connor concluded that subdivision 6 of the state statute--
two-parent notification plus judicial bypass--passes constitutional muster
because the interference with the family's internal operation required by
subdivision 2's two-parent notice requirement simply does not exist where
the minor can avoid notifying one or both parents by using the bypass
procedure.  See, e. g., Planned Parenthood of Central Missouri v. Danforth,
428 U. S. 52, 90-91.  Pp. 3-4.

    Justice Kennedy, joined by The Chief Justice, Justice White, and
Justice Scalia, concluded:

    1. The state statute's 48-hour waiting period is necessary to enable
notified parents to consult with their daughter or her physician, if they
so wish, results in little or no delay, and is therefore constitutional.
P. 17.

    2. Subdivision 6 of the statute--which requires two-parent notification
unless the pregnant minor obtains a judicial bypass--is constitutional.  By
creating a judicial mechanism to identify, and exempt from the strictures
of the law, those cases in which the minor is mature or in which parental
notification is not in her best interest, subdivision 6 precisely addresses
the concern underlying the Court's invalidation of subdivision 2: the
possibility that, in some cases, two-parent notification would not work to
the benefit of minors or their parents.  In providing for the bypass,
moreover, Minnesota has simply attempted to fit its legislation into the
framework supplied by this Court's previous cases, particularly Bellotti v.
Baird, 443 U. S. 622, which stands for the proposition that a two-parent
consent law is constitutional if it provides for a sufficient judicial
bypass alternative.  See id., at 643 (opinion of Powell, J.); id., at
656-657 (White, J., dissenting).  The conclusion that subdivision 6 must be
sustained is compelled not only by Bellotti, but also by H. L. v. Matheson,
450 U. S. 398, in which the Court held that a two- parent notice statute
without a bypass was constitutional as applied to immature minors whose
best interests would be served by notice.  If that is the case, but if such
a law is not constitutional as applied to minors who are mature or whose
best interest are not so served, a judicial bypass is an expeditious and
efficient means by which to separate the applications of the law which are
constitutional from those which are not.  Pp. 17-21.

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

------------------------------------------------------------------------------
1
    Together with No. 88-1309, Minnesota et al. v. Hodgson et al., also on
certiorari to the same court.





Subject: 88-1125 & 88-1309--OPINION, HODGSON v. MINNESOTA

 


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


Nos. 88-1125 and 88-1309


JANE HODGSON, et al, PETITIONERS
v.
88-1125
MINNESOTA et al.



MINNESOTA, et al., PETITIONERS
v.
88-1309
JANE HODGSON et al.


on writs of certiorari to the united states court of appeals for the eighth
circuit

[June 25, 1990]



    Justice Stevens announced the judgment of the Court and delivered the
opinion of the Court with respect to Parts I, II, IV, and VII, an opinion
with respect to Part III in which Justice Brennan joins, an opinion with
respect to Parts V and VI in which Justice O'Connor joins, and a dissenting
opinion with respect to Part VIII.

    A Minnesota statute, Minn. Stat. 15 144.343(2)-(7) (1988), provides,
with certain exceptions, that no abortion shall be performed on a woman
under 18 years of age until at least 48 hours after both of her parents
have been notified.  In subdivisions 2-4 of the statute the notice is
mandatory unless (1) the attending physician certifies that an immediate
abortion is necessary to prevent the woman's death and there is
insufficient time to provide the required notice; (2) both of her parents
have consented in writing; or (3) the woman declares that she is a victim
of parental abuse or neglect, in which event notice of her declaration must
be given to the proper authorities.  The United States Court of Appeals for
the Eighth Circuit, sitting en banc, unanimously held this pro vision
unconstitutional.  In No. 88-1309, we granted the State's petition to
review that holding.  Subdivision 6 of the same statute provides that if a
court enjoins the enforcement of subdivision 2, the same notice requirement
shall be effective unless the pregnant woman obtains a court order
permitting the abortion to proceed.  By a vote of 7-3, the Court of Appeals
upheld the constitutionality of subdivision 6.  In No. 88-1125, we granted
the plaintiffs' petition to review that holding.
    For reasons that follow, we now conclude that the requirement of notice
to both of the pregnant minor's parents is not reasonably related to
legitimate state interests and that subdivision 2 is unconstitutional.  A
different majority of the Court, for reasons stated in separate opinions,
concludes that subdivision 6 is constitutional.  Accordingly, the judgment
of the Court of Appeals in its entirety is affirmed.

I
    The parental notice statute was enacted in 1981 as an amendment to the
Minors' Consent to Health Services Act.  The earlier statute, which remains
in effect as subdivision 1 of MDRV 144.343 and as MDRV 144.346, had
modified the common law requirement of parental consent for any medical
procedure performed on minors.  It authorized "any minor" to give effective
consent without any parental involvement for the treatment of "pregnancy
and conditions associated therewith, venereal disease, alcohol and other
drug abuse."  {1} The statute, unlike others of its age, {2} applied to
abortion services.
    The 1981 amendment qualified the authority of an "unemancipated minor"
{3} to give effective consent to an abortion by requiring that either her
physician or an agent notify "the parent" personally or by certified mail
at least 48 hours before the procedure is performed. {4}  The term "parent"
is defined in subdivision 3 to mean "both parents of the pregnant woman if
they are both living."  No exception is made for a divorced parent, a
noncustodial parent, or a biological parent who never married or lived with
the pregnant woman's mother. {5}  The statute does provide, however, that
if only one parent is living, or "if the second one cannot be located
through reasonably diligent effort," notice to one parent is sufficient.
{6}  It also makes exceptions for cases in which emergency treatment prior
to notice "is necessary to prevent the woman's death," both parents have
already given their consent in writing, or the proper authorities are
advised that the minor is a victim of sexual or physical abuse. {7}  The
statute subjects a person performing an abortion in violation of its terms
to criminal sanctions and to civil liability in an action brought by any
person "wrongfully denied notification."  {8}
    Subdivision 6 authorizes a judicial bypass of the two-parent notice
requirement if subdivision 2 is ever "temporarily or permanently" enjoined
by judicial order.  If the pregnant minor can convince "any judge of a
court of competent jurisdiction" that she is "mature and capable of giving
informed consent to the proposed abortion," or that an abortion without
notice to both parents would be in her best interest, the court can
authorize the physician to proceed without notice.  The statute provides
that the bypass procedure shall be confidential, that it shall be
expedited, that the minor has a right to court-appointed counsel, and that
she shall be afforded free access to the court "24 hours a day, seven days
a week."  An order denying an abortion can be appealed on an expedited
basis, but an order authorizing an abortion without notification is not
subject to appeal. {9}
    The statute contains a severability provision, but it does not include
a statement of its purposes.  The Minnesota Attorney General has advised us
that those purposes are apparent from the statutory text and that they
"include the recognition and fostering of parent-child relationships,
promoting counsel to a child in a difficult and traumatic choice, and
providing for notice to those who are naturally most concerned for the
child's welfare."  {10}  The District Court found that the primary purpose
of the legislation was to protect the well- being of minors by encouraging
them to discuss with their parents the decision whether to terminate their
pregnancies. {11}  It also found that the legislature was motivated by a
desire to deter and dissuade minors from choosing to terminate their
pregnancies. {12}  The Attorney General, however, disclaims any reliance on
this purpose. {13}

II
    This litigation was commenced on July 30, 1981, two days before the
effective date of the parental notification statute.  The plaintiffs
include two Minnesota doctors who specialize in obstetrics and gynecology,
four clinics providing abortion and contraceptive services in metropolitan
areas in Minnesota, six pregnant minors representing a class of pregnant
minors, and the mother of a pregnant minor.  Plaintiffs alleged that the
statute violated the Due Process and Equal Protection Clauses of the
Fourteenth Amendment and various provisions of the Minnesota Constitution.
    Based on the allegations in their verified complaint, the District
Court entered a temporary restraining order enjoining the enforcement of
subdivision 2 of the statute.  After a hearing, the court entered a
preliminary injunction which still remains in effect.  App. 31.  The
District Court refused, however, to rule on the validity of the judicial
bypass procedure in advance of trial. {14}
    In 1986, after a 5-week trial, the District Court concluded that both
the two-parent notification requirement and the 48- hour waiting period
were invalid.  It further concluded that the definition of the term
"parent," which is carried over into the notification requirement, was not
severable from the remainder of the statute.  The court declared the entire
statute unconstitutional and enjoined the defendants from enforcing it.
    A three-judge panel of the Court of Appeals affirmed.  The court first
held that a compulsory notification requirement is invalid if it does not
provide the pregnant minor with the option of an alternative court
procedure in which she can demonstrate either her maturity or that
performance of an abortion without notification would be in her best
interests.  App. to Pet. for Cert. in No. 88-1125, p. 62a.  Second, relying
heavily on the findings of the District Court concerning the impact of a
two-parent notice requirement on families in which the parents are
divorced, separated, or unmarried, the panel also concluded that the
unconstitutional notification requirement could not be saved by the
judicial bypass.  The court reasoned that a mature minor and her custodial
parent are in a better position than a court to determine whether notifying
the noncustodial parent would be in the child's best interests and that
they should not be forced to submit to a "Hobson's choice" between an
unconstitutional notice requirement and a burdensome court bypass. {15}
The panel further held that the two-parent notice requirement was not
severable. {16}
    The panel opinion was vacated and the Court of Appeals reheard the case
en banc.  853 F. 2d 1452 (CA8 1988).  The court unanimously and summarily
rejected the State's submission that the two-parent notice requirement was
constitutional without any bypass procedure.  Id., at 1456-1457.  The
majority concluded, however, that subdivision 6 of the statute was valid.
It agreed with the District Court that the development of a full factual
record may demonstrate that a facially valid statute is "unconstitutional
in operation," id., at 1459, and that "the detailed factual findings
concerning the general difficulties of obtaining an abortion in Minnesota
and the trauma of the bypass procedure, compared to its effectiveness,
raise considerable questions about the practical wisdom of this statute."
Ibid.  In the majority's opinion, however, those questions were for the
legislature to consider because the statute served valid state interests:
the interest in " `encouraging an unmarried pregnant minor to seek the help
and advice of her parents in making the very important decision whether or
not to bear a child,' "  {17} as well as the in dependent interest of the
parents in the upbringing of their children. {18}
    After noting that the State did not challenge the District Court's
findings, id., at 1462, the court concluded that these findings placed
undue emphasis on one-parent and no-parent households.  For even though the
two-parent notice requirement may not further the interests of the pregnant
minor in such cases, the rights of "best-interest" and mature mi- nors were
nevertheless protected by the bypass procedure.  More importantly, "as
applied to all pregnant minors, regardless of their family circumstances,
the district court did not consider whether parental and family interests
(as distinguished from the interests of the minor alone) justified the
two-parent notice requirement."  Id., at 1463.  The court wrote:

    "The district court enjoined the entire statute because of the impact
of the two-parent notice requirement primarily upon one group of pregnant
minors, without considering the effect of the bypass, or the parental and
family interests which have been recognized by the Supreme Court.  In
concentrating upon the impact of the statute on the pregnant minor not
living with both parents, and on the mature or non best-interest pregnant
minor, the district court gave only limited consideration to the 50% or
more pregnant minors who live with both parents and to pregnant minors who
are immature and whose best interests may require parental involvement.
The district court's determination that an undue burden on the one group
renders the statute unconstitutional for all is contrary to the Supreme
Court's decision that a notice-consent/bypass procedure plainly serves
important state interests and is narrowly drawn to protect only those
interests. . . .  Considering the stat- ute as a whole and as applied to
all pregnant minors, the two-parent notice requirement does not
unconstitutionally burden the minor's abortion right."  Id., at 1464-1465
(citation omitted).


The Court of Appeals also rejected the argument that the 48- hour waiting
period imposed a significant burden on the minor's abortion right, finding
that the waiting period could run concurrently with the scheduling of an
appointment for the procedure.  Accordingly, the court reversed the
judgment of the District Court without reaching the question of
severability. {19}
    In dissent, two members of the court criticized the majority for
ignoring "the evidence amassed in a five-week trial," for relying on the
judicial bypass procedure "to uphold an unconstitutional two-parent
notification requirement," and for creating "a new right, apparently of
constitutional dimension, for non-custodial parents to receive notice of
their minor children's activities."  Id., at 1466.  One of the dissenters
joined a third dissenter in expressing the opinion that "a single- parent
notification requirement would withstand constitutional challenge."  Id.,
at 1472.  We granted certiorari, 492 U. S. ---- (1989).

III
    There is a natural difference between men and women: only women have
the capacity to bear children.  A woman's decision to beget or to bear a
child is a component of her liberty that is protected by the Due Process
Clause of the Fourteenth Amendment to the Constitution.  See Harris v.
McRae, 448 U. S. 297, 316-318 (1980); Carey v. Population Services
International, 431 U. S. 678, 685, 687 (1977); Cleveland Board of Education
v. LaFleur, 414 U. S. 632, 639-640 (1974); Roe v. Wade, 410 U. S. 113,
152-153 (1973); id., at 168-170 (Stewart, J., concurring); Eisenstadt v.
Baird, 405 U. S. 438, 453 (1972); Griswold v. Connecticut, 381 U. S. 479,
502-503 (1965) (White, J., concurring in judgment).  That Clause, as
interpreted in those cases, protects the woman's right to make such
decisions independently and privately, see Whalen v. Roe, 429 U. S. 589,
598-600, and n. 23 (1977), free of unwarranted governmental intrusion.

    "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."  Bellotti v. Baird, 443 U. S. 622,
642 (1979) (Bellotti II).


As we stated in Planned Parenthood of Central Missouri v. Danforth, 428 U.
S. 52, 74 (1976), the right to make this decision "do[es] not mature and
come into being magically only when one attains the state-defined age of
majority."  Thus, the 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.
    In cases involving abortion, as in cases involving the right to travel
or the right to marry, the identification of the constitutionally protected
interest is merely the beginning of the analysis.  State regulation of
travel and of marriage is obviously permissible even though a State may not
categorically exclude nonresidents from its borders, Shapiro v. Thompson,
394 U. S. 618, 631 (1969), or deny prisoners the right to marry, Turner v.
Safley, 482 U. S. 78, 94-99 (1987).  But the regulation of constitutionally
protected decisions, such as where a person shall reside or whom he or she
shall marry, must be predicated on legitimate state concerns other than
disagreement with the choice the individual has made.  Cf. Turner v.
Safley, supra; Loving v. Virginia, 388 U. S. 1, 12 (1967).  In the abortion
area, a State may have no obligation to spend its own money, or use its own
facilities, to subsidize nontherapeutic abortions for minors or adults.
See, e. g., Maher v. Roe, 432 U. S. 464 (1977); cf. Webster v. Reproductive
Health Services, 492 U. S. ----, ---- (1989) (plurality opinion); id., at
---- (O'Connor, J., concurring in part and concurring in judgment).  A
State's value judgment favoring childbirth over abortion may provide
adequate support for decisions involving such allocation of public funds,
but not for simply substituting a state decision for an individual decision
that a woman has a right to make for herself.  Otherwise, the interest in
liberty protected by the Due Process Clause would be a nullity.  A state
policy favoring childbirth over abortion is not in itself a sufficient
justification for overriding the woman's decision or for placing
"obstacles--absolute or otherwise--in the pregnant woman's path to an
abortion."  Maher, 432 U. S., at 474; see also Harris v. McRae, 448 U. S.,
at 315-316.
    In these cases the State of Minnesota does not rest its defense of this
statute on any such value judgment.  Indeed, it affirmatively disavows that
state interest as a basis for upholding this law. {20}  Moreover, it is
clear that the state judges who have interpreted the statute in over 3,000
decisions implementing its bypass procedures have found no legislative
intent to disfavor the decision to terminate a pregnancy.  On the contrary,
in all but a handful of cases they have approved such decisions. {21}
Because the Minnesota statute unquestionably places obstacles in the
pregnant minor's path to an abortion, the State has the burden of
establishing its constitu- tionality.  Under any analysis, the Minnesota
statute cannot be sustained if the obstacles it imposes are not reasonably
related to legitimate state interests.  Cf. Turner v. Safley, 482 U. S., at
97; Carey v. Population Services International, 431 U. S., at 704 (opinion
of Powell, J.); Doe v. Bolton, 410 U. S. 179, 194-195, 199 (1973).

IV
    The Court has considered the constitutionality of statutes providing
for parental consent or parental notification in six abortion cases decided
during the last 14 years. {22}  Although the Massachusetts statute reviewed
in Bellotti v. Baird, 428 U. S. 132 (1976) (Bellotti I), and Bellotti II
required the consent of both parents, and the Utah statute reviewed in H.
L. v. Matheson, 450 U. S. 398 (1981), required notice to "the parents,"
{23} none of the opinions in any of those cases focused on the possible
significance of making the consent or the notice requirement applicable to
both parents instead of just one.  In contrast, the arguments in these
cases, as well as the extensive findings of the District Court, are
directed primarily at that distinction.  It is therefore appropriate to
summarize these findings before addressing the constitutionality of the
48-hour waiting period or the two-parent notification requirement,
particularly since none of the findings has been challenged in either this
Court or the Court of Appeals.    Approximately one out of every two
marriages ends in divorce.  648 F. Supp. 756, 768 (Minn. 1986).  Unrebutted
evidence indicates that only 50% of minors in the State of Minnesota reside
with both biological parents.  Ibid.; App. 125-126.  This conclusion is
substantially corroborated by a study indicating that 9% of the minors in
Minnesota live with neither parent and 33% live with only one parent.  648
F. Supp., at 768. {24}
    The District Court found--on the basis of extensive testimony at
trial--that the two-parent notification requirement had particularly
harmful effects on both the minor and the custodial parent when the parents
were divorced or separated.  Relations between the minor and absent parent
were not reestablished as a result of the forced notification thereby often
producing disappointment in the minor "when an anticipated reestablishment
of her relationship with the absent parent d[id] not occur."  Moreover,
"[t]he reaction of the custodial parent to the requirement of forced
notification is often one of anger, resentment and frustration at the
intrusion of the absent parent," and fear that notification will threaten
the custody rights of the parent or otherwise promote intrafamily violence.
Tragically, those fears were often realized:

    "Involuntary involvement of the second biological parent is especially
detrimental when the minor comes from an abusive, dysfunctional family.
Notification of the minor's pregnancy and abortion decision can provoke
violence, even where the parents are divorced or separated.  Studies have
shown that violence and harassment may continue well beyond the divorce,
especially when children are involved.
    ". . . Furthermore, a mother's perception in a dysfunctional family
that there will be violence if the father learns of the daughter's
pregnancy is likely to be an accurate perception."  Id., at 769.


The District Court further found:

    "Twenty to twenty-five percent of the minors who go to court either are
accompanied by one parent who knows and consents to the abortion or have
already told one parent of their intent to terminate their pregnancy.  The
vast majority of these voluntarily informed parents are women who are
divorced or separated from spouses whom they have not seen in years.  Going
to court to avoid notifying the other parent burdens the privacy of both
the minor and the accompanying parent.  The custodial parents are angry
that their consent is not sufficient and fear that notification will bring
the absent parent back into the family in an intrusive and abusive way."
Ibid.


    The District Court also found that the two-parent notification
requirement had adverse effects in families in which the minor lives with
both parents.  These effects were particularly pronounced in the
distressingly large number of cases in which family violence is a serious
problem.  The court found that many minors in Minnesota "live in fear of
violence by family members" and "are, in fact, victims of rape, incest,
neglect and violence."  {25}  The District Court found that few minors can
take advantage of the exception for a minor who declares that she is a
victim of sexual or physical abuse because of the obligation to report the
information to the authorities and the attendant loss of privacy.  See
Findings 46 and 47, 648 F. Supp., at 764. {26}  This concern about family
violence helps to explain why the District Court found that in many
instances the requirement that both parents be notified actually impairs
family communication.  Minors who otherwise would inform one parent were
unwilling to do so when such notification likely would also involve the
parent in the torturous ordeal of explaining to a court why the second
parent should not be notified.  The court found:

    "Minors who ordinarily would notify one parent may be dissuaded from
doing so by the two-parent requirement.  A minor who must go to court for
authorization in any event may elect not to tell either parent.  In these
instances, the requirement that minors notify both biological parents
actually reduces parent-child communication."  Id., at 769. {27}


    The great majority of bypass petitions are filed in the three
metropolitan counties in Minnesota, where courts schedule bypass hearings
on a regular basis and have in place procedures for hearing emergency
petitions.  Id., at 762.  Courts in the nonmetropolitan areas are
acquainted with the statute and, for the most part, apply it
conscientiously, but a number of counties are served by judges who are
unwilling to hear bypass petitions.  Id., at 763.  Aside from the
unavoidable notification of court officials, the confidentiality of minors
has been maintained.  Ibid.
    During the period between August 1, 1981, and March 1, 1986, 3,573
judicial bypass petitions were filed in Minnesota courts.  All but 15 were
granted. {28}  The judges who adjudicated over 90% of these petitions
testified; none of them identified any positive effects of the law. {29}
The court experience produced fear, tension, anxiety, and shame among
minors, causing some who were mature, and some whose best interests would
have been served by an abortion, to "forgo the bypass option and either
notify their parents or carry to term."  Finding 44, 648 F. Supp., at 763.
Among parents who supported their daughters in the bypass proceedings, the
court experience evoked similar reactions. {30}
    Scheduling petitions in the Minnesota court typically required minors
to wait only two or three days for hearings.  The District Court found,
however, that the statutory waiting period of 48 hours was frequently
compounded by a number of other factors that "commonly" created a delay of
72 hours, id., at 764-765, and, "in many cases" a delay of a week or more
in effecting a decision to terminate a pregnancy.  Id., at 765.  A delay of
that magnitude increased the medical risk associated with the abortion
procedure to "a statistically significant degree."  Finding 43, 648 F.
Supp., at 763.  While recognizing that a mandatory delay following the
notice to a minor's parent served the State's interest in protecting
pregnant minors, the court found that that interest could be served by a
shorter waiting period.  Id., at 779-780.
    At least 37 witnesses testified to the issue whether the statute
furthered the State's interest in protecting pregnant minors.  Only two
witnesses testified that a two-parent notification statute did minors more
good than harm; neither of these witnesses had direct experience with the
Minnesota statute.  Summarizing its findings on the question whether the
statute as a whole furthered the State's interests, the District Court
wrote:

    "Of the remaining witnesses who spoke to the issue whether Minn. Stat.
MDRV 144.343 effectuates the State's interest in protecting pregnant
minors, all but four of these are personally involved in the statute's
implementation in Minnesota.  They are judges, public defenders, guardians
ad litem, and clinic counselors.  None of these witnesses testified that
the statute has a beneficial effect upon the minors whom it affects.  Some
testified the law has a negligible effect upon intra-family communication
and upon the minors' decision-making process.  Others testified the statute
has a deleterious effect on the well- being of the minors to whom it
applies because it increases the stress attendant to the abortion decision
without creating any corresponding benefit.  Thus five weeks of trial have
produced no factual basis upon which this court can find that Minn. Stat.
MDRV 144.343(2)-(7) on the whole furthers in any meaningful way the state's
interest in protecting pregnant minors or assuring family integrity."  Id.,
at 775.


    Focusing specifically on the statutory requirement that both parents be
notified, the District Court concluded:

"The court finds that this requirement places a significant burden upon
pregnant minors who do not live with both parents.  Particularly in these
cases, notification of an abusive, or even a disinterested, absent parent
has the effect of reintroducing that parent's disruptive or unhelpful
participation into the family at a time of acute stress.  Similarly, the
two-parent notification requirement places a significant obstacle in the
path of minors in two parent homes who voluntarily have consulted with one
parent but not with the other out of fear of psychological, sexual, or
physical abuse toward either the minor or the notified parent.  In either
case, the alternative of going to court to seek authorization to proceed
without notifying the second parent introduces a traumatic distraction into
her relationship with the parent whom the minor has notified.  The anxiety
attending either option tends to interfere with and burden the parent-child
communication the minor voluntarily initiated with the custodial parent.

    . . . . .



    ". . . Indeed, 20 to 25% of minors seeking judicial authorization to
proceed with an abortion without parental notification are accompanied to
court by one parent, or at least have obtained the approval of one parent.
In these cases the necessity either to notify the second parent despite the
agreement of both the minor and the notified parent that such notification
is undesirable, or to obtain a judicial waiver of the notification
requirement, distracts the minor and her parent and disrupts their
communication.  Thus the need to notify the second parent or to make a
burdensome court appearance actively interferes with the parent-child
communication voluntarily initiated by the child, communication assertedly
at the heart of the State's purpose in requiring notification of both
parents.  In these cases, requiring notification of both parents
affirmatively discourages parent-child communication."  Id., at 777-778.

V
    Three separate but related interests--the interest in the welfare of
the pregnant minor, the interest of the parents, and the interest of the
family unit--are relevant to our consideration of the constitutionality of
the 48-hour waiting period and the two-parent notification requirement.
    The State has a strong and legitimate interest in the welfare of its
young citizens, whose immaturity, inexperience, and lack of judgment may
sometimes impair their ability to exercise their rights wisely.  See
Bellotti II, 443 U. S., at 634-639 (opinion of Powell, J.); Prince v.
Massachusetts, 321 U. S. 158, 166-167 (1944). {31}  That interest, which
justifies state-imposed requirements that a minor obtain his or her
parent's consent before undergoing an operation, marrying, or entering
military service, see Parham v. J. R., 442 U. S. 584, 603-604 (1979);
Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 95
(White, J., concurring in part and dissenting in part); id., at 102-103
(opinion concurring in part and dissenting in part), extends also to the
minor's decision to terminate her pregnancy.  Although the Court has held
that parents may not exercise "an absolute, and possibly arbitrary, veto"
over that decision, Danforth, 428 U. S., at 74, it has never challenged a
State's reasonable judgment that the decision should be made after
notification to and consultation with a parent.  See Ohio v. Akron Center
for Reproductive Health, post, at ----; Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416, 428, n. 10, 439 (1983); H. L. v.
Matheson, 450 U. S., at 409-410; Bellotti II, 443 U. S., at 640-641
(opinion of Powell, J.); Danforth, 428 U. S., at 75.  As Justice Stewart,
joined by Justice Powell, pointed out in his concurrence in Danforth:
    "There can be little doubt that the State furthers a constitutionally
permissible end by encouraging an unmarried pregnant minor to seek the help
and advice of her parents in making the very important decision whether or
not to bear a child."  Id., at 91.


    Parents have an interest in controlling the education and upbringing of
their children but that interest is "a counterpart of the responsibilities
they have assumed."  Lehr v. Robertson, 463 U. S. 248, 257 (1983); see also
Parham, 442 U. S., at 602 (citing 1 W. Blackstone, Commentaries *447; 2 J.
Kent, Commentaries on American Law *190); Pierce v. Society of Sisters, 268
U. S. 510, 535 (1925).  The fact of biological parentage generally offers a
person only "an opportunity . . . to develop a relationship with his
offspring."  Lehr, 463 U. S., at 262; see also Caban v. Mohammed, 441 U. S.
380, 397 (1979) (Stewart, J., dissenting).  But the demon stration of
commitment to the child through the assumption of personal, financial, or
custodial responsibility may give the natural parent a stake in the
relationship with the child rising to the level of a liberty interest.  See
Stanley v. Illinois, 405 U. S. 645, 651 (1972); Lehr, 463 U. S., at 261;
Michael H. v. Gerald D., 491 U. S. ----, ---- (1989) (White, J.,
dissenting); cf. Caban, 441 U. S., at 393, n. 14.  But see Michael H., 491
U. S., at ---- (plurality opinion).
    While the State has a legitimate interest in the creation and
dissolution of the marriage contract, see Sosna v. Iowa, 419 U. S. 393, 404
(1975); Maynard v. Hill, 125 U. S. 190, 205 (1888), the family has a
privacy interest in the upbringing and education of children and the
intimacies of the marital relationship which is protected by the
Constitution against undue state interference.  See Wisconsin v. Yoder, 406
U. S. 205, 233-234 (1972); Griswold v. Connecticut, 381 U. S., at 495-496
(Goldberg, J., concurring); Poe v. Ullman, 367 U. S. 497, 551-552 (1961)
(Harlan, J., dissenting); Gilbert v. Minnesota, 254 U. S. 325, 335-336
(1920) (Brandeis, J., dissenting); see also Michael H. v. Gerald D., 491 U.
S., at ---- (O'Connor, J., concurring in part); Roberts v. United States
Jaycees, 468 U. S. 609, 618-620 (1984); Cleveland Board of Education v.
LaFleur, 414 U. S. 632, 639-640 (1974).  The family may assign one parent
to guide the children's education and the other to look after their health.
{32}  "The statist notion that governmental power should supersede parental
authority in all cases because some parents abuse and neglect children is
repugnant to American tradition."  Parham, 442 U. S., at 603.  We have long
held that there exists a "private realm of family life which the state
cannot enter."  Prince v. Massachusetts, 321 U. S., at 166.  Thus, when the
government intrudes on choices concerning the arrangement of the household,
this Court has carefully examined the "governmental interests advanced and
the extent to which they are served by the challenged regulation."  Moore
v. East Cleveland, 431 U. S. 494, 499 (1977) (plurality opinion); id., at
507, 510-511 (Brennan, J., concurring); see also Meyer v. Nebraska, 262 U.
S. 390, 399-400 (1923).
    A natural parent who has demonstrated sufficient commitment to his or
her children is thereafter entitled to raise the children free from undue
state interference.  As Justice White explained in his opinion for the
Court in Stanley v. Illinois, 405 U. S. 645 (1972):

    "The Court has frequently emphasized the importance of the family.  The
rights to conceive and to raise one's children have been deemed
`essential,' Meyer v. Nebraska, 262 U. S. 390, 399 (1923), `basic civil
rights of man,' Skinner v. Oklahoma, 316 U. S. 535, 541 (1942), and
`[r]ights far more precious . . . than property rights,' May v. Anderson,
345 U. S. 528, 533 (1953).  `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, 321 U. S. 158, 166
(1944).  The integrity of the family unit has found protection in the Due
Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, at
399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v.
Oklahoma, supra, at 541, and the Ninth Amendment, Griswold v. Connecticut,
381 U. S. 479, 496 (1965) (Goldberg, J., concurring)."  Id., at 651. {33}

VI
    We think it is clear that a requirement that a minor wait 48 hours
after notifying a single parent of her intention to get an abortion would
reasonably further the legitimate state interest in ensuring that the
minor's decision is knowing and intelligent.  We have held that when a
parent or another person has assumed "primary responsibility" for a minor's
well- being, the State may properly enact "laws designed to aid discharge
of that responsibility."  Ginsberg v. New York, 390 U. S. 629, 639 (1968).
To the extent that subdivision 2 of the Minnesota statute requires
notification of only one parent, it does just that.  The brief waiting
period provides the parent the opportunity to consult with his or her
spouse and a family physician, and it permits the parent to inquire into
the competency of the doctor performing the abortion, discuss the religious
or moral implications of the abortion decision, and provide the daughter
needed guidance and counsel in evaluating the impact of the decision on her
future.  See Zbaraz v. Hartigan, 763 F. 2d 1532, 1552 (CA7 1985) (Coffey,
J., dissenting), aff'd by an equally divided Court, 484 U. S. 171 (1987).
    The 48-hour delay imposes only a minimal burden on the right of the
minor to decide whether or not to terminate her pregnancy.  Although the
District Court found that scheduling factors, weather, and the minor's
school and work commitments may combine, in many cases, to create a delay
of a week or longer between the initiation of notification and the
abortion, 648 F. Supp., at 765, there is no evidence that the 48-hour
period itself is unreasonable or longer than appropriate for adequate
consultation between parent and child.  The statute does not impose any
period of delay once the parents or a court, acting in loco parentis,
express their agreement that the minor is mature or that the procedure
would be in her best interest.  Indeed, as the Court of Appeals noted and
the record reveals, {34} the 48-hour waiting period may run concurrently
with the time necessary to make an appointment for the procedure, thus
resulting in little or no delay. {35}

VII
    It is equally clear that the requirement that both parents be notified,
whether or not both wish to be notified or have assumed responsibility for
the upbringing of the child, does not reasonably further any legitimate
state interest.  The usual justification for a parental consent or
notification provision is that it supports the authority of a parent who is
presumed to act in the minor's best interest and thereby assures that the
minor's decision to terminate her pregnancy is knowing, intelligent, and
deliberate.  To the extent that such an interest is legitimate, it would be
fully served by a requirement that the minor notify one parent who can then
seek the counsel of his or her mate or any other party, when such advice
and support is deemed necessary to help the child make a difficult
decision.  In the ideal family setting, of course, notice to either parent
would normally constitute notice to both.  A statute requiring two-parent
notification would not further any state interest in those instances.  In
many families, however, the parent notified by the child would not notify
the other parent.  In those cases the State has no legitimate interest in
questioning one parent's judgment that notice to the other parent would not
assist the minor or in presuming that the parent who has assumed parental
duties is incompetent to make decisions regarding the health and welfare of
the child.
    Not only does two-parent notification fail to serve any state interest
with respect to functioning families, it disserves the state interest in
protecting and assisting the minor with respect to dysfunctional families.
The record reveals that in the thousands of dysfunctional families affected
by this statute, the two-parent notice requirement proved positively
harmful to the minor and her family.  The testimony at trial established
that this requirement, ostensibly designed for the benefit of the minor,
resulted in major trauma to the child, and often to a parent as well.  In
some cases, the parents were divorced and the second parent did not have
custody or otherwise participate in the child's upbringing.  App. 244-245;
id., at 466; id., at 115.  In these circumstances, the privacy of the
parent and child was violated, even when they suffered no other physical or
psychological harm.  In other instances, however, the second parent had
either deserted or abused the child, id., at 462, 464, had died under
tragic circumstances, id., at 120-121, or was not notified because of the
considered judgment that notification would inflict unnecessary stress on a
parent who was ill.  Id., at 204, 465. {36}  In these circumstances, the
statute was not merely ineffectual in achieving the State's goals but
actually counterproductive.  The focus on notifying the second parent
distracted both the parent and minor from the minor's imminent abortion
decision.
    The State does not rely primarily on the best interests of the minor in
defending this statute.  Rather, it argues that, in the ideal family, the
minor should make her decision only after consultation with both parents
who should naturally be concerned with the child's welfare and that the
State has an interest in protecting the independent right of the parents
"to determine and strive for what they believe to be best for their
children."  Minn. Br. 26.  Neither of these reasons can justify the
two-parent notification requirement.  The second parent may well have an
interest in the minor's abortion decision, making full communication among
all members of a family desirable in some cases, but such communication may
not be decreed by the State.  The State has no more interest in requiring
all family members to talk with one another than it has in requiring
certain of them to live together.  In Moore v. East Cleveland, 431 U. S.
494 (1977), we invalidated a zoning ordinance which "slic[ed] deeply into
the family itself," id., at 498, permitting the city to "standardiz[e] its
children-- and its adults--by forcing all to live in certain narrowly
defined family patterns."  Id., at 506.  Although the ordinance was
supported by state interests other than the state interest in substituting
its conception of family life for the family's own view, the ordinance's
relation to those state interests was too "tenuous" to satisfy
constitutional standards.  By implication, a state interest in
standardizing its children and adults, making the "private realm of family
life" conform to some state-designed ideal, is not a legitimate state
interest at all.  See also Meyer v. Nebraska, 262 U. S., at 399-400 (right
to establish a home and bring up children may not be interfered with by
legislative action which is without "reasonable relation to some purpose
within the competency of the State to effect").
    Nor can any state interest in protecting a parent's interest in shaping
a child's values and lifestyle overcome the liberty interests of a minor
acting with the consent of a single parent or court.  See Bellotti II, 443
U. S. 622 (1979); Bellotti I, 428 U. S. 132 (1976); Planned Parenthood of
Central Missouri v. Danforth, 428 U. S. 52 (1976).  In Danforth, the
majority identified the only state interest in requiring parental consent
as that in "the safeguarding of the family unit and of parental authority"
and held that that state interest was insufficient to support the
requirement that mature minors receive parental consent.  The Court
summarily concluded that "[a]ny 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.  It follows that the combined force of the separate
interest of one parent and the minor's privacy interest must outweigh the
separate interest of the second parent.
    In Bellotti I and Bellotti II, we also identified the difference
between parental interests and the child's best interest.  Although the
District Court invalidated the Massachusetts statute there under review on
the grounds that it permitted a parent or the court, acting in loco
parentis, to refuse consent based on the parent's own interests, the state
Attorney General argued that the parental right consisted " `exclusively of
the right to assess independently, for their minor child, what will serve
that child's best interest.' "  428 U. S., at 144.  Because we believed
that the Attorney General's interpretation "would avoid or substantially
modify the federal constitutional challenge," id., at 148, we ordered the
District Court to certify the state-law question to the Supreme Judicial
Court of Massachusetts.  Id., at 151-152.  On review in this Court for the
second time, after the Supreme Judicial Court stated unambiguously that the
"good cause" standard required the judge to grant consent to an abortion
found to be in the minor's best interest, 443 U. S., at 630, 644, we
confirmed that such a construction satisfied "some of the concerns" about
the statute's constitutionality, id., at 644, and thereby avoided "much of
what was objectionable in the statute successfully challenged in Danforth."
Id., at 645.  Indeed, the constitutional defects that Justice Powell
identified in the statute--its failure to allow a minor who is found to be
mature and fully competent to make the abortion decision independently and
its requirement of parental consultation even when an abortion without
notification would be in the minor's best interests--are predicated on the
assumption that the justification for any rule requiring parental
involvement in the abortion decision rests entirely on the best interests
of the child.  Id., at 651. {37}
    Unsurprisingly, the Minnesota two-parent notification requirement is an
oddity among state and federal consent provisions governing the health,
welfare, and education of children.  A minor desiring to enlist in the
armed services or the Reserve Officers' Training Corps (ROTC) need only
obtain the consent of "his parent or guardian."  10 U. S. C. MDRV 505(a);
2104(b)(4); 2107(b)(4).  The consent of "a parent or guardian" is also
sufficient to obtain a passport for foreign travel from the United States
Department of State, 22 CFR MDRV 51.27 (1989), and to participate as a
subject in most forms of medical research.  45 CFR 15 46.404, 46.405
(1988).  In virtually every State, the consent of one parent is enough to
obtain a driver's license or operator's permit.  The same may be said with
respect to the decision to submit to any medical or surgical procedure
other than an abortion. {38}  Indeed, the only other Minnesota statute that
the State has identified which requires two-parent consent is that
authorizing the minor to change his name.  Tr. of Oral Arg. 30, 32; Reply
Brief for Petitioner in No. 88-1309, p. 5 (citing Minn. Stat. MDRV 259.10
(1988)).  These statutes provide testimony to the unreasonableness of the
Minnesota two-parent notification requirement and to the ease with which
the State can adopt less burdensome means to protect the minor's welfare.
Cf. Clark v. Jeter, 486 U. S. 456, 464 (1988); Turner v. Safley, 482 U. S.
78, 98 (1987).  We therefore hold that this requirement violates the
Constitution.

VIII
    The Court holds that the constitutional objection to the two-parent
notice requirement is removed by the judicial bypass option provided in
subdivision 6 of the Minnesota statute.  I respectfully dissent from that
holding.
    A majority of the Court has previously held that a statute requiring
one parent's consent to a minor's abortion will be upheld if the State
provides an " `alternate procedure whereby a pregnant minor may demonstrate
that she is sufficiently mature to make the abortion decision herself or
that, despite her immaturity, an abortion would be in her best interests.'
"  Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.
S. 476, 491 (1983) (opinion of Powell, J.); id., at 505 (opinion of
O'Connor, J.).  Indeed, in Bellotti II, four Members of the Court expressed
the same opinion about a statute requiring the consent of both parents.
See 443 U. S., at 643-644.  Neither of those precedents should control our
decision today.
    In Bellotti II, eight Members of the Court joined the judgment holding
the Massachusetts statute unconstitutional.  Thus, the Court did not hold
that the judicial bypass set forth in that statute was valid; it held just
the opposite.  Moreover, the discussion of the minimum requirements for a
valid judicial bypass in Justice Powell's opinion was joined by only four
Members of the Court.  Indeed, neither the arguments of the parties, nor
any of the opinions in the case, considered the significant difference
between a statute requiring the involvement of both parents in the abortion
decision and a statute that merely requires the involvement of one.  Thus,
the doctrine of stare decisis does not require that the standards
articulated in Justice Powell's opinion be applied to a statute that
mandates the involvement of both parents.
    Unlike Bellotti II, the judgment in Ashcroft sustained the
constitutionality of the statute containing a judicial bypass as an
alternative to the requirement of one parent's consent to a minor's
abortion.  The distinctions between notice and consent and between
notification of both parents rather than just one arguably constitute a
sufficient response to an argument resting on stare decisis.  Further
analysis is necessary, however, because, at least on the surface, the
consent requirement would appear to be more onerous than a requirement of
mere notice.
    The significance of the distinction between a statute requiring the
consent of one parent and a statute requiring notice to both parents must
be tested by the relationship of the respective requirements to legitimate
state interests.  We have concluded that the State has a strong and
legitimate interest in providing a pregnant minor with the advice and
support of a parent during the decisional period.  A general rule requiring
the minor to obtain the consent of one parent reasonably furthers that
interest.  An exception from the general rule is necessary to protect the
minor from an arbitrary veto that is motivated by the separate concerns of
the parent rather than the best interest of the child.  Cf. Parham v. J.
R., 442 U. S., at 604-608.  But the need for an exception does not
undermine the conclusion that the general rule is perfectly
reasonable--just as a rule requiring the consent of either parent for any
other medical procedure would surely be reasonable if an exception were
made for those emergencies in which, for example, a parent might deny life
saving treatment to a child on religious grounds.  See id., at 602- 603.
    For reasons already set forth at length, a rule requiring consent or
notification of both parents is not reasonably related to the state
interest in giving the pregnant minor the benefit of parental advice.  The
State has not called our attention to, nor am I aware of, any other medical
situation in Minnesota or elsewhere in which the provision of treatment for
a child has been conditioned on notice to, or consent by, both parents
rather than just one.  Indeed, the fact that one-parent consent is the
virtually uniform rule for any other activity which affects the minor's
health, safety or welfare emphasizes the aberrant quality of the two-parent
notice requirement.
    A judicial bypass that is designed to handle exceptions from a
reasonable general rule, and thereby preserve the constitutionality of that
rule, is quite different from a requirement that a minor--or a minor and
one of her parents-- must apply to a court for permission to avoid the
application of a rule that is not reasonably related to legitimate state
goals.  A requirement that a minor acting with the consent of both parents
apply to a court for permission to effectuate her decision clearly would
constitute an unjustified official interference with the privacy of the
minor and her family.  The requirement that the bypass procedure must be
invoked when the minor and one parent agree that the other parent should
not be notified represents an equally unjustified governmental intrusion
into the family's decisional process.  When the parents are living together
and have joint custody over the child, the State has no legitimate interest
in the communication between father and mother about the child.  "[W]here
the parents are divorced, the minor and/or custodial parent, and not a
court, is in the best position to de termine whether notifying the
non-custodial parent would be in the child's best interests."  App. to Pet.
for Cert. in No. 88-1125, p. 69a.  As the Court of Appeals panel originally
concluded, the "minor and custodial parent, . . . by virtue of their major
interest and superior position, should alone have the opportunity to decide
to whom, if anyone, notice of the minor's abortion decision should be
given."  Ibid. (citation omitted).  I agree with that conclusion.

*   *   *
    The judgment of the Court of Appeals in its entirety is affirmed.

It is so ordered.


 
 
 
 
 

------------------------------------------------------------------------------
1
    Subdivision 1 of MDRV 144.343 presently provides:
    "Any minor may give effective consent for medical, mental and other
health services to determine the presence of or to treat pregnancy and
conditions associated therewith, venereal disease, alcohol and other drug
abuse, and the consent of no other person is required."

The statute permits the health professional treating the minor to notify
parents only when a failure to do so would jeopardize the minor's health.
Minn. Stat. MDRV 144.346 (1988).

2
    See Haw. Rev. Stat. MDRV 577A-2 (1976); Mo. Rev. Stat. MDRV 431.062
(Supp. 1971).  See generally Pilpel & Zuckerman, Abortion and the Rights of
Minors, in Abortion, Society and the Law 275, 279-280 (D. Walbert & J. But
ler eds. 1973).

3
    Although there is no statutory definition of emancipation in Minnesota,
see Streitz v. Streitz, 363 N. W. 2d 135, 137 (Minn. App. 1985), we have no
reason to question the State's representation that Minn. Stat. 15 144.341
and 144.342 (1988) apply to the minor's decision to terminate her
pregnancy.  Brief for Respondents in No. 88-1125, p. 2, n. 2.  Those
sections provide that a minor who is living separate and apart from her
parents or who is either married or has borne a child may give effective
consent to medical services without the consent of any other person.

The notification statute also applies to a woman for whom a guardian or
conservator has been appointed because of a finding of incompetency.  MDRV
144.343(2).  This portion of the statute is not challenged in this case.

4
    Subdivision 2 provides:
    "Notwithstanding the provisions of section 13.02, subdivision 8, no
abortion operation shall be performed upon an unemancipated minor . . . .
until at least 48 hours after written notice of the pending operation has
been delivered in the manner specified in subdivisions 2 to 4.
    "(a) The notice shall be addressed to the parent at the usual place of
abode of the parent and delivered personally to the parent by the physician
or an agent.
    "(b) In lieu of the delivery required by clause (a), notice shall be
made by certified mail addressed to the parent at the usual place of abode
of the parent with return receipt requested and restricted delivery to the
addressee which means postal employee can only deliver the mail to the
authorized addressee.  Time of delivery shall be deemed to occur at 12
o'clock noon on the next day on which regular mail delivery takes place,
subsequent to mailing."

5
    The Minnesota statute is the most intrusive in the Nation.  Of the 38
States that require parental participation in the minor's decision to
terminate her pregnancy, 27 make express that the participation of only one
parent is required.  An additional three States, Idaho, Tennessee, and
Utah, require an unmarried minor to notify "the parents or guardian" but do
not specify whether "parents" refers to either member of the parental unit
or whether notice to one parent constitutes constructive notice to both.
See Idaho Code MDRV 18-609(6) (1987); Tenn. Code Ann. MDRV 39-15-202(f)
(Supp. 1989); Utah Code Ann. MDRV 76-7-304(2) (1990).  In contrast,
Arkansas does require an unmarried minor to notify both parents but
provides exceptions where the second parent "cannot be located through
reasonably diligent effort," or a parent's "whereabouts are unknown," the
parent has not been in contact with the minor's custodial parent or the
minor for at least one year, or the parent is guilty of sexual abuse.  Ark.
Code Ann. 15 20-16-802, 20-16-808 (Supp. 1989).  Delaware requires the
consent only of parents who are residing in the same household; if the
minor is not living with both of her parents, the consent of one parent is
sufficient.  Del. Code. Ann. Tit. 24, MDRV 1790(b)(3) (1987).  Illinois law
does not require the consent of a parent who has deserted the family or is
not available.  Ill. Rev. Stat., ch. 38 MDRV 81-54(3) (1989).  Kentucky
requires an unmarried minor to obtain the consent of a legal guardian or
"both parents, if available," but provides that if both parents are not
available, the consent of the available parent shall suffice.  Ky. Rev.
Stat. Ann. 15 311.732(2)(a), (b) (Michie 1990).  Under Massachusetts law,
an unmarried minor need obtain the consent of only one parent if the other
parent "is unavailable to the physician within a reasonable time and in a
reasonable manner," or if the parents are divorced and the other parent
does not have custody.  Mass. Gen. Laws MDRV 112:12S (1988).  Mississippi
law requires only the consent of the parent with primary custody, care and
control of the minor if the parents are divorced or unmarried and living
apart and, in all other cases, the consent of only one parent if the other
parent is not available in a reasonable time or manner.  Miss. Code Ann.
MDRV 41-41-53(2) (Supp. 1989).  Finally, North Dakota requires only the
consent of the custodial parent if the parents are separated and divorced,
or the legal guardian if the minor is subject to guardianship.  N. D. Cent.
Code MDRV 14-02.1-03.1 (1981).

6
    Subdivision 3 provides, in part:
    "For purposes of this section, `parent' means both parents of the
pregnant woman if they are both living, one parent of the pregnant woman if
only one is living or if the second one cannot be located through
reasonably diligent effort, or the guardian or conservator if the pregnant
woman has one."

7
    Subdivision 4 provides:
    "No notice shall be required under this section if:
    "(a) The attending physician certifies in the pregnant woman's medical
record that the abortion is necessary to prevent the woman's death and
there is insufficient time to provide the required notice; or
    "(b) The abortion is authorized in writing by the person or persons who
are entitled to notice; or
    "(c) The pregnant minor woman declares that she is a victim of sexual
abuse, neglect, or physical abuse as defined in section 626.556.  Notice of
that declaration shall be made to the proper authorities as provided in
section 626.556, subdivision 3."

Under Minn. Stat. MDRV 626.556 (1988), if the minor declares that she is
the victim of abuse, the notified physician or physician's agent must
report the abuse to the local welfare or law enforcement agency within 24
hours, 15 626.556(3)(a), (3)(e), whereupon the welfare agency "shall
immediately conduct an assessment and offer protective social services for
purposes of preventing further abuses, safeguarding and enhancing the
welfare of the abused or neglected minor, and preserving family life
whenever possible."  MDRV 626.556(10)(a).  If the agency interviews the
victim, it must notify the parent of the fact of the interview at the
conclusion of the investigation unless it obtains a court order.  MDRV
626.556(10)(c).  Individuals who are subjects of the investigation have a
right of access to the record of the investigation.  MDRV 626.556(11).

8
    Subdivision 5 provides:
    "Performance of an abortion in violation of this section shall be a
misdemeanor and shall be grounds for a civil action by a person wrongfully
denied notification.  A person shall not be held liable under this section
if the person establishes by written evidence that the person relied upon
evidence sufficient to convince a careful and prudent person that the
representations of the pregnant woman regarding information necessary to
comply with this section are bona fide and true, or if the person has
attempted with reasonable diligence to deliver notice, but has been unable
to do so."

9
    Subdivision 6 provides:
    "If subdivision 2 of this law is ever temporarily or permanently
restrained or enjoined by judicial order, subdivision 2 shall be enforced
as though the following paragraph were incorporated as paragraph (c) of
that subdivision; provided, however, that if such temporary or permanent
restraining order or injunction is ever stayed or dissolved, or otherwise
ceases to have effect, subdivision 2 shall have full force and effect,
without being modified by the addition to the following substitute
paragraph which shall have no force or effect until or unless an injunction
or restraining order is again in effect.
    "(c) (i) If such a pregnant woman elects not to allow the notification
of one or both of her parents or guardian or conservator, any judge of a
court of competent jurisdiction shall, upon petition, or motion, and after
an appropriate hearing, authorize a physician to perform the abortion if
said judge determines that the pregnant women is mature and capable of
giving informed consent to the proposed abortion.  If said judge determines
that the pregnant woman is not mature, or if the pregnant woman does not
claim to be mature, the judge shall determine whether the performance of an
abortion upon her without notification of her parents, guardian, or
conservator would be in her best interests and shall authorize a physician
to perform the abortion without such notification if said judge concludes
that the pregnant woman's best interests would be served thereby.
    "(ii) Such a pregnant woman may participate in proceedings in the court
on her own behalf, and the court may appoint a guardian ad litem for her.
The court shall, however, advise her that she has a right to court
appointed counsel, and shall, upon her request, provide her with such
counsel.
    "(iii) Proceedings in the court under this section shall be
confidential and shall be given such precedence over other pending matters
so that the court may reach a decision promptly and without delay so as to
serve the best interests of the pregnant woman.  A judge of the court who
conducts proceedings under this section shall make in writing specific
factual findings and legal conclusions supporting the decision and shall
order a record of the evidence to be maintained including the judge's own
findings and conclusions.
    "(iv) An expedited confidential appeal shall be available to any such
pregnant woman for whom the court denies an order authorizing an abortion
without notification.  An order authorizing an abortion without
notification shall not be subject to appeal.  No filing fees shall be
required of any such pregnant woman at either the trial or the appellate
level.  Access to the trial court for the purposes of such a petition or
motion, and access to the appellate courts for purposes of making an appeal
from denial of the same, shall be afforded such a pregnant woman 24 hours a
day, seven days a week."

10
    Brief for Petitioner in No. 88-1309, p. 4 (hereinafter Minn. Br.); see
also id., at 8-9.

11
    "The Minnesota legislature had several purposes in mind when it amended
Minn. Stat. MDRV 144.343 in 1981.  The primary purpose was to protect the
well-being of minors by encouraging minors to discuss with their parents
the decision whether to terminate their pregnancies.  Encouraging such
discussion was intended to achieve several salutory results.  Parents can
provide emotional support and guidance and thus forestall irrational and
emotional decision-making.  Parents can also provide information concerning
the minor's medical history of which the minor may not be aware.  Parents
can also supervise post-abortion care.  In addition, parents can support
the minor's psychological well-being and thus mitigate adverse
psychological sequelae that may attend the abortion procedure."  648 F.
Supp. 756, 765-766 (Minn. 1986).

12
    The District Court's finding 59 reads as follows:
    "The court finds that a desire to deter and dissuade minors from
choosing to terminate their pregnancies also motivated the legislature.
Testimony before a legislative committee considering the proposed
notification requirement indicated that influential supporters of the
measure hoped it `would save lives' by influencing minors to carry their
pregnancies to term rather than aborting."  Id., at 766.

13
    "The court also found that a desire to dissuade minors from choosing to
terminate their pregnancies also motivated the legislature.  Finding 59,
Hodgson Appendix 25a.  This finding was based on no more than the testimony
before a legislative committee of some supporters of the act who hoped it
`would save lives.'  There is no direct evidence, however, that this was
the motive of any legislator."  Minn. Br. 4, n. 2.

14
    On January 23, 1985, the court granted partial summary judgment in
favor of defendants on several of the plaintiffs' claims, but reserved
ruling on the constitutionality of subdivision 6 as applied until after
trial.

15
    "Where the underlying notification provision is unconstitutional
because with respect to children of broken families it fails to further the
state's significant interests, however, a mature minor or minor whose best
interests are contrary to notifying the non-custodial parent is forced to
either suffer the unconstitutional requirement or submit to the burdensome
court bypass procedure.  Such a Hobson's choice fails to further any
significant interest.  Just as there must be a constitutional judicial
alternative to a notice requirement, so there must be a constitutional
notice or consent alternative to the court bypass.
    "The second reason for our conclusion that the court bypass procedure
does not save the two-parent notification requirement is that where the
parents are divorced, the minor and/or custodial parent, and not a court,
is in the best position to determine whether notifying the non-custodial
parent would be in the child's best interests.  In situations where the
minor has a good relationship with the non-custodial parent but the
custodial parent does not, there is nothing to prevent the minor from
consulting with the non-custodial parent if she so desires.  The minor and
custodial parent, however, by virtue of their major interest and superior
position, should alone have the opportunity to decide to whom, if anyone,
notice of the minor's abortion decision should be given."  App. to Pet. for
Cert. in No. 88-1125, pp. 68a-69a (citations omitted).

16
    The panel did not reach the question of the constitutionality or
severability of the mandatory 48-hour waiting period.  A concurring judge
agreed with the panel that a requirement that a pregnant minor seeking an
abortion notify a noncustodial parent could not withstand constitutional
scrutiny and was not saved by a court bypass procedure.  Id., at 72a.

17
    853 F. 2d, at 1460, quoting from Justice Powell's opinion in Bellotti
v. Baird, 443 U. S. 622, 640-641 (1979) (Bellotti II).

18
    The court also suggested that the statute furthered the "state interest
in providing an opportunity for parents to supply essential medical and
other information to a physician," 853 F. 2d, at 1461, but the State has
not argued here that that interest provides an additional basis for
upholding the statute.

19
    The court also rejected the argument that the statute violated the
Equal Protection Clause by singling out abortion as the only pregnancy-
related medical procedure requiring notification.  Id., at 1466.  The equal
protection challenge is not renewed here.

20
    See n. 14, supra.

21
    The District Court found:
    "During the period for which statistics have been compiled, 3,573
bypass petitions were filed in Minnesota courts.  Six petitions were
withdrawn before decision.  Nine petitions were denied and 3,558 were
granted."  Finding No. 55, 648 F. Supp., at 765.

22
    Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 72-75
(1976); Bellotti v. Baird, 428 U. S. 132 (1976) (Bellotti I); Bellotti II,
443 U. S. 662 (1979); H. L. v. Matheson, 450 U. S. 398 (1981); Akron v.
Akron Center for Reproductive Health, Inc., 462 U. S. 416, 439-442 (1983);
and Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.
S. 476, 490-493 (1983); id., at 505 (O'Connor, J., concurring in judgment
in part and dissenting in part).

23
    The Utah statute reviewed in Matheson required the physician to
"[n]otify, if possible, the parents or guardian of the woman upon whom the
abortion is to be performed."  Utah Code Ann. MDRV 76-7-304(2) (1990).
Unlike the Minnesota statute under review today, the Utah statute did not
define the term "parents."  The statute is ambiguous as to whether the term
refers to each parent individually or rather to the parental unit, which
could be represented by either the mother or the father, and neither the
argument nor the discussion in Matheson indicated that notice to both
parents was required.  State law, to the extent it addresses the issue, is
to the contrary: Although Utah law provides that a noncustodial parent
retains the right to consent to marriage, enlistment, and the performance
of major medical or surgical treatment, the right to notice of the minor's
abortion is not among the parent's specific residual rights and duties.
Utah Code Ann. MDRV 78-3a-2(13) (Supp. 1989).

24
    The figures are not dissimilar to those throughout the Nation.  See, e.
g., Brief for American Psychological Association et al. as Amici Curiae
12-13 ("It is estimated that by age 17, 70 percent of white children born
in 1980 will have spent at least some time with only one parent, and 94
percent of black children will have lived in one-parent homes") (citing
Hofferth, Updating Children's Life Course, 47 J. Marriage and Fam. 93
(1985)).

25
    "Studies indicating that family violence occurs in two million families
in the United States substantially underestimate the actual number of such
families.  In Minnesota alone, reports indicate that there are an average
of 31,200 incidents of assault on women by their partners each year.  Based
on these statistics, state officials suggest that the `battering' of women
by their partners `has come to be recognized as perhaps the most frequently
committed violent crime in the state' of Minnesota.  These numbers do not
include incidents of psychological or sexual abuse, low-level physical
abuse, abuse of any sort of the child of a batterer, or those incidents
which are not reported.  Many minors in Minnesota live in fear of violence
by family members; many of them are, in fact, victims of rape, incest,
neglect and violence.  It is impossible to accurately assess the magnitude
of the problem of family violence in Minnesota because members of
dysfunctional families are characteristically secretive about such matters
and minors are particularly reluctant to reveal violence or abuse in their
families.  Thus the incidence of such family violence is dramatically
underreported."  648 F. Supp., at 768-769.

26
    "Minors who are victims of sexual or physical abuse often are reluctant
to reveal the existence of the abuse to those outside the home.  More
importantly, notification to government authorities creates a substantial
risk that the confidentiality of the minor's decision to terminate her
pregnancy will be lost.  Thus, few minors choose to declare they are
victims of sexual or physical abuse despite the prevalence of such abuse in
Minnesota, as elsewhere."  Id., at 764.

27
    As one of the guardians ad litem testified, "We have had situations
reported to me by my other guardians as well as teenagers that I talked to
myself who have said that they will consider telling one parent, usually
mom, sometimes dad, but since they would have to go to court anyway,
because they are absolutely sure they don't want the other parent to know,
they don't tell either one."  App. 239 (Testimony of Susanne Smith).

28
    See n. 21, supra.

29
    One testified that minors found the bypass procedure "a very
nerveracking experience," Finding 60, 648 F. Supp., at 766; another
testified that the minor's "level of apprehension is twice what I normally
see in court."  Ibid.  A Massachusetts judge who heard similar petitions in
that State expressed the opinion that "going to court was `absolutely'
traumatic for minors . . . at a very, very difficult time in their lives."
Ibid.  One judge stated that he did not "perceive any useful public purpose
to what I am doing in these cases" and that he did not "see anything that
is being accomplished that is useful to anybody."  Testimony of Gerald C.
Martin, App. in No. 86-5423 (CA8), pp. A-488--A-489.
    The public defenders and guardians ad litem gave similar testimony.
See Testimony of Cynthia Daly (public defender) App. 187 (bypass "was
another hoop to jump through and a very damaging and stress-producing
procedure that didn't do any good"); Testimony of Susanne Smith (guardian
ad litem), id., at 234 ("The teenagers that we see in the guardian's office
are very nervous, very scared.  Some of them are terrified about court
processes.  They are often exhausted. . . .  They are upset about and tell
us that they are upset about the fact that they have to explain very
intimate details of their personal lives to strangers.  They talk about
feeling that they don't belong in the court system, that they are ashamed,
embarrassed and somehow that they are being punished for the situation they
are in"); Testimony of Heather Sweetland (public defender) App. in No.
86-5423 (CA8), p. A-585 ("Most of the women that are my clients in these
hearings are scared . . .  Some of them will relax slightly but the
majority of them are very nervous").

Doctor Hodgson, one of the plaintiffs in this case, testified that when her
minor patients returned from the court process, "some of them are wringing
wet with perspiration.  They're markedly relieved, many of them.
They--they dread the court procedure often more than the actual abortion
procedure.  And it--it's frequently necessary to give them a sedative of
some kind beforehand."  App. 468.

30
    According to the testimony at trial, parents who participated in the
bypass procedure--many of whom had never before been in court--were "real
upset" about having to appear in court, id., at 167, and were "angry, they
were worried about their kid and they were nervous too."  Id., at 186.

31
    "Properly understood . . . 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
participation in a free society meaningful and rewarding."  Bellotti II,
443 U. S., at 638-639 (opinion of Powell, J.).

See also Stanford v. Kentucky, 492 U. S. ----, ---- (1989) (Brennan, J.,
dissenting); Thompson v. Oklahoma, 487 U. S. 815, 825-826, n. 23 (1988)
(plurality opinion).

32
    Under common law principles, one parent has authority to act as agent
for the other in matters of their child's upbringing and education.  See E.
Spencer, Law of Domestic Relations 432 (1911); T. Reeve, Law of Baron and
Femme 295 (1816).

33
    "Certainly the safeguarding of the home does not follow merely from the
sanctity of property rights.  The home derives its pre-eminence as the seat
of family life.  And the integrity of that life is something so fundamental
that it has been found to draw to its protection the principles of more
than one explicitly granted Constitutional right."  Poe v. Ullman, 367 U.
S. 497, 551-552 (1961) (Harlan, J., dissenting).

Far more than contraceptives, at issue in Poe and Griswold v. Connecticut,
381 U. S. 479 (1965), the married couple has a well-recognized interest in
protecting the sanctity of their communications from undue interference by
the State.  See, e. g., Stein v. Bowman, 13 Pet. 209, 223 (1839) ("This
rule is founded upon the deepest and soundest principles of our nature.
Principles which have grown out of those domestic relations, that
constitute the basis of civil society; and which are essential to the
enjoyment of that con fidence which should subsist between those who are
connected by the near est and dearest relations of life.  To break down or
impair the great principles which protect the sanctities of husband and
wife, would be to destroy the best solace of human existence"); 2 W. Best,
Principles of Law of Evidence 994-995 (1st Am. ed. 1876); 1 S. Greenleaf,
Law of Evidence 286-287 (12th ed. 1866); 1 M. Phillips, Law of Evidence
69-80 (3d ed. 1849).

34
    The record contains the telephone training manual of one clinic which
contemplates that notification will be made on the date the patient
contacts the clinic to arrange an abortion so that the appointment can be
scheduled for a few days later.  Since that clinic typically has a 1- to
2-day backlog, App. 146-147, the statutory waiting period creates little
delay.

35
    Akron v. Akron Center for Reproductive Health, Inc., 462 U. S., at 449,
upon which the plaintiffs rely, is not to the contrary.  There we
invalidated a provision that required that mature women, capable of
consenting to an abortion, wait 24 hours after giving consent before
undergoing an abortion.  The only legitimate state interest asserted was
that the "woman's decision be informed."  Id., at 450.  We decided that "if
a woman, after appropriate counseling, is prepared to give her written
informed consent and proceed with the abortion, a State may not demand that
she delay the effectuation of that decision."  Id., at 450-451.  By
contrast, in this case, the State asserts a legitimate interest in
protecting minor women from their own immaturity.  As we explain in the
text, the right of the minor to make an informed decision to terminate her
pregnancy is not defeated by the 48-hour waiting period.  It is significant
that the statute does not impose a waiting period if a substitute competent
decisionmaker-- a parent or court--gives affirmative consent to the
abortion.

36
    The most common reason for not notifying the second parent was that
that parent was a child or spouse-batterer, App. at 204, and notification
would have provoked further abuse.  For example, Judge Allen Oleisky, whose
familiarity with the Minnesota statute is based on his having heard over
1,000 petitions from minors, id., at 154, testified that battering is a
frequent crime in Minnesota, that parents seek an exemption from the
notification requirement because they have been battered or are afraid of
assault, and that notification of the father would "set the whole thing off
again in some cases."  Id., at 166-167.  See also id., at 237, 245, 339.

That testimony is confirmed by the uncontradicted testimony of one of
plaintiffs' experts that notice of a daughter's pregnancy "would absolutely
enrage [a batterer].  It would be much like showing a red cape to a bull.
That kind of information just plays right into his worst fears and his most
vulnerable spots.  The sexual jealousy, his dislike of his daughter going
out with anybody else, would make him very angry and would probably create
severe abuse as well as long term communication difficulties."  Id., at 194
(Testimony of Lenore Walker).

37
    Justice Kennedy recognizes that parental rights are coupled with
parental responsibilities, post, at 4, and that "a State [may] legislate on
the premise that parents, as a general rule, are interested in their
children's welfare and will act in accord with it," post, at 6.  That, of
course, is precisely our point.  What the State may not do is legislate on
the generalized assumptions that a parent in an intact family will not act
in his or her child's best interests and will fail to involve the other
parent in the child's upbringing when that involvement is appropriate.

38
    See, e. g., Brief for American Psychological Association et al. as
Amici Curiae 6, n. 8 (state law typically allows a minor parent--whatever
her age--to consent to the health care of her child); Brief for the
American College of Obstetricians and Gynecologists et al. as Amici Curiae
25 ("In areas that do not deal with sexuality or substance abuse, states
require, at most, a single parent's consent before performing medical
procedures on a minor").





Subject: 88-1125 & 88-1309--CONCUR, HODGSON v. MINNESOTA

 


    SUPREME COURT OF THE UNITED STATES


Nos. 88-1125 and 88-1309


JANE HODGSON, et al., PETITIONERS
v.
88-1125
MINNESOTA et al.


MINNESOTA, et al., PETITIONERS
v.
88-1309
JANE HODGSON et al.


on writs of certiorari to the united states court of appeals for the eighth
circuit

[June 25, 1990]



    Justice O'Connor, concurring in part and concurring in the judgment in
part.
I
    I join all but Parts III and VIII of Justice Stevens' opinion.  While I
agree with some of the central points made in Part III, I cannot join the
broader discussion.  I agree that the Court has characterized "[a] woman's
decision to beget or to bear a child [as] a component of her liberty that
is protected by the Due Process Clause of the Fourteenth Amendment to the
Constitution."  Ante, at 12.  See, e. g., Carey v. Population Services
International, 431 U. S. 678, 685, 687 (1977); Griswold v. Connecticut, 381
U. S. 479, 502-503 (1965) (White, J., concurring in judgment).  This Court
extended that liberty interest to minors in Bellotti v. Baird, 443 U. S.
622, 642 (1979) (Bellotti II), and Planned Parenthood of Central Missouri
v. Danforth, 428 U. S. 52, 74 (1976), albeit with some important
limitations: "[P]arental notice and consent are qualifications that
typically may be imposed by the State on a minor's right to make important
decisions.  As immature minors often lack the ability to make fully
informed choices that take account of both immediate and long-range
consequences, a State reasonably may determine that parental consultation
often is desirable and in the best interest of the minor."  Bellotti II,
supra, at 640-641; see also H. L. v. Matheson, 450 U. S. 398, 423 (1981)
(Stevens, J., concurring in judgment); cf. Thompson v. Oklahoma, 487 U. S.
815, 835 (1988) ("Inexperience, less education, and less intelligence make
the teenager less able to evaluate the consequences of his or her conduct
while at the same time he or she is much more apt to be motivated by mere
emotion or peer pressure than is an adult"); Stanford v. Kentucky, 492 U.
S. ----, ---- (1989) (Brennan, J., dissenting) (slip op., at 13) ("[M]inors
are treated differently from adults in our laws, which reflects the simple
truth derived from communal experience, that juveniles as a class have not
the level of maturation and responsibility that we presume in adults and
consider desirable for full participation in the rights and duties of
modern life").
    It has been my understanding in this area that "[i]f the particular
regulation does not `unduly burde[n]' the fundamental right, . . . then our
evaluation of that regulation is limited to our determination that the
regulation rationally relates to a legitimate state purpose."  Akron v.
Akron Center for Reproductive Health, Inc., 462 U. S. 416, 453 (1983)
(O'Connor, J., dissenting); see also Webster v. Reproductive Health
Services, 492 U. S. ----, ---- (1989) (O'Connor, J., concurring in part and
concurring in judgment) (slip op., at 9).  It is with that understanding
that I agree with Justice Stevens' statement that the "statute cannot be
sustained if the obstacles it imposes are not reasonably related to
legitimate state interests.  Cf. Turner v. Safley, 482 U. S., at 97; Carey
v. Population Services International 431 U. S., at 704 (opinion of Powell,
J.); Doe v. Bolton, 410 U. S. 179, 194-195, 199 (1973)."  Ante, at 15.
    I agree with Justice Stevens that Minnesota has offered no sufficient
justification for its interference with the family's decisionmaking
processes created by subdivision 2--two-parent notification.  Subdivision 2
is the most stringent notification statute in the country.  See ante, at 3,
n. 5.  The only other state that defines the generic term "parents," see,
e. g., Tenn. Code Ann. MDRV 36-1-201, Art. III (6) (Supp. 1989) (adoption
statute) (" `Parents' means either the singular or plural of the word
`parent' "); see also ante, at 15, n. 23, as "both parents" is Arkansas,
and that statute provides for numerous exceptions to the two-parent
notification requirement and permits bypassing notification where
notification would not be in the best interests of the minor.  See Ark.
Code 15 20-16-802, 20-16-804, 20-16-808 (Supp. 1989).
    The Minnesota exception to notification for minors who are victims of
neglect or abuse is, in reality, a means of notifying the parents.  As
Justice Stevens points out, see ante, at 5, n. 7, to avail herself of the
neglect or abuse exception, the minor must report the abuse.  A report
requires the welfare agency to immediately "conduct an assessment."  Minn.
Stat. MDRV 626.556(10)(a) (1988).  If the agency interviews the victim, it
must notify the parent of the fact of the interview; if the parent is the
subject of an investigation, he has a right of access to the record of the
investigation.  15 626.556 (10)(c); 626.556(11); see also Tr. of Oral Arg.
19 ("[I]t turns out that the reporting statute in Minnesota requires that
after it's reported to the welfare department, the welfare department has
to do an assessment and tell the parents about the assessment.  This could
all be done in a time frame even before the abortion occurs").  The
combination of the abused minor's reluctance to report sexual or physical
abuse, see ante, at 18, n. 26, with the likelihood that invoking the abuse
exception for the purpose of avoiding notice will result in notice, makes
the abuse exception less than effectual.
    Minnesota's two-parent notice requirement is all the more unreasonable
when one considers that only half of the minors in the State of Minnesota
reside with both biological parents.  See ante, at 16.  A third live with
only one parent.  Ibid.  Given its broad sweep and its failure to serve the
purposes asserted by the State in too many cases, I join the Court's
striking of subdivision 2.
II
    In a series of cases, this Court has explicitly approved judicial
bypass as a means of tailoring a parental consent provision so as to avoid
unduly burdening the minor's limited right to obtain an abortion.  See
Bellotti v. Baird, 428 U. S. 132, 147-148 (1976); Planned Parenthood of
Central Missouri v. Danforth, 428 U. S. 52 (1976); Bellotti II, 443 U. S.,
at 642-644.  In Danforth, the Court stated that the


"primary constitutional deficiency lies in [the notification statute's]
imposition of an absolute limitation on the minor's right to obtain an
abortion. . . . [A] materially different constitutional issue would be
presented under a provision requiring parental consent or consultation in
most cases but providing for prompt (i) judicial resolution of any
disagreement between the parent and the minor, or (ii) judicial
determination that the minor is mature enough to give an informed consent
without parental concurrence or that abortion in any event is in the
minor's best interest.  Such a provision would not impose parental approval
as an absolute condition upon the minor's right but would assure in most
instances consultation between the parent and child." 428 U. S., at 90-91.

Subdivision 6 passes constitutional muster because the interference with
the internal operation of the family required by subdivision 2 simply does
not exist where the minor can avoid notifying one or both parents by use of
the bypass procedure.

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




Subject: 88-1125 & 88-1309--CONCUR/DISSENT, HODGSON v. MINNESOTA

 


    SUPREME COURT OF THE UNITED STATES


Nos. 88-1125 and 88-1309


JANE HODGSON, et al., PETITIONERS
v.
88-1125
MINNESOTA et al.



MINNESOTA, et al., PETITIONERS
v.
88-1309
JANE HODGSON et al.


on writs of certiorari to the united states court of appeals for the eighth
circuit

[June 25, 1990]



    Justice Marshall, with whom Justice Brennan and Justice Blackmun join,
concurring in part, concurring in the judgment in part, and dissenting in
part.

    I concur in Parts I, II, IV, and VII of Justice Stevens' opinion for
the Court in No. 88-1309. {1}  Although I do not believe that the
Constitution permits a State to require a minor to notify or consult with a
parent before obtaining an abortion, compare ante, at 24, with infra, at
3-12, I am in substantial agreement with the remainder of the reasoning in
Part V of the Court's opinion.  For the reasons stated by Justice Stevens,
ante, at 28-34, Minnesota's two-parent notification requirement is not even
reasonably related to a legitimate state interest.  Therefore, that
requirement surely would not pass the strict scrutiny applicable to
restrictions on a woman's fundamental right to have an abortion.
    I dissent from the judgment of the Court in No. 89-1125, however, that
the judicial bypass option renders the parental notification and 48-hour
delay requirements constitutional.  See post, at 3-4 (opinion of O'Connor,
J.); post, at 17-21 (opinion of Kennedy, J.).  The bypass procedure cannot
save those requirements because the bypass itself is unconstitutional both
on its face and as applied.  At the very least, this scheme substantially
burdens a woman's right to privacy without advancing a compelling state
interest.  More significantly, in some instances it usurps a young woman's
control over her own body by giving either a parent or a court the power
effectively to veto her decision to have an abortion.

I
    This Court has consistently held since Roe v. Wade, 410 U. S. 113
(1973), that the constitutional right of privacy "is broad enough to
encompass a woman's decision whether or not to terminate her pregnancy."
Id., at 153.  We have also repeatedly stated that "[a] woman's right to
make that choice freely is fundamental."  Thornburgh v. American College of
Obstetricians and Gynecologists, 476 U. S. 747, 772 (1986).  Accord Akron
v. Akron Center for Reproductive Health, Inc., 462 U. S. 416, 420, n. 1
(1983); Roe, supra, at 155.  As we reiterated in American College of
Obstetricians and Gynecologists, supra, "Few decisions are more personal
and intimate, more properly private, or more basic to individual dignity
and autonomy, than a woman's decision--with the guidance of her physician
and within the limits specified in Roe--whether to end her pregnancy."
Id., at 772.  Accordingly, we have subjected state laws limiting that right
to the most exacting scrutiny, requiring a State to show that such a law is
narrowly drawn to serve a compelling interest.  Roe, supra, at 155; Akron
Center for Reproductive Health, supra, at 427.  Only such strict judicial
scrutiny is sufficiently protective of a woman's right to make the
intensely personal decision whether to terminate her pregnancy.
    Roe remains the law of the land.  See Webster v. Repro ductive Health
Services, 492 U. S. ----, ---- (1989) (plurality opinion); id., at ----
(O'Connor, J., concurring in part and concurring in judgment); id., at ----
(Blackmun, J., concurring in part and dissenting in part).  Indeed, today's
decision reaffirms the vitality of Roe, as five Justices have voted to
strike down a state law restricting a woman's right to have an abortion.
Accordingly, to be constitutional, state restrictions on abortion must meet
the rigorous test set forth above.

II
    I strongly disagree with the Court's conclusion that the State may
constitutionally force a minor woman either to notify both parents (or in
some cases only one parent  {2}) and then wait 48 hours before proceeding
with an abortion, or disclose her intimate affairs to a judge and ask that
he grant her permission to have an abortion.  See post, at 17-21 (opinion
of Kennedy, J.).  Cf. ante, at 27-28 (opinion of Stevens, J.) (finding that
requiring minor to wait 48 hours after notifying one parent reasonably
furthers legitimate state interest).  First, the parental notification and
delay requirements significantly restrict a young woman's right to
reproductive choice.  I base my conclusion not on my intuition about the
needs and attitudes of young women, but on a sizable and impressive
collection of empirical data documenting the effects of parental
notification statutes and of delaying an abortion.  Second, the burdensome
restrictions are not narrowly tailored to serve any compelling state
interest.  Finally, for the reasons discussed in Part III, infra, the
judicial bypass procedure does not save the notice and delay requirements.

A
    Neither the scope of a woman's privacy right nor the magnitude of a
law's burden is diminished because a woman is a minor.  Bellotti v. Baird,
443 U. S. 622, 642 (1979) (Bellotti II) (plurality opinion); Planned
Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 74 (1976).
Rather, a woman's minority status affects only the nature of the State's
interests.  Although the Court considers the burdens that the two-parent
notification requirement imposes on a minor woman's exercise of her right
to privacy, ante, at 29-30, and n. 36, it fails to recognize that forced
notification of only one parent also significantly burdens a young woman's
right to have an abortion, see post, at 2-3 (opinion of O'Connor, J.);
post, at 12-17 (opinion of Kennedy, J.).  Cf. ante, at 27-28 (opinion of
Stevens, J.).
    A substantial proportion of pregnant minors voluntarily consult with a
parent regardless of the existence of a notification requirement.  See, e.
g., Torres, Forrest, & Eisman, Telling Parents: Clinic Policies and
Adolescents' Use of Family Planning and Abortion Services, 12 Family
Planning Perspectives 284, 287, 288, 290 (1980) (51% of minors discussed
abortion with parents in the absence of a parental consent or notification
requirement).  Minors 15 years old or younger are even more likely
voluntarily to discuss the abortion decision with their parents.  Id., at
290 (69% of such minors voluntarily discuss abortion with parents).  For
these women, the notification requirement by itself does not impose a
significant burden.  But for those young women who would choose not to
inform their parents, the burden is evident: the notification requirement
destroys their right to avoid disclosure of a deeply personal matter.  Cf.
Whalen v. Roe, 429 U. S. 589, 599-600 (1977).
    A notification requirement can also have severe physical and
psychological effects on a young woman.  First, forced notification of one
parent, like forced notification of both parents, can be extremely
traumatic for a young woman, depending on the nature of her relationship
with her parents.  Cf. ante, at 29-30, and n. 36.  The disclosure of a
daughter's intention to have an abortion often leads to a family crisis,
characterized by severe parental anger and rejection.  Osofsky & Osofsky,
Teenage Pregnancy: Psychosocial Considerations, 21 Clinical Obstetrics and
Gynecology 1161, 1164-1165 (1978).  The impact of any notification
requirement is especially devastating for minors who live in fear of
physical, psychological, or sexual abuse.  See, e. g., Clary, Minor Women
Obtaining Abortions: A Study of Parental Notification in a Metropolitan
Area, 72 American J. of Pub. Health 283, 284 (1982) (finding that many
minors chose not to inform parents voluntarily because of fear of negative
consequences such as physical punishment or other retaliation).  See also
Tr. 911 (testimony of Dr. Elissa Benedek) (stating that usually minors
accurately predict parental reaction to news about daughters' pregnancies).
Cf. ante, at 17-18, and n. 25.  Certainly, child abuse is not limited to
families with two parents.
    Second, the prospect of having to notify a parent causes many young
women to delay their abortions, thereby increasing the health risks of the
procedure.  See Cates, Schulz, & Grimes, The Risks Associated with Teenage
Abortion, 309 New England J. of Medicine 621, 623 (1983) (finding that for
women 19 years old and younger, the number of deaths per 100,000 abortions
was 0.2 for the first 8 weeks of pregnancy, 0.6 for weeks 9-12, 3.4 for
weeks 13-16, and 7.8 for week 17 and after).  See also H. L. v. Matheson,
450 U. S. 398, 439 (1981) (Marshall, J., dissenting).  The risks posed by
this delay are especially significant because adolescents already delay
seeking medical care until relatively late in their pregnancies, when risks
are higher.  See 1 National Research Council, Risking the Future:
Adolescent Sexuality, Pregnancy, and Childbearing 114 (C. Hayes ed. 1987).
    In addition, a notification requirement compels many minors seeking an
abortion to travel to a State without such a requirement to avoid notifying
a parent.  Cartoof & Klerman, Parental Consent for Abortion: Impact of the
Massachusetts Law, 76 American J. of Pub. Health 397, 399 (1986) (finding
that one-third of minors seeking abortions traveled outside of State to
avoid Massachusetts' parental notice requirement).  Other women may resort
to the horrors of self-abortion or illegal abortion rather than tell a
parent.  Torres, Forrest, & Eisman, supra, at 288 (9% of minors attending
family planning clinics said they would have a self-induced or illegal
abortion rather then tell a parent); H. L. v. Matheson, supra, at 439, and
n. 26 (Marshall, J., dissenting).  See also Greydanus & Railsback, Abortion
in Adolescence, 1 Seminars in Adolescent Medicine 213, 214 (1985) (noting
100-times greater death rate for women who obtain illegal abortions than
for those who obtain legal ones). {3}  Still others would forgo an abortion
entirely and carry the fetus to term, Torres, Forrest, & Eisman, supra, at
289, 291 (9% of minors in family planning clinics said they would carry
fetus to term rather than inform parents of decision to abort), subjecting
themselves to the much greater health risks of pregnancy and childbirth and
to the physical, psychological, and financial hardships of unwanted
motherhood.  See Greydanus & Railsback, supra, at 214 (noting that minor's
overall risk of dying from childbirth is over nine times greater than risk
of dying from legal abortion); Lewis, Minors' Competence to Consent to
Abortion, 42 American Psychologist 84, 87 (1987) ("[P]regnancy continuation
poses far greater psychological, physical, and economic risks to the
adolescent than does abortion") (citation omitted).  See also Bellotti II,
443 U. S., at 642 (plurality opinion) ("[C]onsidering her probable
education, employment skills, financial resources, and emotional maturity,
unwanted motherhood may be exceptionally burdensome for a minor").
Clearly, then, requiring notification of one parent significantly burdens a
young woman's right to terminate her pregnancy.

B
    The 48-hour delay after notification further aggravates the harm caused
by the pre-notification delay that may flow from a minor's fear of
notifying a parent.  Moreover, the 48-hour delay burdens the rights of all
minors, including those who would voluntarily consult with one or both
parents. {4}  Justice Stevens' assertion that the 48-hour delay "imposes
only a minimal burden," ante, at 28; see also post, at 17 (opinion of
Kennedy, J.), ignores the increased health risks and costs that this delay
entails.  The District Court specifically found as a matter of fact that
"[d]elay of any length in performing an abortion increases the statistical
risk of mortality and morbidity."  648 F. Supp. 756, 765 (Minn 1986).  Even
a brief delay can have a particularly detrimental impact if it pushes the
abortion into the second trimester, when the operation is substantially
more risky and costly.  Ibid.  See also C. Tietze & S. Henshaw, Induced
Abortion: A World Review 1986, pp. 103-104 (6th ed. 1986) (rate of major
complications nearly doubles in the week following the end of the first
trimester and increases significantly thereafter).  Moreover, the District
Court found that the 48-hour delay "frequently is compounded by scheduling
factors such as clinic hours, transportation requirements, weather, a
minor's school and work commitments, and sometimes a single parent's family
and work commitments," often resulting in an effective delay of a week or
more.  648 F. Supp., at 765. {5}  The increased risk caused by a delay of
that magnitude, the District Court found, is statistically significant at
any point in the pregnancy.  Ibid.  Certainly no pregnant woman facing
these heightened risks to her health would dismiss them as "minimal."  {6}

C
    Because the parental notification and delay requirements burden a young
woman's right freely to decide whether to terminate her pregnancy, the
State must show that these requirements are justified by a compelling state
interest and are closely tailored to further that interest.  The main
purpose of the notification requirement is to "protect the well-being of
minors by encouraging minors to discuss with their parents the decision
whether to terminate their pregnancies"  Id., at 766.  The 48-hour delay,
in turn, is designed to provide parents with adequate time to consult with
their daughters.  Ante, at 27 (opinion of Stevens, J.); post, at 17
(opinion of Kennedy, J.).  As Justice Stevens states, such consultation is
intended to ensure that the minor's decision is "knowing and intelligent."
Ante, at 27.  I need not determine whether the State's interest ultimately
outweighs young women's privacy interests, however, because the strictures
here are not closely tailored to further the State's asserted goal.
    For the many young women who would voluntarily consult with a parent
before having an abortion, see supra, at 4, the notification and delay
requirements are superfluous, and so do not advance the State's interest.
The requirements affect only those women who would not otherwise notify a
parent.  But compelled notification is unlikely to result in productive
consultation in families in which a daughter does not feel comfortable
consulting her parents about intimate or sexual matters.  See Melton, Legal
Regulation of Adolescent Abortion: Unintended Effects, 42 American
Psychologist 79, 81 (1987) (stating that in many families, compelled
parental notification is unlikely to result in meaningful discussion about
the daughter's predicament); Tr. 1357-1358 (testimony of Dr. Steven Butzer)
(stating that involuntary disclosure is disruptive to family and has
"almost universally negative" effects, in accord with minor's
expectations).  Moreover, in those families with a history of child abuse,
a pregnant minor forced to notify a parent is more likely to be greeted by
physical assault or psychological harrassment than open and caring
conversation about her predicament.  See Tr. 316 (testimony of Dr. Lenore
Walker) (stating that forced notification in dysfunctional families is
likely to sever communication patterns and increase the risk of violence);
H. L. v. Matheson, 450 U. S., at 446 (Marshall, J., dissenting).  Forced
noti fication in such situations would amount to punishing the daughter for
the lack of a stable and communicative family environment, when the blame
for that situation lies principally, if not entirely, with the parents.
Parental notification in the less-than-ideal family, therefore, would not
lead to an informed decision by the minor. {7}
    The State also claims that the statute serves the interest of
protecting parents' independent right "to shape the[ir] child[ren]'s values
and life style[s]" and "to determine and strive for what they believe to be
best for their children."  Brief for Petitioners in No. 88-1309, p. 26.  If
this is so, the statute is surely underinclusive, as it does not require
parental notification where the minor seeks medical treatment for
pregnancy, venereal disease, or alcohol and other drug abuse.  See Minn.
Stat. MDRV 144.343(1) (1988).  Are we to believe that Minnesota parents
have no interest in their children's well-being in these other contexts?
    In any event, parents' right to direct their children's upbringing is a
right against state interference with family matters.  See, e. g., Prince
v. Massachusetts, 321 U. S. 158, 166 (1944) (noting that this Court's
decisions "have respected the private realm of family life which the state
cannot enter").  See also Wisconsin v. Yoder, 406 U. S. 205, 232 (1972);
Pierce v. Society of Sisters, 268 U. S. 510, 534-535 (1925).  Yet,
ironically, the State's requirements here affirmatively interfere in family
life by trying to force families to conform to the State's archetype of the
ideal family.  Cf. Moore v. East Cleveland, 431 U. S. 494, 506 (1977)
("[T]he Constitution prevents [the state] from standardizing its
children--and its adults--by forcing all to live in certain narrowly
defined family patterns"); ante, at 31.  It is a strange constitutional
alchemy that would transform a limitation on state power into a
justification for governmental intrusion into family interactions.
Moreover, as a practical matter, "state intervention is hardly likely to
resurrect parental authority that the parents themselves are unable to
preserve."  H. L. v. Matheson, supra, at 448 (Marshall, J., dissenting).
See also Planned Parenthood of Central Mo., 428 U. S., at 75 (finding it
unlikely that parental veto power over abortion "will enhance parental
authority or control where the minor and the nonconsenting parent are so
fundamentally in conflict and the very existence of the pregnancy already
has fractured the family structure").
    Even if the State's interest is construed as merely the facilitation of
the exercise of parental authority, the notifi cation and delay
requirements are not narrowly drawn.  Parental authority is not limitless.
Certainly where parental involvement threatens to harm the child, the
parent's au thority must yield.  Prince v. Massachusetts, supra, at 169-
170; H. L. v. Matheson, supra, at 449 (Marshall, J., dissenting).  Yet the
notification and delay requirements facilitate the exercise of parental
authority even where it may physically or psychologically harm the child.
See supra, at 9-10.
    Furthermore, the exercise of parental authority in some instances will
take the form of obstructing the minor's decision to have an abortion.  A
parent who objects to the abortion, once notified, can exert strong
pressure on the minor--in the form of stern disapproval, withdrawal of
financial support, or physical or emotional abuse--to block her from
getting an abortion.  See Bellotti II, 443 U. S., at 647 (plurality
opinion) ("[M]any parents hold strong views on the subject of abortion, and
young pregnant minors, especially those living at home, are particularly
vulnerable to their parents' efforts to obstruct . . . an abortion").  See
also H. L. v. Matheson, 450 U. S., at 438-439 (Marshall, J., dissenting).
In such circumstances, the notification requirement becomes, in effect, a
consent requirement.  As discussed below, infra, at 13, the State may not
permit any person, including a parent, to veto a woman's decision to
terminate her pregnancy.  Because the notification and delay requirements
effectively give parents the opportunity to exercise an unconstitutional
veto in some situations, those requirements are not narrowly tailored to
the State's interest in facilitating legitimate exercises of parental
authority.
III
    The parental notification and 48-hour delay requirements, then, do not
satisfy the strict scrutiny applicable to laws restricting a woman's
constitutional right to have an abortion.  The judicial bypass procedure
cannot salvage those requirements because that procedure itself is
unconstitutional.

A
    The State argues that the bypass procedure saves the notification and
delay requirements because it provides an alternative way to obtain a legal
abortion for minors who would be harmed by those requirements.  This Court
has upheld a one-parent consent requirement where the State provided an
alternative judicial procedure " `whereby a pregnant minor [could]
demonstrate that she [was] sufficiently mature to make the abortion
decision herself or that, despite her im maturity, an abortion would be in
her best interests.' "  Planned Parenthood Assn. of Kansas City, Inc. v.
Ash- croft, 462 U. S. 476, 491 (1983) (opinion of Powell, J.) (quoting
Akron Center for Reproductive Health, 462 U. S., at 439-440).
    I continue to believe, however, that a judicial bypass procedure of
this sort is itself unconstitutional because it effectively gives a judge
"an absolute veto over the decision of the physician and his patient."
Planned Parenthood Assn. of Kansas City, supra, at 504 (Blackmun, J.,
concurring in part and dissenting in part); see also Bellotti II, 443 U.
S., at 655 (Stevens, J., concurring in judgment) ("The provision of an
absolute veto to a judge . . . is to me particularly troubling. . . .  It
is inherent in the right to make the abortion decision that the right may
be exercised without public scrutiny and in defiance of the contrary
opinion of the sovereign or other third parties") (footnote omitted);
Planned Parenthood of Central Mo., supra, at 74 ("[T]he State does not have
the constitutional authority to give a third party an absolute, and
possibly arbitrary, veto over the decision of the physician and his patient
to terminate the patient's pregnancy, regardless of the reason for
withholding the consent").  No person may veto any minor's decision, made
in consultation with her physician, to terminate her pregnancy.  An
"immature" minor has no less right to make decisions regarding her own body
than a mature adult.
    Minnesota's bypass provision allows a judge to authorize an abortion if
he determines either that a woman is sufficiently mature to make the
decision on her own or, if she is not sufficiently mature, that an abortion
without paren- tal notification would serve her best interests.  Minn.
Stat. MDRV 144.343(6) (1988).  Of course, if a judge refuses to authorize
an abortion, a young woman can then reevaluate whether she wants to notify
a parent.  But many women will carry the fetus to term rather than notify a
parent.  See supra, at 6.  Other women may decide to inform a parent but
then confront parental pressure or abuse so severe as to obstruct the
abortion.  For these women, the judge's refusal to authorize an abortion
effectively constitutes an absolute veto.
    The constitutional defects in any provision allowing someone to veto a
woman's abortion decision are exacer- bated by the vagueness of the
standards contained in this statute.  The statute gives no guidance on how
a judge is to determine whether a minor is sufficiently "mature" and
"capable" to make the decision on her own.  See Minn. Stat. MDRV
144.343(6)(c)(i) (1988) (judge shall authorize abortion if he "determines
that the pregnant woman is mature and capable of giving informed consent to
the proposed abortion").  Cf. Lewis, 42 American Psychologist, at 84, 87
(noting the absence of a judicial standard for assessing maturity).  The
statute similarly is silent as to how a judge is to determine whether an
abortion without parental notification would serve an immature minor's
"best interests."  MDRV 144.343(6) (c)(i) (judge shall authorize abortion
for immature minor without notification "if said judge concludes that the
pregnant woman's best interests would be served thereby").  Is the judge
expected to know more about the woman's medical needs or psychological
makeup than her doctor?  Should he consider the woman's financial and
emotional status to determine the quality of life the woman and her future
child would enjoy in this world?  Neither the record nor the Court answers
such questions.  As Justice Stevens wrote in Bellotti II, the best interest
standard "provides little real guidance to the judge, and his decision must
necessarily reflect personal and societal values and mores whose
enforcement upon the minor--particularly when contrary to her own informed
and reasonable decision--is fundamentally at odds with privacy interests
underlying the constitutional protection afforded to her decision."  443 U.
S., at 655-656 (Stevens, J., concurring in judgment).  It is difficult to
conceive of any reason, aside from a judge's personal opposition to
abortion, that would justify a finding that an immature woman's best
interests would be served by forcing her to endure pregnancy and childbirth
against her will.
B
    Even if I did not believe that a judicial bypass procedure was facially
unconstitutional, the experience of Minnesota's procedure in operation
demonstrates that the bypass pro vision before us cannot save the parental
notification and delay requirements.  This Court has addressed judicial
bypass procedures only in the context of facial challenges.  See Planned
Parenthood Assn. of Kansas City, 462 U. S., at 490-493 (opinion of Powell,
J.); Akron Center for Reproductive Health, 462 U. S., at 439-442; Bellotti
II, 443 U. S., at 643-644 (plurality opinion).  The Court has never
considered the actual burdens a particular bypass provision imposes on a
woman's right to choose an abortion.  Such consideration establishes that,
even if judges authorized every abortion sought by petitioning minors,
Minnesota's judicial bypass is far too burdensome to remedy an otherwise
unconstitutional statute.
    The District Court found that the bypass procedure imposed significant
burdens on minors.  First, "scheduling practices in Minnesota courts
typically require minors to wait two or three days between their first
contact with the court and the hearing on their petitions.  This delay may
combine with other factors to result in a delay of a week or more."  648 F.
Supp., at 763.  As noted above, supra, at 7, a delay of only a few days can
significantly increase the health risks to the minor; a week-long delay
inevitably does.  Furthermore, in several counties in Minnesota, no judge
is willing to hear bypass petitions, forcing women in those areas to travel
long distances to obtain a hearing.  648 F. Supp., at 763; Donovan, Judging
Teenagers: How Minors Fare When They Seek Court-Authorized Abortions, 15
Family Planning Perspectives 259, 264 (1983) (50% of Minnesota minors
utilizing bypass were not residents of city in which court was located);
Melton, 42 American Psychologist, at 80 ("In Minnesota, where judges in
rural counties have often recused themselves from participation in the
abortion hearings, minors sometimes have to travel a round-trip of more
than 500 miles for the hearing").  The burden of such travel, often
requiring an overnight stay in a distant city, is particularly heavy for
poor women from rural areas.  Furthermore, a young woman's absence from
home, school, or work during the time required for such travel and for the
hearing itself can jeopardize the woman's confidentiality.  See ibid.
    The District Court also found that the bypass procedure can be
extremely traumatic for young women.

    "The experience of going to court for a judicial author ization
produces fear and tension in many minors.  Minors are apprehensive about
the prospect of facing an authority figure who holds in his hands the power
to veto their decision to proceed without notifying one or both parents.
Many minors are angry and resentful at being required to justify their
decision before complete strangers.  Despite the confidentiality of the
proceeding, many minors resent having to reveal intimate details of their
personal and family lives to these strangers.  Finally, many minors are
left feeling guilty and ashamed about their lifestyle and their decision to
terminate their pregnancy.  Some mature minors and some minors in whose
best interests it is to proceed without notifying their parents are so
daunted by the judicial proceeding that they forego the bypass option and
either notify their parents or carry to term.
    "Some minors are so upset by the bypass proceeding that they consider
it more difficult than the medical procedure itself.  Indeed the anxiety
resulting from the bypass proceeding may linger until the time of the
medical procedure and thus render the latter more difficult than
necessary."  648 F. Supp., at 763-764. {8}


    Yet, despite the substantial burdens imposed by these proceedings, the
bypass is, in effect, a "rubber stamp," id., at 766 (testimony of Honorable
William Sweeney); only an extremely small number of petitions are denied,
id., at 765.  See also Melton, supra, at 80 ("Available research indicates
that judicial bypass proceedings are merely pro forma.  Although they
represent substantial intrusion on minors' privacy and take up significant
amounts of court time, there is no evidence that they promote more reasoned
decision making or screen out adolescents who may be particularly immature
or vulnerable. . . .  The hearings typically last less than 15 minutes. . .
.  Despite the complex issues involved (maturity and the best interests of
the minor), experts are rarely if ever called to testify").  The judges who
have adjudicated over 90% of the bypass petitions between 1981 and 1986
could not identify any positive effects of the bypass procedure.  See 648
F. Supp., at 766; ante, at 20, and n. 29.  The large number of women who
undergo the bypass process do not receive any sort of counseling from the
court--which is not surprising, given the court's limited role and lack of
expertise in that area.  The bypass process itself thus cannot serve the
state interest of promoting informed decisionmaking by all minors.  If the
State truly were concerned about ensuring that all minors consult with a
knowledgeable and caring adult, it would provide for some form of
counseling rather than for a judicial procedure in which a judge merely
gives or withholds his consent. {9}
    Thus, regardless of one's view of the facial validity of a bypass
procedure, Minnesota's procedure in practice imposes an excessive burden on
young women's right to choose an abortion.  Cf. Bellotti II, 443 U. S., at
655 (Stevens, J., concurring in judgment) ("[T]he need to commence judicial
proceedings in order to obtain a legal abortion would impose a burden at
least as great as, and probably greater than, that imposed on the minor
child by the need to obtain the consent of a parent").  Furthermore, the
process does not serve the State's interest of ensuring that minors'
decisions are informed.  Surely, then, a State could not require that all
minor women seeking an abortion obtain judicial approval. {10}  The Court's
holding that the burdensome bypass procedure saves the State's burdensome
notification and delay requirements thus strikes me as the equivalent of
saying that two wrongs make a right.  I cannot accept such a novel judicial
calculus.

IV
    A majority of the Court today strikes down an unreasonable and vastly
overbroad requirement that a pregnant minor notify both her parents of her
decision to obtain an abortion.  With that decision I agree.  At the same
time, though, a different majority holds that a State may require a young
woman to notify one or even both parents and then wait 48 hours before
having an abortion, as long as the State provides a judicial bypass
procedure.  From that decision I vehemently dissent.  This scheme forces a
young woman in an already dire situation to choose between two
fundamentally unacceptable alternatives: notifying a possibly dictatorial
or even abusive parent and justifying her profoundly personal decision in
an intimidating judicial proceeding to a black- robed stranger.  For such a
woman, this dilemma is more likely to result in trauma and pain than in an
informed and voluntary decision.

 
 
 
 
 

------------------------------------------------------------------------------
1
    I concur in Part VII on the understanding that the opinion does not
dispute that a minor's liberty interest alone outweighs the interest of the
second parent in shaping a child's values and lifestyles, regardless of the
interest of the first parent.  Cf. ante, at 31-32.

2
    The statute provides for one-parent notification where only one parent
is living or where the second parent "cannot be located through reasonably
diligent effort."  Minn. Stat. MDRV 144.343(3) (1988).

3
    Dr. Jane Hodgson testified before the District Court that one 14-year-
old patient, in order to keep her pregnancy private, tried to induce an
abortion with the help of her friends by inserting a metallic object into
her vagina, thereby tearing her body, scarring her cervix, and causing
bleeding.  When that attempt failed to induce an abortion, the patient,
then four or five months pregnant, finally went to an abortion clinic.
Because of the damage to the patient's cervix, doctors had to perform a
hysterotomy, meaning that that woman must have a Cesarean section to
deliver a child in the future.  App. 462.

4
    As Justice Stevens notes, ante, at 28, the 48-hour delay does not apply
if a parent or court consents to the abortion.

5
    Although these other factors would constrain a young woman's ability to
schedule an abortion even in the absence of the 48-hour delay requirement,
the addition of the immutable statutory delay reduces both the woman's and
the clinic's scheduling flexibility and thus can exacerbate the effect of
the other factors.  For instance, a woman might contact a clinic on Monday
and find that her schedule and the clinic's allow for only a Tuesday
appointment for that week.  Without the 48-hour delay requirement, the
woman could be treated the next day; with the statutory delay, however, the
woman would be forced to wait a week.

6
    Justice Stevens concludes that the 48-hour delay requirement actually
results in "little or no delay" because the statutory period "may run
concurrently with the time necessary to make an appointment for the
procedure."  Ante, at 28.  See also post, at 17 (opinion of Kennedy, J.)
("48- hour waiting period . . . results in little or no delay"); 853 F. 2d
1452, 1465 (CA8 1988) (en banc).  Justice Stevens bases this conclusion on
the testimony of the co-administrator of one abortion clinic that a one or
two-day scheduling backlog was typical.  Ante, at 28, n. 34.  "One or two
days," however, obviously means that the backlog is not necessarily 48
hours.  Furthermore, that witness also stated that if "a woman says that
she must be seen on a particular day our policy is we will always see her."
App. 147.  But because of the mandated 48-hour delay, the clinic cannot
honor a woman's request for an abortion until at least two full days have
elapsed.  The testimony therefore is hardly sufficient to justify ignoring
the District Court's factual finding with regard to the effects of the
delay requirement.

7
    The State also asserts that the requirements permit parents to provide
doctors with relevant information about their daughters' medical history
and "to assist with ensuring that proper after-care procedures are
followed."  Brief of Petitioners in No. 88-1309, pp. 34-36.  See also ante,
at 27 (opinion of Justice Stevens) (delay period "permits the parent to
inquire into the competency of the doctor performing the abortion").  If
these are actual state interests, it seems peculiar that the State does not
try to facilitate similar parental involvement in minors' treatment for
pregnancy and childbirth, see infra, at 10, which pose far greater risks to
the minor's health than abortion, see supra, at 6-7.  In any event,
compelled notification is unlikely to result in helpful parental
involvement in those families in which a parent reacts to the news of the
daughter's predicament by rejecting or abusing the young woman.  See supra,
at 9.

8
    Dr. Hodgson testified that some minors dread the court procedure so
much that they become "wringing wet with perspiration" and frequently
require a sedative beforehand.  App. 468.  One judge who has heard a
significant number of bypass petitions testified that the court experience
is " `very nervewracking' " for young women.  648 F. Supp., at 766.
Another testified that pregnant minors' " `level of apprehension is twice
what I normally see in court. . . .  You see all the typical things that
you would see with somebody under incredible amounts of stress, answering
monosyllabically, tone of voice, tenor of voice, shaky, wringing of hands,
you know, one young lady had her--her hands were turning blue and it was
warm in my office.' "  Ibid.

9
    Maine, for example, requires that a minor obtain the consent of a
parent, guardian, or adult family member; undergo a judicial bypass; or
receive counseling from the physician or a counselor according to speci-
fied criteria.  See Me. Rev. Stat. Ann., Tit. 22, MDRV 1597-A (Supp. 1989).
Wisconsin requires abortion providers to encourage parental notification
unless they determine that the minor has a valid reason for not notifying
her parents.  Wisc. Stat. MDRV 146.78 (1987-1988).  In the latter
situation, the provider must encourage--but not require--the minor to
notify "another family member, close family friend, school counselor,
social worker or other appropriate person."  MDRV 146.78(5)(c).  I express
no opinion on the constitutionality or efficacy of these schemes, but raise
them only as examples of alternatives that seem more closely related than a
judicial bypass procedure to the goal of ensuring that the minor's decision
is informed.
    In any event, most abortion clinics already provide extensive
counseling.  See 1 National Research Council, Risking the Future:
Adolescent Sexuality, Pregnancy, and Childbearing 191-192 (C. Hayes ed.
1987) (90% of abortion clinics routinely provide counseling for all
first-abortion patients, and all clinics make counseling available to all
patients on request).

10
    Indeed, the State conceded in oral argument before the Eighth Circuit,
sitting en banc, that a judicial approval provision by itself would be
unconstitutional.  See 853 F. 2d, at 1469 (Lay, C. J., dissenting).





Subject: 88-1125 & 88-1309--CONCUR/DISSENT, HODGSON v. MINNESOTA

 


    SUPREME COURT OF THE UNITED STATES


Nos. 88-1125 and 88-1309


JANE HODGSON, et al, PETITIONERS
v.
88-1125
MINNESOTA et al.



MINNESOTA, et al., PETITIONERS
v.
88-1309
JANE HODGSON et al.


on writs of certiorari to the united states court of appeals for the eighth
circuit

[June 25, 1990]



    Justice Scalia, concurring in the judgment in part and dissenting in
part.
    As I understand the various opinions today: One Justice holds that
two-parent notification is unconstitutional (at least in the present
circumstances) without judicial bypass, but constitutional with bypass,
ante, at ---- (O'Connor, J., concurring in part and concurring in
judgment); four Justices would hold that two-parent notification is
constitutional with or without bypass, post, at ---- (Kennedy, J.,
concurring in judgment in part and dissenting in part); four Justices would
hold that two-parent notification is unconstitutional with or without
bypass, though the four apply two different standards, ante, at ----
(opinion of Stevens, J.), ante, at ---- (Marshall, J., concurring in part
and dissenting in part); six Justices hold that one-parent notification
with bypass is constitutional, though for two different sets of reasons,
Ohio v. Akron Center for Reproductive Health, ante, p. ----; ante, at ----
(Stevens, J., concurring in judgment); and three Justices would hold that
one-parent notification with bypass is unconstitutional, ante, at ----
(Blackmun, J., dissenting).  One will search in vain the document we are
supposed to be construing for text that provides the basis for the argument
over these distinctions; and will find in our society's tradition regarding
abortion no hint that the distinctions are constitutionally relevant, much
less any indication how a constitutional argument about them ought to be
resolved.  The random and unpredictable results of our consequently
unchanneled individual views make it increasingly evident, Term after Term,
that the tools for this job are not to be found in the lawyer's--and hence
not in the judge's--workbox.  I continue to dissent from this enterprise of
devising an Abortion Code, and from the illusion that we have authority to
do so.

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




Subject: 88-1125 & 88-1309--CONCUR/DISSENT, HODGSON v. MINNESOTA

 


    SUPREME COURT OF THE UNITED STATES


Nos. 88-1125 and 88-1309


JANE HODGSON, et al., PETITIONERS
v.
88-1125
MINNESOTA et al.



MINNESOTA, et al., PETITIONERS
v.
88-1309
JANE HODGSON et al.


on writs of certiorari to the united states court of appeals for the eighth
circuit

[June 25, 1990]



    Justice Kennedy, with whom The Chief Justice, Justice White, and
Justice Scalia join, concurring in the judgment in part and dissenting in
part.

    " `There can be little doubt that the State furthers a constitutionally
permissible end by encouraging an unmarried pregnant minor to seek the help
and advice of her parents in making the very important decision whether or
not to bear a child.  That is a grave decision, and a girl of tender years,
under emotional stress, may be ill-equipped to make it without mature
advice and emotional support.' "  Bellotti v. Baird (Bellotti II), 443 U.
S. 622, 640-641 (1979) (plurality opinion) (quoting Planned Parenthood of
Central Missouri v. Danforth, 428 U. S. 52, 91 (1976) (Stewart, J.,
concurring)); see also H. L. v. Matheson, 450 U. S. 398, 409-411 (1981);
id., at 422-423 (Stevens, J., concurring in judgment); Danforth, supra, at
94-95 (White, J., concurring in part and dissenting in part); id., at
102-103 (Stevens, J., concurring in part and dissenting in part).  Today,
the Court holds that a statute requiring a minor to notify both parents
that she plans to have an abortion is not a permissible means of furthering
the interest described with such specificity in Bellotti II.  This
conclusion, which no doubt will come as a surprise to most parents, is
incompatible with our constitutional tradition and any acceptable notion of
judicial review of legislative enactments.  I dissent from the portion of
the Court's judgment affirming the Court of Appeal's conclusion that
Minnesota two-parent notice statute is unconstitutional.
    The Minnesota statute also provides, however, that if the two-parent
notice requirement is invalidated, the same notice requirement is effective
unless the pregnant minor obtains a court order permitting the abortion to
proceed.  Minn. Stat. MDRV 144.343(6) (1988).  The Court of Appeals
sustained this portion of the statute, in effect a two-parent notice
requirement with a judicial bypass.  Five Members of the Court, the four
who join this opinion and Justice O'Connor, agree with the Court of
Appeals' decision on this aspect of the statute.  As announced by Justice
Stevens, who dissents from this part of the Court's decision, the Court of
Appeals' judgment on this portion of the statute is therefore affirmed.
I
    The provisions of the statute before us are straightforward.  In
essence, the statute provides that before a physician in Minnesota may
perform an abortion on an unemancipated minor, the physician or the
physician's agent must notify both of the minor's parents, if each one can
be located through reasonable effort, either personally or by certified
mail at least 48 hours before the abortion is performed.  Minn. Stat. 15
144.343(2)-(3) (1988).  Notification is not required if the abortion is
necessary to prevent the minor's death; or if both parents have consented
to the abortion; or if the minor declares that she is the victim of sexual
abuse, neglect, or physical abuse.  MDRV 144.343(4).  Failure to comply
with these requirements is a misdemeanor, and the statute authorizes a
civil action against the noncomplying physician by the minor's parents.
MDRV 144.343(5).
    The statute also provides that, if a court enjoins the notice
requirement of subdivision 2, parental notice under the subdivision shall
still be required, unless the minor obtains a court order dispensing with
it.  Under the statute, the court is required to authorize the physician to
perform the abortion without parental notice if the court determines that
the minor is "mature and capable of giving informed consent to the proposed
abortion" or that "the performance of an abortion upon her without
notification of her parents, guardian, or conservator would be in her best
interests."  MDRV 144.343(6). II   The State identifies two interests
served by the law.  The first is the State's interest in the welfare of
pregnant minors.  The second is the State's interest in acknowledging and
promoting the role of parents in the care and upbringing of their children.
Justice Stevens, writing for two Members of the Court, acknowledges the
legitimacy of the first interest, but decides that the second interest is
somehow illegitimate, at least as to whichever parent a minor chooses not
to notify.  I cannot agree that the Constitution prevents a State from
keeping both parents informed of the medical condition or medical treatment
of their child under the terms and conditions of this statute.
    The welfare of the child has always been the central concern of laws
with regard to minors.  The law does not give to children many rights given
to adults, and provides, in general, that children can exercise the rights
they do have only through and with parental consent.  Parham v. J. R., 442
U. S. 584, 621 (1979) (Stewart, J., concurring in judgment).  Legislatures
historically have acted on the basis of the qualitative differences in
maturity between children and adults, see Schall v. Martin, 467 U. S. 253,
265-567 (1984); Thompson v. Oklahoma, 487 U. S. 815, 853-854 (1988)
(O'Connor, J., concurring in judgment) (collecting cases); Stanford v.
Kentucky, 492 U. S. ----, ---- (1989) (Brennan, J., dissenting), and not
without reason.  Age is a rough but fair approximation of maturity and
judgment, and a State has an interest in seeing that a child, when
confronted with serious decisions such as whether or not to abort a
pregnancy, has the assistance of her parents in making the choice.  If
anything is settled by our previous cases dealing with parental
notification and consent laws, it is this point.  See Bellotti II, 443 U.
S., at 640-641; Matheson, 450 U. S., at 409-411; id., at 422-423 (Stevens,
J., concurring in judgment).
    Protection of the right of each parent to participate in the upbringing
of her or his own children is a further discrete interest that the State
recognizes by the statute.  The common law historically has given
recognition to the right of parents, not merely to be notified of their
children's actions, but to speak and act on their behalf.  Absent a showing
of neglect or abuse, a father "possessed the paramount right to the custody
and control of his minor children, and to superintend their education and
nurture."  J. Schouler, Law of Domestic Relations 337 (3d. ed. 1882); see
also 1 W. Blackstone, Commentaries *452-*453; 2 J. Kent, Commentaries on
American Law *203-*206; G. Field, Legal Relations of Infants 63-80 (1888).
In this century, the common law of most States has abandoned the idea that
parental rights are vested solely in fathers, with mothers being viewed
merely as agents of their husbands, cf. ante, at 24, n. 30; it is now the
case that each parent has parental rights and parental responsibilities.
See W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser and Keeton on the
Law of Torts, ch. 4, MDRV 18, p. 115 (5th ed. 1984).  Limitations have
emerged on the prerogatives of parents to act contrary to the best
interests of the child with respect to matters such as compulsory schooling
and child labor.  As a general matter, however, it remains "cardinal with
us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder."  Prince v.
Massachusetts, 321 U. S. 158, 166 (1944),  "The history and culture of
Western civilization reflect a strong tradition of parental concern for the
nurture and upbringing of their children.  This primary role of the parents
in the upbringing of their children is now established beyond debate as an
enduring American tradition."  Wisconsin v. Yoder, 406 U. S. 205, 232
(1972); see also Pierce v. Society of Sisters, 268 U. S. 510, 535 (1925).
    A State pursues a legitimate end under the Constitution when it
attempts to foster and preserve the parent-child relation by giving all
parents the opportunity to participate in the care and nurture of their
children.  We have held that parents have a liberty interest, protected by
the Constitution, in having a reasonable opportunity to develop close
relations with their children.  See Santosky v. Kramer, 455 U. S. 745,
753-754 (1982); Caban v. Mohammed, 441 U. S. 380 (1979); Stanley v.
Illinois, 405 U. S. 645, 651-652 (1972).  We have recognized, of course,
that there are limits to the constitutional right of parents to have
custody of or to participate in decisions affecting their children.  If a
parent has relinquished the opportunity to develop a relation with the
child, and his or her only link to the child is biological, the
Constitution does not require a State to allow parental participation.  See
Lehr v. Robertson, 463 U. S. 248, 261-265 (1983); Quilloin v. Walcott, 434
U. S. 246, 254-256 (1978).  But the fact that the Constitution does not
protect the parent-child relationship in all circumstances does not mean
that the State cannot attempt to foster parental participation where the
Constitution does not demand that it do so.  A State may seek to protect
and facilitate the parent-child bond on the assumption that parents will
act in their child's best interests.  See Parham v. J. R., supra, at
602-603; Ginsberg v. New York, 390 U. S. 629, 639 (1968).  Indeed, we have
held that a State cannot terminate parental rights based upon a presumption
that a class of parents is unfit without affording individual parents an
opportunity to rebut the presumption.  See Stanley, supra, at 654-658;
Santosky, supra, at 753 ("The fundamental liberty interest of natural
parents in the care, custody, and management of their child does not
evaporate simply because they have not been model parents  . . .").  If a
State cannot legislate on the broad assumption that classes of parents are
unfit and undeserving of parental rights without affording an opportunity
to rebut the assumption, it is at least permissible for a State to
legislate on the premise that parents, as a general rule, are interested in
their children's welfare and will act in accord with it.
    The Court's descriptions of the State's interests in this case are
caricatures, both of the law and of our most revered institutions.  The
Court labels these interests as ones in "standardizing its children and
adults," and in ensuring that each family, to the extent possible, "conform
to some state- designed ideal."  Ante, at 31; see also ante, at 10
(Marshall, J., concurring in part, concurring in judgment in part, and
dissenting in part) (accusing Minnesota of "trying to force families to
conform to the State's archetype of the ideal family").  Minnesota asserts
no such purpose, by explicit statement or by any permissible inference.
All that Minnesota asserts is an interest in seeing that parents know about
a vital decision facing their child.  That interest is a valid one without
regard to whether the child is living with either one or both parents, or
to the attachment between the minor's parents.  How the family unit
responds to such notice is, for the most part, beyond the State's control.
The State would no doubt prefer that all parents, after being notified
under the statute, would contact their daughters and assist them in making
their decisions with the child's best interests at heart; but it has not,
contrary to the Court's intimation, "decreed" communication, nor could it.
What the State can do is make the communication possible by at least
informing parents of their daughter's intentions.
    Minnesota has done no more than act upon the common- sense proposition
that, in assisting their daughter in deciding whether to have an abortion,
parents can best fulfill their roles if they have the same information
about their own child's medical condition and medical choices as the
child's doctor does; and that to deny parents this knowledge is to risk, or
perpetuate, estrangement or alienation from the child when she is in the
greatest need of parental guidance and support.  The Court does the State,
and our constitutional tradition, sad disservice by impugning the
legitimacy of these elemental objectives.
    Given the societal interest that underlies parental notice and consent
laws, it comes as no surprise that most States have enacted statutes
requiring that, in general, a physician must notify or obtain the consent
of at least one of her parents or legal guardian before performing an
abortion on a minor.  See Wardle, "Time Enough": Webster v. Reproductive
Health Services and the Prudent Pace of Justice, 41 Fla. L. Rev. 881,
963-965 (1989) (collecting statutes).  Five States, including Minnesota,
appear to require, as a general rule, the notification of both parents
before a physician may perform an abortion on a minor.  See Ark. Code Ann.
15 20- 16-801 through 20-16-808 (Supp. 1989); Idaho Code MDRV 18-610 (6)
(1987); Tenn. Code Ann. MDRV 39-4-202 (1982); Utah Code Ann. MDRV 76-7-304
(1990).  Another six States appear to require, with varying exceptions, the
consent of both parents.  See Del. Code Ann., Tit. 24, MDRV 1790(b)(3)
(1987); Ill. Rev. Stat., ch. 38, MDRV 81-54(3) (1989); Ky. Rev. Stat. Ann.
MDRV 311.732 (Michie 1990); Mass. Gen. Laws MDRV 112:12S (1988); Miss.
Code. Ann. MDRV 41-41-53 (Supp. 1989); N. D. Cent. Code MDRV 14-02.1- 03.1
(1981).  Whether these statutes are more or less restrictive than the
Minnesota statute is not the issue, although I pause to note that because
the Court' decision today turns upon its perception that the law's
requirements, despite its exceptions, are the most "stringent" in the
country, see ante, at 3 (O'Connor, J., concurring in part and concurring in
judgment), the Court's decision has no import for the validity of these
other statutes.  What is important is that Minnesota is not alone in
acknowledging the vitality of these governmental interests and adopting
laws that, in the legislature's judgment, are best suited to serving them
while protecting the minor's welfare.
    On a more general level, the current trend among state legislatures is
to enact joint custody laws making it the norm for divorced or separated
parents to share the legal responsibility and authority for making
decisions concerning their children's care, education, religion, and
medical treatment.  See 2 H. Clark, Law of Domestic Relations in the United
States MDRV 20.5 (2d ed. 1987); Folberg, Joint Custody Law--The Second
Wave, 23 J. Family L. 1, 14-55 (1984-1985) (collecting statutes).  Under
Minnesota law, for example, there exists a presumption in divorce
proceedings that joint custody, if requested by either or both parents, is
in the best interests of the child.  See Minn. Stat. MDRV 518.17(2) (Supp.
1989).  Even if joint custody is not awarded, Minnesota law provides that
each parent, unless the court specifically directs otherwise to protect the
welfare of a parent or the child, "has the right of access to, and to
receive copies of, school, medical, dental, religious training, and other
important records and information about the minor children"; the
responsibility to "keep the other party informed as to the name and address
of the school of attendance of the minor children"; the responsibility to
"notify the other party of [an accident or serious illness of a minor
child], and the name of the health care provider and the place of
treatment"; and "the right to reasonable access and telephone contact with
the minor children."  Minn. Stat. MDRV 518.17(3) (1988).  Minnesota's
two-parent notification law does no more than apply these general
principles to the specific case of abortion.
    Federal law contains similar provisions regulating the health and
welfare of children that require the notification or consent of both
parents.  For example, one condition for obtaining a grant under the
Adolescent Family Life Act is that an applicant must provide assurances
that it will "notify the parents or guardians of any unemancipated minor
requesting services [relating to family planning] from the applicant and .
. . will obtain the permission of such parents or guardians with respect to
the provision of such services."  42 U. S. C. MDRV 300z-5(a)(22)(A)(i)
(1982 ed.); see MDRV 300z-5(a)(22)(A)(ii) (requiring only notice to parents
or guardians if the unemancipated minor is pregnant).  See also 42 U. S. C.
MDRV 5671(d) (1982 ed., Supp. V) (authorizing funding for certain
experimental juvenile drug and alcohol treatment programs if safeguards are
established for obtaining the informed consent of the "parents or
guardians" of minors); 50 U. S. C. App. MDRV 454(c)(4) (1982 ed.)
(permitting induction of 17-year-olds into the Armed Forces with the
written consent of his "parents or guardian"); 45 CFR MDRV 46.408 (1989)
(requiring consent of both parents before a minor may participate in
medical research posing more than a "minimal" risk of harm).  With all
respect, I submit the Court today errs when it states that Minnesota's
two-parent notice law is an "oddity among state and federal consent
provisions."  Ante, at 33.
III
    At least two Members of the Court concede, as they must, that a State
has a legitimate interest in the welfare of the pregnant minor and that, in
furtherance of this interest, the State may require the minor to notify,
and consult with, one of her parents.  See ante, at 23-24 (opinion of
Stevens, J.); cf. ante, at 8-9 (Marshall, J., concurring in part,
concurring in judgment in part, and dissenting in part).  The Court
nonetheless holds the Minnesota statute unconstitutional because it
requires the minor to notify not one parent, but both parents, a
requirement that the Court says bears no reasonable relation to the minor's
welfare.  See ante, at 28-32; cf. ante, at 8-12 (Marshall, J., concurring
in part, concurring in judgment in part, and dissenting in part).  The
Court also concludes that Minnesota does not have a legitimate interest in
facilitating the participation of both parents in the care and upbringing
of their children.  Given the substantial protection that minors have under
Minnesota law generally, and under the statute in question, the judicial
bypass provisions of the law are not necessary to its validity.  The
two-parent notification law enacted by Minnesota is, in my view, valid
without the judicial bypass provision of subdivision 6.
A
    We have been over much of this ground before.  It is beyond dispute
that in many families, whether the parents are living together or apart,
notice to both parents serves the interests of the parents and the minor,
and that the State can legislate with this fact in mind.  In H. L. v.
Matheson, 450 U. S. 398 (1981), we considered the constitutionality of a
statute which required a physician, before performing an abortion on a
minor, to " `[n]otify, if possible, the [minor's] parents or guardian.' "
Id., at 400 (quoting Utah Code Ann. MDRV 76-7-304 (1978)) (emphasis added).
We held that the statute, as applied to unmarried, dependent, and immature
minors, "plainly serves important state interests, is narrowly drawn to
protect only those interests, and does not violate any guarantees of the
Constitution."  450 U. S., at 413.  Our holding was made with knowledge of
the contentions, supported by citations to medical and sociological
literature, that are proffered again today for the proposition that noti
fication imposes burdens on minors.  See id., at 436-441 (Marshall, J.,
dissenting).  We nonetheless rejected arguments that a requirement of
parental notification was the equivalent of a requirement of parental
consent, id., at 411; that the statute was unconstitutional because it
required notification only as to abortions, and not as to other medical
procedures, id., at 412; and that the statute was unconstitutional because
it might deter some minors from seeking abortions, id., at 413.
    Our decision was based upon the well-accepted premise that we must
defer to a reasonable judgment by the state legislature when it determines
what is sound public policy.  Justice Stevens's opinion concurring in the
Court's judgment relied upon an explicit statement of this principle.
Concluding that the Utah statute requiring notification of both parents was
valid as to all unmarried minors, both mature and immature, Justice Stevens
reasoned that the State's interest in ensuring that a young woman
considering an abortion receive appropriate consultation was "plainly
sufficient to support a state legislature's determination that such
appropriate consultation should include parental advice."  Id., at 423.
The Court today departs from this rule.  It now suggests that a general
requirement that both parents be notified is unconstitutional because of
its own conclusion that the law is unnecessary when notice produces
favorable results, see ante, at 28, and irrational in all of the instances
when it produces unfavorable results, see ante, at 29-30.  In Matheson,
Justice Stevens rejected these same arguments as insufficient to establish
that the Utah statute was unconstitutional:

    "Of course, a conclusion that the Utah statute is invalid would not
prevent young pregnant women from voluntarily seeking the advice of their
parents prior to making the abortion decision.  But the State may
legitimately decide that such consultation should be made more probable by
ensuring that parents are informed of their daughter's decision[.]


    "Utah's interest in its parental-notice statute is not diminished by
the fact that there can be no guarantee that meaningful parent-child
communication will actually occur.  Good-faith compliance with the
statute's requirements would tend to facilitate communication between
daughters and parents regarding the abortion decision.  The possibility
that some parents will not react with compassion and understanding upon
being informed of their daughter's predicament or that, even if they are
receptive, they will incorrectly advise her, does not undercut the
legitimacy of the State's attempt to establish a procedure that will
enhance the probability that a pregnant young woman exercise as wisely as
possible her right to make the abortion decision."  450 U. S., at 423-424
(Stevens, J., concurring in judgment) (emphasis added).


Justice Stevens' reasoning was correct then and it remains correct today.
B
    In applying the standards established in our prior decisions to the
case at hand, "we must keep in mind that when we are concerned with
extremely sensitive issues, such as the one involved here, `the appropriate
forum for their resolution in a democracy is the legislature.  We should
not forget that "legislatures are ultimate guardians of the liberties and
welfare of the people in quite as great a degree as the courts."  Missouri,
K & T R. Co. v. May, 194 U. S. 267, 270 (1904) (Holmes, J.).'  Maher, 432
U. S., at 479-480 (footnote omitted)."  Akron v. Akron Center for
Reproductive Health, Inc., 462 U. S. 416, 465 (1983) (O'Connor, J.,
dissenting).  The Minnesota Legislature, like the legislatures of many
States, has found it necessary to address the issue of parental notice in
its statutory laws.  In my view it has acted in a permissible manner.
    All must acknowledge that it was reasonable for the legislature to
conclude that in most cases notice to both parents will work to the minor's
benefit.  See Bellotti II, 443 U. S., at 640, n. 20 (parental involvement,
if compassionate and supportive, is highly desirable).  This is true not
only in what the Court calls the "ideal family setting," where both parents
and the minor live under one roof, but also where the minor no longer lives
with both parents.  The Court does not deny that many absent parents
maintain significant ties with their children, and seek to participate in
their lives, to guide, to teach, and to care for them.  It is beyond
dispute that these attachments, in cases not involving mistreatment or
abuse, are essential to the minor's well-being, and that parental notice is
supportive of this kind of family tie.  Although it may be true that notice
to one parent will often result in notice to both, the State need not rely
upon the decision of one parent to notify the other, particularly where
both parents maintain ties with their daughter but not with each other, and
when both parents share responsibilities and duties with respect to the
child.
    I acknowledge that in some cases notifying both parents will not
produce desirable results despite the fact that no actual instance is in
the record before us, as the two-parent notification requirement was
enjoined before it went into effect.  Cf. ante, at 17 (stating as a matter
of historical fact that the "two-parent notification requirement had
particularly harmful effects on both the minor and the custodial parent"
and that fears that notification of an absent parent would produce harmful
results "were often realized") (emphasis added).  We need not decide today,
however, whether the Constitution permits a State to require that a
physician notify both biological parents before performing an abortion on
any minor, for the simple reason that Minnesota has not enacted such a
law.
    The Minnesota statute in fact contains exceptions to ensure that the
statutory notice requirement does not apply if it proves a serious threat
to the minor's health or safety.  First, the statute does not require
notice at all costs; to comply with the law, a physician need only use
"reasonably diligent effort" to locate and notify both of the minor's
parents.  If the second parent cannot be located, as may be the case if the
parent has deserted the family or ceased to maintain contact with the minor
or the other parent, the only notice required is to the first parent.
Minn. Stat. MDRV 144.343(3) (1988).
    Second, even where both parents can be located, notice is not required
if the physician certifies that the abortion is necessary to prevent the
woman's death and there is insufficient time to provide the required
notice, MDRV 144.343(4)(a); if the minor's parents have authorized the
abortion in writing, MDRV 144.343(4)(b); or if the minor declares that she
is the victim of sexual abuse, neglect, or physical abuse, MDRV
144.343(4)(c).  Under Minnesota law, "neglect" of a minor means the failure
of a parent "to supply a child with necessary food, clothing, shelter or
medical care when reasonably able to do so or failure to protect a child
from conditions or actions which imminently and seriously endanger the
child's physical or mental health when reasonably able to do so," Minn.
Stat. MDRV 626.556 (2)(c) (Supp. 1989); physical abuse is defined as "any
physical injury inflicted by a person responsible for the child's care on a
child other than by accidental means," MDRV 626.556(2)(d); and sexual abuse
includes any sexual contact by a parent or other person responsible for the
child's care or in a position of authority with respect to the child.  MDRV
626.556(2)(a).  I cannot believe that these exceptions are too narrow to
eliminate from the statute's coverage those instances in which notice would
place the minor in danger of parental violence or other conduct that is a
real threat to the physical or mental health of the child.
    The Court challenges the efficacy of this last exception because it
believes that the statutory requirement that a physician report a minor's
declaration of abuse to appropriate authorities, see MDRV 144.343(4)(c),
will deter minors from using the exception.  This is not a proper basis for
declaring the law invalid.  Laws are not declared unconstitutional because
of some general reluctance to follow a statutory scheme the legislature
finds necessary to accomplish a legitimate state objective.  Beyond any
question it is reasonable for the State to require that physicians report
declarations of abuse to ensure that mistreatment is known to authorities
responsible for the protection of minors.  This requirement is but a single
manifestation of the broad duty in Minnesota to report suspected cases of
child abuse to the proper authorities.  See Minn. Stat. MDRV 626.556(1)
(1988) (declaring it to be the public policy of the State "to protect
children whose health or welfare may be jeopardized through physical abuse,
neglect or sexual abuse" and "to strengthen the family and make the home,
school, and community safer for children by promoting responsible child
care in all settings").
    No one can contend that a minor who is pregnant is somehow less
deserving of the State's protection.  It is reasonable to provide that any
minor who contends that she cannot notify her parent or parents because she
is the victim of neglect or abuse allow the State to use its power to
investigate her declaration and protect her from harm.  Any parent,
moreover, who responds to notice by threatening or harming the minor or the
other parent may be prosecuted by the State to the full extent of its laws.
See Minn. Stat. MDRV 518B.01 (1988) (Domestic Abuse Act); Minn. Stat. 15
609.221, 60.222, 609.223, 609.224 (1988 and Supp. 1989) (assault statutes);
15 609.341 through 609.345 (sexual abuse statutes); MDRV 609.378 (criminal
neglect statute).  Just as it relies upon such laws as its first line of
defense for dealing with all other instances of abuse in family situations,
so too is the State entitled to rely upon them here.
    Notwithstanding the exceptions and protections we have discussed, it
does remain possible, of course, that in some instances notifying one or
both parents will not be in the minor's best interests.  Allegations of a
similar possibility, based upon sociological evidence similar to that
presented in this case, was made by the appellant in Matheson.  See Brief
for Appellant 10-11; Brief for Planned Parenthood Federation of America,
Inc., et al., as Amici Curiae 16-31 in Matheson, O. T. 1980, No. 79-5903.
The Court there held that the parental notification law was valid, at least
as to immature minors, for the simple reason that a law is not invalid if
it fails to further the governmental interest in every instance.  This
point formed the cornerstone of Justice Stevens's concurring opinion in
Matheson, see 450 U. S., at 423-424, and it finds its most explicit
statement in the Court's opinion in Parham v. J. R., 442 U. S., at
602-603:

"The law's concept of the family rests on a presumption that parents
possess what a child lacks in maturity, experience, and capacity for
judgment required for making life's difficult decisions.  More importantly,
historically, it has recognized that natural bonds of affection lead
parents to act in the best interests of their children. . . ."   "As with
so many other legal presumptions, experience and reality may rebut what the
law accepts as a starting point; the incidence of child neglect and abuse
cases attest to this.  That some parents may at times be acting against the
best interests of their children . . . creates a basis for caution, but is
hardly a reason to discard wholesale those pages of human experience that
teach that parents generally do act in the child's best interests."


    The only cases in which a majority of the Court has deviated from this
principle are those in which a State sought to condition a minor's access
to abortion services upon receipt of her parent's consent to do so.  In
Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52 (1976),
the Court invalidated a Missouri law requiring that a physician obtain the
consent of one parent before performing an abortion.  The Court's reasoning
was unmistakable: "[T]he State does not have the constitutional authority
to give a third party an absolute, and possibly arbitrary, veto over the
decision of the physician and his patient to terminate the patient's
pregnancy, regardless of the reason for withholding the consent."  Id., at
74.  The Court today, ignoring this statement, relies heavily upon isolated
passages from Danforth, see ante, at 31-32, and other cases involving
parental consent laws, see, e. g., ante, at 32 (citing Bellotti II).
Justice Marshall, on the other hand, expressly equates laws requiring
parental consent with laws requiring parental notification, see ante, at
11-12 (Marshall, J., concurring in part, concurring in judgment in part,
and dissenting in part).
    The difference between notice and consent was apparent to us before,
and is apparent now.  Unlike parental consent laws, a law requiring
parental notice does not give any third party the legal right to make the
minor's decision for her, or to prevent her from obtaining an abortion
should she choose to have one performed.  We have acknowledged this
distinction as "fundamental," and as one "substantially modify[ing] the
federal constitutional challenge."  Bellotti v. Baird (Bellotti I), 428 U.
S. 132, 145, 148 (1976); see also Matheson, supra, at 411, n. 17.  The law
before us does not place an absolute obstacle before any minor seeking to
obtain an abortion, and it represents a considered weighing of the
competing interests of minors and their parents.
    "It cannot be doubted that as long as a state statute is within `the
bounds of reason and [does not] assum[e] the character of a merely
arbitrary fiat . . . [then] [t]he State . . . must decide upon measures
that are needful for the protection of its people . . . . ' "  Akron, 462
U. S., at 459 (O'Connor, J., dissenting) (quoting Purity Extract & Tonic
Co. v. Lynch, 226 U. S. 192, 204-205 (1912)).  Like all laws of general
application, the Minnesota statute cannot produce perfect results in every
situation to which it applies; but the State is under no obligation to
enact perfect laws.  The statute before us, including the 48-hour waiting
period, which is necessary to enable notified parents to consult with their
daughter or their daughter's physician, if they so wish, and results in
little or no delay, represents a permissible, reasoned attempt to preserve
the parents' role in a minor's decision to have an abortion without placing
any absolute obstacles before a minor who is determined to elect an
abortion for her own interest as she sees it.  Section 144.343, without the
judicial bypass provision of subdivision 6, is constitutional. I would
reverse the contrary judgment of the Court of Appeals.
IV
    Because a majority of the Court holds that the two-parent notice
requirement contained in subdivision 2 is unconstitutional, it is necessary
for the Court to consider whether the same notice requirement is
constitutional if the minor has the option of obtaining a court order
permitting the abortion to proceed in lieu of the required notice.  Minn.
Stat. MDRV 144.343 (6) (1988).  Assuming, as I am bound to do for this part
of the analysis, that the notice provisions standing alone are invalid, I
conclude that the two-parent notice requirement with the judicial bypass
alternative is constitutional.
    The Court concludes that Minnesota's two-parent notice law without a
judicial bypass is unconstitutional because of the possibility that, in
some cases, the rule would not work to the benefit of minors or their
parents.  If one were to attempt to design a statute that would address the
Court's concerns, one would do precisely what Minnesota has done in MDRV
144.343(6): create a judicial  mechanism to identify, and exempt from the
strictures of the law, those cases in which the minor is mature or in which
notification of the minor's parents is not in the minor's best interests.
The bypass procedure comports in all respects with our precedents.  See
Bellotti II, 443 U. S., at 643-644; Planned Parenthood Assn. of Kansas
City, Mo. v. Ashcroft, 462 U. S. 476, 491 (1983) (opinion of Powell, J.);
id., at 505 (O'Connor, J., concurring in judgment in part and dissenting in
part); Ohio v. Akron Center for Reproductive Health, ---- U. S. ----
(1990).
    In providing for the bypass, Minnesota has done nothing other than
attempt to fit its legislation into the framework that we have supplied in
our previous cases.  The simple fact is that our decision in Bellotti II
stands for the proposition that a two-parent consent law is constitutional
if it provides for a sufficient judicial bypass alternative, and it
requires us to sustain the statute before us here.  In Bellotti II, the
Court considered the constitutionality of a statute which required a
physician to obtain, in most circumstances, the consent of both of a
minor's parents before performing an abortion on the minor.  See 443 U. S.,
at 625-626 (citing Mass. Gen. Laws. Ann., ch. 112, MDRV 12S (West Supp.
1979)).  Although eight Members of the Court concluded that the statute was
unconstitutional, five indicated that they would uphold a two-parent
consent statute with an adequate judicial bypass.
    For four of the eight Justices forming the majority in Bellotti II, the
failure of the statute lay in its inadequate bypass procedure, not its
requirement that both of the minor's parents consent to the abortion.  See
443 U. S., at 643 (opinion of Powell, J.).  Justice Powell's opinion
specifically stated that "if the State decides to require a pregnant minor
to obtain one or both parents' consent to an abortion, it also  must
provide an alternative procedure whereby authorization for the abortion can
be obtained," ibid. (emphasis added), and then stated the minimum
requirements for such a procedure.  In response to the dissent's contention
that his opinion was advisory, Justice Powell stated that the four Members
of the Court thought it necessary

"to provide some guidance as to how a State constitutionally may provide
for adult involvement--either by parents or a state official such as a
judge-- in the abortion decision of minors.  In view of the importance of
the issue raised, and the protracted litigation to which these parties
already have been subjected, we think it would be irresponsible simply to
invalidate [the Massachusetts law] without stating our views as to the
controlling principles."  Id., at 652, n. 32.


See also id., at 651-652 (Rehnquist, J., concurring) (joining Justice
Powell's opinion because "unless and until [the Court is willing to
overrule Danforth], literally thousands of judges cannot be left with
nothing more than the guidance offered by a truly fragmented holding of
this Court").
    Justice White dissented from the Court's judgment that the
Massachusetts statute was unconstitutional.  In his view no bypass was
necessary, so it must follow that a two-parent consent statute with an
adequate bypass procedure would have been valid.  See id., at 656-657
(dissenting opinion).  In sum, five Members of the Court in Bellotti II
found, either by express statement or by implication, that it was
permissible under the Constitution for a State to require the consent of
two parents, as long as it provides a consent substitute in the form of an
adequate judicial bypass procedure.
    I cannot accept Justice Stevens' suggestion today that the plurality,
in announcing these rules, did not "consider" the fact that it was doing so
in the context of a two-parent consent requirement, see ante, at 34.  The
statute was explicit in its command that both parents consent to the
abortion.  See 443 U. S., at 625-626.  The plurality indicated that it was
aware of this fact, see id., at 630, and n. 10, and the dissent drew a
specific contrast between the two-parent consent requirement then before
the Court and the one-parent consent requirement before the Court in
Danforth.  See id., at 653 (Stevens, J., concurring in judgment).  Aware of
all of these circumstances, the plurality stated the controlling principles
with specific reference to laws requiring the consent of "one or both"
parents.  Id., at 643.  The plurality's considered reasoning, coupled with
the dissenting views of Justice White, was intended to set forth the
dispositive principles of law for deciding the constitutionality of
parental consent laws.  The Court has relied upon these principles in
deciding the constitutionality of laws requiring notice or the consent of
one parent, see Akron v. Akron Center for Reproductive Health, 462 U. S.,
at 439-442 (consent); Ohio v. Akron Center for Reproductive Health, ---- U.
S. ----, ---- (1990) (notice).  As Bellotti II dealt with the far more
demanding requirement of two-parent consent, and approved of such a
requirement when coupled with a judicial bypass alternative, I must
conclude that these same principles validate a two-parent notice
requirement when coupled with a judicial bypass alternative.
    A second precedent that compels the conclusion that a two- parent
notice law with a judicial bypass alternative is constitutional is our
decision in Matheson.  There we held that a two-parent notice statute
without a bypass was constitutional as applied to immature minors whose
best interests would be served by notice.  Like the statute before the
Court in Matheson, the Minnesota statute, as amended by subdivision 6,
requires a physician to notify the parents of those im mature minors whose
best interest will be served by the communication.
    If a two-parent notification law may be constitutional as applied to
immature minors whose best interests are served by the law, but not as
applied to minors who are mature or whose best interests are not so served,
a judicial bypass is an expeditious and efficient means by which to
separate the applications of the law which are constitutional from those
which are not.  Justice Stevens' characterization of the judicial bypass
procedure discussed in our past cases as a necessary "exception" to a
"reasonable general rule," such as a one-parent consent requirement, see
ante, at 35, 36, is far off the mark.  If a judicial bypass is mandated by
the Constitution at all, it must be because a general consent rule is
unreasonable in at least some of its applications, and the bypass is
necessary to save the statute.  See, e. g., Bellotti II, 443 U. S., at 643;
Matheson, 450 U. S., at 420 (Powell, J., concurring).  No reason can be
given for refusing to apply a similar analysis to the less demanding case
of a notice statute.  It follows that a similar result should obtain: a law
that requires notice to one or both parents is constitutional with a
bypass.  I thus concur in that portion of the judgment announced, but not
agreed with, by Justice Stevens which affirms the Court of Appeals'
conclusion that MDRV 144.343(6) is constitutional.
V
    In this case, the Court rejects a legislature's judgment that parents
should at least be aware of their daughter's intention to seek an abortion,
even if the State does not empower the parents to control the child's
decision.  That judgment is rejected although it rests upon a tradition of
a parental role in the care and upbringing of children that is as old as
civilization itself.  Our precedents do not permit this result.
    It is true that for all too many young women the prospect of two
parents, perhaps even one parent, sustaining her with support that is
compassionate and committed is an illusion.  Statistics on drug and alcohol
abuse by parents and documentations of child neglect and mistreatment are
but fragments of the evidence showing the tragic reality that becomes day-
to-day life for thousands of minors.  But the Court errs in serious degree
when it commands its own solution to the cruel consequences of individual
misconduct, parental failure, and social ills.  The legislative authority
is entitled to attempt to meet these wrongs by taking reasonable measures
to recognize and promote the primacy of the family tie, a concept which
this Court now seems intent on declaring a constitutional irrelevance.

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