Hodgson v. MinnesotaAnnotate this Case
497 U.S. 417 (1990)
U.S. Supreme Court
Hodgson v. Minnesota, 497 U.S. 417 (1990)
Hodgson v. Minnesota
Nos. 88-1125, 88-1309
Argued Nov. 29, 1989
Decided June 25, 1990
497 U.S. 417
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE EIGHTH CIRCUIT
Subdivision 2 of Minn.Stat. § 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 (CA8 1988), affirmed.
Justice STEVENS delivered the opinion of the Court with respect to Parts I, II, IV, and VII, concluding that subdivision 2 of § 144.343 violates the Constitution insofar as it requires two-parent notification.
(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. 497 U. S. 436-444.
(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. 497 U. S. 450-455.
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, at 497 U. S. 510-511. 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. 497 U. S. 444-448.
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 wellbeing 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. 497 U. S. 448-449.
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, 428 U. S. 90-91. P. 497 U. S. 461.
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. Pp. 497 U. S. 496-497.
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 443 U. S. 643 (opinion of Powell, J.); id. at 443 U. S. 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 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. Pp. 497 U. S. 497-501.
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, post, p. 497 U. S. 458. 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, post, p. 497 U. S. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 497 U. S. 479. 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, post, p. 497 U. S. 480.
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. §§ 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 provision 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.
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 § 144.343 and as § 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." [Footnote 1]
The statute, unlike others of its age, [Footnote 2] applied to abortion services.
The 1981 amendment qualified the authority of an "unemancipated minor" [Footnote 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. [Footnote 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. [Footnote 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. [Footnote 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. [Footnote 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." [Footnote 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. [Footnote 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. [Footnote 10]"
The District Court found that the primary purpose of the legislation was to protect the wellbeing of minors by encouraging them to discuss with their parents the decision whether to terminate their pregnancies. [Footnote 11] It also found that the legislature was motivated by a
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. [Footnote 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. [Footnote 15] The panel further
held that the two-parent notice requirement was not severable. [Footnote 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,' [Footnote 17]"
as well as the independent interest of the parents in the upbringing of their children. [Footnote 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 minors 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 statute 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. [Footnote 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 noncustodial 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. 917 (1989).
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, 448 U. S. 316-318 (1980); Carey v. Population Services International,431 U. S. 678, 431 U. S. 685, 431 U. S. 687 (1977); Cleveland Board of Education v. LaFleur,414 U. S. 632, 414 U. S. 639-640 (1974); Roe v. Wade,410 U. S. 113, 410 U. S. 152-153 (1973); id. at 410 U. S. 168-170 (Stewart, J., concurring); Eisenstadt v. Baird,405 U. S. 438, 405 U. S. 453 (1972); Griswold v. Connecticut,381 U. S. 479, 381 U. S. 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, 429 U. S. 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 410 U. S. 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."
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, 394 U. S. 631 (1969), or deny prisoners the right to marry, Turner v. Safley,482 U. S. 78, 482 U. S. 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, 388 U. S. 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. 490, 508-511 (1989); id. at 492 U. S. 523-524 (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 432 U. S. 474; see also Harris v. McRae, 448 U.S. at 448 U. S. 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. [Footnote 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. [Footnote 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 constitutionality. 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 482 U. S. 97; Carey v. Population Services International, 431 U.S. at 431 U. S. 704 (opinion of Powell, J.); Doe v. Bolton,410 U. S. 179, 410 U. S. 194-195 (1973).
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. [Footnote 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," [Footnote 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. [Footnote 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 intra-family 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."
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." [Footnote 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. [Footnote 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. [Footnote 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. [Footnote 28] The judges who adjudicated over 90% of these petitions testified; none of them identified any positive effects of the law. [Footnote 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. [Footnote 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. § 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' decisionmaking process. Others testified the statute has a deleterious effect on the wellbeing 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. § 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.
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 443 U. S. 634-639 (opinion of Powell, J.); Prince v. Massachusetts,321 U. S. 158, 321 U. S. 166-167 (1944). [Footnote 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, 442 U. S. 603-604 (1979); Planned Parenthood of Central Missouri v. Danforth, 428 U.S. at 428 U. S. 95 (WHITE, J., concurring in part and dissenting in part); id. at 428 U. S. 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 428 U. S. 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 497 U. S. 510-511; Akron v. Akron Center for Reproductive Health, Inc.,462 U. S. 416, 462 U. S. 428, n. 10, 439 (1983); H.L. v. Matheson, 450 U.S. at 450 U. S. 409-410; Bellotti II, 443 U.S. at 443 U. S. 640-641 (opinion of Powell, J.); Danforth, 428 U.S. at 428 U. S. 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, 463 U. S. 257 (1983); see also Parham, 442 U.S. at 9442 U.S. 602602 (citing 1 W. Blackstone, Commentaries *447;
2 J. Kent, Commentaries on American Law *190); Pierce v. Society of Sisters,268 U. S. 510, 268 U. S. 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 463 U. S. 262; see also Caban v. Mohammed,441 U. S. 380, 441 U. S. 397 (1979) (Stewart, J., dissenting). But the demonstration 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, 405 U. S. 651 (1972); Lehr, 463 U.S. at 463 U. S. 261; Michael H. v. Gerald D.,491 U. S. 110, 491 U. S. 157-160 (1989) (WHITE, J., dissenting); cf. Caban, 441 U.S. at 441 U. S. 393, n. 14. But see Michael H., 491 U.S. at 491 U. S. 123-127 (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, 419 U. S. 404 (1975); Maynard v. Hill,125 U. S. 190, 125 U. S. 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, 406 U. S. 233-234 (1972); Griswold v. Connecticut, 381 U.S. at 381 U. S. 495-496 (Goldberg, J., concurring); Poe v. Ullman,367 U. S. 497, 367 U. S. 551-552 (1961) (Harlan, J., dissenting); Gilbert v. Minnesota,254 U. S. 325, 254 U. S. 335-336 (1920) (Brandeis, J., dissenting); see also Michael H. v. Gerald D., 491 U.S. at 491 U. S. 132 (O'CONNOR, J., concurring in part); Roberts v. United States Jaycees,468 U. S. 609, 468 U. S. 618-620 (1984); Cleveland Board of Education v. LaFleur,414 U. S. 632, 414 U. S. 639-640 (1974). The family may assign one parent to guide the children's education and the other to look after their health. [Footnote 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 442 U. S. 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 321 U. S. 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, 431 U. S. 499 (1977) (plurality opinion); id. at 431 U. S. 507, 510-511 (BRENNAN, J., concurring); see also Meyer v. Nebraska,262 U. S. 390, 262 U. S. 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, 262 U. S. 399 (1923), 'basic civil rights of man,' Skinner v. Oklahoma,316 U. S. 535, 316 U. S. 541 (1942), and '[r]ights far more precious . . . than property rights,' May v. Anderson,345 U. S. 528, 345 U. S. 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, 321 U. S. 166 (1944). The integrity of the family unit has found protection in the Due Process Clause of the Fourteenth Amendment, Meyer v. Nebraska, supra, [262 U.S.] at 262 U. S. 399, the Equal Protection Clause of the Fourteenth Amendment, Skinner v. Oklahoma, supra, and the Ninth Amendment, Griswold v.
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 wellbeing, the State may properly enact "laws designed to aid discharge of that responsibility." Ginsberg v. New York,390 U. S. 629, 390 U. S. 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, [Footnote 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. [Footnote 35]
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. [Footnote 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 431 U. S. 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 262 U. S. 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 428 U. S. 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 428 U. S. 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 428 U. S. 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 443 U. S. 630, 443 U. S. 644, we confirmed that such a construction satisfied "some of the concerns" about the statute's constitutionality, id. at 443 U. S. 644, and thereby avoided "much of what was objectionable in the statute successfully challenged in Danforth." Id. at 443 U. S. 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 443 U. S. 651. [Footnote 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. § 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 § 51.27 (1989), and to participate as a subject in most forms of medical research. 45 CFR §§ 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. [Footnote 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. § 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, 486 U. S. 464 (1988); Turner v. Safley,482 U. S. 78, 482 U. S. 98 (1987). We therefore hold that this requirement violates the Constitution.
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, 462 U. S. 491 (1983) (opinion of Powell, J.); id. at 462 U. S. 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 443 U. S. 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 442 U. S. 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 442 U. S. 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 determine whether notifying the noncustodial 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
"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.
Subdivision 1 of § 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. § 144.346 (1988).
See Haw.Rev.Stat. § 577A-2 (1976); Mo.Rev. Stat. § 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. Butler eds. 1973).
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. §§ 144.341 and 144.342 (1988) apply to the minor's decision to terminate her pregnancy. Brief for Respondents in No. 881125, 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. § 144.343(2). This portion of the statute is not challenged in this case.
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."
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 § 18-609(6) (1987); Tenn.Code Ann. § 39-15-202(f) (Supp.1989); Utah Code Ann. § 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. §§ 2016-802, 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, § 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,