A 1974 Massachusetts statute governs the type of consent,
including parental consent, required before an abortion may be
performed on an unmarried woman under the age of 18. Appellees, an
abortion counseling organization, its president and its medical
director, and several unmarried women who were pregnant at the
time, brought a class action against appellant Attorney General and
District Attorneys, claiming that the statute violates the Due
Process and Equal Protection Clauses of the Fourteenth Amendment. A
temporary restraining order was entered prior to the effective date
of the statute. Thereafter, a three-judge District Court held the
statute unconstitutional as creating a "parental veto" over the
performance of abortions on minor children in that it applied even
to those minors capable of giving informed consent, and permanently
enjoined its operation, denying by implication appellants' motion
that the court abstain from deciding the issue pending
authoritative construction of the statute by the Massachusetts
Supreme Judicial Court. In 1975, after the District Court's
decision Massachusetts enacted a statute dealing with consent by
minors to medical procedures other than abortion and sterilization,
and, in this Court, appellees raised an additional claim of
impermissible distinction between the consent procedures applicable
to minors in the area of abortion under the 1974 statute and the
consent required by the 1975 statute in regard to other medical
procedures.
Held: The District Court should have abstained from
deciding the constitutional issue, and should have certified to the
Massachusetts Supreme Judicial Court appropriate questions
concerning the meaning of the 1974 statute and the procedure it
imposes. Pp.
428 U. S.
143-152.
(a) Abstention is appropriate where an unconstrued state statute
is susceptible of a construction by the state judiciary that
Page 428 U. S. 133
"might avoid, in hole or in part, the necessity for federal
constitutional adjudication, or at least materially change the
nature of the problem."
Harrison v. NAACP, 360 U. S. 167,
360 U. S. 177.
Pp.
428 U. S.
146-147.
(b) Here, the 1974 statute is susceptible of appellants'
interpretation that, while it prefers parental consultation and
consent, it permits a minor capable of giving informed consent to
obtain a court order allowing abortion without parental
consultation, and further permits even a minor incapable of giving
informed consent to obtain an abortion order without parental
consultation where it is shown that abortion would be in her best
interests, and such an interpretation would avoid or substantially
modify the federal constitutional challenge to the statute. Pp.
428 U. S.
147-148.
(c) In regard to the claim of impermissible discrimination due
to the 1975 statute, it would be appropriate for the District Court
also to certify a question concerning this statute, and the extent
to which its procedures differ from the procedures required under
the 1974 statute. Pp.
428 U. S.
151-152.
393 F.
Supp. 847, vacated and remanded.
BLACKMUN, J., delivered the opinion for a unanimous Court.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In this litigation, a three-judge District Court for the
District of Massachusetts enjoined the operation of certain
provisions of a 1974 Massachusetts statute that govern the type of
consent required before an abortion may
Page 428 U. S. 134
be performed on an unmarried woman under the age of 18. In so
acting, the court denied by implication a motion by appellants that
the court abstain from deciding the issue pending authoritative
construction of the statute by the Supreme Judicial Court of
Massachusetts. We hold that the court should have abstained, and we
vacate the judgment and remand the cases for certification of
relevant issues of state law to the Supreme Judicial Court, and for
abstention pending the decision of that tribunal.
I
On August 2, 1974, the General Court of Massachusetts
(Legislature), over the Governor's veto, enacted legislation
entitled "An Act to protect unborn children and maternal health
within present constitutional limits." The Act, Mass.Acts and
Resolves 1974, c. 706, § 1, amended Mass.Gen.Laws Ann., c. 112
(Registration of Certain Professions and Occupations), by adding §§
12H through 12R. [
Footnote 1]
Section 12P provides:
"(1) If the mother is less than eighteen years of age and has
not married, the consent of both the mother and her parents is
required. If one or both of the mother's parents refuse such
consent, consent may be obtained by order of a judge of the
superior
Page 428 U. S. 135
court for good cause shown, after such hearing as he deems
necessary. Such a hearing will not require the appointment of a
guardian for the mother."
"If one of the parents has died or has deserted his or her
family, consent by the remaining parent is sufficient. If both
parents have died or have deserted their family, consent of the
mother's guardian or other person having duties similar to a
guardian, or any person who had assumed the care and custody of the
mother is sufficient."
"(2) The commissioner of public health. shall prescribe a
written form for such consent. Such form shall be signed by the
proper person or persons and given to the physician performing the
abortion who shall maintain it in his permanent files."
"Nothing in this section shall be construed as abolishing or
limiting any common law rights of any other person or persons
relative to consent to the performance of an abortion for purposes
of any civil action or any injunctive relief under section twelve
R."
All nonemergency abortions are made subject to the provisions of
§ 12P by § 12N. [
Footnote 2]
Violations of § 12N are
Page 428 U. S. 136
punishable under § 12Q by a fine of not less than $100 nor more
than $2,000. [
Footnote 3]
Section 12R provides that the Attorney General or any person whose
consent is required may petition the superior court for an order
enjoining the performance of any abortion. [
Footnote 4]
II
On October 30, 1974, one day prior to the effective date of the
Act, [
Footnote 5] plaintiffs,
who are appellees here, filed this action in the United States
District Court for the District of Massachusetts asserting
jurisdiction under 28 U.S.C. §§ 1343(3), 1331, and 2201, and 42
U.S.C. § 1983, and claiming that § 12P violates the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. They sought
injunctive and declaratory relief, and requested the empaneling of
a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284.
On October 31, the single District Judge issued an order
temporarily restraining the enforcement of the parental consent
requirement of § 12P, and accepting the request for a three-judge
court. [
Footnote 6] Record Doc.
2.
Page 428 U. S. 137
The plaintiffs, and the classes they purported to represent,
are:
1. William Baird, a citizen of New York.
2. Parents Aid Society, Inc., a Massachusetts not-for-profit
corporation. Baird is president of the corporation, and is director
and chief counselor of the center it operates in Boston for the
purpose of providing,
inter alia, abortion and counseling
services. Baird and Parents Aid claim to represent all abortion
centers and their administrators in Massachusetts who, on a regular
and recurring basis, deal with pregnant minors. App. 13, 43.
3. Mary Moes I, II, III, and IV, four minors under the age of
18, pregnant at the time of the filing of the suit, and residing in
Massachusetts. Each alleged that she wished to terminate her
pregnancy and did not wish to inform either of her parents.
[
Footnote 7]
Id. at
118, 19-22. The Moes claimed to represent all pregnant minors
capable
Page 428 U. S. 138
of, and willing to give, informed consent to an abortion, but
who decline to seek the consent of both parents, as required by §
12P. App. 13, 43
4. Gerald Zupnick, M.D., a physician licensed to practice in
Massachusetts. He is the medical director of the center operated by
Parents Aid. He claims to represent all physicians in Massachusetts
who, without parental consent, see minor patients seeking
abortions.
Ibid.
The defendants in the action, who are the appellants in No.
75-73 (and who are hereinafter referred to as the appellants), are
the Attorney General of Massachusetts and the District Attorneys of
all the counties in the Commonwealth.
Appellant in No. 75-109 (hereinafter referred to as the
intervenor appellant) is Jane Hunerwadel, a resident and citizen of
Massachusetts, and parent of an unmarried minor female of
childbearing age. Hunerwadel was permitted by the District Court to
intervene as a defendant on behalf of herself and all others
similarly situated. [
Footnote
8] App. 24.
On November 13, appellants filed a "Motion to dismiss and/or for
summary judgment," arguing,
inter alia, that the District
Court "should abstain from deciding any issue in this case."
Id. at 23. In their memorandum to the court in support of
that motion, appellants, in addition to other arguments, urged that
§ 12P, particularly in view of its judicial review provision,
"was
Page 428 U. S. 139
susceptible of a construction by state courts that would avoid
or modify any alleged federal constitutional question." Record Doc.
5, p. 12. They cited
Railroad Comm'n v. Pullman Co.,
312 U. S. 496
(1941), and
Lake Carriers' Assn. v. MacMullan,
406 U. S. 498,
406 U. S.
510-511 (1972), for the proposition that, where an
unconstrued state statute is susceptible of a constitutional
construction, a federal court should abstain from deciding a
constitutional challenge to the statute until a definitive state
construction has been obtained.
The District Court held hearings on the motion for a preliminary
injunction; these were later merged into the trial on the merits.
It received testimony from various experts and from parties to the
case, including Mary Moe I. On April 28, 1975, the three-judge
District Court, by a divided vote, handed down a decision holding §
12P unconstitutional and void.
393 F.
Supp. 847. An order was entered declaring § 12P "and such other
portions of the chapter [112] insofar as they make specific
reference thereto" void, and enjoining the defendants from
enforcing them. App. 45-46; Jurisdictional Statement in No. 75-73,
pp. A-33, A-34.
The majority held,
inter alia, that appellees Mary Moe
I, Doctor Zupnick, and Parents Aid had standing to challenge the
operation of the statute, individually and as representatives of
their proposed classes, 393 F. Supp. at 850-852. [
Footnote 9] and that the intervenor appellant
had standing to represent the interests of parents of unmarried
minor women of childbearing age,
id. at 849-850. It found
that "a substantial number of females under the age of 18 are
capable of forming a valid consent," and viewed the overall
question as "whether the state can be permitted
Page 428 U. S. 140
to restrain the free exercise of that consent, to the extent
that it has endeavored to do so."
Id. at 855.
In regard to the meaning of § 12P, the majority made the
following comments:
"1. The statute does not purport to require simply that parents
be notified and given an opportunity to communicate with the minor,
her chosen physician, or others. We mention this obvious fact
because of the persistence of defendants and intervenor in arguing
that the legislature could properly enact such a statute. Whether
it could is not before us, and there is no reason for our
considering it."
"2. The statute does not exclude those capable of forming an
intelligent consent, but applies to all minors. The statute's
provision calling for the minor's own consent recognizes that at
least some minors can consent, but the minor's consent must be
supplemented in every case, either by the consent of both parents
or by a court order."
"
* * * *"
"4. The statute does not purport simply to provide a check on
the validity of the minor's consent and the wisdom of her decision
from the standpoint of her interests alone. Rather, it recognizes
and provides rights in both parents, independent of, and hence
potentially at variance with, her own personal interests."
393 F. Supp. at 855.
"The dissent is seemingly of the opinion that a reviewing
Superior Court Judge would consider only the interests of the
minor. We find no room in the statute for so limited an
interpretation."
Id. at 855 n. 10. "The parents not only must be
consulted, they are given a veto."
Id. at 856.
The majority observed that "
neither the Fourteenth
Page 428 U. S.
141
Amendment nor the Bill of Rights is for adults alone,'
In re Gault, 1967, 387 U. S. 1,
387 U. S. 13,"
ibid., and, accordingly, held that the State cannot
control a minor's abortion in the first trimester any more than it
can control that of an adult. Re-emphasizing that "the statute is
cast not in terms of protecting the minor . . . , but in
recognizing independent rights of parents," the majority concluded
that "[t]he question comes, accordingly, do parents possess, apart
from right to counsel and guide, competing rights of their own?"
Ibid.
The majority found that, in the instant situation, unlike
others, the parents' interests often are adverse to those of the
minor, and, specifically rejecting the contrary result in
Planned Parenthood of Central Missouri v.
Danforth, 392 F.
Supp. 1362 (ED Mo.1975),
see ante p.
428 U. S. 52,
concluded:
"But even if it should be found that parents may have rights of
a Constitutional dimension
vis-a-vis their child that are
separate from the child's, we would find that, in the present area,
the individual rights of the minor outweigh the rights of the
parents, and must be protected."
393 F. Supp. at 857.
The dissent argued that the parents of Mary Moe I, by not being
informed of the action or joined as parties, "have been deprived of
their legal rights without due process of law,"
ibid.,
that the majority erred in refusing to appoint a guardian
ad
litem for Moe I, and that it erred in finding that she had the
capacity to give a valid and informed consent to an abortion. The
dissent further argued that parents possess constitutionally
cognizable rights in guiding the upbringing of their children, and
that the statute is a proper exercise of state power in protection
of those parental rights.
Id. at 857-865.
Most important, however, the dissent's view of the
Page 428 U. S. 142
statute differed markedly from the interpretation adopted by the
majority. The dissent stated:
"I find, therefore, no conceivable constitutional objection to
legislation providing in the case of a pregnant minor an additional
condition designed to make certain that she receive parental or
judicial guidance and counseling before having the abortion. The
requirement of consent of both parents[*] ensures that both parents
will provide counseling and guidance, each according to his or her
best judgment. The statute expressly provides that the parents'
refusal to consent is not final. The statute expressly gives the
state courts the right to make a final determination. If the state
courts find that the minor is mature enough to give an informed
consent to the abortion and that she has been adequately informed
about the nature of an abortion and its probable consequences to
her, then we must assume that the courts will enter the necessary
order permitting her to exercise her constitutional right to the
abortion."
Id. at 864. The indicated footnote reads:
"The majority speculate concerning possible interpretations of
the 'for good cause shown' language. There is also some doubt
whether the statute requires consent of one or both parents. The
construction of the statute is a matter of state law. If the
majority believe the only constitutional infirmities arise from
their interpretation of the statute, the majority should certify
questions of state law to the Supreme Judicial Court of
Massachusetts pursuant to Rule 3:21 of that court in order to
receive a definitive interpretation of the statute."
Id. at 864 n. 15.
Page 428 U. S. 143
Both appellants and intervenor appellant appealed. We noted
probable jurisdiction of each appeal and set the cases for oral
argument with
Planned Parenthood of Central Missouri v.
Danforth, ante p.
428 U. S. 52, and
its companion cross-appeal. 423 U.S. 982 (1975).
III
Appellants and intervenor appellant attack the District Court's
majority decision on a number of grounds. They argue,
inter
alia, and each in their or her own way, that § 12P properly
preserves the primacy of the family unit by reinforcing the role of
parents in fundamental decisions affecting family members; that the
District Court erred in failing to join Moe I's parents; that it
abused its discretion by failing to appoint a guardian
ad
litem; and that it erred in finding the statute facially
invalid when it was capable of a construction that would withstand
constitutional analysis.
The interpretation placed on the statute by appellants in this
Court is of some importance, and merits attention, for they are the
officials charged with enforcement of the statute. [
Footnote 10]
Page 428 U. S. 144
Appellants assert, first, that, under the statute, parental
consent may not be refused on the basis of concerns exclusively of
the parent. Indeed,
"the 'competing' parental right consists exclusively of the
right to assess independently, for their minor child, what will
serve that child's best interest. . . . [I]n operation, the
parents' actual deliberation must range no further than would that
of a pregnant adult making her own abortion decision."
Brief for Appellants 23. And the superior court's review will
ensure that parental objection based upon other considerations will
not operate to bar the minor's abortion.
Id. at 22-23.
See also Brief for Intervenor Appellant 26.
Second, appellants argue that the last paragraph of § 12P
[
Footnote 11] preserves the
"mature minor" rule in Massachusetts, under which a child
determined by a court to be capable of giving informed consent will
be allowed to do so. Appellants argue that, under this rule, a
pregnant minor could file a complaint in superior court seeking
authorization for an abortion, and, "[i]mportantly, such a
complaint could be filed
regardless of whether the parents
had been consulted or had withheld their consent." Brief for
Appellants 37-38 (emphasis in original); Tr. of Oral Arg. 17.
Appellants and the intervenor appellant assert that the procedure
employed would be structured
Page 428 U. S. 145
so as to be speedy and nonburdensome, and would ensure
anonymity. Brief for Appellants 38 n. 30; Brief for Intervenor
Appellant 26; Tr. of Oral Arg. 226.
Finally, appellants argue that, under § 12P, a judge of the
superior court may permit an abortion without parental consent for
a minor incapable of rendering informed consent, provided that
there is "good cause shown." Brief for Appellants 38. "Good cause"
includes a showing that the abortion is in the minor's best
interests.
Id. at 39.
The picture thus painted by the respective appellants is of a
statute that prefers parental consultation and consent, but that
permits a mature minor capable of giving informed consent to
obtain, without undue burden, an order permitting the abortion
without parental consultation, and, further, permits even a minor
incapable of giving informed consent to obtain an order without
parental consultation where there is a showing that the abortion
would be in her best interests. The statute, as thus read, would be
fundamentally different from a statute that creates a "parental
veto." [
Footnote 12]
Appellees, however, on their part, take an entirely different
view of the statute. They argue that the statute
Page 428 U. S. 146
creates a right to a parental veto, [
Footnote 13] that it creates an irrebuttable
presumption that a minor is incapable of informed consent,
[
Footnote 14] and that the
statute does not permit abortion without parental consent in the
case of a mature minor or, in the case of a minor incapable of
giving consent, where the parents are irrationally opposed to
abortion. [
Footnote 15]
Appellees specifically object to abstention. Their objection is
based upon their opinion that "the statute gives to parents of
minors an unbridled veto," Brief for Appellees 49, and that, once
that veto is exercised, the minor has the burden of proving to the
superior court judge that "good cause" exists.
Ibid. They
view the "good cause" hearing as forcing the judge to choose
"between the privacy rights of the young woman and the rights of
the parents as established by the statute."
Ibid. Assuming
that "good cause" has a broader meaning, appellees argue that the
hearing itself makes the statute unconstitutional, because of the
burden it imposes and the delay it entails.
Ibid.
IV
In deciding this case, we need go no further than the claim that
the District Court should have abstained pending construction of
the statute by the Massachusetts courts. As we have held on
numerous occasions, abstention
Page 428 U. S. 147
is appropriate where an unconstrued state statute is susceptible
of a construction by the state judiciary
"which might avoid in whole or in part the necessity for federal
constitutional adjudication, or at least materially change the
nature of the problem."
Harrison v. NAACP, 360 U. S. 167,
360 U. S. 177
(1959).
See also Colorado River Cons. Dist. v. United
States, 424 U. S. 800,
424 U. S.
813-814 (1976);
Carey v. Sugar, 425 U. S.
73,
425 U. S. 78-79
(1976);
Kusper v. Pontikes, 414 U. S.
51,
414 U. S. 54-55
(1973);
Lake Carriers' Assn. v. MacMullan, 406 U.S. at
406 U. S.
510-511;
Zwickler v. Koota, 389 U.
S. 241,
389 U. S. 249
(1967);
Railroad Comm'n v. Pullman Co., 312 U.
S. 496 (1941).
We do not accept appellees' assertion that the Supreme Judicial
Court of Massachusetts inevitably will interpret the statute so as
to create a "parental veto," require the superior court to act
other than in the best interests of the minor, or impose undue
burdens upon a minor capable of giving an informed consent.
In
Planned Parenthood of Central Missouri v. Danforth,
we today struck down a statute that created a parental veto.
Ante at
428 U. S. 72-75.
At the same time, however, we held that a requirement of written
consent on the part of a pregnant adult is not unconstitutional
unless it unduly burdens the right to seek an abortion. In this
case, we are concerned with a statute directed toward minors, as to
whom there are unquestionably greater risks of inability to give an
informed consent. Without holding that a requirement of a court
hearing would not unduly burden the rights of a mature adult,
cf. Doe v. Rampton, 366 F.
Supp. 189 (Utah 1973), we think it clear that, in the instant
litigation, adoption of appellants' interpretation would "at least
materially change the nature of the problem" that appellants claim
is presented.
Harrison v. NAACP, 360 U.S. at
360 U. S.
177.
Whether the Supreme Judicial Court will so interpret
Page 428 U. S. 148
the statute, or whether it will interpret the statute to require
consideration of factors not mentioned above, impose burdens more
serious than those suggested, or create some unanticipated
interference with the doctor-patient relationship, we cannot now
determine. [
Footnote 16] Nor
need we determine what factors are impermissible or at what point
review of consent and good cause in the case of a minor becomes
unduly burdensome. It is sufficient that the statute is susceptible
of the interpretation offered by appellants, and we so find, and
that such an interpretation would avoid or substantially modify the
federal constitutional challenge to the statute, as it clearly
would. Indeed, in the absence of an authoritative construction, it
is impossible to define precisely the constitutional question
presented.
Appellees also raise, however, a claim of impermissible
distinction between the consent procedures applicable to minors in
the area of abortion and the consent required in regard to other
medical procedures. This issue has come to the fore through the
advent of a Massachusetts statute, enacted subsequent to the
decision of the District Court, dealing with consent by minors to
medical procedures other than abortion and sterilization. [
Footnote 17] As
Page 428 U. S. 149
we hold today in
Planned Parenthood, however, not all
distinction between abortion and other procedures is forbidden.
Ante at
428 U. S. 80-81.
The constitutionality of such
Page 428 U. S. 150
distinction will depend upon its degree and the justification
for it. The constitutional issue cannot now be defined, however,
for the degree of distinction between the consent procedure for
abortions and the consent procedures for other medical procedures
cannot be established until the nature of the consent required for
abortions is established. In these circumstances, the federal court
should stay its hand to the same extent as in a challenge directly
to the burdens created by the statute. Finally, we note that the
Supreme Judicial Court of Massachusetts has adopted a Rule of Court
under which an issue of interpretation of Massachusetts law may be
certified directly to that court for prompt resolution. Mass.Rules
of Court, Sup.Jud.Ct. Rule 3:21 (1976). This Court often has
remarked that the equitable practice of abstention is limited by
considerations of "
the delay and expense to which application
of the abstention doctrine inevitably gives rise.'" Lake
Carriers' Assn. v. MacMullan, 406 U.S. at 406 U. S. 509,
quoting England v. Medical Examiners, 375 U.
S. 411, 375 U. S. 418
(1964). See Kusper v. Pontikes, 414 U.S. at 414 U. S. 54. As
we have also noted, however, the availability of an adequate
certification procedure [Footnote 18] "does, of course, in the long run, save
time,
Page 428 U. S. 151
energy, and resources, and helps build a cooperative judicial
federalism."
Lehman Brothers v. Schein, 416 U.
S. 386,
416 U. S. 391
(1974). This Court has utilized certification procedures in the
past, as have courts of appeals.
Ibid. and cases cited
therein at
416 U. S. 390
nn. 5 and 6.
The importance of speed in resolution of the instant litigation
is manifest. Each day the statute is in effect, irretrievable
events, with substantial personal consequences, occur. Although we
do not mean to intimate that abstention would be improper in this
case were certification not possible, the availability of
certification greatly simplifies the analysis. Further, in light of
our disapproval of a "parental veto" today in
Planned
Parenthood, we must assume that the lower Massachusetts
courts, if called upon to enforce the statute pending
interpretation by the Supreme Judicial Court, will not impose this
most serious barrier. Insofar as the issue thus ceases to become
one of total denial of access and becomes one, rather, of relative
burden, the cost of abstention is reduced, and the desirability of
that equitable remedy accordingly increased.
V
We therefore hold that the District Court should have certified
to the Supreme Judicial Court of Massachusetts appropriate
questions concerning the meaning of § 12P and the procedure it
imposes. In regard to the claim of impermissible discrimination due
to the 1975 statute, a claim not raised in the District Court but
subject to inquiry through an amended complaint, or perhaps by
other means, we believe that it would not be inappropriate for the
District Court, when any procedural requirement
Page 428 U. S. 152
has been complied with, also to certify a question concerning
the meaning of the new statute, and the extent to which its
procedures differ from the procedures that must be followed under §
12P.
The judgment of the District Court is vacated, and the cases are
remanded to that court for proceedings consistent with this
opinion.
It is so ordered.
|
428
U.S. 132|
* Together with No. 75-109,
Hunerwadel v. Baird et al.,
also on appeal from the same court.
[
Footnote 1]
Prior to the passage of the 1974 Act, there were already in
existence a § 12H and a § 12
I of c. 112. These were added
by Mass.Acts and Resolves 1973, c. 173, § 1, and c. 521, § 1,
respectively. The former called for the printing of the physician's
name on a prescription blank, and the latter concerned one's right
not to participate in an abortion or sterilization procedure, and
to be free from damages claims or discipline for exercising that
right. These preexisting §§ 12H and 12
I have not been
repealed. Consequently, due to this legislative oversight,
Massachusetts has two statutes denominated § 12H of c. 112, and two
denominated § 12
I of that chapter. This opinion, however,
concerns only the 1974 legislation.
[
Footnote 2]
"
Section 12N. Except in an emergency requiring
immediate action, no abortion may be performed under sections
twelve
I [before 24 weeks] or twelve J [24 weeks or more]
unless"
"(1) the written informed consent of the proper person or
persons has been delivered to the physician performing the abortion
as set forth in section twelve P and"
"(2) if the abortion is during or after the thirteenth week of
pregnancy it is performed in a hospital duly authorized to provide
facilities for general surgery."
"Except in an emergency requiring immediate action, no abortion
may be performed under section twelve J unless performed in a
hospital duly authorized to provide facilities for obstetrical
services."
[
Footnote 3]
Section 12Q provides in pertinent part:
"Any person who willfully violates the provisions of sections
twelve N or twelve O shall be punished by a fine of not less than
one hundred dollars nor more than two thousand dollars."
[
Footnote 4]
"
Section 12R. The attorney general or any person whose
consent is required either pursuant to section twelve P or under
common law, may petition the superior court for an order enjoining
the performance of any abortion that may be performed contrary to
the provisions of sections twelve
I through twelve Q."
[
Footnote 5]
Unless a statute is declared an emergency or may not be made the
subject of a referendum petition, a law passed by the General Court
does not take effect "earlier than ninety days after it has become
a law." Mass.Const. Amend., Art. 48, Referendum, pt. I (1963).
[
Footnote 6]
Because of the temporary restraining order and the injunction
subsequently issued by the three-judge court, Jurisdictional
Statement in No. 75-73, pp. A-33, A-34; App. 45-46, the parental
consent provisions of § 12P have not yet been effective.
[
Footnote 7]
The complaint as originally filed, named only Mary Moe I and
Mary Moe II as the pregnant minor plaintiffs, with affidavits
concerning their status attached. App. 16-18. Thereafter, in
November, 1974, affidavits were executed by Mary Moe III and Mary
Moe IV.
Id. at 19-22. The motion to certify the
plaintiffs' classes, filed December 9, 1974, refers to the four
Mary Moes. Similarly, the District Court referred to the fact that
four Mary Moes were named in the action.
393 F.
Supp. 847, 849, and n. 1 (1975). The record does not disclose
how or when Mary Moes III and IV were added as parties plaintiff.
In any event, Mary Moes II, III, and IV were dismissed from the
suit for failure to adduce evidence supporting their standing,
id. at 849 n. 1, and they have not appealed that ruling.
The way in which Mary Moes III and IV entered the case, therefore,
is of no concern to us here.
We note that the fact the pregnancy of Mary Moe I has been
terminated (through an abortion performed under the protection of
the temporary restraining order entered by the District Court,
id. at 850 n. 4) in no way moots the case.
Roe v.
Wade, 410 U. S. 113,
410 U. S.
124-125 (1973).
[
Footnote 8]
Also permitted to intervene as defendants were Kathleen Roth and
others, parents situated similarly to Hunerwadel, and Jane Doe, an
anonymous parent of a pregnant unmarried minor. The District Court
dismissed all the intervenors except Hunerwadel for failure to
adduce facts necessary to show standing. 393 F. Supp. at 850.
Technically, these dismissed intervenors, who have not appealed,
might well be classified as appellees under our Rule 10(4). Their
status, however, does not affect the disposition of these
cases.
[
Footnote 9]
In regard to appellee Baird, the majority stated: "In the light
of the unassailable standing of other plaintiffs . . . we do not
pass on the question of Baird's standing." 393 F. Supp. at 851.
[
Footnote 10]
It is not entirely clear that appellants suggested the same
interpretation in the District Court as they suggest here.
See 393 F. Supp. at 855. Nevertheless, the fact that the
full arguments in favor of abstention may not have been asserted in
the District Court does not bar this Court's consideration of the
issue.
Cf. Wisconsin v. Constantineau, 400 U.
S. 433,
400 U. S. 437
(1971).
The practice of abstention is equitable in nature,
see
Railroad Comm'n v. Pullman Co., 312 U.
S. 496,
312 U. S.
500-501 (1941), and it would not be improper to consider
the effect of delay caused by the State's failure to suggest or
seek a constitutional interpretation.
Cf. Baggett v.
Bullitt, 377 U. S. 360,
377 U. S. 379
(1964). In the instant case, however, there has been no injury to
appellees' rights due to the delay (if any) in the appellants'
coming forward with the interpretation they now espouse. As a
result of the various orders of the District Court, the challenged
portion of the statute has never gone into effect. Nor can we adopt
the view that, once a request for abstention is made, it is beyond
the power of the District Court to consider possible
interpretations that have not been put forth by the parties.
Indeed, it would appear that abstention may be raised by the court
sua sponte. See Railroad Comm'n v. Pullman Co.,
supra. Cf. England v. Medical Examiners, 375 U.
S. 411,
375 U. S. 413
(1964).
[
Footnote 11]
"Nothing in this section shall be construed as abolishing or
limiting any common law rights of any other person or persons
relative to consent to the performance of an abortion for purposes
of any civil action or any injunctive relief under section twelve
R."
[
Footnote 12]
See generally Planned Parenthood of Missouri v. Danforth,
ante p.
428 U. S. 52;
Poe v. Gerstein, 517 F.2d 787 (CA5 1975),
appeal
docketed, No. 75-713;
Jackson v. Guste, Civ.Action
No. 74-2425 (ED La. Jan. 26, 1976);
Doe v.
Zimmerman, 405 F.
Supp. 534 (MD Pa.1975);
Doe v. Exon, Civ.Action No. CV
75-L-146 (Neb. Oct. 8, 1975);
Planned Parenthood Assn. v.
Fitzpatrick, 401 F.
Supp. 554 (ED Pa.1975);
Foe v.
Vanderhoof, 389 F.
Supp. 947 (Colo.1975);
Gary-Northwest Indiana Women's
Services v. Bowen, Civ.Action No. H-74-289 (ND Ind. Jan. 3,
1975);
Wolfe v. Schroering, 388 F.
Supp. 631 (WD Ky.1974);
State v. Koome, 84 Wash. 2d
901,
530 P.2d
260 (1975).
[
Footnote 13]
"[The statute can] force a pregnant sixteen year old to become a
seventeen-year-old mother because her own mother wants a
grandchild." Brief for Appellees 33.
[
Footnote 14]
"[T]he parental consent statute constitutes a legislative decree
that no person under age 18 is competent to consent to an abortion.
This contravenes the line of decisions which have struck down
certain irrebuttable presumptions as violative of due process."
Id. at 42.
[
Footnote 15]
"The statute has no exception for mature minors, or other minors
with immature, emotionally upset parents."
Id. at 46.
[
Footnote 16]
As stated in
n 6,
supra, the challenged portion of the statute has never
gone into effect. The heated debate among the parties over the
meaning of the statute is a strong indication of the ambiguities it
contains. We assume that the Supreme Judicial Court will do
everything in its power to interpret the Act in conformity with its
title: "An Act to protect . . . within present constitutional
limits."
See Boehning v. Indiana State Employees Assn.,
423 U. S. 6
(1975).
[
Footnote 17]
Prior to the enactment of that statute, the consent procedure in
regard to abortion, at least as interpreted by appellants, was
arguably merely a codification of the common law.
See
Brief for Appellants 24-39. The new legislation, Mass.Acts and
Resolves 1975, c. 564, approved Aug. 28, 1975, reads:
"Chapter 112 of the General Laws is hereby amended by striking
out section 12F, as amended by section 1 of chapter 335 of the acts
of 1971, and inserting in place thereof the following section:"
"Section 12F."
"No physician, dentist or hospital shall be held liable for
damages for failure to obtain consent of a parent, legal guardian,
or other person having custody or control of a minor child, or of
the spouse of a patient, to emergency examination and treatment,
including blood transfusions, when delay in treatment will endanger
the life, limb, or mental wellbeing of the patient."
"Any minor may give consent to his medical or dental care at the
time such care is sought if (
i) he is married, widowed,
divorced; or (
ii) he is the parent of a child, in which
case he may also give consent to medical or dental care of the
child; or (
iii) he is a member of any of the armed forces;
or (
iv) she is pregnant or believes herself to be
pregnant; or (
v) he is living separate and apart from his
parent or legal guardian, and is managing his own financial
affairs; or (
vi) he reasonably believes himself to be
suffering from or to have come in contact with any disease defined
as dangerous to the public health pursuant to section six of
chapter one hundred and eleven; provided, however, that such minor
may only consent to care which relates to the diagnosis or
treatment of such disease."
"Consent shall not be granted under subparagraphs (
ii)
through (
vi), inclusive, for abortion or
sterilization."
"Consent given under this section shall not be subject to later
disaffirmance because of minority. The consent of the parent or
legal guardian shall not be required to authorize such care and,
notwithstanding any other provisions of law, such parent or legal
guardian shall not be liable for the payment for any care rendered
pursuant to this section unless such parent or legal guardian has
expressly agreed to pay for such care."
"No physician or dentist, nor any hospital, clinic or infirmary
shall be liable, civilly and criminally, for not obtaining the
consent of the parent or legal guardian to render medical or dental
care to a minor, if, at the time such care was rendered, such
person or facility: (
i) relied in good faith upon the
representations of such minor that he is legally able to consent to
such treatment under this section; or (
ii) relied in good
faith upon the representations of such minor that he is over
eighteen years of age."
"All information and records kept in connection with the medical
or dental care of a minor who consents thereto in accordance with
this section shall be confidential between the minor and the
physician or dentist, and shall not be released except upon the
written consent of the minor or a proper judicial order. When the
physician or dentist attending a minor reasonably believes the
condition of said minor to be so serious that his life or limb is
endangered, the physician or dentist shall notify the parents,
legal guardian or foster parents of said condition and shall inform
the minor of said notification."
[
Footnote 18]
There is no indication that the Massachusetts certification
procedure is inadequate. Indeed, the dissent in the District Court
cited a prior case in which the procedure was employed with no
apparent difficulty. 393 F. Supp. at 864 n. 15, citing
Hendrickson v. Sears, 495 F.2d 513 (CA1 1974).