A Massachusetts statute requires parental consent before an
abortion can be performed on an unmarried woman under the age of
18. If one or both parents refuse such consent, however, the
abortion may be obtained by order of a judge of the superior court
"for good cause shown." In appellees' class action challenging the
constitutionality of the statute, a three-judge District Court held
it unconstitutional. Subsequently, this Court vacated the District
Court's judgment,
Bellotti v. Baird, 428 U.
S. 132, holding that the District Court should have
abstained and certified to the Massachusetts Supreme Judicial Court
appropriate questions concerning the meaning of the statute. On
remand, the District Court certified several questions to the
Supreme Judicial Court. Among the questions certified was whether
the statute permits any minors -- mature or immature -- to obtain
judicial consent to an abortion without any parental consultation
whatsoever. The Supreme Judicial Court answered that, in general,
it does not; that consent must be obtained for every nonemergency
abortion unless no parent is available; and that an available
parent must be given notice of any judicial proceedings brought by
a minor to obtain consent for an abortion. Another question
certified was whether, if the superior court finds that the minor
is capable of making, and has, in fact, made and adhered to, an
informed and reasonable decision to have an abortion, the court may
refuse its consent on a finding that a parent's, or its own,
contrary decision is a better one. The Supreme Judicial Court
answered in the affirmative. Following the Supreme Judicial Court's
judgment, the District Court again declared the statute
unconstitutional and enjoined its enforcement.
Held: The judgment is affirmed. Pp.
443 U. S.
633-651;
443 U. S.
652-656.
450 F.
Supp. 997, affirmed.
MR. JUSTICE POWELL, joined by MR. CHIEF JUSTICE BURGER, MR.
JUSTICE STEWART, and MR. JUSTICE REHNQUIST, concluded that:
1. There are three reasons justifying the conclusion that the
constitutional
Page 443 U. S. 623
rights of children cannot be equated with those of adults: the
peculiar vulnerability of children; their inability to make
critical decisions in an informed, mature manner; and the
importance of the guiding role of parents in the upbringing of
their children. Pp.
443 U. S.
633-639.
2. The abortion decision differs in important ways from other
decisions facing minors, and the State is required to act with
particular sensitivity when it legislates to foster parental
involvement in this matter. Pp.
443 U. S.
639-642.
3. If a State decides to require a pregnant minor to obtain one
or both parents' consent to an abortion, it also must provide an
alternative procedure whereby authorization for the abortion can be
obtained. A pregnant minor is entitled in such a proceeding to show
either that she is mature enough and well enough informed to make
her abortion decision, in consultation with her physician,
independently of her parents' wishes, or that, even if she is not
able to make this decision independently, the desired abortion
would be in her best interests. Such a procedure must ensure that
the provision requiring parental consent does not, in fact, amount
to an impermissible "absolute, and possibly arbitrary, veto."
Planned Parenthood of Central Missouri v. Danforth,
428 U. S. 52,
428 U. S. 74.
Pp.
443 U. S.
642-644.
4. The Massachusetts statute, as authoritatively interpreted by
the Supreme Judicial Court, unduly burdens the right to seek an
abortion. The statute falls short of constitutional standards in
two respects. First, it permits judicial authorization for an
abortion to be withheld from a minor who is found by the superior
court to be mature and fully competent to make this decision
independently. Second, it requires parental consultation or
notification in every instance, whether or not in the pregnant
minor's best interests, without affording her an opportunity to
receive an independent judicial determination that she is mature
enough to consent or that an abortion would be in her best
interests. Pp.
443 U. S.
644-651.
MR. JUSTICE STEVENS, joined by MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE BLACKMUN, concluded that the
Massachusetts statute is unconstitutional because under the
statute, as written and as construed by the Massachusetts Supreme
Judicial Court, no minor, no matter how mature and capable of
informed decisionmaking, may receive an abortion without the
consent of either both parents or a superior court judge, thus
making the minor's abortion decision subject in every instance to
an absolute third-party veto.
Planned Parenthood of Central
Missouri v. Danforth, 428 U. S. 52,
controlling. Pp.
443 U. S.
652-656.
POWELL, J., announced the judgment of the Court and delivered an
opinion, in which BURGER, C.J., and STEWART and REHNQUIST, JJ.,
joined.
Page 443 U. S. 624
REHNQUIST, J., filed a concurring opinion,
post, p.
443 U. S. 651.
STEVENS, J., filed an opinion concurring in the judgment, in which
BRENNAN, MARSHALL, and BLACKMUN, JJ., joined,
post, p.
443 U. S. 652.
WHITE, J., filed a dissenting opinion,
post, p.
443 U. S.
656.
MR. JUSTICE POWELL announced the judgment of the Court and
delivered an opinion, in which THE CHIEF JUSTICE, MR. JUSTICE
STEWART, and MR. JUSTICE REHNQUIST joined.
These appeals present a challenge to the constitutionality of a
state statute regulating the access of minors to abortions. They
require us to continue the inquiry we began in
Planned
Parenthood of Central Missouri v. Danforth, 428 U. S.
52 (1976), and
Bellotti v. Baird, 428 U.
S. 132 (1976).
Page 443 U. S. 625
I
A
On August 2, 1974, the Legislature of the Commonwealth of
Massachusetts passed, over the Governor's veto, an Act pertaining
to abortions performed within the State. 1974 Mass. Acts, ch. 706.
According to its title, the statute was intended to regulate
abortions "within present constitutional limits." Shortly before
the Act was to go into effect, the class action from which these
appeals arise was commenced in the District Court [
Footnote 1] to enjoin, as unconstitutional,
the provision of the Act now codified as Mass Gen.Laws Ann., ch.
112, 12S (West Supp. 1979). [
Footnote 2]
Section 12S provides in part:
"If the mother is less than eighteen years of age and has not
married, the consent of both the mother and her parents [to an
abortion to be performed on the mother] is required. If one or both
of the mother's parents refuse such consent, consent may be
obtained by order of a judge of the superior court for good cause
shown, after such hearing as he deems necessary. Such a hearing
will not require the appointment of a guardian for the mother. If
one of the parents has died or has deserted his or her family,
consent by the remaining parent is sufficient. If both parents have
died or have deserted their family, consent of the mother's
guardian or other
Page 443 U. S. 626
person having duties similar to a guardian, or any person who
had assumed the care and custody of the mother is sufficient. The
commissioner of public health shall prescribe a written form for
such consent. Such form shall be signed by the proper person or
persons and given to the physician performing the abortion who
shall maintain it in his permanent files."
Physicians performing abortions in the absence of the consent
required by § 12S are subject to injunctions and criminal
penalties.
See Mass.Gen.Laws Ann., ch. 112, §§ 12Q, 12T,
and 12U (West Supp. 1979).
A three-judge District Court was convened to hear the case
pursuant to 28 U.S.C. § 2281 (1970 ed.), repealed by Pub.L. 94-381,
§ 1, 90 Stat. 1119. [
Footnote
3] Plaintiffs in the suit, appellees in both the cases before
us now, were William Baird; Parents Aid Society, Inc. (Parents
Aid), of which Baird is founder and director; Gerald Zupnick, M.D.,
who regularly performs abortions at the Parents Aid clinic; and an
unmarried minor, identified by the pseudonym "Mary Moe," who, at
the commencement of the suit, was pregnant, residing at home with
her parents, and desirous of obtaining an abortion without
informing them. [
Footnote
4]
Mary Moe was permitted to represent the "class of unmarried
minors in Massachusetts who have adequate capacity to give a valid
and informed consent [to abortion], and who do not wish to involve
their parents."
Baird v. Bellotti, 393 F.
Supp. 847, 850 (Mass.1975) (
Baird I). Initially there
was some confusion whether the rights of minors who wish abortions
without parental involvement but who lack "adequate capacity" to
give such consent also could be adjudicated in
Page 443 U. S. 627
the suit. The District Court ultimately determined that Dr.
Zupnick was entitled to assert the rights of these minors.
See
Baird v. Bellotti, 450 F.
Supp. 997, 1001, and n. 6 (Mass.1978). [
Footnote 5]
Planned Parenthood League of Massachusetts and Crittenton
Hastings House & Clinic, both organizations that provide
counseling to pregnant adolescents, and Phillip Stubblefield, M.D.
(intervenors), [
Footnote 6]
appeared as
amici curiae on behalf of the plaintiffs. The
District Court "accepted [this group] in a status something more
than
amici because of reservations about the adequacy of
plaintiffs' representation [of the plaintiff classes in the suit]."
Id. at 999 n. 3.
Defendants in the suit, appellants here in No. 78-329, were the
Attorney General of Massachusetts and the District Attorneys of all
counties in the State. Jane Hunerwadel was permitted to intervene
as a defendant and representative of the class of Massachusetts
parents having unmarried minor daughters who then were, or might
become, pregnant. She and the class she represents are appellants
in No. 78-330. [
Footnote 7]
Following three days of testimony, the District Court issued an
opinion invalidating § 12S.
Baird I, supra. The court
rejected appellees' argument that all minors capable of becoming
pregnant also are capable of giving informed consent
Page 443 U. S. 628
to an abortion, or that it always is in the best interests of a
minor who desires an abortion to have one.
See 393 F.
Supp. at 854. But the court was convinced that "a substantial
number of females under the age of 18 are capable of forming a
valid consent,"
id. at 855, and "that a significant number
of [these] are unwilling to tell their parents."
Id. at
853.
In its analysis of the relevant constitutional principles, the
court stated that
"there can be no doubt but that a female's constitutional right
to an abortion in the first trimester does not depend upon her
calendar age."
Id. at 855-856. The court found no justification for
the parental consent limitation placed on that right by § 12S,
since it concluded that the statute was "cast not in terms of
protecting the minor, . . . but in recognizing independent rights
of parents."
Id. at 856. The "independent" parental rights
protected by § 12S, as the court understood them, were wholly
distinct from the best interests of the minor. [
Footnote 8]
B
Appellants sought review in this Court, and we noted probable
jurisdiction.
Bellotti v. Baird, 423 U.S. 982 (1975)
After briefing and oral argument, it became apparent that § 12S
was susceptible of a construction that "would avoid or
substantially modify the federal constitutional challenge to the
statute."
Bellotti v. Baird, 428 U.
S. 132,
428 U. S. 148
(1976) (
Bellotti I). We therefore vacated the judgment of
the District Court, concluding that it should have abstained and
certified to the Supreme Judicial Court of Massachusetts
appropriate questions concerning the meaning of § 12S, pursuant to
existing
Page 443 U. S. 629
procedure in that State.
See Mass.Sup.Jud.Ct. Rule
3:21.
On remand, the District Court certified nine questions to the
Supreme Judicial Court. [
Footnote
9] These were answered in an
Page 443 U. S. 630
opinion styled
Baird v. Attorney General, 371 Mass.
741,
360
N.E.2d 288 (1977) (
Attorney General). Among the more
important aspects of § 12S, as authoritatively construed by the
Supreme Judicial Court, are the following:
1. In deciding whether to grant consent to their daughter's
abortion, parents are required by § 12S to consider exclusively
what will serve her best interests.
See id. at 746-747,
360 N.E.2d at 292-293.
2. The provision in § 12S that judicial consent for an abortion
shall be granted, parental objections notwithstanding, "for good
cause shown" means that such consent shall be granted if found to
be in the minor's best interests. The judge "must disregard all
parental objections, and other considerations, which are not based
exclusively" on that standard.
Id. at 748, 360 N.E.2d at
293.
3. Even if the judge in a § 12S proceeding finds "that the minor
is capable of making, and has made, an informed and reasonable
decision to have an abortion," he is entitled to withhold consent
"in circumstances where he determines that the best interests of
the minor will not be served by an abortion."
Ibid., 360
N.E.2d at 293.
4. As a general rule, a minor who desires an abortion may not
obtain judicial consent without first seeking both parents'
consent. Exceptions to the rule exist when a parent is not
available or when the need for the abortion constitutes "
an
emergency requiring immediate action.'" [Footnote 10] Id. at 750, 360 N.E.2d at 294.
Unless a parent is not available, he must be notified of any
judicial proceedings brought under § 12S. Id. at 755-756,
360 N.E.2d at 297.
Page 443 U. S. 631
5. The resolution of § 12S cases and any appeals that follow can
be expected to be prompt. The name of the minor and her parents may
be held in confidence. If need be, the Supreme Judicial Court and
the superior courts can promulgate rules or issue orders to ensure
that such proceedings are handled expeditiously.
Id. at
756-758, 360 N.E.2d at 297-298.
6. Massachusetts Gen.Laws Ann., ch. 112, § 12F (West Supp.
1979), which provides,
inter alia, that certain classes of
minors may consent to most kinds of medical care without parental
approval, does not apply to abortions, except as to minors who are
married, widowed, or divorced.
See 371 Mass. at 758-762,
360 N.E.2d at 298-300. Nor does the State's common law "mature
minor rule" create an exception to § 12S.
Id. at 749-750,
360 N.E.2d at 294.
See n 27,
infra.
C
Following the judgment of the Supreme Judicial Court, appellees
returned to the District Court and obtained a stay of the
enforcement of § 12S until its constitutionality could be
determined.
Baird v. Bellotti, 428 F.
Supp. 854 (Mass.1977) (
Baird II). After permitting
discovery by both sides, holding a pretrial conference, and
conducting further hearings, the District Court again declared §
12S unconstitutional and enjoined its enforcement.
Baird v.
Bellotti, 450 F.
Supp. 997 (Mass.1978) (
Baird III). The court
identified three particular aspects of the statute which, in its
view, rendered it unconstitutional.
First, as construed by the Supreme Judicial Court, § 12S
requires parental notice in virtually every ease where the parent
is available. The court believed that the evidence warranted a
finding
"that many, perhaps a large majority of 17-year olds are capable
of informed consent, as are a not insubstantial number of 16-year
olds, and some even younger."
Id. at 1001. In addition, the court concluded that it
would not be in
Page 443 U. S. 632
the best interests of some "immature" minors -- those incapable
of giving informed consent -- even to inform their parents of their
intended abortions. Although the court declined to decide whether
the burden of requiring a minor to take her parents to court was,
per se, an impermissible burden on her right to seek an
abortion, it concluded that Massachusetts could not
constitutionally insist that parental permission be sought or
notice given
"in those cases where a court, if given free rein, would find
that it was to the minor's best interests that one or both of her
parents not be informed . . ."
Id. at 1002.
Second, the District Court held that § 12S was defective in
permitting a judge to veto the abortion decision of a minor found
to be capable of giving informed consent. The court reasoned that,
upon a finding of maturity and informed consent, the State no
longer was entitled to impose legal restrictions upon this
decision.
Id. at 1003. Given such a finding, the court
could see "no reasonable basis" for distinguishing between a minor
and an adult, and it therefore concluded that § 12S was not only
"an undue burden in the due process sense, [but] a discriminatory
denial of equal protection [as well]."
Id. at 1004.
Finally, the court decided that § 12S suffered from what it
termed "formal overbreadth,"
ibid., because the statute
failed explicitly to inform parents that they must consider only
the minor's best interests in deciding whether to grant consent.
The court believed that, despite the Supreme Judicial Court's
construction of § 12S, parents naturally would infer from the
statute that they were entitled to withhold consent for other,
impermissible reasons. This was thought to create a "chilling
effect" by enhancing the possibility that parental consent would be
denied wrongfully and that the minor would have to proceed in
court.
Having identified these flaws in § 12S, the District Court
considered whether it should engage in "judicial repair."
Id. at 1005. It declined either to sever the statute or to
give
Page 443 U. S. 633
it a construction different from that set out by the Supreme
Judicial Court, as that tribunal arguably had invited it to do.
See Attorney General, 371 Mass. at 745-746, 360 N.E.2d at
292. The District Court therefore adhered to its previous position,
declaring § 12S unconstitutional and permanently enjoining its
enforcement. [
Footnote 11]
Appellants sought review in this Court a second time, and we again
noted probable jurisdiction. 439 U.S. 925 (1978).
II
A child, merely on account of his minority, is not beyond the
protection of the Constitution. As the Court said in
In re
Gault, 387 U. S. 1,
387 U. S. 13
(1967), "whatever may be their precise impact, neither the
Fourteenth Amendment nor the Bill of Rights is for adults alone."
[
Footnote 12] This
observation, of course, is but the beginning of the analysis. The
Court long has recognized that the status of minors under the law
is unique in many respects. As Mr. Justice Frankfurter aptly put
it:
"Children have a very special place in life which law should
reflect. Legal theories and their phrasing in other cases readily
lead to fallacious reasoning if uncritically transferred to
determination
Page 443 U. S. 634
of a State's duty towards children."
May v. Anderson, 345 U. S. 528,
345 U. S. 536
(1953) (concurring opinion). The unique role in our society of the
family, the institution by which "we inculcate and pass down many
of our most cherished values, moral and cultural,"
Moore v.
East Cleveland, 431 U. S. 494,
431 U. S.
503-504 (1977) (plurality opinion), requires that
constitutional principles be applied with sensitivity and
flexibility to the special needs of parents and children. We have
recognized three reasons justifying the conclusion that the
constitutional rights of children cannot be equated with those of
adults: the peculiar vulnerability of children; their inability to
make critical decisions in an informed, mature manner; and the
importance of the parental role in child rearing.
A
The Court's concern for the vulnerability of children is
demonstrated in its decisions dealing with minors' claims to
constitutional protection against deprivations of liberty or
property interests by the State. With respect to many of these
claims, we have concluded that the child's right is virtually
coextensive with that of an adult. For example, the Court has held
that the Fourteenth Amendment's guarantee against the deprivation
of liberty without due process of law is applicable to children in
juvenile delinquency proceedings.
In re Gault, supra. In
particular, minors involved in such proceedings are entitled to
adequate notice, the assistance of counsel, and the opportunity to
confront their accusers. They can be found guilty only upon proof
beyond a reasonable doubt, and they may assert the privilege
against compulsory self-incrimination.
In re Winship,
397 U. S. 358
(1970);
In re Gault, supra. See also Ingraham v.
Wright, 430 U. S. 651,
430 U. S. 674
(1977) (corporal punishment of schoolchildren implicates
constitutionally protected liberty interest);
cf. Breed v.
Jones, 421 U. S. 519
(1975) (Double Jeopardy Clause prohibits prosecuting juvenile as an
adult after an adjudicatory finding in juvenile court that he had
violated a criminal statute).
Page 443 U. S. 635
Similarly, in
Goss v. Lopez, 419 U.
S. 565 (1975), the Court held that children may not be
deprived of certain property interests without due process.
These rulings have not been made on the uncritical assumption
that the constitutional rights of children are indistinguishable
from those of adults. Indeed, our acceptance of juvenile courts
distinct from the adult criminal justice system assumes that
juvenile offenders constitutionally may be treated differently from
adults. In order to preserve this separate avenue for dealing with
minors, the Court has said that hearings in juvenile delinquency
cases need not necessarily "
conform with all of the
requirements of a criminal trial or even of the usual
administrative hearing.'" In re Gault, supra at
387 U. S. 30,
quoting Kent v. United States, 383 U.
S. 541, 383 U. S. 562
(1966). Thus, juveniles are not constitutionally entitled to trial
by jury in delinquency adjudications. McKeiver v.
Pennsylvania, 403 U. S. 528
(1971). Viewed together, our cases show that, although children
generally are protected by the same constitutional guarantees
against governmental deprivations as are adults, the State is
entitled to adjust its legal system to account for children's
vulnerability and their needs for "concern, . . . sympathy, and . .
. paternal attention." Id. at 403 U. S. 550
(plurality opinion).
B
Second, the Court has held that the States validly may limit the
freedom of children to choose for themselves in the making of
important, affirmative choices with potentially serious
consequences. These rulings have been grounded in the recognition
that, during the formative years of childhood and adolescence,
minors often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them.
[
Footnote 13]
Page 443 U. S. 636
Ginsberg v. New York, 390 U. S. 629
(1968), illustrates well the Court's concern over the inability of
children to make mature choices, as the First Amendment rights
involved are clear examples of constitutionally protected freedoms
of choice. At issue was a criminal conviction for selling sexually
oriented magazines to a minor under the age of 17 in violation of a
New York state law. It was conceded that the conviction could not
have stood under the First Amendment if based upon a sale of the
same material to an adult.
Id. at
390 U. S. 634.
Notwithstanding the importance the Court always has attached to
First Amendment rights, it concluded that,
"even where there is an invasion of protected freedoms, 'the
power of the state to control the conduct of children reaches
beyond the scope of its authority over adults . . . ,'"
id. at
390 U. S. 638,
quoting
Prince v. Massachusetts, 321 U.
S. 158,
321 U. S. 170
(1944). [
Footnote 14] The
Court was convinced that the New York Legislature rationally could
conclude that the sale to children of the magazines in question
presented a danger against which they should be guarded.
Ginsberg, supra, at
390 U. S. 641.
It therefore rejected the
Page 443 U. S. 637
argument that the New York law violated the constitutional
rights of minors. [
Footnote
15]
C
Third, the guiding role of parents in the upbringing of their
children justifies limitations on the freedoms of minors. The State
commonly protects its youth from adverse governmental action and
from their own immaturity by requiring parental consent to or
involvement in important decisions by minors. [
Footnote 16] But an additional and more
important justification for state deference to parental control
over children is that
"[t]he child is not the mere creature of the State; those who
nurture him and direct his destiny have the right, coupled with the
high duty, to recognize and prepare him for additional
obligations."
Pierce v. Society of Sisters, 268 U.
S. 510,
268 U. S. 535
(1925).
"The duty to prepare the child for 'additional obligations' . .
.
Page 443 U. S. 638
must be read to include the inculcation of moral standards,
religious beliefs, and elements of good citizenship."
Wisconsin v. Yoder, 406 U. S. 205,
406 U. S. 233
(1972). This affirmative process of teaching, guiding, and
inspiring by precept and example is essential to the growth of
young people into mature, socially responsible citizens.
We have believed in this country that this process, in large
part, is beyond the competence of impersonal political
institutions. Indeed, affirmative sponsorship of particular
ethical, religious, or political beliefs is something we expect the
State not to attempt in a society constitutionally committed to the
ideal of individual liberty and freedom of choice. Thus,
"[i]t is cardinal with us that the custody, care and nurture of
the child reside first in the parents, whose primary function and
freedom include
preparation for obligations the state can
neither supply nor hinder."
Prince v. Massachusetts, supra at
321 U. S. 166
(emphasis added).
Unquestionably, there are many competing theories about the most
effective way for parents to fulfill their central role in
assisting their children on the way to responsible adulthood. While
we do not pretend any special wisdom on this subject, we cannot
ignore that central to many of these theories, and deeply rooted in
our Nation's history and tradition, is the belief that the parental
role implies a substantial measure of authority over one's
children. Indeed,
"constitutional interpretation has consistently recognized that
the parents' claim to authority in their own household to direct
the rearing of their children is basic in the structure of our
society."
Ginsberg v. New York, supra at
390 U. S.
639.
Properly understood, then, the tradition of parental authority
is not inconsistent with our tradition of individual liberty;
rather, the former is one of the basic presuppositions of the
latter. Legal restrictions on minors, especially those supportive
of the parental role, may be important to the child's chances for
the full growth and maturity that make eventual
Page 443 U. S. 639
participation in a free society meaningful and rewarding.
[
Footnote 17] Under the
Constitution, the State can
"properly conclude that parents and others, teachers for
example, who have [the] primary responsibility for children's
wellbeing are entitled to the support of laws designed to aid
discharge of that responsibility."
Ginsberg v. New York, 390 U.S. at
390 U. S. 639.
[
Footnote 18]
III
With these principles in mind, we consider the specific
constitutional questions presented by these appeals. In § 12S,
Massachusetts has attempted to reconcile the constitutional right
of a woman, in consultation with her physician, to choose to
terminate her pregnancy as established by
Roe v. Wade,
410 U. S. 113
(1973), and
Doe v. Bolton, 410 U.
S. 179 (1973), with the special interest of the State in
encouraging an unmarried pregnant minor to seek the advice of her
parents in making the important decision whether or not to bear a
child. As noted above, § 12S was before us in
Bellotti I,
428 U. S. 132
(1976), where we remanded the case for interpretation of its
provisions by the Supreme Judicial Court of Massachusetts. We
previously had held in
Planned Parenthood of Central Missouri
v. Danforth, 428 U. S. 52
(1976), that a State could not lawfully authorize an absolute
parental veto over the decision of a minor to terminate her
pregnancy.
Id. at
428 U. S. 74. In
Page 443 U. S. 640
Bellotti I, supra, we recognized that § 12S could be
read as "fundamentally different from a statute that creates a
parental veto,'" 428 U.S. at 428 U. S. 145,
thus "avoid[ing] or substantially modify[ing] the federal
constitutional challenge to the statute." Id. at
428 U. S. 148.
The question before us -- in light of what we have said in the
prior cases -- is whether § 12S, as authoritatively interpreted by
the Supreme Judicial Court, provides for parental notice and
consent in a manner that does not unduly burden the right to seek
an abortion. See id. at 428 U. S.
147.
Appellees and intervenors contend that, even as interpreted by
the Supreme Judicial Court of Massachusetts § 12S does unduly
burden this right. They suggest, for example, that the mere
requirement of parental notice constitutes such a burden. As stated
in
443 U. S.
above, however, parental notice and consent are qualifications that
typically may be imposed by the State on a minor's right to make
important decisions. As immature minors often lack the ability to
make fully informed choices that take account of both immediate and
long-range consequences, a State reasonably may determine that
parental consultation often is desirable and in the best interest
of the minor. [
Footnote 19]
It may further determine, as a general proposition, that such
consultation is particularly desirable with respect to the abortion
decision -- one that for some people raises profound moral and
religious concerns. [
Footnote
20] As MR. JUSTICE STEWART wrote in concurrence in
Planned
Parenthood of Central Missouri v. Danforth, supra, at
428 U. S.
91:
"There can be little doubt that the State furthers a
constitutionally permissible end by encouraging an unmarried
Page 443 U. S. 641
pregnant minor to seek the help and advice of her parents in
making the very important decision whether or not to bear a child.
That is a grave decision, and a girl of tender years, under
emotional stress, may be ill-equipped to make it without mature
advice and emotional support. It seems unlikely that she will
obtain adequate counsel and support from the attending physician at
an abortion clinic, where abortions for pregnant minors frequently
take place."
(Footnote omitted.) [
Footnote
21]
Page 443 U. S. 642
But we are concerned here with a constitutional right to seek an
abortion. The abortion decision differs in important ways from
other decisions that may be made during minority. The need to
preserve the constitutional right and the unique nature of the
abortion decision, especially when made by a minor, require a State
to act with particular sensitivity when it legislates to foster
parental involvement in this matter.
A
The pregnant minor's options are much different from those
facing a minor in other situations, such as deciding whether to
marry. A minor not permitted to marry before the age of majority is
required simply to postpone her decision. She and her intended
spouse may preserve the opportunity for later marriage should they
continue to desire it. A pregnant adolescent, however, cannot
preserve for long the possibility of aborting, which effectively
expires in a matter of weeks from the onset of pregnancy.
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.
Yet an abortion may not be the best choice for the minor. The
circumstances in which this issue arises will vary widely. In a
given case, alternatives to abortion, such as marriage to the
father of the child, arranging for its adoption, or assuming the
responsibilities of motherhood with the assured support of
Page 443 U. S. 643
family, may be feasible and relevant to the minor's best
interests. Nonetheless, the abortion decision is one that simply
cannot be postponed, or it will be made by default, with
far-reaching consequences.
For these reasons, as we held in
Planned Parenthood of
Central Missouri v. Danforth, 428 U.S. at
428 U. S.
74,
"the State may not impose a blanket provision . . . requiring
the consent of a parent or person
in loco parentis as a
condition for abortion of an unmarried minor during the first 12
weeks of her pregnancy."
Although, as stated in
443 U. S.
supra, such deference to parents may be permissible with
respect to other choices facing a minor, the unique nature and
consequences of the abortion decision make it inappropriate
"to give a third party an absolute, and possibly arbitrary, veto
over the decision of the physician and his patient to terminate the
patient's pregnancy, regardless of the reason for withholding the
consent."
428 U.S. at
428 U. S. 74. We
therefore conclude that, if the State decides to require a pregnant
minor to obtain one or both parents' consent to an abortion, it
also must provide an alternative procedure [
Footnote 22] whereby authorization for the
abortion can be obtained.
A pregnant minor is entitled in such a proceeding to show
either: (1) that she is mature enough and well enough informed to
make her abortion decision, in consultation with her physician,
independently of her parents' wishes; [
Footnote 23] or
Page 443 U. S. 644
(2) that even if she is not able to make this decision
independently, the desired abortion would be in her best interests.
The proceeding in which this showing is made must assure that a
resolution of the issue, and any appeals that may follow, will be
completed with anonymity and sufficient expedition to provide an
effective opportunity for an abortion to be obtained. In sum, the
procedure must ensure that the provision requiring parental consent
does not, in fact, amount to the "absolute; and possibly arbitrary,
veto" that was found impermissible in
Danforth.
Ibid.
B
It is against these requirements that § 12S must be tested. We
observe initially that, as authoritatively construed by the highest
court of the State, the statute satisfies some of the concerns that
require special treatment of a minor's abortion decision. It
provides that, if parental consent is refused, authorization may be
"obtained by order of a judge of the superior court for good cause
shown, after such hearing as he deems necessary." A superior court
judge presiding over a § 12S proceeding
"must disregard all parental objections, and other
considerations, which are not based exclusively on what would serve
the minor's best interests. [
Footnote 24]"
Attorney General,
Page 443 U. S. 645
371 Mass. at 748, 360 N.E.2d at 293. The Supreme Judicial Court
also stated:
"Prompt resolution of a [§ 12S] proceeding may be expected. . .
. The proceeding need not be brought in the minor's name and steps
may be taken, by impoundment or otherwise, to preserve
confidentiality as to the minor and her parents. . . . [W]e believe
that an early hearing and decision on appeal from a judgment of a
Superior Court judge may also be achieved."
Id. at 757-758, 360 N.E.2d at 298. The court added
that, if these expectations were not met, either the superior
court, in the exercise of its rulemaking power, or the Supreme
Judicial Court would be willing to eliminate any undue burdens by
rule or order.
Ibid. [
Footnote 25]
Despite these safeguards, which avoid much of what was
objectionable in the statute successfully challenged in
Danforth, § 12S falls short of constitutional standards in
certain respects. We now consider these.
Page 443 U. S. 646
(1)
Among the questions certified to the Supreme Judicial Court was
whether § 12S permits any minors -- mature or immature -- to obtain
judicial consent to an abortion without any parental consultation
whatsoever.
See n 9,
supra. The state court answered that, in general, it does
not.
"[T]he consent require by [§ 12S must] be obtained for every
nonemergency abortion where the mother is less than eighteen years
of age and unmarried."
Attorney General, supra at 750, 360 N.E.2d at 294. The
text of § 12S itself states an exception to this rule, making
consent unnecessary from any parent who has "died or has deserted
his or her family." [
Footnote
26] The Supreme Judicial Court construed the statute as
containing an additional exception: consent need not be obtained
"where no parent (or statutory substitute) is available." 371 Mass.
at 750, 360 N.E.2d at 294. The court also ruled that an available
parent must be given notice of any judicial proceedings brought by
a minor to obtain consent for an abortion. [
Footnote 27]
Id. at 755-756, 360 N.E.2d
at 297.
Page 443 U. S. 647
We think that, construed in this manner, § 12S would impose an
undue burden upon the exercise by minors of the right to seek an
abortion. As the District Court recognized, "there are parents who
would obstruct, and perhaps altogether prevent, the minor's right
to go to court."
Baird III, 450 F. Supp. at 1001. There is
no reason to believe that this would be so in the majority of cases
where consent is withheld. But many parents hold strong views on
the subject of abortion, and young pregnant minors, especially
those living at home, are particularly vulnerable to their parents'
efforts to obstruct both an abortion and their access to court. It
would be unrealistic, therefore, to assume that the mere existence
of a legal right to seek relief in superior court provides an
effective avenue of relief for some of those who need it the
most.
We conclude, therefore, that, under state regulation such as
that undertaken by Massachusetts, every minor must have the
opportunity -- if she so desires -- to go directly to a court
without first consulting or notifying her parents. If she satisfies
the court that she is mature and well enough informed to make
intelligently the abortion decision on her own, the court must
authorize her to act without parental consultation or consent. If
she fails to satisfy the court that she is competent to make this
decision independently, she must be permitted to show that an
abortion nevertheless would be in her
Page 443 U. S. 648
best interests. If the court is persuaded that it is, the court
must authorize the abortion. If, however, the court is not
persuaded by the minor that she is mature or that the abortion
would be in her best interests, it may decline to sanction the
operation.
There is, however, an important state interest in encouraging a
family, rather than a judicial, resolution of a minor's abortion
decision. Also, as we have observed above, parents naturally take
an interest in the welfare of their children -- an interest that is
particularly strong where a normal family relationship exists and
where the child is living with one or both parents. These factors
properly may be taken into account by a court called upon to
determine whether an abortion, in fact, is in a minor's best
interests. If, all things considered, the court determines that an
abortion is in the minor's best interests, she is entitled to court
authorization without any parental involvement. On the other hand,
the court may deny the abortion request of an immature minor in the
absence of parental consultation if it concludes that her best
interests would be served thereby, or the court may in such a case
defer decision until there is parental consultation in which the
court may participate. But this is the full extent to which
parental involvement may be required. [
Footnote 28] For the reasons stated above, the
constitutional right to seek an abortion may not be unduly burdened
by state-imposed conditions upon initial access to court.
(2)
Section 12S requires that both parents consent to a minor's
abortion. The District Court found it to be "custom" to perform
other medical and surgical procedures on minors with the consent of
only one parent, and it concluded that "nothing about abortions . .
. requires the minor's interest to be treated
Page 443 U. S. 649
differently."
Baird I, 393 F. Supp. at 852.
See
Baird III, supra, at 1004 n. 9.
We are not persuaded that, as a general rule, the requirement of
obtaining both parents' consent unconstitutionally burdens a
minor's right to seek an abortion. The abortion decision has
implications far broader than those associated with most other
kinds of medical treatment. At least when the parents are together
and the pregnant minor is living at home, both the father and
mother have an interest -- one normally supportive -- in helping to
determine the course that is in the best interests of a daughter.
Consent and involvement by parents in important decisions by minors
long have been recognized as protective of their immaturity. In the
case of the abortion decision, for reasons we have stated, the
focus of the parents' inquiry should be the best interests of their
daughter. As every pregnant minor is entitled in the first instance
to go directly to the court for a judicial determination without
prior parental notice, consultation, or consent, the general rule
with respect to parental consent does not unduly burden the
constitutional right. Moreover, where the pregnant minor goes to
her parents and consent is denied, she still must have recourse to
a prompt judicial determination of her maturity or best interests.
[
Footnote 29]
(3)
Another of the questions certified by the District Court to the
Supreme Judicial Court was the following:
"If the superior court finds that the minor is capable [of
making], and has, in fact, made and adhered to, an informed and
reasonable decision to have an abortion, may the court refuse its
consent based on a finding that a parent's, or its own, contrary
decision
Page 443 U. S. 650
is a better one?"
Attorney General, 371 Mass. at 747 n. 5, 360 N.E.2d at
293 n. 5. To this the state court answered:
"[W]e do not view the judge's role as limited to a determination
that the minor is capable of making, and has made, an informed and
reasonable decision to have an abortion. Certainly the judge must
make a determination of those circumstances, but, if the statutory
role of the judge to determine the best interests of the minor is
to be carried out, he must make a finding on the basis of all
relevant views presented to him. We suspect that the judge will
give great weight to the minor's determination, if informed and
reasonable, but in circumstances where he determines that the best
interests of the minor will not be served by an abortion, the
judge's determination should prevail, assuming that his conclusion
is supported by the evidence and adequate findings of fact."
Id. at 748, 360 N.E.2d at 293.
The Supreme Judicial Court's statement reflects the general rule
that a State may require a minor to wait until the age of majority
before being permitted to exercise legal rights independently.
See n 23,
supra. But we are concerned here with the exercise of a
constitutional right of unique character.
See supra at
443 U. S.
642-643. As stated above, if the minor satisfies a court
that she has attained sufficient maturity to make a fully informed
decision, she then is entitled to make her abortion decision
independently. We therefore agree with the District Court that §
12S cannot constitutionally permit judicial disregard of the
abortion decision of a minor who has been determined to be mature
and fully competent to assess the implications of the choice she
has made. [
Footnote 30]
Page 443 U. S. 651
IV
Although it satisfies constitutional standards in large part, §
12S falls short of them in two respects: first, it permits judicial
authorization for an abortion to be withheld from a minor who is
found by the superior court to be mature and fully competent to
make this decision independently. Second, it requires parental
consultation or notification in every instance, without affording
the pregnant minor an opportunity to receive an independent
judicial determination that she is mature enough to consent or that
an abortion would be in her best interests. [
Footnote 31] Accordingly, we affirm the judgment
of the District Court insofar as it invalidates this statute and
enjoins its enforcement. [
Footnote 32]
Affirmed.
* Together with No. 78-33D,
Hunerwadel v. Baird et al.,
also on appeal from the same court.
[
Footnote 1]
The court promptly issued a restraining order which remained in
effect until its decision on the merits. Subsequent stays of
enforcement were issued during the complex course of this
litigation, with the result that Mass.Gen.Laws Ann., ch. 112, § 12S
(West Supp. 1979), never has been enforced by Massachusetts.
[
Footnote 2]
As originally enacted, § 12S was designated as § 12P of chapter
112. In 1977, the provision was renumbered as § 12S, and the
numbering of subdivisions within the section was eliminated. No
changes of substance were made. We shall refer to the section as §
12S throughout this opinion.
[
Footnote 3]
The proceedings before the court and the substance of its
opinion are described in detail in
Bellotti v. Baird,
428 U. S. 132,
428 U. S.
136-143 (1976).
[
Footnote 4]
Three other minors in similar circumstances were named in the
complaint, but the complaint was dismissed as to them for want of
proof of standing. That decision has not been challenged on
appeal.
[
Footnote 5]
Appellants argue that these "immature" minors never were before
the District Court, and that the court's remedy should have been
tailored to grant relief only to the class of "mature" minors. It
is apparent from the District Court's opinions, however, that it
considered the constitutionality of § 12S as applied to all
pregnant minors who might be affected by it. We accept that the
rights of this entire category of minors properly were subject to
adjudication.
[
Footnote 6]
In 1978, the District Court permitted postjudgment intervention
by these parties, who now appear jointly before this Court as
intervenor appellees.
[
Footnote 7]
As their positions are closely aligned, if not identical,
appellants in Nos. 78-329 and 78-330 are hereinafter referred to
collectively as appellants.
[
Footnote 8]
One member of the three-judge court dissented, arguing that the
decision of the majority to allow Mary Moe to proceed in the case
without notice to her parents denied them their parental rights
without due process of law, and that § 12S was consistent with the
decisions of this Court recognizing the propriety of parental
control over the conduct of children.
See 393 F. Supp. at
857-865.
[
Footnote 9]
The nine questions certified by the District Court, with
footnotes omitted, are as follows:
"1. What standards, if any, does the statute establish for a
parent to apply when considering whether or not to grant
consent?"
"a) Is the parent to consider 'exclusively . . . what will serve
the child's best interest'?"
"b) If the parent is not limited to considering exclusively the
minor's best interests, can the parent take into consideration the
'long-term consequences to the family and her parents' marriage
relationship'?"
"c) Other?"
"2. What standard or standards is the superior court to
apply?"
"a) Is the superior court to disregard all parental objections
that are not based exclusively on what would serve the minor's best
interests?"
"b) If the superior court finds that the minor is capable, and
has, in fact, made and adhered to, an informed and reasonable
decision to have an abortion, may the court refuse its consent
based on a finding that a parent's, or its own, contrary decision
is a better one?"
"c) Other?"
"3. Does the Massachusetts law permit a minor (a) 'capable of
giving informed consent,' or (b) 'incapable of giving informed
consent,' 'to obtain [a court] order without parental
consultation'?"
"4. If the court answers any of question 3 in the affirmative,
may the superior court, for good cause shown, enter an order
authorizing an abortion, (a), without prior notification to the
parents, and (b), without subsequent notification?"
"5. Will the Supreme Judicial Court prescribe a set of
procedures to implement c. 112, [§ 12S] which will expedite the
application, hearing, and decision phases of the superior court
proceeding provided thereunder? Appeal?"
"6. To what degree do the standards and procedures set forth in
c. 112, § 12F (Stat.1975, c. 564), authorizing minors to give
consent to medical and dental care in specified circumstances,
parallel the grounds and procedures for showing good cause under c.
112, [§ 12S]?"
"7. May a minor, upon a showing of indigency, have
court-appointed counsel?"
"8. Is it a defense to his criminal prosecution if a physician
performs an abortion solely with the minor's own, valid, consent,
that he reasonably, and in good faith, though erroneously, believed
that she was eighteen or more years old or had been married?"
"9. Will the Court make any other comments about the statute
which, in its opinion, might assist us in determining whether it
infringes the United States Constitution?"
[
Footnote 10]
Section 12S itself dispenses with the need for the consent of
any parent who "has died or has deserted his or her family."
[
Footnote 11]
The dissenting judge agreed that the State could not permit a
judge to override the decision of a minor found to be mature and
capable of giving informed consent to an abortion. He disagreed
with the remainder of the court's conclusions: the best interests
limitation on the withholding of parental consent in the Supreme
Judicial Court's opinion, he argued, must be treated as if part of
the statutory language itself; and he read the evidentiary record
as proving that only rarely would a pregnant minor's interests be
disserved by consulting with her parents about a desired abortion.
He also noted the value to a judge in a § 12S proceeding of having
the parents before him as a source of evidence as to the minor's
maturity and what course would serve her best interests.
See
Baird III, 450 F. Supp. at 1006-1020.
[
Footnote 12]
Similarly, the Court said in
Planned Parenthood of Central
Missouri v. Danforth, 428 U. S. 52,
428 U. S. 74
(1976):
"Constitutional rights do not mature and come into being
magically only when one attains the state-defined age of majority.
Minors, as well as adults, are protected by the Constitution, and
possess constitutional rights."
[
Footnote 13]
As MR. JUSTICE STEWART wrote of the exercise by minors of the
First Amendment rights that "secur[e] . . . the liberty of each man
to decide for himself what he will read and to what he will
listen,"
Ginsberg v. New York, 390 U.
S. 629,
390 U. S. 649
(1968) (concurring in result):
"[A]t least in some precisely delineated areas, a child -- like
someone in a captive audience -- is not possessed of that full
capacity for individual choice which is the presupposition of First
Amendment guarantees. It is only upon such a premise, I should
suppose, that a State may deprive children of other rights -- the
right to marry, for example, or the right to vote -- deprivations
that would be constitutionally intolerable for adults."
Id. at
390 U. S.
649-650 (footnotes omitted).
[
Footnote 14]
In
Prince, an adult had permitted a child in her
custody to sell religious literature on a public street in
violation of a state child labor statute. The child had been
permitted to engage in this activity upon her own sincere request.
321 U.S. at
321 U. S. 162.
In upholding the adult's conviction under the statute, we found
that "the interests of society to protect the welfare of children"
and to give them "opportunities for growth into free and
independent well developed men and citizens,"
id. at
321 U. S. 165,
permitted the State to enforce its statute, which "[c]oncededly . .
. would be invalid,"
id. at
321 U. S. 167,
if made applicable to adults.
[
Footnote 15]
Although the State has considerable latitude in enacting laws
affecting minors on the basis of their lesser capacity for mature,
affirmative choice,
Tinker v. Des Moines School Dist.,
393 U. S. 503
(1969), illustrates that it may not arbitrarily deprive them of
their freedom of action altogether. The Court held in
Tinker that a schoolchild's First Amendment freedom of
expression entitled him, contrary to school policy, to attend
school wearing a black armband as a silent protest against American
involvement in the hostilities in Vietnam. The Court acknowledged
that the State was permitted to prohibit conduct otherwise shielded
by the Constitution that,
"for any reason -- whether it stems from time, place, or type of
behavior -- materially disrupts classwork or involves substantial
disorder or invasion of the rights of others."
Id. at
393 U. S. 513.
It upheld the First Amendment right of the schoolchildren in that
case, however, not only because it found no evidence in the record
that their wearing of black armbands threatened any substantial
interference with the proper objectives of the school district, but
also because it appeared that the challenged policy was intended
primarily to stifle any debate whatsoever -- even nondisruptive
discussions -- on important political and moral issues.
See
id. at
393 U. S.
510.
[
Footnote 16]
See, e.g., Mass.Gen.Laws Ann., ch. 207, §§ 7, 24, 25,
33, 33A (West 1958 and Supp. 1979) (parental consent required for
marriage of person under 18); Mass.Gen.Laws Ann., ch. 119, § 55A
(West Supp. 1979) (waiver of counsel by minor in juvenile
delinquency proceedings must be made through parent or
guardian).
[
Footnote 17]
See Hafen, Children's Liberation and the New
Egalitarianism: Some Reservations About Abandoning Children to
Their "Rights," 1976 B.Y.U.L.Rev. 605.
[
Footnote 18]
The Court's opinions discussed in the text above --
Pierce,
Yoder, Prince, and
Ginsberg -- all have contributed
to a line of decisions suggesting the existence of a constitutional
parental right against undue, adverse interference by the State.
See also Smith v. Organization of Foster Families,
431 U. S. 816,
431 U. S.
842-844 (1977);
Carey v. Population Services
International, 431 U. S. 678,
431 U. S. 708
(1977) (opinion of POWELL, J.);
Moore v. East Cleveland,
431 U. S. 494
(1977) (plurality opinion);
Stanley v. Illinois,
405 U. S. 645,
405 U. S. 651
(1972);
Meyer v. Nebraska, 262 U.
S. 390,
262 U. S. 399
(1923).
Cf. Parham v. J.R., 442 U.
S. 584 (1979);
id. at
442 U. S. 621
(STEWART, J., concurring in result).
[
Footnote 19]
In
Planned Parenthood of Central Missouri v. Danforth,
428 U.S. at
428 U. S.
75,
"[w]e emphasize[d] that our holding. . . [did] not suggest that
every minor, regardless of age or maturity, may give effective
consent for termination of her pregnancy."
[
Footnote 20]
The expert testimony at the hearings in the District Court
uniformly was to the effect that parental involvement in a minor's
abortion decision, if compassionate and supportive, was highly
desirable. The findings of the court reflect this consensus.
See Baird I, 393 F. Supp. at 853.
[
Footnote 21]
MR. JUSTICE STEWART's concurring opinion in
Danforth
underscored the need for parental involvement in minors' abortion
decisions by describing the procedures followed at the clinic
operated by the Parents Aid Society and Dr. Gerald Zupnick:
"The counseling . . . occurs entirely on the day the abortion is
to be performed. . . . It lasts for two hours, and takes place in
groups that include both minors and adults who are strangers to one
another. . . . The physician takes no part in this counseling
process. . . . Counseling is typically limited to a description of
abortion procedures, possible complications, and birth control
techniques. . . . "
"The abortion itself takes five to seven minutes. . . . The
physician has no prior contact with the minor, and on the days that
abortions are being performed at the [clinic], the physician . . .
may be performing abortions on many other adults and minors. . . .
On busy days, patients are scheduled in separate groups, consisting
usually of five patients. . . . After the abortion, [the physician]
spends a brief period with the minor and others in the group in the
recovery room. . . ."
428 U.S. at
428 U. S. 91-92,
n. 2, quoting Brief for Appellants in
Bellotti I, O.T.
1975, No. 75-73, pp. 43-44.
In
Roe v. Wade, 410 U. S. 113
(1973), and
Doe v. Bolton, 410 U.
S. 179 (1973), we emphasized the importance of the role
of the attending physician. Those cases involved adult women
presumably capable of selecting and obtaining a competent
physician. In this case, however, we are concerned only with minors
who, according to the record, may range in age from children of 12
years to 17-year-old teenagers. Even the latter are less likely
than adults to know or be able to recognize ethical, qualified
physicians, or to have the means to engage such professionals. Many
minors who bypass their parents probably will resort to an abortion
clinic, without being able to distinguish the competent and ethical
from those that are incompetent or unethical.
[
Footnote 22]
As § 12S provides for involvement of the state superior court in
minors' abortion decisions, we discuss the alternative procedure
described in the text in terms of judicial proceedings. We do not
suggest, however, that a State choosing to require parental consent
could not delegate the alternative procedure to a juvenile court or
an administrative agency or officer. Indeed, much can be said for
employing procedures and a forum less formal than those associated
with a court of general jurisdiction.
[
Footnote 23]
The nature of both the State's interest in fostering parental
authority and the problem of determining "maturity" makes clear why
the State generally may resort to objective, though inevitably
arbitrary, criteria such as age limits, marital status, or
membership in the Armed Forces for lifting some or all of the legal
disabilities of minority. Not only is it difficult to define, let
alone determine, maturity, but also the fact that a minor may be
very much an adult in some respects does not mean that his or her
need and opportunity for growth under parental guidance and
discipline have ended. As discussed in the text, however, the
peculiar nature of the abortion decision requires the opportunity
for case-by-case evaluations of the maturity of pregnant
minors.
[
Footnote 24]
The Supreme Judicial Court held that § 12S imposed this standard
on the superior court in large part because it construed the
statute as containing the same restriction on parents.
See
supra at
443 U. S. 630.
The court concluded that the judge should not be entitled "to
exercise his authority on a standard broader than that to which a
parent must adhere."
Attorney General, 371 Mass. at 748,
360 N.E.2d at 293.
Intervenors argue that, assuming state-supported parental
involvement in the minor's abortion decision is permissible, the
State may not endorse the withholding of parental consent for any
reason not believed to be in the minor's best interests. They agree
with the District Court that, even though § 12S was construed by
the highest state court to impose this restriction, the statute is
flawed because the restriction is not apparent on its face.
Intervenors thus concur in the District Court's assumption that the
statute will encourage parents to withhold consent for
impermissible reasons.
See Baird III, 450 F.Supp. at
1004-1005;
Baird II, 428 F.
Supp. 854, 855-856 (Mass. 1977).
There is no basis for this assertion. As a general rule, the
interpretation of a state statute by the State's highest court "is
as though written into the ordinance itself,"
Povlos v. New
Hampshire, 345 U. S. 395,
345 U. S. 402
(1953), and we are obliged to view the restriction on the parental
consent requirement "as if [§ 12S] had been so amended by the
[Massachusetts] legislature."
Winters v. New York,
333 U. S. 507,
333 U. S. 514
(1948).
[
Footnote 25]
Intervenors take issue with the Supreme Judicial Court's
assurances that judicial proceedings will provide the necessary
confidentiality, lack of procedural burden, and speed of
resolution. In the absence of any evidence as to the operation of
judicial proceedings under § 12S -- and there is none, since
appellees successfully sought to enjoin Massachusetts from putting
it into effect -- we must assume that the Supreme Judicial Court's
judgment is correct.
[
Footnote 26]
The statute also provides that,
"[i]f 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."
[
Footnote 27]
This reading of the statute requires parental consultation and
consent more strictly than appellants themselves previously
believed was necessary. In their first argument before this Court,
and again before the Supreme Judicial Court, appellants argued that
§ 12S was not intended to abrogate Massachusetts' common law
"mature minor" rule as it applies to abortions.
See 428
U.S. at
428 U. S. 144.
They also suggested that, under some circumstances, § 12S might
permit even immature minors to obtain judicial approval for an
abortion without any parental consultation.
See 428 U.S.
at
428 U. S. 145;
Attorney General, supra at 751, 360 N.E.2d at 294. The
Supreme Judicial Court sketched the outlines of the mature minor
rule that would apply in the absence of § 12S:
"The mature minor rule calls for an analysis of the nature of
the operation, its likely benefit, and the capacity of the
particular minor to understand fully what the medical procedure
involves. . . . Judicial intervention is not required. If judicial
approval is obtained, however, the doctor is protected from a
subsequent claim that the circumstances did not warrant his
reliance on the mature minor rule, and, of course, the minor
patient is afforded advance protection against a misapplication of
the rule."
Id. at 752, 360 N.E.2d at 295.
"We conclude that, apart from statutory limitations which are
constitutional, where the best interests of a minor will be served
by not notifying his or her parents of intended medical treatment
and where the minor is capable of giving informed consent to that
treatment, the mature minor rule applies in this Commonwealth."
Id. at 754, 360 N.E.2d at 296. The Supreme Judicial
Court held that the common law mature minor rule was inapplicable
to abortions because it had been legislatively superseded by §
12S.
[
Footnote 28]
Of course, if the minor consults with her parents voluntarily
and they withhold consent, she is free to seek judicial
authorization for the abortion immediately.
[
Footnote 29]
There will be cases where the pregnant minor has received
approval of the abortion decision by one parent. In that event, the
parent can support the daughter's request for a prompt judicial
determination, and the parent's support should be given great, if
not dispositive, weight.
[
Footnote 30]
Appellees and intervenors have argued that § 12S violates the
Equal Protection Clause of the Fourteenth Amendment. As we have
concluded that the statute is constitutionally infirm for other
reasons, there is no need to consider this question.
[
Footnote 31]
Section 12S evidently applies to all nonemergency abortions
performed on minors, without regard to the period in pregnancy
during which the procedure occurs. As the court below recognized,
most abortions are performed during the early stages of pregnancy,
before the end of the first trimester.
See Baird III, 450
F. Supp. at 1001;
Baird I, 393 F. Supp. at 853. This
coincides approximately with the pre-viability period during which
a pregnant woman's right to decide, in consultation with her
physician, to have an abortion is most immune to state
intervention.
See Roe v. Wade, 410 U.S. at
410 U. S.
164-165.
The propriety of parental involvement in a minor's abortion
decision does not diminish as the pregnancy progresses and
legitimate concerns for the pregnant minor's health increase.
Furthermore, the opportunity for direct access to court which we
have described is adequate to safeguard throughout pregnancy the
constitutionally protected interests of a minor in the abortion
decision. Thus, although a significant number of abortions within
the scope of § 12S might be performed during the later stages of
pregnancy, we do not believe a different analysis of the statute is
required for them.
[
Footnote 32]
The opinion of MR. JUSTICE STEVENS, concurring in the judgment,
joined by three Members of the Court, characterizes this opinion as
"advisory," and the questions it addresses as "hypothetical."
Apparently, this is criticism of our attempt to provide some
guidance as to how a State constitutionally may provide for adult
involvement -- either by parents or a state official such as a
judge -- in the abortion decisions of minors. In view of the
importance of the issue raised, and the protracted litigation to
which these parties already have been subjected, we think it would
be irresponsible simply to invalidate § 12S without stating our
views as to the controlling principles.
The statute before us today is the same one that was here in
Bellotti I. The issues it presents were not then deemed
"hypothetical." In a unanimous opinion, we remanded the case with
directions that appropriate questions be certified to the Supreme
Judicial Court of Massachusetts "concerning the meaning of [§ 12S]
and the procedure it imposes." 428 U.S. at
428 U. S. 151.
We directed that this be done because, as stated in the opinion, we
thought the construction of § 12S urged by appellants would "avoid
or substantially modify the federal constitutional challenge to the
statute."
Id. at
428 U. S. 148.
The central feature of § 12S was its provision that a state court
judge could make the ultimate decision, when necessary, as to the
exercise by a minor of the right to an abortion.
See id.
at
428 U. S. 145.
We held that this "would be fundamentally different from a statute
that creates a
parental veto' [of the kind rejected in
Danforth]." Ibid. (footnote omitted). Thus, all
Members of the Court agreed that providing for decisionmaking
authority in a judge was not the kind of veto power held invalid in
Danforth. The basic issues that were before us in
Bellotti I remain in the case, sharpened by the
construction of § 12S by the Supreme Judicial Court.
MR. JUSTICE REHNQUIST, concurring.
I join the opinion of MR. JUSTICE POWELL and the judgment of the
Court. At such time as this Court is willing to
Page 443 U. S. 652
reconsider its earlier decision in
Planned Parenthood of
Central Missouri v. Danforth, 428 U. S.
52 (1976), in which I joined the opinion of MR. JUSTICE
WHITE, dissenting in part, I shall be more than willing to
participate in that task. But unless and until that time comes,
literally thousands of judges cannot be left with nothing more than
the guidance offered by a truly fragmented holding of this
Court.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE
MARSHALL, and MR. JUSTICE BLACKMUN join, concurring in the
judgment.
In
Roe v. Wade, 410 U. S. 113, the
Court held that a woman's right to decide whether to terminate a
pregnancy is
Page 443 U. S. 653
entitled to constitutional protection. In
Planned Parenthood
of Central Missouri v. Danforth, 428 U. S.
52,
428 U. S. 72-75,
the Court held that a pregnant minor's right to make the abortion
decision may not be conditioned on the consent of one parent. I am
persuaded that these decisions require affirmance of the District
Court's holding that the Massachusetts statute is
unconstitutional.
The Massachusetts statute is, on its face, simple and
straightforward. It provides that every woman under 18 who has not
married must secure the consent of both her parents before
receiving an abortion.
"If one or both of the mother's parents refuse such consent,
consent may be obtained by order of a judge of the superior court
for good cause shown."
Mass.Gen.Laws Ann., ch. 112, § 12S (West Supp. 1979).
Whatever confusion or uncertainty might have existed as to how
this statute was to operate,
see Bellotti v. Baird,
428 U. S. 132, has
been eliminated by the authoritative construction of its provisions
by the Massachusetts Supreme Judicial Court.
See Baird v.
Attorney General, 371 Mass. 741, 360 N E.2d 288 (1977). The
statute was construed to require that every minor who wishes an
abortion must first seek the consent of both parents, unless a
parent is not available or unless the need for the abortion
constitutes "
an emergency requiring immediate action.'"
Id. at 750, 360 N.E.2d at 294. Both parents, so long as
they are available, must also receive notice of judicial
proceedings brought under the statute by the minor. In those
proceedings, the task of the judge is to determine whether the best
interests of the minor will be served by an abortion. The decision
is his to make, even if he finds "that the minor is capable of
making, and has made, an informed and reasonable decision to have
an abortion." Id. at 748, 360 N.E.2d at 293. Thus, no
minor in Massachusetts, no matter how mature and capable of
informed decisionmaking, may receive an abortion without the
consent
Page 443 U. S. 654
of either both her parents or a superior court judge. In every
instance, the minor's decision to secure an abortion is subject to
an absolute third-party veto. [
Footnote
2/1]
In
Planned Parenthood of Central Missouri v. Danforth,
supra, this Court invalidated statutory provisions requiring
the consent of the husband of a married woman and of one parent of
a pregnant minor to an abortion. As to the spousal consent, the
Court concluded that
"we cannot hold that the State has the constitutional authority
to give the spouse unilaterally the ability to prohibit the wife
from terminating her pregnancy when the State itself lacks that
right."
428 U.S. at
428 U. S. 70.
And as to the parental consent, the Court held that,
"[j]ust as with the requirement of consent from the spouse, so
here, the State does not have the constitutional authority to give
a third party an absolute, and possibly arbitrary, veto over the
decision of the physician and his patient to terminate the
patient's pregnancy, regardless of the reason for withholding the
consent."
Id. at
428 U. S. 74.
These holdings, I think, equally apply to the Massachusetts
statute. The differences between the two statutes are few. Unlike
the Missouri statute, Massachusetts requires the consent of both of
the woman's parents. It does, of course, provide an alternative in
the form of a suit initiated by the woman in superior court. But in
that proceeding, the judge is afforded an absolute veto over the
minor's decisions, based on his judgment of her best interests. In
Massachusetts, then, as in Missouri, the State has imposed an
"absolute limitation on the minor's right to obtain an abortion,"
id. at
428 U. S. 90
(STEWART, J., concurring), applicable to every pregnant minor in
the State who has not married.
Page 443 U. S. 655
The provision of an absolute veto to a judge -- or, potentially,
to an appointed administrator [
Footnote
2/2] -- is, to me, particularly troubling. The constitutional
right to make the abortion decision affords protection to both of
the privacy interests recognized in this Court's cases:
"One is the individual interest in avoiding disclosure of
personal matters, and another is the interest in independence in
making certain kinds of important decisions."
Whalen v. Roe, 429 U. S. 589,
429 U. S.
599-600 (footnotes omitted). It is inherent in the right
to make the abortion decision that the right may be exercised
without public scrutiny and in defiance of the contrary opinion of
the sovereign or other third parties. In Massachusetts, however,
every minor who cannot secure the consent of both her parents --
which, under
Danforth, cannot be an absolute prerequisite
to an abortion -- is required to secure the consent of the
sovereign. As a practical matter, I would suppose that the need to
commence judicial proceedings in order to obtain a legal abortion
would impose a burden at least as great as, and probably greater
than, that imposed on the minor child by the need to obtain the
consent of a parent. [
Footnote 2/3]
Moreover, once this burden is met, the only standard provided for
the judge's decision is the best interest of the minor. That
standard provides little real guidance to the judge, and his
decision must necessarily reflect personal and societal values and
mores whose enforcement upon the minor -- particularly when
contrary to her own informed and reasonable decision -- is
fundamentally at odds
Page 443 U. S. 656
with privacy interests underlying the constitutional protection
afforded to her decision.
In short, it seems to me that this litigation is governed by
Danforth; to the extent this statute differs from that in
Danforth, it is potentially even more restrictive of the
constitutional right to decide whether or not to terminate a
pregnancy. Because the statute has been once authoritatively
construed by the Massachusetts Supreme Judicial Court, and because
it is clear that the statute, as written and construed, is not
constitutional, I agree with MR. JUSTICE POWELL that the District
Court's judgment should be affirmed. Because his opinion goes
further, however, and addresses the constitutionality of an
abortion statute that Massachusetts has not enacted, I decline to
join his opinion. [
Footnote
2/4]
[
Footnote 2/1]
By affording such a veto, the Massachusetts statute does far
more than simply provide for notice to the parents.
See
post at
443 U. S. 657
(WHITE, J., dissenting). Neither
Danforth nor this case
determines the constitutionality of a statute which does no more
than require notice to the parents, without affording them or any
other third party an absolute veto.
[
Footnote 2/2]
See ante at
443 U. S. 643
n. 22.
[
Footnote 2/3]
A minor may secure the assistance of counsel in filing and
prosecuting her suit, but that is not guaranteed. The Massachusetts
Supreme Judicial Court, in response to the question whether a
minor, upon a showing of indigency, may have court-appointed
counsel,
"construe[d] the statutes of the Commonwealth to authorize the
appointment of counsel or a guardian
ad litem for an
indigent minor at public expense, if necessary, if the judge,
in his discretion, concludes that the best interests of
the minor would be served by such an appointment."
Baird v. Attorney General, 371 Mass. 741, 764,
360
N.E.2d 288, 301 (1977) (emphasis added).
[
Footnote 2/4]
Until and unless Massachusetts or another State enacts a less
restrictive statutory scheme, this Court has no occasion to render
an advisory opinion on the constitutionality of such a scheme. A
real statute -- rather than a mere outline of a possible statute --
and a real case or controversy may well present questions that
appear quite different from the hypothetical questions MR. JUSTICE
POWELL has elected to address. Indeed, there is a certain irony in
his suggestion that a statute that is intended to vindicate
"the special interest of the State in encouraging an unmarried
pregnant minor to seek the advice of her parents in making the
important decision whether or not to bear a child,"
see ante at
443 U. S. 639,
need not require notice to the parents of the minor's intended
decision. That irony makes me wonder whether any legislature
concerned with parental consultation would, in the absence of
today's advisory opinion, have enacted a statute comparable to the
one my Brethren have discussed.
MR JUSTICE WHITE, dissenting.
I was in dissent in
Planned Parenthood of Central Missouri
v. Danforth, 428 U. S. 52,
428 U. S. 94 95
(1976), on the issue of the validity of requiring the consent of a
parent when an unmarried woman under 18 years of age seeks an
abortion. I continue to have the views I expressed there, and also
agree with much of what MR. JUSTICE STEVENS said in dissent in
that
Page 443 U. S. 657
case,
id. at
428 U. S.
101-105. I would not, therefore, strike down this
Massachusetts law.
But even if a parental consent requirement of the kind involved
in
Danforth must be deemed invalid, that does not condemn
the Massachusetts law, which, when the parents object, authorizes a
judge to permit an abortion if he concludes that an abortion is in
the best interests of the child. Going beyond
Danforth,
the Court now holds it unconstitutional for a State to require that
in all cases parents receive notice that their daughter seeks an
abortion and, if they object to the abortion, an opportunity to
participate in a hearing that will determine whether it is in the
"best interests" of the child to undergo the surgery. Until now, I
would have thought inconceivable a holding that the United States
Constitution forbids even notice to parents when their minor child
who seeks surgery objects to such notice and is able to convince a
judge that the parents should be denied participation in the
decision.
With all due respect, I dissent.