BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS, ET AL. v. BAIRD ET AL.
No. 78-329
Supreme Court of the United States
July 2, 1979
443 U.S. 622
Garrick F. Cole, Assistant Attorney General of Massachusetts, argued the cause for appellants in No. 78-329. With him on the briefs were Francis X. Bellotti, Attorney General, pro se, and Michael B. Meyer and Thomas R. Kiley, Assistant Attorneys General. Brian A. Riley argued the cause for appellant in No. 78-330. With him on the brief was Thomas P. Russell.
Joseph J. Balliro argued the cause for appellees in both cases. With him on the brief was Joan C. Schmidt. John H. Henn also argued the cause for appellees in both cases. With him on the brief were Scott C. Moriearty, Sandra L. Lynch, Loyd M. Starrett, and John Reinstein.†
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).
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 Court1 to enjoin, as unconstitutional, the provision of the Act now codified as
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
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
A three-judge District Court was convened to hear the case pursuant to
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
Planned Parenthood League of Massachusetts and Crittenton Hastings House & Clinic, both organizations that provide counseling to pregnant adolescents, and Phillip Stubblefield, M. D. (intervenors),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. 78-330.7
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
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.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, 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 exist
On remand, the District Court certified nine questions to the Supreme Judicial Court.9 These were answered in an
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.’ ” 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.
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?”
6.
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 case 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 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 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.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, 13 (1967), “whatever may be their precise impact, neither the Fourteenth Amendment nor the Bill of Rights is for adults alone.”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
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
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 30, quoting Kent v. United States, 383 U. S. 541, 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 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.13
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.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, 535 (1925). “The duty to prepare the child for ‘additional obligations’ . . .
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 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 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
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 74.
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 Part II 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.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.20 As MR. JUSTICE STEWART wrote in concurrence in Planned Parenthood of Central Missouri v. Danforth, supra, at 91:
“There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmar-
ried 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.)21
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 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
For these reasons, as we held in Planned Parenthood of Central Missouri v. Danforth, 428 U. S., at 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 Part II, 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 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 procedure22 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;23 or
B
It is against these requirements that
Despite these safeguards, which avoid much of what was objectionable in the statute successfully challenged in Danforth,
Among the questions certified to the Supreme Judicial Court was whether
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
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.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
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.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 deci-
“[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 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
Although it satisfies constitutional standards in large part,
Affirmed.
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
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
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.”
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
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 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 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 90 (STEWART, J., concurring), applicable to every pregnant minor in the State who has not married.
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.4
MR. JUSTICE WHITE, dissenting.
I was in dissent in Planned Parenthood of Central Missouri v. Danforth, 428 U. S. 52, 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
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.
Notes
“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,
“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.”
“[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
“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 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.