Lead Opinion
This is an appeal from a decision of the district court for the District of Massachusetts to abstain, on Burford
I.
Plaintiffs’ first challenge to section 12S of M.G.L. ch. 112 began in 1978, when they sought to enjoin the original version of the statute. After certification to the Massachusetts Supreme Judicial Court, the United States Supreme Court struck the provisions that required parental notice of a minor’s decision to seek an abortion, and that granted state judges the authority to withhold consent even for minors sufficiently mature to make an informed decision. Bellotti v. Baird,
1.In June of 1980, plaintiffs Planned Parenthood League of Massachusetts (PPLM), a nonprofit abortion counselling and referral foundation, a medical clinic, a physician, and an unmarried pregnant minor, on their own behalf and on behalf of classes certified by the district court (all hereinafter simply PPLM), brought suit challenging the facial constitutionality of amended § 12S. The original defendants were the then Attorney General of Massachusetts, Francis X. Bellotti, the Commissioner of Public Health, and the Suffolk County District Attorney, representing prosecutors as a class. The district court denied a motion for preliminary injunction that would have prevented the implementation of § 12S. Planned Parenthood League v. Bellotti,
2. In 1981, we reversed the district court’s decision not to preliminarily enjoin the requirements that a minor sign a consent form that included a description of the fetus and that she wait for 24 hours after signing the form before having an abortion. We directed that a preliminary injunction issue. We affirmed the court’s refusal to enjoin the provisions of § 12S requiring parental consent or judicial bypass authorization for abortions, stating that “on a record undeveloped as to the actual operation of the judicial approval procedure, we are not prepared to hold that its effects will be so burdensome as to deny due process of law to minors seeking to use it.” Planned Parenthood League v. Bellotti,
3. On April 17, 1981, PPLM instituted suit in the Massachusetts Supreme Judicial Court against the same defendants, facially
4. On June 16, 1981, Justice Liacos of the Supreme Judicial Court, acting as a single justice, propounded guidelines for handling § 12S proceedings in the superior court, supplementary to the earlier Standing Order No. 12-80 of that court. (We had earlier reproduced that standing order in an appendix to our opinion.
5. After more than two years, action resumed in federal district court with a status conference in December, 1983, at which PPLM indicated its intent to change the focus to an as-applied challenge.
6. Shortly thereafter, PPLM, in April, 1984, moved to amend the federal complaint, by adding as defendants the Administrative Chief Justice of the trial court of Massachusetts, the Chief Justice of the superior court department of the trial court, and the clerk of the Suffolk division of that department. The Commonwealth had earlier suggested making them parties. PPLM explained the grounds by saying that the challenge focuses “on the actual workings of the statute in practice as it is administered and applied by judges and clerks.” PPLM then referred to an attached article by Patricia Donovan in the November/December 1983 issue of Family Planning Perspectives, describing the operation of the judicial bypass statutes in Massachusetts, Minnesota, and Rhode Island, entitled “Judging Teenagers: How Minors Fare When They Seek Court-Authorized Abortions.”
7. On June 29, 1984, defendants moved to dismiss the action against the two judicial defendant classes, characterizing the amended complaint as a “dangerous challenge to the core of state governance,” in which the district court is asked to “sit in
8. On August 22, 1984, PPLM filed its opposition, asserting that it sought only to strike down a statute being implemented in an unconstitutional manner by enjoining its enforcement, not an injunction against violation of individual minors’ civil rights or an injunction ordering state judges and clerks to do better. It contemplated proving its case by the statistical data being gathered under the order of Chief Justice Morse, by transcripts, and by testimony from a lawyers’ referral panel supplying counsel to § 12S petitioners. The opposition proceeded to contest each of the five bases of dismissal asserted by the state. With this opposition was filed an affidavit of PPLM’s counsel asserting that its investigation had developed information concerning the need for the volunteer legal panel, statistical data on abortions and births, statistical data on the processing of § 12S petitions, data as to the ages of minor petitioners, information on recusals, information reported by the volunteer legal panel concerning hostile judges, data on out-of-state clinics performing abortions on Massachusetts minors, data on court caseloads, information on psychological trauma, and other impacts on minors undergoing § 12S proceedings.
II.
On February 11, 1985, the district court issued its opinion dismissing the complaint as to the “judicial defendants,” the two administrative justices of the superior court and the Suffolk County clerk. Planned Parenthood League v. Bellotti,
The court went on to say that its concern with federalism issues was not “determined by whether or not injunctive relief will issue against a state judge.” Id, The court deemed that a federalism concern was triggered not by the relief sought but by the nature of PPLM’s attack against “the process through which this state statute is administered.” Id. at 805 (emphasis in original). Citing Pulliam v. Allen,
The court found comity concerns at two levels. First, noting the particularly strong interest states have in the integrity of their own judicial systems, id. at 806, the court saw the subject matter of the suit as the manner in which superior court judges and clerks process § 12S petitioners, i.e., an action directed at “maladminis
The court’s second level of inquiry arose from PPLM’s institution of what it called “an ongoing parallel state proceeding.” Id. at 805. It noted first that federalism requires “that federal courts recognize a state judiciary’s ability to decide identical issues in an ongoing case in the state system.” Id. at 806. It then added, obviously aware that PPLM’s state suit concerned only state constitutional issues but that amendment was possible, that “[tjhere is no question that Planned Parenthood may raise arguments under the federal constitution as well_” Id. at 807. The court therefore concluded that “Burford abstention is particularly fitting for this case,” id. at 808, fearing that refusing to abstain “would steer this Court perilously close to ‘a form of monitoring of the operation of state court functions that is antipathetic to established principles of comity.’ ” Id. at 812 (quoting O’Shea v. Littleton,
A motion to reconsider by PPLM was denied. Over a year later, on April 4,1986, the Commonwealth moved to dismiss the complaint against the remaining defendants or, in the alternative, for a protective order barring PPLM from any discovery involving the former judicial defendants. It relied principally on the court’s prior decision. PPLM opposed the motion in a lengthy memorandum criticizing the application of Burford and any blanket prohibition against discovery. Accompanying this was another affidavit of counsel, setting forth the table of contents of a lengthy listing of proposed findings of facts, dated May 16, 1986, compiled after a five-week trial in a similar parental notification/judicial bypass case, Hodgson v. Minnesota,
On July 11,1986, the district court issued a second opinion, recapping the substance of its first opinion. It reasoned that pursuing the litigation against the non-judicial defendants would open the door to the “same intrusive factual record,” and that PPLM envisioned “a much more detailed administrative order” than a simple declaration of unconstitutionality. It saw the issues as involving only the internal operations of the state court, and concluded that Burford abstention was still the proper course. To this ground of decision it added abstention on the basis of Younger v. Harris,
hi.
We have set forth in detail the background of claims, party characterizations of claims, amendments, court interpretations of the relief sought and implications thereof, and disavowals and clarifications of PPLM. We have done so because our analysis of what we deem to be the proper approach to abstention can be made only in light of that background in all its confusion, complexity, and stridency.
We begin that analysis by clarifying the issues before us. We view the district court’s decision to abstain under Burford as implicating three separate comity concerns. First, and most basic, was the concern about the nature of plaintiffs’ complaint. The district court was troubled not only by the prospect of an improper remedy, but by what it saw as an entirely improper case, one seeking federal judicial review of the process through which the commonwealth has chosen to administer its statute. The core concern here is a federal court’s responsibility to avoid usurping a state’s authority to supervise its own administrative body, in this case the state judiciary as it implements regulations of minors’ abortions.
Second, the court seemed concerned about the intrusion into the state judiciary that would occur because of the plaintiffs’ discovery and other efforts to develop a factual record. Although not expressly stated, we surmise a realistic fear on the court’s part that plaintiffs would seek to document their complaints by indiscriminately questioning or subpoenaing Massachusetts judges in pursuit of useful testimony. In the Hodgson case in Minnesota, on which plaintiffs relied, judges presented extensive testimony (apparently voluntary) in support of the plaintiffs' case. Third, the court pointed to the ongoing litigation in state court, which it deemed a “parallel” proceeding.
As we did in our recent opinion in Bath Memorial Hospital v. Maine Health Care Finance Commission,
The abstention issue posed here is whether the litigation necessarily implies an involvement in the administration of the internal affairs of the Massachusetts courts so unseemly for a federal court as to encroach on principles of comity and federalism. As we see the issue, the word “necessarily” is of critical importance. It flows from these principles that abstention is the exception, not the rule. This means to us that a federal judge, while being as sensitive to important state interests and as wary of intruding in internal state affairs as was the district court in this case, will also endeavor to see if the legitimate objectives of the litigation can be pursued without treading on those state interests and internal affairs. If they cannot be so pursued, abstention should be invoked; but if the case can so be managed that fears of unseemly intrusion can be dispelled, abstention should be refused.
In short, a federal judge has a difficult institutional role to play. He or she cannot safely base a decision on how either party characterizes a case but must do an independent analysis. Otherwise, abstention decisions could be based on the rhetoric of an advocate rather than on the essential nature of a case. In this case we suspect that this may have happened. In retrospect both sides seem to have contributed. Although PPLM framed its general objectives in conventional terms, alleging that “procedures in fact ... constitute an undue burden” (plaintiffs’ more definite statement) and that the challenge “focuses on
In that motion, the Commonwealth held out the specter of having a federal court determine which state judges were so hostile as to be de facto unavailable, preside over cross-examinations of state judges as to not only their reasons but even “their most casual trial utterances and gestures,” and issue “an injunction mandating specific and detailed rules of conduct for Superior Court judges.”
In retrospect it would have helped the court to make a sound abstention decision if PPLM had, at the outset of its as-implemented attack, given the court in more revealing terms a clearer idea of what its case would be. Nevertheless, the court had available to it before its first decision indications of the kinds of issues that would be raised and the nature of evidence that would be adduced:
—On the question of delay, the court was aware of the steady accumulation of statistical data on the processing of § 12S petitions, under Chief Justice Morse’s order. This would be available to PPLM in the state proceeding; there would seem to be no insuperable obstacle to its availability in the instant case.
—The Donovan article attached to PPLM’s memorandum supporting its motion to amend indicated that data was available concerning use of the § 12S procedure by minorities, and the rise in the use of abortion clinics in neighboring states.
—The reservoir of volunteer lawyers secured through the lawyers’ referral panel, in addition to minors themselves, was an obvious source of testimony concerning experiences in § 12S proceedings, including accessibility, delay, continuances, length, the demeanor of judges, and the trauma of petitioners.
—The statistics on the number of § 12S applications, initial denials, and reversals on appeal seem to be readily available.
PPLM’s opposition to defendants’ first motion to dismiss represented that investigation had been made in all of the above areas. Ten supporting exhibits were attached. The kinds of evidence that might be expected in the asserted as-applied constitutional attack were further revealed in PPLM’s opposition to defendants’ second motion to dismiss, i.e., the proposed findings of fact submitted in the Hodgson case.
PPLM’s offerings show that its basic objective is to achieve a holding that the Massachusetts § 12S process of obtaining consent for minors’ abortions is, in its actual workings, unconstitutional. This remedy is a permissible one to pursue in federal court. Indeed this case is a paradigm of the kind of class action, civil rights case that characterizes our era. Challenging a state’s approach to the sensitive question of regulating abortions of minors within the constraints set by the Supreme Court is of the same broad genre of cases as those involving prisoners’ rights, public housing, desegregation, and drug testing. In all of these, whenever a federal court finds violations of constitutional rights, whether by individual state officials or by laws and ordinances, state interests are affected. In virtually all such cases, the way in which state courts treat future cases is affected.
If plaintiffs succeed, what will occur is not an ongoing intermeddling with the state judiciary but a prohibition of an unconstitutional process. As we said in Bath Memorial Hospital,
The threatened interference [in Burford and other such cases] did not consist merely of the threat that the federal court might declare the entire state system unconstitutional; that sort of risk is present whenever one attacks a state law on constitutional grounds in a federal court_ Rather, in our view, abstention in the Burford line of cases rested upon the threat to the proper administration of a constitutional state regulatory system. The threat was that the federal court might, in the context of the state regulatory scheme, create a parallel, additional, federal ‘regulatory review’ mechanism, the existence of which would significantly increase the difficulty of administering the state regulatory scheme.
What PPLM seeks here is not for the federal court to tinker with Massachusetts’ scheme of regulating minors’ abortions, but for the court to dismantle it.
We recognize that the parties discuss the possibility that a holding of unconstitutionality could rest on a specific, remediable deficiency. Defendants raise the alarum that this sort of finding might open the door to the imposition of intrusive rules of conduct. Our view, however, is that in such a situation, the defect would be remedied not by the federal court imposing its will but by the Massachusetts legislature itself, which took just such a step in amending § 12S in 1980. 1980 Mass.Acts. ch. 240.
Regarding comity concerns raised by possible discovery or testimony of superior court judges, PPLM’s evidentiary offerings demonstrate that this case can be managed so as to avoid inappropriate intrusions into the internal operations of the state judiciary. As a small part of the whole, plaintiffs will likely seek to introduce testimony as to the number of judges who, though not having recused themselves from § 12S cases, have in the past been so hostile that attorneys and their minor clients avoided them. Such evidence appears at best relevant to delay in processing petitions, a fact that can be proven directly by statistics. It appears that plaintiffs can make their case without subjecting any state judges to the rigors of extensive discovery, and without indiscriminately summoning them into court.
We therefore hold that the district court gave insufficient weight to its obligation to assess the essential nature of the litigation to see whether its proper objectives could be attained without the intrusion into internal operations of the state judiciary. We see no reason, on this record, why this lawsuit cannot be so managed. We have in mind our observations in another case where a district judge had demonstrated his acute sensitivity to state concerns:
[Fjederal courts are frequently called upon to weigh the strength of state interests, and the care with which the state has crafted the means to vindicate those interests, against the resulting burdens on individual rights. We do not think it can fairly be said that in so doing they have consistently either undervalued or overvalued the state interests at issue. The efforts of the district court in this case to identify possible sources of state-federal friction demonstrate an acute sensitivity to the federalism concerns underlying Pullman. We are confident that this same sensitivity will enable the court on remand, to focus on assessing the relevant conditions without being distracted by what the court determines to be extraneous considerations and over-broad assumptions.
Guiney v. Roache,
We briefly address the third reason given by the district court for its Burford abstention decision — the existence of state court proceedings, wherein PPLM might amend its complaint and raise its federal issues. The fact is that at present the state and federal proceedings are not identical. At most, they are parallel — each is bottomed on the law of its forum. As we have recently stated, “the simple existence of parallel state proceedings is not a reason to abstain. There is no special circumstance here, such as a special federal statutory policy favoring a single forum, as there was in Colorado River,
As for abstention on the basis of Younger v. Harris,
IV.
At this juncture we take note of the two branches of PPLM’s challenge to § 12S. One, as we have related, is the claim that “The procedures in fact afforded ... constitute an undue burden.” This specific claim has been part of the case since March 26, 1984 with the filing of a more definite statement. The other claim was tangentially referred to a year later in an affidavit of counsel supporting a motion for reconsideration of the district court’s dismissal of the complaint against the judicial defendants. This was the contention that § 12S “cannot be shown by defendants actually to have served the goal of encouraging parental consultation.” A year after that, in June 1986, in counsel’s affidavit supporting opposition to defendants’ motion to dismiss the case as to all remaining defendants, PPLM elaborated on this contention by asserting that “defendants will be unable to carry their burden of proving that the statute ... actually furthers any compelling state interests.” By the time of oral argument, this contention received at least equal or greater prominence to that given the “undue burden” argument.
We shall assume, without deciding, that the issue whether the actual workings of § 12S really do serve the state’s compelling interests was properly and timely raised. The thrust of plaintiffs’ assertion is that the two-parent consent requirement in operation contradicts rather than promotes intrafamilial communication. Plaintiffs assert that in many cases a minor fears that one parent will disapprove of her decision to seek an abortion. Because § 12S requires consent of both parents, the minor
We hold, however, that an operational challenge based on an inadequate state interest is not open to PPLM. It seems clear to us, after a careful rereading of Bellotti II, a decision that dealt with the precise procedure now before us, that a majority of the Court has made a clear and final policy declaration that the two-parent consent procedure serves the compelling state interests of encouraging a mature decision regarding abortion and encouraging parental involvement.
[T]he 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. 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.”
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.
These passages indicate that, at least in part, it is the preservation of the authority of each parent that forms the compelling interest in regulating minors’ abortions. This theme has resounded repeatedly in City of Akron v. Akron Center for Reproductive Health, Inc.,
The Court could so broadly identify a compelling state interest or so tentatively validate the procedures used to further that interest that its pronouncement on a facial challenge would not foreclose an operational challenge. In such a case, the Court’s initial determination might be open to revision based on subsequently mar-shalled empirical evidence. We do not think such a case is before us. Specifically addressing the two-parent requirement, the Bellotti II plurality indicated:
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. ... 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 interest of a 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.
We find support for our interpretation in Justice Powell’s directive that where one parent consents, his or her support be given "great, if not dispositive, weight” in judicial consent proceedings.
PPLM’s other claim, however, cannot at this juncture be dismissed as a matter of law.
V.
We conclude that this case may proceed without unduly interfering with the Massachusetts judicial system, and that abstention is therefore inappropriate under either the Burford or Younger line of cases.
The judgment is vacated and the case is remanded for further proceedings.
Notes
. Burford v. Sun Oil Co.,
. Younger v. Harris,
. Mass.Gen.Laws Ann. ch. 112, § 12S (West 1983), enacted on June 5, 1980, provides in relevant part as follows:
If a pregnant woman is less than eighteen years of age and has not married, a physician shall not perform an abortion upon her unless he first obtains both the consent of the pregnant woman and that of her parents, except as hereinafter provided.... If a pregnant woman less than eighteen years of age has not married and if one or both of her parents or guardians refuse to consent to the performance of an abortion, or if she elects not to seek the consent of one or both of her parents or guardians, a judge of the superior court department of the trial court shall, upon petition, or motion, and after an appropriate hearing, authorize a physician to perform the abortion if said judge determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion or, if said judge determines that she is not mature, that the performance of an abortion upon her would be in her best interests.
.Our decision issued on February 9, 1981; rehearing was denied on April 15, 1981.
. The district court recognized the conversion of the case into an as-applied challenge, referring to it as such in its Memorandum and Order of July 11, 1986.
. In this article the author makes the following points concerning the operation of the Massachusetts statute:
1) of 62 superior court judges, 10 have re-cused themselves and approximately one fourth of the remainder are avoided for reasons of hostility; sometimes many of the latter are sitting in the same county;
2) courts are not open evenings or on weekends; the difficulty in scheduling particular judges requires two or more trips by a minor, with delays of two to four days in obtaining an abortion being common;
3) judicial authorizations are sought by few minority applicants;
4) any decrease in Massachusetts abortions seems to be accounted for by visits to clinics in neighboring New Hampshire and Maine;
5) consultation with parents does not seem to be either stimulated by § 12S or helpful;
6) the hearings are often rituals, the minors being well coached, and ''maturity’ being difficult to judge in a brief session;
7) of 1,571 applications for abortion between 1981 and 1983, only 7 were denied and 5 of these denials were overturned on appeal.
. The proposed findings, occupying over 139 pages, were wide ranging, including the effect of the law on delay and the dangers of delay, the effect on deterrence, the traumatic effects of the parent notification law, and the lack of any positive contribution to family communication or minors’ decisionmaking.
The Minnesota district court eventually held that the parent notification requirement was unconstitutional and the judicial bypass requirement so interdependent that it, too, must be struck. A panel of the court of appeals affirmed.
. We do not hold that all questioning of state judges is inappropriate. Yet we recognize that questioning state judges in federal proceedings regarding their official conduct raises comity concerns, Dennis v. Sparks,
. This is not to say that the availability of a state forum for federal claims is irrelevant: if no state forum were available, this would militate against abstention.
. No opinion in Bellotti II garnered the support of a majority of the Court. However, Justice White’s dissent makes it clear that he would go farther than the three justices joining Justice Powell in upholding regulations of minors’ abortions, including parental consent requirements. We therefore view Justice Powell’s opinion as representing the views of a majority of the Court for present purposes.
. We note that to date extensive pretrial proceedings have focused on the nature of the claim (shifting from a facial to an operational challenge), the identity of the defendants, and the federal suit’s relation to the state court challenge. Plaintiffs’ efforts have been directed in recent proceedings toward addressing abstention challenges. We are not confident that the extent of the factual record plaintiffs hope to develop at trial has been fully defined. We express no view as to whether, once it is, it will be sufficient as a matter of law.
. See
Dissenting Opinion
(dissenting).
As I understand appellants’ present, primary challenge to the Massachusetts abortion-consent statute, it does not call for federal court abstention, but neither does it require further district court hearings.
The Massachusetts statute requires an unmarried minor seeking an abortion either to obtain her parents’ consent or to obtain the permission of a judge, who must grant permission if he finds either that the minor is “mature and capable of giving informed consent,” or that an “abortion ... would be in her best interests.” Mass.Gen. Laws Ann. ch. 112, § 12S (West 1983) (emphasis added.) The Supreme Court, in Bellotti v. Baird,
The panel would remand this case to permit the appellants to present the evidence that appellants hope will lead to these findings — and a consequent holding of unconstitutionality. After reviewing the facts that appellants hope to establish, I would not remand this case, for I do not believe those facts, even if established, could lead the Supreme Court to change its Bellotti II statement that such a statute is constitutional.
To understand why I reach this conclusion, one should first consider precisely what appellants hope to show. The majority’s summary, drawn from an article that appellants attached to their court papers, indicates they wish to show the following:
(1) Of 62 superior court judges, 10 have recused themselves [from abortion cases] and approximately Vi of the remainder are avoided for reasons of hostility; sometimes many of the latter are sitting in the same county;
(2) Courts are not open evenings or weekends; the difficulty in scheduling particular judges requires 2 or more trips by a minor, with delays of 2 to 4 days in obtaining an abortion being common;
(3) Judicial authorizations are sought by few minority applicants;
(4) Any decrease in Massachusetts abortions seems to be accounted for by visits to clinics in neighboring New Hampshire and Maine;
(5) Consultation with parents does not seem to be either stimulated by § 12S or helpful;
(6) The hearings are often rituals, the minors being well coached, and ‘maturity’ being difficult to judge in a brief session; and
(7) Of 1,571 applications for abortion between 1981 and 1983, only 7 were denied and 5 of these denials were overturned on appeal.
See Panel Opinion, at 461 n. 6. Appellants believe that findings of this sort will show that the statute’s judicial approval requirements unreasonably intimidate minors, while at the same time, given the overwhelming approval rate, the statute serves no significant ‘screening’ function.
Next, one should examine the proceedings in the Eighth Circuit case, Hodgson v. Minnesota,
experience of going to court for a judicial authorization produces fear and tension in many minors. Minors are apprehensive about the prospect of facing an authority figure who held in his hands the power to veto their decision to proceed without notifying one or both parents. Many minors are angry and resentful at being required to justify their decision before complete strangers. Despite the confidentiality of the proceeding, many minors resent having to reveal intimate details of their personal lives to these strangers. Finally, minors are left feeling guilty and ashamed about their lifestyle and their decision to terminate their pregnancy. Some mature minors and some minors whose best interests it is to proceed without notifying their parents are so daunted by the judicial proceeding that they forego the bypass option and either notify their parents or carry to term. Some minors are so upset by the bypass proceeding that they consider it more difficult than the medical procedure itself. Indeed, the anxiety resulting from the bypass proceeding may linger until the time of the medical procedure and thus render the latter more difficult than necessary.
The important point about Hodgson is what the court did next. Despite these findings, the court did not say the statute was unconstitutional (except in two respects not relevant for present purposes). Rather, the district court said that the statute was constitutional. Its reason was simply that the Supreme Court had indicated in Bellotti II and Planned Parenthood Association v. Ashcroft,
The Eighth Circuit, sitting en banc, held that the entire statute was constitutional. It reversed (by a divided vote) the district court’s findings of unconstitutionality in respect to two special parts of the statute. I can find no indication that any judge of that appellate court disagreed with the district court about the statute’s basic constitutionality.
In my view, the Eighth Circuit is correct. There is no point in permitting appellants to prove the general facts about the statute’s operation that they seek to prove, facts that amount to a showing that court hearings themselves may inhibit many minors from seeking permission for an abortion, that the hearings involve several days’ delay, and that the process leads to nearly universal court approval of minors’ petitions for abortions. There is no point because, assuming plaintiffs can make such a showing, I still do not see how one could reconcile a holding that the statute is unconstitutional with Bellotti II. In Bellotti II the Court held that the state may regulate abortions for minors, that no third party, such as a parent, may have a categorical “veto" over a decision to have an abortion, but that a judge may review a decision (though the judge may withhold permission only if the minor is immature and the abortion is not in her best interest).
I conclude that the matter is not perfectly clear. That is because, in a footnote, Justice Powell added the following:
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 ... we must assume that the Supreme Judicial Court’s judgment is correct.
I recognize a degree of ambiguity in the footnote, and I recognize the possibility that the Supreme Court could change its mind about this statute. It is also true that factual records, as in the instance of school desegregation, sometimes help produce a change of mind. Yet, before courts spend the considerable time, effort, and resources involved in building records of “legislative fact” not specific to the particular case at issue, there must be more reason than is present here to believe the law is different from, or about to become different from, what the Supreme Court has previously stated. Otherwise, it seems more expeditious for a lower court simply to point out that, on the present state of the law, the factual proof would not change the legal result. Those challenging the law may submit to courts of appeals, and then to the Supreme Court, the facts they wish to show by means of statements in their briefs or references to articles, or appropriate appendices. The appropriate courts can then make clear whether the factual showing could make a legal difference. This is not an area of the law where significant challenges to prior precedent are likely to escape, the Court’s attention.
Finally, I note that appellants, in the district court, raised a fundamentally different type of challenge to the Massachusetts law, a challenge that they seem to press somewhat less forcefully in this court. In the district court they seemed to say that even if the Massachusetts statute is itself constitutional, Massachusetts has not applied its law in a constitutional way; they seemed to say that Massachusetts judges, for example, did not correctly follow Massachusetts’ own law, as embodied in its statute, its Standing Order, Planned Parenthood League of Massachusetts v. Bellotti,
For these reasons I would affirm the judgment of the district court.