Lead Opinion
Vacated and remanded by published opinion. Judge LUTTIG wrote the opinion, in which Chief Judge WILKINSON and - Judges WIDENER, WILKINS, NIEMEYER, and WILLIAMS joined. Chief Judge WILKINSON wrote a concurring opinion. Judge WIDENER wrote a concurring opinion. Judge MICHAEL wrote an opinion concurring in the judgment, in which Judges MURNAGHAN, ERVIN, and DIANA GRIBBON MOTZ joined.
OPINION
Following eighteen years of public debate among the citizens of the Commonwealth of Virginia, the General Assembly of the Commonwealth enacted, and the Governor of the Commonwealth signed into law, the state’s Parental Notice Act, which requires that a minor who decides to have an abortion inform one of her parents twenty-four hours prior to performance of the procedure. Only hours before this law was to become effective, the federal district court for the Western District of Virginia enjoined enforcement of the Act by the Commonwealth. Upon extraordinary motion of Virginia’s Attorney General, we immediately stayed the district court’s injunction, and allowed the law to become effective in accordance with its terms.
We hold today that the Commonwealth’s parental notice statute, as legislation that respects the fundamental interests of responsible parents in the rearing and in the educational, moral, and religious development of their children, without unduly burdening the fundamental abortion right, is facially constitutional under the Fourteenth Amendment. A contrary holding — that the People of Virginia are forbidden by the Constitution of the United States from requiring that the responsible mother and father of a pregnant teenage daughter even be told of the life-defining decision their own daughter confronts — we are convinced, would be a holding not of law, but of will, and thus would betray the trust upon which our very legitimacy as an institution depends.’
I.
Virginia’s Governor Allen signed into law the Commonwealth’s Parental Notice Act, Va.Code § 16.1-24RV), on March 22, 1997. The Virginia General Assembly had passed the measure a month earlier. By its terms, the Act was to become effective at 12:01 Tuesday morning, July 1,1997.
As the title denotes, the Act is a parental ■ notice statute, not a parental consent statute; it prohibits a physician from performing an abortion on an unemancipated minor unless, twenty-four hours in advance of the procedure, notice of the anticipated abortion is provided to one of the minor’s parents, to a duly appointed legal guardian or custodian of the minor, or to one standing in loco parentis to the minor.
The Act expressly allows the performance of abortions without notice in circumstances in which the minor seeking the abortion has been the victim of parental abuse or neglect, and in circumstances in which either an abortion is immediately necessary to prevent the mother’s death or there is insufficient time to permit notification without exposing the minor to serious health risk.
Although the Supreme Court has never held that a parental notification law must include a judicial bypass procedure in order to withstand constitutional challenge, the Parental Notice Act includes such a procedure.
The Act confers upon every minor who avails herself of the bypass procedure the right to participate in the court proceedings on her own behalf and to have counsel assist her throughout the proceedings. If the minor so requests, the court is obligated to appoint counsel for the purpose of assisting the young woman in the bypass proceedings.
The Act also provides that bypass proceedings, which are to be conducted before the Commonwealth’s Juvenile and Domestic Relations District Court, “shall be confidential.” And the statute further provides both that judicial bypass proceedings “shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay in order to serve the best interests of the minor” and that bypass petitions “shall be heard as soon as practicable but in no event later than four days after the petition [seeking judicial authorization] is filed.” Finally, the Act provides any minor for whom judicial bypass of notification is denied “an expedited confidential appeal to the circuit court.”
Notwithstanding the Commonwealth’s inclusion of a judicial bypass procedure in its Parental Notice Act, and of the other aforementioned safeguards, the Federal District Court for the Western District of Virginia, on the eve of the Act’s effective date, preliminarily enjoined enforcement of the Act by the Commonwealth, holding that a substantial probability exists that the Act is facially unconstitutional. See District Court’s Memorandum Op. at 7-8.
At 4:00 p.m. that afternoon, following issuance of the district court’s order and the district court’s subsequent denial of the Commonwealth’s motion for stay of its decision, the Commonwealth filed a motion with a single Circuit Judge to stay the district court’s injunction, and, at 7:45 p.m. that night, the judgment of the district court was stayed pending appeal. See Planned Parenthood v. Camblos,
II.
In enjoining Virginia’s Parental Notice Act, the district court relied entirely upon the Supreme Court’s decision in Bellotti v. Baird,
Specifically, the district court observed that the Supreme Court in Bellotti II held that “[i]f [a pregnant minor] 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.” Memorandum Op. at 10 (quoting Bellotti II,
As discussed more fully below, although the Supreme Court held in Bellotti II that parental consent statutes must include specified judicial bypass procedures, including mandatory judicial bypass for mature minors, the Court did not address what, if any, such procedures are necessary in the context of a parental notice statute, like that enacted by the Commonwealth. And although the Supreme Court has subsequently upheld parental notice statutes which included Bellotti II-style bypass procedures, see Lambert v. Wicklund,
In concluding that the Supreme Court has held that a parental notification statute must meet the very same requirements that obtain for a parental consent statute, the district court seems to have confused the question of the standard of review applicable in facial challenges to abortion statutes and the question of the substantive requirements that a state’s judicial bypass must satisfy if it is to meet constitutional standards. It appears that the district court conflated these two distinct questions because of its misreading of the Eighth Circuit’s decision in Planned Parenthood v. Miller,
[i]n [Miller], the Eighth Circuit considered whether Bellotti II or [United States v.] Salerno, [481 U.S. 739 ,107 S.Ct. 2095 ,95 L.Ed.2d 697 (1987),] applied to a parental notification statute. The court concluded that “the [Supreme] Court [in Casey,505 U.S. at 833 ,112 S.Ct. 2791 ,] effectively overruled Salerno for facial challenges to abortion statutes” and went on to apply the Bellotti II standard. Significantly, the Supreme Court denied certiorari of Miller.
Memorandum Op. at 8 (citations omitted); see also id (stating that plaintiffs argue that “Casey left intact the Bellotti v. Baird standard of review for judicial bypass provisions in parental consent statutes” (citations omitted)). The Eighth Circuit in Miller, however, did not reason or hold as the district court believed. That court first decided that the standard of review articulated in Casey, rather than that in Salerno, applies to facial challenges to abortion statutes and then, separately, concluded that a Bellotti II-type bypass procedure is required if a parental notification statute is to be upheld as constitutional. As that court framed the standard of review issue before it:
The critical issue in this ease is a threshold one: what is the standard for a challenge to the facial constitutionality of an abortion law? The State would have us apply the test set out in United States v. Salerno,481 U.S. 739 ,107 S.Ct. 2095 ,95 L.Ed.2d 697 (1987), under which “the challenger must establish that no set of circumstances exists under which the Act would be valid.” Salerno,481 U.S. at 745 ,107 S.Ct. 2095 . Planned Parenthood, on the other hand, contends that the Supreme Court replaced the Salerno test in Casey,505 U.S. 833 ,112 S.Ct. 2791 . Under Casey, it claims, an abortion law is unconstitutional on its face if, “in a large fraction of the cases in which [the law] is relevant, it will operate as a substantial obstacle to a woman’s choice to undergo an abortion.”112 S.Ct. at 2830 .
Miller,
The Supreme Court reinforced the Eighth Circuit’s Miller conclusion in Lambert v. Wicklund,117 S.Ct. at 1169 , when it reversed a Ninth Circuit decision which held the Montana Notice of Abortion Act unconstitutional under Glick v. McKay,937 F.2d 434 (1991). In its opinion, the Court discussed the Ninth Circuit’s application of the Bellotti II standard to the Montana act and concluded that the court had misapplied existing case law. Lambert,117 S.Ct. at 1171 . This discussion of the misapplication of the Bellotti II standard — as opposed to the application of the wrong standard — and the denial of certiorari in Miller leads this court to conclude that the Supreme Court intends for Casey and Bel-lotti II to be applied to parental notice bypass provisions. This court will therefore apply Casey and Bellotti II to the case at bar.
Memorandum Op. at 9 (emphases in original; footnote and citations omitted). Contrary to the district court’s belief, the Court in Lam-beri said nothing whatsoever concerning the standard of review applicable to facial challenges to abortion regulation statutes, as one would expect given that Lambert was a summary reversal of the Ninth Circuit’s decision, without even argument. Indeed, neither Salerno nor Casey is even cited in the Court’s relatively brief per curiam opinion in Lambert.
In Lambert, the Supreme Court did, as the district court noted, discuss the Bellotti II criteria. But it did so only in demonstration that the judicial bypass provision at issue in Lambert was “substantively indistinguishable” from the bypass in the Ohio notice statute which the Court sustained in Akron II on the grounds that it satisfied the Bellotti II standards, and, therefore, that the Ninth Circuit’s Lambert decision “simply [could not] be squared with [the Supreme Court’s] decision in Akron II.”
In the end, therefore, the district court correctly seemed to recognize that an issue has arisen as to whether, in Casey, the Supreme Court sub silentio overruled its decision in Salerno on the standard of review applicable to facial challenges to statutes regulating abortion, and therefore that a question exists as to whether the plaintiff in a facial challenge to an abortion statute must show that “no set of circumstances exists under which the Act would be valid,” Salerno,
Accordingly, the conclusion of law on which the district court's injunction to the Commonwealth rested, namely, that a parental notification statute must include a judicial bypass procedure that satisfies Bellotti II's requirements governing bypass procedures in parental consent statutes in order to be constitutional, was simply in error.
III.
We ordinarily review a district court's ruling on a preliminary injunction only for abuse of discretion, that is, only in order to determine "whether the trial court abused its discretion in finding the presence or absence of irreparable harm and a probability that the plaintiffs would succeed on the merits," Thornburgh v. American College of Obstetricians and Gynecologists,
Appellate adjudication of the underlying legal merits, on an appeal from the issuance of a preliminary injunction, is most clearly justified where not only does the injunction rest entirely upon a pure question of law, but it is plain that the plaintiff cannot prevail as a matter of the governing law. When this is apparent to the court of appeals, a defendant is, as the Supreme Court has observed for more than a century, entitled both to immediate relief and to relief from the expense of further litigation. See, e.g., Thornburgh,
These principles confirm the appropriateness of our proceeding to the underlying merits in this case. Here, the district court’s injunction rests entirely upon that court’s holding, as a matter of pure law, that a parental notice statute must include a judicial bypass in order to be constitutional and that that bypass must be identical to that required in order to sustain a parental consent statute. And the district court fundamentally erred in its resolution of these questions.
Furthermore, the facts necessary to resolve these issues are undisputed, as even the plaintiffs-appellees correctly conceded at argument. Consequently, additional proceedings in the district court would serve no purpose whatsoever. While the parties dispute the precise contours of the judicial bypass included within the Commonwealth’s parental notice statute (in pai’ticular, the meaning of the maturity bypass and the scope and efficacy of its requirements for confidentiality and expeditiousness), these disputes turn upon disagreements as to the proper interpretation of the statute, and secondarily upon predictions as to how the statute will actually operate in practice — disagreements resolvable ultimately, not through determinations of fact, but rather only through determinations of, and predictions as to, state law. Because the appellate court does not defer to the trial court on interpretations of state law, see Salve Regina College v. Russell,
Recognizing that this dispute is ripe for consideration on the merits, the parties themselves agreed at oral argument that further proceedings in the district court are not necessary and that resolution of the merits of the dispute by this court would be appropriate. Therefore, rather than extend this litigation — which is plainly ripe for final adjudi
IV.
The Supreme Court held in Roe v. Wade,
Since Roe, the Court has reviewed both parental consent and parental notice statutes challenged on the grounds that they imper-missibly permitted third-party veto of the abortion decision, invalidating several parental consent statutes on the grounds that they did effectively permit such veto of the abortion decisions of mature minors and minors for whom an abortion was in their best interest. The Court first addressed the constitutionality of a parental consent statute in Planned Parenthood v. Danforth,
Three years later, in Bellotti II, the Court considered a parental consent statute that required a minor to obtain the consent of both of her parents or of a court before she could have an abortion. Again expressing concern over the possibility of an impermissible, absolute parental veto over the minor’s abortion decision, the principal opinion of the Court held 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 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; or (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.
Bellotti II,
Although the Court invalidated Massachusetts’ two-parent consent statute for the reasons stated, a majority of the Court expressed that, because of the value of responsible parental involvement in the minor’s abortion decision, it would have upheld the state’s two-parent consent statute if that statute had included a bypass that satisfied the criteria outlined in the principal opinion:
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.
Id. at 649,
Thus, although the Supreme Court has held that states 'may permissibly condition a minor’s abortion even on parental consent to the procedure, it has required that parental consent statutes include Bellotti II judicial bypasses in order to ensure that the minor’s decision is not subject to an absolute and arbitrary third-party veto. See Casey,
[t]he difference between notice and consent[requirements] was apparent to us before and is apparent now. Unlike parental consent laws, a law requiring parental notice does not give any third party the legal right to make the minor’s decision for her, or to prevent her from obtaining an abortion should she choose to have one performed. We have acknowledged this distinction as “fundamental,” and as one “substantially modify[ing] the federal constitutional challenge.”
[ajlthough the Court has held that parents may not exercise “an absolute, and possibly arbitrary, veto” over [the abortion] decision, it has never challenged a State’s reasonable judgment that the decision should be made after notification to and consultation with a parent.
Hodgson,
The Court has addressed the constitutionality of parental notice provisions in four cases. In the first, H.L. v. Matheson,
Although we have held that a state may not constitutionally legislate a blanket, un-reviewable power of parents to veto their daughter’s abortion, a statute setting out a “mere requirement of parental notice” does not violate the constitutional rights of an immature, dependent minor.
Id. at 409,
Since Matheson, the Court has twice more upheld parental notice statutes. In each of these instances, the statute included the Bel-lotti II bypass procedures required for consent statutes, and the Court simply sustained the statutes on the grounds that a notice statute that satisfies the requirements for a consent statute necessarily satisfies any requirements that might exist for a mere notice statute. In Akron II, the Court sustained Ohio’s single-parent notification statute, which included a judicial bypass that met the Bellotti II consent bypass requirements. Akron II,
'Indeed, in the twenty-five years since Roe v. Wade, the Supreme Court has invalidated only one parental notice provision — the Minnesota two-parent notification provision at issue in Hodgson — and that was on the narrow ground that the statute failed to provide adequate exceptions to notice in circumstances where a parent was abusive or had not assumed the responsibilities of parenthood.
The Court in Hodgson was so fractured as to render its opinions collectively all but impenetrable, with five different Justices filing opinions variously concurring and dissenting in other opinions and parts of other opinions, prompting Justice Scalia to canvass thus the Court’s action in Hodgson (and in Akron II, decided the same day):
One Justice holds that two-parent notification is unconstitutional (at least in the present circumstances) without judicial bypass, but constitutional with bypass; four Justices would hold that two-parent notification is constitutional with or without bypass; four Justices would hold that two-parent notification is unconstitutional with or without bypass, though the four apply two different standards; six Justices hold that one-parent notification with bypass is constitutional, though for two different sets of reasons; and three Justices would hold that one-parent notification with bypass is unconstitutional.
Hodgson,
The specific reasoning of the individual Justices was as follows.
Four Justices, it is plain, would have upheld Minnesota’s two-parent notice statute without any judicial bypass at all, reasoning that it is “permissible for a State to legislate on the premise that parents, as a general rule, are interested in their children’s welfare and will act in accord with it.” See id. at 485, 489-497,
Four other Members of the Court joined in an opinion written by Justice Stevens that could fairly be understood as holding that all two-parent notice statutes are per se unconstitutional because (with respect to the functioning family) they either “fail to serve any state interest” at all or fail to serve any “legitimate interest,” id. at 450,
These statutes provide testimony to the unreasonableness of the Minnesota two-parent notification requirement and to theease with which the State can adopt less burdensome means to protect the minor’s welfare. We therefore hold that this requirement violates the Constitution.
Id. at 455,
It is apparent, however, that, although Justice O’Connor provided the fifth vote for the majority that invalidated the Minnesota notice statute without a bypass, she did not subscribe to the precise reasoning in Justice Stevens’ opinion. In her separate opinion in which she sets forth her own reasoning for invalidating Minnesota’s two-parent notice statute, Justice O’Connor contrasts the Minnesota statute with .the statute in Arkansas, which, she noted, provided for exceptions to its two-parent notice requirement that would permit notice bypass in instances of abuse and permanently absent parents. See id. at 459-60,
That this was Justice O’Connor’s understanding also of Justice Stevens’ opinion, and thus was the narrow grounds upon which Justice Stevens’ opinion rests, is conclusively confirmed by the fact that Justice O’Connor ultimately voted to sustain the Minnesota statute, with a judicial bypass. Id. at 461,
That the Court did not strike down the statute because it lacked a judicial bypass, but, rather, because of the overbreadth of the statute’s notice requirement, even appears upon a careful reading of Justice- Stevens’ opinion. As that opinion recites its holding at the beginning of its analysis: “It is equally clear that the requirement that both parents be notified, whether or not both wish to be notified or have assumed responsibility for the upbringing of the child, does not reasonably further any legitimate state interest.” Hodgson,
Indeed, the very same day that Hodgson was decided, the Court in Akron II, avoiding the notice bypass issue in the same way that it had in Hodgson, expressly confirmed, in an opinion in which Justice O’Connor herself joined, that it had yet to decide whether the Constitution requires that a parental notice statute include a judicial bypass:
[Although our cases have required bypass procedures for parental consent statutes, we have not decided whether parental notice statutes must contain such procedures. See Matheson, [450 U.S. at 413 & n. 25,101 S.Ct. 1164 ], (upholding a notice statute without a bypass procedure as applied to immature dependent minors). We leave the question open, because, whether or not the Fourteenth Amendment, requires notice statutes to contain bypass procedures, [the Ohio parental notice statute’s] bypass procedure meets the requirements identified for parental consent statutes....
Akron II,
V.
Turning now to this question for the first time in our Circuit, we conclude, based upon the substantial authority from the Court emphasizing the fundamental differences between consent and notice statutes, that the Constitution does not require for "mere notice" statutes the full panoply of safeguards required by the Court in Bellotti II for parental consent statutes. In particular, we conclude that a parental notice statute that includes the exceptions to notice identified in Hodgson is, without more, facially constitutional. That is, provided that a parental notice statute does not condition the minor's access to abortion upon notice to abusive or neglectful parents, absent parents who have not assumed their parental responsibilities, or parents with similar relationships to their daughters, we do not believe that more is required in order to withstand a facial challenge to its constitutionality. For a parental notice statute-unlike either a spousal notice or a blanket parental consent statute-has neither "the purpose [n]or effect of placing a substantial obstacle in the path of a woman seeking an abortion," Casey,
A.
1.
A parental notice statute-one-parent or two-parent-that excepts from its requirements notice to the abusive or neglectful parent, or the parent who has not assumed responsibility for the minor, indisputably furthers legitimate and important state interests.
Such a notice statute serves the compelling state interest in securing inviolate the right of a mother and a father to rear their child as they see fit, and to participate fully in that child's life, as free from governmental interference as constitutionally permissible. It is a fundamental premise of our society that "{tjhe child is not the mere creature of the State" and that "those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for," the challenges and decisions of life. Bellotti II,
[t]he history and culture of Western civilization reflect a strong tradition of parental concern for the nurture and upbringing of their children. This primary role of the parents in the upbringing of their children is now established beyond debate as an enduring American tradition.
Hodgson,
Indeed, the parental right to shape and direct the life of one’s child during that child’s minority is itself a fundamental liberty interest protected by the Constitution:
The Court has frequently emphasized the importance of the family. The rights to conceive and to raise one’s children have been deemed essential, basic civil rights of man.... It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.
Id. at 447,
Because parents do have a fundamental liberty interest in the parent to child relationship, see id. at 484,
As importantly, the requirement that responsible parents be apprised of their minor daughter’s decision to obtain an abortion furthers the state’s legitimate interest in ensuring that the minor’s abortion decision is fully informed. That the states may constitutionally enact reasonable regulations to ensure informed consent, even for adult women, is beyond question. As the Court observed in Casey:
What is at stake is the woman’s right to make the ultimate decision, not a right to be insulated from all others in doing so. ... Regulations which do no more than create a structural mechanism by which the State, or-the parent or guardian of a minor, may express profound respect for the life of the unborn are permitted, if they are not a substantial obstacle to the woman’s exercise of the right to choose.
Of course, the state has an even stronger interest in ensuring that the consent of minors is informed because minors are more likely than adults to proceed uninformed. See, e.g., id. at 899,
Certainly, therefore, the state may conclude that a minor’s abortion decision will be more informed and better considered if her parents know of her impending decision and thus are able to assist her in making that grave decision. As Justice Kennedy has written:
A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronted by a woman who is considering whetherto seek an abortion_ The State is entitled to assume that, for most of its people, the beginnings of that understanding will be within the family, society’s most intimate association. It is both rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature.... It would deny all dignity to the family to say that the State cannot take this reasonable step [of requiring parental notice] to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.
Akron II,
Finally, parental notice statutes serve the important state interest of ensuring that the physician advising the minor on her abortion decision has access to the child’s full medical and, where relevant, psychological, history. The Court has repeatedly observed that,
[t]he medical, emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician. Parents can provide medical and psychological data, refer the physician to other sources of medical history, such as family physicians, and authorize family physicians to give relevant data.
Akron II,
In short,
[t]here can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child.
Hodgson,
2.
At the same time that the state indisputably furthers legitimate purposes when it requires notice to responsible parents, the effect of such a notice requirement on the abortion right is markedly different from that of a consent requirement, as the Supreme Court has noted in every ease in
A statute that conditions a minor’s access to abortions on parental consent, by definition, gives parents an absolute, and potentially arbitrary, veto over their child’s decision. See Danforth,
The effect of a mere notice provision on the abortion decision is different not merely in degree, but in kind. A parental notice statute that includes the specific exceptions constitutionally mandated by the Court in Hodgson vests with parents neither a veto in fact nor a veto in effect. As the Supreme Court has consistently recognized, the choice of whether to abort the pregnancy remains ultimately and exclusively that of the minor. See discussion supra at 362-63 (citing cases).
Nor does a parental notice requirement that excepts notice to the abusive, the irresponsible, the permanently absent, or the similarly disaffected parent, otherwise constitute a substantial obstacle to, or an undue burden on, the abortion decision. Although we appreciate well the emotional trauma that can attend a discussion between parent and child on a subject so fraught with moral, ethical, and religious implications as abortion, a mere notice requirement does not even necessarily force such a discussion between the minor and her parents; insofar as the law is concerned, the young woman need not even return home or otherwise establish contact with her parents following the required notice and before the abortion is performed. To be sure, if the young woman does willingly return home, or even if she only initiates telephone contact with her parents, she will almost certainly be exposed to her parents’ views on the grave decision she contemplates. And, we may assume, those views may be passionately held, contrary to her own, and forcefully expressed. But the period of time between notice and abortion during which the minor may be exposed to those views is typically short (and may be shorter still, if she chooses to contact her parents only by telephone), and, during this short period, the young woman has but to listen to ’ her parents; at least under a pure notice statute, the law does not even undertake to require consultation in the sense of a frank and open exchange between mutually receptive parent and child. And in no event need the minor conform or otherwise accommodate her plans to the desires of her parents.
We understand fully, and do not discount, the influence, if not pressure, that can be brought to bear (intentionally or not) during a discussion between parents and a child who is .in the throes of a decision so emotionally wrenching as that of whether to end a pregnancy (whether the parents approve of abortion or not), even as we recognize also the tendency of teenagers in difficulty to exaggerate their parents’ likely reactions to their dilemmas and to underestimate their parents’ capacity for understanding and compassionate response. The opinions the parents express and the advice the parents impart will undoubtedly change the calculus of the child’s decision, as properly they should. In all but the rarest of circumstances, this discussion will force the young woman, whether admittedly or not, to examine and reexamine the decision she has preliminarily made, against not only her own values, morals, and beliefs, but, where they differ, against those of her mother and her father. And, assuredly, the reaction the minor gets and the counsel she receives from her parents will, in many instances, bring about either a change of mind or a change of heart, and a consequent change in decision from that she initially reached without the benefit of her parents’ experience and insight. To imagine the discussion between the concerned parents and their frightened daughter is to understand the power of the dynamic to add to the burden of the imminent decision.
However, without minimizing its effect, this additional imposition on the minor’s otherwise completely unfettered abortion decision cannot be said to constitute a burden that is “undue” under a Constitution that jealously protects the sanctity of the family as the cornerstone of society. For, in the
Indeed, to hold that the Constitution affirmatively forbids a state from requiring that mothers and fathers of pregnant teenagers merely be told of their daughters’ decisions to abort their pregnancies would be nothing less than an arrogation of the parental role by judicial fiat, a wresting from parents and rendering unto the courts of the privileges and responsibilities that are parenthood itself. And this, at the very moment when not only child is most in need of parent, but also, paradoxically, parent is most in need of child. Not only does the Constitution not require such an expropriation of the rights and duties of mother and father, we doubt that the People would submit to such. Even in an age of tolerance, not all is tolerable — or to be tolerated.
B.
Accordingly, we hold today that the state may constitutionally require that mothers and fathers of teenage daughters be informed of their daughters’ life-defining decisions to abort their pregnancies, provided that the state excepts from its requirement notice to abusive parents, noncustodial parents who have refused to accept their parental responsibilities, and parents with similar relationships to their children, as required by the Supreme Court’s decision in Hodgson. In contrast to the full panoply of safeguards required of parental consent statutes, more is not required of the state in order for its mere notice statute to withstand facial constitutional challenge.
In particular, as to the “best interest” bypass, we hold that a notice statute that includes at least the Hodgson “best interest” exceptions for abusive or neglectful parents and parents who have otherwise refused to accept the responsibilities of parenthood, is facially constitutional, without more. While the Supreme Court might eventually require that a parental notice statute include a “best interest” bypass that would except notice in additional circumstances akin to those identified in Hodgson, we do not believe that those circumstances are likely to be sufficiently large in number that such a statute must account for them in order to withstand a facial challenge to its constitutionality. And, because a broader bypass would be in substantial tension, if not irreconcilable, with the liberty interest of parents to decide for themselves, as free as possible from governmental interference, what is and what is not in the best interests of their own children, we do
As to the “mature minor” bypass, we hold that a notice statute that is tailored so as to satisfy the requirements of Hodgson need not include, in addition, a bypass for the mature minor in order to pass constitutional muster. Cf. Akron I,
A notice requirement does not become a veto merely because the minor has become mature enough that she must be allowed to decide for herself whether to end her pregnancy. Indeed, there is every reason to believe that the burden imposed upon the mature minor by a parental notice requirement will actually be less onerous than that imposed upon the immature minor. As Justice Stevens has noted, “[ajlmost by definition, ... a woman intellectually and emotionally capable of making important decisions without parental assistance also should be capable of ignoring any parental disapproval.” Matheson,
Moreover, that a young woman may, under law, be considered sufficiently mature that she must be allowed to make the ultimate abortion decision, does not mean that she is in fact mature or that she is mature in all respects, and it certainly does not mean that she is mature enough that the state no longer has a legitimate and substantial interest in encouraging her to seek parental counseling, guidance, and assistance with regard to the abortion decision. As the Court itself has acknowledged, “[tjhere is no logical relationship between the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion.” Id. at 408,
She will be better able to select the physician who will perform the abortion, if she decides upon ending the pregnancy. See id. at 641 n. 21,
Finally, it should go without saying, the parents’ interest in the well-being, and continued care and support, of their minor daughter likewise does not cease upon a judicial finding that their daughter is sufficiently mature to make the abortion decision herself. As a factual matter, of course, that interest presumptively continues for life; but, even as a matter of law, that interest continues at least until the child achieves majority. Although the age of majority might be considered arbitrary, in the most important sense it is not. It represents the collective experience and insight of a society with respect not merely to the physical, but also to the emotional, development of its children and their ability to make mature decisions without parental assistance.
In sum, we find unassailable Justice Stevens’ considered conclusion in Matheson, that,
[t]he fact that certain members of the class of unmarried “minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies” may actually be emancipated or sufficiently mature to make a well-reasoned abortion decision does not ... undercut the validity of [a notification statute that requires immature and mature minors alike to provide notice of their abortion decision to their parents] _ [A] state legislature has constitutional power to utilize, for purposes of implementing a parental-notice requirement, a yardstick based upon the chronological age of unmarried pregnant women. That this yardstick will be imprecise or even unjust in particular cases does not render its use by a state legislature impermissible under the Federal Constitution.
Matheson,
VI.
Measured against the foregoing standards, it is evident that the Comnjonwealth of Virginia’s parental notice statute comfortably passes constitutional muster as a facial matter.
A.
Initially, and quite possibly dispositively, the Commonwealth’s notice provision suffers from neither of the flaws of the Minnesota notice statute at issue in Hodgson.
First, the Virginia parental notice statute, in contrast to the two-parent notice provision invalidated in Hodgson, does not require notice to absent or noncustodial parents who have not assumed significant responsibility for their children’s care and upbringing. The general notice provision requires notice to “an authorized person,” who, in turn, is defined as:
(i) a parent or duly appointed legal guardian or custodian of the minor or (ii) a person standing in loco parentis, including, but not limited to, a grandparent or adult sibling, with whom the minor regularly and customarily resides and who has care and control of the minor.
Va.Code § 16.1-24KV). Therefore, a minor is, at most, required to notify only one par
Second, the Virginia statute does not require notice to abusive parents. In fact, the statute includes an express notice exception for abused minors:
[N]either notice nor judicial authorization shall be required if the minor declares that she is abused or neglected and the attending physician has reason to suspect that the minor may be an abused or neglected child as defined in § 63.1-248.2 [of the Virginia Code] and reports the suspected abuse or neglect in accordance with § 63.1-248.3. Id. § 16.1-24KV).7 Appel-lees do not suggest any reason why this abuse exception is not wholly efficacious.
From our own review of the statute it appears that this abuse exception perhaps may not be sufficient in and of itself to satisfy Hodgson because of the possibility that the provision’s reporting requirement could indirectly result in notice to the abusive parent. As we have discussed, a majority of the Court in Hodgson, and Justice O’Connor in particular, concluded that an abuse exception is “less than effectual” where the abuse must be reported and the resulting investigation would provide the parent indirect notice of the minor’s abortion decision. Hodgson,
However, even assuming that this abuse exception may be inadequate while standing alone,
After a hearing, a judge may authorize a physician to perform an abortion upon finding that the minor is mature and capable of giving informed consent to the proposed abortion. If the judge determines that the minor is not mature, the-judge shall, after a hearing, determine whether the performance of an abortion upon the minor without notice to an authorized person would be in the minor’s best interest, and if the court finds that the abortion would be in the minor’s best interest, it shall so authorize a physician.
Va.Code § 16.1-241(V) (emphasis added).
It might be argued from the language of the Virginia statute that a mature minor cannot avail herself of the best interest bypass because the court is directed to consider the minor’s best interest only after the court finds that the minor does not qualify for the maturity bypass. The mature minor obviously has no need for such a best interest bypass if her maturity alone is sufficient to guarantee her the opportunity to proceed without parental notice, but appellees contend that the Virginia statute confers discretion on a court to deny a mature minor the right to bypass notice.
Even if the maturity bypass truly is discretionary as appellees contend, see discussion infra, it must be assumed that the judicial discretion to deny bypass is not unbounded, but rather must be exercised in the best interest of the minor. It would be a strange construction of the statute that would require the court to allow an immature minor to bypass parental notice when notice was not in her best interest, but that would allow the court to disregard the best interest of a mature minor simply because she is mature.
Moreover, because the Constitution requires that Virginia’s bypass authorize an abused minor — whether mature or immature — to proceed without parental notice, and because the Virginia statute is reasonably susceptible of such a construction, we, as a federal court, are required by principles of federalism and comity to assume that the Virginia courts will construe the statute so as to provide a mandatory notice bypass for an abused mature minor. See, e.g., Akron I,
These considerable statutory safeguards for the child’s best interest confirm that Virginia’s statute is plainly adapted to the legitimate purposes of promoting informed consent, facilitating physicians’ access to relevant medical information and otherwise ensuring that minors obtain appropriate medical care, as well as to accommodating the liberty interests of parents in the rearing, care, and guidance of their children. They also confirm beyond question that the statute cannot possibly be understood to afford parents a veto over their child’s abortion decision. The statute does not require that notice be given to parents who are abusive, or who have not assumed significant responsibility for their children, and thus avoids the constitutional defects of the statute struck down in Hodgson. It also includes both a broader mandatory best interest judicial bypass and, quite possibly, a mandatory bypass for minors who are sufficiently mature that they can determine for themselves whether to end or carry their pregnancy to term.
B.
Even if the Commonwealth’s Parental Notice Act were not constitutional for the reasons recited, we would still be obliged to sustain the statute as against appellees’ facial challenge to its constitutionality. Although the Supreme Court has never held that a notice statute must include a Bellotti II bypass, the Court has repeatedly held, as we have discussed, that the constitutionality of a notice statute that does meet the Bellotti II standards is beyond question, “it [being] a corollary to the greater intrusiveness of consent statutes that a bypass procedure that will suffice for a consent statute will suffice also for a notice statute,” Akron II,
In almost every respect, the judicial bypass in the Commonwealth’s statute is constitutionally indistinguishable from, and arguably more protective of the minor’s abortion right than, the bypass held by the Court in Akron II to be adequate to sustain Ohio’s single-parent notification statute. And, in many respects, it is also more protective of the minor’s abortion right than the bypass in Hodgson, which a majority of the Court held validated the more intrusive law at issue in that case.
First, as discussed, the Virginia statute, like the Ohio statute in Akron II and the Minnesota statute upheld in Hodgson, provides for judicial bypass of the notice requirement in cases where the court finds that an abortion without notice would be in the best interests of the minor. Indeed, the Ohio statute required the minor to prove by “clear and convincing evidence” that notification was not in her best interest before bypass was allowed. Ohio Rev.Code § 2151.85(C)(2). Obviously, this “clear and convincing evidence” standard works a greater burden on the minor’s right to an abortion than does the preponderance of the evidence standard of the Virginia statute.
Second, as required in the parental consent context, the Virginia statute guarantees confidential bypass procedures. The Ohio
Appellees argue that, when judged against the Bellotti II consent standards, the Virginia confidentiality guarantees are inadequate because the law only makes “proceedings” confidential and does not explicitly guarantee the confidentiality of court records. Appel-lees’ Brief at 5, 26. However, the Chief Justice of the Virginia Supreme Court, in his role as “the administrative head of the judicial system,” Va. Const. Art. VI. § 4, has issued, through the Office of the Executive Secretary of the Court, specific instructions to the judges and clerks who will handle cases under the parental notification law that they shall ensure that all records and proceedings be kept strictly confidential. The Chief Justice has imposed upon judges and clerks an obligation to adhere to the most rigorous standard of “deep confidentiality,” see J.A. at 399-400, 433-44, and interpreted “[confidentiality of the proceedings (and the records of those proceedings)” as “a right specifically guaranteed by Virginia Code § 16.1-24KV),” J.A. at 399, 433 (emphasis added).
The Virginia Supreme Court instructions also answer appellees’ second objection that the confidentiality provisions will be circumvented by other sections of the Virginia juvenile code which, while guaranteeing “confidentiality” in juvenile proceedings, also provide that the court shall issue a summons “to the parents, guardian, legal custodian or other person standing in loco paren-tis, and such other persons as appear to the court to be proper or necessary parties to the proceedings.” Va.Code. § 16.1-263. The instructions specifically provide that “[t]he petitioner is the only party to [the bypass] proceeding” and that “[n]o parent, guardian, custodian, or other person standing in loco parentis to the petitioner should be served with a notice” of the proceeding. Id. at 376, 395, 429. This interpretation is clearly the most logical synthesis of the Act and the background provisions governing juvenile proceedings: it would make little sense for a judge to conclude that a parent is a “proper or necessary part[y]” to a proceeding, the very purpose of which is to avoid providing that parent notice of her child’s actions. Similarly, the explicit guarantees of confidentiality in the judicial bypass provision would obviously trump the general rule in juvenile proceedings that court records are open for inspection to the child’s parent. See Va.Code § 16.1-300(A)(3). And, tracking the language of the notice statute itself that confidentiality is to be maintained “Notwithstanding any other provision of law,” id. § 16.1-241(V), the Virginia Supreme Court has instructed that “[t]he customary exceptions to confidentiality which are found in or read into Virginia Code §§ 16.1-302 and -305 are not applicable to these bypass proceedings.” J.A. at 400, 434.
These imposing confidentiality protections provided for in the Virginia statute and promulgated by the Virginia Supreme Court would be adequate to sustain a consent statute, and they clearly are adequate to sustain the notice provision at issue here. Indeed, the judicial bypass to two-parent notice in Hodgson provided only that “[proceedings” of the court be “confidential,” and did not make explicit provision for the confidentiality of court records, see Hodgson,
Third, Virginia’s parental notice statute provides for expeditious resolution of minors’
Appellees contend nonetheless that the Virginia statute does not provide for sufficiently expeditious resolution of minors’ bypass requests because, although it requires that petitions be heard by the district court within four days of filing, it does not expressly specify how quickly such petitions must be decided. The Virginia statute does, however, command that bypass proceedings “be given precedence over other pending matters so that the court may reach a decision promptly and without delay in order to serve the best interests of the minor.” Va.Code § 16.1— 241 (V). Additionally, the guidance given by the Virginia Supreme Court to its lower courts clearly contemplates that, in accordance with the long established practice of Virginia’s Juvenile and Domestic Relations Courts, see J.A. at 456, 469, the decision on the petition will usually be made at the end of the hearing held within four days of filing:
The order granting or denying the petition should be entered at the end of the hearing using the form entitled ORDER IN PROCEEDING SEEKING JUDICIAL AUTHORIZATION OF ABORTION. A copy of this form is attached. The petitioner should be provided with an attested copy of the order before she leaves the court.
J.A. at 378, 431 (emphasis added). Elsewhere in the guidance, the Virginia Court does acknowledge that the lack of a deadline for deciding the petition may allow a court to take the petition under advisement, but the court pointedly cautions that “exercising the [‘advisement option’] liberally certainly conflicts with the urgency of the proceedings, as reflected in the tight statutory time frames” and that “[t]oo long a delay in adjudicating a bypass petition could have constitutional implications.” J.A. at 412, 445-46. The unmistakable implication is that, whenever possible, petitions should be resolved within the statutory four-day period required for holding hearings. No more is required to sustain the statute against a facial challenge.
The bypass provision upheld by the Court in Hodgson required only that the court give precedence to bypass petitions and resolve them promptly, see Hodgson,
Appellees contend that a judge still may flout the clear language of the statute and the cautionary instructions of the Virginia Supreme Court and withhold decision for an indefinite time after hearing a case under the Act. This argument not only inappropriately ascribes a form of lawlessness to the judges of the Commonwealth of Virginia, it is also irrelevant in the context of a facial challenge to this statute. See Akron II,
The only possibly relevant distinction between the Ohio notice statute in Akron II, which satisfied the Bellotti II consent statute requirements, and Virginia’s statute, is in the maturity bypass. The Ohio statute provided that, “if the court finds, by clear and convincing evidence, that the complainant is sufficiently mature and well enough informed to decide intelligently whether to have an abortion, the court shall issue an order authorizing the complainant to consent to the performance or inducement of an abortion without the notification of her parents, guardian, or custodian.” Ohio Rev.Code § 2151.85(C)(1) (emphasis added). Similarly, the Minnesota statute at issue in Hodgson required the court to authorize the minor to obtain an abortion if the court determined that she was mature.
We have concluded today that the Supreme Court would not require a parental notice provision that satisfies Hodgson to also provide a maturity bypass, and this is especially so where, as in this case, the statute includes even a fuller best interest bypass. See discussion supra. It follows, therefore, that where the state does provide a maturity bypass, as Virginia does, we do not believe that the presence of some residual discretion in the judge to require a “mature” minor to notify her parents when such notice is in her best interest works an undue burden on a mature minor’s abortion right. And it certainly cannot be said in a facial challenge either that there are no circumstances in which such an act would be valid, see Salerno,
Given that a reasonable construction of the Commonwealth’s notice statute exists by which it would satisfy even the requirements for a consent statute — including a mandatory bypass for the mature minor — we, as a federal court, would be most reluctant to invalidate the measure facially before the state courts have even had an opportunity to construe the statute. As the Supreme Court has often reminded, our partners in federalism deserve more by way of comity than would be implied by such a hasty invalidation of the Commonwealth’s responsibly enacted legislation. See, e.g., Akron I,
C.
Even if we were to accept, as decided law, that a parental notice statute must meet the identical requirements that a parental consent statute must meet in order to be constitutional — not merely that a notice statute that includes a Bellotti II bypass is a fortiori constitutional, as we do for purposes of our analysis in Part VI.B. — the fact that the Commonwealth’s statute can reasonably be interpreted to include a mandatory maturity bypass would in itself still be sufficient to defeat appellees’ facial challenge. For, under Virginia law, where a statute is susceptible to two interpretations, one of which would render the statute unconstitutional, the courts are required to interpret the statute so as to avoid its unconstitutionality.
VII.
Our Constitution confers no more fundamental rights than those brought into relief by a statute requiring that the mother and father of a teenager with child be informed of the daughter’s decision to terminate her pregnancy by abortion. A mother and father who assume the responsibility of the highest calling in life are entitled to the fullest possible measure of not only constitutional solicitude, but constitutional encouragement, in their sacred endeavor. They are obliged to know, and they are entitled to know, the life-defining decisions their children face. By the same token, as the Supreme Court has held and recently reaffirmed, there are few rights more fundamental than that of a woman — even a minor — to decide herself whether or not to carry her pregnancy to term. We conclude today, however, that these liberties are fully compatible, each with the other, when the law requires what the Supreme Court itself has repeatedly characterized as “mere notice” by the child to the parent. To hold otherwise, we are convinced, would be to turn child from parent, and parent from child — at the very moment in life when each is most in need of the other. Such a plenary violation of family the Constitution cannot be construed to require. Were it to be so, right would be they who said that with arrogance implacable we had our foundation rent asunder.
The preliminary injunction issued by the district court was in error and is vacated. The case is remanded for entry of judgment in favor of the Commonwealth of Virginia.
VACATED AND REMANDED.
Notes
. See also Janklow v. Planned Parenthood,
. The Supreme Court also invalidated in Dan-forth a blanket provision requiring married women to obtain the consent of their husbands before obtaining abortions, because that requirement afforded husbands an absolute veto — "exercisable for any reason whatsoever or for no reason at all” — over their wives' abortion decisions. Id. at 71,
. The Court confirmed the necessity of an adequate bypass procedure to parental consent requirements in Akron v. Akron Center for Reproductive Health, Inc.,
. In so holding, the joint opinion in Casey explicitly distinguished parental notice and consent requirements from spousal notice requirements, which the Court invalidated as unduly burdensome. See, e.g., Casey,
. Although the Minnesota statute purported to include an exception to notice for abused minors, if the minor availed herself of the exception by declaring herself abused, the abuse, by law, had to be reported immediately to state authorities. The resulting investigation would result in notice to the parent. Id. at 426 n. 7,
. To the extent that the principal opinion in Bellotti II suggests that some bypass to parental notice may be required, see, e.g.,
Contrary to Justice Stevens' suggestion in concurrence in Akron II, see
. Moreover, the statute also provides for an abortion without notice or judicial authorization when,
in the attending physician’s good faith medical judgment, (i) the abortion is medically necessary immediately to avert the minor's death or (ii) there is insufficient time to provide the required notice or judicial authorization because a delay would create a serious risk of substantial impairment of a major bodily function or substantial physical injury.
Va.Code § 16.1-241(V). These exceptions to the notice or judicial authorization requirements ensure that the statute’s requirements will not endanger the minor’s health or life.
Appellees argue for the first time on appeal that this provision of the statute is unconstitutional because it does not allow abortions without notice when delay would risk the minor's emotional health. See Appellees’ Brief at 27-28, 4, 13. Even assuming that this argument has not been waived, it is meritless.
We doubt that the Court would require an emotional health exception even to an abortion regulation that banned certain abortions entirely, and Casey settles beyond doubt that a state need not provide such an exception to a requirement — like the notice requirement at issue here — that merely delays the contemplated abortion for a short period of time. The medical emergency exception to parental consent in the Pennsylvania statute upheld by the Court in Casey defined medical emergency as
[tjhat condition which, on the basis of the physician's good faith clinical judgment, so complicates the medical condition of a pregnant woman as to necessitate the immediate abortion of her pregnancy to avert her death or for which a delay will create serious risk of substantial and irreversible impairment of a major bodily function.
Casey,
. It may be that the risk of indirect parental notice of the minor’s abortion decision and, in particular, the risk that indirect notice will occur before the minor can carry out her decision, is significantly lower under the Virginia statute than under the Minnesota statute at issue in Hodgson. The Court found that the Minnesota
In contrast, Virginia law apparently gives the parent "access to his own record” only when the abuse report was determined by the social services agency to be unfounded, Va.Code § 63.1-248.5:1.A., and perhaps not even then as a matter of course, see id. § 63.1-248.5:1.C (requiring the parent to petition the court for release of the record), and gives a parent whom the agency believes or suspects abused the child access to the information used to make that determination only if such disclosure would not “endanger the well-being” of the child and is not prohibited by state or federal law, id. § 63.1-248.6:1.A. Thus, in most cases, the only information provided to the parent will be a report by the agency assessing whether the initial "report of abuse or neglect is founded or unfounded,” sent within 45 days of the time that the abuse is reported. Id. § 63.1-248.6.E.7. Presumably, neither this report nor any disclosure of the investigative record to a parent suspected of abuse would detail the circumstances surrounding the initial abuse report, particularly where, as here, such disclosure would be constitutionally suspect and would contravene, in spirit if not by terms, the confidentiality provisions of the Virginia notice statute, see discussion infra, which require that the minor’s decision to bypass notice be strictly confidential "[njotwithstanding any other provision of law.” Va.Code § 16.1-241(V).
Moreover, the non-judicial abuse exception in the statute invalidated in Hodgson required that the physician report the abuse within 24 hours, whereupon the state welfare agency would "immediately conduct an assessment and offer protective social services” to the minor. Hodgson,
Thus, in most cases, if indirect notice of the minor's abortion decision occurs at all, it will not occur until after the minor has had the opportunity to obtain an abortion. While the risk that her parent will eventually discover her decision may make a minor more reluctant to undergo an abortion, that effect is much more attenuated than the actual obstruction that may result if the abusive parent learns of her decision before she obtains the abortion.
. It is not entirely clear whether the statute directs the court to authorize the abortion when the abortion is in the child’s best interest or when the abortion without notice to her parents is in the child’s best interest. The statutory language references both inquiries: it instructs the judge to consider whether "an abortion upon the minor without notice to an authorized person would be in the minor's best interest,” but then it directs the judge to authorize the abortion if the "court finds that the abortion would be in the minor’s best interest.” Va.Code § 16.1-241(V). In any event, the Supreme Court made clear in Lambert that any difference between these two formulations is immaterial to the constitutionality of the statute. See Lambert,
. The Court in Hodgson affirmed that such a best interest bypass adequately protects abused minors and cures the inadequacy of a statute's non-judicial abuse exception when it upheld the version of the Minnesota notice statute that included a best interest judicial bypass, even though the statute's specific abuse exception was ineffective. See Hodgson,
. We do not believe that the Virginia statute purports to authorize the court arbitrarily to withhold or grant authorization to the mature minor to proceed without parental notice, and— in this context — any decision that would be contrary to the minor's best interest would almost certainly be arbitrary as well.
. As we discuss infra, there is no question at all that Virginia adequately ensures that its bypass proceedings are both confidential and expeditious.
. Moreover, one might assume from the fact that the Ohio statute’s deadline for trial court decision explicitly counts only business days and not calendar days, that all of the references to "days” in the Ohio statute are to business days. Under such a reading, it could take a minor up to 22 calendar days under the statute to obtain judicial bypass of the notification requirement. Virginia's bypass provisions nowhere refer to business days, and therefore it is reasonable to assume that its expedited time frames are calculated by reference to calendar — rather than business. — days, except perhaps when the last day of the time period falls on a Saturday, Sunday, or legal holiday, in which case the time frame may expire on the next business day. See Va.Code § 1-13.3:1 (stating that when the "last day [of a time period] fixed by statute ... falls on a Saturday, Sunday, legal holiday, or any day on which the clerk’s office is closed as authorized by statute,” the time frame will expire on the next business day).
. As discussed supra note 1, the circuits are split over whether the Salerno standard for facial challenges applies in the abortion context after Casey. See Manning v. Hunt,
. We reject appellees' contention that the Virginia Supreme Court has, in its administrative capacity, authoritatively construed the maturity bypass as discretionary. See Appellees' Brief at 7, 22. Appellees’ argue that, by issuing forms for use by the juvenile courts which provide a place for the court that has found a minor mature to check either a box indicating that the petition is granted or a box indicating that the petition is denied, the Commonwealth has definitively construed the maturity bypass to be discretionary. Appellees' Brief at 7 (citing forms at J.A. 420, 454). However, these forms were not provided to the courts without explanation, as appellees' would have us believe. In fact, significantly, in written guidance distributed with the forms, the Virginia Supreme Court specifically advised its lower courts:
The use of '‘may” suggests that the statute contemplates the possibility that a judge could deny the petition, despite finding that the petitioner is mature. This possibility is reflected on our form order. The language of Bellotti and its progeny raise concerns about such a disposition.
J.A. at 405, 439 (emphasis added). The materials then went on to explain the nature of the constitutional issues that would be raised by a discretionary maturity bypass. Thus, the Virginia Supreme Court did not purport to authoritatively construe the statute as authorizing a judge to exercise his discretion to deny a bypass to a mature minor. Rather, it acknowledged the existence of an important constitutional question that might arise from one possible construction of the statute and it left the resolution of the statutory construction and constitutional issues to the judicial process. Cf. Preface to the Virginia Supreme Court Materials, J.A. at 389 (explaining that some of the issues addressed by the materials "have no clear, definite resolution” and that the materials are intended to present the “competing arguments" on those issues).
. Indeed, the Commonwealth has argued in these proceedings that such a construction would be appropriate here. See Appellant's Brief at 29-30. The Commonwealth asserts that the statutory language that a judge “may authorize a physician to perform an abortion” upon a finding of maturity can reasonably be interpreted to mean that the judge shall authorize such an abortion except where such an abortion would otherwise be prohibited by law. According to this argument, the Virginia legislature may well have chosen the permissive term "may” because the Virginia statute authorizes the abortion itself, and not merely the minor "to act without parental consultation” as in Bellotti II. Given this, using "shall” rather than "may” would have had the effect of requiring judges to authorize abortions even where they would be affirmatively prohibited by other state abortion laws, such as Virginia’s strict regulations on third-trimester abortions. See Appellant’s Brief at 29-30. Interestingly, recognition of this kind of problem may have underlay, even if subconsciously, the Supreme Court's own transposition of the terms "may” and "shall” in Casey itself. The Pennsylvania statute there at issue did provide, as plaintiffs contend is constitutionally required here, that if both of the minor’s parents refuse consent to the abortion, the court "shall” authorize a physician to perform the abortion after a hearing in which it is determined that the minor is mature. See Casey,
If neither a parent nor a guardian provides consent, a court may authorize the performance of an abortion upon a determination that the young woman is mature and capable of giving informed consent and has in fact given her informed consent....
Id. at 899,
. “There is a presumption that the legislature in the passage of an act did not intend to violate the constitution of the state or of the United States, and if such an act is susceptible of two constructions, one of which would make the same invalid as in violation of the state or federal constitutions and the other give validity to the act, the latter interpretation will be adopted upon the theory of legislative intent not to violate any provision of either of such instruments.” 17 Michie's Jurisprudence of Virginia and West Virginia, Statutes, § 56.
Concurrence Opinion
concurring:
The great turn-of-the-century astronomer, Percival Lowell, contributed much to our knowledge of the planets and the vastness of the cosmos. Pluto is named after him, the first two letters of its name being Percival Lowell’s own initials. Lowell’s lifelong passion, however, was the planet Mars. See generally William G. Hoyt, Lowell and Mars (1976).
Working from his observatory on Mars Hill in Flagstaff, Arizona, Lowell became convinced that Mars teemed with life. The lines on the planet’s surface seemed to him a vast network of canals, a huge planetary distribution system. Perhaps not surprisingly, the astronomer’s theories on Mars bore an uncanny resemblance to Lowell’s life on Earth, the extraterrestrial engineering feats mirroring the industrial revolution of the late nineteenth century and the Martian irrigation ditches alleviating conditions like those found in the observatory’s own American Southwest. Fanned by Lowell’s observations, a popular belief in a populated Mars took root. Id.
Lowell, of course, sought scientific truth, while we, as judges, go in search of legal, ethical, or philosophic certainty. Yet judges, no less than astronomers, have but a blurred, imperfect gaze upon the objects of their passions. Truth is as elusive to those learned in the law as to those versed in the stars, clouded as it is by new discovery and deep complexity.
Judges’ observations need not resolve every highly-charged debate. In Hoffman v. Hunt,
The astronomers of the bench do not have all the answers to such questions as: When does human life begin? Where does the role of the state in intimate decisions end? The perplexity of these questions perhaps explains why Americans remain so deeply and so passionately divided on the answers. On matters touching profound moral beliefs and intimate human freedom, a democratic system holds forth no prospect of agreement. What it does promise is a compromise that
The compromise reached here, the Virginia Parental Notification Act, imposes only the mildest form of regulation upon the fundamental constitutional right to terminate an unwanted pregnancy. Va.Code § 16.1— 241(V). The Act prescribes notification, not consent, and requires informing one parent, not two. The Act contains exemptions for medical emergencies and situations where the minor has been the victim of parental abuse or neglect. And the Act allows judicial bypass of the notification requirement both for mature minors who are capable of giving informed consent to an abortion and for any minor if an abortion without notice would be in her best interests. Though petitioners object that the Act says a court “may” rather than “must” waive notification in these circumstances, the Act is certainly susceptible to a construction that avoids this objection. Finally, the Act provides an array of procedural safeguards: a minor seeking to avail herself of the by-pass procedure may act on her own behalf or the court may appoint a guardian ad litem; the minor shall be advised of her right to counsel and may request that counsel be appointed to represent her; all proceedings pursuant to the Act are confidential; and the Act outlines an expedited schedule for hearing by-pass petitions and deciding appeals from adverse rulings. If the Act were a consent statute or otherwise imposed more onerous burdens on the abortion right, we would have a very different case.
To be sure, the legislative compromise here does not please everyone. The law does not go so far as to satisfy those who would condition abortion on the giving of parental consent. And it goes too far for those who would leave the decision of whether to consult a parent solely in the hands of a minor. The procedure for bypassing parental notification may be too cumbersome for some, and it may be too porous for others. But such things inhere in the nature of compromise. Here, the compromise was reached after more than a decade of public debate. Virginia has taken a modest step to promote the consultation of parent and child in reaching the profound decision to terminate an unwanted pregnancy. This is not, as I read the Supreme Court’s ease law, an illegitimate exercise in democracy. So long as the core constitutional right is safeguarded, I understand the Court to say that democratic debate, at least at the margins, may continue. For all its raucous moments, such debate may ultimately unify Americans more than the Lowellian solution of a court.
concurring:
I.
I concur in the result, and I concur in the majority opinion.
II.
Left to my own devices, I would arrive at the same result by a more direct route. In my opinion, under existing precedent, a Virginia court which has found an infant to be mature but has declined to authorize an abortion upon request of the infant, has abused its discretion. So the use of “may” in the Virginia statute, which has caused all the commotion here, is of no moment. Along the same line, the infant may have chosen the notice route, or she may have chosen the bypass route. Since the statute, however, contains a bypass procedure for a mature infant, the fact that she may choose the notice route is a matter of indifference, and that aspect of the statute does not invalidate it.
As the Virginia statute is thus construed, our ease is indistinguishable from Akron II.
concurring in the judgment:
The Virginia Parental Notice Act requires that unmarried women under eighteen notify their parents before they can obtain an abortion. The statute contains an exception to the notice requirement, however: if a Virginia juvenile court judge finds that the minor is mature and capable of giving informed consent, the judge “may authorize a physician to perform an abortion.” Va.Code § 16.1-24KV). The plaintiffs argue that this
The United States Supreme Court has never directly decided whether a parental notice statute must accord mature minors a mandatory judicial bypass. The majority takes this as an invitation to ignore the implication of the Court’s clear statements that the state’s interest in encouraging parental involvement in the abortion decision must give way to a mature minor’s constitutional right to obtain an abortion. It then overlooks the harmful consequences (physical and psychological abuse) that will surely befall many mature minors if all are forced to tell their parents of their wish to have an abortion. These harmful consequences cannot be ignored because under Casey they must be considered in determining whether a statute poses an undue burden on the abortion right. Yet the majority refuses to recognize that a parental notice statute without a mandatory bypass brings the prospect of abuse and intimidation for a large fraction of mature young women who choose an abortion but who do not wish to notify their parents. As a result, the majority comes to the erroneous conclusion that a statute lacking a mandatory bypass would not pose an undue burden on a mature minor’s right to an abortion. Because I believe the majority misreads the thrust of what the Supreme Court has said and refuses to recognize the harms that make parental notice statutes without a mandatory bypass an undue burden, I cannot join in its opinion.
However, the Virginia statute must be construed by the Virginia courts in accordance with the United States Constitution. Under Virginia law a statute that employs the word “may” will be interpreted to be mandatory rather than permissive if that is what the Constitution requires. Since the Constitution requires Virginia state judges to permit mature young women to obtain abortions without parental notice, the word “may” must be interpreted as a mandatory term. For that reason alone, I concur in the judgment that the Virginia statute is not unconstitutional on its face.
I.
I agree with the majority that the Supreme Court has never squarely held that a parental notice statute requires a mandatory judicial bypass just like a parental consent statute does. See Lambert v. Wicklund,
The Supreme Court’s insistence on the preservation of a mature minor’s constitutional right to obtain an abortion free of parental obstacles has its origins in Bellotti v. Baird,
In H.L. v. Matheson,
This principle was explicitly approved by the Court in Akron v. Akron Center for Reproductive Health,
I agree with the majority that a minor child’s parents have a major interest in guiding the child’s decisions, particularly on the important choices surrounding the matter of abortion. In Planned Parenthood v. Casey,
The Court’s statements in these cases make clear that once a minor is found to be mature and capable of making an informed choice, she must be given the same consideration as an adult woman when it comes to her constitutional rights. See Bellotti II,
II.
In evaluating the constitutionality of the Virginia Parental Notice Act, the majority purports to apply the Supreme Court’s test in Casey. Under this test if a statute restricting abortion has “the effect of placing a substantial obstacle in the path of a woman’s choice,” it is invalid on its face. In its analysis the majority only considers one possible effect of a statute that forces mature minors to notify their parents before having an abortion: that the minors may be “exposed to [their] parents’ views” on the abortion decision. Ante at 371. Unsurprisingly, the majority finds this effect not to be a substantial obstacle to the rights of mature minors, and it concludes that the Virginia statute is constitutional.
The majority’s analysis slights the real and very serious consequences that a requirement of parental notification without a mandatory judicial bypass would have for many mature young women who have very good reasons to avoid parental notice. These reasons include the fear and prospect of physical and psychological abuse by parents. The Supreme Court has held in the spousal notification context that these fears have the unconstitutional effect of placing a substantial obstacle in the path of a woman’s right to choose abortion. Because many mature minor women would reasonably have similar fears of abuse under a parental notification statute without a mandatory judicial bypass, such a statute is also unconstitutional.
A.
In Casey the Supreme Court established a clear test for determining whether a statute restricting abortion could survive constitutional scrutiny. A statute is invalid on its face if it places an undue burden on a woman’s right to have an abortion. An undue burden exists if the state regulation has “the effect of placing a substantial obstacle in the
In Casey the Court evaluated the constitutionality of a Pennsylvania statutory provision that required spousal notification before a married woman could obtain an abortion. The Court focused its analysis on the effects of the provision on “married women selecting abortions who do not wish to notify their husbands.” Id. at 895,
The Casey Court also considered evidence of non-physical abuse or coercion that could prevent women from seeking an abortion. The Court observed:
Many [women] may fear devastating forms of psychological abuse from their husbands, including verbal harassment, threats of future violence, the destruction of possessions, physical confinement to the home, the withdrawal of financial support, or the disclosure of the abortion to family and friends. These methods of psychological abuse may act as even more of a deterrent to notification than the possibility of physical violence, but women who are the victims of the abuse are not exempt from [the] notification requirement.
Id. at 894,
Whether the prospect of notification itself deters such women from seeking abortions, or whether the husband, through physical force or psychological pressure or economic coercion, prevents his wife from obtaining an abortion until it is too late, the notice requirement will often be tantamount to the veto found unconstitutional in Danforth. The women most affected by this law — those who most reasonably fear the consequences of notifying their husbands that they are pregnant — are in the gravest danger.
Id. at 897,
B.
As I have said, the majority purports to apply the Casey “undue burden” standard in considering whether the Virginia parental notice statute passes constitutional muster. See ante at 367. But instead of addressing the real effects of a mandatory parental notice statute, the majority builds a man of straw which it finds easy to knock down. The only possible effect of parental notice that the majority even considers is that the minor “may be exposed to her parents’ views” on the abortion decision. Ante at 371. By suggesting only such a minor burden, the majority is able to dismiss it with ease by asserting that parents have the right to guide their children through moral suasion.
The majority’s argument fails to acknowledge the serious effects that parental notice of an abortion has for many young women under eighteen. It does not address the evidence in the record that a very real danger of physical and psychological abuse exists for a large fraction of those young women who would be forced (against their will) to notify their parents that they are pregnant and considering an abortion. These dangers are not only virtually identical to those which caused the Supreme Court to invalidate a spousal notification provision in Casey, but in one way the dangers are even more pronounced for mature minors. These young women are by definition dependent on their parents and therefore particularly vulnerable to the fear of parental abuse or coercion.
The most detrimental burden of a statute without a mandatory mature minor bypass would be the risk of physical harm to the minor by a parent. There is no doubt that child abuse is a pervasive problem in our society. See Council on Ethical and Judicial Affairs, American Medical Assoc., Mandatory Parental Consent to Abortion, 269 JAMA 82 (1993) (noting that there are about 1.5 million cases of child abuse every year in the United States). The Supreme Court itself recognizes a strong relationship between spousal abuse and child abuse. See Casey,
Beyond physical abuse, some mature minors, like some of the adult women in Casey, will also be subject to serious psychological abuse or intimidation that would pose a substantial obstacle to their right to seek an abortion. In response to being forced to notify their parents about their intended abortion, some young women will be exposed to severe punishment short of actual battery. This punishment could include parents forcing the young women to leave the family home or denying them financial support. Data in the record show that eighteen percent of minors who declined to inform their parents did so because they feared being evicted from their homes. If anything, the potential consequences of such psychological abuse or intimidation are more severe for minor women, even mature minors, than for adult women because of their obvious dependence on their parents for support. This fact was recognized by the Supreme Court in Bellotti II: “[yjoung pregnant minors, especially those living at home, are particularly vulnerable to their parents’ efforts to obstruct both an abortion and their access to court.”
These consequences illustrate that parental notification without a mandatory bypass for mature minors permits parents to place much more significant (and harmful) obstacles than mere moral suasion in the path of young women’s constitutional right to an abortion. The empirical evidence advanced by the plaintiffs demonstrates that the danger of parental retaliation, like that of spousal abuse, would likely dissuade a large fraction of mature minors — forced against their will to notify them parents — from exercising their right to an abortion. A parental notice statute without a mandatory judicial bypass, like the spousal notification provision overturned in Casey, would allow parents to resort to physical and psychological coercion, thereby placing a substantial roadblock in the path of mature young women who seek an abortion. This type of statute, which denies a mature minor sure recourse to the courts, is “tantamount to the veto found unconstitutional in Danforth.” Casey,
III.
The majority suggests that if a mandatory bypass is a constitutional necessity for the mature minor, the Virginia statute “could reasonably be interpreted to require notice bypass for mature minors.” Ante at 382. The majority, however, does not hold that “may” has to be read as “must” in the bypass language of the Act. I would so hold.
The Virginia Supreme Court has in the past interpreted “may” to carry a mandatory rather than permissive meaning. In Harper v. Virginia Dept. of Taxation,
Construing the Virginia Parental Notice Act to read “may” as mandatory will require Virginia courts to authorize abortions for every minor found to be mature. There is no question that the Virginia parental notice statute thus construed would be constitutional. See Akron II,
IV.
A quarter century ago in Roe v. Wade,
Judge MURNAGHAN, Judge ERVIN, and Judge DIANA GRIBBON MOTZ join in this opinion.
. A study reported in our record reveals that “in states without parental involvement laws in effect, the majority of unmarried minors having an abortion (61%) said that one or both of their parents knew about their abortion. Of the par-cnt who knew about the pregnancy, 75% had been told by the daughter herself.” In the majority of cases, therefore, notice occurs, and positive parental guidance can follow, without intervention by the state.
. The majority seems to have some doubt about whether the "undue burden" standard used by the Court in Casey is the proper standard for facial challenges to abortion regulations, a doubt our court first articulated in dicta in Manning v. Hunt,
I harbor no such doubts. Casey is clear on its face that the Court "set forth a standard of general applicability” for reviewing facial challenges to abortion restrictions. Casey,
I must also note that even the Fifth Circuit, the sole court to reject Casey and follow Salerno, has determined that a parental notice statute must include a mandatory judicial bypass for mature minors in order to survive a facial constitutional challenge. See Causeway Medical Suite v. Ieyoub,
At any rate, the majority claims that even under the Casey test, the Virginia statute is facially valid. Accordingly, I proceed by challenging this conclusion under Casey.
. The case of Spring Adams, a young woman of 13 from Idaho, illustrates that this possibility is all too real. Adams became pregnant after being repeatedly raped by her father. When he found out that she was about to get an abortion, he shot and killed her. See Margie Boule, An American Tragedy, Portland Oregonian, Aug. 27, 1989.
. I am also persuaded by Judge Widener's statement that under Virginia law, any court that denied permission for an abortion to a mature minor would commit reversible error. See ante at 385 (Widener, J., concurring).