Planned Parenthood of the Blue Ridge v. Camblos

pierced they will be shielded from vicari- visiting corporate ruin on Meineke over what liability. ous Setting up such a safe harbor vigorous is a but straightforward contract preserves advantages liability limited dispute, totally losing sight prin- of the basic encouraging while actively shareholders to ciple that in size and in nature a legal reme- corporate monitor affair’s. dy must degree bear some proportion the extent of legal wrong actually com- It is true qualified privilege may mitted. If permitted we this judgment be liability waived may imposed stand, disputes commercial and contract law where insider’s “acts involve individual would be string transformed —a of tort separate torts ... or where his acts are claims advanced in sprawling class action performed in his own interest and adverse to put many companies corpo- Wilson, that of —and his firm.” 136 S.E.2d at 578 rate of business. (internal —out omitted). quotation marks Yet there can be no contention that individual We do respect important juries role of self-dealing, opposed corporate well- in striking the balance injury between being, was at issue in these decisions. Assi- recompense. Nevertheless, like the class ac- parental attention, duous good extended in device, tion jury’s function must be exer- faith, profitability subsidiary is not cised under guidance and within the tortious To misconduct. make it such would framework of basic principles of law. With- be to repeal qualified privilege conferred respect out for law neither the class action by North Again, Carolina law. the basic device nor jury system can serve the action here is one for contract, breach of important functions for they which in- were GKN and PIC were parties to any con- tended. Because the most primary princi- plaintiffs. Thus, tract despite plain- ples procedure and the pre- most settled tiffs’ theories veil-piercing cepts of commercial law were not observed liability, tort there is no basis under North here, of the district court is liability Carolina law for on GKN or PIC. As reversed in entirety, its and the case re- result, we instruct district court that manded for further proceedings consistent GKN and PIC must be dismissed from the opinion. with this action on remand.

REVERSED AND REMANDED. Y. doWe not dismiss the against action Mei-

neke, plaintiffs however. The in this lawsuit

may legitimate have some grievance with

Meineke’s They conduct. retain a variety of

contract remedies for breach

have occurred. include, Those remedies appropriate,

where restitution to the WAC consequential

account and damages contract

in the form of profits. franchisees’ lost

generally John D. Calamari & M. Joseph Perillo, The § Law Contracts at 595- 96, 15-4, (3d § ed.1987). at 651-53 And it is PLANNED PARENTHOOD OF THE not inconceivable that a class action might RIDGE; BLUE Jones, Jr., Herbert C. used in a carefully M.D.; controlled manner Planned Metropol- Parenthood of achieve the economies and Washington; efficiencies itan Virginia League for which that device was intended. But in vari- Parenthood; Planned Clinic; Hillcrest ways ous managed lawsuit to wander Richmond Medical Women; Center for way beyond legitimate its origins, and at the Gresinger, Thomas M.D.; Common- spun end it completely control, out of with a Clinic; wealth Women’s Planned Par- diffuse class and proliferating theories of lia- enthood Virginia, of Southeastern bility. fact, this lawsuit came Plaintiffs-Appellees, close capac- CAMBLOS, his official L. James Attorney ity Commonwealth’s represen- Albemarle, aas County of Attor- Commonwealth’s all

tative Defendant-Appellant. Virginia, neys in 97-1853

No. Appeals, States

United Circuit.

Fourth 3, 1998. March

Argued 20, 1998. Aug.

Decided

ARGUED: Henry Hurd, William Deputy Attorney General, Office Attorney General, Richmond, Virginia, Appellant. for Heller, Simon Reproductive The Center for Policy, Law & City, York Appellees. New ON Cullen, BRIEF: Richard Attorney Gen- eral Virginia, Allen, Deputy Claude A. Commonwealth’s today holdWe Faulders, Senior General, S. Siran Attorney legislation Big- General, L. Garland Attorney Assistant respon- interests fundamental respects General, P. Alison Attorney Assistant ley, edu- rearing and in sible General, Brian Attorney Landry, Assistant development religious moral, cational, General, Attorney McCormick, Assistant M. burdening unduly children, without Attorney Gener- Poynor, Assistant J. Daniel facially consti- right, is fundamental Attorney Gener- Woltz, Assistant al, R. Rita Amendment. the Fourteenth under Richmond, tutional General, Attorney al, Office Virgi- People of holding contrary Rasehke, A —that A. Karen Appellant. Virginia, by the Constitution nia Richmond, Virginia, Powell, forbidden & Macaulay, Lee re- requiring States United Appellees. aof father mother sponsible life- the of told even be daughter teenage Judge, and WILKINSON, Chief Before con- daughter own defining decision ERVIN, MURNAGHAN, WIDENER, holding convinced, abe would fronts —we LUTTIG, NIEMEYER, WILKINS, betray will, thus law, and of but of MOTZ, MICHAEL, and WILLIAMS, legitimacy very our which upon trust the Judges. Circuit depends.’ institution an by published remanded and Vacated I. opinion, the wrote LUTTIG Judge opinion. - and WILKINSON Judge Chief in which law signed into Allen Governor Virginia’s WILKINS, WIDENER, Act, Judges Notice Parental the Commonwealth’s joined. NIEMEYER, WILLIAMS 22, 1997. 16.1-24RV), on March § Va.Code a wrote Judge WILKINSON passed Chief Assembly had Virginia General The Judge WIDENER opinion. concurring terms, By its earlier. a month measure the Judge concurring opinion. a wrote 12:01 effective become to Act was the concurring opinion an wrote MICHAEL 1,1997. July morning, Tuesday n Judges in which judgment, the denotes, isAct the title As the ERVIN, DIANA MURNAGHAN, statute; parental consent anot notice joined. MOTZ GRIBBON an performing physician prohibits unless, minor unemancipated on an abortion OPINION proce- of the advance hours twenty-four anticipated dure, the of Judge: LUTTIG, Circuit to a parents, minor’s of the one to provided public debate of years of eighteen Following or custodian legal guardian duly appointed of parentis the Commonwealth of among standing citizens loco the minor, one or to the Com- Assembly the the General Virginia, minor. of the enacted, the Governor monwealth performance allows expressly Act The law, state’s into signed Commonwealth circumstances without abortions requires Act, which Notice Parental has seeking the minor which in- an abortion have decides who neglect, abuse the victim been hours twenty-four of her form one abor- either in which in circumstances Only procedure. performance prior prevent necessary to immediately tion effec- become law was before hours time to is insufficient or there mother’s death the West- court district tive, federal mi- exposing notification permit enjoined enforcement District ern risk. health serious nor to Upon Commonwealth. by the Act never Supreme Although the Attorney Virginia’s extraordinary motion must law held the district stayed immediately General, we in order procedure bypass include law to allowed injunction, court’s Pa- challenge, to withstand its in accordance effective become procedure. includes Act Notice rental terms. procedure permits, That if it does not night, re- of the district court was quire, authorization an abortion without stayed pending appeal. See Planned Par parental notification for a minor who shows Camblos, (4th enthood v. 116 F.3d 707 Cir. that she is capable mature and giving 1997). stay was thereafter affirmed consent, informed it requires such autho- court, the en banc see Planned Parenthood v. minor, rization immature and at least Cambios, (4th Cir.1997), 125 F.3d 884 and the well, the abused mature minor as as to whom full en banc court subsequently heard oral it is determined that an abortion would be in argument the matter on March her best interest. upon The Act confers every minor who II. bypass avails procedure herself participate in the court proceedings enjoining Virginia’s Parental Notice on her behalf and to Act, own assist counsel the district court entirely upon relied throughout the proceedings. If the mi- Supreme Court’s decision in Bellotti v. requests, nor so obligated Baird, court is appoint purpose counsel for the of assisting (1979) (Bellotti II), L.Ed.2d 797 reasoning the young woman in proceedings. decision, in that Court had set forth the constitutional applica- standards provides Act also proceed- ble parental to state statutes, ings, which are to be conducted notification before the merely parental Thus, consent statutes. Commonwealth’s Juvenile and Re- Domestic court, said the district court “[t]his will ... Court, lations District “shall be confidential.” apply [Planned Casey, Parenthood v.] [505 And the provides statute further both that U.S. 120 judicial L.Ed.2d 674 bypass proceedings “shall given (1992)] and II precedence Bellotti to the case at bar. over pending other matters so II requires judicial Bellotti that a bypass that the court reach decision promptly satisfy foui' criteria.” delay Op. without order Memorandum at 9 to serve the best (footnote omitted). and citation interests of the minor” and And the bypass peti- that court went on to judicial examine bypass tions be heard practicable “shall as soon as provisions Virginia’s parental but in no days event later four than after the petition [seeking judicial under the criteria by identified authorization] is Court Finally, filed.” Bellotti provides II as essential Act in order for a judicial judicial for bypass procedure bypass whom parental within a notification is expedited denied consent statute satisfy “an confidential appeal to Constitution. court.” circuit Specifically, the district court observed Notwithstanding the Commonwealth’s in- Supreme that the Court in Bellotti II held judicial clusion of a bypass procedure in its that “[i]f [a minor] satisfies the Act, Parental Notice and of the other afore- court that she is mature and enough well safeguards, mentioned the Federal District informed to make intelligently the abortion Court for the Western District Virginia, on own, decision on her the court must autho- date, eve Act’s effective prelimi- rize her parental to act without consultation narily enjoined enforcement of by the Act or consent.” Op. Memorandum (quot- at 10 Commonwealth, holding that a substantial ing Bellotti U.S. probability exists that the Act facially J.) (op. Powell, (emphasis added district unconstitutional. See District Court’s Memo- court)). The court then contrasted this re- randum atOp. 7-8. quirement with the relevant p.m. At afternoon, 4:00 that following Act, issu- Commonwealth’s provides that, which ance of the district court’s order and the “[a]fter a hearing, judge may authorize a district subsequent court’s denial of physician the Com- perform upon find- monwealth’s stay motion for decision, of its ing that the minor is capable mature and the Commonwealth filed a motion awith giving informed consent proposed single Circuit Judge stay the district abortion.” Id. (quoting § Va.Code 16.1— court’s injunction, and, 241(V) p.m. 7:45 that (emphasis court)). added district consid Circuit Eighth [Miller], [i]n confers that Concluding States [United II Bellotti whether ered discre- the absolute officer judicial upon the 739, 107 Salerno, U.S. [481 v.] per- physician authorize tion whether paren (1987),] applied to L.Ed.2d a minor on notice an abortion form conclud court statute. tal notification mature, has determined court whom Casey, [in Court [Supreme] “the ed discretion “[t]his held court district 2791,] effectively 833, 112 S.Ct. U.S. mi- for ‘mature’ rule II the Bellotti violates challenges to facial Salerno overruled at 11. Op. Memorandum nors.” apply went statutes” although below, fully more discussed Significantly, As II standard. the Bellotti II in Bellotti held Supreme Court of Miller. certiorari denied speci include must statutes consent parental omitted); (citations Op. at 8 Memorandum including procedures, bypass judicial fied argue that plaintiffs (stating that id also see mi mature bypass for judicial mandatory stan- Baird v. Bellotti intact “Casey left any, what, if not address did nors, the Court provisions bypass of review dard context necessary procedures (citations omit- statutes” enacted like aof Miller, howev- ted)). Eighth Circuit although the And by the Commonwealth. district as the or hold reason er, did not pa upheld subsequently Supreme Court decided first court That believed. court Bellotti included which statutes rental Casey, articulated review the standard v. Lambert procedures, II-style Salerno, to facial applies than that rather 292, 117 S.Ct. Wicklund, then, statutes to abortion challenges curiam); Ohio (1997) (per L.Ed.2d II-type concluded separately, Health, 497 Reproductive Center Akron if a procedure L.Ed.2d U.S. as consti- upheld to be notification Minnesota, v. II); Hodgson (Akron (1990) standard the framed court that As tutional. 344 L.Ed.2d 111 417, 110 S.Ct. U.S. 497 it: before review issue carefully distin always has (1990), Court the consent parental threshold statutes is a this ease guished in critical issue The reserving question challenge the statutes, for a explicitly standard the what one: required abortion procedures bypass constitutionality of an what, any, if facial the see, statutes, e.g., Lam the apply us parental The State for law? Salerno, 497 1171-72; Akron at v. bert, States S.Ct. in United 117 out set test 2972; discussion L.Ed.2d 510-11, 110 95 S.Ct. S.Ct. at 481 U.S. U.S. challenger “the (1987), which under infra. circumstances no set of that establish must Court Supreme the that concluding In valid.” Act would the which under exists must notification parental held that 2095. Salerno, obtain that requirements very same the meet hand, Parenthood, other the Planned statute, district the consent parental for replaced Court Supreme that contends question of confused to have seems court Casey, 505 in test Salerno facial in applicable review standard claims, an Casey, it 2791. Under ques statutes challenges face on its is unconstitutional law that requirements substantive tion which in cases of the fraction large if, a“in is to satisfy it must bypass state’s aas operate relevant, will law] [the appears It standards. meet choice ato woman’s obstacle substantial two these conflated court the district at 2830. an abortion.” undergo misreading its questions distinct citations (parallel Miller, at 1456-57 F.3d Planned in decision Circuit’s Eighth did Eighth Circuit Indeed, omitted). (8th Cir. Miller, F.3d v. Parenthood of the its discussion in II Bellotti cite ques- even separate two equating 1995), as Miller, of review. standard appropriate tellingly, most Thus, example, and tions. 1456-58. F.3d stated court district compounded The district court the error able” bypass from the Ohio created its misreading of Miller statute which misun- sustained Akron derstanding II Supreme grounds on the Court’s that it decision in satisfied the Bellotti standards, and, therefore, II “reinforcing]” Lambert as that the misreading its Ninth Circuit’s Lambert “simply decision [could Miller. See Op. Memorandum Specifi- squared not] be Supreme [the cally, Court’s] the district court reasoned that decision II.” Akron 117 S.Ct. at 1171-72. Supreme Court affirmed Lambert emphatically Court apply did not Bellotti applies Bellotti II in the context of parental II, as surmised, the district court having notification statutes because the Court de- parental concluded that a notification statute scribed the Ninth Circuit’s error in that case satisfy must Bellotti requirements II’s for a merely “misapplication” as a of the Bellotti bypass procedure parental within a consent standard, II and not application as an fact, Lambert, statute. In the Court went “wrong” Thus, standard. said the district out way of its repeat both that it had not court: held in parental Akron II that a notification Supreme Court Eighth reinforced the statute must bypass include a procedure and Miller Circuit’s conclusion in Lambert v. it had only held bypass Ohio’s Wicklund, 117 S.Ct. at when it re- provision “a ... satisfied criteria fortiori versed Ninth Circuit decision which held might be required provisions the Montana Notice of Abortion Act uncon- in parental notification statutes” because it stitutional under v. McKay, Glick 937 F.2d “satisfied the four Bellotti criteria (1991). opinion, its the Court dis- provisions parental consent cussed the Ninth application Circuit’s Lambert, statutes.” 117 S.Ct. at 1171. The II Bellotti standard to the Montana act Court even chided the Ninth for in- Circuit and concluded that the court misap- had validating Nevada’s notification stat- plied existing Lambert, case law. 117 ute in (9th Glick McKay, 937 F.2d 434 S.Ct. at Cir.1991), 1171. This discussion of the mis- the decision as to which the Ninth application of the II Circuit standard —as concluded Lambert it was bound, opposed application “[d]espite wrong fact that Akron II in- volved standard —and the denial of certiorari Bellotti involved Miller leads this court to conclude statute.” that the Lambert, 117 so, S.Ct. at 1171. In doing intends for Casey and Bel- quoted Court cited and Justice Stevens’ lotti con- applied II to be parental currence in judgment II Bellotti bypass provisions. This court will there- II Bellotti did not determine “the constitu- Casey fore apply and Bellotti II to the case tionality of a statute which does no more at bar. than notice to parents, without Op. Memorandum (emphases original; affording them or other party third omitted). footnote and citations Contrary to Lambert, absolute veto.” 117 S.Ct. at 1171 belief, the district court’s the Court in Lam- (citing n. 3 II, and quoting Bellotti 443 U.S. beri nothing said concerning whatsoever 1, at 654 n. (Stevens, J., concur- standard of review applicable to chal- facial ring judgment)). lenges to regulation statutes, as one end, therefore, In the the district court given would expect that Lambert was a sum- correctly recognize seemed to that an issue mary reversal decision, Ninth Circuit’s whether, has arisen as to in Casey, the Su- argument. Indeed, even neither Sal- preme Court sub silentio overruled its deci- Casey erno nor is even cited in the Court’s sion in Salerno on the standard of review relatively per brief opinion curiam in Lam- applicable to challenges facial reg- statutes bert. ulating abortion, and therefore ques- that a Lambert, did, as the tion exists as to whether the plaintiff in a noted, district court discuss the II challenge facial abortion statute must criteria. only But it did so in demonstration that “no show set circumstances exists judicial

that the bypass provision at issue which valid,” under the Act would be Saler- Lambert was “substantively no, indistinguish- 2095, at or instead only discretion, is, only only large for abuse of must show that "in a fraction of relevant, [the law] order to determine "whether the trial court the cases in which it will operate finding presence as a substantial obstacle to a wom abused its discretion in undergo Casey, irreparable proba an's choice to an abortion." or absence of harm and a 895, 505 U.S. at 112 S.Ct. 2791.1 The district bility plaintiffs that the would succeed on the erred, however, reasoning court from its merits," Thornburgh College v. American Eighth conclusion that the Circuit was cor Gynecologists, Obstetricians and 476 U.S. Casey Salerno, rect in Miller that overruled 747, 755, 2169, 106 S.Ct. 90 L.Ed.2d 779 perforce prop that Bellotti II establishes the (1986). University Cf. of Texas v. Camen challenges er standard of review for facial to isch, 390, 395, 451 U.S. 101 S.Ct. regulation directly statutes and con (1981)(stating gener L.Ed.2d 175 that "it is inquiry constitutionality trols the as to the of ally inappro~riate for a federal court at the judicial bypass procedures within preliminary-injunction stage give a final (and just parental consent) (emphasis added)); on the merits" plain only statutes. It is that Bellotti II States, 229,231, Alabama v. United neither, scope does but also that the (1929) (similar). 49 S.Ct. 73 L.Ed. 675 holding substantive of the Court in that deci However, only prudential it is as a matter sion will be unaffected the final resolution normally that we so circumscribe our review. question of whether the standard of words, practice In other orderly judicial administration," Thornburgh, is "a rule of Casey. is, review is that in Salerno or That regardless of the standard of review for fa 476 U.S. at and not an challenges finally adopted, cial judicial power," on[our] below, only "inflexible""limit id. held in Bellotti as we discuss 106 S.Ct. 2169. Where a district that a consent statute must include solely premise judicial bypass procedure, only court's decision "rests on a estab applicable law, procedures necessary to the rule of and the facts lished the for a consent controlling statute. are established or of no rele- vance," 2169, may, id. at we Accordingly, the conclusion of law on appeal entry prelimi- injunction even on from the of a which the district court's nary injunction, proceed rested, namely, paren- to the merits under- Commonwealth that a lying judgment. For, the district court's tal notification statute must include a cases, customary "[t}he bypass procedure discretion ac- that satisfies Bellotti II's ruling pre- requirements governing bypass procedures corded to a District Court's on a liminary injunction yields plenary to our consent statutes in order to be constitutional, simply scope applicable was in error. of review as to the law." Id. (quoting College American of Obstetricians III. Gynecologists Thornburgh, 737 F.2d (3d Cir.1984)); Youngstown ordinarily see also We review a district Sawyer, 579, ruling preliminary injunction Sheet & Tube Co. v. 343 U.S. court's on a Parenthood, 1. See also Janklowv. Planned 517 that the would be invalid in all circum 1174, 1582, 1583, Rather, U.S. 116 S.Ct. 134 L.Ed.2d stances. stricting we made clear that a law re (1996)(Stevens,J., respecting 679 the denialof burden, abortions constitutes an undue certiorari)("Salerno rigid `s and unwisedictum and hence is invalid, if, large `in a fraction of the properlyignored subsequent has been cases (the relevant, oper law] cases in which ate as a substantial obstacle to a woman's choice it will context."); id, even outside the abortion S.Ct.at 1585 116 (Scalia,J., dissenting fromdenialof undergo (emphasis original) an abortion.'" certiorari)(notingthat theCourthas "sentmixed (citation omitted)). Compare Casey v. Planned signals question," affirming on the but his belief Parenthood, 848, (3d Cir.1994), 14 F.3d 863 n. 21 Casey change that the Courtin did not intendto Moore, 12, (5th with Barnes v. 970 F.2d 14 & n. 2 standard); Fargo the Salerno Women'sHealth 1992). today Cir. Because we conclude that the Organization Schafer, 1013,1014, v. 507U.S. 113 parental 1668, (1993)(O'Connor, Commonwealth's notice statute is facial S.Ct. 123L.Ed.2d285 ly constitutional under either the Salerno or the J., concurring application stay in denial of Casey standard, not, not, injunctionpending appeal) ("In striking we need and do decide and applies Pennsylvania'sspousal-noticeprovision[in which of these two standards in facial down Casey], challenges to abortion statutes. requirepetitioners we did not to show 360 (1952)

585, 863, (find- 72 S.Ct. 96 L.Ed. 1153 plainant was not entitled to maintain its ing, despite early stage omitted)). litigation, (parallel of the suit.” citations ripe that the case was for merits review on principles These confirm appro appeal stay injunction). from of preliminary priateness of our proceeding underly to the ing Here, merits in this case. the district Appellate adjudication of underly injunction court’s entirely upon rests merits, ing legal appeal on an from the issu holding, law, court’s pure as a matter of preliminary injunction, ance of a is most judi notice statute must include a clearly justified only where not does the in cial bypass in order to be constitutional and junction entirely upon pure rest question of must be identical to that law, plain plaintiff but it is that the cannot required in order to sustain a con prevail governing as a of the matter law. sent statute. And the district court funda When this is apparent ap court of mentally erred in its ques resolution of these peals, is, a defendant as the tions. has observed century, for more than a enti tled both to immediate relief to relief and Furthermore, necessary facts expense See, litigation. further resolve these issues undisputed, as even e.g., Thornburgh, 756, 476 U.S. at 106 S.Ct. the plaintiffs-appellees correctly conceded at (citing 2169 Works, Smith v. Vulcan Iron argument. Consequently, pro additional 518, 525, 407, 165 U.S. S.Ct. L.Ed. 810 ceedings in the district court would serve no (1897)); Independence Deckert v. purpose Shares whatsoever. parties While dis Corp., 282, 287, 229, 311 U.S. pute precise contours of the by (1940); L.Ed. 189 North Carolina pass Railroad included within the Commonwealth’s 288, Story, 292, Co. v. 531, (in U.S. notice statute pai’ticular, the (1925) 69 L.Ed. (“By ordinary prac meaning maturity of the bypass and the equity tice in England scope as administered in efficacy and requirements of its country, this appellate pow confidentiality court expeditiousness), these er appeal disputes temporary from a turn upon or interlocu disagreements as to the tory proper interpretation order or decree to examine the merits of and sec ondarily upon the case if sufficiently predictions plead shown to how the stat ings ute upon actually operate and the record will deciding practice them —dis agreements in favor of the ultimately, defendant to resolvable dismiss the bill fact, through and save parties both determinations of expense the needless but rather only through of, prosecution suit.”); further determinations City predic to, tions Co., state law. Denver v. New appellate York Trust Because the court does (1913) (ex not defer to the trial 57 L.Ed. court on interpretations law, of state plaining appellate Regina Salve power to review Russell, College preliminary injunctions “is not confined to (1991), 113 L.Ed.2d granting injunctions, act of but ex parties already briefed, extensively tends as well to determining there whether both before the court, district court insuperable objection, point juris respective predictions as to how the claim, diction or to the underlying merits” will actually applied, “and, pro further so, directing a final decree dis ceedings in the district court would it”); obviously missing Metropolitan Water v.Co. Raw aid enterprise. neither District, Valley Drainage 519, 523, 223 U.S. 246, (1912) 32 (“For, S.Ct. 56 L.Ed. 533 while Recognizing dispute that this ripe is at one time was there some in difference the merits, consideration on the parties the rulings subject, on that it finally was settled agreed argument themselves at oral that fur- Works, Smith v. Iron Vulcan 165 U.S. proceedings ther in the district court are not 518, 407, 810, that, 17 41 S.Ct. L.Ed. on necessary and that resolution of the merits of appeal order, from a interlocutory mere the dispute by the this appropri- court would be circuit court of appeals might Therefore, the direct bill ate. rather than extend this liti- to be appeared dismissed if it that gation the com- plainly ripe adjudi- for final —which consent parental a down “blanket” struck constitutional fundamental cation, implicates under all minors prohibited that Court, provision Supreme by the rights determined obtaining an abor- eighteen age of the a for over pending already been has 74, Id. at consent.2 parent’s a tion plaintiffs’ merits proceed year —we 96 S.Ct. Notice Parental Virginia’s that contention Fourteenth face, the violates II, Act, on its the Court later, in Bellotti years Three in the women minor rights of that Amendment statute consent parental a considered have abor- to choose who Commonwealth the consent to obtain a minor she tions. before a court or of of her both expressing Again abortion. have an could impermissi- of an possibility the IV. over concern the minor’s over veto ble, absolute Wade, v. in Roe held Court The decision, opinion principal the abortion L.Ed.2d 93 S.Ct. 410 U.S. held Court lib- fundamental (1973), a woman has that pregnant require a to decides if the State carry to decision whether erty interest con- parents’ both one or obtain to minor Par- term, and, in Planned to pregnancy provide an abortion, must it also to an sent that reaffirmed Court Casey, v. the enthood whereby authoriza- procedure alternative from unwar- free “right ‘to be has woman ” can be obtained. abortion for the tion making intrusion’ governmental ranted Powell, (op. of 112 443 U.S. decision, U.S. abortion omitted). opinion principal J.) (footnote O’Connor, Kennedy, op. of (joint requirements v. JJ.) defined Souter, (quoting Eisenstadt as fol- alternative, procedure bypass, or 1029, 31 that Baird, 405 U.S. its lows: with (1972)). In accordance L.Ed.2d liberty inter- entitled minor this fundamental A recognition (1) she that consistently held to show either: est, proceeding exercise, in enough informed enough to and well another permit may mature state decision, in consulta- absolute, effect, and therefore an her abortion to make inor fact independently physician, a woman’s— arbitrary, veto over with her tion potentially (2) if she wishes; even whether parents’ woman’s—decision a minor her even indepen- decision this able make pregnancy. is not her terminate desired abortion dently, the both Roe, has reviewed Court Since proceeding interests. best statutes parental notice consent must assure made showing is which imper- they grounds on the challenged issue, and resolution third-party veto missibly permitted completed follow, bewill appeals that paren- invalidating decision, several abortion expedition and sufficient anonymity they grounds that on the statutes tal consent opportunity an effective provide abor- veto permit such effectively did sum, pro- obtained. and minors minors of mature decisions tion re- ensure cedure must inter- best was for whom fact not in does consent quiring parental constitu- addressed first The Court est. “absolute, arbi- possibly amount tionality of impermissible found was trary, veto” Danforth, 428 Parenthood Planned in Danforth. (1976). 2831, 49 L.Ed.2d 52, 96 S.Ct. abso- “an on the it conferred Because omitted). then (footnote It J.) Powell, (op. of over arbitrary, veto lute, possibly con- Massachusetts to invalidate went doctor and her decision” permitted question because sent pregnancy, minor’s terminate veto—"exercisa- an absolute husbands afforded Dan- invalidated Supreme Court also 2. The at no reason or for whatsoever reason ble wom- requiring married provision a blanket forth at Id. decisions. their wives' all” —over before of their husbands the consent to obtain en 71, 2831. S.Ct. abortions, requirement that obtaining 649, J.); Powell, the court to exercise an absolute veto over at (op. Id. 99 S.Ct. 3035 643-44, 3035; of a see id. at id. at the abortion decision minor whom the S.Ct. 656- (not- 57, (White, J., dissenting) 99 S.Ct. 3035 fully court determined to be “mature and ing continuing holding his dissent from the competent make indepen- th[e] decision that a 651, 3035, state cannot a minor dently,” 99 S.Ct. a id. discretion Danforth parents to obtain the consent of her before the first of the four Bellotti II criteria for- abortion). And, undergoing an in Planned Powell, J., (op. joined by bids. See id. 476, Ashcroft, Parenthood v. 462 U.S. C.J., Burger, Rehnquist, and Stewart and (1983), S.Ct. 76 L.Ed.2d 733 JJ.); 653-56, (Stevens, J., id. at one-parent did sustain a consent statute that Brennan, Marshall, joined by Blackmun, judicial bypass included a that allowed the JJ., concurring judgment) in (concluding minor to obtain abortion without consent that the statute was unconstitutional because proved if she enough that she was mature subjected the every abortion decision of it make her own or decision that the abortion minor—“no matter how mature” —to “an ab- was otherwise in her best interests. See id. third-party by solute parent veto” either a or 491-93, 103 S.Ct. 2517. The Court simi- judge).3 larly upheld one-parent consent statute Although the Court invalidated Massachu- Casey that allowed of consent if the setts’ two-parent consent statute for the minor could demonstrate to the court that stated, majority reasons of the Court ex- capable she mature giving “[wa]s in- that, pressed respon- because of the value of given formed consent and ha[d] fact parental sible involvement in the minor’s consent, informed or that an abortion would decision, it upheld would have inbe her best interests.” 505 U.S. at- two-parent state’s consent 970-71, (joint op.); 112 S.Ct. 2791 id. at statute had included a that satisfied C.J., (Rehnquist, joined White, S.Ct. 2791 by principal the criteria opinion: outlined Sealia, Thomas, JJ., concurring judgment persuaded part dissenting We are not general part) as a rule, (upholding requirement parental provision). obtaining consent both parents’ unconstitutionally consent bur- Thus, although Court has dens a minor’s to seek an abortion. 'may permissibly held that states condition a implications abortion decision has far minor’s abortion even on consent to broader than those associated with most procedure, other kinds of medical treatment. At least consent statutes include Bellotti II parents together when the are and the bypasses in order to ensure that the minor’s home, living minor is both the subject decision is not to an absolute and father and mother have an interest —one arbitrary third-party Casey, veto. See normally supportive helping to deter- (“reaf- (joint op.) U.S. at —in mine the course that is in the best inter- firming] ... may require that a State daughter. ests of a Consent and involve- seeking an abortion to obtain the con- ment important decisions guardian, sent of a provided long recognized minors have pro- been adequate judicial there bypass proce- dure”).4 tective of immaturity. their

3. The necessity Court confirmed the holding, joint opinion of an ade- Casey explic- In so quate bypass procedure itly distinguished parental re- notice and consent requirements requirements, quirements spousal Repro- Akron v. Akron Center for unduly Health, Inc., which the Court invalidated as burden- ductive 2481, See, Casey, e.g., some. 505 U.S. at (1983) ("Akron I") (over- 76 L.Ed.2d 687 ("[Parental (joint op.) 2791 requirements], constitutional, notice and consent part 870, 882-85, by Casey, ruled in 505 U.S. at they our 2791), when it struck down an Ohio quite are based on the reasonable parental consent statute that made no assumption that minors will benefit from consul- for a minor to showing make an individualized tation with their and that children will parents enough she was mature to make her own often not realize their best decision, see id. at 112 S.Ct. 2791. adopt parallel interests at heart. We cannot women.”); assumption about adult id. at

363 ato tantamount statute is parental-notice a parental assessment its to In contrast practical mat- As a statute. parental-consent consistently statutes, has the Court consent have the will requirement ter, a notification for abso- potential same that recognized on a effect deterrent same in- that decision the abortion over veto lute right as constitutional her seeking exercise to not does statute consent parental ain heres statute.”). a consent does statute, there- and notice parental in a inhere fundamentally the constitution- are addressed statutes has The Court notice fore that in four provisions than— burdensome notice ality parental less from —and different Matheson, Kennedy 450 first, stated v. H.L. As Justice In statutes. cases. consent 1164, Hodgson, 388 67 L.Ed.2d 398, Court S.Ct. 101 Members four for can, pro- (1981), a state it held that con- and notice between difference [t]he all, constitu- at bypass procedure viding be- to apparent us was sent[requirements] parents tionally require notice Unlike apparent now. fore and no “made has who unemancipated minor no- laws, requiring parental a law consent maturity or as showing to her as legal claim party any third give not tice does 407, at Id. her, parents.” with her relations decision the minor’s to make that explained The Court 1164. obtaining an 101 S.Ct. abor- her from prevent or to parents notice requirement of per- “the one even if to have she choose tion should seeking minors some [might] dis- inhibit acknowledged We have formed. 1164, 413, S.Ct. abortions,” id. 101 one at “fundamental,” tinction parents “neither extended requirement con- the federal modify[ing] “substantially minor’s power over judges a veto nor challenge.” stitutional 411, 1164 decision,” 101 S.Ct. at id. J., (Kennedy, 496, 2926 110 S.Ct. at 497 U.S. consti- (footnote omitted), was and therefore C.J., White by Rehnquist, joined tutionally permissible: judgment JJ., concurring Scalia, may a state that held we have Although (quoting Bellotti part) dissenting in part and blanket, un- legislate a constitutionally not 146, 148, 132, 96 S.Ct. Baird, 428 U.S. v. veto their parents power of reviewable /)). (1976) (Bellotti L.Ed.2d setting out a abortion, a statute daughter’s and O’Connor Stevens And Justices notice” requirement “mere noted likewise rights not violate does held [ajlthough Court immature, minor. dependent absolute, possi- “an may not exercise omitted). (footnotes 409, 101 S.Ct. at de- Id. abortion] [the arbitrary, veto” over bly challenged a State’s more cision, Matheson, has twice has never the Court Since decision each statutes. reasonable upheld Bel- notification included instances, after be made the statute should these for con parent. procedures consultation with II lotti simply sustained statutes, the Court (op. sent S.Ct. at 497 U.S. Hodgson, a notice grounds that on the J.) (cita- statutes O’Connor, Stevens, J., joined requirements satisfies II, 497 U.S. omitted); compare Akron tion any re necessarily satisfies (citing consent H.L. (majority) S.Ct. 2972 for mere might exist quirements n. Matheson, 450 U.S. II, sustained In Akron (1981), statute. observation L.Ed.2d single-parent to Ohio’s equivalent not “notice statutes met the bypass that included give which they do statutes requirements. II consent minor’s power over veto anyone a 511-15, 110 2972 Akron decision”), id. Lambert, recently, most And and Mar- J., by Brennan (Blackmun, joined decision Circuit Ninth summarily reversed (“I [that] ... conclude shall, JJ., dissenting) children.”). over exercise give man (“A to a State his wife over of dominion the kind 364 which one-parent invalidated Montana Scalia, JJ., no- and and concurring White in the provision tice that included by- a Bellotti II judgment part in dissenting and part). in Lambert,

pass. 1172; 117 S.Ct. at see dis- specific reasoning of the individual supra. cussion Justices was as follows. 'Indeed, twenty-five in years the since Roe Justices, Four plain, up- is would have Wade, the Court has invalidated held two-parent Minnesota’s notice statute only one provision —the any judicial all, without bypass at reasoning two-parent Minnesota provision notification “permissible that it is legislate for a State at in Hodgson issue that was on the —and premise on the parents, general as a ground narrow that the statute pro- failed to rule, are interested in their children’s welfare adequate exceptions vide to notice in circum- 485, and will in act accord it.” with See id. at stances where a parent was abusive or had 489-497, J., (Kennedy, joined S.Ct. 2926 responsibilities assumed the parent- C.J., by Scalia, Rehnquist, JJ., White and hood. concurring judgment in part the in and dis- senting part). Hodgson was so fractured as opinions to render collectively its all but im- joined Four other Members of the Court penetrable, with five different filing Justices opinion by written Justice Stevens that opinions variously concurring dissenting and fairly could holding understood as that all opinions parts in other and opinions, other two-parent notice per statutes se uncon- prompting Justice Scalia to canvass thus the (with stitutional respect because to the func- (and Hodgson Court’s action in in Akron family) tioning they any either “fail to serve day): decided the same state interest” at all fail to any or serve One Justice two-parent holds notifica- “legitimate interest,” 450, id. 110 S.Ct. (at tion is unconstitutional least (op. Stevens, J., Court), for the circumstances) present judicial by- without (with respect dysfunctional to the pass, but bypass; constitutional with four family) they actually “disserve[J the state Justices would two-parent hold that notifi- in protecting interest and assisting the mi- cation is by- constitutional with or without nor” “proving] positively harmful to the pass; four Justices would hold that two- minor and family.” Id. Justice Stevens’ parent notification with unconstitutional opinion notes that the state defended the or bypass, though without apply four on the basis of its in having interest standards; two different six Justices hold the minor make the “only abortion decision one-parent notification with after consultation with both who constitutional, though for two different sets naturally should be concerned with the reasons; and three Justices would hold child’s welfare” and “in protecting the inde- that one-parent notification with pendent right of ‘to determine unconstitutional. they strive what believe to be best ” children,’ Hodgson, 451-52, 497 U.S. at id. at S.Ct. 2926 (citations (citation omitted) (Scalia, J., omitted), states, and then concurring in with- “[njeither qualification, out judgment part dissenting part). of these rea- justify sons day, But at the can two-parent end majority one notification requirement,” Court struck id. at two-parent down the state’s S.Ct. 2926. Then, surveying notification after statutes bypass, nationwide see health, “governing welfare, Stevens, J., id. (op. S.Ct. 2926 and education Court), for the children” that majority different authorized minor to sus act with tained statute with notice to or with the bypass, II consent of a single operative guardian, became declaring which event of the Minne- provision’s sota invalidation, “oddity” by statute an comparison, Hodg id. at son, (O’Con opinion 497 U.S. at concludes: nor, J, concurring part and concurring in provide testimony These statutes part); id. at unreasonableness of the Minnesota two- J., (Kennedy, joined by Rehnquist, C.J., parent notification requirement and to pur failure serve and “its particular, less adopt can the State which ease many in too the State asserted poses minor’s protect means burdensome (O’Connor, 460, 110 S.Ct. re- Id. hold that cases.” therefore We welfare. concurring in the J., concurring in part Constitution. violates quirement 459, 110 id. at see part); in also judgment omitted); (citations 2926 110 S.Ct. Id. at (“I STE- with JUSTICE agree 2926 S.Ct. (Kennedy, 2926 481, 110 at S.Ct. id. see also no suffi- offered has Minnesota that VENS part and in judgment concurring the J., in with the its interference justification for holds cient (“Today, the Court part) dissenting in processes created decisionmaking notify family’s minor a requiring statute that a ” added)); id. at (emphasis .... 2 abor- to have subdivision plans she parents that both J., concurring (Sealia, in furthering 2926 means of permissible S.Ct. a is not tion part) dissenting in a minor and part in encouraging judgment in interest [state’s O’Con- when mak- Justice parents (noting her he understood of that the advice seek decision.]”). two-parent no- holding “that opinion ing the abortion nor’s (at in the least unconstitutional is that, although tification however, apparent, It circumstances) by- judicial without present vote the fifth provided O’Connor Justice (empha- bypass” with pass, but Minnesota invalidated majority that added)). not did sis bypass, she a notice statute reasoning in Justice precise to the subscribe under- Justice O’Connor’s was That this in opinion separate In her opinion. Stevens’ opinion, and Stevens’ standing of Justice also reasoning for own forth her sets which she upon which grounds narrow was thus two-parent notice invalidating Minnesota’s conclusively rests, is opinion Justice Stevens’ contrasts statute, O’Connor Justice O’Connor Justice fact that by the confirmed in Arkan- statute with statute .the Minnesota the Minnesota to sustain ultimately voted exceptions noted, which, provided sas, she Id. at bypass. statute, awith that requirement notice two-parent its J., concurring in (O’Connor, 110 S.Ct. instances in permit notice would part). in judgment concurring in the and part parents. absent permanently abuse and believed had O’Connor Obviously, if Justice (“Subdivision 2 459-60, S.Ct. id. at in interest legitimate ahas never a state that in statute stringent notification most is the Stevens’ Justice to both notice —as de- that only other State country. The as, hold, and be read opinion could par- as ‘both ‘parents’ term generic fines the believe, dissent, appears to he in opinion his provides Arkansas, that statute and ents’ is J., (Stevens, 455-58, id. two-parent exceptions for numerous have sustained not could dissenting) —she bypass- permits requirement notification fact, the Court bypass. with not where notification ing notification the Minne- upheld not could as a whole (cita- the minor.” interests best in the did, if five bypass, as with the sota statute spe- omitted)). identifies then She tions the state actually held had Justices prompted statute cific flaws requiring two in whatsoever interest no first, that statute down to strike vote daughter’s of their notified abused exception to its 461, 110 S.Ct. See id. decision. effectual” “less than was minors neglected part and concurring in (O’Connor, J., noti- a means reality, was] [it “in because (uphold- part) concurring in second, and, parents,” fying the by- with statute notice two-parent ing the notice when two-parent (Kennedy, pass); id. State the minors “only half C.J., and White Rehnquist, J., joined par- biological both with reside Minnesota dissenting part JJ., concurring Sealia, par- only one live third “[a] ents” and in his noted Stevens As part). Justice makes clear thus O’Connor Justice Id. ent.” a statute dissent, save bypass cannot because down struck that she state legitimate reasonably related to both state never Id. at place. the first interest rather, but, father, mother in sweep” Minnesota’s “broad (first Therefore, Stevens, J., Court) it is evident that emphasis for the Hodgson two-parent not hold that a no- added); did in original; emphasis second see also unconstitutional; per requirement tice se (“No exception id. at fact, majority Court held that a requirement] the notice [to is made for a two-parent requirement generally fur- parent, parent, divorced a noncustodial or a important legitimate thers state inter- biological parent who never married or lived equally ests. It is evident that the Court did mother.”); with the woman’s id. at not hold that a notification statute— 445-46, (noting biological two-parent even statute —must include a parents’ controlling “interest the education judicial bypass in order to be constitutional. upbringing of then- children” rises to noted, White, Kennedy, As Justices Rehn- liberty only “through “the level of a interest” quist and Scalia would have sustained the financial, assumption personal, or cus- bypass actually statute even without the responsibility”). todial O’Connor) (together did with Justice sustain bypass. the statute with the Justice O’Con- Indeed, very day Hodgson same nor voted to invalidate the statute without decided, II, was avoiding the Court Akron bypass, only it but failed ade- bypass the notice way issue the same quately provide exceptions to notice for confirmed, Hodgson, expressly it had in in an parent5 parent the abusive and the who opinion in which Justice O’Connor herself accept responsibilities parent- failed to joined, yet that it had to decide whether the ultimately uphold hood. And she voted to requires parental Constitution that a notice two-parent not because all notice judicial bypass: statute include a require bypass statutes a Bellotti II and the [Although required bypass our cases have modified Minnesota statute contained such a but, rather, bypass, procedures parental statutes, because the statute’s consent bypass necessarily II cured the de- parental we have not decided whether no- fects she identified Minnesota’s notice tice procedures. statutes must contain such II, statute. See Akron 497 U.S. at Matheson, [450 U.S. 413 & n. (“As today Hodgson S.Ct. 2972 we hold 1164], (upholding S.Ct. a notice statute Minnesota, corollary greater bypass procedure without a applied by- intrusiveness consent statutes that minors). dependent immature We leave pass procedure that suffice for a will because, question open, whether or not statute will suffice also for a notice statute.” Amendment, requires the Fourteenth no- (citations added)). omitted; emphasis tice bypass procedures, statutes to contain That the Court did not strike down the parental [the Ohio notice statute’s] judicial bypass, statute because it lacked a procedure requirements meets the identi- but, rather, the overbreadth of because of parental fied for consent statutes.... requirement, appears even statute’s notice 510, 110 2972; Akron 497 U.S. at see reading upon careful of Justice- Stevens’ Lambert, (reaffirming also at 1171 opinion holding opinion. As that recites its (and that, in presumably Akron II therefore analysis: beginning equally of its “It at the Hodgson well), the Court had “declined requirement that both clear that the parental to decide whether a notification stat- notified, or not both wish to be whether ute bypass provi- must include some sort of responsibility have assumed or notified constitutional”). sion to be child, question And the does not reason- upbringing necessary of whether a any legitimate within a ably further state interest.” (as consent) Hodgson, (op. parental opposed 497 U.S. at S.Ct. 2926 stat- Stevens, J., Court); Although purported (op. 5. the Minnesota statute for the id. also minors, exception (O’Connor, J., include an to notice for abused concurring 110 S.Ct. 2926 exception minor availed herself of the part concurring part) abused, abuse, law, declaring herself had ("The exception Minnesota to notification for mi- reported immediately to be to state authorities. is, neglect nors who are victims of or abuse resulting investigation would result in notice reality, notifying parents.”). a means of parent. Id. at 426 n. 110 S.Ct. 2926 (joint op.), open today.6 505 U.S. at ute still remains reasonably and therefore cannot be said to V. unduly right, burden the minor's abortion see id. Turning question now to this for the Circuit, conclude, first time in our we based A. upon authority the substantial from the emphasizing the fundamental differ statutes, ences between consent and notice parental statute-one-parent A that the Constitution does not two-parent-that excepts require- from its panoply "mere notice" statutes the full neglectful ments notice to the abusive or safeguards required by the Court in Bellotti parent, or the who has not assumed particu II for consent statutes. responsibility minor, indisputably for the fur- lar, we conclude that a notice stat legitimate important thers state inter- exceptions ute that includes the to notice ests. Hodgson is, more, identified in ly facial compelling is, provided Such a notice statute serves the constitutional. That that a securing state interest in inviolate the notice statute does not conditionthe upon of a mother and a father to rear their child minor's access to abortion notice to neglectful parents, parents they fit, participate fully abusive or absent see and to in that life, governmental parental respon child's as free from inter- who have not assumed their constitutionallypermissible. sibilities, ference as It is with similar relation premise society ships daughters, a fundamental "{tjhe of our to their we do not believe child is not the mere creature of the that more is in order to withstand a challenge constitutionality. State" and that "those who nurture him and facial to its For destiny right, coupled parental direct his have the a spousal notice statute-unlike either a high duty, recognize prepare parental with the notice or a blanket consent for," challenges purpose [n]or him and decisions of life. statute-has neither "the ef II, 637, (op. placing Bellotti 443 U.S. at 99 S.Ct. 3035 fect of path a substantial obstacle in the Powell, J.); Hodgson, seeking abortion," Casey, of see also 497 U.S. at of a woman (Stevens, J., concurring part principal opinion S.Ct. 2972 6. To the extent concurring judgment), suggests bypass parental in the the Court in Akron I BellottiII that some bypass required, see, e.g., also did not hold that some to notice- 443 U.S. at 646- required. 48, (op. Powell, J.), sugges or other-is The Court in Ak 99 S.Ct. 3035 of parental majority ron I invalidated the there at issue because it did not believe that the consent statute tion is dicta which failed to command a fact, Stevens, writing of the Court. Justice "reasonably susceptible being himself and the three other Justices whose con statute was of con opportunity case-by-case judgment necessary strued to create `an currence in the was to inval maturity parental evaluations of the of mi idate the consent at issue in nors,'" I, 441, Akron 462 U.S. at 103 S.Ct. 2481 explicitly [does Bellotti ft. stated that "this case (quoting II, 23, constitutionality Bellotti 443 U.S. at 643 n. 99 not] determin[e] the of a statute (op. Powell, J.)). opined S.Ct. 3035 of The Court which does no more than notice to the general in a footnote that even if the Ohio statute parents, affording them or other governing juvenile proceedings could be con party 1, third an absolute veto." Jd. at 654 n. 99 procedures allowing strued to create a minor to (Stevens, J., concurring judg S.Ct. 3035 in the showing maturity, make an individualized ment). upon The Court in Lambert even relied procedures those would nonetheless be inade support this statement Justice Stevens in of its quate infirmity to cure the constitutional of the JJ, conclusion in Bellotti it had addressed requirement because, law, consent under state only parental affirming and in the minor's would receive notice if the parental that whether notice statutes must in procedures. minor availed herself of the See id. open ques clude some sort of remains an 31, sug at 441 n. 103 S.Ct. 2481. This footnote Lambert, 3; tion. See 117 S.Ct. at 1171 & n. see gestion obviously was dicta to the Court's hold Matheson, 17, also 450 U.S. at 411 n. 101 S.Ct. ing maturity the statute did not create a ("In expressly 1164 Bellotti II ... we declined to requirement. to its consent Cf. id. at 469 equate requirements require with consent 12, (O'Connor, J., dissenting) n. 103 S.Ct. 2481 ments."). ("In my view, yet no decision of this Court has parental Contrary suggestion held that notification in the case of to Justice Stevens' in con- unconstitutional."). II, mature minors is currence in Akron see 497 U.S. at 110 368 J.) (stat 445, Stevens, Yoder, (op. 205, 110 S.Ct. 2926 [Wisconsin v.] [406 U.S. “ (1972)] 1526, counterpart responsibil ‘a ing that as 32 L.Ed.2d 15 Prince Com. [v. ” assumed[,]’ Mass., 158, 438, they “[p]arents

ities have have 64 U.S. 88 L.Ed. (1944)] controlling Ginsburg an interest the education and ... all have con- children”) upbringing (quoting of their suggesting Lehr tributed to line of decisions Robertson, 248, 257, parental right 463 U.S. existence of a constitutional (1983)). 2985, undue, against L.Ed.2d 614 As the adverse interference Matheson, Matheson, State.”); 410, observed “constitutional inter 450 U.S. at (“We consistently recognized pretation has recognized S.Ct. 1164 on numer- authority parents’ claim to in their relationship own ous occasions that the between rearing household to direct the of their chil constitutionally protect- and child is (citations omitted)); society.” dren is basic in the of our Hodgson, structure ed.” see also J., (quoting (Kennedy, U.S. 101 S.Ct. 1164 497 U.S. at 110 S.Ct. 2926 York, 629, 639, Ginsberg concurring in part v. New and dis- (1968)); senting part). parental liberty 20 L.Ed.2d 195 And this also is, II, recognized, fully interest (op. has U.S. S.Ct. 3035 J.) Powell, liberty consistent with the minor’s (“[D]eeply rooted in our interest Na- See, e.g., the abortion decision. history id. at n. tradition[] tion’s is the belief J.) Stevens, (op. (“Prop- implies that the role substantial erly ... children.”). understood the tradition of authority measure over one’s authority is not stated, inconsistent with our tradi- Kennedy And as Justice rather, liberty; tion of individual the former history [t]he and culture Western civili- presuppositions is one of the basic strong zation reflect a tradition of latter.”) (quoting Bellotti upbringing concern for the nurture and J.)). Powell, (op. fact, 99 S.Ct. 3035 of primary their children. This role of the interest, this fundamental deriva parents upbringing in the of their children tively by asserted the state on behalf of the beyond is now established debate parent, is at its zenith when the decision as enduring American tradition. to which urged involvement is 484, Hodgson, 497 U.S. at 110 S.Ct. 2926 one—like the abortion pro decision—with J., (Kennedy, concurring judgment in the in enduring found and consequences merely (internal part part) dissenting quota- and in physical child, well-being for the of the but omitted). tion and citation moral, spiritual, for the child’s and emotional Indeed, parental right shape II, development. See Bellotti 443 U.S. at and during direct the life of one’s child 637-38, 640, Powell, J.); (op. minority liberty child’s is itself a fundamental 103, Danforth, see also 428 at U.S. 96 S.Ct. by protected interest the Constitution: (Stevens, J., concurring part 2831 in frequently emphasized The Court has (“[E]ven dissenting part) in [the importance family. rights of the important is the decision] most kind of a conceive and to raise one’s children have person make, young may decision a ever essential, rights been deemed basic civil assumption merely quality enhances the man.... It is cardinal with us that the the State’s interest in maximizing proba custody, care and nurture of the child re- bility that correctly the decision be made parents, primary side in first whose full understanding consequences with preparation function and freedom include alternative”); Casey, of either 505 at U.S. obligations supply the state can neither 899-900, 112 (joint op.) (explaining S.Ct. 2791 nor hinder. waiting period required by pa- informed 447, J.) Stevens, Id. at (op. 110 2926 provision legitimately S.Ct. rental consent provid- (internal omitted); quotations parent and citations ed “the or of a II, 18, see also Bellotti at young opportunity 443 U.S. 639 n. 99 woman the to consult with J.) (“The Powell, (op. S.Ct. 3035 private, in Court’s her and to discuss the conse- opinions Sisters, Society quences [in] Pierce [v. of her decision in the context of the 510, (1925)] 571, U.S. 45 S.Ct. religious principles 69 L.Ed. 1070 values and moral or provided be 480, 110 contemplating an abortion at Hodgson, 497 U.S. family”); Court, merely information, “fa- J., concurring in the reasoned (Kennedy, S.Ct. [abor- dissenting part) th[e] in the wise exercise cilitate[d] part, and judgment in “grave” right.” as a Id. at S.Ct. decision (describing tion] girl “a of tender one, observing that course, stronger an even state Of stress, may ill- be emotional years, under mi consent of ensuring that the interest mature advice make it without equipped to more minors are informed because nors is II, support”) (quoting and emotional uninformed. proceed likely adults to than (opinion of at 99 S.Ct. 443 U.S. (explaining See, e.g., id. J.)). Powell, par- provisions “have that informed minors”). As respect have a fundamen parents do with Because ticular force recognized, to child “at the same liberty has often tal interest apt 2926— teenager] 110 S.Ct. is much more relationship, see id. at [that time with, only compatible peer pres- motivated mere emotion an interest that is, of, liberty adult,” minor’s to her due is an she supportive also sure than but education, plainly intel- state and less pregnancy- “[i]nexperience, less interest —the end when conse- to evaluate the legitimate ligence ... less able furthers paren Hodgson, 497 affirmatively encourages continued ... her conduct.” quences of (O’Connor, J., child re the minor tal involvement concurring know concurring part, mothers and fathers quiring that Thompson con part) (quoting children choices their profound most Oklahoma, 815, 835, front, id. 487 U.S. (1988)); Bellotti 101 L.Ed.2d re- requirement importantly, As (not- J.) Powell, (op. of of their apprised

sponsible experience, “minors often lack ing that fur- to obtain an abortion daughter’s decision recognize and judgment to perspective, legitimate interest ensur- thers the state’s detrimental that could be choices avoid fully decision is the minor’s abortion ing that validly the state therefore that them” and may constitution- the states That informed. choose). The their freedom limit regulations to ensure ally enact reasonable hand, “possess what a on the other parents, women, consent, for adult even informed ca- maturity, experience, lacks child observed As the beyond question. making required for judgment pacity for Casey: the “natural and decisions” life’s difficult right to stake is woman’s is at What their to act in them affection” lead bonds of decision, right to not a the ultimate make Hodgson, U.S. 497 interests. children’s best doing so. all others be insulated from J., (Kennedy, concur- 2926 at 110 S.Ct. no more than Regulations which do ... dissenting part and judgment in ring in the by which mechanism create a structural J.R., 442 U.S. part) (quoting Parham a State, guardian parent or or-the L.Ed.2d 101 584, 602, 61 minor, respect for may express profound (1979)). they if permitted, are of the unborn the life therefore, may con- the state Certainly, to the wom- are not a substantial obstacle will be decision a minor’s abortion right to choose. clude that of the an’s exercise if her considered and better more informed (joint op.) at S.Ct. 505 U.S. and impending decision her parents know added). precisely because It was (emphasis making that to assist thus are able interest that importance of this state of the Kennedy has As Justice grave decision. “unduly burden- upheld, as written: Pennsylvania’s right, on the some” may society decide enlightened A and free permitted provision, which consent informed should attain members of its being that each only after abortions to women obtain understanding of clearer, more tolerant nonmisleading informa- truthful and given confront- choices philosophic profound regarding the nature tion considering whether who is a woman ed that women requirement procedure. abortion_ data, physician to other sources refer the The State is enti- to seek that, history, family physi- people, such as for most of its of medical to assume tled cians, family physicians to understanding and authorize beginnings of that will give family, society’s most inti- relevant data. be within rational and It is both mate association. II, at Akron 497 U.S. that, in most to conclude fair for the State Matheson, 411, 101 at S.Ct. (quoting 450 U.S. give instances, family strive to will 1164); 518-19, 101 S.Ct. 1164 see also id. at advice that lonely even terrified minor (“We may that a State continue to believe compassionate and mature.... It is both to physician himself or herself family say deny dignity all steps notify a minor’s take reasonable cannot take this reasonable that the State provide parent often will en- step requiring parental notice] to [of physician.”); important medical data to the cases, young woman in most sure 518, 101 (recognizing “the id. at S.Ct. cf. understanding guidance and will receive garner superior ability physician of a parent. par- supplied by a minor’s use information 520, 110 II, (op. notice”). S.Ct. 2972 Akron 497 U.S. Relatedly, by receiving upon ents C.J., J., Kennedy, joined by Rehnquist, their ensuring parents are informed of Scalia, JJ.); Casey, see also abortion, and White child’s intention to obtain (majority) par- parental notice statute also enables the or consent stat- (noting parental notice daughter on her choice of ents to advise their quite reasonable as- “are on the utes based physician, competent compassionate from con- sumption that minors will benefit at 641 n. see Bellotti that children J.) their Powell, sultation with (op. (noting that even that their will often not realize 17-year likely than “mature” olds “are less heart”); Hodgson, their best interests recognize ethi- adults to know or be able to J., (O’Connor, U.S. at cal, sup- qualified physicians”), and better concurring in concurring part physical port daughter’s and emotional (“[P]arental notice and part) abortion, recovery in the aftermath typically qualifications upon. that is the course decided by the on a minor’s imposed State short, mi- important decisions. As immature make can be little doubt that State [t]here fully ability to make often lack the nors constitutionally permissible end furthers that take account of both informed choices by encouraging pregnant mi- an unmarried long-range consequences, a immediate help and advice of her nor to seek paren- reasonably may determine that State making very important parents deci- often is desirable and tal consultation a child. sion whether or not to bear minor.”) (quoting best interest (op. of (op. U.S. Hodgson, 497 S.Ct. 2926 J.)). Powell, J.) Stevens, (quoting Danforth, 428 U.S. at (Stewart, J., concurring)); 96 S.Ct. 2831 Finally, parental notice statutes serve the (Kennedy, see also id. ensuring that the important state interest of J., part, concurring in in and the physician advising the minor on her abortion (same). dissenting part) full medical decision has access to the child’s and, relevant, history. psychological, where repeatedly The Court has observed indisput- emotional, that the state medical, At the same time psychological and

[t]he ably legitimate purposes when furthers consequences of an abortion are serious responsible parents, the requires notice to lasting; particularly is so and can be requirement on the such a notice An ade- patient the is immature. when effect markedly from different is quate psychological case histo- medical and as the Su- requirement, that of a consent ry important physician. to the Parents every ease in has noted psychological preme Court provide can medical and (and may be shorter typically short or views parental notice has addressed which it parents still, her to contact if she chooses provision. and, this short by telephone), during only ’ access a minor’s conditions A listen to has but to young the woman period, consent, by defini- on abortions pure notice under a parents; at least her absolute, potential- tion, and parents an gives not even undertake the law does their child’s decision. arbitrary, over ly veto of a frank require consultation sense 74, 96 S.Ct. 2831. U.S. at Danforth, 428 mutually recep- exchange open between and un- a statute judicial bypass, such Absent in no event need parent and child. And tive obstacle a substantial mistakably places accommo- minor conform or otherwise the choose minor who would path of the the parents. plans to the desires her her date abor- childbirth. ultimate abortion over discount, fully, do and not We understand is, parent, reality, that the decision tion influence, can be pressure, if not the that of the minor. not not) during (intentionally or brought to bear a mere notice The effect of a child who parents and between a discussion merely not is different decision the emotionally so of a decision the throes is .in parental notice kind. A degree, but in preg- to end wrenching of whether as that exceptions specific the that includes (whether abor- approve of nancy parents the constitutionally mandated the not), recognize also even as we tion or a veto parents neither Hodgson vests with difficulty exag- tendency teenagers effect. As the a veto in nor fact to their likely reactions gerate parents’ their choice consistently recognized, the parents’ underestimate their and to dilemmas remains pregnancy the whether to abort compassion- understanding and capacity for minor. exclusively that of the ultimately and parents ex- opinions response. ate cases). (citing supra at 362-63 See discussion impart will parents press and the advice undoubtedly change the calculus requirement notice does Nor decision, they should. properly child’s as abusive, irre- to the excepts notice circumstances, this dis- the rarest of but all absent, or permanently sponsible, woman, whether young force cussion will consti- parent, otherwise similarly disaffected not, reexamine admittedly or to examine to, an undue or obstacle a substantial tute made, preliminarily she has decision Although on, decision. the abortion burden values, morals, and only her own against not trauma the emotional appreciate well we differ, against those beliefs, but, they where between attend discussion can And, assured- father. her her mother and moral, fraught with subject so on a child the coun- gets and minor the reaction the ly, abortion, ethical, religious implications will, in parents her from she receives sel even requirement does a mere change instances, bring about either many between a discussion necessarily force heart, a conse- change of or a of mind parents; insofar and her ini- she change in decision quent concerned, young woman need law par- of her benefit tially reached without con- or otherwise establish return home even imagine the insight. To experience and ents’ following tact with concerned between discussion performed. the abortion is before to under- daughter is frightened willing- sure, young woman does To be dynamic add power of stand the home, only initiates if she even ly return decision. of the imminent burden will parents, she with her telephone contact effect, minimizing its However, without parents’ to her certainly exposed be almost oth- minor’s on the imposition additional contem- decision grave the she on views deci- unfettered abortion completely assume, views erwise And, may those we plates. a burden to constitute cannot said held, contrary sion passionately may be a Constitution under “undue” peri- the forcefully expressed. But own, and family sanctity the of jealously protects dur- notice and abortion of time between od For, society. cornerstone to those as may exposed ing the minor which fiat, wresting parents end, carry from and of whether the decision rendering that of the minor pregnancy privileges to term remains unto the courts of the alone, and no one else. And the responsibilities parenthood woman that are it- and young weight this, added to the wom- very incremental And at the moment when not self. through the encour- also, an’s abortion decision parent, in only child is most need of but aged parental involvement is incidental paradoxically, parent is most in need of child. inescapable consequence and of the state’s only not Not does Constitution pursuit legitimate only interests not in of its rights expropriation such an health, consent and but the minor’s informed father, of mother and doubt that duties we preservation the cardinal also in People would submit to such. Even in an they responsible parents shape, as deem tolerance, age of not all is tolerable —or to be lives, appropriate, their children’s their be- tolerated. liefs, values, morals, their charac- their their large part ter. as it is in the absence of Just B. this latter interest which renders unconstitu- Accordingly, today we that the state hold or a spousal tional a notice statute may constitutionally require that mothers requires notification notice statute which teenage daughters fathers of be in- parents parents who have not abusive or life-defining daughters’ formed of their deci- responsibility support up taken pregnancies, provided their sions to abort children, bringing pres is it the of their so excepts requirement that the state from its part in ence of this interest that substantial parents, par- notice to abusive noncustodial properly renders constitutional tailored accept paren- ents who refused their See, e.g., Casey, parental notice statute. responsibilities, parents tal with similar (distin (majority) U.S. at children, relationships required by to their require consent guishing parental notice or Supreme Hodgson. in Court’s decision requirements spousal notice ments from panoply safeguards In full contrast to the give not to a grounds “[a] State statutes, required more is dominion over his wife that man the kind of of the state in order for its mere children”); Hodg parents exercise over their notice statute to withstand facial constitution- (Kenne- son, 110 S.Ct. 2926 challenge. al J., concurring part dy, (observing dissenting part) that notice particular, by- as to the “best interest” weighing “represent[ a considered ] statutes pass, we hold that a notice that in- competing interests of minors and Hodgson cludes at least the “best interest” compare id. at parents”); exceptions neglectful parents for abusive or J.) Stevens, (noting (op. of that a S.Ct. 2926 who have otherwise refused parent’s “controlling interest natural responsibilities accept parenthood, upbringing education of their children” constitutional, facially without more. While liberty only of a interest rises to the level might eventually require through “the demonstration of commitment that a notice statute include “best through assumption per- to the child except notice in interest” that would sonal, financial, responsibility”) or custodial circumstances akin to those identi- additional (op. of with id. at Ste- Hodgson, fied we do believe that those Court) vens, J., (holding that for the likely sufficiently circumstances to be legitimate requiring state has no interest large in must number notice to a has not assumed such who them in order to account for withstand responsibility). And, constitutionality. challenge to its facial because a broader would be sub- Indeed, affir- to hold the Constitution tension, irreconcilable, if not with the stantial matively requiring that forbids a state from liberty for them- interest of to decide teenagers mothers and fathers selves, governmental possible free as merely daughters’ be told of their decisions interference, what is and what is not pregnancies nothing to abort their would be children, do arrogation parental less role interests of their own we than an best

373 that a mature requirement ognize a consti- will likely the Court that .that not believe to her notice of her abortion provide a facial minor require, purposes for tutionally an imma- bypass— requirement a that interest” “best challenge, a broader —like inhibit exceptions allow provide that would notice—will example, one ture minor for wholly regulation unrelated to “That a state reasons abortions. some parental degree,” minor or to how- safety to some or health abortions ‘inhibit’ substi- a wholesale rights. ever, that the Such that we find forfeiture not “does not parent we do under- invalid,” of court tution as O’Connor regulation is Justice contemplate. precedents to 464, stand Court’s 103 S.Ct. 2481 Id. at has observed. J., 491, (Kennedy, 2926 at 110 S.Ct. Matheson, id. (citing 450 U.S. dis- judgment part in concurring that, 1164). in the vast we are satisfied And (“The that some possibility senting part) in instances, parents will notice to majority of compassion not with parents will react this, exceptions provided no than do more informed of their understanding upon being parent, neglectful for the abusive exist they if or even daughter’s predicament otherwise refused to parent who has and the incorrectly they will advise receptive, or her child. accept responsibility for his legitimacy her, does not undercut a not become requirement does A notice procedure a that attempt to establish State’s merely has become minor veto that a probability enhance the will be allowed enough mature that she must wisely possible young woman exercise preg- to end her herself whether decide for decision.”) make the abortion her Indeed, every reason nancy. there is Matheson, 450 U.S. 0quoting upon the imposed the burden believe that (Stevens, J., concurring S.Ct. require- parental notice a mature minor omitted); (emphasis judgment)) cf. that actually than be less onerous ment will (op. of 448 U.S. at minor. As Jus- imposed upon the immature J.) Powell, (noting that “[ajlmost noted, by defini- has tice Stevens take properly should proceeding court tion, intellectually and emotion- ... a woman important “an state that there is account into making decisions ally important capable of family rather than encouraging a interest also should parental assistance a minor’s judicial resolution of disapprov- any parental capable ignoring naturally “parents take and that decision” Matheson, 425 n. 450 U.S. at al.” their children —an in the welfare of interest J., (Stevens, concurring in the S.Ct. strong where particularly that is interest judgment). family relationship exists where normal parents”). living or both with one the child is may, un- Moreover, young woman that sufficiently mature law, be considered der bypass, we minor” to the “mature As the ulti- make allowed to she must be tailored so that is a notice statute hold decision, not mean does mate abortion Hodgson satisfy requirements as to she is mature mature or that in fact she is include, addition, bypass not need certainly does respects, and it in all pass constitutional order mature enough that is mature mean she n. I, at 469 Akron muster. Cf. and sub- legitimate longer has a no state (O’Connor, J., joined White to seek encouraging interest stantial JJ., dissenting) (noting that Rehnquist, and assistance counseling, guidance, yet has of this held decision “no theAs decision. regard to the abortion in the case of mature parental notification “[tjhere no acknowledged, Court itself and that is unconstitutional” minors capacity to relationship logical between de Matheson, “expressly did not capacity for ma- pregnant and become requirement cide anof concerning wisdom ture the state other unconstitutional (major- Id. at abortion.” abor to make mature minors permitted wise Danforth, ity); also or decisions tion free of (“[0]ur sug- holding does ... (citations omitted; emphasis first ‘veto’” age minor, regardless added)). every gest that rec- emphasis We second original; validity ... undercut maturity, may give [a effective consent for ter- does not Thus, pregnancy.”)- requires even mination of her notification statute that immature teenager will benefit from provide the most mature minors alike to notice and mature and, parent, experienced advice of a as a par- to their of their abortion decision _ dialogue, make a more consequence of that legislature has consti- state ents] [A] considered, informed, abortion choice. utilize, better power purposes tutional 443 U.S. at 643 n. implementing parental-notice require- a Cf. J.) (“[T]he Powell, fact that a (op. ment, yardstick upon the chrono- a based very much an adult in some logical age of unmarried women. that his or her respects does not mean need yardstick imprecise That this will be or opportunity growth under unjust particular not even cases does ended.”). guidance discipline legislature imper- use a state render its missible under the Federal Constitution. physi- better able to select the She will be abortion, perform cian who will she Matheson, 101 S.Ct. 1164 upon ending pregnancy. decides See id. (Stevens, J., judgment); concurring in the id. (noting at 641 n. that even (noting at 425 n. that “if 17-year likely “are than olds less adults every of an adult has minor with wisdom ethical, recognize quali- or able to know be treated to be physicians”). fied be better situated She will adult, voting age a uniform minimum is sure- provide physician her the full medical with ly suspect”). history necessary professional to the treat- undergo. par- her VI. ment she will And with involvement, physical knowing ents’ standards, against foregoing Measured recovery post-operative, emotional will be Comnjonwealth Virgi- it is evident that the eased. comfortably nia’s notice statute Finally, go saying, it should passes constitutional muster as a facial mat- parents’ well-being, interest and con- ter. support, tinued care and of their minor judi- daughter upon likewise does not cease A. finding daughter sufficiently cial that their Initially, quite possibly disposi mature to make the abortion decision herself. tively, provision notice Commonwealth’s course, matter,

As a factual interest suffers from neither of the flaws of life; but, presumptively even as continues Hodgson. notice statute at issue in Minnesota law, a matter of interest continues First, Virginia parental notice majority. least Al- until the child achieves two-parent in contrast to the majority though age might be consid- Hodgson, no- invalidated does arbitrary, important ered in the most sense parents who tice to absent or noncustodial represents experi- is not. It the collective significant responsibility have not assumed insight society respect ence and with upbringing. for their children’s care merely physical, but also to the emo- general provision requires notice tional, development of its children and their who, turn, person,” to “an authorized ability pa- to make mature decisions without defined as: rental assistance. (i) parent duly appointed legal guard- or sum, we find unassailable Justice Ste- (ii) or ian or custodian of the minor Matheson,

vens’ considered conclusion standing person parentis, in loco includ- to, ing, grandparent limited or but not of the class [t]he fact that certain members regu- sibling, whom the minor adult “minor women who are suf- unmarried customarily who has larly and resides and fering pregnancies and desire to unwanted of the minor. care and control may actually pregnancies” terminate 16.1-24KV). Therefore, § a minor emancipated sufficiently mature to Va.Code is, most, only notify par- one make a well-reasoned abortion decision why this reason suggest not lees do who has assumed ent, and, person if the wholly not efficacious. exception is abuse up- care and minor’s for the responsibility parent, than her other bringing is someone it of the our own review statute From in- person that notice to may provide she exception perhaps that this abuse appears never re- the Consequently, statute stead. of itself to may not sufficient be whom notify parent with to quires a minor possibility the satisfy Hodgson because undertak- has not reside or who does not she provision’s reporting requirement that the well-being. her care provide for en to indirectly in notice to the abusive result could discussed, majority of parent. As we have Second, does not re- Virginia statute the Hodgson, and Justice O’Connor fact, the parents. abusive quire notice to excep an abuse that particular, concluded exception notice express an includes statute abuse where “less than effectual” the tion is minors: for abused resulting investiga the reported be must judicial authorization nor [N]either notice notice provide the indirect tion would that declares required if the minor be shall Hodgson, abortion decision. of the minor’s the attend- neglected and or she is abused (O’Connor, J., at suspect that to has reason ing physician concurring in the concurring part neglected or may an abused the minor part). § [of 63.1-248.2 child as defined However, abuse assuming that this even suspected reports the Virginia Code] standing may inadequate while exception neglect in accordance with abuse or fully protected 16.1-24KV).7 alone,8 is the abused minor Appel- § § Id. 63.1-248.3. impairment aof and irreversible Moreover, provides an substantial for abor- also statute 7. major bodily function. judicial authorization or without notice tion (majority) when, Casey, U.S. at (1990)). § With (quoting Pa. Cons.Stat. good attending physician’s faith medical in the health, Casey medical regard physical to medically (i) is neces- judgment, the abortion face, is, on its emergency exception to immediately or sary avert minor's death to Virginia’s medical emer than more restrictive (ii) provide the to there insufficient time is notice, re which does not gency exception to be- authorization or notice delay risks doctor conclude quire delay a serious risk would create cause a specifically impairment” and which "irreversible bodily major impairment func- of a substantial delay exception notice provides an when physical injury. tion or substantial merely injury,” physical risks "substantial 16.1-241(V). exceptions to the § These Va.Code bodily major func impairment of a "substantial requirements en- judicial authorization notice or Moreover, regard to emotional tion.” en- requirements will not the statute’s sure that health, exceptions identi emergency the two danger health or life. minor’s statute, Casey like the cal: the appeal on argue time Appellees for the first to make no allowance appears on its face is unconstitu- provision of the statute that this indeed, And, emergency. health” "emotional with- abortions it does not allow tional Casey medi of the Appeals' construction Court of delay the minor's risk out notice when exception, emergency to which the cal Appellees’ Brief at emotional health. 4, deferred, see S.Ct. threatening id. argument assuming has not Even 13. "[p]hysically clearly waived, limited to was is meritless. it been Casey, emergencies.” Planned Parenthood require an Court would We doubt that Cir.1991); (3d at 701 also id. F.2d ("The exception to an abortion even emotional health ... definition entirely, essence abortions regulation banned certain forego many doctors woman and her allows a beyond that a state need Casey doubt settles there medical requirements when require- the Act’s exception of emergency to a provide ....”) physical health the woman's requirement issue notice ment—like the added). Accordingly, con- the facial (emphasis contemplated merely delays abor- here—that emergency ex- Virginia's stitutionality of medical period of medical time. tion for short exception disputed. ception cannot be parental consent emergency Ca- upheld the Court in Pennsylvania of indirect the risk be that It emergency as sey defined medical and, in abortion decision which, minor’s [tjhat basis of the condition will occur particular, the risk that indirect judgment, so good faith physician's clinical decision, carry out her can minor preg- before the aof complicates the medical condition Virginia statute significantly lower under the immediate toas necessitate nant woman issue in the Minnesota than under pregnancy avert her death Minnesota that the found Hodgson. The Court delay serious risk will which create mature, the-judge minor is not Virginia statute —as under under shall, ultimately hearing, whether upheld determine notice statute Minnesota after includes a the statute Hodgson upon an abortion performance —because bypass which allows mandatory interest best per- authorized without notice to an minor notice. Vir- an abused interest, in the minor’s best son would be provides: ginia statute the abortion the court that finds may hearing, judge authorize a After a interest, it minor’s best would be in the upon perform an abortion physician to physician. shall so authorize capa- minor is mature and finding that the added).9 16.1-241(V) (emphasis § Va.Code pro- consent to the giving informed ble of courts of the Commonwealth judge Because the If the determines posed abortion. noted, agency's subject and the concomi- an the assessment parent who was the provided a law investigation parent could all occur "in right tant notice to the of access to the record "a occurs.” Id. investigation." Hodgson, U.S. at time frame even before the abortion the contrast, 19). J., (O'Connor, concurring part Arg. (quoting In Tr. of Oral 110 S.Ct. 2926 (citation part) concurring although Virginia reporting statute advises in the the omitted). Presumably, "immediately,” physicians report the Court was concerned the to abuse up report the fact the physician would include that the abuse for to that this record can wait to § the minor complaint was initiated when penalty. abuse See Va.Code 63.1- 72 hours without physi- And, sought without notice from a an abortion is in need of 248.3.B. unless the minor ground was abused. protective cian on the that she care—in which case her immediate contrast, parent prevent gives the home will the Virginia apparently the removal from law In par- obstructing only decision—the when the her abortion parent to his own record” "access by apparently entitled to notice of the report the social ser- ent not was determined is abuse unfounded, agency required § investigation to re- agency Va.Code 63.1- until the to be vices 248.5:1.A., charges perhaps a mat- port not even then as of the within on its assessment course, (requiring Additionally, § days report. 63.1-248.5:1.C see id. of the initial abuse ter of parent petition Virginia appear require the court for release of the to to law does to notice the record), not agency parent gives the parent whom is interviewed the even when the minor suspects to § abused the child access by or believes social services. See id. 63.1-248.10. cases, Thus, used to make that determination the information the if indirect notice of in most “endanger all, the only would not if such disclosure will not decision occurs at minor's abortion prohibited well-being” and is not of the child opportu- had the occur until after the minor has law, Thus, §id. 63.1-248.6:1.A. state or federal nity the to obtain an abortion. While risk cases, only provided information to most the parent eventually will discover her decision her report by agency parent the assess- the will be undergo may reluctant to an make a minor more "report ing of abuse or ne- whether the initial abortion, is much more attenuated that effect unfounded,” within 45 glect or sent is founded if the actual obstruction that result than the reported. days that the abuse is Id. of the time parent decision before she abusive learns of her report Presumably, § neither this 63.1-248.6.E.7. the abortion. obtains investigative any record to a of the nor disclosure entirely di- whether the statute It is not clear suspected detail the cir- parent of abuse would the abortion when surrounding report, rects the court to authorize the initial abuse cumstances where, here, is in the child’s best interest particularly such disclosure the abortion constitutionally notice to her suspect would con- when the abortion without would be terms, statutory travene, lan- the child’s best interest. The spirit the confidential- in guage if not inquiries: the Virginia both it instructs ity provisions references notice upon judge "an abortion the infra, require to consider whether which that the minor’s discussion person strictly to an authorized minor without notice bypass notice be confidential decision to interest,” but then it "[njotwithstanding any would be in the minor's best other of law.” 16.1-241(V). judge if the to authorize the abortion § directs Va.Code Moreover, would be in the non-judicial exception in "court finds that the abortion abuse 16.1-241(V). § Hodgson required best interest.” Va.Code minor’s invalidated event, hours, any Supreme clear in report Court made physician the abuse within these two agency difference between whereupon welfare would "im- Lambert the state constitutionali- pro- formulations is immaterial to the mediately an assessment and offer conduct Lambert, ty S.Ct. at 1171 Hodgson, of the statute. See to the minor. tective social services” (noting II (op. Court held in Akron 426 n. 497 U.S. at added). Stevens, J., Court) authorizing bypass not if "notice is (emphasis that a statute If minor, satisfied the re- minor's] best interests” agency [the it was in quirement then interviewed bypass in Bellotti for a best interest notify the interview show that the minor be allowed to S.Ct. 2926 had occurred. See id. at interests”) (cita- (O'Connor, J., concurring concurring "abortion would be in best part and omitted). quotations opinion judgment). tions and internal Justice O'Connor's As unbounded, deny bypass Hodgson, discretion as well required under itself, in the best rather must be exercised to authorize but bypass language by the strange It of the minor. would be proceed with an abortion interest minor to abused by- statute that would this best interest construction of the notice under pro- minor to minor’s interests court to allow immature the abused pass, contingency of indirect notice was not against bypass when tected parents.10 interest, parent or would allow the to the abusive her best but that Indeed, interest best of a disregard statute’s the best interest court having minor from only protects a ma- simply she is mature minor it also parent, Thus, provide maturity bypass notice to abusive does if the ture.11 a minor broadly, guaranteeing sweeps discretionary, more prove to it is reasonable she can notice whenever assume that the discretion likely parents are to that her duty demonstrate by the to act officer will be constrained inter- contrary to her best impede her choice the best interest of the child. provides safe- Virginia thus statute est. Moreover, re- because the Constitution by beyond mandated those guards well bypass authorize an Virginia’s that quires Hodgson. mature or imma- abused minor —whether language of argued might It be notice, proceed parental without ture —to a mature minor Virginia that statute reasonably Virginia statute because by- interest herself of the best cannot avail construction, we, a a as susceptible of such to consider the court is directed because pass court, required by principles of federal only after the court minor’s best interest comity assume that to federalism qualify for the that the minor does finds the statute so as Virginia courts will construe The mature minor obvi- maturity bypass. mandatory bypass for an provide a to for a best interest ously no need has I, See, e.g., minor. Akron mature abused to maturity is sufficient if her alone bypass (“It is reasonable 103 S.Ct. proceed opportunity guarantee presented ... a court assume state notice, appellees con- but without governing specifically a state statute with discre- Virginia statute confers that the tend mi- procedures abortion consent minor the deny a mature on a court to tion the statute attempt to construe will nors bypass notice. require- consistently with constitutional (Ste- Lambert, ments.”); at 1174 truly discre- maturity Even if the JJ., J., Breyer, vens, joined by Ginsburg and contend, tionary appellees see discussion as (noting that the judgment) concurring in the judicial that the infra, it must be assumed reasonable seeking it was abortions because Hodgson such a affirmed that 10. The Court protects any bypass adequately "[b]eyond question” abused "the State best interest inadequacy of a statute's report and cures the of abuse physicians minors non-judicial declarations upheld exception it when abuse to authorities known that mistreatment is ensure in notice statute that the Minnesota version of protection of minors” responsible bypass, even judicial interest cluded best course, was, constitu the statute fortiori exception specific was though abuse the statute's bypass); Akron see also with a best interest tional 460-61, Hodgson, 497 U.S. at ineffective. (sustain 508, 515, II, S.Ct. 2972 497 U.S. J., (O’Connor, concurring part by judicial with a ing notice statute (explain part) concurring judgment in in the minor to an abused pass for abuse passed con ing statute that the Minnesota notice con "clear and prove “pattern” of abuse judicial interest best muster stitutional bypass would vincing before evidence” though with bypass, unconstitutional even was permitted). be invoking risk that out the exception non-judicial would result abuse Virginia statute not believe that 11. We do parents); id. at notice to the indirect 497, arbitrarily to J., court (Kennedy, joined purports to authorize the Scalia, JJ., C.J., to the mature grant concur authorization Rehnquist, White withhold notice, dissenting part and— ring proceed minor to non-judicial ex (concluding abuse part) any that the would be con- decision in this context— validate the ception was alone sufficient would almost trary minor's best interest to the indirect the risk of statute even if Minnesota arbitrary certainly well. as minors from some notice to a deterred against appellees’ facial “erroneously sustain the statute as construed the Ninth Circuit constitutionality. Although challenge to its that caused that court to in a manner statute has never held that and affirm- unconstitutional” hold the statute by- II must include a Bellotti notice statute that, although language of the Mon- ing held, we pass, repeatedly ambigu- at issue was somewhat tana statute discussed, constitutionality of a that the ous, surely to assume” a appropriate “it fwa]s II that does meet the Bellotti notice statute that obviated construction [being] a concern). beyond question, “it standards is be to To assume otherwise would con- corollary greater intrusiveness of to the express requirement of ignore the clear and bypass procedure that that a interpret sent statutes Virginia courts law that a consent statute will suffice will suffice for uneon- so as to save them from state statutes statute,” for a notice Akron infra, also stitutionality, note 17 and to invali- Virginia courts could 110 S.Ct. 2972. challenge a prematurely on a facial state date paren- readily interpret the Commonwealth’s yet Virginia courts have that the II satisfy the Bellotti tal notice statute to opportunity to construe. had pre- requirements, and therefore it would statutory safeguards These considerable us, court, a federal to further mature for child’s best interest confirm for the constitutionality. question its facial adapted Virginia’s plainly legitimate purposes promoting informed judicial by- every respect, the In almost consent, facilitating physicians’ access to rel- statute is consti- pass in the Commonwealth’s and otherwise en- evant medical information from, argu- tutionally indistinguishable appropriate medi- suring that minors obtain ably protective more of the minor’s abortion care, accommodating the cal as well as to than, in right bypass the held parents rearing, in liberty interests of the adequate II to be to sustain Ohio’s Akron care, They guidance children. of their And, single-parent notification statute. in beyond question also confirm that the stat- protective many respects, it is also more to afford possibly ute cannot be understood bypass the the minor’s abortion than child’s abortion de- a veto over their majority of the held Hodgson, which a require that The statute does not cision. the more intrusive law at issue validated abusive, given are notice be who that case. significant respon- or have not assumed who First, discussed, the as children, sibility thus avoids for their in Akron II and the like the Ohio statute the statute the constitutional defects of upheld Hodgson, pro- Minnesota statute Hodgson. It also includes struck down judicial bypass of the notice re- vides mandatory ju- best interest both broader the court finds that quirement in cases where and, bypass quite possibly, a mandato- dicial notice would be the an abortion without sufficiently ry are bypass for minors who Indeed, minor. the Ohio interests of the best they can determine for them- mature that required prove the minor to “clear statute carry preg- to end or selves whether convincing evidence” that nancy to term.12 See discussion infra. bypass her interest before was not in best unquestionably constitu- Such a statute is Ohio Rev.Code was allowed. tional, purpose having neither the nor 2151.85(C)(2). Obviously, “clear and § placing effect of a substantial obstacle great- convincing evidence” standard works path an of the minor who wishes obtain right to an on the minor’s er burden abortion. evidence preponderance than does Virginia statute. standard of the

B. Second, con- Paren Even if the Commonwealth’s context, guarantees Virginia statute sent tal Notice Act were not constitutional for bypass procedures. The Ohio recited, obliged confidential would still be reasons we expedi- proceedings infra, question are both confidential is no at all As we discuss there Virginia adequately tious. that ensures that its shall issue a sum- provide that the court II forbade the court in Akron legal parents, guardian, custo- mons “to the custodian of guardian, or “notify parents, standing paren- in loco person or other dian complainant that she tis, appear to the abortion,” persons other Rev. and such Ohio to have an wants she necessary parties to proper or 2151.85(D), court to provided further § Code § Va.Code. 16.1-263. proceedings.” man- conducted in a hearings “be all specifically provide “[t]he anonymity” of instructions preserve the ner that will bypass] only party to petitioner [the minor, including requirement “[t]he parent, guardian, proceeding” “[n]o and that papers and records complaint and all other custodian, person standing in loco bypass] or other [for pertain action petitioner should be served parentis to the public kept and are not ... be confidential 2151.85(F). proceeding. Id. at Similarly, the with notice” § Id. records.” clearly interpretation 429. This provides specifically Commonwealth’s synthesis the Act and the logical most proceedings under this subsec- that “[c]ourt juvenile governing confidential,” background provisions “[n]ot- and that tion shall law, it would make little sense proceedings: any withstanding other “prop- that a is a judge to conclude appeal to the circuit expedited confidential necessary part[y]” proceeding, to a er or court shall be available providing is to authorizing very purpose of which avoid denies an order whom the court actions. parent notice of child’s notice.” Va.Code an abortion without added). guarantees confi- 16.1-241(V) Similarly, explicit (emphasis § judicial bypass provision dentiality judged against argue when Appellees obviously trump general rule standards, Virgi- II the Bellotti are juvenile proceedings that court records inadequate confidentiality guarantees nia parent. inspection to the child’s open for only “proceedings” makes the law 16.1-300(A)(3). And, § track- See Va.Code guarantee explicitly not and confidential does itself language of the notice statute ing the Appel- confidentiality court records. of the maintained confidentiality is to be However, the Chief at lees’ Brief of “Notwithstanding any other Court, in Supreme his Virginia the Justice of 16.1-241(V), law,” Virginia Su- § the id. judi- head of the “the administrative role as cus- “[t]he has instructed that preme Court 4,§ has system,” Art. VI. cial Va. Const. confidentiality which tomary exceptions to issued, Executive through of the the Office Virginia into Code found or read are Court, Secretary specific instructions of the applicable to are not §§ and -305 16.1-302 handle judges clerks who will 400, 434. at bypass proceedings.” J.A. these parental notification law cases under the confidentiality protections imposing These pro- all records and they shall ensure that pro Virginia statute provided for the strictly The kept confidential. ceedings be Supreme Virginia Court mulgated by the judges and imposed upon Chief Justice stat adequate to sustain a would be adhere to the most obligation clerks to sustain ute, they clearly adequate confidentiality,” “deep rigorous standard of Indeed, provision at issue here. 433-44, interpreted the at see J.A. (and two-parent notice bypass to the the “[confidentiality proceedings the of “[proceedings” only that Hodgson provided “a proceedings)” those records of “confidential,” and did of the court by Virginia Code guaranteed specifically confidentiality the provision for explicit make 16.1-24KV),” (emphasis at § J.A. records, Hodgson, see added). of court Stevens, J., for (op. of 428 n. Court instructions Virginia Supreme The 6(c)(iii) Court) the (quoting subdivision the objection that appellees’ second answer also readily statute), Minnesota be circum- confidentiality will provisions the approved statute. ju- Virginia by of the other sections vented Third, parental notice Virginia’s which, guaranteeing “con- while code venile minors’ expeditious resolution provides juvenile proceedings, also fidentiality” in its lower Virginia Supreme Court the Under Ohio bypass petitions. that, in accor- clearly contemplates court was the trial courts Akron days of practice five business long decision within established make its dance with the Rev. petition, Ohio filing the minor’s Relations and Domestic Virginia’s Juvenile 2151.85(B)(1); appeals the court of § Code on Courts, the decision J.A. at appeal with- a minor’s required to docket was end usually be made at the petition will 2505.073(A); court § and the days, id. four filing: days of hearing within four held required to render a decision appeals was denying petition granting or The order docketing appeal, id. days of within five hearing at the end should be entered law, comparison, requires by Virginia IN ORDER PRO- using the form entitled bypass petition minor’s to hear the the court AU- JUDICIAL CEEDING SEEKING in no event later but practicable “as soon as copyA OF ABORTION. THORIZATION filed,” and days petition than four after petitioner form is attached. of this appeal of a provides that a minor’s it further copy with an attested provided should heard and decided “shall be denial the court. the order she leaves before appeal days five after no later than 16.1-241(V). Because filed.” Va.Code. added). Else- (emphasis J.A. appeal is for decision on Virginia time frame Virginia guidance, the Court where only the date that the predicated a deadline acknowledge that the lack of does delay any appeal does not allow files her a court to deciding petition allow docketing appeals in court of advisement, but the petition under take the longest interval appears that appeal, it “exercising the pointedly cautions that court by the statute between contemplated certainly liberally con- option’] [‘advisement petition and the resolu- filing of her a minor’s urgency proceedings, flicts significantly appeal may well be tion of statutory frames” tight time reflected Thus, the Ohio statute. than under shorter delay adjudicating a long a and that “[t]oo are, anything, procedures Virginia’s bypass im- petition could have constitutional expeditious than the Ohio likely more to be The unmis- 445-46. plications.” J.A. upheld procedures possi- implication is whenever takable II.13 Akron ble, within the petitions should be resolved nonetheless Appellees contend four-day required for hold- statutory period provide suffi- Virginia statute does required to sustain hearings. No more is ing by- of minors’ expeditious resolution ciently challenge. against a facial the statute because, although requires it pass requests by upheld the Court bypass provision by court heard the district petitions that give only that the court Hodgson required express- filing, it not days does within four petitions and resolve precedence bypass to petitions must be ly quickly such specify how at 428 Hodgson, 497 U.S. promptly, them see does, however, Virginia statute decided. The Stevens, J., (op. for the n. given proceedings “be bypass command that 6(c)(iii)-(iv) Court) (quoting subdivision pending matters so precedence over other statute, to requiring the court Minnesota promptly decision may that the reach a court over petition “precedence give the minor’s delay to serve the best and without in order may the court pending matters so that § other 16.1— interests of the minor.” Va.Code delay” and without (V). promptly a decision guidance given by reach Additionally, busi- Moreover, by calendar —rather than reference to might the fact lated assume from one day except perhaps days, when the last for trial court the Ohio statute’s deadline that ness.— the time Sunday, Saturday, or period falls on a only days explicitly counts business decision may frame legal holiday, case the time in which days, that all of the references not calendar day. Va.Code days. expire the next business on "days” are to business in the Ohio statute day (stating a[of when the "last up § 1-13.3:1 reading, take a minor Under a it could a by ... falls on Satur- period] statute time fixed days to obtain to 22 under the statute calendar day holiday, any on which Sunday, legal or day, requirement. judicial bypass of the notification by stat- closed as authorized clerk’s office is the ute,” Virginia's bypass provisions nowhere refer expire the next will on the time frame days, reasonable to and therefore business day). business expedited frames are calcu- assume that its time an minor to obtain court to authorize the appeal”). ... “expedited providing for an any specific time frames if the court that she was prescribe determined did It not or decide had to hear in which the court at 427 n. S.Ct. 2926 497 U.S. mature. Similarly, one-parent Court) petition. Stevens, J., minor’s (quoting- for the (op. of by in Ash- upheld statute 6(e)(i)). statute, Virginia’s by subdivision frame specify a time apparently did not “[ajfter contrast, hearing, a a provides croft bypass petition. deciding the minor’s perform may physician a judge authorize 2517. Neither of n. at 479 upon finding that the minor is insufficient provisions was considered these capable giving informed con- mature expeditious resolution of to ensure proposed to the abortion.” Va.Code sent so consid- have no requests, and we reason added). 16.1-241(V) Appellees (emphasis § us. provision before er the is crucial because argue that this distinction may judge still Appellees contend that “may,” rather of the term than Virginia’s use language of the statute clear flout the “shall,” Virginia maturity confirms that the Virginia cautionary instructions deny discretion the court vests decision for and withhold Supreme Court bypass petition, and minor’s mature hearing a case under time after indefinite Virginia alone discretion renders inappropriately argument only Act. This face. unconstitutional its judges to the a form of lawlessness ascribes Virginia, it is also of the Commonwealth today that have concluded We challenge facial in the context of a irrelevant Supreme Court would not II, See Akron to this statute. Hodgson to satisfies (“Absent a demonstrated maturity bypass, and this is provide a also defiance, abuse or State pattern of where, case, the stat in this especially so mandated judges will follow expect that its by a fuller best interest includes even ute event, requirements.”). procedural follows, supra. It discussion pass. See state, bypass petition according every therefore, provide does that where the state Virginia courts decided heard and does, do bypass, we maturity has, fact, no later been decided thus far of some presence that the residu believe Appellant’s day filing. fourth after than the require a “ma judge in the discretion al Reply Brief at 5. when such notify ture” minor to be- only relevant distinction possibly works an interest undue her best in Akron Ohio notice statute tween the right. mature minor’s abortion on a burden consent statute the Bellotti II which satisfied in a said facial certainly cannot be itAnd Virginia’s requirements, and there are no circum challenge either that provided bypass. The Ohio maturity valid, act would be such an which stances finds, convinc- clear and “if the court Salerno, 481 U.S. at evidence, is suffi- ing complainant provision poses substantial ob that the enough informed to ciently and well mature a right “in abortion to exercise the stacle abor- to have an intelligently whether decide cases, Casey, 505 U.S. large fraction” tion, issue order authoriz- court shall the Thus, view, 895, in our the 2791.14 perfor- to the complainant to ing the consent constitutionally re Virginia courts are not of an abortion mance inducement stat to construe Commonwealth’s quired the guardian, or parents, notification of the all juvenile courts of deprive 2151.85(C)(1) so as to the ute § Ohio Rev.Code custodian.” par to the to mere added). discretion the Minnesota Similarly, (emphasis a mature minor. of even Hodgson required the ents statute at issue the 1, governing until the standard remains dard supra note the circuits discussed 14. As otherwise, explicitly holds Supreme Court facial standard for split whether the Salerno over unnecessary n. it is Manning, F.3d at 268 challenges context after applies in the abortion case, Hunt, question this be- resolve this for us to Manning F.3d Casey. v. See either the Salerno 1997). plaintiffs meet (4th sug- cannot cause Although our circuit Cir. n. Casey the standard. standard or Manning stan- gested Salerno in dicta in existing however, legislature had amended comfortable, state areWe maturity provi bypass “may” and statutory to read the Commonwealth’s term “shall” reasonably interpreted to re be sion could “may” be required that governing statute minors, and bypass for mature quire notice fact, permissive). In the Vir- interpreted as alone to sustain the be sufficient this would interpreted the recently ginia Supreme Court challenge. appellees’ facial against mandatory, despite the “may” to be term interpret yet to Virginia courts have The elsewhere within of the word “shall” inclusion authoritatively,15 under estab but Virginia Harper v. statute. See that same statutory Virginia inter principles lished Taxation, 250 Va. Department of a matter of common if not also as pretation, (1995). construed, 892, 895, So S.E.2d “may” can that the word parlance, it is clear course, bypass provisions would statute’s mandatory.16 Compare as be construed those found within indistinguishable from be Ieyoub, 109 F.3d Causeway Medical Suite Hodg- II and upheld in Akron the statutes Cir.1997) (5th (rejecting con similar son, constitutionality would and the statute’s statute where of Louisiana struction “may language judge a Virgi- utory authorize reject appellees' contention that 15. We upon has, a find- physician perform an abortion” in its administrative Supreme Court nia reasonably interpreted maturity ing maturity authoritatively can construed the capacity, judge such an Appellees' shall authorize discretionary. Brief at mean that the bypass See as by issuing except an abortion would argue forms for where such Appellees’ According place prohibited by provide a law. by juvenile courts which otherwise be use Virginia legislature may argument, mature to well has found a minor the court that "may” indicating petition permissive that the term either a box have chosen the check indicating petition itself, that the granted Virginia the abortion or a box statute authorizes denied, definitively paren- con- merely the Commonwealth has "to act without the minor this, discretionary. maturity bypass to be strued the Bellotti II. Given tal consultation” as in (citing forms at J.A. Appellees' "may” Brief at 7 had using than would have "shall” rather 454). However, provided were not judges these forms requiring authorize abor- the effect of appellees' explanation, affirmatively as they to the courts without even where tions fact, significantly, laws, would have us believe. prohibited other state forms, guidance with the distributed written Virginia’s regulations on third-trimester strict specifically Supreme advised its Court Appellant’s Brief at 29-30. Inter- abortions. courts: may lower problem estingly, recognition kind of of this subconsciously, the Su- underlay, suggests even if '‘may” that the statute The use transposition of the terms judge preme own possibility could Court's contemplates the Pennsyl- Casey "may” despite finding peti- and "shall” in itself. deny petition, that the provide, plain- possibility did is reflected there at issue mature. This vania statute tioner is here, language constitutionally required tiffs contend is our form order. progeny such a refuse consent raise concerns about that if both of the minor’s and its abortion, authorize a disposition. the court "shall” to the added). hearing (emphasis perform The materi- after a physician J.A. at the abortion explain the nature of the went on to the minor is ma- als then it is determined that in which that would be raised Casey, constitutional issues ture. See Thus, Virgi- discretionary maturity bypass. Notwithstanding use of (Appendix). statute's Supreme purport "shall,” to authorita- Court did not nia the Court described the word judge authorizing tively (at according construe the statute as least as if it were deny to a to exercise his discretion to permissive: arguments) plaintiffs' Rather, acknowledged exis- mature minor. guardian provides If neither a nor question important tence of an consent, perfor- authorize a court might possible one construction arise from upon an abortion a determination mance of the statute and it left the resolution capable young is mature and woman statutory constitutional issues construction and giving and has in fact informed consent of given Virgi- judicial process. Preface to the Cf. consent.... her informed Materials, (ex- at 389 J.A. nia (emphasis (joint op.) at Id. by the plaining that of the issues addressed some added). Hodgson, 497 U.S. at Accord clear, definite resolution” materials "have no J., Court) Stevens, (op. for the of S.Ct. 2926 (stating present intended to and that the materials are that, statute con- under the Minnesota issues). “competing arguments" on those by- mandatory maturity taining and best interest Indeed, authorize” an abortion argued passes, the “court can the Commonwealth has 16. or the minor is mature notice when proceedings would without that such a construction these is in her best abortion without notice Appellant's at when the appropriate Brief be here. See added)). .(emphasis interest that the stat- 29-30. The Commonwealth asserts interpret the stat- Lambert, are to the courts dispute. beyond be unconstitutionality.17 its ute so as to avoid 1171-72. at reviewing such a as a federal court And construction a reasonable Given yet to especially a statute that has statute — by exists notice statute Commonwealth’s by of interpreted the state courts because be requirements satisfy even it would which the statute’s federal court intervention before mandatory including a a consent statute — obliged to as- would be effective date —we we, as a feder- bypass for the mature minor — follow not that the state courts would sume court, reluctant to invali- be most would al law, but the Consti- only the own also state’s the state facially before the measure date fre- Supreme Court also has tution. As opportunity con- to have even had courts specific context of quently observed Supreme Court As the the statute. strue review of state abortion stat- federal court reminded, partners in federal- our often has utes, courts, a of feder- the federal as matter way comity than of deserve more ism a facial comity, should not sustain alism and hasty by such a invalidation implied be would yet has to be challenge a state statute that to responsibly enacted the Commonwealth’s of courts, a reasonable by state when construed I, See, Akron legislation. e.g., eliminate the construction exists which would J., (O’Connor, joined 468-70, 103 S.Ct. 2481 infirmity. See citations (ar- JJ., dissenting) infra Rehnquist, White 387, 388; Ashcroft, 462 U.S. see also majority improperly treated guing J., Powell, (op. joined of a at issue as blanket requirement consent C.J.) (holding that a statute by Burger, a best interest requirement without “good cause” arguably the court for allowed “no there was maturity bypass because or opportunity to deny minor the to a mature Akron com- [laws] that the to assume reason properly con- bypass parental consent was notify of judges to pel state appeals by the court of strued con- was minor if such mature the minor the court found bypass whenever interests” and “no trary best to the minor’s fairly possible, “[w]here mature because state courts believe that the would reason to to avoid construe a statute courts should impose requirement the consent construe unconstitutionality”); see also danger of on the or veto any type of (4th Hunt, minors”). 119 F.3d Manning v. mature of decisions ruled, Cir.1997) .(“The Supreme Court C. regula- challenges to of the context tions, not assume federal courts should accept, as if we were to Even comply with lightly that state will law, parental notice statute that a decided mandates.”). That such requirements that the identical meet must be available saving would construction must meet in order consent statute necessary the stat- appropriate avoid merely that a notice be constitutional —not proves the error ute’s invalidation II is a a Bellotti that includes (even on its under- court’s conclusion constitutional, purposes district do for as we fortiori requiring a standing the Constitution as analysis in VI.B.—the fact our Part maturity bypass) while the mandatory reasonably can Commonwealth’s courts Virginia state and the courts mandatory federal matu interpreted to include so as statutes state obligated to construe itself still be sufficient rity bypass would in unconstitutionality, both For, avoid their un challenge. appellees’ facial defeat the Common- the courts of suscepti federal courts law, a statute where der authority to wealth would interpretations, one which to two ble court character- unconstitutional, the district “rewrite” what render the statute would act, the latter give legislature validity and the other “There is a presumption the theory will be upon adopted did not intend to violate passage interpretation of an act to violate legislative intent not any provision States, of the United constitution state Michie's Juris- instruments.” either two construc- and if such an act is susceptible Virginia, Statutes, Virginia and West prudence make the same invalid of which tions, one § 56. or federal constitutions of the state as in violation Hoyt, Lowell and Mars erally carefully thought-out William G. “express, ized as the (1976). Assembly.” Virginia General of words Op. at Memorandum observatory Mars on Working from his Arizona, Flagstaff, Lowell became

Hill in life. The teemed with convinced that Mars VII. to him a planet’s surface seemed lines on the funda- no more confers Our Constitution canals, huge planetary of vast network relief brought into than those rights mental Perhaps surprising- system. distribution mother and requiring that the by a statute Mars bore theories on ly, the astronomer’s of child be informed teenager of a father on uncanny to Lowell’s life resemblance to terminate her daughter’s decision Earth, engineering feats the extraterrestrial A by mother father abortion. pregnancy late of the mirroring revolution the industrial highest responsibility who assume irriga- century the Martian nineteenth possi- to the fullest entitled calling in life are like those alleviating conditions tion ditches only constitutional solici- measure of ble observatory’s own American found encouragement, tude, but constitutional by Fanned Lowell’s observa- Southwest. They obliged are endeavor. their sacred tions, populated Mars popular in a belief know, life- know, they are entitled root. Id. took By children face. defining decisions truth, course, Lowell, sought scientific of token, Supreme Court has as the the same we, legal, go in search of judges, while reaffirmed, are few there recently held and ethical, certainty. judges, Yet philosophic than that of a wom- fundamental rights more blurred, astronomers, have but no less than herself whether minor —to decide an —even a objects pas- upon of their imperfect gaze to term. We carry pregnancy or not to elusive to those learned Truth is sions. however, that these liberties today, conclude stars, versed in the the law as to those other, compatible, each with fully deep discovery and as it is new clouded requires what the law when complexity. repeatedly characterized as Court itself ev- Judges’ need not resolve observations parent. To the child “mere notice” ery highly-charged debate. Hoffman convinced, otherwise, would be to we are hold (4th Cir.1997), Hunt, this circuit 126 F.3d 575 parent, and from turn child constitutionality upheld of properly very in life when each moment child—at Act to Clinic Entrances Freedom of Access plenary other. Such a in need of the is most prevent Congress acted to in which of cannot be family the Constitution violation of and obstruction access nationwide violence so, right it to be require. Were construed to American See also at abortion facilities. arrogance they who that with would be said (4th Reno, League, Inc. v. 47 F.3d Life foundation rent asun- implacable we had our Cir.1995). today, court sustains the And der. constitutionality Virginia’s parental notifi- injunction by the issued preliminary The of these binding principle cation law. The was in error and vacated. district court philosophy, political is not decisions one entry The case is remanded restraint. but Virginia. favor Commonwealth of the bench do not The astronomers REMANDED. AND VACATED questions as: the answers When all role begin? Where does the does human life WILKINSON, Judge, concurring: Chief end? decisions of the state intimate ex- astronomer, questions perhaps perplexity these turn-of-the-century great deeply so why Americans remain Lowell, plains much to our contributed Percival the answers. On passionately so divided and the vastness of knowledge planets touching profound moral beliefs him, matters named after Pluto cosmos. freedom, sys- a democratic intimate human being first name Percival two letters of its agreement. prospect of forth lifelong pas- tem holds no initials. Lowell’s Lowell’s own compromise that promise is sion, gen- What it does however, Mars. See planet was the reaching and child parent fully though consultation and no one disenfranchises an un- to terminate profound decision the few, partly satisfacto- may be satisfactory to not, I read the This pregnancy. wanted many. ry to law, illegitimate an ease Supreme Court’s here, Virginia the compromise reached The long the core democracy. So exercise Act, only imposes the Notification Parental I under- safeguarded, right is funda- upon the regulation form mildest de- say that democratic stand an terminate right to mental constitutional may continue. bate, margins, at least the § 16.1— Va.Code pregnancy. unwanted moments, debate For all its raucous notification, not 241(V). prescribes Act The more than unify Americans ultimately may parent, informing one consent, requires aof court. Lowellian solution the exemptions for The Act two. contains not where situations emergencies and medical concurring: WIDENER, Judge, Circuit victim of the minor has been the the Act allows neglect. And abuse I. requirement both bypass of the giving capable result, who are and I concur minors in the for mature I concur for to an abortion consent majority opinion. informed notice would be minor an Though petitioners interests.

in her best II. “may” rather says a court object the Act devices, arrive I my would own Left to cir- these waive notification “must” than route. by a more direct result the same certainly susceptible cumstances, Act is a Vir- existing precedent, my opinion, under objection. avoids to a construction infant to an be found ginia which has court array proce- an provides Act Finally, the authorize an has declined mature but seeking to avail safeguards: a dural infant, has request of the upon may act on procedure by-pass herself “may” in discretion. So use abused its may appoint a court or the her own behalf all the statute, which has caused Virginia litem; shall be ad- the minor guardian ad Along here, no moment. is of commotion may request right to of her counsel vised may chosen the line, have the infant same her; represent appointed be counsel route, may have chosen the or she are confi- to the Act pursuant proceedings all however, Since bypass route. expedited an dential; Act outlines a mature procedure for contains by-pass petitions and hearing schedule choose the infant, may she fact that rulings. If appeals adverse deciding from indifference, and matter of notice route is otherwise statute or Act were invalidate not does aspect of the statute on the abor- onerous burdens imposed more it. very different right, we would tion construed, thus Virginia statute As the case. Akron II. indistinguishable our ease sure, compromise legislative To everyone. law does The please here does concurring in MICHAEL, Judge, Circuit satisfy who would those far as to go so judgment: giving of abortion on condition requires Act Notice The Parental who far for those goes it too And consent. notify eighteen under women that unmarried to con- of whether the decision leave they abor- can obtain parents before a minor. solely in hands sult a exception contains tion. The parental notifi- bypassing procedure Virgi- if a however: requirement, some, the notice may be too cumbersome cation the minor judge finds that juvenile court nia But such for others. porous too giving informed capable is mature compromise. nature of things inhere physi- “may judge authorize consent, the after Here, compromise was reached Va.Code an abortion.” perform Virgi- cian public debate. a decade of more than 16.1-24KV). argue that this plaintiffs § promote step to a modest nia has taken judge gives young a discretion to force a mature to obtain abortions women (minor) notice, notify parents parental “may” young woman to without the word mandatory interpreted before she can exercise her constitutional must be as a term. abortion, alone, judg- right judge to obtain an even if the For that reason I concur capable Virginia concludes that she is mature and of ment that the statute is not uncon- However, “may” if on informed consent. means stitutional its face.

“must,” meet I the statute would what be- requirement

lieve is the constitutional that a I. parental mandatory notice statute have a majority agree I with the the Su- judicial bypass for mature minors. preme squarely Court has never held that Supreme

The mandatory United States Court has parental requires directly parental never decided whether a judicial bypass just parental like a Wicklund, notice statute must accord mature minors a statute does. Lambert v. 520 mandatory judicial bypass. majority 292, 1169, 1171, U.S. 137 L.Ed.2d (1997). ignore impli- However, takes this an invitation to as I do not understand cation of the Court’s clear statements that majority how the can this lack of a transform encouraging parental the state’s interest authority” square holding into “substantial involvement abortion decision must proposition for the minors mature give way ato mature minor’s constitutional notify parents be forced to their before exer- right an to obtain abortion. It then over- cising right their to choose an abortion. See consequences (physical looks the harmful twenty ante at 367. This flies-in the face of abuse) psychological surely that will befall years by of clear indications the Court that many mature minors if all are forced to tell rights mature minors share the same parents their of their wish to have an abor- exercising right. adult women in the abortion consequences tion. harmful These cannot be squarely I believe there is little doubt ignored Casey they under must be presented issue, with the the Court would determining whether a statute considered require mandatory judicial bypass for ma- poses right. undue burden on the abortion an ture minors. majority recognize Yet the refuses to that a Supreme insistence on the Court’s mandatory parental notice statute without a preservation of a mature minor’s constitu- brings prospect of abuse and right tional to obtain an abortion free of large fraction intimidation for of mature origins in obstacles has its young who choose an women abortion but 3035, Baird, 622, 647, v. U.S. notify parents. who do not wish As (1979) (Bellotti II). L.Ed.2d 797 In Bellotti result, majority comes to the erroneous II requiring the Court struck dowma statute mandatory lacking conclusion that a statute daugh- be notified of their minor pose would not burden on a undue ter’s desire to before seek she mature minor’s to an abortion. Be- consent, though could obtain even majority I cause believe misreads the attempted Commonwealth Massachusetts thrust of what the Court has said justify requirement ground on the recognize and refuses to the harms that argue that it enabled the court make notice statutes without a man- that an abortion would not be in the minor’s burden, datory join bypass an undue I cannot Writing best interests. for a four-Justice opinion.

in its said, plurality, [a Justice Powell “[i]f minor] However, Virginia statute must be con- mature satisfies court she is and well Virginia enough intelligently strued courts accordance informed to make own, with the States Constitution. Under abortion decision on her the court must United Virginia employs law a statute that the word authorize her to act without consul- “may” interpreted mandatory will be to be tation or consent.” Id. added). While, (emphasis permissive (plurality opinion)

rather than if that is what the notes, majority requires. Constitution this statement did not Since Constitu- requires permit majority, subsequent opinions tion judges state command a approved explicitly was principle vitality This the continued demonstrated Akron Center v. in Akron minors must mature statement Health, 462 U.S. Reproductive pa- an abortion to receive permitted (Akron I), (1983) over- 76 L.Ed.2d See, v. Minneso- e.g., Hodgson notice. rental by Planned grounds part other ruled 453-54, ta, Casey, (“the Parenthood (1990) de- L.Ed.2d (1992). The 2791, 674 120 L.Ed.2d 112 in the S.Ct. Powell identified that Justice fects requiring a statute that there held Court allow a ] Bellotti II [in statute —its failure age the under for all minors parental notice fully and to be mature minor who found case-by-ease determina- a without of fifteen in- decision abortion make the competent to uncon- is mature a minor tion of whether parental requirement dependently its recognized the state’s Court stitutional. without abortion an even when consultation children protecting interest in- considerable best in the minor’s would be notification involvement encouraging parental assumption the predicated terests —are to have as whether weighty a decision requiring any rule for justification the that majority high- abortion, the interest an an decision abortion parental involvement Nevertheless, the today. opinion its lights in interests entirely best on the rests paren- state added, that “these II) Court indicated (emphasis (citing Bellotti child” way to the constitu- give must deleted)). tal interests footnote obtain an minor” to mature right of a tional 398, Matheson, 101 U.S. 450 v. In H.L. 10, 2791 112 S.Ct. n. 428 Id. at abortion. majori- 388.(1981),the 1164, 67 L.Ed.2d S.Ct. Jus- Powell’s concurrence (citing Justice whether to consider opinion declined ty Matheson) (empha- dissent tice Marshall’s judicial mandatory required a Constitution added). sis no- parental in a minors mature bypass for a minor majority that agree with I not ar- did plaintiff tice guid major interest a parents have child’s See id. a mature minor. was gue that she on the decisions, particularly child’s ing However, Pow- Justice 406, 1164. 101 S.Ct. matter of surrounding the choices important by Jus- joined (in concurrence separate ell Casey, v. Parenthood Planned In abortion. may not Stewart) “a State that said tice 895, 833, cases, in all parents notice validly require recognized (1992), Court L.Ed.2d independent decision- providing without or notice parental upheld some it had that can minor to whom maker “on the as constitutional statutes consent is mature she that believes if she recourse minors that assumption” quite reasonable inde- decision make the enough to parents.1 their from consultation benefit otherwise or pendently prior to its referred point Id. at On best interest.” her Repro Akron Center v. in Ohio concurring). decisions (Powell, J., 420, 101 S.Ct. Health, 110 S.Ct. 497 U.S. ductive in a noted Justice Marshall case the same In (Akron II), (1990) 111 L.Ed.2d “not Court was dissent four-vote Danforth, 428 Parenthood II, Planned parental from a exceptions questioning] L.Ed.2d mi- U.S. necessary ... are requirement notice 895, 112 S.Ct. (1976). Casey, 505 U.S. maturity.” their demonstrate able nors only those approved J., Those decisions (Marshall, 428 n. Id. at opt minors to permitted mature statutes for Justice the votes dissenting). When provi- parental notice of the out Marshall’s and Justice concurrence Powell’s bypass. mandatory through sion combined, agreed justices six dissent 510-12, 110 See, Akron notify e.g., required minor cannot a mature (upholding obtaining an abortion. before parents her pregnancy, had 75% about knew cnt who “in reveals study reported in our record 1. A In ma- daughter herself.” told been in ef- laws involvement states without occurs, therefore, posi- cases, jority of having an fect, minors majority unmarried follow, inter- guidance can tive their (61%) or both that one said by the state. par- vention theOf their abortion. parents about knew mandatory judicial contained a agree majority’s because it with the conclusion that the minors). mature This is consis- Constitution allows state to forbid mature prior tent with Court’s statement in Ak- exercising right minors from their to an ron I that a mature minor’s constitutional they notify par- abortion unless first outweighs to an abortion the interests ents. state and that the notify planned about a II. abortion. evaluating constitutionality The Court’s statements these cases Act, majority Parental Notice make clear that once minor is found to be purports apply Court’s test capable making mature and an informed Casey. this test if a Under statute re- choice, given she must be the same consider stricting placing abortion has “the effect of ation as adult woman when comes to path substantial obstacle of a woman’s rights. her constitutional See Bellotti 443 choice,” analy- it is invalid on its face. In its 647, (plurality opinion); U.S. at 99 3035 S.Ct. majority only sis the possible considers one I, 10, Akron 462 at n. U.S. 428 103 S.Ct. effect of a statute that forces mature minors 2481; Hodgson, 497 at U.S. 110 S.Ct. notify having their before an abor- Thus, impose any 2926. the state cannot “exposed tion: that the minors restrictions on a right mature minor’s parents’ [their] views” on the abortion deci- imposed choose abortion that cannot be on Unsurprisingly, sion. Ante at 371. the ma- an adult woman. See Planned Parenthood v. jority finds effect this not to be a substantial (8th Miller, Cir.1995) 1452, 63 F.3d 1460 minors, rights obstacle to the of mature (Arnold, C.J.), cert. denied sub nom. Janklow it concludes that the statute is con- Parenthood, 1174, v. Planned 517 U.S. 116 stitutional. 1582, (1996); S.Ct. 134 L.Ed.2d 679 see also Causeway Ieyoub, Medical Suite v. 123 F.3d majority’s analysis slights The the real and (5th Cir.1997) 849, (Jones, J., 851 n. 3 dis- very consequences require- serious that a (Under banc) senting reh’g from denial of en parental ment of notification without a man- Bellotti II young “[i]f [a the court finds wom- datory many would have for sufficiently an] mature to make the abortion young very good mature women who have decision, that is the end of the matter. Nei- reasons to avoid notice. These rea- ther the court nor the can tell her prospect sons include the fear physical do”). today, principle what to Until this psychological by parents. abuse The every considering led circuit the issue to Supreme spousal Court has held in the notifi- conclude that statute ma- which forbids cation context that these fears have the un- obtaining ture minors from abortions without of placing effect a substantial parental notice is unconstitutional unless path right obstacle in the of a woman’s See, provides mandatory judicial a bypass. many choose abortion. Because mature mi- e.g., Causeway Ieyoub, Medical Suite v. reasonably nor women would have similar (5th 1096, Cir.1997), F.3d reh’g 1104-06 en fears of abuse a under (5th Cir.), banc denied 123 F.3d 849 cert. mandatory judicial statute without a bypass, — denied, -, a such statute is also unconstitutional. (1997); Miller, L.Ed.2d 278 63 F.3d at 1459- 61; Hartigan, Zbaraz v. 763 F.2d A. (7th Cir.1985), equally divided aff'd court, 171, 108 Casey In Court established a S.Ct. 98 L.Ed.2d (1987); determining clear whether a test Indiana Planned Parenthood Affiliates Pearson, restricting abortion could survive constitu- oc. 716 F.2d Ass (7th Cir.1983) (A scrutiny. tional A statute is invalid on its notice statute “constitutionally give juvenile places ... face if it an undue cannot burden on wom- authority court the an’s to have an abortion. An undue refuse to waive notifi- cation despite finding regulation if the the minor is burden exists state has “the mature”). Against background, placing I cannot effect of substantial obstacle very real included factors These an abor- to obtain choice” woman’s path of The abuse. physical tragic possibility Casey, U.S. at tion. Souter, undis is considerable O’Connor, Kennedy, and that there noted Court op. of (joint against a substantial wives JJ.). creates that violence puted evidence A affecting women of those large prevalent, fraction all too obstacle husbands an undue creates regulation every day . It by the further affected women thousands facially unconstitutional. preg burden notification of “[m]ere recognized 894-95, 112 2791.2 S.Ct. id. battering flashpoint for frequently a nancy is family. The number constitu within violence Casey the Court evaluated statutory provi preg during Pennsylvania high incidents tionality battering of a before spousal notification can be worst abuse nancy sion and often an abortion. obtain could Id. woman a married pregnancy.” associated analysis the effects on its focused The Court (citation quotations and internal selecting “married women omitted). notify their wish to do not who abortions evidence Casey also considered Rely Id. husbands.” could or coercion that non-physical abuse by the district factfinding ing on extensive seeking an abortion. from prevent women fac that several court, concluded Court observed: large fraction to dissuade would tend tors devastating forms may fear Many [women] seeking abortions class of women of this hus- their abuse psychological of to one. legally entitled they were even apply did Casey, Supreme Court before even doubt about have some majority seems The 2. context). I the abortion by in standard used Salerno standard burden" the "undue whether overwhelming majority join the for therefore would proper standard Casey is the Casey accepting that the sister circuits regulations, a our doubt of challenges to abortion facial chal applied in facial Manning test v. burden must dicta undue court first articulated our See, e.g., Wom 1997). 254, (4th lenges restrictions. to abortion Hunt, Cir. 4 268 n. F.3d 119 Voinovich, 130 Corp. v. hinges Medical controversy whether on en’s focus of Professional - denied, Cir.1997), U.S. (6th cert. United 187 test overruled F.3d Casey burden” "undue (1998); 2095, 1347, 739, -, L.Ed.2d 496 Salerno, 140 S.Ct. 118 S.Ct. U.S. 107 481 v. States Cir.1996), (10th F.3d 1112 (1987), Bangerter, 102 that which indicated L. v. Jane 697 95 L.Ed.2d 2453, denied,- U.S.-, S.Ct. 117 set of that no challenge must “establish facial cert. 138 (1997); v. Parenthood Act Planned 211 which the under L.Ed.2d exists circumstances C.J.), (Arnold, Cir.1995) (8th Miller, 745, 2095. 107 S.Ct. 63 F.3d 1452 Id. at be valid.” Parent v. Planned Janklow nom. sub denied cert. hood, its Casey clear on is doubts. no such I harbor 1582, 1174, 134 S.Ct. 116 U.S. 517 of a standard forth Court "set that face (1996); Casey Parent Planned v. 679 L.Ed.2d reviewing chal- facial applicability” for general remand), (on (3d 1994), hood, 848 Cir. F.3d 14 Casey, 505 U.S. restrictions. lenges to abortion Ca v. Parenthood Planned stay sub nom. denied 2791; Fargo Women's 876, also 112 S.Ct. 909, 1309, 127 L.Ed.2d 114 S.Ct. sey, U.S. 510 1013, 1014, 113 Schafer, U.S. Org. 507 v. Health 1994); v. Wicklund (Souter, Justice Circuit 352 (O'Connor, (1993) 1668, 285 L.Ed.2d 123 S.Ct. (on (D.Mont.1997) Lambert, F.Supp. 1285 979 stay application S., concurring in denial Washing Dying v. remand) (citing Compassion in ("In striking appeal) pending injunction Cir.1996) (en (9th 790, ton, 9n. 798 79 F.3d provision [in spousal-notice Pennsylvania’s down Washing banc), grounds nom. sub other rev’d on show petitioners to ], Casey we did 2258, Glucksberg, - U.S.-, v. ton circum- in all invalid would be that (1997)). 772 138 L.Ed.2d Rather, re- a law clear we made stances. Circuit, the Fifth even the burden, note that I must also an undue constitutes stricting abortions Salerno, has Casey follow reject court invalid, if, large sole fraction of a‘in and hence must statute notice relevant, oper- determined it will law] [the which cases mature mandatory judicial include choice a woman’s obstacle a substantial ate as ” a facial to survive in order minors (emphasis and second undergo an abortion.’ Iey v. Causeway Medical Suite challenge. omitted)); (citation original) cf. alteration Cir.1997), reh'g 1096, (5th en oub, 109 F.3d Parenthood, Planned Janklow Cir.), (5th cert. de- F.3d (1996) denied banc nied, L.Ed.2d — U.S.-, 139 L.Ed.2d certiorari) J., denial (Stevens, respecting the (1997). has been dictum (“Salerno's rigid and unwise un- rate, even majority claims At even out subsequent cases ignored in properly facially test, statute Dorf, Casey der the context.”); C. Michael side challenging this by proceed Accordingly, Statutes, I valid. Federal Challenges to State Facial Casey. under (1994) (noting conclusion 271-79 L.Rev. 46 Stan. bands, harassment, including “may exposed parents’ verbal to her violence, future threats of destruction views” the abortion decision. Ante at 371. possessions, physical confinement to the burden, By suggesting only a minor home, support, the withdrawal of financial majority is able to ease dismiss with family or the disclosure of the abortion to asserting guide have the psychologi- and friends. These methods of through their children moral suasion. cal abuse act as even more of a deter- majority’s argument fails to acknowl- possibility rent to notification than the violence, edge the serious effects that physical but are women who exempt many young victims the abuse are not from of an abortion has women requirement. [the] notification eighteen. under It does not address the very evidence in the record that a real dan- Id. at ulti- The Court ger physical psychological abuse exists mately danger concluded that large young for a fraction of those women physical psychological facing abuse will) (against who would be forced their large fraction of married women who do not notify they notify their are wish to husbands about abortion, planned spousal considering dangers abortion. These posed the same undue burden on women as a only virtually are not identical to those which giving power the husband veto over caused the to invalidate a his wife’s to have an decision abortion. spousal provision Casey, but way dangers pro- one prospect

Whether the of notification even more itself abortions, seeking young deters such women from nounced for mature minors. These husband, through physical or whether the dependent women are definition on their psychological pressure force or or econom- parents particularly and therefore vulnerable coercion, prevents ic his wife from obtain- to the fear of abuse or coercion. late, ing an until it is too The most detrimental burden of a statute requirement will notice often be tanta- mandatory without a mature minor mount to the veto found unconstitutional in physical would be the risk of harm to the by The women most affected Danforth. by parent. minor There is no doubt that reasonably this law—those who most fear pervasive problem child abuse is our consequences notifying the their hus- they society. pregnant bands that are in the See Council Ethical and Judicial —are gravest danger. Affairs, Assoc., American Medical Mandato- Abortion, ry Parental Consent to 269 JAMA 897, 112 Id. at S.Ct. 2791. The court accord- (1993) (noting there are about 1.5 ingly spousal provi- struck down the notice year million every cases of child abuse in the facially sion as See id. unconstitutional. States). United The Court itself B. recognizes strong relationship between spousal Casey, abuse and child abuse. See said, I majority purports As the to at study, S.Ct. 2791. One apply Casey “undue burden” standard record, per- which is our reveals that six considering Virginia parental whether cent of those minors who did not tell their passes muster. constitutional parents pregnancy about their and abortion See addressing ante at 367. But instead of they feared would be beaten their mandatory parental the real effects of a no- parents majority found out. Yet the never majority tice man builds a acknowledges possibility parent that a easy straw which it finds to knock down. only possible The abuse a child who that she is effect of reveals majority that the considering even considers is that the an abortion.3 Adams, abortion, Spring young get 3. The case of out that woman of she was about to an he shot Idaho, possibility Boule, 13 from illustrates that this is Margie and killed her. See An American being all too real. Adams became after Tragedy, Oregonian, Aug. Portland 1989. repeatedly raped by her father. When he found support. financial denying them provide an home does Virginia statute While eighteen per- record show cer Data meet minors who abused exception for inform their to do who statutory requirements of minors declined criteria, cent these tain being they young feared most so because parents did the concerns address anything, If abuse. exposed to their may be from homes. who evicted women exception an provides psychological only consequences of such potential (1) minor declares for where are more severe those eases or intimidation for abuse (2) “has physician minors, abused and women, than that she even mature minor telling she suspect” that depen- to their reason obvious women adult the abuse (3) reports physician truth fact support. This on their dence § 16.1- See Va.Code the authorities. to Supreme Court by the recognized was many (V). catch will not procedure This minors, espe- “[yjoung pregnant II: to might resort where a the cases home, particularly living cially at those daughter a to dissuade physical abuse to ob- efforts parents’ to their vulnerable abuse, like Child seeking an abortion. and their access an both abortion struct secrecy, an abuse, is shrouded spousal (plu- court.” very reluctant bewill young woman abused in- Psychological abuse and rality opinion). just she has plight to doctor reveal her ma- to a obstacles substantial pose timidation 889-90, 112 S.Ct. Casey, 505 U.S. met. just as Cf. right minor’s ture requirement Further, statute’s Again, the physical abuse. surely as does already experienced must have a minor forcing young considers majority never cases which those misses completely abuse they parents that wish to tell women provoke an might pregnancy aof revelation harmful have such an abortion could receive ex previously did situation that abusive effects. 2791; Mandato- id. ist. paren- worse, consequences illustrate Consent, These Even supra. ry Parental mandatory and discre- power full tal places place permits minors rights mature constitutional minor’s over the tion harmful) (and obsta- significant who physician, more much party, a third hands of path of pa- suasion his moral over than mere veto cles an effective wield unre- sole and young his women’s choice tient’s advanced empirical evidence declaration that a abortion. determination viewable that the dan- exactly plaintiffs This demonstrates credible. is not abuse retaliation, spous- like that third-party ger veto kind large frac- likely a minor’s abuse, dissuade violation rejected as a would flatly al their against Danforth, 428 U.S. minors —forced rights. See of mature tion constitutional exercising believe 74, parents I therefore notify them towill —from is constitution- A exception abuse to an abortion. right the statute’s their judicial bypass, minors mandatory mature protect to inadequate ally they if abuse physical provision over- danger of notification spousal are in like who to to re- parents their wish about allow parents notify Casey, their would in turned coercion, psychological physical abortion. an to sort roadblock a substantial thereby placing mi- abuse, mature some physical Beyond seek who young women path of mature Casey, women nors, the adult like some statute, which type of This abortion. an psychological subject to serious also be will to recourse sure a mature denies sub- pose a or intimidation abuse un- found to the veto courts, “tantamount an right to seek their obstacle stantial Casey, 505 U.S. being forced Danforth.” response In abortion. spousal (discussing 897, intended about notify their statute). a statute Since exposed abortion, young will women some the constitution- undue burden creates battery. of actual short punishment severe women, it is uncon- young of mature rights al forc- include could punishment This every oth- join therefore I would family stitutional. to leave women young ing the considering mandatory bypass the issue and er circuit hold for mature minors consti- tutional). man- parental notice statutes must contain a Accordingly, judg- I concur datory judicial bypass for mature minors. Virginia ment that the Parental Notice Act is constitutional on its face because the term III. “may” interpreted mandatory. must be to be majority suggests mandatory

The IV. necessity a constitutional for the minor, Virginia statute “could mature Wade, quarter century A ago in Roe v. reasonably interpreted (1973), 35 L.Ed.2d 147 bypass for mature minors.” Ante at 382. Supreme firmly Court established that however, majority, does not hold that women have the fundamental constitutional “may” has to be read as “must” right to choose an abortion. Roe v. Wade language the Act. I would so hold. has been under constant assault ever since. Virginia Supreme inveighed against, campaigned Court has It has been past interpreted “may” carry mandatory against, legislated against, litigated permissive meaning. Harper rather than books, against. But it is still on the and one Taxation, Virginia Dept. v. 250 Va. thing place remains clear: a state law cannot (1995), instance, Virgi- 462 S.E.2d 892 right undue burden on a woman’s to have Supreme interpreted nia the term an I think inescapable abortion. that forc- “may” mandatory, in a statute to be even ing parental mandatory notification without though appeared the word “shall” elsewhere bypass on eighteen mature women under within the same because a mandato- right. would be an undue burden on this ry meaning accorded with the clear intent of Thus, done, when all is I said believe the legislature. id. 462 S.E.2d at uphold Court will of ma- 898; Hawkins, see v. also Whitlock Va. ture minors to choose an abortion without (1906) (“[wjhere S.E. stat- parental notification. harmony ute can be construed in with the law, adopt fundamental the courts will MURNAGHAN, ERVIN, Judge Judge construction, rather than one which will ren- Judge join DIANA GRIBBON MOTZ void”); generally der the law Michie’s opinion. Jurisprudence Virginia Virginia, & West (“[I]f § susceptible ... an act Statutes constructions, of two one of which would

make the same invalid as violation of the ... give federal ] and other constitution act, validity interpretation latter America, UNITED STATES (footnote omitted)). adopted” will be In this Plaintiff-Appellee, case that if a noti- concedes constitutionally provide fication statute must BAKER, Charles Michael mandatory judicial bypass for mature mi- Defendant-Appellant. nors, “‘may’ given mandatory must be No. 97-4610. meaning.” Br. at 32.4 Appellant’s Construing Virginia Parental Notice Appeals, United States Court mandatory Act to “may” read will Fourth Circuit.

Virginia courts to authorize abortions for ev- Argued June 1998. ery minor found to be mature. There is no Aug. Decided 1998. question Virginia statute thus be constitution- construed would

al. See Akron provided

S.Ct. 2972 (holding statute which persuaded by Judge I am also Widener's state- minor would commit reversible error. See ante law, ment J., that under court (Widener, concurring). at 385 permission denied for an abortion to a mature

Case Details

Case Name: Planned Parenthood of the Blue Ridge v. Camblos

Court Name: Court of Appeals for the Fourth Circuit

Date Published: Aug 20, 1998

Citation: 155 F.3d 352

Docket Number: 97-1853

Court Abbreviation: 4th Cir.