*1
Michael J. Assistant the cause (John Farmer, Jr., respondents Attorney for J. General of New Jersey, attorney). Carroll,
Michael Patrick submitted a brief on behalf of amicus Jersey Right curiae New to Life. Katz,
James submitted brief on behalf or amici curiae Association, Inc., American Medical Society Women’s The for Medicine, Physicians Reproductive Adolescent Choice and (Tomar, Adourian, O’Brien, Simonojf, Health Kaplan, Jacoby & Graziano, attorneys). Passamano,
Russell J. submitted a brief on behalf of amici Jersey, curiae Life Education and Resource Network —New Li- feNet, Inc., Aftermath, League Abortions of American Families Jersey Family Policy and New Council. Bartlett,
Ann R. submitted a brief on behalf of amicus curiae Jersey New State Bar Association. opinion of the Court was delivered
PORITZ, C.J.
appeal plaintiffs
this
challenge a state statute that
conditions a minor’s
obtain an abortion on
judicial
obtained,
notification unless a
waiver
imposes
but
no
corresponding limitation on a minor who seeks “medical and
surgical
pregnancy
[otherwise]
care
related to her
or her child.”
9:17A-1; §§
N.J.S.A.
seq.
responds
1.2 et
The State
its
“protecting”
minors,
substantial interests in
immature
“in foster
ing
family,”
in preserving
rights
“the
to rear
their
*4
justify
children”
that differential treatment. N.J.S.A. 9:17A-
today
1.2. We decide
that
the classification
Legisla
created
ture burdens
right
the “fundamental
aof woman to control her
body
destiny,” Right
287, 306,
Byrne,
Choose v.
91 N.J.
(1982),
justification
A. 2d 925
adequate
without
and cannot be
against plaintiffs’ equal protection
sustained
challenge.
acknowledge
We
that
the State has a substantial
interest
in
preserving
family
protecting
rights
parents.
When
right
young
woman to make the most
weighed against the
term,
carry
whether to
a child to
personal and intimate decision
however,
connection between the notification
the insubstantial
expressed by
is not
requirement and the interests
the State
emphasize
our decision
statute. We
that
sufficient to sustain the
interests,
it
way
parents’ protected
nor does
in no
interferes with
notifying par-
pregnant
physicians
or their
from
prevent
minors
pregnancy.
young
choice to terminate her
ents about a
woman’s
declaring
unconstitu-
Simply,
effect of
the notification statute
neutrality
respect
of a minor’s
maintain the State’s
tional is to
decisions.
childbearing
parent’s
and a
interest
those
decisions
effect,
affirmatively tip
against the
may not
the scale
the State
compelling
to do so.
right
absent
reasons
to choose
abortion
on,
again,
holding
our
is not based
emphasize,
We also
once
profound questions about the
“presume
do we
to answer the
nor
moral, medical,
implications
of abortion.” Id.
societal
day,
questions
At
those
are left to
I signed into law for Abortion Act was The Parental Notification ninety days thereaf- its terms to take effect on June *5 (codified 145, § ter. L. c. 2 to 13 at N.J.S.A. 9:17A-1.1 to -1.12). date, plaintiffs1 Prior to the sought declaratory effective judgment injunction preliminary precluding and enforcement of court, Cause, proceeding by the Act. The trial Order to Show summarily plaintiffs’ challenge dismissed on a determination that they had failed to demonstrate a likelihood of success on the stayed implementation merits. This Septem- of the Act on 27,1999, pending expedited ber disposition in on the merits Chancery Division and direct certification to the Court. See R. 2:12-1. pursuant The matter is now before us to our Order.
A. The Parental Notification for Abortion Act previously legislative We have adverted findings to the that provide underlying rationale for the Parental Notification Act. specifically, More the Act states: Legislature compelling The finds there exist and State interests important protecting against fostering in minors their own structure immaturity, family preserving protecting rights it aas viable social unit, and parents rear their children. Legislature The further finds that minors often lack the to make ability fully long-range informed choices that take into account both immediate and conse- psychological of then- that the quences actions; medical, emotional, conse- of abortion quences are serious and of indeterminate duration, when particularly ais patient minor; information parents ordinarily essential to a possess judgment concerning exercise of his best physician’s medical child; then- and that daughter who are aware that then- minor has had an abortion better may insure that the minor rеceives medical attention after her abortion. adequate Legislature regarding further finds that consultation abortion is desirable the best interests of the minor. [N.J.S.A. 9:17A-1.2.] ends, requires Toward those physician the Act to wait “at least 48 hours after pending written notice of the abortion has been specified delivered in the manner perform- in this act” before 1 The health plaintiffs centers, care reproductive non-profit professional surgical associations, facilities, and individual doctors who ambulatory provide range wide of obstetric services. are the Respondents General of the Attorney State of New the Commissioner of the New Jersey, of Health Jersey Department (DHSS), and Senior Services and the Director of the Administrative Office (AOC) State”). (collectively, Courts of the State of New “the Jersey minor,” unemancipated 9:17A- ing an N.J.S.A. abortion on “an *6 1.4(a), personally by parent to the the such notice be “delivered 9:17A-1.4(b). “personal deliv physician.” N.J.S.A. Instead ery,” mail to the at the last
notice made certified addressed by parent parent’s bemay and the delivery known with return restricted receipt requested address mail to means a deliver the the addressee, may only which employee postal is itmail, At same time that notice mailed certified authorized addressee. the by mail to at the last known shall sent first class the parent’s also be parent notice sent the of this subsection address. The 48 hour for under period provisions regular begin mail takes place at noon on the next which day delivery shall mailings following the on which the day posted. 9:17A-1.4(e).] [N.J.S.A. explains “parent” Act that The a unless the minor,
means a with care and control the unemancipated parent rights; control, with and then no custodial or if there is no care has parent parent guardian or a minor; or the of the unemancipated person the foster parent standing minor, in loco to the unemancipated parentis “person standing parentis” and a loco (1) biological fostered, consented to and the means that the or adoptive parent of a with the minor; and establishment parent-like relationship formation person’s (3) (2) together in same that the household; that minor live the the the person significant obligations taking responsibility assumed parenthood by person including contributing towards the care, the minor’s education and development, (4) that the minor’s without of financial compensation; expectation support, length in a role for a of time sufficient to have established has been person in nature. bonded, with the minor a relationship parental dependent [N.J.S.A. 9:17A-1.3.] he required parent that not if a certifies Notice is otherwise by setting pending abortion forth has informed about she been 9:17A- received.” writing “in a that notice was N.J.S.A. notarized required attending physician also if “the 1.5. Notice is not unemancipated minor’s medical records certifies in the necessary emergency.” N.J.S.A. to a medical abortion is due made, finding be Alternatively, when that cannot 9:17A-1.6. judicial requirement waiver of the notification may minor seek judge Superior Court. with a by filing petition or motion 9:17A-1.7(a). appointed minor to “court is entitled N.J.S.A. counsel,” 9:17A-1.7(b), proceedings waiver and to N.J.S.A. [that] shall of the minor and be shall confidential and insure the anonymity be pending
given so that the court reach a may over matters other precedence of the minor. so as to serve the best interests decision without delay promptly 9:17A-1.7(c).] [N.J.S.A. extension, granted the minor judge Unless is must rule petition forty-eight on the or motion for waiver within hours оr the application “granted requirement is deemed and the notice shall be waived.” A Ibid. waiver of notification “[i]f must be authorized finds, judge convincing evidence,” clear and that the minor mature,” “sufficiently 9:17A-1.7(d)(1); is N.J.S.A. that the minor being subjected pattern physical, to “a sexual or emotional abuse,” 1.7(d)(2); N.J.S.A. par or that “notification of the 9:17A— minor,” ent is not in the best interests of the N.J.S.A. 9:17A- 1.7(d)(3). Despite statute, confidentiality provision Family Division of Youth and Services is to be informed when a 9:17A-1.7(d)(2). determination of abuse is made. N.J.S.A. When judge waiver, not findings permitting physician does make comply provisions must with the notice perform of the Act before *7 9:17A-1.7(e). ing procedure. an abortion N.J.S.A. Failure to provide required subject the physician notice can the to civil liability brought by in an action a minor’s and to civil penalties ranging from $1000 N.J.S.A. $5000. 9:17A-1.10. requires
The Act also the “prepare DHSS to a fact sheet for unemancipated pregnant distribution to minors seeking who are abortion services.” N.J.S.A. 9:17A-1.8. The fact sheet tois be generally by “written terms teenager” understood and must describe provisions Act, the notification and waiver of the includ ing “procedure by the established the court petitioning for making a Finally, motion before the court.” Ibid. N.J.S.A. 9:17A- 1.11 directs the Commissioner of Health and Senior Services to promulgate physicians rules that must “follow in effectuating the required” by notice the Act.2 September
On the AOC issued regarding a Directive implementation judicial provisions. the Act’s waiver Under the 2 We are informed certification that the DHSS fact sheet was prepared to the effective regulations date of the Act in prior 1999. The September August were DHSS physicians proposed by and filed with the Office petition the Directive, must file seeking an abortion a minor Part, county re Division, [she] “in where Family the Chancery occur, inor proposed is sides, county the abortion in the where No. being AOC Directive sheltered.” county [she] where is the 1999). “Monday 11(A) filing may made A be (Sept. § 10-99 Family the working hours of Friday during the normal through 11(B)(1), of the by a member Division,” § and is handled id. navigating the minor who assists county’s Bypass Team Judicial II(C)(1)(3). § Id. process. of the waiver procedural shoals statute, confidential, required by “and as proceedings All 11(G)(2), §§ The IV. preserved.” Id. minor anonymity [is] an order dismiss shall enter provides that the court also Directive hearing. appear for the waiver fails to ing petition if the minor II(G)(10). §Id. in the denied, may seek review minor petition
If her judges have been Appellate Division Two Appellate Division. denying trial court from orders appeals to handle recalled (Sept. at 1 No. 10-99 Directive Supplement to AOC waivers. two 1999). not later than argument judges must hold oral The parties. Id. from the days receiving the record after business Court, must by this she review minor seek further 3. Should Appeal or Notice for Certification Petition file her Notice of decision,” Division’s days Appellate “within two business why Supreme reasons statement of with “a written along Supplemental Di- matter.” Ibid. review the should Court ... enter Supreme shall provides “[t]he rective further following argument or the days oral judgment two business within at 4. papers.” Id. on the to the Court of the matter submission *8 Proceedings The Trial Court B. infringes a minor’s Act on Notification claim that the
Plaintiffs granted the law equal protection of and to right privacy regulations and the fact 24, 1999. Both on Law September of Administrative Act. of the in detail the requirements sheet explain I, 1, paragraph Jersey New Article Constitution. Plaintiffs statutory provision also claim waiver fails a “to ensure expeditious confidential and alternative to the Act’s notifi- infirmities, requirement....” alleged cation Because of those plaintiffs facially the Act seek declaration that unconstitutional entry permanent injunction of prohibiting and the the State from enforcing the Act. disposition merits,
On
from
on
remand
-this Court
parties agreed that
“solely
the matter should be heard
on briefs
court,
hearing
argument,
certifications.” The trial
after
is-
10,
opinion
1999, sustaining
sued a written
on December
the Act.
Farmer,
BER-C-362-99,
Planned Parenthood v.
No.
1999 WL
1999).
(N.J.Super.Ct.
10,
Div. Dec.
Ch.
The court first
appropriate
considered the
of
applied
standard
review be
in a
challenge
Jersey
facial
directly
but could find no New
ease
point.
caselaw,
Id. at *3. On a
of
review relevant federal
it chose
adopted by
plurality
swpra,
standard
in Casey,
atU.S.
876-77,
2820-21,
714-15,
at
namely,
L.Ed.2d
presents
whether the statute at issue
an undue burden
“
right
large
woman’s fundamental
to choose ‘in a
fraction of the
” Farmer,
1138605,
cases.’
(quoting Casey,
1999 WL
*4at
726).
2830,
supra, 505
U.S.
S.Ct. at
120 L.Ed.2d at
right
privacy
The court next turned to the
of
found
the New
I,
Jersey
paragraph
Constitution within Article
and discussed
this
personal
series of cases related
more
to the
See,
aspects
right.
intimate
e.g.,
Grady,
In re
85 N.J.
(1981) (recognizing
619 Farmer, supra, 1999 WL ing abortions. minors’ access to 1138605, only Supreme Noting that the at California *5-*7. statute, consentyjudicial waiver and that has invalidated explicit right predicated on was court’s decision California Constitution, the trial court decided to in that state’s privacy at expansively interpreted. Id. had not been so our Constitution 925): Choose, supra, N.J. 450 A.2d (citing to Right *6 “ persons ‘possess who consti minors are The court found that ” (quoting v. Dan rights,’ *7 Planned Parenthood id. at tutional 2831, 2843, 788, 52, 74, 49 L.Ed.2d forth, 428 U.S. Court, (1976)), Supreme under Bellotti States but that United 797, Baird, L.Ed.2d 443 U.S. (1979) imposition of permitted the (plurality opinion), has protection of immature minors. rights for the limitations those *7, Farmer, an exhaustive *13. After 1999 WL certifications, record, the AOC including plaintiffs’ review materials, Directives, sheet, and other relevant DHSS fact place burden on the Act does not an undue court held that Jersey Id. New privacy under the Constitution. minor’s rejected equal protection chal plaintiffs’ at *16. The court also minors who choose concluding treatment of lenge, that differential mitigated by cany term is and minors who choose abortion protecting minors interest bypass provision and State’s Ultimately, the Id. at *18. making ill-informed choices. from Act Abortion Notification for the Parental trial court sustained challenge.” Id. at *19. against plaintiffs’ “facial
II
challenge
Notification
their
to the
bring
Plaintiffs
facial
I,
of the State
of the Constitution
paragraph
under Article
Act
presumed
“[Ojrdinarily
Jersey.
legislative enactments
of New
invalidity
heavy
one.”
prove
to be valid and
burden
N.J.
541 A.2d
Township
Stafford, 110
Bell v.
constitutionally
(1988). However,
impinges on
legislation
when
pur-
closely
State’s
more
at the
right, we have looked
protected
ported justification.
id. at
Under the Federal a woman ahas fundamen right tal carry to choose pregnancy whether her term or to Wade, 113, 153, 705, choose an abortion. v. Roe 410 U.S. 93 S.Ct. 727, 147, (1973); Carhart, L.Ed.2d Stenberg 35 177 see also v. 530 914, —, 2597, 2604, 743, — (2000) U.S. 120 S.Ct. 147 L.Ed.2d (“[T]he protection basic right Constitution offers to the woman’s
621 2808, 853, choose.”); at 120 Casey, 112 S.Ct. supra, 505 U.S. Roe). (reaffirming A also has a constitu- woman L.Ed.2d 699 governmental intrusion” from “unwarranted tional to be free life-altering making personal decision. Eisenstadt 1029, 1038, Baird, L.Ed.2d 362 405 U.S. S.Ct. (1972). case, equally rights belong important in those Most this 417, 435, Minnesota, 497 Hodgson v. U.S. adults and to minors. (1990). 2926, 2937, 111 L.Ed.2d As stated Supreme Court: being magically rights one into when do not mature and come only Constitutional majority. age adults, as well as Minors, protected attains state-defined rights. the Constitution and constitutional possess [Planned Parenthood v. U.S. Danforth, (1976).] L.Ed.2d *11 below, Nonetheless, may by State recognized as the court in rights of her place on a minor’s exercise certain restrictions Farmer, immaturity. supra, protect from her own order her 1138605, Bellotti, 635, 99 (citing supra, 443 at *7 U.S. 1999 WL at 808). 3044, L.Ed.2d at S.Ct. at 61 paren- relating parental consent restrictions both
Various Supreme tal have been discussed United States notification v. Parenthood beginning in a of cases with Planned series 52, 2831, at 49 L.Ed.2d Danforth, supra, U.S. at 96 S.Ct. at they our consideration of the state Because are instructive to 788. challenge, we review them here. constitutional A. Consent Statutes Supreme Court ad- Danforth,
In Planned Parenthood
constitutionality of a state statute
for the
time the
dressed
first
reject-
mandatory
provision, and
parental consent
that contained a
minors from
part
prohibiting unmarried
ed that
of the statute
pregnancies
during
of their
procuring
the first trimester
abortions
2844,
75,
49 L.Ed.2d
Id. at
96 S.Ct. at
parent’s
a
consent.
without
a
could
determined that
state
at
of the Court
808. Five members
pregnancy to
subject
to terminate her
a minor’s
not
parent’s
justification
absolute veto “without a
sufficient
74-75,
2844,
restriction.”
Id. at
623
Health, Inc.,
Reprod.
parent.
Akron v. Akron Ctr.
City
one
for
of
4,
687,
416,
2481,
4,
n.
422 n.
103
2488
76 L.Ed.2d
462 U.S.
S.Ct.
(1983) (Akron I),
Casey,
part by
4
505
n.
overruled in
698
833,
2791,
Although
112
Most perform physician ing parent’s one consent before a can unemancipated Casey, supra, 505 U.S. at on an minor. abortion at 728-29.4 That statute S.Ct. at 120 L.Ed.2d passed permitted bypass it muster too because sufficiently she mature approval if the minor could show that was decision, in her or that the abortion was best make the abortion Ibid.; at 120 L.Ed.2d at id. at 112 S.Ct. interests. holding core of Roe: "The most notable for its reaffirmation is Casey her-pregnancy right most central to terminate before viability woman's we cannot Roe Wade. is a rule of law and It component liberty principle 710. also at Casey renounce.” Id. at 112 S.Ct. L.Ed.2d evaluating whether a law violates a woman’s a new standard for established regulation choose, an undue burden is, whether the "state imposes this Id. at a woman's make decision.” ability L.Ed.2d at 713.
624 C.J., (Rehnquist, judgment in in concurring part 776 and dissenting part). in
B. Notification Statutes Matheson, Supreme approved H.L. v. Court Utah ‘“[njotify, required physician possible, statute that if parents guardian upon or of the woman whom the abortion is to be performed, 398, 400, if is a minor....’” 450 she U.S. (1981) (quoting 67 L.Ed. 2d 393 Ann. Utah Code 76-7-304(c)(2)). § determined that Court the statute was applied unemancipated “living constitutional as an minor who is dependent parents” any with and her has and not made “showing maturity as to her or as her to her relations with 407-11, parents....” 1171-72, Id. at 101 at S.Ct. 67 L.Ed.2d at later, years 397-401. Nine unduly the Court invalidated as bur provision densome a in a notification statute that mandat unemancipated ed written notice both an minor judicial bypass providing procedures. Hodgson, without at 110 at U.S. S.Ct. 111 L.Ed.2d An at 370-71. alternative section of the statute that a bypass process contained majority. was sustained five-member Id. at 110 S.Ct. at (O’Connor, J., 111 L.Ed.2d at concurring part in concurring judgment part); 499-501, in id. at at S.Ct. 2971-72, J., (Kennedy, 111 L.Ed.2d concurring at in the judgment part dissenting part).
Subsequently,
approved
an
one-parent
Ohio
notifica-
judicial
provided
tion statute that
bypass
and met the Bellotti
II,
criteria for a consent statute. Akron
supra,
C. The
statute,
challenge
the United
to a notification
When faced with
perceived distinction be
Supreme Court has relied on a
States
notification, namely
parental
that a
pаrental consent and
tween
imposes
than does a
a more onerous burden
consent statute
496, 110
supra,
at
Hodgson,
497 U.S. at
S.Ct.
statute.
notification
J.,
judgment
(Kennedy,
in
concurring
at
111 L.Ed.2d
400
holding that a consent
part
dissenting
part).
in
After
in
and
that a
bypass procedure, the Court reasons
statute must include a
acceptable.
judicial bypass
be
must
notification statute with
511, 110
II,
at
requirements,
minimal due
satisfy
process. We see
little risk of erroneous
under these
no
need to
deprivation
provisions
require
safeguards.
additional procedural
[Akron II,
517, 110
U.S. at
S.Ct. at
at
supra,
422.]
111 L.Ed.2d
judicial
Nor
bypass thoroughly
were the burdens of the
examined
majority
There,
Hodgson.
in
the Court reviewed Bellotti
notifying
parents
abortion,
decided
one’s
about an
as in
states that
notification and consent statutes have been
Casey simply
parental
on the
"based
reasonable
will
upheld
that minors
benefit from
quite
assumption
consultation with their
and that children will often
realize
parents
not
that their
have their best
interests at heart.”
Id. at
S.Ct. at 2830,
L.Ed.2d at 726.
obtaining
taxing undertaking than
consent
far less
Hodgson, is a
abortion,
at 499-
Hodgson, supra,
in
497 U.S.
as Bellotti.
for an
noted,
the two-
at 403. As
at
111 L.Ed.2d
110 S.Ct.
constitu
Hodgson
in
was found to be
parent notification statute
parental
prerequisites for a
consent
it
tional because
satisfied
497-98,
2970,
Finally, that the United States we observe process on due consent and notification statutes reviewed states’ argu- parties’ equal protection grounds without discussion body offers little consequence, that of caselaw As a ments. classes of concerning the treatment of different guidance seek an protection principles i.e., those who equal women under — (related surgical care medical and those who seek abortion and/or childbirth). pregnancy Ill not legislation that is similar but enacted Other states have Act. Courts Jersey’s Parental Notification to New identical us, *16 now before considered the issues have therefore those states provisions that in the context of state constitutional generally today. inform our decision correspond ours. Those cases also parental examined either courts that have Most of the state federal have relied on parental notification statutes consent or repeat will not states’ laws. We uphold their caselaw already we have it tracks cases in those cases because discussion 901, See, 903-04 e.g., Anonymous, re 531 So.2d In considered. (Miss. Fordice, 645, (Ala.1988); 716 So.2d 656 v. Pro-Choice Miss. 628
1998); 424, 784, Anonymous, In re 251 Neb. 558 N.W.2d (1997). however, Recently, California and Massachusetts have rejected, on grounds, parental state constitutional variants of containing judicial consent bypass provisions. statutes American Academy 307, Lungren, Pediatrics v. 4th Cal.Rptr.2d Cal. (1997); 940 P.2d 804-05 League Planned Parenthood Gen., (1997). Attorney 424 Mass. 677 N.E.2d Court, Supreme relying part Massachusetts Hodgson, supra, 417, 110 atU.S. S.Ct. at 111 L.Ed.2d at invalidated a two-parent requirement, consent one-parent but allowed consent because [t]he burden ... on a minor to seek and obtain the consent of both can judicial her,
force even when one consents, to turn to the parent bypass relief---- To that a minor follow such a when require process purpose consent is fulfilled the consent of one is to burden the minor’s parent rights justification. constitutional without adequate League,
[Planned Parenthood 108.] 677 N.E.2d at supra, however, Lungren, highest California’s court relied on that explicit guarantee state’s constitutional privаcy in determining require parental whether California could consent before a minor could Lungren, obtain an abortion. Cal.Rptr.2d law, P.2d at 816. Under California impinges upon “when a statute right, legislative constitutional findings regard with to the need for, of, probable or statutory effect provision [are not] consid ered determinative for purposes.” constitutional Id. at 824. Thus, the court examined the state’s claim [the] restrictions statute imposed by minor’s upon constitutionally right of protected privacy necessary and emotional protect physical pregnant [and health of a minor held that those were] restrictions undermined by the circumstance that California law authorizes a minor, without parental consent, to obtain analogous medical care and make other decisions important contexts greater at least psychologi- risks to pose equal emotional, and physical, cal health of a minor and her child as those the decision to posed by terminate
pregnancy.
[Id. 826.] The court was unable to alleged reconcile California’s interest in “a minor’s psychological emotional or respect health” in abortion decision with the state’s silence on a minor’s decision to *17 In the up adoption. Id. at 827. give give or to her child birth vein, emancipation variety of medical the existence of same claim further undermined the state’s applicable to minors statutes “necessary ... to sustain consent statute was that Ultimately, Lungren held relationship.” Ibid. parent-child “adequate justification for put forward that the had failed to State right privacy pregnant on a minor’s the statute’s intrusion Id. at 831. under the California Constitution.” IY I, Jersey paragraph of the New Constitution Article provides: and have certain natural and
All
nature free and
pеrsons
independent,
defending
rights, among
enjoying
life and
which are those of
and
unalienable
pursuing
acquiring, possessing,
protecting
and
property,
liberty,
obtaining
safety
happiness.
...
expansive
“more
than that
language
paragraph
of that
Choose,
Right
supra,
Constitution....”
of the United States
incorporates within its terms
N.J. turn to body in mind that we of caselaw 647. It is with challenge. equal protection plaintiffs’ Byrne Right A. to Choose addressing seminal ease Byrne is this Court’s
Right to Choose v.
Jersey
New
Consti-
rights under the
equal protection and abortion
*18
(1982).
287,
tution. 91 N.J.
Right to
in considering
equal
claim,
the
protection
state
applied
first
analytical
the
developed by
framework
the United
Supreme
parallel
States
Court
cases under the Federal Consti
equal
tution —a
protection
tiered
analysis generally using either a
strict-scrutiny
Choose,
rational-basis or
Right
review.
supra,
305-06,
91 N.J. at
(citing,
450 A.2d
e.g.,
925
San Antonio Sch.
1,
Dist. Rodriguez,
28-29,
1278, 1293-94,
U.S.
16,
(1973);
Wade,
L.Ed.2d
39-41
Roe v.
supra,
163-65,
for the restriction. 99 N.J.
[Supra,
294.]
A.2d
Choose,
placed a woman’s health
Right
the Court
weighed
interests
those
privacy on one side of
scale
Supra, 91 N.J. at
against
potential
interest in
life.
the State’s
government had
held that the
The Parental Notification abortion, treating young an women who seek pose restrictions on carry to differently young it women who decide them than treats balancing test to employ Right to Choose to term. We unfairly differential treatment burdens whether that determine women, violating thereby the State only one class equal protection.6 guarantee of Constitution’s the nature of the inquiry begins with an examination of Our importance of a right. earlier discussed affected We have by created Justice O'Hem finds that classification In his dissent. rationally equal protection related because it is Act does not violate Notification right future, woman’s body control her her right we as a society liberty. consider fundamental to individual Ante at 620- Although 762 A.2d at repeat 626. we will not that discussion here, keenly we are principle aware of the autonomy individual that lies at right the heart of a reproductive woman’s to make strength decisions and of the principle of that as embodied our hesitated, own Constitution. case, We have not appropriate language I, to read the broad paragraph of Article provide greater rights than counterpart. its federal precedents Our make clear that the classification deserving created the statute is exacting scrutiny. most
We next governmental consider thе extent of the restriction on right. fundamental requires The Notification Act a minor parent either to tell a that she intends to have an abortion or to judicial obtain a permitting waiver bypass parental her to notifica- tion. The minors who choose subject abortion are therefore imposed burdens not on minors greater who do not. The burden on the underlying right, the more it difficult is to sustain the State’s classification.
The record
significantly
reflects that the Act
burdens unemanci-
pated
seeking
women
analyzing
burdens,
abortions.
those
we
rely on extensive and detailed
certifications submitted
plaintiffs.7 Mindful that those submissions
presented
have been
legitimate governmental
objective.”
"to a
Post at
From those certifications have whether to longer to make the decision group take much as recognize they pregnant Many are unable an abortion. irregular cycles. frequently have menstrual minors because abortion, unfamiliar- must overcome their arranging for an minors of financial re- system and their lack ity the health-care with the cost and delays time that affect Those factors create sources. statutory the demands of availability an abortion even without of process. notification Department Psychology Program Vice Chair of the of and
Director of the Health Francisco; Esquilin, University Psychiatry, Susan Cohen of California at San Ph.D., Psychiatry, Psychology Training of and Assistant Professor Director of (which part University of Medicine and Jersey Medical School New Henshaw, Ph.D., (UMDNJ)); Deputy Stanley Director of Dentistry Jersey of New M.D., Institute; Holmes, Research, specialist in obstet- Herbert Alan Guttmacher Professor, UMDNJ; D. Darrah gynecology, Associate and Clinical rics and Counselor, Johnson, Parenthood Association Planned Health Educator Officer, Kinsler, M.S., Area; Phyllis Executive President and Chief the Mercer Martin, Jersey; Gerald C. New the Honorable Planned Parenthood of Central Minnesota, handling juvenile, Judge, Sixth Judicial District District Court law, County, family St. Louis probate, and abortion-waiver matters for southern Sabino, Lawyer Minnesota; Minors the Judicial Consent for Jamie Chair of M.S., N.P.C., Massachusetts; Tumberello, R.N., nurse Joel Referral Panel Hill, Center, Jersey; Cherry Cherry New Gerson practitioner. Hill Women’s Gynecolo- Weiss, M.D., Department of Obstetrics and Chair of the Professor Department Jersey Chief of Service of gy Medical School and at New UMDNJ; University Hospital, Schwab Gynecology and Lаurie Obstetrics and Zabin, Ph.D., Family Population Department Health Professor in Health, Sciences, Hygiene with a Joint Hopkins and Public School of Johns Hopkins Department Gynecology Johns Appointment and Obstetrics at School of Medicine. Act, findings, legislative the AOC Attorney on the General relies sheet, Directives, support of courts in and the decisions of other the DHSS fact position. his *21 notify parent, parent In cases where a minor wishes to her notary complete must locate a and the form attached to the DHSS The minor then must take the notarized form and fact sheet. Alternatively, present it to her doctor. the doctor could send restricted, mail, parent notice to the minor’s via certified with the to, by, only accepted caveat that notice can be delivered alternative, parent specified in one the notice. As final provider parent abortion could seek out the and hand-deliver a abortion, extremely notice of but that alternative is onerous for provider may possibility. not be real-world Counterba- burdens, that, against statute, lanced those we are told without physicians suggest young they parent women that should tell a fact, young about their decision and that most women do so. voluntarily the record indicates that most women inform their about their intention to seek an abortion. delay itself, then,
Apart by bypass process from the caused may many pregnancy. a minor seek an abortion months into her difficulties, passage including, time creates substantial others, among range increased costs. Those increases from $500 LMP,9 for an abortion at twelve to fourteen weeks for an $700 LMP, twenty LMP, abortion at fifteen weeks weeks $1000 procedure twenty-two Moreover, for the weeks LMP. $1395 as pregnancies progress, providers perform fewer are available to plaintiffs’ abortions. Studies cited in certifications indicate that gestation the risk of death increases with each week of from nine LMP, twenty explains why weeks to weeks which second trimester performed abortions are hospital. often in a areWe troubled prospect, certifications, attempt- also advanced that in ing or, rights may to exercise their minors elect to leave the State delay significant, may cases where the use unlicensed doctors procedures in procuring unorthodox an abortion. 9 LMP is a medical term of art that indicates the number of weeks since woman’s last menstrual period. *22 however, operate as a a notification statute can important, Most right to to a minor’s exercise of her constitutional functional bar reproductive Casey, supra, 505 U.S. her own decisions. make Cf. 2828-29, (detailing 892-94, 724-25 at 120 L.Ed.2d at at their husbands about their plight women who cannot inform abortions). We know that after the state- will interference from their minor women encounter parents [m]any In to and disapproval, notification. addition parental disappointment
imposed of financial or or emotional withdrawal abuse, support, minor confront may physical decision. actual obstruction of the abortion at 416-17 67 L.Ed.2d 1186-87, at 101 S.Ct. [Matheson, U.S. (Marshall, dissenting).] J., matter, cases, requirement a notification many practical a “[a]s seeking to pregnant a minor deterrent effect on have the same will Ak- a statute.” as does consent exercise her constitutional II, at at 111 L.Ed.2d supra, 497 at 110 S.Ct. ron U.S. (Blackmun, J., at dissenting); Hodgson, supra, 497 U.S. (Marshall, J., concurring in 111 L.Ed.2d dissenting part) in judgment part, part, concurring in the notified, (“A abortion, objects can exert to the once parent who getting an minor ... to bloсk her from strong pressure on the abortion____ circumstances, requirement the notification In such becomes, effect, requirement.”); Indiana Planned a consent Cir.1983) (“Al- (7th Pearson, 1127, 1132 716 F.2d Parenthood legal give parents the requirements do not though notification decision, practical as a daughter’s abortion power to veto their they may.”). matter by pointing to the waiver responds concerns to those
The State young who arguing if there are women provision, in essence young can then those women inappropriate, feel that notification grant from the Superior a waiver petition judge judicial provisions im- waiver requirement. But the notification who, very good reasons on minors pose greater far burdens statute, with their are unable to communicate recognized parents their decision. about instance, young way place
In the first woman must find a process. begin to the the waiver the initial call courthouse Next, Act, attorney, provided by if she chooses to have an as telephone find a time when she can take his or her call she must knowledge siblings. young without her Then the courthouse, get may depend- which be difficult woman must to the ing transportation. complicate To distance access further, may matters she well have to be absent from school and parents finding risk her out that she has been truant order to judicial proceeding. attend a judicial proceeding presents danger itself that the anonymity will A
woman’s
be breached.
realistic concern is
community
recognized
minor could be
members of the
who
*23
hearing.
know her while she is at the courthouse to attend the
A
judge
proceedings
who
in
Minnesota
has handled waiver
concurs
observation, adding
young
may happen
that the
woman
juvenile
attending
hearings.
their own
court
schoolmates
judge reports
teenager’s parents
anony
same
that one
received an
informing
daughter
mous letter
them that their
had been seen in
seeking
judicial bypass.
young
the courthouse
For the
woman
employed
visiting
whose relatives or friends are
in or
the court
house,
may seriously compromise
the Notification Act
her ano
nymity
persons
likely
because those
who see her will
become
suspicious
why
weekday.
about
in
she is not
school on a
See Anna
Mom,
Abortion,
Times,
Quindlen,
1, 1990, 4,
July
§
Dad and
N.Y.
Duluth, Minnesota,
(noting
at E17
that director of
abortion clinic
transporting young
bypass hearings
freight
recalls
women to
courthouse).
neighbors
working
elevator to avoid
and relatives
assuming
expeditious
hearing,
Even
a confidential and
waiver
process
significant delay.
will nonetheless cause
The United
Supreme
acknowledged
“pregnant
States
Court has
that a
adoles-
preserve
...
long
possibility
aborting,
cent
cannot
which
effectively expires in a
pregnan-
matter of weeks from the onset of
cy.”
supra,
dures for by Video-conferencing, suggested problems arise. Justice will dissent, generally A.2d at is not post in his O’Hern Tele-conferencing may prohibitive. could accessible and be cost process arising concerns from the form and extent create due testimony particularly the minor’s proceeding, when —and attorney may credibility important. Representation be —is 9:17A-1.7(b). We provided critical and is the statute. N.J.S.A. attorney compiled, volunteers have been understand that lists of so, and some attorneys be contacted each case but even must 10-99 may immediately Directive No. not be available. See AOC 1999). 11(D)(2) Moreover, attorney (Sept. § must schedule client, when that consultation is a consultation with his or her even Legal representation takes time that place by telephone. to take adequately if only so much counsel is to be can be shortened *24 support convincing prepared with “clear and evidence” 9:17A-1.7(d). Indeed, request. young waiver N.J.S.A. woman’s may protect “to appointment guardian of a ad litem be needed 11(E). Finally, § the minor’s best interests.” Id. based, constitutionally N.J.
appeal to our intermediate courts is ¶ VI, § dissent notwith art. and also takes time. The Const. requirements can be further truncat standing, any if of those few ed. facile” to argues further that it is “somewhat
Justice O’Hern judicial delays by bypass and created complain about burdens young seeking women an abortion without process when exchange telephone calls physician to a notification now travel Although it personnel. medical Post at 762A.2d at 643. with delays already in a minor’s irrefutable that burdens and exist abortion, only with those burdens pursuit of an we are concerned case, by any impedi additional that are created state action. may prevent existing impediments well the exer ments added to unaccepta right altogether. That would be cise of a fundamental adequate justification substantial for the classification ble without by Legislature. created justification protects alleges as that the Act minors State immaturity, preserves family
from their own fosters and structure, protects parents’ rights to raise their children a they in turn appropriate. manner deem We address each claim not and conclude that the values asserted the State are advanced the Notification Act. recognized maturi-
We observe first that the State has a minor’s decisions, ty relating sexuality, reproductive in matters to her treatment, placing adoption. substance-abuse her children for 9:17A-1; 9:17A-4; physi- N.J.S.A. N.J.S.A. 9:2-16. One N.J.S.A. cian us that because woman have immature skeletal informs inadequate pelvic growth, delivery through development and necessary cesarean section is more often than is the case with major surgical somewhat older women. Cesarean sections are Yet, delivery. procedures dangerous than and are more normal section; only require notification of a cesarean the State does not considerably procedure less difficult abortion is burdened Moreover, protecting the name of minors. the State also claims parents provide health information about minor’s otherwise not available. cannot conceive of a better time than before a We major operation fully such as a cesarean section for doctor to be knowledgeable patient’s about health status. The State’s differ- justify. ential treatment is therefore difficult to *25 profes- in the record forth the health care The certifications set making quite capable оpinion collective that minors sionals’ informed, thoughtful about the risks of and the reasons decisions professionals state that for both abortion and childbirth. Those immaturity inability in recognize their own and financial minors children, maturity raising their in the first respect of demonstrate locating family-planning by actually appropriate an facili- instance quite capable providing satisfactory informed con- ty, and are Indeed, Academy points of Pediatrics sent. the American years age indicating that “most minors to 17 are as research provide competent [are] as adults consent to abortion----” alleged young As for the mental-health risks to women who abortion, plaintiffs’ an certifications further indicate that choose greater psychological problems young women do not suffer those carry pregnancies young than the women who their to term. physician, one a minor will be in a better mental state the view of an if she decided whether to involve or exclude after abortion choice, in- opposed to state-mandated others her as choosing offers no evidence that to have volvement. The State notifying parent poses any greater mental- without abortion choosing a child without to a minor than to bear health risk parental notification. having experience judge earlier as had
The Minnesota mentioned granted all bypass procedures indicates that he but with his state’s seeking notifi- approximately petitions six hundred to avoid one of that, group, judge as a women cation. That has found sufficiently capable mature and appear before him are who experience is providing informed consent. The Massachusetts 15,000 cases, There, only telling. of about thirteen even more out dеnial, of those denials were reversed on resulted and eleven Jersey’s suggest New compellingly appeal. Those numbers abortions, only delay and raises the procedure serves waiver expressed Act furthers the state question whether the Notification interests. *26 passed Act was also asserts that the Notification
The State reality communications. The is that facilitate and foster familial justified in many young who are not applies Act women Their reasons notifying parent a about their abortion decisions. parental inadequacy, and environments and include abusive home by plight the American Medical Association’s their is described (AMA) Mandatory on Ethical and Judicial Affairs.10 Council (1993). Abortion, 269 JAMA 82 Council Parental Consent children, that, caring, place the home is a of observes for most love, Yet, report support. and Id. at 83. also states “[f|or may and some ... the home falls far short of this ideal be place physical neglect psychological mistreat- abuse and “may parent to a ... cause ment.” Ibid. Mandated disclosure precipitates harm to the minor” and “often serious emotional crisis, parental anger rejection family characterized severe reasons, recognized AMA of the minor.” Ibid. For those has currently supports for and “confidential care for adoles- need use of health services.” Ibid. cents as essential to their mandating recurring A theme the record is that a law prior to an can neither mend nor notification abortion Instead, parent create lines of communication between and child. parties’ pre-existing relationship that whether it is the determines parent in whether woman involves a the difficult decision fact, presented to seek an abortion. we have been with parents information that in states both with and without mandato- ry parental generally comparably notification were informed laws childbearing amply their children’s decisions. The record about supports plaintiffs’ contention that the Notification Act cannot poor transform a household with of communication into a lines paradigm perfect family. Certainly, American “[t]he State requiring family all talk has no more interest members to with 10Although litigation the AMAis not to this and did not itself make this party judicial submission, we take notice of the cited article to N.J.R.E. pursuant 201(b)(3). The AMA is a of American widely respected 153-year-old society litigation. and has no direct interest in the outcome of this physicians requiring one another than it has in certain of them to live 452, 110 together.” Hodgson, supra, 497 U.S. at Cleveland, (discussing L.Ed.2d at 371 E. City Moore v. 431 U.S. (1977)). 1932, 1935, 52 L.Ed.2d earlier, important, providers already Most as noted abortion encourage parents minors to consult with their or another adult figure. position A 1996 statement formulated the Commit- Adolescence, Pediatrics, Academy tee on explains: American The American Medical Association, Medicine, Adolescent Society College American Public Health Association, the American of Obstetricians and Gynecologists, organizations AAP, and other health reached a have professional consensus minors should not be to involve their compelled required parents although encouraged in their decisions to obtain abortions, should be they pregnancies discuss then1 with their other adults. These responsible objective conclusions result from of current which indicate that data, analyses *27 legislation mandating involvement does not achieve the intended benefit of promoting communication but does increase the risk of harm to the family delaying adolescent to access medical care. appropriate Right Considering [The Abortion, Adolescent’s Care When 97 Confidential (1996) (citations omitted).]
Pediatrics 746 minor, younger likely We are also informed that the the more notify guidance it is that in she will and seek from an adult her fact, ninety percent age notify life. In of fifteen minors under parent least one about their intent an abortion. Those to obtain suggest places numbers the Notification Act burdens on goal illusory minors in furtherance of a that is for families some unnecessary many for others. Finally, protects right the State contends that the Act of parents custody to direct the care and of their children. See dispute right N.J.S.A. 9:17A-1.2. We do not to raise government their children with limited interference as described as, in Supreme cases decided the United such States Court Yoder, 205, 219, 1526, 1534, Wisconsin v. 406 U.S. 32 S.Ct. (1972); Sisters, Society L.Ed.2d Pierce v. 268 U.S. 1070, 1078(1925); Meyer 69 L.Ed. Nebraska, 390, 399-400, 625, 626-27, 67 L.Ed. U.S. (1923). Here, however, minors 1045-46 wish exercise one parental involvement. As right independent of
fundamental has observed: commentator for the [referenced above] stand together, decisions
Taken
Supreme
upbringing
child,
of a
with a
not interfere
parent’s
the State may
proposition
right
nothing
or even be informed about
about
parent’s
prevent
but they say
rights.
own constitutionally
child’s exercise of her
protected
Protection and the
Fails:
Where
Privacy
Equal
[Catherine
Schmidt,
Grevers
(1993).]
Rights
N.Y.U. L.Rev.
Minors, Abortion
leads inexora-
plaintiffs’
certifications
presented
The evidence
statutory reasons for
proffered
bly
conclusion that
to the
by the statute.
are not furthered
requiring parental notification
dissent, wherein
similarly in Akron II
found
his
Blackmun
Justice
any
utterly
that it has
failed
to show
that “the state has
he stated
pattern
deliberately placing its
significant state interest
seeking
pregnant minor
to exercise
path
obstacles
challеnged
pregnancy.
to terminate
her constitutional
merely ‘poorly disguised elements
...
provisions of the
statute
” 497
at 525-
discouragement
the abortion decision.’
U.S.
(Blackmun, J.,
dissent-
y I, Jersey does not paragraph of the New Constitution Article unjustifiable impose disparate burdens on permit the State when fundamental constitutional different classes of women to demonstrate a rights hang in The State has failed the balance. Act, for Abortion need for the Parental Notification substantial through capable of realization even that the asserted need *28 offer provisions. Nor does the State enforcement of the Act’s distinguishing seeking minors adequate justification for between relating seeking surgical and care and minors medical an abortion compel- contrary, plaintiffs present pregnancies. To the to their parents nor the interests ling that neither the interests of evidence Act, and further that minors are advanced the Notification of only imposing special burdens on principled basis for there is no seeking minors an abortion. that class of Accordingly, enforcing we hold that the State’s interest statutory classification fails to override the substantial intrusions imposes it right a woman’s fundamental an to abortion equal and is unconstitutional protection principles under set forth in our State Constitution.11 Court, Division, judgment of Superior Chancery
reversed.
O’HERN, J., dissenting. By casting this statute as one that strikes at “the fundamental body destiny,” of a woman control her and ante at uncomplicated 762 A.2d at Court finds the of act notification or waiver thereof create undue burden on reproductive rights. language gives misleading The Court’s impression unduly regulates that the statute or forbids the abor- procedure By characterizing tion itself. The statute does not. terms, the issue such broad has fоrsaken traditional analysis. Breyer recently constitutional As Justice observed in Stenberg v. Carhart: controversial We understand the nature Millions Americans problem. begins believe life that an is akin abortion conception consequently causing thought the death of an innocent of a child; recoil law that they it.
would
Other millions fear that a law
forbids abortion would
permit
dignity, depriving
condemn
women to lives that lack
them of
American
many
equal
leading
undergo illegal
with
liberty
those
least resources to
abortions with the
suffering. Taking
attendant
risks of
death
account
these
irreconcil-
virtually
govern
able
aware
view,
that constitutional
law must
whose
points
society
opposing
[is
different members
hold
views ...
sincerely
directly
considerable
task.]
[ 530
743..]
914, —,
U.S.
L.Ed.2d
2597, 147
Yet,
judicial power
“[t]o
is a
declare
statute unconstitutional
delicately
Harvey
County
be
exercised.”
v. Essex
Bd.
Free
holders,
381, (1959)(quoting
30 N.J.
A.2d 10
Wilentz v.
Hendrickson,
(Ch.1943)).
Eq.
133 N.J.
legislative act should
be
Gangemi v.
beyond
is clear
a reasonable doubt.
the Constitution
(1957).
10,
1,
Although
I.
reviewing
legislative pattern,
a
the United
In
similar
States
no
Supreme Court has held that there is
federal constitutional
Initially,
impediment
the law.
had
down state
the Court
struck
requiring parental
pregnant
laws
consent
notification before
may
an
In
Central
minor
have
abortion.
Planned Parenthood of
52,
2831,
Danforth,
v.
L.Ed.2d
H.L. v.
450 U.S.
(1981), concerning
Three later cases illustrate that
acceptance
Court’s
parental
requirements
consent and notification
rests on the avail
ability
judicial
of an
bypass option.
effective
In Hodgson v.
Minnesota,
417, 423,
2926, 2931,
497 U.S.
110 S.Ct.
111 L.Ed.2d
344,
(1990),
353
the Court held
two-parent
that Minnesota’s
notifi
requirement,
option
judicial
cation
bypass,
without the
was
However,
unconstitutional.
majority
different
Court also
judicial bypass
held that the
option
law’s
was constitutional.
Id.
423,
day,
at
Finally,
in Lambert v.
520 U.S.
117 S.Ct.
(1997),
approved
notification Act, 293-94, 117 1169. Jersey’s met. Id. S.Ct. New were statute, judicial bypass providing a held that this indistinguishable Jersey’s, passed New procedure that from muster. 1169. The Court constitutional Id. previous fully consistent with its decisions found that result be Center, Bellotti, Id. at supra. and Akron decisions, principle From we derive S.Ct. 1169. those only regulations place an on woman’s state undue burden finding “A of an to seek an abortion unconstitutional. undue is a shorthand for the conclusion that a state burden regulation purpose placing has effect of substantial path seeking abortion of a nonviable obstacle a woman 877, 112 Casey, supra, fetus.” 505 U.S. at Planned Parenthood *31 minors, imposed a would be the Court S.Ct. 2791. Such burden held, requirements fail to include has should involvement II, bypass a sort alternative of the elaborated Bellotti U.S. at S.Ct. 3035. II. provided by
Acting pursuant guidance to the the United States Court, Supreme Jersey has a law Legislature New crafted pro- fully complies requirements. that constitutional has with It judicial one-parent speedy bypass vided for notification with a option. judge considering request A such must make a determi- forty-eight application nation within hours or the will be deemed appeal An granted. expedited to be and confidential is available. Every filing required. No fees are has been effort made 8,1999, implementation September of the Act. facilitate On Administrative of the Courts issued Directive No. 10-99 Director setting specific Superior judges, to all forth and detailed procedures implementation any problem for of the Act. If there is procedures, procedures its with those the Court should correct rather than to invalidate the law. The trial court found that New Jersey’s provided protections law even more than the Lambert by, example, providing statute for a resolution of faster appeal process through immediate mail permitting notice and guardian, parent, minor’s than a rather notified in appropri- be Div.). ate cases. 1999 WL (N.J.Super.Ch. *15-16 Chancery upheld the respects. Division law in all
III.
A.
plainly
law,
Because the law is
constitutional under federal
only question
Jersey
it
whether
violates the New
Constitution.
analysis,
than
simply
Rather
to reinvent
we shall
restate
exposition
principles
Justice Pollock’s
of the
governing the consti
tutionality
legislation
of state
in Greenberg
that
is set forth
Kimmelman,
(1985).
99 N.J.
individual different evils. a court they Whén invalidates protect grounds, saying, statute on due the court is effect, the statute seeks process the state promote contrast, interest means. when a court impermissible grounds, saying declares statute invalid on it is not equal protection legislative Legislature forbidden, means are but that the must write evenhandedly. omitted).] (citations
[Id. 494 A.2d294 explained: rights Justice Pollock “Insofar as most are con cerned, a state statute not violate [federal] does substantive due process reasonably legitimate if the legislative statute relates to a *32 arbitrary 563, purpose discriminatory.” and is not or Id. at 494 analysis concerning A.2d 294. Constitutional “fundamental standard,” rights” exacting equal demands “a ... more while protection analysis “traditionally involves different tiers or levels 564, review.” of Id. at 494 A.2d294. generally
This approach Court has eschewed a multi-tiered to analysis. analysis constitutional Such an “a veil weaves of tiers City, which shrouds issue.” v. [the] essential Matthews Atlantic 648 (1980)(Clifford, J., dissenting). 153, 175, 417 We A.2d 1011
84 N.J. simply hand. the interests at balance lights the differs from Jersey of fundamental under New Constitution analysis Right rights the Constitution. to Choose v. of those under United States analysis (1982). Starting 925] with our decision in [450 91 N.J. 308-09 A.2d 287,
Byrne, (1973), began we Cahill, 473, 491-92, 273, v. 62 N.J. 303 A.2d develop Robinson rights paragraph 1. we 1, Thereafter, an of under article independent analysis Collingswood rejected Ringgold, v. 66 N.J. analysis, two-tiered equal protection (1975)], analyzing balancing in [331 262 and test claims 350, A.2d employed 370 v. the state constitution. Ass’n Weymouth Township Wey under Taxpayers (1976). striking [364 1016] N.J. A.2d In the we balance, mouth Township, govern right, the have the nature of the affected the extent which considered Right it, intrudes and the need for the restriction. public mental restriction upon [450 Cahill, N.J. A.2d v. 925]; to Choose v. at 308-09 Robinson Byrne, supra, [303 273]. N.J. at 491-92 A.2d supra, recogni Our follows from our development analysis basically independent Right to v. tion that the constitutions contain different texts. Choose two Byrne, Hunt, N.J. A.2d see v. [450 925]; at 300-01 also State 91 N.J. supra, (1982) (Handler, concurring) (identifying language 952] [450 J., A.2d textual as the determining first of seven criteria for when to invoke state constitution as an lights). the the is source fundamental From face of two it independent charters, image that New .Constitution not mirror of the United is apparent Jersey paragraph Constitution, 1 of the New which States Constitution. Article Jersey grant rights, is a of fundamental provides: All nature free and and have certain natural and independent, persons rights, among enjoying defending unalienable which are those of and and life possessing, acquiring, protecting pursuing and and of and liberty, property, obtaining safety happiness. paragraph Nowhere do “due phrases “equal protection” process” paragraph Nonetheless, amendment, article like fourteenth seeks appear. against injustice against who treatment those should protect unequal safeguards be alike. To this article 1 like those extent, treated values encompassed of due principles process equal protection. future, as we shall continue to look to both the federal courts past, and other state courts for assistance in The ultimate constitutional analysis. interpreting the Constitution, however, New ours. responsibility Jersey [Greenberg, 294.] 99 N.J. 494A.2d
B.
test,
Applying
balancing
its flexible
Court concluded
Right
Byrne, supra,
Choose
N.J.
450 A.2d
*33
provision in
program
a state’s Medicaid
that restricted Medicaid
funds
paragraph
for abortion was invalid under article
1 of the
Jersey
New
State Constitution.
Id. at
C.
repeat,
requires
balancing
To
the standard
of “the
nature
right,
governmental
the affected
the extent to which the
restric
upon it,
public
tion intrudes
and the
need for the restriction.”
Kimmelman,
Greenberg
supra,
N.J.
immaturity, structure and as a viable social family protecting rights unit, and rear their children. *34 Legislature lack make further finds that minors often the ability fully The long-range into both immediate and conse- choices that take account informed psychological the conse- actions; medical, emotional, of their that and quences duration, are and of indeterminate when particularly of abortion serious quences to a is a that information essential minor; ordinarily
the patient parents possess judgment concerning and that child; of his medical them exercise best physician’s daughter has had abortion better who are aware that their minor an may parents medical attention after her abortion. The that the minor receives adequate insure regarding Legislature consultation abortion is desirable further finds that parental of minor. and in best interests the the
[N.J.S.A. 9:17A-1.2] supported The here are this Court’s State interests listed protecting rights preserving of and numerous the minors decisions 235, 264, Grady, In N.J. re family 426 A.2d See the structure. (1981) concerning reproduction); (advising child in decisions L.A.S., 127, 132, Adoption In re 134 N.J. Children 631 A.2d of Jersey New (1993)(describing parents’ rights); fundamental AW., 591, 599, Family Div. Youth Servs. v. 103 N.J. and of unit”); family (1986)(emphasizing “inviolability A.2d 438 J.C., (1992)(stat Guardianship re N.J. 608 A.2d of governing Jersey’s of ing that the law New Division Youth and “clearly keeping favors with natural Family Services children their custody problems resolving care and within the family”). strongest
Perhaps public policy support for notifi- 9:17A-5, cation can be found in N.J.S.A. a law that has been in effect since 1968: treating of a if more than or, one, any the advice and direction one Upon physician them, clinic, a member of the medical staff of or public hospital, physician obligated but shall not inform the medicine, to,
licensed
be
practice
may,
spouse,
guardian
given
custodian or
such minor as to the treatment
or
parent,
any
given to,
and such information
be
or withheld from the
needed,
may
spouse, parent,
guardian
of minor
custodian
without the consent
even over the
patient
providing
refusal of the minor
to the
of such information.
express
patient
Our final
is
The
consideration
the extent of
restriction.
law
it
too
is
once criticized because
little and criticized because
does
opposed
argue
it
much.
to the
it
does too
Those
law
is
unnecessary.
See Planned Parenthood
ineffective and therefore
Farmer,
Jersey
Central New
IV.
merits, I disagree
equal
On the
protection
with the Court’s
analysis.
infringement
right
“Absent
of a fundamental
discrim
or
class,
against
suspect
protection
equal
ination
is not
if
denied the
legislative classification is reasonable and
bears
rational relation
Glaser,
ship
legitimate government objective.”
to a
Rubin v.
83
299, 309,
(1980);
N.J.
U.S.
preven
is
Clause ...
Equal
of the
Protection
purpose
central
discriminating
the basis of race.” Wash
conduct
tion
official
Davis,
L.Ed.2d
S.Ct.
48
ington
426 US.
96
v.
(1976).
always
equal protection
have
The landmark cases
equal
individual. The
upon disparate treatment of the
focused
similarly
persons
circumstanced
“all
protection clause directs that
Virginia,
Royster
F.S.
Guano Co.
be treated alike.”
shall
(1920).
too,
412, 415,
560, 562,
But
653
See,
Matheson,
e.g.,
412-13,
sions.
supra,
L.Ed.2d 484
428 U.S. at
Danforth,
(written
abortion).
2839-40
consent to
as
Moreover,
I,
discussed
Part
regulate
rights
state
a minor’s exercise of her constitutional
in a manner that
may
would not be
in the case of an adult.
n.
Akron,
V. up, passed To Legislature asking sum has a statute minor, performing physician before abortion on a either the notify parent requirement or waiver of that notification be judge Superior obtained “from a Court.” N.J.S.A. *37 654 any fees, filing the Except specifically waive to
9:17A-1.7a.
proce
Superior
to
the
Legislature left it to the
Court
establish
simple goal
providing
the
accomplish
“[a]ccess
of
dures to
the
can
seen as a
9:17A-1.7f. In what
best be
trial court.” N.J.S.A.
Elstad,
298, 359,
Oregon
105
“self-fulfilling prophecy,”
v.
U.S.
J.,
(1985)(Brennan,
dissenting.),
84 L.Ed.2d
S.Ct.
procedures
the
of the Courts established
the
Office
Administrative
creating
as
an
bypass
perceives
the
now
judicial
that
Court
any
cure
defect in the
on a minor. Rather than to
undue burden
Poritz,
past,
in the
Doe v.
procedures as the
has done
Court
(1995),
1,
Act
The State’s only be under the State Constitution because there need cess governmental of the child’s minimal restriction on exercise justified reproductive rights. That minimal interference is well of long-standing commitment to the health and welfare the State’s respect right of corresponding obligation its children and upbringing of children. parents direct the their rights pronouncement parents, In of its most recent on the Supreme Court has stated: care, interest at issue this case —the interest liberty parents control of their of the fundamental children —is oldest custody, perhaps recognized ago, this More than 75 interests Court. liberty years Meyer (1923), we Nebraska, 262 U.S. L.Ed. 1042 held Due Process includes the by the Clause “liberty” protected parents bring a home .. “establish childi-en”. up e.g„
See, Yoder, ... Wisconsin v. 406 U.S. 32 L.Ed.2d (1972) (“The strong tradition of and culture Western civilization reflect history upbringing concern for the nurture of their children. This primary upbringing role in the is now then- children established beyond tradition”); enduring light as ... of this debate American extensive it cannot now the Due Process Clause of the Four- be doubted precedent, *38 right teenth Amendment the fundamental of to make decisions protects parents concerning the and control of care, custody, them children. (U.S.Wash. [Troxel v. Granville, 57, —, 2054, 147 U.S. L.Ed.2d 49 2000).] equal protection requirements The Act does not offend because proce it involves a reasonable classification of different medical suspect dures. It does not Right create class of women. In v. Byrne, explained Choose Justice Pollock that “the State may pursue potential by excluding its in interest life [non-thera peutic] from program.” abortions the Medicaid 91 N.J. purposes equal analysis 450 A.2d For protection 925. there is a vast pregnan difference between the minor’s decision to abort her cy, already implicates which this Court has “potential concluded carry life” and her decision to to term.
I judgment would affirm Chancery upholding the Division constitutionality require the Act. I the would the Administrative modify procedures currently Office of the place Courts in any unnecessary constitutionally required minimize in burdens procedure. bypass joins opinion.
Justice VERNIERO this VERNIERO, J., dissenting. repeat analysis
I will not the careful set forth Justice dissenting opinion, join. separately I only O’Hern’s which I write following. to add the infringed reproductive rights
If the statute on the of women to However, any significant degree, join majority. I would I do not share the Court’s characterization I of the statute. view the plain unduly regulate statute its terms as one does not any procedure. forbid form of abortion markedly In regard, in this different statute case is from the law at issue Planned Parenthood Central New Verniero, (D.N.J.1998), Jersey F.Supp.2d v. sub nom. aff'd Farmer, Jersey Planned Parenthood Central New F.3d (3d Cir.2000). case, In that the United States District Court Jersey’s “partial-birth abortion” prohibiting the New law held that impermissibly vague, was an undue burden procedure was adequately protect mother’s reproductive rights, not and did contrast, the notification statute Id. 502. health. ability to advise and significantly physician’s not encumber does against according measured patients to their needs. When treat significant issues informed of health to be children, sustainable. minor the law is Stated affecting their rights differently, of both accommodates the statute parents within this limited context of notification. women and their judicial bypass procedures prove insuffi- To the extent that require practice, I the Administrative Office of the cient in would *39 (AOC) redesign procedures to assure access to the those Courts majority, I setting. cannot in a confidential Unlike courts beyond procedures conclude on this record AOC I matter to enable the repair. would remand the constitutional extraordinary taking parties develop full record before invalidating flaws in the AOC step of the statute based asserted procedures. STEIN, PORITZ and Justices
For reversal —Chief Justice COLEMAN and LONG —4.
For O’HERN —1. affirmance —Justice VERNIERO —1. For and remandment —Justice affirmance