U.S. Supreme Court
BELLOTTI v. BAIRD, 428 U.S. 132 (1976)
428 U.S. 132
BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS, ET AL. v. BAIRD
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
Argued March 23, 1976
Decided July 1, 1976*
[Footnote *] Together with No. 75-109,
Hunerwadel v. Baird et al., also on appeal from the same court.
A 1974 Massachusetts statute governs the type of consent, including parental
consent, required before an abortion may be performed on an unmarried woman
under the age of 18. Appellees, an abortion counseling organization, its
president and its medical director, and several unmarried women who were
pregnant at the time, brought a class action against appellant Attorney General
and District Attorneys, claiming that the statute violates the Due Process and
Equal Protection Clauses of the Fourteenth Amendment. A temporary restraining
order was entered prior to the effective date of the statute. Thereafter, a
three-judge District Court held the statute unconstitutional as creating a
"parental veto" over the performance of abortions on minor children in that it
applied even to those minors capable of giving informed consent, and permanently
enjoined its operation, denying by implication appellants' motion that the court
abstain from deciding the issue pending authoritative construction of the
statute by the Massachusetts Supreme Judicial Court. In 1975, after the District
Court's decision Massachusetts enacted a statute dealing with consent by minors
to medical procedures other than abortion and sterilization, and in this Court
appellees raised an additional claim of impermissible distinction between the
consent procedures applicable to minors in the area of abortion under the 1974
statute and the consent required by the 1975 statute in regard to other medical
procedures. Held: The District Court should have abstained from deciding the
constitutional issue and should have certified to the Massachusetts Supreme
Judicial Court appropriate questions concerning the meaning of the 1974 statute
and the procedure it imposes. Pp. 143-152.
(a) Abstention is appropriate where an unconstrued state statute is
susceptible of a construction by the state judiciary that
[428 U.S. 132, 133] "might avoid in whole or in part the necessity
for federal constitutional adjudication, or at least materially change the
nature of the problem." Harrison v. NAACP, 360 U.S. 167, 177. Pp. 146-147.
(b) Here the 1974 statute is susceptible of appellants' interpretation that
while it prefers parental consultation and consent it permits a minor
capable of giving informed consent to obtain a court order allowing abortion
without parental consultation and further permits even a minor incapable of
giving informed consent to obtain an abortion order without parental
consultation where it is shown that abortion would be in her best interests,
and such an interpretation would avoid or substantially modify the federal
constitutional challenge to the statute. Pp. 147-148.
(c) In regard to the claim of impermissible discrimination due to the 1975
statute, it would be appropriate for the District Court also to certify a
question concerning this statute, and the extent to which its procedures
differ from the procedures required under the 1974 statute. Pp. 151-152.
393 F. Supp. 847, vacated and remanded.
BLACKMUN, J., delivered the opinion for a unanimous Court.
S. Stephen Rosenfeld, Assistant Attorney General of Massachusetts, argued the
cause for appellants in No. 75-73. With him on the brief were Francis X.
Bellotti, Attorney General, pro se, and Michael Eby and Garrick F. Cole,
Assistant Attorneys General. Brian A. Riley argued the cause pro hac vice for
appellant in No. 75-109. With him on the brief were Thomas P. McMahon and Thomas
Roy Lucas argued the cause and filed a brief for appellees in both cases.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
In this litigation, a three-judge District Court for the District of
Massachusetts enjoined the operation of certain provisions of a 1974
Massachusetts statute that govern the type of consent required before an
abortion may [428 U.S. 132, 134] be
performed on an unmarried woman under the age of 18. In so acting, the court
denied by implication a motion by appellants that the court abstain from
deciding the issue pending authoritative construction of the statute by the
Supreme Judicial Court of Massachusetts. We hold that the court should have
abstained, and we vacate the judgment and remand the cases for certification of
relevant issues of state law to the Supreme Judicial Court, and for abstention
pending the decision of that tribunal.
On August 2, 1974, the General Court of Massachusetts
(Legislature), over the Governor's veto, enacted legislation entitled "An Act to
protect unborn children and maternal health within present constitutional
limits." The Act, Mass. Acts and Resolves 1974, c. 706, 1, amended Mass. Gen.
Laws Ann., c. 112 (Registration of Certain Professions and Occupations), by
adding 12H through 12R.1 Section 12P provides:
"(1) If the mother is less than eighteen years of age and has not married,
the consent of both the mother and her parents is required. If one or both
of the mother's parents refuse such consent, consent may be obtained by
order of a judge of the superior [428 U.S. 132, 135] court for good cause
shown, after such hearing as he deems necessary. Such a hearing will not
require the appointment of a guardian for the mother.
"If one of the parents has died or has deserted his or her family, consent
by the remaining parent is sufficient. If both parents have died or have
deserted their family, consent of the mother's guardian or other person
having duties similar to a guardian, or any person who had assumed the care
and custody of the mother is sufficient.
"(2) The commissioner of public health shall prescribe a written form for
such consent. Such form shall be signed by the proper person or persons and
given to the physician performing the abortion who shall maintain it in his
"Nothing in this section shall be construed as abolishing or limiting any
common law rights of any other person or persons relative to consent to the
performance of an abortion for purposes of any civil action or any
injunctive relief under section twelve R."
All nonemergency abortions are made subject to the provisions of 12P by 12N.2 Violations of 12N are [428 U.S. 132, 136] punishable under 12Q by a
fine of not less than $100 nor more than $2,000.3
Section 12R provides that the Attorney General or any person whose consent is
required may petition the superior court for an order enjoining the performance
of any abortion.4
On October 30, 1974, one day prior to the effective date of
the Act,5 plaintiffs, who are appellees here, filed this
action in the United States District Court for the District of Massachusetts,
asserting jurisdiction under 28 U.S.C. 1343 (3), 1331, and 2201, and 42 U.S.C.
1983, and claiming that 12P violates the Due Process and Equal Protection
Clauses of the Fourteenth Amendment. They sought injunctive and declaratory
relief, and requested the empaneling of a three-judge court pursuant to 28
U.S.C. 2281 and 2284.
On October 31, the single District Judge issued an order temporarily
restraining the enforcement of the parental-consent requirement of 12P, and
accepting the request for a three-judge court.6
Record Doc. 2.
[428 U.S. 132, 137]
The plaintiffs, and the classes they purported to represent, are:
1. William Baird, a citizen of New York.
2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation.
Baird is president of the corporation and is director and chief counselor of the
center it operates in Boston for the purpose of providing, inter alia, abortion
and counseling services. Baird and Parents Aid claim to represent all abortion
centers and their administrators in Massachusetts who, on a regular and
recurring basis, deal with pregnant minors. App. 13, 43.
3. Mary Moes I, II, III, and IV, four minors under the age of 18, pregnant at
the time of the filing of the suit, and residing in Massachusetts. Each alleged
that she wished to terminate her pregnancy and did not wish to inform either of
her parents.7 Id., at 16-18, 19-22. The Moes claimed to represent all
pregnant minors capable [428 U.S. 132, 138]
of, and willing to give, informed consent to an abortion, but who decline to
seek the consent of both parents, as required by 12P. App. 13, 43.
4. Gerald Zupnick, M. D., a physician licensed to practice in Massachusetts.
He is the medical director of the center operated by Parents Aid. He claims to
represent all physicians in Massachusetts who, without parental consent, see
minor patients seeking abortions. Ibid.
The defendants in the action, who are the appellants in No. 75-73 (and who
are hereinafter referred to as the appellants), are the Attorney General of
Massachusetts, and the District Attorneys of all the counties in the
Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant)
is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an
unmarried minor female of childbearing age. Hunerwadel was permitted by the
District Court to intervene as a defendant on behalf of herself and all others
similarly situated.8 App. 24.
On November 13, appellants filed a "Motion to dismiss and/or for summary
judgment," arguing, inter alia, that the District Court "should abstain from
deciding any issue in this case." Id., at 23. In their memorandum to the court
in support of that motion, appellants, in addition to other arguments, urged
that 12P, particularly in view of its judicial-review provision, "was [428 U.S. 132, 139] susceptible of a construction by
state courts that would avoid or modify any alleged federal constitutional
question." Record Doc. 5, p. 12. They cited Railroad Comm'n v. Pullman Co., 312
U.S. 496 (1941), and Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 510-511
(1972), for the proposition that where an unconstrued state statute is
susceptible of a constitutional construction, a federal court should abstain
from deciding a constitutional challenge to the statute until a definitive state
construction has been obtained.
The District Court held hearings on the motion for a preliminary injunction;
these were later merged into the trial on the merits. It received testimony from
various experts and from parties to the case, including Mary Moe I. On April 28,
1975, the three-judge District Court, by a divided vote, handed down a decision
holding 12P unconstitutional and void. 393 F. Supp. 847. An order was entered
declaring 12P "and such other portions of the chapter 112. insofar as they make
specific reference thereto" void, and enjoining the defendants from enforcing
them. App. 45-46; Jurisdictional Statement in No. 75-73, pp. A-33, A-34.
The majority held, inter alia, that appellees Mary Moe I, Doctor Zupnick, and
Parents Aid had standing to challenge the operation of the statute, individually
and as representatives of their proposed classes, 393 F. Supp., at 850-852,9 and that the intervenor-appellant had standing to represent the
interests of parents of unmarried minor women of childbearing age, id., at
849-850. It found that "a substantial number of females under the age of 18 are
capable of forming a valid consent," and viewed the overall question as "whether
the state can be permitted [428 U.S. 132, 140]
to restrain the free exercise of that consent, to the extent that it has
endeavored to do so." Id., at 855.
In regard to the meaning of 12P, the majority made the following comments:
"1. The statute does not purport to require simply that parents be notified
and given an opportunity to communicate with the minor, her chosen
physician, or others. We mention this obvious fact because of the
persistence of defendants and intervenor in arguing that the legislature
could properly enact such a statute. Whether it could is not before us, and
there is no reason for our considering it.
"2. The statute does not exclude those capable of forming an intelligent
consent, but applies to all minors. The statute's provision calling for the
minor's own consent recognizes that at least some minors can consent, but
the minor's consent must be supplemented in every case, either by the
consent of both parents, or by a court order.
. . . . .
"4. The statute does not purport simply to provide a check on the validity
of the minor's consent and the wisdom of her decision from the standpoint of
her interests alone. Rather, it recognizes and provides rights in both
parents, independent of, and hence potentially at variance with, her own
personal interests." 393 F. Supp., at 855.
"The dissent is seemingly of the opinion that a reviewing Superior Court
Judge would consider only the interests of the minor. We find no room in the
statute for so limited an interpretation." Id., at 855 n. 10.
"The parents not only must be consulted, they are given a veto." Id., at
The majority observed that "`neither the Fourteenth
[428 U.S. 132, 141] Amendment nor the Bill of Rights is for adults
alone,' In re Gault, 1967, 387 U.S. 1, 13," ibid., and, accordingly, held that
the State cannot control a minor's abortion in the first trimester any more than
it can control that of an adult. Re-emphasizing that "the statute is cast not in
terms of protecting the minor . . . but in recognizing independent rights of
parents," the majority concluded that "[t]he question comes, accordingly, do
parents possess, apart from right to counsel and guide, competing rights of
their own?" Ibid.
The majority found that in the instant situation, unlike others, the parents'
interests often are adverse to those of the minor and, specifically rejecting
the contrary result in Planned Parenthood of Central Missouri v. Danforth, 392
F. Supp. 1362 (ED Mo. 1975), see ante, p. 52, concluded:
"But even if it should be found that parents may have rights of a
Constitutional dimension vis-a-vis their child that are separate from the
child's, we would find that in the present area the individual rights of the
minor outweigh the rights of the parents, and must be protected." 393 F.
Supp., at 857.
The dissent argued that the parents of Mary Moe I, by not being informed of
the action or joined as parties, "have been deprived of their legal rights
without due process of law," ibid., that the majority erred in refusing to
appoint a guardian ad litem for Moe I, and that it erred in finding that she had
the capacity to give a valid and informed consent to an abortion. The dissent
further argued that parents possess constitutionally cognizable rights in
guiding the upbringing of their children, and that the statute is a proper
exercise of state power in protection of those parental rights. Id., at 857-865.
Most important, however, the dissent's view of the
[428 U.S. 132, 142] statute differed markedly from the interpretation
adopted by the majority. The dissent stated:
"I find, therefore, no conceivable constitutional objection to legislation
providing in the case of a pregnant minor an additional condition designed
to make certain that she receive parental or judicial guidance and
counselling before having the abortion. The requirement of consent of both
parents[[*]] ensures that both parents will provide counselling and
guidance, each according to his or her best judgment. The statute expressly
provides that the parents' refusal to consent is not final. The statute
expressly gives the state courts the right to make a final determination. If
the state courts find that the minor is mature enough to give an informed
consent to the abortion and that she has been adequately informed about the
nature of an abortion and its probable consequences to her, then we must
assume that the courts will enter the necessary order permitting her to
exercise her constitutional right to the abortion." Id., at 864.
The indicated footnote reads:
"The majority speculate concerning possible interpretations of the `for
good cause shown' language. There is also some doubt whether the statute
requires consent of one or both parents. The construction of the statute is
a matter of state law. If the majority believe the only constitutional
infirmities arise from their interpretation of the statute, the majority
should certify questions of state law to the Supreme Judicial Court of
Massachusetts pursuant to Rule 3:21 of that court in order to receive a
definitive interpretation of the statute." Id., at 864 n. 15.
[428 U.S. 132, 143]
Both appellants and intervenor-appellant appealed. We noted probable
jurisdiction of each appeal and set the cases for oral argument with Planned
Parenthood of Central Missouri v. Danforth, ante, p. 52, and its companion
cross-appeal. 423 U.S. 982 (1975).
Appellants and intervenor-appellant attack the District
Court's majority decision on a number of grounds. They argue, inter alia, and
each in their or her own way, that 12P properly preserves the primacy of the
family unit by reinforcing the role of parents in fundamental decisions
affecting family members; that the District Court erred in failing to join Moe
I's parents; that it abused its discretion by failing to appoint a guardian ad
litem; and that it erred in finding the statute facially invalid when it was
capable of a construction that would withstand constitutional analysis.
The interpretation placed on the statute by appellants in this Court is of
some importance and merits attention, for they are the officials charged with
enforcement of the statute.10 [428 U.S. 132, 144]
Appellants assert, first, that under the statute parental consent may not be
refused on the basis of concerns exclusively of the parent. Indeed, "the
`competing' parental right consists exclusively of the right to assess
independently, for their minor child, what will serve that child's best
interest. . . . [I]n operation, the parents' actual deliberation must range no
further than would that of a pregnant adult making her own abortion decision."
Brief for Appellants 23. And the superior court's review will ensure that
parental objection based upon other considerations will not operate to bar the
minor's abortion. Id., at 22-23. See also Brief for Intervenor-Appellant 26.
Second, appellants argue that the last paragraph of 12P11 preserves the "mature minor" rule in Massachusetts, under
which a child determined by a court to be capable of giving informed consent
will be allowed to do so. Appellants argue that under this rule a pregnant minor
could file a complaint in superior court seeking authorization for an abortion,
and, "[i]mportantly, such a complaint could be filed regardless of whether the
parents had been consulted or had withheld their consent." Brief for Appellants
37-38 (emphasis in original); Tr. of Oral Arg. 17. Appellants and the
intervenor-appellant assert that the procedure employed would be structured
[428 U.S. 132, 145]
so as to be speedy and nonburdensome, and would ensure anonymity. Brief for
Appellants 38 n. 30; Brief for Intervenor-Appellant 26; Tr. of Oral Arg. 24-26.
Finally, appellants argue that under 12P, a judge of the superior court may
permit an abortion without parental consent for a minor incapable of rendering
informed consent, provided that there is "good cause shown." Brief for
Appellants 38. "Good cause" includes a showing that the abortion is in the
minor's best interests. Id., at 39.
The picture thus painted by the respective appellants is of a statute that
prefers parental consultation and consent, but that permits a mature minor
capable of giving informed consent to obtain, without undue burden, an order
permitting the abortion without parental consultation, and, further, permits
even a minor incapable of giving informed consent to obtain an order without
parental consultation where there is a showing that the abortion would be in her
best interests. The statute, as thus read, would be fundamentally different from
a statute that creates a "parental veto."12
Appellees, however, on their part, take an entirely different view of the
statute. They argue that the statute [428 U.S.
132, 146] creates a right to a parental veto,13
that it creates an irrebuttable presumption that a minor is incapable of
informed consent,14 and that the statute does not permit
abortion without parental consent in the case of a mature minor or, in the case
of a minor incapable of giving consent, where the parents are irrationally
opposed to abortion.15
Appellees specifically object to abstention. Their objection is based upon
their opinion that "the statute gives to parents of minors an unbridled veto,"
Brief for Appellees 49, and that once that veto is exercised, the minor has the
burden of proving to the superior court judge that "good cause" exists. Ibid.
They view the "good cause" hearing as forcing the judge to choose "between the
privacy rights of the young woman and the rights of the parents as established
by the statute." Ibid. Assuming that "good cause" has a broader meaning,
appellees argue that the hearing itself makes the statute unconstitutional,
because of the burden it imposes and the delay it entails. Ibid.
In deciding this case, we need go no further than the claim
that the District Court should have abstained pending construction of the
statute by the Massachusetts courts. As we have held on numerous occasions,
abstention [428 U.S. 132, 147] is appropriate where an unconstrued
state statute is susceptible of a construction by the state judiciary "which
might avoid in whole or in part the necessity for federal constitutional
adjudication, or at least materially change the nature of the problem." Harrison
v. NAACP, 360 U.S. 167, 177 (1959). See also Colorado River Cons. Dist. v.
United States, 424 U.S. 800, 813-814 (1976); Carey v. Sugar, 425 U.S. 73, 78-79
(1976); Kusper v. Pontikes, 414 U.S. 51, 54-55 (1973); Lake Carriers' Assn. v.
MacMullan, 406 U.S., at 510-511; Zwickler v. Koota, 389 U.S. 241, 249 (1967);
Railroad Comm'n v. Pullman Co., 312 U.S. 496 (1941).
We do not accept appellees' assertion that the Supreme Judicial Court of
Massachusetts inevitably will interpret the statute so as to create a "parental
veto," require the superior court to act other than in the best interests of the
minor, or impose undue burdens upon a minor capable of giving an informed
In Planned Parenthood of Central Missouri v. Danforth, we today struck down a
statute that created a parental veto. Ante, at 72-75. At the same time, however,
we held that a requirement of written consent on the part of a pregnant adult is
not unconstitutional unless it unduly burdens the right to seek an abortion. In
this case, we are concerned with a statute directed toward minors, as to whom
there are unquestionably greater risks of inability to give an informed consent.
Without holding that a requirement of a court hearing would not unduly burden
the rights of a mature adult, cf. Doe v. Rampton, 366 F. Supp. 189 (Utah 1973),
we think it clear that in the instant litigation adoption of appellants'
interpretation would "at least materially change the nature of the problem" that
appellants claim is presented. Harrison v. NAACP, 360 U.S., at 177.
Whether the Supreme Judicial Court will so interpret
[428 U.S. 132, 148] the statute, or whether it will interpret the statute
to require consideration of factors not mentioned above, impose burdens more
serious than those suggested, or create some unanticipated interference with the
doctor-patient relationship, we cannot now determine.16
Nor need we determine what factors are impermissible or at what point review of
consent and good cause in the case of a minor becomes unduly burdensome. It is
sufficient that the statute is susceptible of the interpretation offered by
appellants, and we so find, and that such an interpretation would avoid or
substantially modify the federal constitutional challenge to the statute, as it
clearly would. Indeed, in the absence of an authoritative construction, it is
impossible to define precisely the constitutional question presented.
Appellees also raise, however, a claim of impermissible distinction between
the consent procedures applicable to minors in the area of abortion, and the
consent required in regard to other medical procedures. This issue has come to
the fore through the advent of a Massachusetts statute, enacted subsequent to
the decision of the District Court, dealing with consent by minors to medical
procedures other than abortion and sterilization.17 As [428 U.S. 132, 149] we hold today in Planned Parenthood,
however, not all distinction between abortion and other procedures is forbidden.
Ante, at 80-81. The constitutionality of such
[428 U.S. 132, 150]
distinction will depend upon its degree and the justification for it. The
constitutional issue cannot now be defined, however, for the degree of
distinction between the consent procedure for abortions and the consent
procedures for other medical procedures cannot be established until the nature
of the consent required for abortions is established. In these circumstances,
the federal court should stay its hand to the same extent as in a challenge
directly to the burdens created by the statute.
Finally, we note that the Supreme Judicial Court of Massachusetts has adopted
a Rule of Court under which an issue of interpretation of Massachusetts law may
be certified directly to that court for prompt resolution. Mass. Rules of Court,
Sup. Jud. Ct. Rule 3:21 (1976). This Court often has remarked that the equitable
practice of abstention is limited by considerations of "`the delay and expense
to which application of the abstention doctrine inevitably gives rise.'" Lake
Carriers' Assn. v. MacMullan, 406 U.S., at 509, quoting England v. Medical
Examiners, 375 U.S. 411, 418 (1964). See Kusper v. Pontikes, 414 U.S., at 54. As
we have also noted, however, the availability of an adequate certification
procedure18 "does, of course, in the long
run save time, [428 U.S. 132, 151]
energy, and resources and helps build a cooperative judicial federalism." Lehman
Brothers v. Schein, 416 U.S. 386, 391 (1974). This Court has utilized
certification procedures in the past, as have courts of appeals. Ibid. and cases
cited therein at 390 nn. 5 and 6.
The importance of speed in resolution of the instant litigation is manifest.
Each day the statute is in effect, irretrievable events, with substantial
personal consequences, occur. Although we do not mean to intimate that
abstention would be improper in this case were certification not possible, the
availability of certification greatly simplifies the analysis. Further, in light
of our disapproval of a "parental veto" today in Planned Parenthood, we must
assume that the lower Massachusetts courts, if called upon to enforce the
statute pending interpretation by the Supreme Judicial Court, will not impose
this most serious barrier. Insofar as the issue thus ceases to become one of
total denial of access and becomes one rather of relative burden, the cost of
abstention is reduced and the desirability of that equitable remedy accordingly
We therefore hold that the District Court should have
certified to the Supreme Judicial Court of Massachusetts appropriate questions
concerning the meaning of 12P and the procedure it imposes. In regard to the
claim of impermissible discrimination due to the 1975 statute, a claim not
raised in the District Court but subject to inquiry through an amended
complaint, or perhaps by other means, we believe that it would not be
inappropriate for the District Court, when any procedural requirement [428 U.S. 132, 152] has been complied with, also to
certify a question concerning the meaning of the new statute, and the extent to
which its procedures differ from the procedures that must be followed under 12P.
The judgment of the District Court is vacated, and the cases are remanded to
that court for proceedings consistent with this opinion.
It is so ordered.
[Footnote 1] Prior to the passage of the
1974 Act there were already in existence a 12H and a 12I of c. 112. These were
added by Mass. Acts and Resolves 1973, c. 173, 1, and c. 521, 1, respectively.
The former called for the printing of the physician's name on a prescription
blank, and the latter concerned one's right not to participate in an abortion or
sterilization procedure, and to be free from damages claims or discipline for
exercising that right.
These pre-existing 12H and 12I have not been repealed. Consequently, due to
this legislative oversight, Massachusetts has two statutes denominated 12H of c.
112, and two denominated 12I of that chapter. This opinion, however, concerns
only the 1974 legislation.
[Footnote 2] "Section 12N. Except in an
emergency requiring immediate action, no abortion may be performed under
sections twelve I [before 24 weeks] or twelve J [24 weeks or more] unless
"(1) the written informed consent of the proper person or persons has been
delivered to the physician performing the abortion as set forth in section
twelve P and
"(2) if the abortion is during or after the thirteenth week of pregnancy it
is performed in a hospital duly authorized to provide facilities for general
"Except in an emergency requiring immediate action no abortion may be
performed under section twelve J unless performed in a hospital duly
authorized to provide facilities for obstetrical services."
[Footnote 3] Section 12Q provides in
"Any person who willfully violates the provisions of sections twelve N or
twelve O shall be punished by a fine of not less than one hundred dollars
nor more than two thousand dollars."
[Footnote 4] "Section 12R. The attorney
general or any person whose consent is required either pursuant to section
twelve P or under common law, may petition the superior court for an order
enjoining the performance of any abortion that may be performed contrary to the
provisions of sections twelve I through twelve Q."
[Footnote 5] Unless a statute is declared
an emergency or may not be made the subject of a referendum petition, a law
passed by the General Court does not take effect "earlier than ninety days after
it has become a law." Mass. Const. Amend., Art. 48, Referendum, pt. I (1963).
[Footnote 6] Because of the temporary
restraining order and the injunction subsequently issued by the three-judge
court, Jurisdictional [428 U.S. 132, 137]
Statement in No. 75-73, pp. A-33, A-34; App. 45-46, the parental-consent
provisions of 12P have not yet been effective.
[Footnote 7] The complaint as originally
filed, named only Mary Moe I and Mary Moe II as the pregnant minor plaintiffs,
with affidavits concerning their status attached. App. 16-18. Thereafter, in
November 1974, affidavits were executed by Mary Moe III and Mary Moe IV. Id., at
19-22. The motion to certify the plaintiffs' classes, filed December 9, 1974,
refers to the four Mary Moes. Similarly, the District Court referred to the fact
that four Mary Moes were named in the action. 393 F. Supp. 847, 849, and n. 1
(1975). The record does not disclose how or when Mary Moes III and IV were added
as parties plaintiff. In any event, Mary Moes II, III, and IV were dismissed
from the suit for failure to adduce evidence supporting their standing, id., at
849 n. 1, and they have not appealed that ruling. The way in which Mary Moes III
and IV entered the case, therefore, is of no concern to us here.
We note that the fact the pregnancy of Mary Moe I has been terminated
(through an abortion performed under the protection of the temporary restraining
order entered by the District Court, id., at 850 n. 4) in no way moots the case.
Roe v. Wade, 410 U.S. 113, 124-125 (1973).
[Footnote 8] Also permitted to intervene
as defendants were Kathleen Roth and others, parents situated similarly to
Hunerwadel, and Jane Doe, an anonymous parent of a pregnant unmarried minor. The
District Court dismissed all the intervenors except Hunerwadel for failure to
adduce facts necessary to show standing. 393 F. Supp., at 850. Technically,
these dismissed intervenors, who have not appealed, might well be classified as
appellees under our Rule 10 (4). Their status, however, does not affect the
disposition of these cases.
[Footnote 9] In regard to appellee Baird,
the majority stated: "In the light of the unassailable standing of other
plaintiffs . . . we do not pass on the question of Baird's standing." 393 F.
Supp., at 851.
[Footnote 10] It is not entirely clear
that appellants suggested the same interpretation in the District Court as they
suggest here. See 393 F. Supp., at 855. Nevertheless, the fact that the full
arguments in favor of abstention may not have been asserted in the District
Court does not bar this Court's consideration of the issue. Cf. Wisconsin v.
Constantineau, 400 U.S. 433, 437 (1971).
The practice of abstention is equitable in nature, see Railroad Comm'n v.
Pullman Co., 312 U.S. 496, 500-501 (1941), and it would not be improper to
consider the effect of delay caused by the State's failure to suggest or seek a
constitutional interpretation. Cf. Baggett v. Bullitt, 377 U.S. 360, 379 (1964).
In the instant case, however, there has been no injury to appellees' rights due
to the delay (if any) in the appellants' coming forward with the interpretation
they now espouse. As a result of the various orders of the District Court, the
challenged portion of the statute has [428 U.S.
132, 144] never gone into effect. Nor can we adopt the view that once a
request for abstention is made, it is beyond the power of the District Court to
consider possible interpretations that have not been put forth by the parties.
Indeed, it would appear that abstention may be raised by the court sua sponte.
See Railroad Comm'n v. Pullman Co., supra. Cf. England v. Medical Examiners, 375
U.S. 411, 413 (1964).
[Footnote 11] "Nothing in this section
shall be construed as abolishing or limiting any common law rights of any other
person or persons relative to consent to the performance of an abortion for
purposes of any civil action or any injunctive relief under section twelve R."
[Footnote 12] See generally Planned
Parenthood of Missouri v. Danforth, ante, p. 52; Poe v. Gerstein, 517 F.2d 787
(CA5 1975), appeal docketed, No. 75-713; Jackson v. Guste, Civ. Action No.
74-2425 (ED La. Jan. 26, 1976); Doe v. Zimmerman, 405 F. Supp. 534 (MD Pa.
1975); Doe v. Exon, Civ. Action No. CV 75-L-146 (Neb. Oct. 8, 1975); Planned
Parenthood Assn. v. Fitzpatrick, 401 F. Supp. 554 (ED Pa. 1975); Foe v.
Vanderhoof, 389 F. Supp. 947 (Colo. 1975); Gary-Northwest Indiana Women's
Services v. Bowen, Civ. Action No. H-74-289 (ND Ind. Jan. 3, 1975); Wolfe v.
Schroering, 388 F. Supp. 631 (WD Ky. 1974); State v. Koome, 84 Wash. 2d 901, 530
P.2d 260 (1975).
[Footnote 13] "[The statute can] force a
pregnant sixteen year old to become a seventeen year old mother because her own
mother wants a grandchild." Brief for Appellees 33.
[Footnote 14] "[T]he parental consent
statute constitutes a legislative decree that no person under age 18 is
competent to consent to an abortion. This contravenes the line of decisions
which have struck down certain irrebutable presumptions as violative of due
process." Id., at 42.
[Footnote 15] "The statute has no
exception for mature minors, or other minors with immature, emotionally upset
parents." Id., at 46.
[Footnote 16] As stated in n. 6, supra,
the challenged portion of the statute has never gone into effect. The heated
debate among the parties over the meaning of the statute is a strong indication
of the ambiguities it contains. We assume that the Supreme Judicial Court will
do everything in its power to interpret the Act in conformity with its title:
"An Act to protect . . . within present constitutional limits." See Boehning v.
Indiana State Employees Assn., 423 U.S. 6 (1975).
[Footnote 17] Prior to the enactment of
that statute, the consent procedure in regard to abortion, at least as
interpreted by appellants, was arguably merely a codification of the common law.
See Brief for Appellants 24-39. The new legislation, Mass. Acts and Resolves
1975, c. 564, approved Aug. 28, 1975, reads:
"Chapter 112 of the General Laws is hereby amended by striking [428 U.S. 132, 149] out section 12F, as amended by
section 1 of chapter 335 of the acts of 1971, and inserting in place thereof
the following section:
"No physician, dentist or hospital shall be held liable for damages for
failure to obtain consent of a parent, legal guardian, or other person
having custody or control of a minor child, or of the spouse of a patient,
to emergency examination and treatment, including blood transfusions, when
delay in treatment will endanger the life, limb, or mental well-being of the
"Any minor may give consent to his medical or dental care at the time such
care is sought if (i) he is married, widowed, divorced; or (ii) he is the
parent of a child, in which case he may also give consent to medical or
dental care of the child; or (iii) he is a member of any of the armed
forces; or (iv) she is pregnant or believes herself to be pregnant; or (v)
he is living separate and apart from his parent or legal guardian, and is
managing his own financial affairs; or (vi) he reasonably believes himself
to be suffering from or to have come in contact with any disease defined as
dangerous to the public health pursuant to section six of chapter one
hundred and eleven; provided, however, that such minor may only consent to
care which relates to the diagnosis or treatment of such disease.
"Consent shall not be granted under subparagraphs (ii) through (vi),
inclusive, for abortion or sterilization.
"Consent given under this section shall not be subject to later
disaffirmance because of minority. The consent of the parent or legal
guardian shall not be required to authorize such care and, notwithstanding
any other provisions of law, such parent or legal guardian shall not be
liable for the payment for any care rendered pursuant to this section unless
such parent or legal guardian has expressly agreed to pay for such care.
"No physician or dentist, nor any hospital, clinic or infirmary shall be
liable, civilly and criminally, for not obtaining the consent of the parent
or legal guardian to render medical or dental care to a minor, if, at the
time such care was rendered, such person or facility: (i) relied in good
faith upon the representations of such minor that he is legally able to
consent to such treatment under this section; or [428 U.S. 132, 150] (ii) relied in good faith upon the
representations of such minor that he is over eighteen years of age.
"All information and records kept in connection with the medical or dental
care of a minor who consents thereto in accordance with this section shall
be confidential between the minor and the physician or dentist, and shall
not be released except upon the written consent of the minor or a proper
judicial order. When the physician or dentist attending a minor reasonably
believes the condition of said minor to be so serious that his life or limb
is endangered, the physician or dentist shall notify the parents, legal
guardian or foster parents of said condition and shall inform the minor of
[Footnote 18] There is no indication
that the Massachusetts certification procedure is inadequate. Indeed, the
dissent in the District Court [428 U.S. 132, 151]
cited a prior case in which the procedure was employed with no apparent
difficulty. 393 F. Supp., at 864 n. 15, citing Hendrickson v. Sears, 495 F.2d
513 (CA1 1974). [428 U.S. 132, 153]
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