U.S. Supreme Court
BELLOTTI v. BAIRD, 443 U.S. 622 (1979)
443 U.S. 622
BELLOTTI, ATTORNEY GENERAL OF MASSACHUSETTS, ET AL. v. BAIRD
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
Argued February 27, 1979.
Decided July 2, 1979.*
[Footnote *] Together with No. 78-330,
Hunerwadel v. Baird et al., also on appeal from the same court.
A Massachusetts statute requires parental consent before an abortion can be
performed on an unmarried woman under the age of 18. If one or both parents
refuse such consent, however, the abortion may be obtained by order of a judge
of the superior court "for good cause shown." In appellees' class action
challenging the constitutionality of the statute, a three-judge District Court
held it unconstitutional. Subsequently, this Court vacated the District Court's
judgment, Bellotti v. Baird, 428 U.S. 132, holding that the District Court
should have abstained and certified to the Massachusetts Supreme Judicial Court
appropriate questions concerning the meaning of the statute. On remand, the
District Court certified several questions to the Supreme Judicial Court. Among
the questions certified was whether the statute permits any minors - mature or
immature - to obtain judicial consent to an abortion without any parental
consultation whatsoever. The Supreme Judicial Court answered that, in general,
it does not; that consent must be obtained for every nonemergency abortion
unless no parent is available; and that an available parent must be given notice
of any judicial proceedings brought by a minor to obtain consent for an
abortion. Another question certified was whether, if the superior court finds
that the minor is capable of making, and has, in fact, made and adhered to, an
informed and reasonable decision to have an abortion, the court may refuse its
consent on a finding that a parent's, or its own, contrary decision is a better
one. The Supreme Judicial Court answered in the affirmative. Following the
Supreme Judicial Court's judgment, the District Court again declared the statute
unconstitutional and enjoined its enforcement.
The judgment is affirmed. Pp. 633-651; 652-656.
450 F. Supp. 997, affirmed.
MR. JUSTICE POWELL, joined by MR. CHIEF JUSTICE BURGER, MR. JUSTICE
STEWART, and MR. JUSTICE REHNQUIST, concluded that:
1. There are three reasons justifying the conclusion that the
constitutional [443 U.S. 622, 623] rights of children cannot
be equated with those of adults: the peculiar vulnerability of children;
their inability to make critical decisions in an informed, mature manner;
and the importance of the guiding role of parents in the upbringing of their
children. Pp. 633-639.
2. The abortion decision differs in important ways from other decisions
facing minors, and the State is required to act with particular sensitivity
when it legislates to foster parental involvement in this matter. Pp.
3. If a State decides to require a pregnant minor to obtain one or both
parents' consent to an abortion, it also must provide an alternative
procedure whereby authorization for the abortion can be obtained. A pregnant
minor is entitled in such a proceeding to show either that she is mature
enough and well enough informed to make her abortion decision, in
consultation with her physician, independently of her parents' wishes, or
that even if she is not able to make this decision independently, the
desired abortion would be in her best interests. Such a procedure must
ensure that the provision requiring parental consent does not in fact amount
to an impermissible "absolute, and possibly arbitrary, veto." Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74. Pp. 642-644.
4. The Massachusetts statute, as authoritatively interpreted by the Supreme
Judicial Court, unduly burdens the right to seek an abortion. The statute
falls short of constitutional standards in two respects. First, it permits
judicial authorization for an abortion to be withheld from a minor who is
found by the superior court to be mature and fully competent to make this
decision independently. Second, it requires parental consultation or
notification in every instance, whether or not in the pregnant minor's best
interests, without affording her an opportunity to receive an independent
judicial determination that she is mature enough to consent or that an
abortion would be in her best interests. Pp. 644-651.
MR. JUSTICE STEVENS, joined by MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL,
and MR. JUSTICE BLACKMUN, concluded that the Massachusetts statute is
unconstitutional because under the statute, as written and as construed by
the Massachusetts Supreme Judicial Court, no minor, no matter how mature and
capable of informed decisionmaking, may receive an abortion without the
consent of either both parents or a superior court judge, thus making the
minor's abortion decision subject in every instance to an absolute
third-party veto. Planned Parenthood of Central Missouri v. Danforth, 428
U.S. 52, controlling. Pp. 652-656.
POWELL, J., announced the judgment of the Court and delivered an opinion, in
which BURGER, C. J., and STEWART and REHNQUIST, JJ., joined.
[443 U.S. 622, 624] REHNQUIST, J., filed a concurring opinion, post, p.
651. STEVENS, J., filed an opinion concurring in the judgment, in which BRENNAN,
MARSHALL, and BLACKMUN, JJ., joined, post, p. 652. WHITE, J., filed a dissenting
opinion, post, p. 656.
Garrick F. Cole, Assistant Attorney General of Massachusetts, argued the
cause for appellants in No. 78-329. With him on the briefs were Francis X.
Bellotti, Attorney General, pro se, and Michael B. Meyer and Thomas R. Kiley,
Assistant Attorneys General. Brian A. Riley argued the cause for appellant in
No. 78-330. With him on the brief was Thomas P. Russell.
Joseph J. Balliro argued the cause for appellees in both cases. With him on
the brief was Joan C. Schmidt. John H. Henn also argued the cause for appellees
in both cases. With him on the brief were Scott C. Moriearty, Sandra L. Lynch,
Loyd M. Starrett, and John Reinstein.Fn
Fn [443 U.S. 622, 624] Stuart D.
Hubbell and Robert A. Destro filed a brief for the Catholic League for Religious
and Civil Rights et al. as amici curiae urging reversal in No. 78-329. Eve W.
Paul, Harriet F. Pilpel, and Sylvia A. Law filed a brief for the Planned
Parenthood Federation of America, Inc., et al. as amici curiae urging affirmance
in both cases. Briefs of amici curiae were filed by Victor G. Rosenblum, Dennis
J. Horan, and John D. Gorby in both cases for Americans United for Life, Inc.,
et al.; and by George E. Reed and Patrick F. Geary in No. 78-329 for the United
States Catholic Conference.
MR. JUSTICE POWELL announced the judgment of the Court and delivered an
opinion, in which THE CHIEF JUSTICE, MR. JUSTICE STEWART, and MR. JUSTICE
These appeals present a challenge to the constitutionality of a state statute
regulating the access of minors to abortions. They require us to continue the
inquiry we began in Planned Parenthood of Central Missouri v. Danforth, 428 U.S.
52 (1976), and Bellotti v. Baird, 428 U.S. 132 (1976).
[443 U.S. 622, 625]
On August 2, 1974, the Legislature of the Commonwealth of
Massachusetts passed, over the Governor's veto, an Act pertaining to abortions
performed within the State. 1974 Mass. Acts, ch. 706. According to its title,
the statute was intended to regulate abortions "within present constitutional
limits." Shortly before the Act was to go into effect, the class action from
which these appeals arise was commenced in the District Court1
to enjoin, as unconstitutional, the provision of the Act now codified as Mass.
Gen. Laws Ann., ch. 112, 12S (West Supp. 1979).2
Section 12S provides in part:
"If the mother is less than eighteen years of age and has not married, the
consent of both the mother and her parents [to an abortion to be performed
on the mother] 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
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
[443 U.S. 622, 626] person having duties similar to a guardian, or
any person who had assumed the care and custody of the mother is sufficient.
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
Physicians performing abortions in the absence of the consent required by 12S
are subject to injunctions and criminal penalties. See Mass. Gen. Laws Ann., ch.
112, 12Q, 12T, and 12U (West Supp. 1979).
A three-judge District Court was convened to hear the case pursuant to 28
U.S.C. 2281 (1970 ed.), repealed by Pub. L. 94-381, 1, 90 Stat. 1119.3 Plaintiffs in the suit, appellees in both the cases before us
now, were William Baird; Parents Aid Society, Inc. (Parents Aid), of which Baird
is founder and director; Gerald Zupnick, M. D., who regularly performs abortions
at the Parents Aid clinic; and an unmarried minor, identified by the pseudonym
"Mary Moe," who, at the commencement of the suit, was pregnant, residing at home
with her parents, and desirous of obtaining an abortion without informing them.4
Mary Moe was permitted to represent the "class of unmarried minors in
Massachusetts who have adequate capacity to give a valid and informed consent
[to abortion], and who do not wish to involve their parents." Baird v. Bellotti,
393 F. Supp. 847, 850 (Mass. 1975) (Baird I). Initially there was some confusion
whether the rights of minors who wish abortions without parental involvement but
who lack "adequate capacity" to give such consent also could be adjudicated in [443 U.S. 622, 627] the suit. The District Court
ultimately determined that Dr. Zupnick was entitled to assert the rights of
these minors. See Baird v. Bellotti, 450 F. Supp. 997, 1001, and n. 6 (Mass.
Planned Parenthood League of Massachusetts and Crittenton Hastings House &
Clinic, both organizations that provide counselling to pregnant adolescents, and
Phillip Stubblefield, M. D. (intervenors),6
appeared as amici curiae on behalf of the plaintiffs. The District Court
"accepted [this group] in a status something more than amici because of
reservations about the adequacy of plaintiffs' representation [of the plaintiff
classes in the suit]." Id., at 999 n. 3.
Defendants in the suit, appellants here in No. 78-329, were the Attorney
General of Massachusetts and the District Attorneys of all counties in the
State. Jane Hunerwadel was permitted to intervene as a defendant and
representative of the class of Massachusetts parents having unmarried minor
daughters who then were, or might become, pregnant. She and the class she
represents are appellants in No. 78-330.7
Following three days of testimony, the District Court issued an opinion
invalidating 12S. Baird I, supra. The court rejected appellees' argument that
all minors capable of becoming pregnant also are capable of giving informed
consent [443 U.S. 622, 628] to an abortion, or that it always is
in the best interests of a minor who desires an abortion to have one. See 393 F.
Supp., at 854. But the court was convinced that "a substantial number of females
under the age of 18 are capable of forming a valid consent," id., at 855, and
"that a significant number of [these] are unwilling to tell their parents." Id.,
In its analysis of the relevant constitutional principles, the court stated
that "there can be no doubt but that a female's constitutional right to an
abortion in the first trimester does not depend upon her calendar age." Id., at
855-856. The court found no justification for the parental consent limitation
placed on that right by 12S, since it concluded that the statute was "cast not
in terms of protecting the minor, . . . but in recognizing independent rights of
parents." Id., at 856. The "independent" parental rights protected by 12S, as
the court understood them, were wholly distinct from the best interests of the
Appellants sought review in this Court, and we noted probable
jurisdiction. Bellotti v. Baird, 423 U.S. 982 (1975). After briefing and oral
argument, it became apparent that 12S was susceptible of a construction that
"would avoid or substantially modify the federal constitutional challenge to the
statute." Bellotti v. Baird, 428 U.S. 132, 148 (1976) (Bellotti I). We therefore
vacated the judgment of the District Court, concluding that it should have
abstained and certified to the Supreme Judicial Court of Massachusetts
appropriate questions concerning the meaning of 12S, pursuant to existing [443 U.S. 622, 629] procedure in that State. See
Mass. Sup. Jud. Ct. Rule 3:21.
On remand, the District Court certified nine questions to the Supreme
Judicial Court.9 These were answered in an [443 U.S. 622, 630] opinion styled Baird v.
Attorney General, 371 Mass. 741, 360 N. E. 2d 288 (1977) (Attorney General).
Among the more important aspects of 12S, as authoritatively construed by the
Supreme Judicial Court, are the following:
1. In deciding whether to grant consent to their daughter's abortion, parents
are required by 12S to consider exclusively what will serve her best interests.
See id., at 746-747, 360 N. E. 2d, at 292-293.
2. The provision in 12S that judicial consent for an abortion shall be
granted, parental objections notwithstanding, "for good cause shown" means that
such consent shall be granted if found to be in the minor's best interests. The
judge "must disregard all parental objections, and other considerations, which
are not based exclusively" on that standard. Id., at 748, 360 N. E. 2d, at 293.
3. Even if the judge in a 12S proceeding finds "that the minor is capable of
making, and has made, an informed and reasonable decision to have an abortion,"
he is entitled to withhold consent "in circumstances where he determines that
the best interests of the minor will not be served by an abortion." Ibid., 360
N. E. 2d, at 293.
4. As a general rule, a minor who desires an abortion may not obtain judicial
consent without first seeking both parents' consent. Exceptions to the rule
exist when a parent is not available or when the need for the abortion
constitutes "`an emergency requiring immediate action.'"10
Id., at 750, 360 N. E. 2d, at 294. Unless a parent is not available, he must be
notified of any judicial proceedings brought under 12S. Id., at 755-756, 360 N.
E. 2d, at 297. [443 U.S. 622, 631]
5. The resolution of 12S cases and any appeals that follow can be expected to
be prompt. The name of the minor and her parents may be held in confidence. If
need be, the Supreme Judicial Court and the superior courts can promulgate rules
or issue orders to ensure that such proceedings are handled expeditiously. Id.,
at 756-758, 360 N. E. 2d, at 297-298.
6. Massachusetts Gen. Laws Ann., ch. 112, 12F (west Supp. 1979), which
provides, inter alia, that certain classes of minors may consent to most kinds
of medical care without parental approval, does not apply to abortions, except
as to minors who are married, widowed, or divorced. See 371 Mass., at 758-762,
360 N. E. 2d, at 298-300. Nor does the State's common-law "mature minor rule"
create an exception to 12S. Id., at 749-750, 360 N. E. 2d, at 294. See n. 27,
Following the judgment of the Supreme Judicial Court,
appellees returned to the District Court and obtained a stay of the enforcement
of 12S until its constitutionality could be determined. Baird v. Bellotti, 428
F. Supp. 854 (Mass. 1977) (Baird II). After permitting discovery by both sides,
holding a pretrial conference, and conducting further hearings, the District
Court again declared 12S unconstitutional and enjoined its enforcement. Baird v.
Bellotti, 450 F. Supp. 997 (Mass. 1978) (Baird III). The court identified three
particular aspects of the statute which, in its view, rendered it
First, as construed by the Supreme Judicial Court, 12S requires parental
notice in virtually every case where the parent is available. The court believed
that the evidence warranted a finding "that many, perhaps a large majority of
17-year olds are capable of informed consent, as are a not insubstantial number
of 16-year olds, and some even younger." Id., at 1001. In addition, the court
concluded that it would not be in [443 U.S. 622, 632] the best interests of some
"immature" minors - those incapable of giving informed consent - even to inform
their parents of their intended abortions. Although the court declined to decide
whether the burden of requiring a minor to take her parents to court was, per
se, an impermissible burden on her right to seek an abortion, it concluded that
Massachusetts could not constitutionally insist that parental permission be
sought or notice given "in those cases where a court, if given free rein, would
find that it was to the minor's best interests that one or both of her parents
not be informed . . . ." Id., at 1002.
Second, the District Court held that 12S was defective in permitting a judge
to veto the abortion decision of a minor found to be capable of giving informed
consent. The court reasoned that upon a finding of maturity and informed
consent, the State no longer was entitled to impose legal restrictions upon this
decision. Id., at 1003. Given such a finding, the court could see "no reasonable
basis" for distinguishing between a minor and an adult, and it therefore
concluded that 12S was not only "an undue burden in the due process sense, [but]
a discriminatory denial of equal protection [as well]." Id., at 1004.
Finally, the court decided that 12S suffered from what it termed "formal
overbreadth," ibid., because the statute failed explicitly to inform parents
that they must consider only the minor's best interests in deciding whether to
grant consent. The court believed that, despite the Supreme Judicial Court's
construction of 12S, parents naturally would infer from the statute that they
were entitled to withhold consent for other, impermissible reasons. This was
thought to create a "chilling effect" by enhancing the possibility that parental
consent would be denied wrongfully and that the minor would have to proceed in
Having identified these flaws in 12S, the District Court considered whether
it should engage in "judicial repair." Id., at 1005. It declined either to sever
the statute or to give [443 U.S. 622, 633]
it a construction different from that set out by the Supreme Judicial Court, as
that tribunal arguably had invited it to do. See Attorney General, 371 Mass., at
745-746, 360 N. E. 2d, at 292. The District Court therefore adhered to its
previous position, declaring 12S unconstitutional and permanently enjoining its
enforcement.11 Appellants sought review in this Court a second time, and we
again noted probable jurisdiction. 439 U.S. 925 (1978).
A child, merely on account of his minority, is not beyond the
protection of the Constitution. As the Court said in In re Gault, 387 U.S. 1, 13
(1967), "whatever may be their precise impact, neither the Fourteenth Amendment
nor the Bill of Rights is for adults alone."12 This observation, of course, is but the beginning of the
analysis. The Court long has recognized that the status of minors under the law
is unique in many respects. As Mr. Justice Frankfurter aptly put it: "Children
have a very special place in life which law should reflect. Legal theories and
their phrasing in other cases readily lead to fallacious reasoning if
uncritically transferred to determination [443
U.S. 622, 634] of a State's duty towards children." May v. Anderson, 345
U.S. 528, 536 (1953) (concurring opinion). The unique role in our society of the
family, the institution by which "we inculcate and pass down many of our most
cherished values, moral and cultural," Moore v. East Cleveland, 431 U.S. 494,
503-504 (1977) (plurality opinion), requires that constitutional principles be
applied with sensitivity and flexibility to the special needs of parents and
children. We have recognized three reasons justifying the conclusion that the
constitutional rights of children cannot be equated with those of adults: the
peculiar vulnerability of children; their inability to make critical decisions
in an informed, mature manner; and the importance of the parental role in child
The Court's concern for the vulnerability of children is
demonstrated in its decisions dealing with minors' claims to constitutional
protection against deprivations of liberty or property interests by the State.
With respect to many of these claims, we have concluded that the child's right
is virtually coextensive with that of an adult. For example, the Court has held
that the Fourteenth Amendment's guarantee against the deprivation of liberty
without due process of law is applicable to children in juvenile delinquency
proceedings. In re Gault, supra. In particular, minors involved in such
proceedings are entitled to adequate notice, the assistance of counsel, and the
opportunity to confront their accusers. They can be found guilty only upon proof
beyond a reasonable doubt, and they may assert the privilege against compulsory
self-incrimination. In re Winship, 397 U.S. 358 (1970); In re Gault, supra. See
also Ingraham v. Wright, 430 U.S. 651, 674 (1977) (corporal punishment of
schoolchildren implicates constitutionally protected liberty interest); cf.
Breed v. Jones, 421 U.S. 519 (1975) (Double Jeopardy Clause prohibits
prosecuting juvenile as an adult after an adjudicatory finding in juvenile court
that he had violated a criminal statute). [443 U.S. 622, 635] Similarly, in Goss v. Lopez,
419 U.S. 565 (1975), the Court held that children may not be deprived of certain
property interests without due process.
These rulings have not been made on the uncritical assumption that the
constitutional rights of children are indistinguishable from those of adults.
Indeed, our acceptance of juvenile courts distinct from the adult criminal
justice system assumes that juvenile offenders constitutionally may be treated
differently from adults. In order to preserve this separate avenue for dealing
with minors, the Court has said that hearings in juvenile delinquency cases need
not necessarily "`conform with all of the requirements of a criminal trial or
even of the usual administrative hearing.'" In re Gault, supra, at 30, quoting
Kent v. United States, 383 U.S. 541, 562 (1966). Thus, juveniles are not
constitutionally entitled to trial by jury in delinquency adjudications.
McKeiver v. Pennsylvania, 403 U.S. 528 (1971). Viewed together, our cases show
that although children generally are protected by the same constitutional
guarantees against governmental deprivations as are adults, the State is
entitled to adjust its legal system to account for children's vulnerability and
their needs for "concern, . . . sympathy, and . . . paternal attention." Id., at
550 (plurality opinion).
Second, the Court has held that the States validly may limit
the freedom of children to choose for themselves in the making of important,
affirmative choices with potentially serious consequences. These rulings have
been grounded in the recognition that, during the formative years of childhood
and adolescence, minors often lack the experience, perspective, and judgment to
recognize and avoid choices that could be detrimental to them.13 [443 U.S. 622, 636]
Ginsberg v. New York, 390 U.S. 629 (1968), illustrates well the Court's
concern over the inability of children to make mature choices, as the First
Amendment rights involved are clear examples of constitutionally protected
freedoms of choice. At issue was a criminal conviction for selling sexually
oriented magazines to a minor under the age of 17 in violation of a New York
state law. It was conceded that the conviction could not have stood under the
First Amendment if based upon a sale of the same material to an adult. Id., at
634. Notwithstanding the importance the Court always has attached to First
Amendment rights, it concluded that "even where there is an invasion of
protected freedoms `the power of the state to control the conduct of children
reaches beyond the scope of its authority over adults . . .,'" id., at 638,
quoting Prince v. Massachusetts, 321 U.S. 158, 170 (1944).14
The Court was convinced that the New York Legislature rationally could conclude
that the sale to children of the magazines in question presented a danger
against which they should be guarded. Ginsberg, supra, at 641. It therefore
rejected the [443 U.S. 622, 637] argument
that the New York law violated the constitutional rights of minors.15
Third, the guiding role of parents in the upbringing of their
children justifies limitations on the freedoms of minors. The State commonly
protects its youth from adverse governmental action and from their own
immaturity by requiring parental consent to or involvement in important
decisions by minors.16 But an additional and more important justification for state
deference to parental control over children is that "[t]he child is not the mere
creature of the State; those who nurture him and direct his destiny have the
right, coupled with the high duty, to recognize and prepare him for additional
obligations." Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925). "The duty
to prepare the child for `additional obligations' . . . [443 U.S. 622, 638] must be read to include the
inculcation of moral standards, religious beliefs, and elements of good
citizenship." Wisconsin v. Yoder, 406 U.S. 205, 233 (1972). This affirmative
process of teaching, guiding, and inspiring by precept and example is essential
to the growth of young people into mature, socially responsible citizens.
We have believed in this country that this process, in large part, is beyond
the competence of impersonal political institutions. Indeed, affirmative
sponsorship of particular ethical, religious, or political beliefs is something
we expect the State not to attempt in a society constitutionally committed to
the ideal of individual liberty and freedom of choice. Thus, "[i]t is cardinal
with us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for obligations
the state can neither supply nor hinder." Prince v. Massachusetts, supra, at 166
Unquestionably, there are many competing theories about the most effective
way for parents to fulfill their central role in assisting their children on the
way to responsible adulthood. While we do not pretend any special wisdom on this
subject, we cannot ignore that central to many of these theories, and deeply
rooted in our Nation's history and tradition, is the belief that the parental
role implies a substantial measure of authority over one's children. Indeed,
"constitutional interpretation has consistently recognized that the parents'
claim to authority in their own household to direct the rearing of their
children is basic in the structure of our society." Ginsberg v. New York, supra,
Properly understood, then, the tradition of parental authority is not
inconsistent with our tradition of individual liberty; rather, the former is one
of the basic presuppositions of the latter. Legal restrictions on minors,
especially those supportive of the parental role, may be important to the
child's chances for the full growth and maturity that make eventual
[443 U.S. 622, 639]
participation in a free society meaningful and rewarding.17 Under the Constitution, the State can "properly conclude that
parents and others, teachers for example, who have [the] primary responsibility
for children's well-being are entitled to the support of laws designed to aid
discharge of that responsibility." Ginsberg v. New York, 390 U.S., at 639.18
With these principles in mind, we consider the specific
constitutional questions presented by these appeals. In 12S, Massachusetts has
attempted to reconcile the constitutional right of a woman, in consultation with
her physician, to choose to terminate her pregnancy as established by Roe v.
Wade, 410 U.S. 113 (1973), and Doe v. Bolton, 410 U.S. 179 (1973), with the
special interest of the State in encouraging an unmarried pregnant minor to seek
the advice of her parents in making the important decision whether or not to
bear a child. As noted above, 12S was before us in Bellotti I, 428 U.S. 132
(1976), where we remanded the case for interpretation of its provisions by the
Supreme Judicial Court of Massachusetts. We previously had held in Planned
Parenthood of Central Missouri v. Danforth, 428 U.S. 52 (1976), that a State
could not lawfully authorize an absolute parental veto over the decision of a
minor to terminate her pregnancy. Id., at 74. In [443 U.S. 622, 640] Bellotti I, supra, we recognized that
12S could be read as "fundamentally different from a statute that creates a
`parental veto,'" 428 U.S., at 145, thus "avoid[ing] or substantially
modify[ing] the federal constitutional challenge to the statute." Id., at 148.
The question before us - in light of what we have said in the prior cases - is
whether 12S, as authoritatively interpreted by the Supreme Judicial Court,
provides for parental notice and consent in a manner that does not unduly burden
the right to seek an abortion. See id., at 147.
Appellees and intervenors contend that even as interpreted by the Supreme
Judicial Court of Massachusetts 12S does unduly burden this right. They suggest,
for example, that the mere requirement of parental notice constitutes such a
burden. As stated in Part II above, however, parental notice and consent are
qualifications that typically may be imposed by the State on a minor's right to
make important decisions. As immature minors often lack the ability to make
fully informed choices that take account of both immediate and long-range
consequences, a State reasonably may determine that parental consultation often
is desirable and in the best interest of the minor.19 It may further determine, as a general proposition, that such
consultation is particularly desirable with respect to the abortion decision -
one that for some people raises profound moral and religious concerns.20 As MR. JUSTICE STEWART wrote in concurrence
in Planned Parenthood of Central Missouri v. Danforth, supra, at 91:
"There can be little doubt that the State furthers a constitutionally
permissible end by encouraging an unmarried
[443 U.S. 622, 641]
pregnant minor to seek the help and advice of her parents in making the very
important decision whether or not to bear a child. That is a grave decision,
and a girl of tender years, under emotional stress, may be ill-equipped to
make it without mature advice and emotional support. It seems unlikely that
she will obtain adequate counsel and support from the attending physician at
an abortion clinic, where abortions for pregnant minors frequently take
place." (Footnote omitted.)21 [443 U.S. 622, 642]
But we are concerned here with a constitutional right to seek an abortion.
The abortion decision differs in important ways from other decisions that may be
made during minority. The need to preserve the constitutional right and the
unique nature of the abortion decision, especially when made by a minor, require
a State to act with particular sensitivity when it legislates to foster parental
involvement in this matter.
The pregnant minor's options are much different from those
facing a minor in other situations, such as deciding whether to marry. A minor
not permitted to marry before the age of majority is required simply to postpone
her decision. She and her intended spouse may preserve the opportunity for later
marriage should they continue to desire it. A pregnant adolescent, however,
cannot preserve for long the possibility of aborting, which effectively expires
in a matter of weeks from the onset of pregnancy.
Moreover, the potentially severe detriment facing a pregnant woman, see Roe
v. Wade, 410 U.S., at 153, is not mitigated by her minority. Indeed, considering
her probable education, employment skills, financial resources, and emotional
maturity, unwanted motherhood may be exceptionally burdensome for a minor. In
addition, the fact of having a child brings with it adult legal responsibility,
for parenthood, like attainment of the age of majority, is one of the
traditional criteria for the termination of the legal disabilities of minority.
In sum, there are few situations in which denying a minor the right to make an
important decision will have consequences so grave and indelible.
Yet, an abortion may not be the best choice for the minor. The circumstances
in which this issue arises will vary widely. In a given case, alternatives to
abortion, such as marriage to the father of the child, arranging for its
adoption, or assuming the responsibilities of motherhood with the assured
support of [443 U.S. 622, 643] family, may
be feasible and relevant to the minor's best interests. Nonetheless, the
abortion decision is one that simply cannot be postponed, or it will be made by
default with far-reaching consequences.
For these reasons, as we held in Planned Parenthood of Central Missouri v.
Danforth, 428 U.S., at 74, "the State may not impose a blanket provision . . .
requiring the consent of a parent or person in loco parentis as a condition for
abortion of an unmarried minor during the first 12 weeks of her pregnancy."
Although, as stated in Part II, supra, such deference to parents may be
permissible with respect to other choices facing a minor, the unique nature and
consequences of the abortion decision make it inappropriate "to give a third
party an absolute, and possibly arbitrary, veto over the decision of the
physician and his patient to terminate the patient's pregnancy, regardless of
the reason for withholding the consent." 428 U.S., at 74. We therefore conclude
that if the State decides to require a pregnant minor to obtain one or both
parents' consent to an abortion, it also must provide an alternative procedure22
whereby authorization for the abortion can be obtained.
A pregnant minor is entitled in such a proceeding to show either: (1) that
she is mature enough and well enough informed to make her abortion decision, in
consultation with her physician, independently of her parents' wishes;23 or [443 U.S. 622, 644]
(2) that even if she is not able to make this decision independently, the
desired abortion would be in her best interests. The proceeding in which this
showing is made must assure that a resolution of the issue, and any appeals that
may follow, will be completed with anonymity and sufficient expedition to
provide an effective opportunity for an abortion to be obtained. In sum, the
procedure must ensure that the provision requiring parental consent does not in
fact amount to the "absolute, and possibly arbitrary, veto" that was found
impermissible in Danforth. Ibid.
It is against these requirements that 12S must be tested. We
observe initially that as authoritatively construed by the highest court of the
State, the statute satisfies some of the concerns that require special treatment
of a minor's abortion decision. It provides that if parental consent is refused,
authorization may be "obtained by order of a judge of the superior court for
good cause shown, after such hearing as he deems necessary." A superior court
judge presiding over a 12S proceeding "must disregard all parental objections,
and other considerations, which are not based exclusively on what would serve
the minor's best interests."24 Attorney General, [443 U.S. 622, 645] 371 Mass., at 748, 360 N. E.
2d, at 293. The Supreme Judicial Court also stated: "Prompt resolution of a [
12S] proceeding may be expected. . . . The proceeding need not be brought in the
minor's name and steps may be taken, by impoundment or otherwise, to preserve
confidentiality as to the minor and her parents. . . . [W]e believe that an
early hearing and decision on appeal from a judgment of a Superior Court judge
may also be achieved." Id., at 757-758, 360 N. E. 2d, at 298. The court added
that if these expectations were not met, either the superior court, in the
exercise of its rulemaking power, or the Supreme Judicial Court would be willing
to eliminate any undue burdens by rule or order. Ibid.25
Despite these safeguards, which avoid much of what was objectionable in the
statute successfully challenged in Danforth, 12S falls short of constitutional
standards in certain respects. We now consider these.
[443 U.S. 622, 646]
Among the questions certified to the Supreme Judicial Court
was whether 12S permits any minors - mature or immature - to obtain judicial
consent to an abortion without any parental consultation whatsoever. See n. 9,
supra. The state court answered that, in general, it does not. "[T]he consent
required by [ 12S must] be obtained for every nonemergency abortion where the
mother is less than eighteen years of age and unmarried." Attorney General,
supra, at 750, 360 N. E. 2d, at 294. The text of 12S itself states an exception
to this rule, making consent unnecessary from any parent who has "died or has
deserted his or her family."26 The Supreme Judicial Court construed the statute as
containing an additional exception: Consent need not be obtained "where no
parent (or statutory substitute) is available." 371 Mass., at 750, 360 N. E. 2d,
at 294. The court also ruled that an available parent must be given notice of
any judicial proceedings brought by a minor to obtain consent for an abortion.27 Id., at 755-756, 360 N. E. 2d, at 297. [443 U.S. 622, 647]
We think that, construed in this manner, 12S would impose an undue burden
upon the exercise by minors of the right to seek an abortion. As the District
Court recognized, "there are parents who would obstruct, and perhaps altogether
prevent, the minor's right to go to court." Baird III, 450 F. Supp., at 1001.
There is no reason to believe that this would be so in the majority of cases
where consent is withheld. But many parents hold strong views on the subject of
abortion, and young pregnant minors, especially those living at home, are
particularly vulnerable to their parents' efforts to obstruct both an abortion
and their access to court. It would be unrealistic, therefore, to assume that
the mere existence of a legal right to seek relief in superior court provides an
effective avenue of relief for some of those who need it the most.
We conclude, therefore, that under state regulation such as that undertaken
by Massachusetts, every minor must have the opportunity - if she so desires - to
go directly to a court without first consulting or notifying her parents. If she
satisfies the court that she is mature and well enough informed to make
intelligently the abortion decision on her own, the court must authorize her to
act without parental consultation or consent. If she fails to satisfy the court
that she is competent to make this decision independently, she must be permitted
to show that an abortion nevertheless would be in her [443 U.S. 622, 648] best interests. If the court is
persuaded that it is, the court must authorize the abortion. If, however, the
court is not persuaded by the minor that she is mature or that the abortion
would be in her best interests, it may decline to sanction the operation.
There is, however, an important state interest in encouraging a family rather
than a judicial resolution of a minor's abortion decision. Also, as we have
observed above, parents naturally take an interest in the welfare of their
children - an interest that is particularly strong where a normal family
relationship exists and where the child is living with one or both parents.
These factors properly may be taken into account by a court called upon to
determine whether an abortion in fact is in a minor's best interests. If, all
things considered, the court determines that an abortion is in the minor's best
interests, she is entitled to court authorization without any parental
involvement. On the other hand, the court may deny the abortion request of an
immature minor in the absence of parental consultation if it concludes that her
best interests would be served thereby, or the court may in such a case defer
decision until there is parental consultation in which the court may
participate. But this is the full extent to which parental involvement may be
required.28 For the reasons stated above,
the constitutional right to seek an abortion may not be unduly burdened by
state-imposed conditions upon initial access to court.
Section 12S requires that both parents consent to a minor's
abortion. The District Court found it to be "custom" to perform other medical
and surgical procedures on minors with the consent of only one parent, and it
concluded that "nothing about abortions . . . requires the minor's interest to
be treated [443 U.S. 622, 649] differently." Baird I, 393
F. Supp., at 852. See Baird III, supra, at 1004 n. 9.
We are not persuaded that, as a general rule, the requirement of obtaining
both parents' consent unconstitutionally burdens a minor's right to seek an
abortion. The abortion decision has implications far broader than those
associated with most other kinds of medical treatment. At least when the parents
are together and the pregnant minor is living at home, both the father and
mother have an interest - one normally supportive - in helping to determine the
course that is in the best interests of a daughter. Consent and involvement by
parents in important decisions by minors long have been recognized as protective
of their immaturity. In the case of the abortion decision, for reasons we have
stated, the focus of the parents' inquiry should be the best interests of their
daughter. As every pregnant minor is entitled in the first instance to go
directly to the court for a judicial determination without prior parental
notice, consultation, or consent, the general rule with respect to parental
consent does not unduly burden the constitutional right. Moreover, where the
pregnant minor goes to her parents and consent is denied, she still must have
recourse to a prompt judicial determination of her maturity or best interests.29
Another of the questions certified by the District Court to
the Supreme Judicial Court was the following: "If the superior court finds that
the minor is capable [of making], and has, in fact, made and adhered to, an
informed and reasonable decision to have an abortion, may the court refuse its
consent based on a finding that a parent's, or its own, contrary decision
[443 U.S. 622, 650]
is a better one?" Attorney General, 371 Mass., at 747 n. 5, 360 N. E. 2d, at 293
n. 5. To this the state court answered:
"[W]e do not view the judge's role as limited to a determination that the
minor is capable of making, and has made, an informed and reasonable
decision to have an abortion. Certainly the judge must make a determination
of those circumstances, but, if the statutory role of the judge to determine
the best interests of the minor is to be carried out, he must make a finding
on the basis of all relevant views presented to him. We suspect that the
judge will give great weight to the minor's determination, if informed and
reasonable, but in circumstances where he determines that the best interests
of the minor will not be served by an abortion, the judge's determination
should prevail, assuming that his conclusion is supported by the evidence
and adequate findings of fact." Id., at 748, 360 N. E. 2d, at 293.
The Supreme Judicial Court's statement reflects the general rule that a State
may require a minor to wait until the age of majority before being permitted to
exercise legal rights independently. See n. 23, supra. But we are concerned here
with the exercise of a constitutional right of unique character. See supra, at
642-643. As stated above, if the minor satisfies a court that she has attained
sufficient maturity to make a fully informed decision, she then is entitled to
make her abortion decision independently. We therefore agree with the District
Court that 12S cannot constitutionally permit judicial disregard of the abortion
decision of a minor who has been determined to be mature and fully competent to
assess the implications of the choice she has made.30 [443 U.S. 622, 651]
Although it satisfies constitutional standards in large part,
12S falls short of them in two respects: First, it permits judicial
authorization for an abortion to be withheld from a minor who is found by the
superior court to be mature and fully competent to make this decision
independently. Second, it requires parental consultation or notification in
every instance, without affording the pregnant minor an opportunity to receive
an independent judicial determination that she is mature enough to consent or
that an abortion would be in her best interests.31 Accordingly, we affirm the judgment of the District Court
insofar as it invalidates this statute and enjoins its enforcement.32
[Footnote 1] The court promptly issued a
restraining order which remained in effect until its decision on the merits.
Subsequent stays of enforcement were issued during the complex course of this
litigation, with the result that Mass. Gen. Laws Ann., ch. 112, 12S (West Supp.
1979), never has been enforced by Massachusetts.
[Footnote 2] As originally enacted, 12S
was designated as 12P of chapter 112. In 1977, the provision was renumbered as
12S, and the numbering of subdivisions within the section was eliminated. No
changes of substance were made. We shall refer to the section as 12S throughout
[Footnote 3] The proceedings before the
court and the substance of its opinion are described in detail in Bellotti v.
Baird, 428 U.S. 132, 136-143 (1976).
[Footnote 4] Three other minors in similar
circumstances were named in the complaint, but the complaint was dismissed as to
them for want of proof of standing. That decision has not been challenged on
[Footnote 5] Appellants argue that these
"immature" minors never were before the District Court and that the court's
remedy should have been tailored to grant relief only to the class of "mature"
minors. It is apparent from the District Court's opinions, however, that it
considered the constitutionality of 12S as applied to all pregnant minors who
might be affected by it. We accept that the rights of this entire category of
minors properly were subject to adjudication.
[Footnote 6] In 1978, the District Court
permitted postjudgment intervention by these parties, who now appear jointly
before this Court as intervenor-appellees.
[Footnote 7] As their positions are
closely aligned, if not identical, appellants in Nos. 78-329 and 78-330 are
hereinafter referred to collectively as appellants.
[Footnote 8] One member of the three-judge
court dissented, arguing that the decision of the majority to allow Mary Moe to
proceed in the case without notice to her parents denied them their parental
rights without due process of law, and that 12S was consistent with the
decisions of this Court recognizing the propriety of parental control over the
conduct of children. See 393 F. Supp., at 857-865.
[Footnote 9] The nine questions certified
by the District Court, with footnotes omitted, are as follows: "1. What
standards, if any, does the statute establish for a parent to apply when
considering whether or not to grant consent? "a) Is the parent to consider
`exclusively . . . what will serve the child's best interest'? "b) If the parent
is not limited to considering exclusively the minor's best interests, can the
parent take into consideration the `long-term consequences to the family and her
parents' marriage relationship'? "c) Other? "2. What standard or standards is
the superior court to apply? "a) Is the superior court to disregard all parental
objections that are not based exclusively on what would serve the minor's best
interests? "b) If the superior court finds that the minor is capable, and has,
in fact, made and adhered to, an informed and reasonable decision to have an
abortion, may the court refuse its consent based on a finding that a parent's,
or its own, contrary decision is a better one? "c) Other? "3. Does the
Massachusetts law permit a minor (a) `capable of giving informed consent,' or
(b) `incapable of giving informed consent,' `to obtain [a court] order without
parental consultation'? "4. If the court answers any of question 3 in the
affirmative, may the superior court, for good cause shown, enter an order
authorizing an abortion, (a), without prior notification to the parents, and
(b), without subsequent notification? "5. Will the Supreme Judicial Court
prescribe a set of procedures to implement c. 112, [ 12S] which will expedite
the application, hearing and decision phases of the superior court proceeding
provided thereunder? Appeal? "6. To what degree do the standards and procedures
set forth in c. 112, 12F (Stat. 1975, c. 564), authorizing minors to give
consent to medical and dental care in specified circumstances, parallel the
grounds and procedures for showing good cause under c. 112, [ 12S]? "7. May a
minor, upon a showing of indigency, have court-appointed counsel? "8. Is it a
defense to his criminal prosecution if a physician performs an abortion solely
with the minor's own, valid, consent, that he reasonably,
[443 U.S. 622, 630]
and in good faith, though erroneously, believed that she was eighteen or more
years old or had been married? "9. Will the Court make any other comments about
the statute which, in its opinion, might assist us in determining whether it
infringes the United States Constitution?"
[Footnote 10] Section 12S itself
dispenses with the need for the consent of any parent who "has died or has
deserted his or her family."
[Footnote 11] The dissenting judge
agreed that the State could not permit a judge to override the decision of a
minor found to be mature and capable of giving informed consent to an abortion.
He disagreed with the remainder of the court's conclusions: the best-interests
limitation on the withholding of parental consent in the Supreme Judicial
Court's opinion, he argued, must be treated as if part of the statutory language
itself; and he read the evidentiary record as proving that only rarely would a
pregnant minor's interests be disserved by consulting with her parents about a
desired abortion. He also noted the value to a judge in a 12S proceeding of
having the parents before him as a source of evidence as to the minor's maturity
and what course would serve her best interests. See Baird III, 450 F. Supp., at
[Footnote 12] Similarly, the Court said
in Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 74 (1976):
"Constitutional rights do not mature and come into being magically only when one
attains the state-defined age of majority. Minors, as well as adults, are
protected by the Constitution and possess constitutional rights."
[Footnote 13] As MR. JUSTICE STEWART
wrote of the exercise by minors of the First Amendment rights that "secur[e] . .
. the liberty of each man to [443 U.S. 622, 636]
decide for himself what he will read and to what he will listen," Ginsberg v.
New York, 390 U.S. 629, 649 (1968) (concurring in result): "[A]t least in some
precisely delineated areas, a child - like someone in a captive audience - is
not possessed of that full capacity for individual choice which is the
presupposition of First Amendment guarantees. It is only upon such a premise, I
should suppose, that a State may deprive children of other rights - the right to
marry, for example, or the right to vote - deprivations that would be
constitutionally intolerable for adults." Id., at 649-650 (footnotes omitted).
[Footnote 14] In Prince an adult had
permitted a child in her custody to sell religious literature on a public street
in violation of a state child-labor statute. The child had been permitted to
engage in this activity upon her own sincere request. 321 U.S., at 162. In
upholding the adult's conviction under the statute, we found that "the interests
of society to protect the welfare of children" and to give them "opportunities
for growth into free and independent well-developed men and citizens," id., at
165, permitted the State to enforce its statute, which "[c]oncededly . . . would
be invalid," id., at 167, if made applicable to adults.
[Footnote 15] Although the State has
considerable latitude in enacting laws affecting minors on the basis of their
lesser capacity for mature, affirmative choice, Tinker v. Des Moines School
Dist., 393 U.S. 503 (1969), illustrates that it may not arbitrarily deprive them
of their freedom of action altogether. The Court held in Tinker that a
schoolchild's First Amendment freedom of expression entitled him, contrary to
school policy, to attend school wearing a black armband as a silent protest
against American involvement in the hostilities in Vietnam. The Court
acknowledged that the State was permitted to prohibit conduct otherwise shielded
by the Constitution that "for any reason - whether it stems from time, place, or
type of behavior - materially disrupts classwork or involves substantial
disorder or invasion of the rights of others." Id., at 513. It upheld the First
Amendment right of the schoolchildren in that case, however, not only because it
found no evidence in the record that their wearing of black armbands threatened
any substantial interference with the proper objectives of the school district,
but also because it appeared that the challenged policy was intended primarily
to stifle any debate whatsoever - even nondisruptive discussions - on important
political and moral issues. See id., at 510.
[Footnote 16] See, e. g., Mass. Gen.
Laws Ann., ch. 207 7, 24, 25, 33, 33A (West 1958 and Supp. 1979) (parental
consent required for marriage of person under 18); Mass. Gen. Laws Ann., ch.
119, 55A (West Supp. 1979) (waiver of counsel by minor in juvenile delinquency
proceedings must be made through parent or guardian).
[Footnote 17] See Hafen, Children's
Liberation and the New Egalitarianism: Some Reservations About Abandoning
Children to Their "Rights," 1976 B. Y. U. L. Rev. 605.
[Footnote 18] The Court's opinions
discussed in the text above - Pierce, Yoder, Prince, and Ginsberg - all have
contributed to a line of decisions suggesting the existence of a constitutional
parental right against undue, adverse interference by the State. See also Smith
v. Organization of Foster Families, 431 U.S. 816, 842-844 (1977); Carey v.
Population Services International, 431 U.S. 678, 708 (1977) (opinion of POWELL,
J.); Moore v. East Cleveland, 431 U.S. 494 (1977) (plurality opinion); Stanley
v. Illinois, 405 U.S. 645, 651 (1972); Meyer v. Nebraska, 262 U.S. 390, 399
(1923). Cf. Parham v. J. R., 442 U.S. 584 (1979); id., at 621 (STEWART, J.,
concurring in result).
[Footnote 19] In Planned Parenthood of
Central Missouri v. Danforth, 428 U.S., at 75, "[w]e emphasize[d] that our
holding . . . [did] not suggest that every minor, regardless of age or maturity,
may give effective consent for termination of her pregnancy."
[Footnote 20] The expert testimony at
the hearings in the District Court uniformly was to the effect that parental
involvement in a minor's abortion decision, if compassionate and supportive, was
highly desirable. The findings of the court reflect this consensus. See Baird I,
393 F. Supp., at 853.
[Footnote 21] MR. JUSTICE STEWART'S
concurring opinion in Danforth underscored the need for parental involvement in
minors' abortion decisions by describing the procedures followed at the clinic
operated by the Parents Aid Society and Dr. Gerald Zupnick: "The counseling . .
. occurs entirely on the day the abortion is to be performed . . . . It lasts
for two hours and takes place in groups that include both minors and adults who
are strangers to one another . . . . The physician takes no part in this
counseling process . . . . Counseling is typically limited to a description of
abortion procedures, possible complications, and birth control techniques . . .
. "The abortion itself takes five to seven minutes . . . . The physician has no
prior contact with the minor, and on the days that abortions are being performed
at the [clinic], the physician . . . may be performing abortions on many other
adults and minors . . . . On busy days patients are scheduled in separate
groups, consisting usually of five patients . . . . After the abortion [the
physician] spends a brief period with the minor and others in the group in the
recovery room . . . ." 428 U.S., at 91-92, n. 2, quoting Brief for Appellants in
Bellotti I, O. T. 1975, No. 75-73, pp. 43-44. In Roe v. Wade, 410 U.S. 113
(1973), and Doe v. Bolton, 410 U.S. 179 (1973), we emphasized the importance of
the role of the attending physician. Those cases involved adult women presumably
capable of selecting and obtaining a competent physician. In this case, however,
we are concerned only with minors who, according to the record, may range in age
from children of 12 years to 17-year-old teenagers. Even the latter are less
likely than adults to know or be able to recognize ethical, qualified
physicians, or to have the means to engage such professionals. Many minors who
bypass their parents probably will resort to an abortion clinic, without being
able to distinguish the competent and ethical from those that are incompetent or
[Footnote 22] As 12S provides for
involvement of the state superior court in minors' abortion decisions, we
discuss the alternative procedure described in the text in terms of judicial
proceedings. We do not suggest, however, that a State choosing to require
parental consent could not delegate the alternative procedure to a juvenile
court or an administrative agency or officer. Indeed, much can be said for
employing procedures and a forum less formal than those associated with a court
of general jurisdiction.
[Footnote 23] The nature of both the
State's interest in fostering parental authority and the problem of determining
"maturity" makes clear why the State generally may resort to objective, though
inevitably arbitrary, criteria such as age limits, marital status, or membership
in the Armed Forces for lifting some or all of the legal disabilities of
minority. Not only is it difficult to [443 U.S.
622, 644] define, let alone determine, maturity, but also the fact that a
minor may be very much an adult in some respects does not mean that his or her
need and opportunity for growth under parental guidance and discipline have
ended. As discussed in the text, however, the peculiar nature of the abortion
decision requires the opportunity for case-by-case evaluations of the maturity
of pregnant minors.
[Footnote 24] The Supreme Judicial Court
held that 12S imposed this standard on the superior court in large part because
it construed the statute as containing the same restriction on parents. See
supra, at 630. The court concluded that the judge should not be entitled "to
exercise his authority on a standard broader than that to which a parent must
adhere." Attorney General, 371 Mass., at 748, 360 N. E. 2d, at 293. Intervenors
argue that, assuming state-supported parental involvement in the minor's
abortion decision is permissible, the State may not endorse
[443 U.S. 622, 645] the withholding of parental consent for any reason
not believed to be in the minor's best interests. They agree with the District
Court that, even though 12S was construed by the highest state court to impose
this restriction, the statute is flawed because the restriction is not apparent
on its face. Intervenors thus concur in the District Court's assumption that the
statute will encourage parents to withhold consent for impermissible reasons.
See Baird III, 450 F. Supp., at 1004-1005; Baird II, 428 F. Supp. 854, 855-856
(Mass. 1977). There is no basis for this assertion. As a general rule, the
interpretation of a state statute by the State's highest court "is as though
written into the ordinance itself," Poulos v. New Hampshire, 345 U.S. 395, 402
(1953), and we are obliged to view the restriction on the parental-consent
requirement "as if [ 12S] had been so amended by the [Massachusetts]
legislature." Winters v. New York, 333 U.S. 507, 514 (1948).
[Footnote 25] Intervenors take issue
with the Supreme Judicial Court's assurances that judicial proceedings will
provide the necessary confidentiality, lack of procedural burden, and speed of
resolution. In the absence of any evidence as to the operation of judicial
proceedings under 12S - and there is none, since appellees successfully sought
to enjoin Massachusetts from putting it into effect - we must assume that the
Supreme Judicial Court's judgment is correct.
[Footnote 26] The statute also provides
that "[i]f 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."
[Footnote 27] This reading of the
statute requires parental consultation and consent more strictly than appellants
themselves previously believed was necessary. In their first argument before
this Court, and again before the Supreme Judicial Court, appellants argued that
12S was not intended to abrogate Massachusetts' common-law "mature minor" rule
as it applies to abortions. See 428 U.S., at 144. They also suggested that,
under some circumstances, 12S might permit even immature minors to obtain
judicial approval for an abortion without any parental consultation. See 428
U.S., at 145; Attorney General, supra, at 751, 360 N. E. 2d, at 294. The Supreme
Judicial Court sketched the outlines of the mature minor rule that would apply
in the absence of 12S: "The mature minor rule calls for an analysis of the
nature of the operation, its likely benefit, and the capacity of the particular
minor to understand fully what the medical procedure involves. . . . Judicial
intervention is not required. If
[443 U.S. 622, 647] judicial approval is
obtained, however, the doctor is protected from a subsequent claim that the
circumstances did not warrant his reliance on the mature minor rule, and, of
course, the minor patient is afforded advance protection against a
misapplication of the rule." Id., at 752, 360 N. E. 2d, at 295. "We conclude
that, apart from statutory limitations which are constitutional, where the best
interests of a minor will be served by not notifying his or her parents of
intended medical treatment and where the minor is capable of giving informed
consent to that treatment, the mature minor rule applies in this Commonwealth."
Id., at 754, 360 N. E. 2d, at 296. The Supreme Judicial Court held that the
common-law mature minor rule was inapplicable to abortions because it had been
legislatively superseded by 12S.
[Footnote 28] Of course, if the minor
consults with her parents voluntarily and they withhold consent, she is free to
seek judicial authorization for the abortion immediately.
[Footnote 29] There will be cases where
the pregnant minor has received approval of the abortion decision by one parent.
In that event, the parent can support the daughter's request for a prompt
judicial determination, and the parent's support should be given great, if not
[Footnote 30] Appellees and intervenors
have argued that 12S violates the Equal Protection Clause of the Fourteenth
Amendment. As we have concluded that the statute is constitutionally infirm for
other reasons, there is no need to consider this question.
[Footnote 31] Section 12S evidently
applies to all nonemergency abortions performed on minors, without regard to the
period in pregnancy during which the procedure occurs. As the court below
recognized, most abortions are performed during the early stages of pregnancy,
before the end of the first trimester. See Baird III, 450 F. Supp., at 1001;
Baird I, 393 F. Supp., at 853. This coincides approximately with the
pre-viability period during which a pregnant woman's right to decide, in
consultation with her physician, to have an abortion is most immune to state
intervention. See Roe v. Wade, 410 U.S., at 164-165. The propriety of parental
involvement in a minor's abortion decision does not diminish as the pregnancy
progresses and legitimate concerns for the pregnant minor's health increase.
Furthermore, the opportunity for direct access to court which we have described
is adequate to safeguard throughout pregnancy the constitutionally protected
interests of a minor in the abortion decision. Thus, although a significant
number of abortions within the scope of 12S might be performed during the later
stages of pregnancy, we do not believe a different analysis of the statute is
required for them.
[Footnote 32] The opinion of MR. JUSTICE
STEVENS, concurring in the judgment, joined by three Members of the Court,
characterizes this opinion as "advisory" [443
U.S. 622, 652] and the questions it addresses as "hypothetical."
Apparently, this is criticism of our attempt to provide some guidance as to how
a State constitutionally may provide for adult involvement - either by parents
or a state official such as a judge - in the abortion decisions of minors. In
view of the importance of the issue raised, and the protracted litigation to
which these parties already have been subjected, we think it would be
irresponsible simply to invalidate 12S without stating our views as to the
controlling principles. The statute before us today is the same one that was
here in Bellotti I. The issues it presents were not then deemed "hypothetical."
In a unanimous opinion, we remanded the case with directions that appropriate
questions be certified to the Supreme Judicial Court of Massachusetts
"concerning the meaning of [ 12S] and the procedure it imposes." 428 U.S., at
151. We directed that this be done because, as stated in the opinion, we thought
the construction of 12S urged by appellants would "avoid or substantially modify
the federal constitutional challenge to the statute." Id., at 148. The central
feature of 12S was its provision that a state-court judge could make the
ultimate decision, when necessary, as to the exercise by a minor of the right to
an abortion. See id., at 145. We held that this "would be fundamentally
different from a statute that creates a `parental veto' [of the kind rejected in
Danforth.]" Ibid. (footnote omitted). Thus, all Members of the Court agreed that
providing for decisionmaking authority in a judge was not the kind of veto power
held invalid in Danforth. The basic issues that were before us in Bellotti I
remain in the case, sharpened by the construction of 12S by the Supreme Judicial
MR. JUSTICE REHNQUIST, concurring.
I join the opinion of MR. JUSTICE POWELL and the judgment of the Court. At
such time as this Court is willing to [443 U.S.
reconsider its earlier decision in Planned Parenthood of Central Missouri v.
Danforth, 428 U.S. 52 (1976), in which I joined the opinion of MR. JUSTICE
WHITE, dissenting in part, I shall be more than willing to participate in that
task. But unless and until that time comes, literally thousands of judges cannot
be left with nothing more than the guidance offered by a truly fragmented
holding of this Court.
MR. JUSTICE STEVENS, with whom MR. JUSTICE BRENNAN, MR. JUSTICE MARSHALL, and
MR. JUSTICE BLACKMUN join, concurring in the judgment.
In Roe v. Wade, 410 U.S. 113, the Court held that a woman's right to decide
whether to terminate a pregnancy is [443 U.S. 622, 653] entitled to constitutional
protection. In Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52,
72-75, the Court held that a pregnant minor's right to make the abortion
decision may not be conditioned on the consent of one parent. I am persuaded
that these decisions require affirmance of the District Court's holding that the
Massachusetts statute is unconstitutional.
The Massachusetts statute is, on its face, simple and straightforward. It
provides that every woman under 18 who has not married must secure the consent
of both her parents before receiving an abortion. "If one or both of the
mother's parents refuse such consent, consent may be obtained by order of a
judge of the superior court for good cause shown." Mass. Gen. Laws Ann., ch.
112, 12S (West Supp. 1979).
Whatever confusion or uncertainty might have existed as to how this statute
was to operate, see Bellotti v. Baird, 428 U.S. 132, has been eliminated by the
authoritative construction of its provisions by the Massachusetts Supreme
Judicial Court. See Baird v. Attorney General, 371 Mass. 741, 360 N. E. 2d 288
(1977). The statute was construed to require that every minor who wishes an
abortion must first seek the consent of both parents, unless a parent is not
available or unless the need for the abortion constitutes "`an emergency
requiring immediate action.'" Id., at 750, 360 N. E. 2d, at 294. Both parents,
so long as they are available, must also receive notice of judicial proceedings
brought under the statute by the minor. In those proceedings, the task of the
judge is to determine whether the best interests of the minor will be served by
an abortion. The decision is his to make, even if he finds "that the minor is
capable of making, and has made, an informed and reasonable decision to have an
abortion." Id., at 748, 360 N. E. 2d, at 293. Thus, no minor in Massachusetts,
no matter how mature and capable of informed decisionmaking, may receive an
abortion without the consent [443 U.S. 622, 654]
of either both her parents or a superior court judge. In every instance, the
minor's decision to secure an abortion is subject to an absolute third-party
In Planned Parenthood of Central Missouri v. Danforth, supra, this Court
invalidated statutory provisions requiring the consent of the husband of a
married woman and of one parent of a pregnant minor to an abortion. As to the
spousal consent, the Court concluded that "we cannot hold that the State has the
constitutional authority to give the spouse unilaterally the ability to prohibit
the wife from terminating her pregnancy, when the State itself lacks that
right." 428 U.S., at 70. And as to the parental consent, the Court held that
"[j]ust as with the requirement of consent from the spouse, so here, the State
does not have the constitutional authority to give a third party an absolute,
and possibly arbitrary, veto over the decision of the physician and his patient
to terminate the patient's pregnancy, regardless of the reason for withholding
the consent." Id., at 74. These holdings, I think, equally apply to the
Massachusetts statute. The differences between the two statutes are few. Unlike
the Missouri statute, Massachusetts requires the consent of both of the woman's
parents. It does, of course, provide an alternative in the form of a suit
initiated by the woman in superior court. But in that proceeding, the judge is
afforded an absolute veto over the minor's decisions, based on his judgment of
her best interests. In Massachusetts, then, as in Missouri, the State has
imposed an "absolute limitation on the minor's right to obtain an abortion."
id., at 90 (STEWART, J., concurring), applicable to every pregnant minor in the
State who has not married. [443 U.S. 622, 655]
The provision of an absolute veto to a judge - or, potentially, to an
appointed administrator2 - is to me
particularly troubling. The constitutional right to make the abortion decision
affords protection to both of the privacy interests recognized in this Court's
cases: "One is the individual interest in avoiding disclosure of personal
matters, and another is the interest in independence in making certain kinds of
important decisions." Whalen v. Roe, 429 U.S. 589, 599-600 (footnotes omitted).
It is inherent in the right to make the abortion decision that the right may be
exercised without public scrutiny and in defiance of the contrary opinion of the
sovereign or other third parties. In Massachusetts, however, every minor who
cannot secure the consent of both her parents - which under Danforth cannot be
an absolute prerequisite to an abortion - is required to secure the consent of
the sovereign. As a practical matter, I would suppose that the need to commence
judicial proceedings in order to obtain a legal abortion would impose a burden
at least as great as, and probably greater than, that imposed on the minor child
by the need to obtain the consent of a parent.3
Moreover, once this burden is met, the only standard provided for the judge's
decision is the best interest of the minor. That standard provides little real
guidance to the judge, and his decision must necessarily reflect personal and
societal values and mores whose enforcement upon the minor - particularly when
contrary to her own informed and reasonable decision - is fundamentally at odds
[443 U.S. 622, 656]
with privacy interests underlying the constitutional protection afforded to her
In short, it seems to me that this litigation is governed by Danforth; to the
extent this statute differs from that in Danforth, it is potentially even more
restrictive of the constitutional right to decide whether or not to terminate a
pregnancy. Because the statute has been once authoritatively construed by the
Massachusetts Supreme Judicial Court, and because it is clear that the statute
as written and construed is not constitutional, I agree with MR. JUSTICE POWELL
that the District Court's judgment should be affirmed. Because his opinion goes
further, however, and addresses the constitutionality of an abortion statute
that Massachusetts has not enacted, I decline to join his opinion.4
[Footnote 1] By affording such a veto,
the Massachusetts statute does far more than simply provide for notice to the
parents. See post, at 657 (WHITE, J., dissenting). Neither Danforth nor this
case determines the constitutionality of a statute which does no more than
require notice to the parents, without affording them or any other third party
an absolute veto.
[Footnote 2] See ante, at 643 n. 22.
[Footnote 3] A minor may secure the
assistance of counsel in filing and prosecuting her suit, but that is not
guaranteed. The Massachusetts Supreme Judicial Court in response to the question
whether a minor, upon a showing of indigency, may have court-appointed counsel,
"construe[d] the statutes of the Commonwealth to authorize the appointment of
counsel or a guardian ad litem for an indigent minor at public expense, if
necessary, if the judge, in his discretion, concludes that the best interests of
the minor would be served by such an appointment." Baird v. Attorney General,
371 Mass. 741, 764, 360 N. E. 2d 288, 301 (1977) (emphasis added).
[Footnote 4] Until and unless
Massachusetts or another State enacts a less restrictive statutory scheme, this
Court has no occasion to render an advisory opinion on the constitutionality of
such a scheme. A real statute - rather than a mere outline of a possible statute
- and a real case or controversy may well present questions that appear quite
different from the hypothetical questions MR. JUSTICE POWELL has elected to
address. Indeed, there is a certain irony in his suggestion that a statute that
is intended to vindicate "the special interest of the State in encouraging an
unmarried pregnant minor to seek the advice of her parents in making the
important decision whether or not to bear a child," see ante, at 639, need not
require notice to the parents of the minor's intended decision. That irony makes
me wonder whether any legislature concerned with parental consultation would, in
the absence of today's advisory opinion, have enacted a statute comparable to
the one my Brethren have discussed.
MR. JUSTICE WHITE, dissenting.
I was in dissent in Planned Parenthood of Central Missouri v. Danforth, 428
U.S. 52, 94-95 (1976), on the issue of the validity of requiring the consent of
a parent when an unmarried woman under 18 years of age seeks an abortion. I
continue to have the views I expressed there and also agree with much of what
MR. JUSTICE STEVENS said in dissent in that [443
U.S. 622, 657] case. Id., at 101-105. I would not, therefore, strike down
this Massachusetts law.
But even if a parental consent requirement of the kind involved in Danforth
must be deemed invalid, that does not condemn the Massachusetts law, which, when
the parents object, authorizes a judge to permit an abortion if he concludes
that an abortion is in the best interests of the child. Going beyond Danforth,
the Court now holds it unconstitutional for a State to require that in all cases
parents receive notice that their daughter seeks an abortion and, if they object
to the abortion, an opportunity to participate in a hearing that will determine
whether it is in the "best interests" of the child to undergo the surgery. Until
now, I would have thought inconceivable a holding that the United States
Constitution forbids even notice to parents when their minor child who seeks
surgery objects to such notice and is able to convince a judge that the parents
should be denied participation in the decision.
With all due respect, I dissent. [443 U.S.
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