U.S. Supreme Court
H. L. v. MATHESON, 450 U.S. 398 (1981)
450 U.S. 398
H. L. v. MATHESON, GOVERNOR OF UTAH, ET AL.
APPEAL FROM THE SUPREME COURT OF UTAH.
Argued October 6, 1980.
Decided March 23, 1981.
A Utah statute requires a physician to "[n]otify, if possible," the parents
or guardian of a minor upon whom an abortion is to be performed. Appellant,
while an unmarried minor living with and dependent on her parents, became
pregnant. A physician advised her that an abortion would be in her best medical
interest but, because of the statute, refused to perform the abortion without
first notifying her parents. Believing that she should proceed with the abortion
without notifying her parents, appellant instituted a suit in state court
seeking a declaration that the statute is unconstitutional and an injunction
against its enforcement. She sought to represent a class consisting of unmarried
minors "who are suffering unwanted pregnancies and desire to terminate the
pregnancies but may not do so" because of their physicians' insistence on
complying with the statute. The trial court upheld the statute as not
unconstitutionally restricting a minor's right of privacy to obtain an abortion
or to enter into a doctor-patient relationship. The Utah Supreme Court affirmed.
1. Since appellant did not allege or offer evidence that either she or
any member of her class is mature or emancipated, she lacks standing to
challenge the Utah statute as being unconstitutional on its face on the
ground of overbreadth in that it could be construed to apply to all
unmarried minor girls, including those who are mature and emancipated.
Harris v. McRae, 448 U.S. 297. Moreover, the State is bound by a ruling in
another case that the statute does not apply to emancipated minors, and the
Utah Supreme Court has had no occasion to consider the statute's application
to mature minors. Pp. 405-407.
2. As applied to an unemancipated minor girl living with and dependent upon
her parents, and making no claim or showing as to maturity or as to her
relations with her parents, the Utah statute serves important state
interests, is narrowly drawn to protect only those interests, and does not
violate any guarantees of the Constitution. Pp. 407-413.
(a) Although a state may not constitutionally legislate a blanket,
unreviewable power of parents to veto their daughter's abortion, Bellotti v.
Baird, 443 U.S. 622; Planned Parenthood of Central Mo. v. Danforth, 428 U.S.
52, a statute setting out a mere requirement of parental notice when
possible does not violate the constitutional rights of an immature,
dependent minor. Pp. 407-410. [450 U.S. 398, 399]
(b) The Utah statute does not give parents a veto power over the
minor's abortion decision. As applied to immature and dependent minors, the
statute serves important considerations of family integrity and protecting
adolescents as well as providing an opportunity for parents to supply
essential medical and other information to the physician. The statute is not
unconstitutional for failing to specify what information parents may furnish
to physicians, or to provide for a mandatory period of delay after the
physician notifies the parents; or because the State allows a pregnant minor
to consent to other medical procedures without formal notice to her parents
if she carries the child to term; or because the notice requirement may
inhibit some minors from seeking abortions. Pp. 411-413.
604 P.2d 907, affirmed.
BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE,
POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, in
which STEWART, J., joined, post, p. 413. STEVENS, J., filed an opinion
concurring in the judgment, post, p. 420. MARSHALL, J., filed a dissenting
opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 425.
David S. Dolowitz argued the cause and filed a brief for appellant.
Paul M. Tinker, Assistant Attorney General of Utah, argued the cause for
appellees. With him on the brief was Robert B. Hansen, Attorney General.*
[Footnote *] Briefs of amici curiae urging
reversal were filed by Abigail English and Pauline H. Tesler for the Coalition
for the Medical Rights of Women et al.; and by Eve W. Paul and Harriet F. Pilpel
for the Planned Parent-hood Federation of America, Inc., et al.
Dennis J. Horan, Victor G. Rosenblum, John D. Gorby, Patrick A. Trueman, and
Dolores V. Horan filed a brief for Americans United for Life as amicus curiae
Lynn D. Wardle and Robert W. Barker filed a brief for the Utah Association of
Women et al. as amici curiae.
CHIEF JUSTICE BURGER delivered the opinion of the Court.
The question presented in this case is whether a state statute which requires
a physician to "[n]otify, if possible," [450 U.S.
398, 400] the parents of a dependent, unmarried minor girl prior to
performing an abortion on the girl violates federal constitutional guarantees.
In the spring of 1978, appellant was an unmarried 15-year-old
girl living with her parents in Utah and dependent on them for her support. She
discovered she was pregnant. She consulted with a social worker and a physician.
The physician advised appellant that an abortion would be in her best medical
interest. However, because of Utah Code Ann. 76-7-304 (1978), he refused to
perform the abortion without first notifying appellant's parents.
Section 76-7-304, enacted in 1974, provides:
"To enable the physician to exercise his best medical judgment [in
considering a possible abortion], he shall:
"(1) Consider all factors relevant to the well-being of the woman upon whom
the abortion is to be performed including, but not limited to,
"(a) Her physical, emotional and psychological health and safety,
"(b) Her age,
"(c) Her familial situation.
"(2) Notify, if possible, the parents or guardian of the woman upon whom
the abortion is to be performed, if she is a minor or the husband of the
woman, if she is married." (Emphasis supplied.)1 [450 U.S. 398, 401]
Violation of this section is a misdemeanor punishable by imprisonment for not
more than one year or a fine of not more than $1,000.2
Appellant believed "for [her] own reasons" that she should proceed with the
abortion without notifying her parents. According to appellant, the social
worker concurred in this decision.3 While
still in the first trimester of her pregnancy, appellant instituted this action
in the Third Judicial District Court of Utah.4
She sought a declaration that 76-7-304 (2) is unconstitutional and an injunction
prohibiting appellees, the Governor and the Attorney General of Utah, from
enforcing the statute. Appellant sought to represent a class consisting of
unmarried "minor women who are suffering unwanted pregnancies and desire to
terminate the pregnancies but may not do so" because of their physicians'
insistence on complying with 76-7-304 (2). The trial judge declined to grant a
temporary restraining order or a preliminary injunction.5
The trial judge held a hearing at which appellant was the only witness.
Appellant affirmed the allegations of the complaint by giving monosyllabic
answers to her attorney's
[450 U.S. 398, 402] leading questions.6 However, when the State attempted to cross-examine appellant
about her reasons for not wishing to notify her parents, appellant's counsel
vigorously objected,7 [450 U.S. 398, 403] insisting that "the specifics of the
reasons are really irrelevant to the Constitutional issue."8 The only constitutionally permissible prerequisites for
performance of an abortion, he insisted, were the desire of the girl and the
medical [450 U.S. 398, 404] approval of a physician.9 The trial judge sustained the objection, tentatively construing
the statute to require appellant's physician to notify her parents "if he is
able to physically contact them."
Thereafter, the trial judge entered findings of fact and conclusions of law.
He concluded that appellant "is an appropriate representative to represent the
class she purports to represent."10 He
construed the statute to require notice to appellant's parents "if it is
physically possible." He concluded that 76-7-304 (2) "do[es] not
unconstitutionally restrict the right of privacy of a minor to obtain an
abortion or to enter into a doctor-patient relationship."11
Accordingly, he dismissed the complaint.
On appeal, the Supreme Court of Utah unanimously upheld the statute. 604 P.2d
907 (1979). Relying on our decisions in Planned Parenthood of Central Mo. v.
Danforth, 428 U.S. 52 (1976), Carey v. Population Services International, 431
U.S. 678 (1977), and Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II), the
court concluded that the statute serves "significant state interest[s]" that are
present with respect to minors but absent in the case of adult women.
The court looked first to subsection (1) of 76-7-304. This provision, the
court observed, expressly incorporates the factors we identified in Doe v.
Bolton, 410 U.S. 179 (1973), as pertinent to exercise of a physician's best
medical judgment in making an abortion decision. In Doe, we stated:
"We agree with the District Court . . . that the medical judgment may be
exercised in the light of all factors - physical, emotional, psychological,
familial, and the woman's [450 U.S. 398, 405]
age - relevant to the well-being of the patient. All these factors may
relate to health. This allows the attending physician the room he needs to
make his best medical judgment." Id., at 192 (emphasis supplied).
Section 76-7-304 (1) of the Utah statute suggests that the legislature sought
to reflect the language of Doe.
The Utah Supreme Court held that notifying the parents of a minor seeking an
abortion is "substantially and logically related" to the Doe factors set out in
76-7-304 (1) because parents ordinarily possess information essential to a
physician's exercise of his best medical judgment concerning the child. 604
P.2d, at 909-910. The court also concluded that encouraging an unmarried
pregnant minor to seek the advice of her parents in making the decision of
whether to carry her child to term promotes a significant state interest in
supporting the important role of parents in child-rearing. Id., at 912. The
court reasoned that since the statute allows no veto power over the minor's
decision, it does not unduly intrude upon a minor's rights.
The Utah Supreme Court also rejected appellant's argument that the phrase "if
possible" in 76-7-304 (2) should be construed to give the physician discretion
whether to notify appellant's parents. The court concluded that the physician is
required to notify parents "if under the circumstances, in the exercise of
reasonable diligence, he can ascertain their identity and location and it is
feasible or practicable to give them notification." The court added, however,
that "the time element is an important factor, for there must be sufficient
expedition to provide an effective opportunity for an abortion." 604 P.2d, at
Appellant challenges the statute as unconstitutional on its
face. She contends it is overbroad in that it can be construed to apply to all
unmarried minor girls, including those who are mature and emancipated. We need
not reach that question [450 U.S. 398, 406] since she did not allege or
proffer any evidence that either she or any member of her class is mature or
emancipated.12 The trial court found that appellant "is
unmarried, fifteen years of age, resides at home and is a dependent of her
parents." That affords an insufficient basis for a finding that she is either
mature or emancipated. Under Harris v. McRae, 448 U.S. 297, 320 (1980), she
therefore lacks "the personal stake in the controversy needed to confer
standing" to advance the overbreadth argument.
There are particularly strong reasons for applying established rules of
standing in this case. The United States District Court for Utah has held that
76-7-304 (2) does not apply to emancipated minors and that, if so applied, it
would be unconstitutional. L. R. v. Hansen, Civil No. C-80-0078J (Feb. 8, 1980).
Since there was no appeal from that ruling, it is controlling on the State. We
cannot assume that the statute, when challenged in a proper case, will not be
construed also to exempt demonstrably mature minors.13 See Bellotti v. Baird, 428 U.S. 132,
146-148 (1976) (Bellotti I). Nor is there any reason to assume that a minor in
need of emergency treatment will be treated in any way different from [450 U.S. 398, 407] a similarly situated adult.14 The Utah Supreme Court has had no occasion to consider the
application of the statute to such situations. In Bellotti I, supra, we
unanimously declined to pass on constitutional challenges to an abortion
regulation statute because the statute was "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.'" Id., at 147, quoting Harrison v. NAACP, 360 U.S. 167, 177 (1959). See
Kleppe v. New Mexico, 426 U.S. 529, 546-547 (1976); Ashwander v. TVA, 297 U.S.
288, 346-347 (1936) (concurring opinion). We reaffirm that approach and find it
controlling here insofar as appellant challenges a purported statutory exclusion
of mature and emancipated minors.
The only issue before us, then, is the facial constitutionality of a statute
requiring a physician to give notice to parents, "if possible," prior to
performing an abortion on their minor daughter, (a) when the girl is living with
and dependent upon her parents, (b) when she is not emancipated by marriage or
otherwise, and (c) when she has made no claim or showing as to her maturity or
as to her relations with her parents.
Appellant contends the statute violates the right to privacy
recognized in our prior cases with respect to abortions. She
[450 U.S. 398, 408] places primary reliance on Bellotti II, 443 U.S., at
642, 655. In Danforth, we struck down state statutes that imposed a requirement
of prior written consent of the patient's spouse and of a minor patient's
parents as a prerequisite for an abortion. We held that a 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." 428 U.S., at 74.
We emphasized, however, "that our holding . . . does not suggest that every
minor, regardless of age or maturity, may give effective consent for termination
of her pregnancy." Id., at 75, citing Bellotti I, supra. There is no logical
relationship between the capacity to become pregnant and the capacity for mature
judgment concerning the wisdom of an abortion.
In Bellotti II, dealing with a class of concededly mature pregnant minors, we
struck down a Massachusetts statute requiring parental or judicial consent
before an abortion could be performed on any unmarried minor. There the State's
highest court had construed the statute to allow a court to overrule the minor's
decision even if the court found that the minor was capable of making, and in
fact had made, an informed and reasonable decision to have an abortion. We held,
among other things, that the statute was unconstitutional for failure to allow
mature minors to decide to undergo abortions without parental consent. Four
Justices concluded that the flaws in the statute were that, as construed by the
state court, (a) it permitted overruling of a mature minor's decision to abort
her pregnancy; and (b) "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
[450 U.S. 398, 409] consent or that an abortion would be in her best
interests." 443 U.S., at 651. Four other Justices concluded that the defect was
in making the abortion decision of a minor subject to veto by a third party,
whether parent or judge, "no matter how mature and capable of informed
decisionmaking" the minor might be. Id., at 653-656.
Although we have held that a state may not constitutionally legislate a
blanket, unreviewable power of parents to veto their daughter's abortion,15 a statute setting out a "mere requirement of parental notice"
does not violate the constitutional rights of an immature, dependent minor.16
Four Justices in Bellotti II joined in stating:
"[Plaintiffs] suggest . . . that the mere requirement of parental notice
[unduly burdens the right to seek an abortion]. 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. 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. . . .
"`There can be little doubt that the State furthers a constitutionally
permissible end by encouraging an unmarried pregnant minor to seek the help
and advice of [450 U.S. 398, 410] 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.'" Id., at 640-641 (foot-notes omitted),
quoting Danforth, 428 U.S., at 91 (concurring opinion).
Accord, 443 U.S., at 657 (dissenting opinion).
In addition, "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,
390 U.S. 629, 639 (1968). In Quilloin v. Walcott, 434 U.S. 246 (1978), the Court
expanded on this theme:
"We have recognized on numerous occasions that the relationship between
parent and child is constitutionally protected. See, e. g., Wisconsin v.
Yoder, 406 U.S. 205, 231-233 (1972); Stanley v. Illinois, [405 U.S. 645
(1972)]; Meyer v. Nebraska, 262 U.S. 390, 399-401 (1923). `It is cardinal
with us that the custody, care and nurture of the child reside first in the
parents, whose primary function and freedom include preparation for
obligations the state can neither supply nor hinder.'" Id., at 255, quoting
Prince v. Massachusetts, 321 U.S. 158, 166 (1944).
See also Parham v. J. R., 442 U.S. 584, 602 (1979); Pierce v. Society of
Sisters, 268 U.S. 510, 535 (1925). We have recognized that parents have an
important "guiding role" to play in the upbringing of their children, Bellotti
II, supra, at 633-639, which presumptively includes counseling them on important
decisions. [450 U.S. 398, 411]
The Utah statute gives neither parents nor judges a veto power
over the minor's abortion decision.17 As in
Bellotti I, "we are concerned with a statute directed toward minors, as to whom
there are unquestionably greater risks of inability to give an informed
consent." 428 U.S., at 147. As applied to immature and dependent minors, the
statute plainly serves the important considerations of family integrity18 and protecting adolescents19 which we identified in Bellotti II. In addition, as applied
to that class, the statute serves a significant state interest by providing an
opportunity for parents to supply essential medical and other information to a
physician. The medical, emotional, and psychological consequences of an abortion
are serious and can be lasting; this is particularly so when the patient is
immature.20 An adequate medical and psychological case history is
important to the physician. Parents can provide medical and psychological data,
refer the physician to other sources of medical history, such as family
physicians, and authorize family physicians to give relevant data.
[450 U.S. 398, 412]
Appellant intimates that the statute's failure to declare, in terms, a
detailed description of what information parents may provide to physicians, or
to provide for a mandatory period of delay after the physician notifies the
parents,21 renders the statute unconstitutional. The notion that the
statute must itemize information to be supplied by parents finds no support in
logic, experience, or our decisions. And as the Utah Supreme Court recognized,
604 P.2d, at 913, time is likely to be of the essence in an abortion decision.
The Utah statute is reasonably calculated to protect minors in appellant's class
by enhancing the potential for parental consultation concerning a decision that
has potentially traumatic and permanent consequences.22
Appellant also contends that the constitutionality of the statute is
undermined because Utah allows a pregnant minor to consent to other medical
procedures without formal notice to her parents if she carries the child to
But a state's interests in full-term pregnancies are sufficiently different to
justify the line drawn by the statutes. Cf. Maher v. Roe, 432 U.S. 464, 473-474
(1977). If the pregnant girl elects to carry her child to term, the medical
decisions to be made entail few - perhaps none - of the potentially grave [450 U.S. 398, 413] emotional and psychological
consequences of the decision to abort.
That the requirement of notice to parents may inhibit some minors from
seeking abortions is not a valid basis to void the statute as applied to
appellant and the class properly before us. The Constitution does not compel a
state to finetune its statutes so as to encourage or facilitate abortions. To
the contrary, state action "encouraging childbirth except in the most urgent
circumstances" is "rationally related to the legitimate governmental objective
of protecting potential life." Harris v. McRae, 448 U.S., at 325. Accord, Maher
v. Roe, supra, at 473-474.24
As applied to the class properly before us, the statute plainly serves
important state interests, is narrowly drawn to protect only those interests,
and does not violate any guarantees of the Constitution.25
The judgment of the Supreme Court of Utah is
[Footnote 1] Whether parents of a minor are liable under
Utah law for the expense of an abortion and related aftercare is not disclosed
by the record.
Utah also provides by statute that no abortion may be performed unless a
"voluntary and informed written consent" is first obtained by the attending
physician from the patient. In order for such a consent to be "voluntary and
informed," the patient must be advised at a minimum about available adoption
services, about fetal development, and about foreseeable complications and risks
of an abortion. See Utah Code Ann. 76-7-305 (1978). In Planned Parenthood of
Central Mo. v. Danforth, [450 U.S. 398, 401]
428 U.S. 52, 65-67 (1976), we rejected a constitutional attack on written
[Footnote 2] Utah Code Ann. 76-7-314 (3), 76-3-204 (1),
76-3-301 (3) (1978).
[Footnote 3] Appellant's counsel stated in
his jurisdictional statement and again in his brief that the physician concluded
not only that an abortion would be in appellant's best interests, but also that
parental notification would not be in appellant's best interests. However, at
oral argument, counsel corrected this statement and conceded that there is no
evidence to support this assertion. Tr. of Oral Arg. 8, 17.
[Footnote 4] The record does not reveal
whether appellant proceeded with the abortion.
[Footnote 5] The trial judge allowed
appellant to proceed without appointment of a guardian ad litem. He noted that a
guardian would be required to notify the parents.
[Footnote 6] The testimony was as follows:
"BY MR. DOLOWITZ [appellant's counsel]:
"Q At the time that the Complaint in this matter was signed, you were
"Q You had consulted with a counselor about that pregnancy?
"Q You had determined after talking to the counselor that you felt you
should get an abortion?
"Q You felt that you did not want to notify your parents -
"Q - of that decision? You did not feel for your own reasons that you could
discuss it with them?
"Q After discussing the matter with a counselor, you still believed that
you should not discuss it with your parents?
"Q And they shouldn't be notified?
"Q After talking the matter over with a counselor, the counselor concurred
in your decision that your parents should not be notified?
"Q You were advised that an abortion couldn't be performed without
"Q You then came to me to see about filing a suit?
"Q You and I discussed it as to whether or not you had a right to do what
you wanted to do?
"Q You decided that, after our discussion, you should still proceed with
the action to try to obtain an abortion without notifying your parents?
"Q Now, at the time that you signed the Complaint and spoke with the
counselor and spoke with me, you were in the first trimester of pregnancy,
within your first twelve weeks of pregnancy?
[450 U.S. 398, 403]
"Q You feel that, from talking to the counselor and thinking the situation
over and discussing it with me, that you could make the decision on your own
that you wished to abort the pregnancy?
"Q You are living at home?
"Q You still felt, even though you were living at home with your parents,
that you couldn't discuss the matter with them?
[Footnote 7] "BY MR. McCARTHY [counsel for
"Q . . . Are you still living at home?
"Q Are you dependent on your parents?
"Q All your money comes from them?
"Q How old are you now?
"Q Aside from the issue of abortion, do you have any reason to feel that
you can't talk to your parents about other problems?
"Q What are those reasons?
"MR. DOLOWITZ: Now you are moving into the problem area that I indicated. .
Id., at 8.
[Footnote 8] Id., at 10. Appellant
repeatedly pressed this point despite the trial court's statements that it could
"conceive of a situation where a child probably wouldn't have to tell the
parents" and that the statute "might be [u]nconstitutional as it relates to a
particular fact situation but [c]onstitutional as it relates to another fact
situation." Id., at 10, 17.
There is no evidence to support the "surmise" in the dissent, post, at 438,
n. 24, that "appellant expects family conflict over the abortion decision."
[Footnote 9] Tr. 18.
[Footnote 10] The trial judge adopted,
verbatim, findings of fact and conclusions of law prepared by appellant. The
findings, the conclusions, and the opinion of the State Supreme Court make no
mention whatsoever of the precise limits of the class.
[Footnote 11] The trial judge also ruled
that the statute does not violate 42 U.S.C. 1983.
[Footnote 12] In Bellotti II, by
contrast, the principal class consisted of "unmarried [pregnant] 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." 443 U.S., at 626
(emphasis supplied). The courts considered the rights of "all pregnant minors
who might be affected" by the statute. Id., at 627, n. 5.
[Footnote 13] The record shows that the
State unsuccessfully argued in the trial court that it should be permitted to
inquire into appellant's degree of maturity. Tr. 11.
JUSTICE STEVENS and the dissent argue that the Utah Supreme Court held that
the statute may validly be applied to all members of the class described in the
complaint. Post, at 421, 430, 431, 432-433. However, as we have shown, neither
of the state courts mentioned the scope or limits of the class. See n. 10,
supra. Moreover, appellant's counsel prepared the findings and conclusions. In
addition to considerations of standing, we construe the ambiguity against
[Footnote 14] There is no authority for
the view expressed in the dissent that the statute would apply to "minors with
emergency health care needs." Post, at 450-451. Appellant does not so contend,
and the Utah Supreme Court in this case took pains to say that time is of the
essence in an abortion decision. 604 P.2d 907, 913 (1979). When the specific
question was properly posed in Bellotti II, the Massachusetts statute was
construed by the state court not to apply in such cases. 443 U.S., at 630.
The same is true for minors with hostile home situations, a class referred to
by appellant's amici curiae and by the dissent, post, at 437-441.
[Footnote 15] Bellotti II, 443 U.S., at
642-643, 653-656; Danforth, 428 U.S., at 74.
[Footnote 16] Bellotti II, supra, at
640, 649; id., at 657 (dissenting opinion): Danforth, supra, at 90-91
(concurring opinion); see Bellotti v. Baird, 428 U.S. 132, 145, 147 (1976)
(Bellotti I); cf. Carey v. Population Services International, 431 U.S. 678,
[Footnote 17] The main premise of the
dissent seems to be that a requirement of notice to the parents is the
functional equivalent of a requirement of parental consent. See post, at
437-441. In Bellotti II, however, we expressly declined to equate notice
requirements with consent requirements. 443 U.S., at 640, 657.
[Footnote 18] Bellotti II, supra, at
637-639. The short shrift given by the dissent to "parental authority and family
integrity," post, at 447, runs contrary to a long line of constitutional cases
in this Court. See cases cited supra, at 410.
[Footnote 19] Bellotti II, supra, at
[Footnote 20] Abortion is associated
with an increased risk of complication in subsequent pregnancies. Maine, Does
Abortion Affect Later Pregnancies?, 11 Family Planning Perspectives 98 (1979).
The emotional and psychological effects of the pregnancy and abortion experience
are markedly more severe in girls under 18 than in adults. Wallerstein, Kurtz, &
Bar-Din, Psychosocial Sequelae of Therapeutic Abortion in Young Unmarried Women,
27 Arch. Gen. Psychiatry 828 (1972); see also Babikian & Goldman, A Study in
Teen-Age Pregnancy, 128 Am. J. Psychiatry 755 (1971).
[Footnote 21] At least five States have enacted parental
notification statutes containing brief mandatory waiting periods. See La. Rev.
Stat. Ann. 40:1299.35.5 (West Supp. 1981) (24 hours' actual notice or 72 hours'
constructive notice except for court-authorized abortions); Mass. Gen. Laws
Ann., ch. 112. 12S (West Supp. 1981) (24 hours); Me. Rev. Stat. Ann., Tit. 22,
1597 (1980) (24 hours); N. D. Cent. Code 14-02.1-03 (Supp. 1979) (24 hours);
Tenn. Code Ann. 39-302 (Supp. 1979) (two days).
[Footnote 22] Members of the particular class now before
us in this case have no constitutional right to notify a court in lieu of
notifying their parents. See Bellotti II, supra, at 647. This case does not
require us to decide in what circumstances a state must provide alternatives to
[Footnote 23] See Utah Code Ann. 78-14-5 (4) (f) (1977)
(permitting any female to give informed consent "to any health care not
prohibited by law . . . in connection with her pregnancy or childbirth").
[Footnote 24] See also Bellotti II, 443 U.S., at 643-644;
Bellotti I, 428 U.S., at 148-149; Danforth, 428 U.S., at 65-67, 79-81;
Connecticut v. Menillo, 423 U.S. 9, 11 (1975); West Side Women's Services, Inc.
v. City of Cleveland, 450 F. Supp. 796, 798 (ND Ohio), affirmance order, 582
F.2d 1281 (CA6), cert. denied, 439 U.S. 983 (1978).
[Footnote 25] Appellant argues that the statute violates
her right to secure necessary treatment from a physician who, in the exercise of
his best medical judgment, does not believe the parents should be notified.
Since there is no evidence that the physician had such an opinion, we decline to
reach this question. See supra, at 401, n. 3, and 405-407.
The dissenting opinion purports to see in the Court's opinion "a clear
signal" as to how the Court will decide a future case concerning this or a
similar statute, and goes on to forecast a successful challenge on the merits.
Today, of course, the Court's function is to decide only the question properly
presented in this case, and there is no occasion to intimate or predict a view
as to the proper resolution of some future case. Speaking for the unanimous
Court in Kleppe v. New Mexico, 426 U.S. 529 (1976), JUSTICE MARSHALL took note
of the impropriety of deciding constitutional questions "in the absence of `an
adequate and full-bodied record.'" Id., at 546, quoting Public Affairs
Associates, Inc. v. Rickover, 369 U.S. 111, 113 (1962).
JUSTICE POWELL, with whom JUSTICE STEWART joins, concurring.
This case requires the Court to consider again the divisive
questions raised by a state statute intended to encourage
[450 U.S. 398, 414] parental involvement in the decision of a pregnant
minor to have an abortion. See Planned Parenthood of Central Mo. v. Danforth,
428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II). I
agree with the Court that Utah Code Ann. 76-7-304 (2) (1978) does not
unconstitutionally burden this appellant's right to an abortion. I join the
opinion of the Court on the understanding that it leaves open the question
whether 76-7-304 (2) unconstitutionally burdens the right of a mature minor or a
minor whose best interests would not be served by parental notification. See
ante, at 412, n. 22. I write to make clear that I continue to entertain the
views on this question stated in my opinion in Bellotti II. See n. 8, infra.
Section 76-7-304 (2) requires that a physician "[n]otify, if
possible, the parents or guardian of the woman upon whom the abortion is to be
performed, if she is a minor."1 Appellant
attacks this notice requirement on the ground that it burdens the right of a
minor who is emancipated, or who is mature enough to make the abortion decision
independently of parental involvement, or whose parents will react obstructively
upon notice. See ante, at 405. The threshold question, as the Court's opinion
notes, is whether appellant has standing to make such a challenge. Standing
depends initially on what the complaint alleges, Warth v. Seldin, 422 U.S. 490,
498, 501 (1975), as courts have the power "only to redress or otherwise to
protect against injury to the complaining party."
[450 U.S. 398, 415] Id., at 499. The complaint in this case was carefully
drawn. Appellant's allegations about herself and her familial situation are few
and laconic. She alleged that she did "not wish to inform her parents of her
condition and believe[d] that it [was] in her best interest that her parents not
be informed of her condition." Complaint _ 6. She also alleged that she
understood "what is involved in her decision," _ 9, and that the physician she
consulted had told her that "he could not and would not perform an abortion upon
her without informing her parents prior to aborting her." _ 7.
Appellant was 15 years of age and lived at home with her parents when she
filed her complaint. She did not claim to be mature, and made no allegations
with respect to her relationship with her parents. She did not aver that they
would be obstructive if notified, or advance any other reason why notice to her
parents would not be in her best interest. Similarly, the complaint contains no
allegation that the physician - while apparently willing to perform the abortion
- believed that notifying her parents would have adverse consequences. In fact,
nothing in the record shows that the physician had any information about
appellant's parents or familial situation, or even that he had examined
This case does not come to us on the allegations of the
complaint alone. An evidentiary hearing occurred after the trial court had
denied appellant's motion for a preliminary injunction. Appellant was the only
witness, and her testimony - and statements by her counsel - make clear beyond
any question that the "bare bones" averments of the complaint were deliberate,
and that appellant is arguing that a mere notice requirement is invalid per se
without regard to the minor's age, whether she is emancipated, whether her
parents are likely to be obstructive, or whether there is some health or other
reason why notification would not be in the minor's best interests. [450 U.S. 398, 416]
On direct examination, appellant merely verified the allegations of her
complaint by affirming each allegation as paraphrased for her by her lawyer in a
series of leading questions.2 Her testimony
on cross-examination added nothing to the complaint.3 In addition, appellant's lawyer insistently objected to all
questions by counsel for the State as to the appellant's reasons for not wishing
to notify her parents.4 The trial court,
on its own initiative, pressed unsuccessfully to elicit some reasons, inquiring
how it could "find out the validity of [appellant's] reasons without [the
State's lawyer] being permitted to cross-examine her." Tr. 9. Appellant's lawyer
"It is our position [c]onstitutionally that she has the right to make [the
abortion] decision and if she has consulted with a counselor and the
counselor concurs that those are valid reasons, why then -
. . . . .
"In terms of going beyond [the complaint allegations], our point is that
the specifics of the reasons are really irrelevant to the [c]onstitutional
issue." Id., at 9-10 (emphasis supplied).
[450 U.S. 398, 417]
When appellant's lawyer insisted that the facts with respect to this
particular minor were irrelevant, the trial court sustained the validity of the
In sum, and as the Court's opinion emphasizes, appellant alleges nothing more
than that she desires an abortion, that she has decided - for reasons which she
declined to reveal - that it is in her best interest not to notify her parents,
and that a physician would be willing to perform the abortion if notice were not
required. Although the trial court did not rule in terms of standing, it is
clear that these bald allegations do not confer standing to claim that 76-7-304
(2) unconstitutionally burdens the right either of a mature minor or of a minor
whose best interests would not be served by parental notification.6
They confer standing only to claim that 76-7-304 (2) is an unconstitutional
burden upon an unemancipated [450 U.S. 398, 418]
minor who desires an abortion without parental notification but also desires not
to explain to anyone her reasons either for wanting the abortion or for not
wanting to notify her parents.7
On the facts of this case, I agree with the Court that
76-7-304 (2) is not an unconstitutional burden on appellant's right to an
abortion. Numerous and significant interests compete when a minor decides
whether or not to abort her [450 U.S. 398, 419] pregnancy. The right to make
that decision may not be unconstitutionally burdened. Roe v. Wade, 410 U.S. 113,
154 (1973); Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 74-75.
In addition, the minor has an interest in effectuating her decision to abort, if
that is the decision she makes. Id., at 75; Bellotti II, 443 U.S., at 647. The
State, aside from the interest it has in encouraging childbirth rather than
abortion, cf. Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297
(1980), has an interest in fostering such consultation as will assist the minor
in making her decision as wisely as possible. Planned Parenthood of Central Mo.
v. Danforth, supra, at 91 (STEWART, J., concurring); post, at 422-423 (STEVENS,
J., concurring in judgment). The State also may have an interest in the family
itself, the institution through 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). Parents have a traditional and substantial interest in, as
well as a responsibility for, the rearing and welfare of their children,
especially during immature years. Bellotti II, supra, at 637-639.
None of these interests is absolute. Even an adult woman's right to an
abortion is not unqualified. Roe v. Wade, supra, at 154. Particularly when a
minor becomes pregnant and considers an abortion, the relevant circumstances may
vary widely depending upon her age, maturity, mental and physical condition, the
stability of her home if she is not emancipated, her relationship with her
parents, and the like. If we were to accept appellant's claim that 76-7-304 (2)
is per se an invalid burden on the asserted right of a minor to make the
abortion decision, the circumstances which normally are relevant would - as her
counsel insisted - be immaterial. Supra, at 417. The Court would have to decide
that the minor's wishes are virtually absolute. To be sure, our cases have
emphasized the necessity to consult a physician. But we have never held with
respect to a minor that the opinion [450 U.S.
398, 420] of a single physician as to the need or desirability of an
abortion outweighs all state and parental interests.8
In sum, a State may not validly require notice to parents in all cases,
without providing an independent decisionmaker to whom a pregnant minor can have
recourse if she believes that she is mature enough to make the abortion decision
independently or that notification otherwise would not be in her best interests.
My opinion in Bellotti II, joined by three other Justices, stated at some length
the reasons why such a decisionmaker is needed. Bellotti II, supra, at 642-648.9 The circumstances relevant to the abortion decision by a
minor can and do vary so substantially that absolute rules - requiring parental
notice in all cases or in none10
- would create an inflexibility that often would allow for no consideration of
the rights and interests identified above. Our cases have never gone to this
extreme, and in my view should not.
[Footnote 1] Section 76-7-304 is quoted in
full in the Court's opinion. Ante, at 400.
[Footnote 2] Appellant's testimony on
direct examination is quoted in full in the Court's opinion. Ante, at 402-403,
[Footnote 3] Appellant's testimony on
cross-examination is quoted in full in the Court's opinion. Ante, at 403, n. 7.
[Footnote 4] After his direct
examination of appellant and the State's brief cross-examination, appellant's
lawyer insisted repeatedly during subsequent argument that "there is no
relevancy to any other facts," Tr. 17; that "the particular facts that come
before a [minor's doctor], are irrelevant," id., at 18; and that "[t]he specific
facts of any individual case, no matter how ridiculous they are or how strong or
weak they are, really become irrelevant," ibid. In summarizing his position,
appellant's lawyer stated: "Our position is that it is the doctor/patient
relationship that is the key. If the doctor determines he should go ahead with
the patient, then he should. The specific facts in any case, whether [the
doctor] is wrong or right, are [c]onstitutionally protected to make that
decision and go ahead and act on it. This is why I say it is irrelevant." Ibid.
[Footnote 5] At the end of the
evidentiary hearing, appellant's lawyer framed the trial court's ruling as
"If your ruling is that `if possible' [as used in the statute means
"physically possible"] and there are no circumstances whatever that justify
the violation of the statute, then the issue is closed." Id., at 19.
[Footnote 6] Because this case is a
class action, it might be presumed that other members could raise the question
whether a pregnant minor has a right to abortion, without parental notice, upon
a showing that she is mature or that her parents will interfere with her
abortion. But the record in this case contains no facts to support a presumption
that the class includes such members. The only complaint allegations about the
class are that appellant's claims "are typical of the claims of all members of
the class," and that the class consists of "minor women who are suffering
unwanted pregnancies and desire to terminate the pregnancies but may not do so
inasmuch as their physicians will not perform an abortion upon them without
compliance with the provisions of Section 76-7-304 (2)." Complaint _ 10. Thus,
the record supports only the conclusion that the class consists entirely of
pregnant minors who assert the identical claim that appellant presents: a
constitutional right to an abortion without notifying their parents, and without
claiming to be mature or that notification would not be in their best interest.
In short, the class members - like appellant - assert an absolute right to make
this decision themselves, independently of everyone except a physician.
[Footnote 7] The trial court entered
findings of fact and conclusions of law after the evidentiary hearing. Paragraph
7 of the trial court's findings reads:
"The plaintiff consulted with a counselor to assist her in deciding whether
or not she should terminate her pregnancy. She determined, after
consultation with her counselor, that she should secure an abortion, but was
advised when consulting her physician that under the provisions of Section
76-7-304 (2), Utah Code Annotated, 1953, that he believed along with her
that she should be aborted and that he felt it was in her best medical
interest to do so but he could not and would not perform an abortion upon
her without informing her parents prior to aborting her because it was
required of him by that statute and he was unwilling to perform an abortion
upon her without complying with the provisions of the statute even though he
believed it was best to do so." Civil No. C-78-2719 (Dec. 26, 1978).
Precisely what this paragraph finds is ambiguous. At the least, it finds that
appellant "consulted" a physician and that the physician agreed with appellant
that an abortion would be in appellant's best medical interest. The final
portion of the finding - "he was unwilling to perform an abortion upon her
without complying with the provisions of the statute even though he believed it
was best to do so" - could be read to find that the physician also agreed with
appellant that "it was best" to "perform an abortion upon her without complying
with the provisio[n]" requiring parental notice. Or, the final portion could be
read to find only that the physician would not perform an abortion without
complying with the statute even though he believed that "it was best" to abort
appellant's pregnancy. In light of appellant's limited allegations and
testimony, and the legal argument of her lawyer, the trial court's finding
cannot be read as saying that the physician determined that appellant's parents
would react hostilely or obstructively to notice of appellant's abortion
[Footnote 8] While the medical
judgment of a physician of course is to be respected, there is no reason to
believe as a general proposition that even the most conscientious physician's
interest in the overall welfare of a minor can be equated with that of most
parents. Moreover, abortion clinics, now readily available in most urban
communities, may be operated on a commercial basis where abortions often may be
obtained "on demand." See Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52, 91-92, n. 2 (1976) (STEWART, J., concurring); Bellotti II, 443 U.S., at
641, n. 21.
[Footnote 9] Although Bellotti II
involved a statute requiring parental consent, the rationale of the plurality
opinion with respect to this need is applicable here.
[Footnote 10] The dissenting opinion
of JUSTICE MARSHALL, which would hold the Utah statute invalid on its face,
elevates the decision of the minor and her physician to an absolute status
ignoring state and parental interests.
JUSTICE STEVENS, concurring in the judgment.
As the Court points out, this is a class action in which the appellant
represents all unmarried "`minor women who are suffering unwanted pregnancies
and desire to terminate the pregnancies but may not do so' because of their
physicians' insistence on complying with 76-7-304 (2)" of the Utah
[450 U.S. 398, 421] Code. Ante, at 401. The Utah Supreme Court held that
the statute may validly be applied to all members of that class. This appeal
therefore squarely presents the question whether that holding is consistent with
the Constitution of the United States. The Court, however, declines to reach
this question and instead decides the narrower question presented by the
appellant's particular factual situation. Because I believe we have a duty to
answer the broader question decided by the Utah Supreme Court, I am unable to
join the opinion of the Court.
In Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 72-75 (1976),
the Court held that a pregnant minor's right to make the decision to obtain an
abortion may not be conditioned on parental consent. My dissent from that
holding, id., at 102-105, does not qualify my duty to respect it as a part of
our law. See Bellotti v. Baird, 443 U.S. 622, 652-656 (1979) (STEVENS, J.,
concurring in judgment). However, as I noted in Bellotti, neither that case nor
Danforth "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." 443 U.S., at 654, n. 1. Since the outcome in this case is not
controlled by Danforth, the principles that I considered dispositive of the
parental consent issue in that case plainly dictate that the Utah statute now
before us be upheld.
The fact that a state statute may have some impact upon a minor's exercise of
his or her rights begins, rather than ends, the constitutional inquiry. Once the
statute's impact is identified, it must be evaluated in light of the state
interests underlying the statute. The state interest that the Utah statute at
issue in this case attempts to advance is essentially the same state interest
considered in Danforth. As I noted in Danforth, that interest is fundamental and
"The State's interest in the welfare of its young citizens justifies a
variety of protective measures. Because he
[450 U.S. 398, 422]
may not foresee the consequences of his decision, a minor may not make an
enforceable bargain. He may not lawfully work or travel where he pleases, or
even attend exhibitions of constitutionally protected adult motion pictures.
Persons below a certain age may not marry without parental consent. Indeed,
such consent is essential even when the young woman is already pregnant. The
State's interest in protecting a young person from harm justifies the
imposition of restraints on his or her freedom even though comparable
restraints on adults would be constitutionally impermissible. Therefore, the
holding in Roe v. Wade [410 U.S. 113 (1973)] that the abortion decision is
entitled to constitutional protection merely emphasizes the importance of
the decision; it does not lead to the conclusion that the state legislature
has no power to enact legislation for the purpose of protecting a young
pregnant woman from the consequences of an incorrect decision.
"The abortion decision is, of course, more important than the decision to
attend or to avoid an adult motion picture, or the decision to work long
hours in a factory. It is not necessarily any more important than the
decision to run away from home or the decision to marry. But even if it is
the most important kind of a decision a young person may ever make, that
assumption merely enhances the quality of the State's interest in maximizing
the probability that the decision be made correctly and with full
understanding of the consequences of either alternative." 428 U.S., at
In my opinion, the special importance of a young woman's abortion decision,
emphasized by JUSTICE MARSHALL in dissent, post, at 435-436, provides a special
justification for reasonable state efforts intended to ensure that the decision
be wisely made. Such reasonable efforts surely may include a requirement that an
abortion be procured only after consultation [450
U.S. 398, 423] with a licensed physician. And, because "the most
significant consequences of the [abortion] decision are not medical in
character," 428 U.S., at 103, the State unquestionably has an interest in
ensuring that a young woman receive other appropriate consultation as well. In
my opinion, the quality of that interest is plainly sufficient to support a
state legislature's determination that such appropriate consultation should
include parental advice.
Of course, a conclusion that the Utah statute is invalid would not prevent
young pregnant women from voluntarily seeking the advice of their parents prior
to making the abortion decision. But the State may legitimately decide that such
consultation should be made more probable by ensuring that parents are informed
of their daughter's decision:
"If there is no parental-[notice] requirement, many minors will submit to
the abortion procedure without ever informing their parents. An assumption
that the parental reaction will be hostile, disparaging, or violent no doubt
persuades many children simply to bypass parental counsel which would in
fact be loving, supportive, and, indeed, for some indispensable. It is
unrealistic, in my judgment, to assume that every parent-child relationship
is either (a) so perfect that communication and accord will take place
routinely or (b) so imperfect that the absence of communication reflects the
child's correct prediction that the parent will . . . [act] arbitrarily to
further a selfish interest rather than the child's interest. A state
legislature may conclude that most parents will be primarily interested in
the welfare of their children,1 and further, that the imposition [450 U.S. 398, 424] of a parental-[notice] requirement
is an appropriate method of giving the parents an opportunity to foster that
welfare by helping a pregnant distressed child to make and to implement a
correct decision." Id., at 103-104 (STEVENS, J.).
Utah's interest in its parental-notice statute is not diminished by the fact
that there can be no guarantee that meaningful parent-child consultation will
actually occur. Good-faith compliance with the statute's requirements would tend
to facilitate communication between daughters and parents regarding the abortion
decision. The possibility that some parents will not react with compassion and
understanding upon being informed of their daughter's predicament or that, even
if they are receptive, they will incorrectly advise her, does not undercut the
legitimacy of the State's attempt to establish a procedure that will enhance the
probability that a pregnant young woman exercise as wisely as possible her right
to make the abortion decision.
The fact that certain members of the class of unmarried "minor women who are
suffering unwanted pregnancies and desire to terminate the pregnancies" may
actually be emancipated or sufficiently mature to make a well-reasoned abortion [450 U.S. 398, 425] decision does not, in my view,
undercut the validity of the Utah statute. As I stated in Danforth, a state
legislature has constitutional power to utilize, for purposes of implementing a
parental-notice requirement, a yardstick based upon the chronological age of
unmarried pregnant women. That this yardstick will be imprecise or even unjust
in particular cases does not render its use by a state legislature impermissible
under the Federal Constitution. 428 U.S., at 104-105. Accordingly, I would reach
the question reserved by the Court and hold that the Utah parental-notice
statute is constitutionally valid as applied to all members of the certified
Because my view in this case, as in Danforth, is that the State's interest in
protecting a young pregnant woman from the consequences of an incorrect abortion
decision is sufficient to justify the parental-notice requirement, I agree that
the decision of the Utah Supreme Court should be affirmed.
[Footnote 1] My conclusion, in this
case and in Danforth, that a state legislature may rationally decide that most
parents will, when informed of their daughter's pregnancy, act with her welfare
in mind is consistent with the "pages of human experience that teach that
parents generally do act in the child's best interests" relied upon by the Court
in Parham v. J. R., [450 U.S. 398, 424] 442 U.S. 584, 602-603
(1979). It is also consistent with JUSTICE BRENNAN'S opinion in Parham, which I
joined. Id., at 625-639.
As the Court noted in Parham, the presumption that parents act in the best
interests of their children may be rebutted by "experience and reality." Id., at
602-603. In my opinion, nothing in the fact that a minor child has become
pregnant, and therefore may be confronted with the abortion decision, undercuts
the general validity of the presumption. However, when parents decide to
surrender custody of their child to a mental hospital and thereby destroy the
ongoing family relationship, that very decision raises an inference that
parental authority is not being exercised in the child's best interests. See
id., at 631-632 (BRENNAN, J., dissenting in part). Accordingly, while the
abortion decision and the commitment decision are of comparable gravity,
reliance upon the "pages of human experience" is, in my judgment, more
appropriate in the former case than in the latter.
[Footnote 2] The Court's unwillingness
to decide whether the Utah statute may constitutionally be applied to the entire
class certified by the state courts presumably rests on the assumption that
requiring notice to the parents of a mature or emancipated minor might prevent
such a minor from obtaining an abortion. See ante, at 406. Almost by definition,
however, a woman intellectually and emotionally capable of making important
decisions without parental assistance also should be capable of ignoring any
parental disapproval. Furthermore, if every minor with the wisdom of an adult
has a constitutional right to be treated as an adult, a uniform minimum voting
age is surely suspect. Instead of simply enforcing general rules promulgated by
the legislature, perhaps the judiciary should grant hearings to all young
persons desirous of establishing their status as mature, emancipated minors
instead of confining that privilege to unmarried pregnant young women.
JUSTICE MARSHALL, with whom JUSTICE BRENNAN and JUSTICE BLACKMUN join,
The decision of the Court is narrow. It finds shortcomings in appellant's
complaint and therefore denies relief. Thus, the Court sends out a clear signal
that more carefully drafted pleadings could secure both a plaintiff's standing
to [450 U.S. 398, 426] challenge the overbreadth of Utah
Code Ann. 76-7-304 (2) (1978), and success on the merits.1
Nonetheless, I dissent. I believe that even if the complaint is defective,
the majority's legal analysis is incorrect and it yields an improper disposition
here. More important, I cannot agree with the majority's view of the complaint,
or its standing analysis. I therefore would reverse the judgment of the Supreme
Court of Utah.
The Court finds appellant's complaint defective because it
fails to allege that she is mature or emancipated, and neglects to specify her
reasons for wishing to avoid notifying her parents about her abortion decision.
As a result, the Court reasons, [450 U.S. 398,
427] appellant lacks standing to challenge the overbreadth of the Utah
parental notification statute.2
The majority's standing analysis rests on prudential concerns [450 U.S. 398, 428] and not on the constitutional
limitations set by Art. III. See Gladstone, Realtors v. Village of Bellwood, 441
U.S. 91, 99-100 (1979); Warth v. Seldin, 422 U.S. 490, 498-499, 517-518 (1975).
For the Court does not question that appellant's injury due to the statute's
requirement falls within the legally protected ambit of her privacy interest,
and that the relief requested would remedy the harm. See ante, at 407-409
(majority opinion); ante, at 418-419 (opinion of POWELL, J.). The Court decides
only that appellant cannot challenge the blanket nature of the statute because
she neglected to allege that by her personal characteristics, she is a member of
particular groups that undoubtedly deserve exemption from a parental notice
requirement.3 Thus, the Court seems to apply the familiar prudential
principle that an individual should not be heard to raise the rights of other
persons. This principle, of course, has not precluded standing in other
instances where, as here, the party has established the requisite and legally
protected interest capable of
[450 U.S. 398, 429] redress through the
relief requested.4 See, e. g., Duke Power
Co. v. Carolina Environmental Study Group, 438 U.S. 59, 80-81 (1978); Singleton
v. Wulff, 428 U.S. 106, 113-118 (1976) (plurality opinion of BLACKMUN, J.); Doe
v. Bolton, 410 U.S. 179, 188-189 (1973); Griswold v. Connecticut, 381 U.S. 479,
481 (1965); NAACP v. Alabama ex rel. Patterson, 357 U.S. 449, 459-460 (1958);
Barrows v. Jackson, 346 U.S. 249, 259 (1953).
I do not believe that prudential considerations should bar standing here, for
I am persuaded that appellant's complaint establishes a claim that notifying her
parents would not be in her best interests.5
She alleged that she "believes that it is in her best interest that her parents
not be informed of her [pregnant] condition," Complaint _ 6, App. 4, and that
after consulting with her physician, attorney, and social worker, "she
understands what is involved in her decision" to seek an abortion, Complaint _
9, App. 4.6 This claim was further [450
U.S. 398, 430] supported, albeit without detail, at the evidentiary
hearing. There appellant testified she did not feel she could discuss the
abortion decision with her parents even after she consulted a social worker on
the issue. Tr. 8, App. 26.7 In my judgment, appellant has adequately
asserted that she has persistently held reasons for believing parental notice
would not be in her best interests. This provides a sufficient basis for
standing to raise the challenge in her complaint. Appellant seeks to challenge a
state statute, construed definitively by the highest court of that State to
permit no exception to the notice requirement on the basis of any reasons
offered by the minor. 604 P.2d 907, 913 (Utah 1979). As standing is a
jurisdictional issue, separate and distinct from the merits, a court need not
evaluate the persuasiveness of her reasons for opposing parental notice to
conclude that appellant has a concrete interest in determining whether the
parental notice statute is valid.8 [450 U.S. 398, 431]
Yet even if the Court's view of appellant's complaint is correct, and even if
prudence calls for denying her standing to raise the overbreadth claim, the
Court erroneously concludes that the class represented by appellant suffers the
identical standing disability. In so doing, the Court is apparently indifferent
to the federalism or comity issues arising when this Court presumes to supervise
the procedural determinations made by a state trial court under state law. Even
if application of federal law governing class actions were appropriate in this
case, the majority misapplies federal law by disturbing the class definition as
approved by the trial court. The Court acknowledges, ante, at 401, 404 (BURGER,
C. J.); ante, at 417, n. 6 (POWELL, J.), that the trial court granted
appellant's motion to represent a class, and it is undisputed that this class
includes all "minor women who are suffering unwanted pregnancies and desire to
terminate the pregnancies but may not do so inasmuch as their physicians will
not perform an abortion upon them without compliance with the provisions of
Section 76-7-304 (2)." Complaint _ 10, App. 5. This class by definition includes
all minor women, self-supporting or dependent, sophisticated or naive, as long
as the Utah statute interferes with the ability of these women to decide with
their physicians to obtain abortions. If the Court is correct that appellant
cannot raise challenges based on the interest of emancipated or mature minors,
or others whose best interests call for avoiding parental notification, the
proper disposition under federal law would be a remand. This remand would
protect such class members by permitting the trial court to determine whether
appellant is a proper and adequate class representative, and whether her claims
are sufficiently similar to the class to warrant the class action.9
[450 U.S. 398, 432] Since the trial court
enjoys considerable latitude in approving class actions, such a remand is
appropriate only on those rare occasions where the reviewing court discerns an
abuse of discretion.10 But where an abuse of discretion is clear
from the record, remand should ensue, and could result in redefinition or
dismissal of the class, addition of other named plaintiffs to represent
interests appellant cannot advance, or creation of subclasses with additional
representative parties.11 In contrast, it
is improper to assume appellant [450 U.S. 398,
adequately represents the entire class as defined by the trial court, but
redefine the class appellant is deemed to represent, and deny relief on that
basis.12 Nonetheless, that is exactly the course selected by the
I instead assume that appellant adequately represents the class which the
trial judge concluded she represents - all minor women seeking an abortion but
finding the parental notice requirement an obstacle. I then would find that
their rights and interests can be raised here by appellant in support of a
facial challenge to the Utah statute, and conduct the appropriate review of
appellant's claims. [450 U.S. 398, 434]
Because the Court's treatment is so cursory, I review
appellant's claims with due attention to our precedents.
Our cases have established that a pregnant woman has a fundamental right to
choose whether to obtain an abortion or carry the pregnancy to term. Roe v.
Wade, 410 U.S. 113 (1973); Doe v. Bolton, 410 U.S. 179 (1973).13
Her choice, like the deeply intimate decisions to marry,14
to procreate,15 and to use
contraceptives,16 is guarded from
unwarranted state intervention by the right to privacy.17 Grounded in the Due Process Clause of the Fourteenth
Amendment, the right to privacy18 protects both the woman's "interest in independence in
making certain kinds of important decisions" [450 U.S. 398, 435] and her "individual interest in
avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599-600
In the abortion context, we have held that the right to privacy shields the
woman from undue state intrusion in, and external scrutiny of, her very personal
choice. Thus, in Roe v. Wade, supra, at 164, we held that during the first
trimester of the pregnancy, the State's interest in protecting maternal health
or the potential life of the fetus could not override the right of the pregnant
woman and the attending physician to make the abortion decision through private,
unfettered consultation. We further emphasized the restricted scope of
permissible state action in this area when, in Doe v. Bolton, supra, at 198-200,
we struck down state-imposed procedural requirements that subjected the woman's
private decision with her physician to review by other physicians and a hospital
It is also settled that the right to privacy, like many constitutional
rights,19 extends to minors. Planned Parenthood
[450 U.S. 398, 436] of Central Mo. v. Danforth, 428 U.S. 52 (1976);
Bellotti v. Baird, 443 U.S. 622, 639 (1979) (Bellotti II) (POWELL, J.); id., at
653 (STEVENS, J.); T. H. v. Jones, 425 F. Supp. 873, 881 (Utah 1975), summarily
aff'd on other grounds, 425 U.S. 986 (1976). Indeed, because an unwanted
pregnancy is probably more of a crisis for a minor than for an adult, as the
abortion decision cannot be postponed until her majority, "there are few
situations in which denying a minor the right to make an important decision will
have consequences so grave and indelible." Bellotti II, supra, at 646 (POWELL,
J.).20 Thus, for both the adult and the
minor woman, state-imposed burdens on the abortion decision can be justified
only upon a showing that the restrictions advance "important state interests."
Roe v. Wade, 410 U.S., at 154; accord, Planned Parenthood of Central Mo. v.
Danforth, supra, at 61. Before examining the state interests asserted here, it
is necessary first to consider Utah's claim that its statute does not "imping[e]
on a woman's decision to have an abortion" or "plac[e] obstacles in the path of
effectuating such a decision." Brief for Appellees 9. This requires an
examination of whether the parental notice requirement of the Utah statute
imposes any burden on the abortion decision.
The ideal of a supportive family so pervades our culture that it may seem
incongruous to examine "burdens" imposed by a statute requiring parental notice
of a minor daughter's [450 U.S. 398, 437]
decision to terminate her pregnancy.21 This
Court has long deferred to the bonds which join family members for mutual
sustenance. See Pierce v. Society of Sisters, 268 U.S. 510, 534-535 (1925); May
v. Anderson, 345 U.S. 528, 533 (1953); Griswold v. Connecticut, 381 U.S., at
486; Stanley v. Illinois, 405 U.S. 645, 651 (1972); Moore v. East Cleveland, 431
U.S. 494, 504-505 (1977) (plurality opinion of POWELL, J.). Especially in times
of adversity, the relationships within a family can offer the security of
constant caring and aid. See id., at 505. Ideally, a minor facing an important
decision will naturally seek advice and support from her parents, and they in
turn will respond with comfort and wisdom.22
If the pregnant minor herself confides in her family, she plainly relinquishes
her right to avoid telling or involving them. For a minor in that circumstance,
the statutory requirement of parental notice hardly imposes a burden.
Realistically, however, many families do not conform to this ideal. Many
minors, like appellant, oppose parental notice and seek instead to preserve the
fundamental, personal right to privacy. It is for these minors that the parental
notification requirement creates a problem. In this context, involving the
minor's parents against her wishes23 effectively cancels her right to avoid
disclosure of her personal choice. See Whalen v. Roe, 429 U.S., at 599-600.
Moreover, the absolute notice requirement publicizes her private consultation
[450 U.S. 398, 438] with her doctor and interjects additional parties in
the very conference held confidential in Roe v. Wade, supra, at 164. Besides
revealing a confidential decision, the parental notice requirement may limit
"access to the means of effectuating that decision." Carey v. Population
Services International, 431 U.S. 678, 688 (1977). Many minor women will
encounter interference from their parents after the state-imposed notification.24
In addition to parental disappointment [450 U.S.
and disapproval, the minor may confront physical or emotional abuse, withdrawal
of financial support, or actual obstruction of the abortion decision.
Furthermore, the threat of parental notice may cause some minor women to delay
past the first trimester of pregnancy, after which the health risks increase
significantly.25 Other pregnant minors may attempt to self-abort or to obtain
an illegal abortion rather than risk parental notification.26 Still others may foresake [450 U.S. 398, 440] an abortion and bear an unwanted
child, which, given the minor's "probable education, employment skills,
financial resources and emotional maturity. . . . may be exceptionally
burdensome." Bellotti II, 443 U.S., at 642 (POWELL, J.). The possibility that
such problems may not occur in particular cases does not alter the hardship
created by the notice requirement on its face.27
And that hardship is not a mere disincentive created by the State,28
but is instead an actual [450 U.S. 398, 441]
state-imposed obstacle to the exercise of the minor woman's free choice.29 For the class of pregnant minors represented by appellant,
this obstacle is so onerous as to bar the desired abortions.30 Significantly, the interference sanctioned by the statute
does not operate in a neutral fashion. No notice is required for other
pregnancy-related medical care,31
so only the minor women who wish to abort encounter the burden imposed by the
notification statute. Because the Utah requirement of mandatory parental notice
unquestionably burdens the minor's privacy right, the proper analysis turns next
to the State's proffered justifications for the infringements posed by the
As established by this Court in Planned Parenthood of Central
Mo. v. Danforth, the statute cannot survive appellant's challenge unless it is
justified by a "significant state interest."32
Further, the State must demonstrate that the means
[450 U.S. 398, 442] it selected are closely tailored to serve that
interest.33 Where regulations burden the rights of
pregnant adults, we have held that the State legitimately may be concerned with
"protection of health, medical standards, and prenatal life." Roe v. Wade, 410
U.S., at 155. We concluded, however, that during the first trimester of
pregnancy none of these interests sufficiently justifies state interference with
the decision reached by the pregnant woman and her physician. Id., at 162-163.
Nonetheless, appellees assert here that the parental notice requirement advances
additional state interests not implicated by a pregnant adult's decision to
abort. Specifically, appellees contend that the notice requirement improves the
physician's medical judgment about a pregnant minor in two ways: it permits the
parents to provide additional information to the physician, and it encourages
consultation between the parents and the minor woman. Appellees also advance an
independent state interest in preserving parental rights and family autonomy. I
consider each of these asserted interests in turn.34
In upholding the statute, the Utah Supreme Court concluded
that the notification provision might encourage parental transmission of
"additional information, which might [450 U.S.
398, 443] prove invaluable to the physician in exercising his `best
medical judgment.'"35 Yet neither the Utah courts nor the statute itself specifies
the kind of information contemplated for this purpose, nor why it is available
to the parents but not to the minor woman herself. Most parents lack the medical
expertise necessary to supplement the physician's medical judgment, and at best
could provide facts about the patient's medical history. It seems doubtful that
a minor mature enough to become pregnant and to seek medical advice on her own
initiative would be unable or unwilling to provide her physician with
information crucial to the abortion decision. In addition, by law the physician
already is obligated to obtain all information necessary to form his best
and nothing bars consultation with the parents should the physician find it
necessary. [450 U.S. 398, 444]
Even if mandatory parental notice serves a substantial state purpose in this
regard, the Utah statute fails to implement it. Simply put, the statute on its
face does not require or even encourage the transfer of information; it does not
even call for a conversation between the physician and the parents. A letter
from the physician to the parents would satisfy the statute, as would a brief
telephone call made moments before the abortion.37
Moreover, the statute is patently underinclusive if its aim is the transfer of
information known to the parents but unavailable from the minor woman herself.
The statute specifically excludes married minors from the parental notice
requirement; only her husband need be told of the planned abortion, Utah Code
Ann. 76-7-304 (2) (1978), and Utah makes no claim that he possesses any
information valuable to the physician's judgment but unavailable from the
pregnant woman. Furthermore, no notice is required for other pregnancy-related
care sought by the minor. See Utah Code Ann. 78-14-5 (4) (f) (1977) (authorizing
woman of any age to consent to pregnancy-related medical care). The minor woman
may consent to surgical removal and analysis of amniotic fluid, caesarian
delivery, and other medical care related to pregnancy. The physician's decisions
concerning such procedures would be enhanced by parental information as much as
would the abortion decision, yet only the abortion decision triggers the
parental notice requirement. This result is especially anomalous given the
comparatively lesser health risks associated with abortion as contrasted with
other pregnancy-related medical care.38
Thus, the statute not only fails to promote [450
U.S. 398, 445] the transfer of information as is claimed, it does not
apply to other closely related contexts in which such exchange of information
would be no less important. The goal of promoting consultation between the
physician and the parents of the pregnant minor cannot sustain a statute that is
so ill-fitted to serve it.39
Appellees also claim the statute serves the legitimate purpose
of improving the minor's decision by encouraging consultation between the minor
woman and her parents. Appellees do not dispute that the State cannot legally or [450 U.S. 398, 446] practically require such
consultation.40 Nor do appellees contest the fact that the
decision is ultimately the minor's to make.41 Nonetheless, the State seeks through the notice requirement
to give parents the opportunity to contribute to the minor woman's abortion
Ideally, facilitation of supportive conversation would assist the pregnant
minor during an undoubtedly difficult experience. Again, however, when measured
against the rationality of the means employed, the Utah statute simply fails to
advance this asserted goal. The statute imposes no requirement that the notice
be sufficiently timely to permit any discussion between the pregnant minor and
the parents. Moreover, appellant's claims require us to examine the statute's
purpose in relation to the parents who the minor believes are likely to respond
with hostility or opposition. In this light, the statute is plainly overbroad.
Parental consultation hardly seems a legitimate state purpose where the minor's
pregnancy resulted from incest, where a hostile or abusive parental response is
assured, or where the minor's fears of such a response deter her from the
abortion she desires. The absolute nature of the statutory requirement, with
exception permitted only if the parents are physically unavailable, violates the
requirement that regulations in this fundamentally personal area be carefully
tailored to serve a significant state interest.42
"The need to preserve the constitutional [450
U.S. 398, 447]
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." Bellotti II, 443 U.S., at 642
(POWELL, J.). Because Utah's absolute notice requirement demonstrates no such
sensitivity, I cannot approve its interference with the minor's private
consultation with the physician during the first trimester of her pregnancy.
Finally, appellees assert a state interest in protecting
parental authority and family integrity.43
This Court, of course, has recognized that the "primary role of the parents in
the upbringing of their children is now established beyond debate as an enduring
American tradition." Wisconsin v. Yoder, 406 U.S. 205, 232 (1972). See Prince v.
Massachusetts, 321 U.S. 158 (1944); Meyer v. Nebraska, 262 U.S. 390 (1923).
Indeed, "those who nurture [the child] 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., at 535. Similarly, our
decisions "have respected the private realm of family life which the state
cannot enter." Prince v. Massachusetts, supra, at 166. See also Moore v. East
Cleveland, 431 U.S., at 505. [450 U.S. 398, 448]
The critical thrust of these decisions has been to protect the privacy of
individual families from unwarranted state intrusion.44 Ironically, appellees invoke these decisions in seeking to
justify state interference in the normal functioning of the family. Through its
notice requirement, the State in fact enters the private realm of the family
rather than leaving unaltered the pattern of interactions chosen by the family.
Whatever its motive, state intervention is hardly likely to resurrect parental
authority that the parents themselves are unable to preserve.45
In rejecting a statute permitting parental veto of the minor woman's abortion
decision in Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 75, we
found it difficult to conclude that
"providing a parent with absolute power to overrule a determination, made
by the physician and his minor patient, to terminate the patient's pregnancy
will serve to strengthen the family unit. Neither is it likely that such
veto power will enhance parental authority or control where the minor and
the nonconsenting parent are so fundamentally in conflict and the very
existence of the pregnancy already has fractured the family structure."
More recently, in Bellotti II, supra, at 638, JUSTICE POWELL observed that
efforts to guide the social and moral development of young people are "in large
part . . . beyond the competence of impersonal political institutions." [450 U.S. 398, 449]
Appellees maintain, however, that Utah's statute "merely safeguards a
reserved right which parents have to know of the important activities of their
children by attempting to prevent a denial of the parental rights through
deception." Brief for Appellees 3. Casting its purpose this way does not salvage
the statute. For when the threat to parental authority originates not from the
State but from the minor child, invocation of "reserved" rights of parents
cannot sustain blanket state intrusion into family life such as that mandated by
the Utah statute. Such a result not only runs counter to the private domain of
the family which the State may not breach; it also conflicts with the limits
traditionally placed on parental authority. Parental authority is never
absolute, and has been denied legal protection when its exercise threatens the
health or safety of the minor children. E. g., Prince v. Massachusetts, supra,
at 169-170. Indeed, legal protection for parental rights is frequently tempered
if not replaced by concern for the child's interest.46 Whatever its importance elsewhere, parental authority
deserves de minimis legal reinforcement where the minor's exercise of a
fundamental right is burdened.
To decide this case, there is no need to determine whether parental rights
never deserve legal protection when their assertion
[450 U.S. 398, 450] conflicts with the minor's rights and interests.47 I conclude that this statute cannot be defended as a mere
reinforcement of existing parental rights, for the statute reaches beyond the
legal limits of those rights. The statute applies, without exception, to
emancipated minors,48 mature minors,49 [450 U.S. 398, 451]
and minors with emergency health care needs,50 all of whom, as Utah recognizes, by law have long been
entitled to medical care unencumbered by parental involvement. Most [450 U.S. 398, 452] relevant to appellant's own claim,
the statutory restriction applies even where the minor's best interests - as
evaluated by her physician - call for an abortion. The Utah trial court found as
a fact that appellant's physician "believed along with her that she should be
aborted and that he felt it was in her best medical interest to do so but he
could not and would not perform an abortion upon her without informing her
parents prior to aborting her because it was required of him by that statute and
he was unwilling to perform an abortion upon [450 U.S. 398, 453] her without complying with the
provisions of the statute even though he believed it was best to do so." Civ.
No. C-78-2719 (Dec. 26, 1978) (Findings of Fact _ 7). Even if further review by
adults other than her physician, counselor, and attorney were necessary to
assess the minor's best interests, see Bellotti II, 443 U.S., at 640-641,
643-644 (opinion of POWELL, J.), Utah's rejection of any exception to the notice
requirement for a pregnant minor is plainly overbroad. In Bellotti II, we were
unwilling to cut a pregnant minor off from any avenue to obtain help beyond her
parents, and yet the Utah statute does just that.
In this area, I believe this Court must join the state courts and
legislatures which have acknowledged the undoubted social reality: some minors,
in some circumstances, have the capacity and need to determine their health care
needs without involving their parents. As we recognized in Planned Parenthood of
Central Mo. v. Danforth, 428 U.S., at 75, "[a]ny independent interest the parent
may have in the termination of the minor daughter's pregnancy is no more weighty
than the right of privacy of the competent minor mature enough to have become
pregnant."51 Utah itself has allocated pregnancy-related health care
decisions entirely to the pregnant minor.52 Where the physician has cause to doubt the minor's actual
ability to understand and consent, by law he must pursue the requisites of the
State's informed consent procedures.53
The State cannot have a legitimate interest in adding to this scheme mandatory
parental notice of the minor's abortion decision. This conclusion does not [450 U.S. 398, 454] affect parents' traditional
responsibility to guide their children's development, especially in personal and
moral concerns. I am persuaded that the Utah notice requirement is not necessary
to assure parents this traditional child-rearing role, and that it burdens the
minor's fundamental right to choose with her physician whether to terminate her
In its eagerness to avoid the clear application of our
precedents, the Court today relies on a mistaken view of class-action law and
prudential standing requirements. The Court's avoidance of the issue presented
by the complaint nonetheless leaves our precedents intact. Under those
precedents, I have no doubt that the challenged statute infringes upon the
constitutional right to privacy attached to a minor woman's decision to complete
or terminate her pregnancy. None of the reasons offered by the State justifies
this intrusion, for the statute is not tailored to serve them. Rather than
serving to enhance the physician's judgment, in cases such as appellant's the
statute prevents implementation of the physician's medical recommendation.
Rather than promoting the transfer of information held by parents to the minor's
physician, the statute neglects to require anything more than a communication
from the physician moments before the abortion. Rather than respecting the
private realm of family life, the statute invokes the criminal justice machinery
of the State in an attempt to influence the interactions within the family.
Accordingly, I would reverse the judgment of the Supreme Court of Utah insofar
as it upheld the statute against constitutional attack.
[Footnote 1] Under the majority's view,
to assure standing, the plaintiff pregnant minor simply need allege her desire
to obtain an abortion, her inability to do so because of the statute, and her
view that she is emancipated, mature, or that it is in her best interests to
have an abortion performed without notifying her parents. The majority finds no
standing problem where the complaint alleges that the plaintiff is emancipated
or mature, and thus reaffirms the standing analysis employed in Bellotti v.
Baird, 443 U.S. 622 (1979) (Bellotti II). See ante, at 406, n. 12. In addition,
the Court relies in part on a decision by the Federal District Court in Utah,
which enjoined application of the same Utah statute involved here to emancipated
minors. L. R. v. Hansen, Civil No. C-80-0078J (Feb. 8, 1980). The Court
apparently contemplates that similar challenges will meet with success in the
future. For example, the District Court in L. R. v. Hansen also accorded
intervenor status and awarded preliminary relief to a minor woman who, like
appellant, is under 17 years old and is dependent upon a parent with whom she
resides. The only difference between the allegations of the instant appellant
and those of that intervenor is the latter's express allegation that parental
notice would result in her expulsion from home and destruction of her
relationship with her parent. L. R. v. Hansen, Civil No. C-80-0078J (Findings of
Fact and Conclusions of Law _ 4) (Oct. 24, 1980). Finally, the Court today does
not question our prior decision upholding the standing of physicians to
challenge abortion restrictions. See n. 4, infra.
[Footnote 2] In essence, the Court
concludes that because appellant neglected to make specific allegations about
herself and her situation, she "lacks `the personal stake in the controversy
needed to confer standing' to advance the overbreadth argument," ante, at 406
(quoting Harris v. McRae, 448 U.S. 297, 320 (1980)). The majority thus assumes
that a plaintiff raising an overbreadth challenge to an abortion statute must
allege that she herself falls within the statute's overbroad reach. The
quotation from Harris actually refers to an entirely different kind of standing
issue: there the plaintiffs lacked standing because they failed to allege that
they were in a position either to seek abortions or to receive Medicaid, and
thus they lacked the concrete adverseness necessary to advance their challenge
to the Medicaid limit on abortion funding. None of the cases cited for this
point in Harris apply to the instant appeal. See O'Shea v. Littleton, 414 U.S.
488 (1974) (plaintiffs lack standing because of failure to allege specific
injury); Bailey v. Patterson, 369 U.S. 31, 32 (1962) (petitioners "lack standing
to enjoin criminal prosecutions under Mississippi's breach-of-peace statutes,
since they do not allege that they have been prosecuted or threatened with
prosecution under them").
A standing limitation on overbreadth challenges to an abortion statute has
roots in a context hardly analogous to the instant case. For while we have
frequently ruled that criminal defendants lack standing to challenge a statute's
overbreadth when their conduct indisputedly falls within the statute's
legitimate core, e. g., United States v. National Dairy Products Corp., 372 U.S.
29 (1963); United States v. Harriss, 347 U.S. 612 (1954); Williams v. United
States, 341 U.S. 97 (1951), these rulings bear little relationship to
appellant's challenge to a State's restriction of her exercise of a fundamental
right. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976);
Doe v. Bolton, 410 U.S. 179 (1973). More relevant, I believe, is our analysis of
standing to claim that a statute's overbreadth affects fundamental liberties,
primarily those guaranteed by the First Amendment. Because of the risk that
exercise of personal freedoms may be chilled by broad regulation, we permit
facial overbreadth challenges without a showing that the moving party's conduct
falls within the protected core. Gooding v. Wilson, 405 U.S. 518 (1972); Coates
v. Cincinnati, 402 U.S. 611 (1971); United States v. Robel, 389 U.S. 258 (1967);
Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969); Cox v. Louisiana, 379
U.S. 536 (1965); Aptheker v. Secretary of [450
U.S. 398, 428]
State, 378 U.S. 500 (1964); Kunz v. New York, 340 U.S. 290 (1951). See also
United States v. Reese, 92 U.S. 214 (1876) (facial challenge under Fifteenth
[Footnote 3] See n. 1, supra. The Court
does not question that exceptions from a parental notice requirement are
necessary for minors emancipated from the custody or control of their parents,
see n. 48, infra, and for minors able to demonstrate their maturity for the
purpose of choosing to have an abortion, ante, at 406-407. See also Bellotti II,
443 U.S., at 651 (POWELL, J.); id., at 653 (STEVENS, J.). Nor does the Court
depart from the view, made explicit in JUSTICE POWELL'S opinion in Bellotti II,
supra, at 651, that a State cannot require parental notice when it would not be
in the minor's best interests to do so. This position is articulated anew today
by JUSTICE POWELL, ante, at 420, and bolstered by the majority, which
acknowledges the need for exception where parental notification interferes with
emergency medical treatment, ante, at 407, n. 14, and which leaves open the
possibility of relief where the minor makes a "claim or showing as to . . . her
relations with her parents," ante, at 407, or demonstrates a "hostile home
situatio[n]," ante, at 407, n. 14. See also L. R. v. Hansen, Civil No.
C-80-0078J (Utah, Feb. 8, 1980, and Oct. 24, 1980).
[Footnote 4] It is especially noteworthy
that we have not refrained from according to physicians, threatened with the
personal risk of prosecution, standing to challenge abortion restrictions by
asserting the rights of any of their patients. E. g., Planned Parenthood of
Central Mo. v. Danforth, supra, at 62; Doe v. Bolton, supra; Griswold v.
Connecticut, 381 U.S. 479 (1965).
[Footnote 5] In the instant case,
application of the prudential rule causes undue commingling of jurisdictional
and merits issues. For here, the third-party interests do not even come into
play until appellant wishes to rebut the State's interests, which themselves are
asserted only after appellant has established a burden on her protected
interests. First, the appellant must satisfy a court that, on the merits, her
fundamental right to privacy in consulting her physician about an abortion is
burdened by the Utah statute. Only then need the State assert its countervailing
state interests, which here include promoting family autonomy and parental
authority. And only in rebuttal would appellant next challenge as overbroad the
means employed by the State, for the absolute ban regulates the abortion
decision of emancipated and mature minors, and others whose best interests call
for an abortion without parental notice. Thus, in the name of prudence, the
majority's standing analysis depends upon its evaluation of the complicated
[Footnote 6] Appellant's consultation
with three professionals casts substantial [450
U.S. 398, 429] doubt on JUSTICE POWELL'S suggestion, see ante, at 418,
that appellant "desires not to explain to anyone her reasons either for wanting
the abortion or for not wanting to notify her parents."
[Footnote 7] This portion of the
transcript is set out in full ante, at 402-403, n. 6, 403, n. 7.
JUSTICE POWELL correctly reports, ante, at 416-417, that the in-chambers
hearing elicited from appellant statements essentially identical to her
complaint. And it is also true that counsel for appellant objected to inquiries
by the appellees and the trial judge regarding appellant's exact reasons for not
wanting to talk with her parents about her pregnancy or other matters. What
JUSTICE POWELL neglects to note, however, is that counsel's objections stemmed
from the trial court's own ruling that any facts specific to appellant's
situation would be irrelevant to the physician's duty under the statute to
notify her parents of an abortion decision. Because the trial judge ruled that
the statute and its sanctions would apply regardless of the pregnant minor's
personal reasons for opposing parental notification, the judge sustained the
objections to questions about appellant's particular reasons. Tr. 14-20, App.
31-36. It is this ruling that is the legal basis for the decision below, and not
the trial judge's preliminary comments cited by the majority, ante, at 403, n.
[Footnote 8] I also doubt the wisdom in
pinning a minor's success in challenging a [450
U.S. 398, 431] blanket parental notice requirement to consideration of
her particular situation by judges, as opposed to others who are more regularly
involved in the counselling of adolescents. Cf. Bellotti II, 443 U.S., at
655-656 (STEVENS, J.).
[Footnote 9] As the Court observed in
Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 176 (1974), the federal class
action procedure "was intended to insure that the judgment, whether favorable or
not, would bind all class members who did not request exclusion from the suit."
The binding effect of the class action's disposition poses serious due process
concerns where the interests of class members are not properly represented. 7A
C. Wright & A. Miller, Federal Practice and Procedure 1765 (1972).
Where review of the claims asserted is impaired by an obvious lack of
homogeneity in the class approved by the trial court, the reviewing court must
remand "for reconsideration of the class definition," Kremens v. Bartley, 431
U.S. 119, 134-135 (1977), and for a determination whether the named plaintiff is
a proper representative of the class, Martin v. Thompson Tractor Co., 486 F.2d
510, 511 (CA5 1973).
[Footnote 10] E. g., Bogus v. American
Speech & Hearing Assn., 582 F.2d 277 (CA3 1978); Dellums v. Powell, 184 U.S.
App. D.C. 275, 566 F.2d 167 (1977), cert. denied, 438 U.S. 916 (1978); Barnett
v. W. T. Grant Co., 518 F.2d 543 (CA4 1975); Arkansas Ed. Assn. v. Board of Ed.
of Portland, Arkansas School Dist., 446 F.2d 763 (CA8 1971); Gold Strike Stamp
Co. v. Christensen, 436 F.2d 791 (CA10 1970).
It is difficult to conclude that the trial judge below in fact abused his
discretion in approving the class. Other courts have approved similar classes
represented by similar named plaintiffs, e. g., Gary-Northwest Indiana Women's
Services v. Bowen, 421 F. Supp. 734 (ND Ind. 1976) (unmarried pregnant
16-year-old proper representative for class of unmarried pregnant minors under
18 challenging abortion restriction), summarily aff'd, 429 U.S. 1067 (1977).
Conflict within the class, moreover, seems unlikely, for "it is difficult to
imagine why any person in the class appellant represents would have an interest
in seeing [the challenged statute] upheld." Sosna v. Iowa, 419 U.S. 393, 403, n.
[Footnote 11] A class may need to be
redefined, e. g., Gesicki v. Oswald, 336 F. [450
U.S. 398, 433] Supp. 371, 374 (SDNY 1971) (three-judge court), divided
into subclasses, e. g., Francis v. Davidson, 340 F. Supp. 351 (Md. 1972)
(three-judge court), or otherwise modified, to adequately protect its members'
interests. See generally 7 Wright & Miller, supra, 1758-1771 (1972 and Supp.
The majority mistakenly assumes, ante, at 406, n. 13, that it is free to
rewrite the class as approved by the trial court because that court based its
class definition on submissions from the plaintiff. This assumption runs counter
to the general practice in both state and federal courts whereby the party
seeking class certification proposes a class definition which is then subject to
challenge by the opposing party. See 1 H. Newberg, Class Actions 644 (1977); 5
id., at 1376, 1403. Appellees challenged the class without success, and the
State Supreme Court never questioned the trial court's approval of appellant's
[Footnote 12] See ante, at 420-421
(opinion of STEVENS, J.). JUSTICE POWELL reasons, ante, at 417, n. 6, that the
class members cannot raise the overbreadth claims because the record fails to
disclose that they wish to raise such claims. In my view, the record is quite to
the contrary. The class members, through their class representative,
unequivocally raised in the complaint the overbreadth challenge to the Utah
statute. Complaint _ 17, App. 6. This claim, along with the other allegations in
the complaint, provided the context in which the trial judge approved appellant
as class representative. In so approving, the trial court was obliged to ensure
that appellant's allegations would adequately protect the interests of the class
members, who would be bound by the judgment. If a reviewing court subsequently
alters the claims that can be asserted by the named plaintiff, protection of the
class interests requires a remand for reconsideration of the adequacy of the
named plaintiff as class representative.
[Footnote 13] See also Carey v.
Population Services International, 431 U.S. 678, 684-685 (1977); Griswold v.
Connecticut, 381 U.S., at 482-485.
[Footnote 14] Zablocki v. Redhail, 434
U.S. 374, 384-386 (1978); Loving v. Virginia, 388 U.S. 1, 12 (1967).
[Footnote 15] Skinner v. Oklahoma ex
rel. Williamson, 316 U.S. 535 (1942). See also Cleveland Board of Education v.
La Fleur, 414 U.S. 632 (1974).
[Footnote 16] Eisenstadt v. Baird, 405
U.S. 438, 453 (1972); Griswold v. Connecticut, supra; Carey v. Population
Services International, supra; Poe v. Ullman, 367 U.S. 497, 539 (1961) (Harlan,
J., dissenting) (ban on contraception is "intolerable and unjustifiable invasion
of privacy in the conduct of the most intimate concerns of an individual's
[Footnote 17] See also Union Pacific
R. Co. v. Botsford, 141 U.S. 250, 251 (1891) ("No right is held more sacred, or
is more carefully guarded, by the common law, than the right of every individual
to the possession and control of his own person, free from all restraint or
interference of others, unless by clear and unquestionable authority of law").
[Footnote 18] The right has often been
termed "the right to be let alone." See Olmstead v. United States, 277 U.S. 438,
478 (1928) (Brandeis, J., dissenting) (quoted with approval in Stanley v.
Georgia, 394 U.S. 557, 564 (1969), and Eisenstadt v. Baird, supra, at 453-454,
n. 10). Defining the spheres within which the government may not act without
sufficient justification, the notion of privacy "emanates from the totality of
the constitutional scheme under which we live." Poe v. Ullman, supra, at 521
(Douglas, J., dissenting).
[Footnote 19] "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. See, e. g., Breed v. Jones, 421
U.S. 519 (1975); Goss v. Lopez, 419 U.S. 565 (1975); Tinker v. Des Moines School
Dist., 393 U.S. 503 (1969); In re Gault, 387 U.S. 1 (1967). The Court indeed,
however, long has recognized that the State has somewhat broader authority to
regulate the activities of children than of adults. Prince v. Massachusetts, 321
U.S., at 170; Ginsberg v. New York, 390 U.S. 629 (1968)." Planned Parenthood of
Central Mo. v. Danforth, 428 U.S., at 74-75.
See also Brown v. Board of Education, 347 U.S. 483 (1954) (children entitled
to equal protection in schools).
The privacy right does not necessarily guarantee that "every minor,
regardless of age or maturity, may give effective consent for termination of her
pregnancy." Planned Parenthood of Central Mo. v. Danforth, supra, at 75. Utah,
however, assigns this consent authority to a woman of any age who seeks
pregnancy-related medical care, Utah Code Ann. 78-14-5 (4) (f) (1977), subject
to the State's informed consent requirements, see Utah Code Ann. 76-7-305
(1978); 78-14-5 (1977). This [450 U.S. 398, 436]
appeal does not present the broad issue of when may a State require parental
consent for a surgical procedure on a minor child, 604 P.2d 907, 910, n. 5 (Utah
1979). At issue here is only the scope of the minor's constitutional privacy
right in the face of a statutory parental notice requirement.
[Footnote 20] In striking down a
related Utah prohibition against family planning assistance for minors absent
parental consent, a Federal District Court reasoned that the "financial,
psychological and social problems arising from teenage pregnancy and motherhood
argue for our recognition of the right of minors to privacy as being equal to
that of adults." T. H. v. Jones, 425 F. Supp. 873, 881 (Utah 1975), summarily
aff'd on other grounds, 425 U.S. 986 (1976).
[Footnote 21] Appellees also argue that
"[i]t is difficult to contemplate a relationship where the right of privacy as
formulated in the abortion context could be less relevant than in the confines
of the nuclear family." Brief for Appellees 22. This view, however, was
expressly rejected in Planned Parenthood of Central Mo. v. Danforth, supra, at
[Footnote 22] Realization of this ideal,
however, must depend on the quality of emotional attachments within the family,
and not on legal patterns imposed by the State. See Quilloin v. Walcott, 434
U.S. 246, 255 (1978); Moore v. East Cleveland, 431 U.S., at 506.
[Footnote 23] Nothing prevents the
physician from encouraging the minor to consult her parents; only the minor who
strenuously objects will remain burdened by the notice requirement.
[Footnote 24] The record here contains
little about appellant's situation because the trial judge excluded any such
evidence as irrelevant to the facial challenge to the mandatory notice
requirement. In light of her claim that the notice requirement inhibits the
exercise of her right to choose an abortion, however, we may surmise that
appellant expects family conflict over the abortion decision. Indeed, the
transcript of the evidentiary hearing, quoted ante, at 402-403, n. 6, 403, n. 7
(opinion of BURGER, C. J.), demonstrates that consultation with her social
worker, her physician, and her lawyer did not alter appellant's steadfast belief
that she could not discuss the issue with her parents.
The records in other cases are also instructive as to the interference posed
by some parents to the exercise of some minor's privacy right. See L. R. v.
Hansen, Civil No. C-80-0078J (Utah, Oct. 24, 1980) (preliminary relief awarded
to minor alleging parent expelled from home minor sister who disclosed facts of
pregnancy and abortion); see Women's Community Health Center, Inc. v. Cohen, 477
F. Supp. 542, 548 (Me. 1979) (expert affidavits that some parents "will pressure
the minor, causing great emotional distress and otherwise disrupting the family
relationship"); Baird v. Bellotti, 450 F. Supp. 997, 1001 (Mass. 1978)
(uncontested evidence some parents "would insist on an undesired marriage, or on
continuance of the pregnancy as punishment" or even physically harm the minor);
Wynn v. Carey, 582 F.2d 1375, 1388, n. 24 (CA7 1978) (suggesting same problems);
In re Diane, 318 A. 2d 629, 630 (Del. Ch. 1974) (father opposes minor's abortion
on religious grounds); State v. Koome, 84 Wash. 2d 901, 908, 530 P.2d 260, 265
(1975) (parent thinks forcing daughter to bear child will deter her future
pregnancies). See Margaret S. v. Edwards, 488 F. Supp. 181 (ED La. 1980).
Parents also may oppose a minor's decision not to abort. E. g., In re Smith, 16
Md. App. 209, 295 A. 2d 238 (1972). See generally F. Furstenberg, Unplanned
Parenthood: The Social Consequences of Teenage Childbearing 54 (1976); Jolly,
Young, Female, and Outside the Law, in Teenage Women in the Juvenile Justice
System: Changing Values 97, 102 (1979) ("When a young girl becomes pregnant,
many families refuse to allow her back into their home"); Osofsky &
[450 U.S. 398, 439] Osofsky, Teenage Pregnancy: Psychosocial
Considerations, 21 Clin. Obstet. Gynecol. 1161, 1164-1165 (1978). See also J.
Bedger, Teenage Pregnancy 123-124 (1980) (large majority of sampled pregnant
minors predict parental opposition to their abortions).
[Footnote 25] Women's Community Health
Center, Inc. v. Cohen, supra, at 548 (affidavits showing parental notice "may
cause an adolescent to delay seeking assistance with her pregnancy, increasing
the hazardousness of an abortion should she choose one"); Cates, Adolescent
Abortions in the United States, 1 J. Adolescent Health Care 18, 24 (1980);
Bracken & Kasl, Delay in Seeking Induced Abortion: A Review and Theoretical
Analysis, 121 Am. J. Obstet. Gynecol. 1008, 1013 (1975); Hofmann, Consent and
Confidentiality and Their Legal and Ethical Implications for Adolescent
Medicine, in Medical Care of the Adolescent 42, 51 (J. Gallagher, F. Heald & D.
Garell eds., 3d ed. 1976).
If she decides to abort after the first trimester of pregnancy, the minor
faces more serious health risks. Roe v. Wade, 410 U.S. 113, 163 (1973); Benditt,
Second-Trimester Abortion in the United States, 11 Family Planning Perspectives
358 (1979); Cates, Schulz, Crimes, & Tyler, The Effect of Delay and Method
Choice on the Risk of Abortion Morbidity, 9 Family Planning Perspectives 266
(1977). If she decides to bear the child, her health risks are also greater than
if she had a first trimester abortion. Cates, 1 J. Adolescent Health Care,
supra, at 24; Cates & Tietze, Standardized Mortality Rates Associated with Legal
Abortion: United States 1972-1975, 10 Family Planning Perspectives 109 (1978)
(abortion within first 16 weeks of pregnancy safer than carrying pregnancy to
term); "The Earlier the Safer" Applies to all Abortions, 10 Family Planning
Perspectives 243 (1978). See also Zackler, Andelman, & Bauer, The Young
Adolescent as an Obstetric Risk, 103 Am. J. Obstet. Gynecol. 305 (1969)
(complications associated with childbirth by minors).
[Footnote 26] Women's Community Health
Center, Inc. v. Cohen, supra, at 548 (affidavits that minor may turn to illegal
abortion rather than have parents notified). See also Kahan, Baker, & Freeman,
The Effect of [450 U.S. 398, 440]
Legalized Abortion on Morbidity Resulting from Criminal Abortion, 121 Am. J.
Obstet. Gynecol. 114 (1975) (illegal abortion rate drops when legal abortion
available). The minor may also seek to abort herself, Alice v. Department of
Social Welfare, 55 Cal. App. 3d 1039, 1044, 128 Cal. Rptr. 374, 377 (1976); A.
Holder, Legal Issues in Pediatrics and Adolescent Medicine 285 (1977); or even
commit suicide, see Teicher, A Solution to the Chronic Problem of Living:
Adolescent Attempted Suicide, in Current Issues in Adolescent Psychiatry 129,
136 (J. Schoolar ed. 1973) (study showing that approximately one-fourth of
female minors who attempt suicide do so because they are or believe they are
[Footnote 27] It is the presence of the
notice requirement, and not merely its implementation in a particular case, that
signifies the intrusion. Cf. Planned Parenthood of Central Mo. v. Danforth, 428
U.S. 52 (1976) (availability of veto, not exercise of veto, found
Despite the Court's objection today that we have in the past "expressly
declined to equate notice requirements with consent requirements," ante, at 411,
n. 17, in Bellotti II the Court rejected a statute authorizing judicial review
of a minor's abortion decision - as an alternative to parental consent -
precisely because a parent notified of the court action might interfere. Thus,
JUSTICE POWELL wrote for four Members of the Court: "[A]s the District Court
recognized, `there are parents who would obstruct, and perhaps altogether
prevent, the minor's right to go to court.' . . . 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." 443
U.S., at 647.
[Footnote 28] Thus, the notice
requirement produces not only predictable disincentives to choose to abort,
Harris v. McRae, 448 U.S., at 338 (MARSHALL, J., dissenting); id., at 330
(BRENNAN, J., dissenting); but also "`direct state interference with a protected
activity,'" id., at 315 (quoting with approval Maher v. Roe, 432 U.S. 464, 475
[Footnote 29] See Doe v. Bolton, 410
U.S. 179 (1973) (invalidating procedural restrictions on availability of
abortions); Carey v. Population Services International, 431 U.S., at 687-689
(partial restrictions on access to contraceptives subject to constitutional
challenge). Regardless of the personal views each of us may hold, the privacy
right by definition secures latitude of choice for the pregnant minor without
state approval of one decision over another. Thus, JUSTICE STEVENS improperly
inverts the reasoning of our decisions when he reiterates his previous view that
the importance of the abortion decision points to a "`State's interest in
maximizing the probability that the decision be made correctly and with full
understanding of the consequences of either alternative,'" ante, at 422
[Footnote 30] See text accompanying n. 8
and see nn. 20, 24, 25, supra.
[Footnote 31] Utah permits pregnant
minors to consent to any medical procedure in connection with pregnancy and
childbirth, but requires parental notice only before an abortion. Compare Utah
Code Ann. 78-14-5 (4) (f) (1977) with 76-7-304 (2) (1978).
[Footnote 32] 428 U.S., at 75. Cf.
Zablocki v. Redhail, 434 U.S., at 388; NAACP v. Button, 371 U.S. 415, 438
(1963). In Roe v. Wade, this Court concluded that the woman's privacy right may
be tempered by "important [state] interests," 410 U.S., at 154, but the Court
ultimately applied the [450 U.S. 398, 442]
"compelling state interest" test commonly used in reviewing state burdens on
fundamental rights. Id., at 155. Although it may seem that the minor's privacy
right is somehow less fundamental because it may be overcome by a "significant
state interest," the more sensible view is that state interests inapplicable to
adults may justify burdening the minor's right. Planned Parenthood of Central
Mo. v. Danforth, supra, at 74-75.
[Footnote 33] E. g., Roe v. Wade, supra,
at 155; Griswold v. Connecticut, 381 U.S., at 485.
[Footnote 34] Appellees also argue that
the notice requirement furthers legitimate state interests in enforcing Utah's
criminal laws against statutory rape, fornication, adultery, and incest. Brief
for Appellees 28-30. These interests were not asserted below, and are too
tenuous to be considered seriously here.
[Footnote 35] 604 P.2d, at 909-910.
[Footnote 36] Section 76-7-304 (1)
requires the physician to
"Consider all factors relevant to the well-being of the woman upon whom the
abortion is to be performed including, but not limited to,
"(a) Her physical, emotional and psychological health and safety,
"(b) Her age,
"(c) Her familial situation."
Violations of this requirement are punishable by a year's imprisonment and
$1,000 fine. Utah Code Ann. 76-3-204 (1), 76-3-301 (3), 76-7-314 (3) (1978).
Criminal sanctions also apply if the physician neglects to obtain the minor's
informed written consent, and such consent can be secured only after the
physician has notified the patient:
"(a) Of the names and addresses of two licensed adoption agencies in the
state of Utah and the services that can be performed by those agencies, and
nonagency adoption may be legally arranged; and
"(b) Of the details of development of unborn children and abortion
procedures, including any foreseeable complications, risks, and the nature
of the post-operative recuperation period; and
"(c) Of any other factors he deems relevant to a voluntary and informed
consent." Utah Code Ann. 76-7-305 (2) (1978).
The risk of malpractice suits also ensures that the physician will acquire
whatever information he finds necessary before performing the abortion. See Utah
Code Ann. 78-14-5 (1977).
Moreover, "[i]f a physician is licensed by the State, he is recognized by [450 U.S. 398, 444] the State as capable of
exercising acceptable clinical judgment. If he fails in this, professional
censure and deprivation of his license are available remedies." Doe v. Bolton,
410 U.S., at 199.
[Footnote 37] The parties conceded as
much at oral argument. Tr. of Oral Arg. 18-19, 29, 48.
[Footnote 38] I am baffled by the
majority's statement today that "[i]f the pregnant girl elects to carry her
child to term, the medical decisions to be made
[450 U.S. 398, 445] entail few - perhaps none - of the potentially grave
and emotional and psychological consequences of the decision to abort," ante, at
412-413. Choosing to participate in diagnostic tests involves risks to both
mother and child, and also may burden the pregnant woman with knowledge that the
child will be handicapped. See 3 National Institutes of Health, Prevention of
Embryonic, Fetal, and Perinatal Disease 347-352 (R. Brent & M. Harris eds.
1976); Risks in the Practice of Modern Obstetrics 59-81, 369-370 (S. Aladjem ed.
1975). The decision to undergo surgery to save the child's life certainly
carries as serious "emotional and psychological consequences" for the pregnant
adolescent as does the decision to abort; in both instances, the minor confronts
the task of calculating not only medical risks, but also all the issues involved
in giving birth to a child. See id., at 59-81. For an unwed adolescent, these
issues include her future educational and job opportunities, as well as the more
immediate problems of finding financial and emotional support for offspring
dependent entirely on her. Michael M. v. Sonoma County Superior Court, post, at
470, and nn. 3 and 4 (REHNQUIST, J.) (plurality opinion). When surgery to save
the child's life poses greater risks to the mother's life, the emotional and
ethical dimensions of the medical care decision assume crisis proportion. Of
course, for minors, the mere fact of pregnancy and the experience of childbirth
can produce psychological upheaval.
[Footnote 39] More flexible regulations
which defer to the physician's judgment but provide for parental notice in
emergencies have been proposed. E. g., IJA-ABA Standards for Juvenile Justice,
Rights of Minors 4.2, 4.6, 4.8 (1980) (minor can consent to pregnancy-related
medical care; physician should seek to obtain minor's permission to notify
parent, and notify parent over minor's objection only if failure to inform
"could seriously jeopardize the health of the minor").
[Footnote 40] 604 P.2d, at 912 ("the
State has a special interest in encouraging (but does not require) an unmarried
pregnant minor to seek the advice of her parents in making the important
decision as to whether or not to bear a child").
[Footnote 41] Ibid. (notification
statute "does not per se impose any restriction on the minor as to her decision
to terminate her pregnancy"). Cf. Utah Code Ann. 78-14-5 (4) (f) (1977) (woman
of any age can consent to any medical care related to pregnancy). See generally
Planned Parenthood of Central Mo. v. Danforth, 428 U.S., at 74 (State may not
delegate absolute veto authority to parents of pregnant minor seeking abortion).
[Footnote 42] State-sponsored counseling
services, in contrast, could promote family dialogue and also improve the
minor's decisionmaking process. Appellant [450
U.S. 398, 447] H. L., for example, consulted with a counselor who
supported her decision. The role of counselors can be significant in
facilitating the pregnant woman's adjustment to decisions related to her
pregnancy. See Smith, A Follow-Up Study of Women Who Request Abortion, 43 Am. J.
Orthopsychiatry 574, 583-585 (1973).
[Footnote 43] This interest, although
not discussed by the state courts below, was the subject of appellees' most
vigorous argument before this Court. The challenged provision does fall within
the "Offenses Against the Family" chapter of the Utah Criminal Code, ante, at
400 (opinion of BURGER, C. J.), which also provides criminal sanctions for
bigamy, Utah Code Ann. 76-7-101, incest, 76-7-102, adultery, 76-7-103,
fornication, 76-7-104, and nonsupport and sale of children, 76-7-201 to 76-7-203
[Footnote 44] Wynn v. Carey, 582 F.2d,
at 1385-1386; Note, The Minor's Right of Privacy: Limitations on State Action
after Danforth and Carey, 77 Colum. L. Rev 1216, 1224 (1977).
[Footnote 45] "The fact that the minor
became pregnant and sought an abortion contrary to the parents' wishes indicates
that whatever control the parent once had over the minor has diminished, if not
evaporated entirely. And we believe that enforcing a single, albeit important,
parental decision - at a time when the minor is near to majority status - by an
instrument as blunt as a state statute is extremely unlikely to restore parental
control." Poe v. Gerstein, 517 F.2d 787, 793-794 (CA5 1975), summarily aff'd,
428 U.S. 901 (1976).
[Footnote 46] Thus, in Prince v.
Massachusetts, this Court held that even parental rights protected by the First
Amendment could be limited by the State's interest in prohibiting child labor.
See Wisconsin v. Yoder, 406 U.S. 205, 233-234 (1972) (discussing Prince). The
State traditionally exercises a parens patriae function in protecting those who
cannot take care of themselves. See Ginsberg v. New York, 390 U.S. 629, 641
(1968). Some of the earliest applications of parens patriae protected children
against their "objectionable" parents. E. g., Wellesley v. Wellesley, 2 Bli. N.
S. 124, 133-134, 4 Eng. Rep. 1078, 1082 (H. L. 1828). See generally Kleinfeld,
The Balance of Power Among Infants, Their Parents and the State, Part III, 5
Family L. Q. 64, 66-71 (1971). Every State has enacted legislation to defend
children from parental abuse. Wilcox, Child Abuse Laws: Past, Present, and
Future, 21 J. Forensic Sciences 71, 72 (1976).
[Footnote 47] The contexts in which this
issue may arise are too varied to support any general rule. Appellees cite our
recent decision in Parham v. J. R., 442 U.S. 584 (1979), to support their claim
that parents should be presumed competent to be involved in their minor
daughter's abortion decision. That decision is inapposite to this case in
several respects. First, the minor child in Parham who was committed to a mental
hospital was presumed incompetent to make the commitment decision himself. Id.,
at 623 (STEWART, J., concurring in judgment). In contrast, appellant by statute
is presumed competent to make the decision about whether to complete or abort
her pregnancy. Furthermore, in Parham, the Court placed critical reliance on the
ultimately determinative, independent review of the commitment decision by
medical experts. Here, the physician's independent medical judgment - that an
abortion was in appellant's best medical interest - not only was not ultimate,
it was defeated by the notice requirement. Finally, as JUSTICE STEWART
emphasized in his opinion concurring in the judgment in Parham, the pregnant
minor has a "personal substantive . . . right" to decide on an abortion. Id., at
623-624, n. 6.
[Footnote 48] Most States through their
legislature or courts have adopted the common-law principle that a minor may
become freed of the disabilities of that status - and at the same time release
his parents from their parental obligations - prior to the actual date of his
majority. Certain acts, in and of themselves, may occasion emancipation. See, e.
g., Cal. Civ. Code Ann. 62 (West 1954 and Supp. 1981) (emancipation upon
marriage or entry in Armed Services); Utah Code Ann. 15-2-1 (Supp. 1979)
(emancipation upon marriage); Crook v. Crook, 80 Ariz. 275, 296 P.2d 951 (1956)
(same). A minor may become partially emancipated if he is partially
self-supporting, but still entitled to some parental assistance. See Katz,
Schroeder, & Sidman, Emancipating Our Children - Coming of Legal Age in America,
7 Fam. L. Q. 211, 215 (1973). Several States by statute permit emancipation for
a specific purpose, such as obtaining medical care without parental consent, e.
g., Cal. Civ. Code Ann. 34.6 (West Supp. 1981); Mont. Code Ann. 41-1-402 (1979)
(woman of any age may consent to pregnancy-related medical care); Utah Code Ann.
78-14-5 (4) (f) (1977) (same), 26-6-39.1 (1976) (minor can consent to medical
[450 U.S. 398, 451]
treatment for venereal disease); Tex. Rev. Civ. Stat. Ann., Art. 4447i (Vernon
1976) (person at least 13 years old may consent to medical treatment for drug
dependency). See Pilpel, Minors' Rights to Medical Care, 36 Albany L. Rev. 462
(1972). Several States provide for emancipation once the individual becomes a
parent. E. g., Ky. Rev. Stat. 214-185 (2) (1977). In Utah, minors who become
parents are authorized to make all medical care decisions for their offspring.
Utah Code Ann. 78-14-5 (4) (a) (1977). See generally Cohen v. Delaware, L. & W.
R. Co., 150 Misc. 450, 453-457, 269 N. Y. S. 667, 671-676 (1934); L. R. v.
Hansen, No. C-80-0078J (Utah, Feb. 8, 1980) (self-supporting minor seeking
abortion is emancipated and mature); Goldstein, Medical Care for the Child at
Risk: On State Supervention of Parental Autonomy, 86 Yale L. J. 645, 663 (1977)
(recommending objective criteria to avoid case-by-case determination of
[Footnote 49] The "mature minor"
doctrine permits a child to consent to medical treatment if he is capable of
appreciating its nature and consequences. E. g., L. R. v. Hansen, supra (this
mature minor "is capable of understanding her condition and making an informed
decision which she has done after carefully considering the alternatives
available to her and consulting the persons with whom she felt she should
consult" prior to abortion decision); Ark. Stat. Ann. 82-363 (g) (1976). See
Lacey v. Laird, 166 Ohio St. 12, 139 N. E. 2d 25 (1956) (physician not liable
for battery after acting with minor's consent); Smith v. Seibly, 72 Wash. 2d 16,
21-22, 431 P.2d 719, 723 (1967); Younts v. St. Francis Hosp. & School of
Nursing, Inc., 205 Kan. 292, 300-301, 469 P.2d 330, 337 (1970).
Four Members of this Court embraced the "mature minor" concept in striking
down a statute requiring parental notice and consent to a minor's abortion,
regardless of her own maturity. Bellotti II, 443 U.S., at 643-644, and nn. 22
and 23. In Bellotti II, JUSTICE POWELL's opinion for four Members of this Court
suggested that a statute could withstand constitutional attack if it permitted
case-by-case administrative or judicial determination of a pregnant minor's
capacity to make an abortion decision with her physician and independent of her
parents. Ibid. Because this view was expressed in a case not involving such a
statute, and because it would expose the minor to the arduous and public rigors
of administrative or judicial process, four other Members of this Court rejected
it as advisory and at odds with the privacy interest at stake. Id., at 654-656,
and n. 4 (STEVENS, J., joined by BRENNAN, MARSHALL, and BLACKMUN, JJ.).
Nonetheless, even under JUSTICE POWELL's reasoning in Bellotti II, the
[450 U.S. 398, 452] instant statute is unconstitutional. Not only does it
preclude case-by-case consideration of the maturity of the minor, it also
prevents individualized review to determine whether parental notice would be
harmful to the minor.
[Footnote 50] E. g., Ky. Rev. Stat.
214.185 (3) (1977); Utah Code Ann. 26-31-8 (1976); 1979 Utah Laws, ch. 98, 7.
The need for emergency medical care may even overcome the religious objections
of the parents. E. g., In re Clark, 21 Ohio Op. 2d 86, 89-90, 185 N. E. 2d 128,
131-132 (Com. Pl., Lucas County 1962); In re Sampson, 65 Misc. 2d 658, 317 N. Y.
S. 2d 641 (Family Ct.), aff'd, 37 App. Div. 2d 668, 323 N. Y. S. 2d 253 (1970);
Mass. Gen. Laws. Ann., ch. 112, 12F (West Supp. 1981); Miss. Code Ann. 41-41-7
(1972). Delay in treating nonemergency health needs may, of course, produce an
emergency, and for that reason, this Court found statutory provision for
emergency but not nonemergency care illogical. Memorial Hospital v. Maricopa
County, 415 U.S. 250, 261, 265 (1974). In asserting that the Utah statute would
not apply to minors with emergency health care needs, the Court fails to point
to anything in the statute, the record, or Utah case law to the contrary. The
Supreme Court of Utah addressed only one kind of emergency: where the parents
cannot be physically located in sufficient time to permit performance of the
abortion. 604 P.2d, at 913. The court rejected any other emergency situation as
an exception to the statute when it declined to afford a broad interpretation of
the phrase, "if possible," which modifies the notice requirement. Even where the
emergency is simply that the parents cannot be reached, the statute applies; the
physician subject to its sanction merely has been granted an affirmative defense
that he exercised "reasonable diligence" in attempting to locate and notify the
parents. Ibid. The majority purports to draw support for its view of the Utah
statute on this point from a Massachusetts statute, construed by the
Massachusetts Supreme Judicial Court, see ante, at 407, n. 14.
[Footnote 51] As one medical authority
observed: "One can well argue that an adolescent old enough to make the decision
to be sexually active . . ., and who is then responsible enough to seek
professional assistance for his or her problem, is ipso facto mature enough to
consent to his own health care." Hofmann, supra n. 25, at 51. See Goldstein, 86
Yale L. J., at 633.
[Footnote 52] Utah Code Ann. 78-14-5 (4)
[Footnote 53] Utah Code Ann. 76-7-305
(1978) requires voluntary and informed written consent. See n. 36, supra.
[Footnote 54] Cf. Wynn v. Carey, 582
F.2d, at 1388. [450 U.S. 398, 455]
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