Appendix — Hodgson v. Minnesota

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IN THE JAN 4 1589

Supreme Court of the Unite —~_. JR.

OCTOBER TERM, 1988

JANE HODGSON, M.D.; ARTHUR HOROWITZ, M.D.; NADINE T., JANET T.,

ELLEN Z., HEATHER P., MARY J., SHARON L., KATHY M., and JUDY

M., individually and on behalf of all other persons similarly situated;

DIANE P., SARAH L., and JACKIE H.; MEADOWBROOK WOMEN’S

CLINIC, P.A.,. PLANNED PARENTHOOD OF MINNESOTA, a nonprofit

Minnesota corporation; MIDWEST HEALTH CENTER FOR WOMEN,

P.A., a nonprofit Minnesota corporation; WOMEN’S HEALTH CENTER

OF DULUTH, P.A., a nonprofit Minnesota corporation,

Petitioners,

—

THE STATE OF MINNESOTA; RUDY PERPICH, as Governor of the State of

Minnesota; HUBERT H. HUMPHREY, III, as Attorney General of the

State of Minnesota,

Respondents.

APPENDIX TO PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

WILLIAM Z. PENTELOVITCH, ESQ. JANET BENSHOOF

BECKY PALMER, Esq. (Counsel of Record)

CHARLES HOFFMAN, Esq. RACHAEL PINE

Maslon, Edelman, Borman & Brand LYNN PALTROW

1800 Midwest Plaza American Civil Liberties

Minneapolis, Minnesota 55402 Union Foundation

(612) 339-8015 132 West 43rd Street

New York, New York 10036

(212) 944-9800

LINDA OJALA, ESQ.

KURZMAN, GRANT & OJALA

2445 Park Avenue South

Minneapolis, Minnesota 55404

(612) 871-9004

Attorneys for Petitioners

Other Than Planned

Parenthood of Minnesota

Attorneys for Petitioner

Planned Parenthood of Minnesota

sip ”*

TABLE OF CONTENTS

PAGE

Minn. Stat. Amn. § 144.343(1)-(7).......ccccccccsvces la

ey is MS OE ic cic ciddscdcccccseresese Sa

Order Substituting Caption (April 3, 1986)............ 6a

Notice of Appeal (Nov. 18, 1986).................4.. 8a

Hodgson v. Minnesota, 648 F. Supp. 756 (D. Minn.

Gh Se ee cee ee ee eee eee eke ie ese tes 10a

Hodgson v. Minnesota, 827 F.2d 1191 (8th Cir. 1987).. 53a

Hodgson v. Minnesota, 853 F.2d 1452 (8th Cir. 1988) (en

ER EE ee O ee er er are Pree TORS 74a

Stay of Mandate (October 7, 1988) (stay pending the fil-

ing of a petition for writ of certiorari with the United

States Supreme Court and, if petition is granted, pend-

ing the decision of the United States Supreme Court) 110a

EXCERPTS FROM TRANSCRIPTS OF TESTIMONY

I, SE, SE oc wc cnecsesesccesoenes 112a

” IN is coc cs eisckssivnrccsosss 112a

Gunderson, Dr. Paul Duane................. 114a

Se, SU IEE Be ccc dccecctcceccevescess ll4a

PT, cron banseusedseddevinecevesveces 115a

PAGE

Henshaw, Dr. Stanley ....ssidseeuneeee 1l6a

Himes, Jackie .. ...0+s0cesesees anne 1l6a

Hodgson, De. Jame... .scccnseeeaseee 118a

Kathy M. .....0ccecsceseue eee l2la

Miaty J... ccccvccscesescesneu sun 12la

Martin, Judge Gesald C. ..sccscecceeesee l2la

Oleisky, Judge Alem ...0:0sseseseeeneeee 123a

Petereen, Judge George ....0csoccceseueeunen 123a

Riley, Judge Nell... ..cscccecsctssunene 124a

Shasom L. ....c0cceseseeeee seen eee 124a

Smuith, Susaame .....0000c8ee00eu ene 125a

Sweeny, Judge Wiliam R. ..:sssetaebeee 12Sa

Webber, Thomas P. ...0.0080s0000uueeee 126a

Weish, Kathrine Reiche .....00scssesseuuee 128a

Wendt, POwin. ...ccscccsessceuseue nan 129a

Excerpts from Cynthia J. Deposition......... 132a

Excerpts from Bonnie L. Deposition.......... 133a

PLAINTIFFS EXHIBITS:

Table: Percent Abortions in Second Trimester—

Minnesota Resi@amts. ..occcccasséeseenne 135a

Table: ‘‘Live Births and Induced Abortions to

Women Age 15-19’’ in Minneapolis, 1980-1984 136a

ill

PAGE

EXCERPTS FROM TRANSCRIPTS OF TESTIMONY

es occ ccccccesececcccess 138a

EEE TT ET 140a

EOE TTT TT ETTLITTE l4la

Hodgson v. Minnesota, Nos. 3-81 CIV. 538 (D. Minn.

Jan. 23, 1985) (summary judgment order) .......... 146a

Hodgson v. Minnesota, Nos. 86-5423, 86-5431 (8th Cir.

November 13, 1987) (order granting petition for

rehearing by the panel, vacating and withdrawing prior

panel opinion, holding case in abeyance pending the

decision in Hartigan v. Zbaraz, U.S.

(1987), and denying petition for rehearing en banc).. 158a

Hodgson v. Minnesota, Nos. 86-5423, 86-5431 (8th Cir.

December 31, 1987) (order granting petition for hear-

ing en banc and vacating opinion and judgment of the

EES SEES ELSES POT ETTTTT TET ETT 160a

ABORTIONS—NOTICE TO PARENTS

CHAPTER 228

H.F. No. 284

An Act relating to health; prescribing procedures for notifica-

tion of parents, guardians, and conservators prior to per-

forming abortions on certain persons; providing a penalty;

amending Minnesota Statutes 1980, Section 144.343.

Be it enacted by the Legislature of the State of Minnesota:

Section 1. Minnesota Statutes 1980, Section 144.343, is

amended to read:

144.343. Pregnancy, venereal disease, and alcohol or drug

abuse,

Subdivision 1. Minor’s consent valid. Any minor may give

effective consemt or medical, mental and other health services

to determine the presence of or to treat pregnancy and condi-

tions associated therewith, venereal disease, alcoho! and other

drug abuse, and the consent of no other person is required.

Subd. 2. Notification concerning abortion. Notwithstand-

ing the provisions of Minnesota Statutes, Section 15.162, Sub-

divisiosn 4, section 13.02, subdivision 8, no abortion operation

shall be performed upon an unemancipated minor or upon a

woman for whom a guardian or conservator has been

appointed pursuant to sections 525.54 to 525.551 because of a

finding of incompetency, until at least 48 hours after written

notice of the pending operation has been delivered in the man-

ner specified in subdivisions 2 to 4.

(a) The notice shall be addressed to the parent at his

usual place of abode and delivered personally to the parent

by the physician or his agent.

(b) In lieu of the delivery required by clause (a), notice

shall be made by certified mail addressed to the parent at

this usual palce of abode with return receipt requested and

restricted delivery to the addressee which means postal

employee can only deliver the mail to the authorized

addressee. Time of delivery shall be deemed to occur at 12

o'clock noon on the next day on which regular mail deliv-

ery takes place, subsequent to mailing.

Subd. 3. Parent, abortion; definitions. For purposes of this

section, “‘parent’’ means both parents of the pregnant woman

if they are both living, one parent of the pregnant woman if

only one is living or if the second one cannot be located through

reasonably diligent effort, or the guardian or conservator if the

pregnant woman has one.

For purposes of this section, ‘‘abortion’’ means the use of

any means to terminate the pregnancy of a woman known to be

pregnant with knowledge that the termination with those means

will, with reasonable likelihood, cause the death of the fetus

and “*fetus’’ means any individual human organism from fertil-

ization until birth.

Subd. 4. Limitations. No notice shall be required under this

section if:

(a) The attending physician certifies in the pregnant

woman's medical record that the abortion is necessary to

prevent the woman’s death and there is insufficient time to

provide the required notice; or

(b) The abortion is authorized in writing by the person

Or persons who are entitled to notice; or

©) The pregnant minor woman declares that she is a

victim of sexual abuse, neglect, or physical abuse as

defined in section 626.556. Notice of that declaration shal]

be made to the proper authorities as provided in section

626.556, subdivision 3.

Subd. 5. Penalty. Performance of an abortion in violation

of this section shal] be a misdemeanor and shall be grounds for

a civil action by a person wrongfully denied notification. A per-

son shall not he held liable under this section if the person

establishes by written evidence that the person relied upon evi-

dence sufficient to convitice a careful and prudent person that

the representations of the pregnant woman regarding informa-

tion necessary to comply with this section are bona fide and

true, or if the person has attempted with reasonable diligence to

deliver notice, but has been unable to do so.

Subd. 6. Substitute notification provisions. If subdivision 2

of this law is ever temporarily or permanently restrained or

enjoined by judicial order, subdivision 2 shall be enforced as

though the following paragraph were incorporated as para-

graph (c) of that subdivision; provided, however, that if such

temporary or permanent restraining order or injunction is ever

stayed or dissolved, or otherwise ceases to have effect, subdivi-

sion 2 shall have full force and effect, without being modified

by the addition to the following substitute paragraph which

shall have no force or effect until or unless an injunction or

restraining order is again in effect.

notification of one or both of her parents or guardian or

conservator, any judge of a court of competent jurisdic-

tion shall, upon petition, or motion, and after an appro-

priate hearing, authorize a physician to perform the

abortion if said judge determines that the pregnant woman

is mature and capable of giving informed consent to the

proposed abortion. If said judge determines that the preg-

nant woman is not mature, or if the pregnant woman does

not claim to be mature, the judge shall determine whether

the performance of an abortion upon her without notifica-

tion of her parents, guardian, or conservator would be in

her best interests and shal] authorize a physician to per-

form the abortion without such notification if said judge

concludes that the pregnant woman’s best interests would

be served thereby.

(ii) Such a pregnant woman may participate in pro-

ceedings in the court on her own behalf, and the court may

appoint a guardian ad litem for her. The court shall, how-

ever. advise her that she has a right to court appointed

counsel, and shall, upon her request, provide her with such

counsel.

(iii) Proceedings in the court under this section shal!

be confidential and shall be given such precedence over

other pending matters so that the court may reach a deci-

sion promptly and without delay so as to serve the best

interests of the pregnant woman. A judge of the court who

conducts proceedings under this section shall make in writ-

ing specific factual findings and legal conclusions support-

ing his decision and shall order a record of the evidence to

be maintained including his own findings and conclusions.

(iv) An expedited confidential appeal shali be avail-

able to any such pregnant woman for whom the court

denies an order authorizing an abortion without notifica-

tion. An order authorizing an abortion without notifica-

tion shall not be subject to appeal. No filing fees shall be

required of any such pregnant woman at either the trial or

the appellate level. Access to the trial court for the pur-

poses of such a petition or motion, and access to the appel-

late courts for purposes of making an appeal from denial

of the same, shall be afforded such a pregnant woman 24

hours a day, seven days a week.

Subd. 7 Severability. If any provision, word, phrase or

clause of Laws 1981, Chapter 228 or the application thereof to

any person or circumnstance shall be held invalid, such invalid-

ity shall not affect the provisions, words, phrases, clauses or

application of Laws 1981, Chapter 228 which can be given

effect without the invalid provision, word, phrase, clause or

application, and to this end the provisions, words, phrases, and

clauses of Laws 1981, Chapter 228 are declared to be severable.

Approved May 19, 1981

144.346 Information to parents

The professional may inform the parent or legal guardian of

the minor patient of any treatment given or needed where, in

the judgment of the professional, failure to inform the parent

or guardian would seriously jeopardize the health of the minor

patient.

Laws 1971, c. 544, § 6, eff. May 27, 1971.

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

Civil No. 3-81-538

Filed April 3, 1986

—<>—

JANE HODGSON, M.D.; ARTHUR HOROWITZ, M.D.; NADINE

T., JANET T., ELLEN Z., HEATHER P., MARY J., SHARON

L., KATHY M., and Jupy M., individually and on behalf of

all other persons similarly situated; DIANE P., SARAH L.

and JACKIE H.; MEADOWBROOK WOMEN’S CLINIC, P.A..,

PLANNED PARENTHOOD OF MINNESOTA, a nonprofit

Minnesota corporation; MIDWEST HEALTH CENTER FOR

WOMEN, P.A., a nonprofit Minnesota corporation; Wom.

EN’S HEALTH CENTER OF DULUTH, P.A., a nonprofit

Minnesota corporation, a

Plaintiffs,

—_V—

THE STATE OF MINNESOTA; RUDY PERPICH, as Governor of

the State of Minnesota; HUBERT H. HUMPHREY, III, as

Attorney General of the State of Minnesota,

Defendants.

Jane Hodgson, M.D., et al,

Plaintiffs,

The State of Minnesota, et al,

Defendants.

ORDER

The matter having come before this Court on the trial of the

above captioned case and the Court having made certain rulings

on the record pursuant to the agreement of counsel, it is on this

3rd day of April, 1986.

ORDERED that the attached caption be substituted in all

future filings with the Court.

/s/ DONALD J. ALSOP

Honorable Donald J. Alsop,

U.S.D.J.

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

3-81 CIV 538

Jane Hodgson, M.D.; Arthur Horowitz, M.D.; Michelle Roe,

Alice Roe, Diane Roe, Nadine T., Janet T., and Ellen Z.:

individually and on behalf of all other persons similarly sit-

uated; Lauren Z.; Meadowbrook Women’s Clinic, P.A.,

Planned Parenthood of Minnesota, a nonprofit Minnesota

corporation, Midwest Health Center for Women, P.A., a

nonprofit Minnesota corporation; Women’s Health Center

of Duluth, P.A., a nonprofit Minnesota corporation,

Plaintiffs,

—_—V.—

The State of Minnesota; Rudy Perpich, as Governor of the Stte

of Minnesota; Hubert H. Humphrey, III, as Attorney Gen-

eral of the State of Minnesota,

Defendants.

—~<+>__

NOTICE OF APPEAL

NOTICE Is HEREBY GIVEN that The State of Minnesota,

Rudy Perpich and Hubert H. Humphrey, III, defendants above

named, hereby appeal to the United States Court of Appeals for

the Eighth Circuit from the final judgment entered against

defendants in this action on the 6th day of November, 1986.

Dated: November 18, 1986.

HUBERT H. HUMPHREY, III

Attorney General

State of Minnesota

By:

JOHN B. GALUS

Special Assistant

Attorney General

515 Transportation

Building

St. Paul, Minnesota 55155

Telephone: (612) 296-2654

Attorneys for Defendants

10a

UNITED STATES DISTRICT COURT

DISTRICT OF MINNESOTA

THIRD DIVISION

3-81 CIV 538

JANE HODGSON, M.D.; ARTHUR HOROWITZ, M.D.;:

MICHELLE ROE, ALICE ROE, DIANE ROE, NADINE T..

JANET T., and ELLEN Z., individually and on behalf of ali

other persons similarly situated; LAUREN Z; MEADOW.

BROOK WOMEN’S CLINIC, P.A., PLANNED PARENTHOOD

OF MINNESOTA, a nonprofit Minnesota corporation, MID-

WEST HEALTH CENTER FoR WOMEN, P.A., a nonprofit

Minnesota corporation; WOMEN’S HEALTH CENTER OF

DULUTH, P.A., a nonprofit Minnesota corporation,

Plaintiffs,

—_—V.—

THE STATE OF MINNESOTA; RUDY PERPICH, as Governor of

the State of Minnesota; HUBERT H. HUMPHREY, III, as

Attorney General of the State of Minnesota,

Defendants.

FINDINGS OF FACT, CONCLUSIONS

OF LAW AND ORDER

AMERICAN CIVIL LIBERTIES UNION FOUNDATION by JANET

BENSHOOF, Esq., RACHAEL PINE, Esq. and SUZANNE LYNN,

Esq. of New York, New York, appeared on behalf of plaintiffs.

MASLON, EDELMAN, BORMAN & BRAND by WILLIAM PENTE-

LOVITCH, Esq. of Minneapolis, Minnesota, appeared on behalf

of plaintiff Planned Parenthood of Minnesota.

HUBERT H. HUMPHREY, III, Attorney General of the State of

Minnesota by JOHN GALUS, special Assistant Attorney Genera]

n . ee

lla

and PETER M. ACKERBERT, Special Assistant Attorney Gen-

eral, St. Paul, Minnesota, appeared on behalf of defendants.

The above-entitled matter came before the court for trial

from February 10, 1986, until March 13, 1986, and for argu-

ment on June 11, 1986. Having considered the evidence and

being fully advised in the premises, the court makes the follow-

ing:

FINDINGS OF FACT

1. INTRODUCTION

1. Plaintiffs Jane Hodgson, M.D., and Arthur Horowitz,

M.D., are licensed physicians engaged in the practice of obstet-

rics and gynecology, including the performing of abortions, in

Minnesota.

2. Plaintiff Meadowbrook Women’s Clinic, P.A., provides

birth control, abortions and related medical services to its

patients, including unemancipated minor women under the age

of 18 at a medical facility located in St. Louis Park, Minnesota.

3. Plaintiff Planned Parenthood of Minnesota provides

birth control, abortions and related medical services to its

patients, including unemancipated minor women under the age

of 18, at a clinic located in St. Paul, Minnesota.

4. Plaintiff Midwest Health Center for Women provides

birth control services, abortions, and related medical services to

its patients, including unemancipated minor women under the

age of 18, at a clinic located in Minneapolis, Minnesota.

5. Plaintiff Women’s Health Center of Duluth, P.A., pro-

vides birth control services, abortions, and related medical ser-

vices to it: patients, including unemancipated minor women

under the age of 18, at a clinic located in Duluth, Minnesota.

6. Plaintiff Alice Roe was a 16-year old unemancipated

minor and seven weeks pregnant at the commencement of this

12a

action. Alice Roe asserts that she was at that time mature and

that notification of her parents of her desire to have an abortion

would not have been in her best interests.

7. Plaintiff Michelle Roe was a 15-year-old unemancipated

minor who was pregnant at the commencement of this action.

Michelle Roe asserts that she was at that time mature and that

notification of her parents of her desire to have an abortion

would not have been in her best interests.

8. Diane Roe was a 16-year-old unemancipated minor and

eight weeks pregnant at the commencement of this action.

Diane Roe asserts that she was at that time mature and that

notification of her parents of her desire to have an abortion

would not have been in her best interests.

9. Plaintiff Nadine T. was a 16-year-old unemancipated

minor and pregnant as of the time of the filing of the amended

complaint in this action. Nadine T. asserts that she was at that

time mature and that notification of her parents of her desire to

have an abortion would have not been in her best interests.

10. Plaintiff Janet T. was a 16-year-old unemancipated

minor and pregnant as of the time of the filing of the amended

complaint in this action. Janet T. asserts that she was at that

time mature and that notification of her father of her desire to

have an abortion would have not been in her best interests.

11. Ellen Z. was a 17-year-old unemancipated minor and

pregnant as of the time of the filing of the amended complaint

in this action. Ellen Z. asserts that she was then mature and that

notification of her father of her desire to have an abortion

would not have been in her best interests.

12. Plaintiffs Alice Roe, Michelle Roe, Diane Roe, Nadine

T., Janet T., and Ellen Z. represent a class composed of preg-

nant minors who assert that they are mature and that notifica-

tion of one or both of their parents would not be in their best

interests.

13. Lauren Z. is the mother of plaintiff Ellen Z. Lauren Z.

asserts that notification of Ellen Z.’s father of Ellen Z.’s desire

l3a

to have an abortion would not have been in Ellen Z.’s best

interests.

14. Defendants are the State of Minnesota, its Governor and

its Attorney General.

15. In 1981, the Legislature of the State of Minnesota

enacted Minn. Laws 1981, ch. 228, codified as Minn. Stat.

§ 144.343 (2)-(7). The statute was to become effective August 1,

1981.

16. Subdivision 2 of the statute generally requires physicians

or their agents to attempt with reasonable diligence to notify the

parents of an unemancipated minor under the age of 18 at least

48 hours before performing an abortion. Subdivision 3 defines

‘“*parent’’ as both parents if both are living, one parent if only

one is living or if the second one cannot be located through rea-

sonably diligent effort, or the guardian or conservator if the

pregnant woman has one. Subdivision 4 of the statute provides

that the statutory notice requirement does not apply when the

parents have consented to the abortion, when prompt action is

needed to preserve the life of the minor, or when the minor

reports that she is a victim of sexual or physical abuse or neglect

as defined in Minn. Stat. § 626.556. Subdivision 5 subjects

anyone performing an abortion in violation of Minn. Stat.

§ 144.343 (2)-(7) to criminal penalties and civil liability.

17. Subdivision 6 of the statute provides, in the alternative,

that if subdivision 2 is ever enjoined by judicial order, then the

same notice requirement shall be effective together with an

optional procedure whereby an unemancipated minor may

obtain a court order permitting an abortion without notice to

her parents upon showing that she is mature and capable of giv-

ing informed consent to an abortion or, if she is not mature,

that an abortion without notice to her parents nevertheless

would be in her best interests. -

ir amended complaints, plaintiffs seek a declara-

wll Pos tone that Minn. Stat. § 144.343 (2)-(7) violates the

constitutions of the United States and the State of Minnesota

and seek a permanent injunction against its enforcement. More

particularly, plaintiffs claim that the statute violates their due

l4a

process rights, both on its face and as applied; that the statute

violates the equal protection clause; and that the statute violates

the due process, privacy and equal protection provisions of

Article 1 of the Minnesota Constitution and also constitutes the

delegation of administrative power to Minnesota state courts in

violation of article 3 of the Minnesota Constitution.

19. Before the statute took effect on August 1, 1981, plain-

tiffs sought a temporary restraining order and preliminary

injunction against the statute.

20. On July 31, 1981, the court temporarily restrained

enforcement of subdivision 2 of the Statute, but denied plain-

tiffs’ motion for an order temporarily restraining enforcement

of subdivision 6. On March 22, 1982, the court preliminarily

enjoined subdivision 2 but denied a preliminary injunction of

subdivision 6. By virtue of these two rulings, the parental notifi-

cation requirement and the judicial bypass option of subdivi-

sion 6 went into effect on August 1, 1981, and have remained in

effect since that date.

21. By memorandum order of January 23, 1985, the court

granted in part and denied in part defendants’ motion for par-

tial summary judgment as to all of plaintiffs’ claims concerning

the judicial bypass procedure of subdivision 6. Specifically, the

court granted partial summary judgment for defendants by dis-

missing all of plaintiffs’ state constitutional claims on jurisdic-

tional grounds and by ruling that, on its face, the judicial

bypass procedure in subdivision 6 does not violate the constitu-

tional equal protection and due process rights of pregnant

minors. The court concluded, however, that plaintiffs should

have the opportunity of a trial to prove their allegations that

subdivision 6 is being applied unconstitutionally.

Il. AVAILABILITY OF ABORTION SERVICES IN THE

STATE OF MINNESOTA

22. Abortion services are less accessible in Minnesota than in

the country as a whole. In Minnesota, 94% of the counties, or

82 out of 87 counties, have no readily available abortion pro-

vider. In 1982, 44% of women in Mimnesota ages 15-44 lived in

1Sa

a county with an abortion provider as compared to 72% of the

same group in the country as a whole.

23. Access to information about abortion services in out-

state Minnesota is comparatively limited. Many second trimes-

ter patients come from counties with no abortion providers and

thus with no media advertising or listing in telephone books for

abortion services.

. ions are performed in only four public and nine

chan in naiie. and then only if a staff doctor

requests it. There are only two hospitals where a patient can

walk in and obtain an abortion: Hennepin County Medical

Center and St. Paul-Ramsey. Virtually all of Minnesota s abor-

tion providers are located in the two major metropolitan areas

of the state: Duluth and Minneapolis-St. Paul. Many women

have to travel long distances to obtain abortion services.

. transportation problems facing women seeking

Prey in Minnesota are illustrated by the experiences of

those attending the Women’s Health Center Clinic in Duluth.

The Health Center serves women from 24 counties in Minne-

sota, 14 counties in Wisconsin, 4 counties in Michigan and the

Canadian Province of Ontario. Some of the women served by

the Health Center drive six to seven hours to get to the clinic.

Airline flights are not available from some areas. Bus service

from some areas is infrequent, requiring some women to spend

ight in Duluth. _

yy ts travel long distances creates barriers to obtaining

services. These barriers include increased cost, particularly if

lodging is required; delayed pregnancy diagnosis and delayed

treatment of post-abortion complications; jeopardized privacy

of women away from home; and more hazardous travel during

pense 30% of all abortions performed in Minnesota in 1982

were obtained by women who lived outside the Twin Cities met-

ropolitan area, an increase of 20% since 1976. The near

women [sic] has to travel to obtain a abortion, the less likely she

is to obtain one.

l6a

26. Women of all ages in Min

. nesota have abortions later j

me pregnancies than in the United States as a whole. In 1981,

nn ; ~ oe et abortions in the United States had sec-

er abortion, while 13.5% of all women obtaini

. . *. . . tainin

a ae in Minnesota did so in their second trimester. in

na tit Pp Outside the metropolitan area who

ns so during the second tri

with only 10% of metro area women. iit

27. The cost of an abortion increases with

gestational a

— As — becomes more difficult and cantiie

mea An t part of the doctor. The Meadowbrook Clinic

12-14 weeks, $275; 14-16 weeks, $596; 26 ne Sesion, $225;

weeks, $550; 19-21 weeks, $650. After 21 cain tee -

refers patients to St. Paul-Ramsey Hospital where a later bo.

tion (22 weeks) costs $1600-1800; or to Wichita Kansas - -

a late abortion (up to 24 weeks) costs $2000 cash. None of thece

fees includes the cost of transportation or lodging ree ara

will fund abortions for indigent women only if the peegnen is

the result of rape or incest, or if continuing the pre nd

would endanger the life of the woman. er

28. Unfavorable publicity surroundi i

dures and delivery of services has rnonery aa.

from performing abortions. For example, the Women’s Health

Center in Duluth has been unable to contract local physicians to

perform abortions. The Center has had to import physicians

from small communities some distance from Duluth. Physi-

clans are also concerned about the bombings of clinics and doc-

tors’ offices. Consequent] ici

: . y, some physicians ref

abortion patients elsewhere. ——

17a

Ill. APPLICATION OF MINN. STAT. § 144.343 IN MIN-

NESOTA, AUGUST 1, 1981, TO MARCH 13, 1986.

A. Compliance with Bellotti v. Baird, 432 U.S. 622 (1979)

1. Legal Standard

29. Minnesota Statutes § 144.343 (6) provides:

(c)(i) If such a pregnant woman elects not to allow the

notification of one or both of her parents or guardian or

conservator, any judge of a court of competent jurisdic-

tion shall, upon petition, or motion, and after an appro-

priate hearing, authorize a physician to perform the

abortion if said judge determines that the pregnant woman

is mature and capable of giving informed consent to the

proposed abortion. If said judge determines that the preg-

nant woman is not mature, or if the pregnant woman does

not claim to be mature, the judge shall determine whether

the performance of an abortion upon her without notifica-

tion of her parents, guardian, or conservator would be in

her best interests and shall authorize a physician to per-

form the abortion without such notification if said judge

concludes that the pregnant woman’s best interests would

be served thereby.

30. With the exception of a hearing occurring shortly after

the enactment of § 144.343, judges in Minnesota have faithfully

applied the standards set forth in subdivision 6. Those judges

who consider themselves unable to faithfully apply this stan-

dard have consistently refused to hear bypass petitions.

31. Courts hearing bypass petitions regularly appoint guard-

ians ad litem and provide appointed counsel to assist minors

participating in bypass proceedings. .

32. Judges, public defenders, and guardians ad litem do not

adhere to a single interpretation of either the “‘maturity’’ or

‘‘best interests’ standard. However, the variation in interpreta-

tion of these standards does not exceed that typical of verbally

expressed legal standards. Moreover, these differences of inter-

18a

pretation do not produce diff,

ceedings. erent results in actual bypass pro-

2. Expedition

by pressing need these courts wi

' will hear a number of titions

greater than that normally scheduled for a single rag These

— also have in place procedures for hearing bypass peti-

10ns Outside of normal business hours on an emergency basis

34. Two or three days common!

. y elapse between a minor’

first contact with the court and the hearing on her petition A

delay of this duration creates an increased medical risk to an

abortion patient, albeit small in magnitude, and may increase

metropolitan counties is burdensome to minor petitioners

However, this delay and its resultant burden are unavoidable

and do not reflect a systemic failure to Provide a judicial bypass

option in the most expeditious practicable manner. “

; 35. Although the court systems of the non-metropolitan

reas have had less frequent occasion to apply the judicial]

bypass procedures than Hennepin, Ramsey, and St. Louis

County courts, these court systems are acquainted with the stat-

ute and h ied j “wee

se nd have applied it conscientiously when called upon to do

36. Courts of non-metropoli j

rt politan counties called upon to hear

ms ‘Petitions generally have complied with their Statutory

obligation to advise petitioners of their right to appointed coun-

sel and to provide such counsel upon request. These courts also

generally have appointed guardians ad ]j S i

ers. litem to assist petition-

37. Despite conscientious efforts to provide an expeditious

court bypass option in non-metropolitan areas, a number of

19a

counties are not served by a judge who is willing to hear bypass

petitions. A minor in one of these counties must travel to

another county, most commonly a metropolitan county, to

obtain an expeditious hearing of her petition. Although burden-

some, this necessity also does not reflect a systematic failure to

provide a judicial bypass option in the most expeditious practi-

cable manner.

38. On August 13, 1981, the Supreme Court of Minnesota

issued an order directing that all petitions under subdivision 6

should initially be filed in and considered by the county courts

throughout the state or, in the cases of Hennepin and Ramsey

Counties, in the juvenile division of the district court of those

two counties. In the same order, the Minnesota Supreme Couirt

directed that all appeals should be on the record to a judge of

the district court, including the district courts of Hennepin and

Ramsey counties.

39. In an amended and supplemental order effective July 1,

1984, the Supreme Court of Minnesota provided that in a uni-

fied judicial district, an order denying a petition pursuant to the

judicial bypass procedure shall be appealable on the record to

two district court judges and if there be a division between those

judges, the order denying the petition should stand.

40. No minor has been unable to obtain an expeditious

appeal of an order denying her bypass petition.

3. Anonymity

41. Judges, public defenders, guardians ad litem, and court

personnel involved in bypass proceedings are aware that Minn.

Stat. § 144.343 (6) requires that bypass proceedings be kept

strictly-confidential. Those involved in the proceedings take

steps to insure confidentiality, including destroying interview

notes, holding hearings in judges’ chambers rather than in open

court, and referring to petitioners by first name only. In addi-

tion, public defenders and courts have departed from normal]

routines when adhering to the routine would have threatened

confidentiality.

20a

42. The record discloses that the confidentiality of minors

electing the judicial bypass option has been breached only in a

small number of isolated cases.

B. Burdens Imposed by Minn. Stat § 144.343 (2)-(7)

1. Judicial Bypass Procedure

43. As discussed above, scheduling practices in Minnesota

courts typically require minors to wait two or three days

between their first contact with the court and the hearing on

their petitions. This delay may combine with other factors to

result in a delay of a week or more. A delay of this magnitude

increases the medical risk associated with the abortion proce-

dures toa Statistically significant degree. Even a shorter delay

may push the minor into the second trimester, when the abor-

tion procedure entails Significantly greater costs, incon-

vienence, and medical risk.

44. The experience of going to court for a judicial authoriza-

tion produces fear and tension in many minors. Minors are

apprehensive about the prospect of facing an authority figure

who holds in his hands the power to veto their decision to pro-

ceed without notifying one or both parents. Many minors are

angry and resentful at being required to justify their decision

before complete Strangers. Despite the confidentiality of the

proceeding, many minors resent having to reveal intimate

details of their personal and family lives to these strangers.

Finally, minors are left feeling guilty and ashamed about their

lifestyle and their decision to terminate their pregnancy. Some

mature minors and some minors in whose best interests it is to

proceed without notifying their parents are so daunted by the

judicial proceeding that they forego the bypass option and

either notify their parents or Carry to term.

Some minors are so upset by the bypass proceeding that they

consider it more difficult than the medical procedure itself.

Indeed, the anxiety resulting from the bypass proceeding may

linger until the time of the medical procedure and thus render

the latter more difficult than necessary.

2la

2. Two Parent Notice Requirement

45. A minor who chooses not to go to court to avoid notify-

ing her parents must notify both parents, if they are living,

unless the second one cannot be located through reasonably dil-

igent effort. The statute makes no exception fora non-custodial

parent who is divorced or separated from the custodial parent,

or for a parent who never married the custodial parent. No

exception is made in the case of a parent, custodial or not,

whom the minor considers likely to react abusively to notifica-

tion, unless the minor is willing to declare that she is a victim of

sexual or physical abuse.

46. If a minor declares that she is the victim of sexual or

physical abuse, Minn. Stat. § 144.343(4)(c) obligates the recipi-

ent of this information to report it to the local welfare agency,

police department, or the country sheriff pursuant to Minn.

Stat. § 626.556(3). This obligation binds counselors and physi-

cians at abortion clinics. The welfare agency yaust report the

information to the law enforcement agency, and vice versa.

Minn. Stat. § 626.556(3).

47. Minors who are victims of sexual or physical abuse often

are reluctant to reveal the existence of the abuse to those outside

the home. More importantly, notification to government

authorities creates a substantial risk that the confidentiality of

the minor’s decision to terminate her pregnancy will be lost.

Thus, few minors choose to declare they are victims of sexual or

physical abuse despite the prevalence of such abuse in Minne-

sota, as elsewhere.

48. In practice, the requirement that the minor notify both

parents, if living, affects many minors in single parent homes

who have voluntarily notified the custodial parent. No excep-

tion is made, for example, in the case of a non-custodial —

who for years has exhibited no interest in the minor’s tp op-

ment. No exception is made for parents likely to react wit psy-

chological, sexual or physical violence toward either the —

or the custodial parent. Minors in such circumstances ass

notify the non-custodial parent, or else go to court pe =

zation to proceed without notifying the non-custodial parent.

22a

Notification of an abusive or even a disinterested absent parent

may reintroduce that parent’s disruptive or unhelpful participa-

tion into the family at a time of acute stress. Alternatively,

going to court to seek authorization introduces a traumatic dis-

traction into the family relationship at a stressful juncture. The

emotional trauma attending either option tends to interfere

with and burden the parent-child communication the minor vol-

untarily initiated with the custodial parent.

49. The two parent notification requirement also affects

minors in two parent homes who voluntarily have consulted

with one parent but not with the other out of fear of psycholog-

ical, sexual, or physical abuse toward either the minor or the

notified parent. Here, too, the minor must choose either to

notify the second parent or to endure the court bypass proce-

dure. Once again, the emotional trauma attending either option

tends to interfere with and burden the parent-child communica-

tion the minor voluntarily initiated with the custodial parent.

50. Instances, such as those described above, in which the

requirement that the minor notify both parents of her decision

interferes with and burdens parent-child ommunication volun-

tarily initiated by the minor are not uncommon. Approximately

20-25% of minors who go to court for authorization are accom-

panied by one parent or indicate that they have already con-

sulted with one parent.

3. Forty-Eight Hour Waiting Period

51. Minors who elect to notify one or both parents by written

notice, including those whose parents refuse to sign acknow!l-

edgement forms despite having been told of their daughters’

decision, must wait until 48 hours after actual or constructive

delivery of written notice. Constructive delivery of mailed

notice occurs at noon on the regular mail delivery day following

mailing. Thus, Minn. Stat. § 144.343 delays effectuation of a

minor’s decision to terminate her pregnancy by at least 48 hours

and more commonly by 72 hours.

$2. This statutorily imposed delay frequently is compounded

by scheduling factors such as clinic hours, transportation

23a

requirements, weather, a minor’s school and work commit-

ments, and sometimes a single parent’s family and work com-

mitments. In many cases, the effective length of the delay may

reach a week or more.

53. Delay of any length in performing an abortion increases

the statistical risk of mortality and morbidity. The increase in

risk becomes statistically significant when the length of delay

reaches one week. Moreover, even delays of less than one week

may push a woman into the second trimester. Second trimester

er entail significantly greater costs, inconvenience, and

risk. |

C. Results of Bypass Proceedings, August 1, 1981, to

March 1, 1986

; 54. The parties agreed to submit statistics reflecting disposi-

tion of bypass petitions filed in Minnesota from August 1,

1981, to March 1, 1986, in the form of tables compiling infor-

mation obtained by affidavit from court officials in each Min-

nesota county. The table summarizing these statistics by

judicial] district is appended hereto.

5S. During the period for which statistics have been com-

piled, 3,573 bypass petitions were filed in Minnesota courts. Six

petitions were withdrawn before decision. Nine petitions were

denied and 3,558 were granted.

56. Anomalous circumstances surrounded several of the

petitions which were denied. Three denials occurred in Henne-

pin County. The Honorable Allen Oleisky, Judge of the Henne-

pin County District Court, Juvenile Division, recalls denying

two of the more than one thousand petitions he has heard. One

of these petitions was brought by a minor who did not actually

wish to have an abortion, but rather to marry her boyfriend.

Judge Oleisky denied the petition in order to assist the minor in

effectuating this desire by shifting responsibility for preventing

the abortion from the minor to the court. The second denial

involved a minor whom the judge determined was being coerced

into having an abortion by her parents. After determining the

24a

minor did not actually wish to have an abortion, Judge Oleisky

denied the petition.

The Honorable Gerald G. Martin, County Court Judge for

the St. Louis County Family and Juvenile Court, granted all

but one of the 225 or 226 petitions he heard during the period

for which statistics were compiled. The petition Judge Martin

denied was submitted by a rather immature 14 year old who was

accompanied to court by her mother. The minor’s father had

been out of contact with the minor and her mother for more

than seven years. Rather than proceed to the best interests

inquiry, Judge Martin denied the petition because he was cer-

tain a notice mailed to the father’s last known address would

not reach him.

57. The single denials occurring in Anoka, Mower, and Lyon

Counties each occurred in the first petition brought in those

respective counties. The Nobles County Court denied one of the

two petitions brought there to date. A comparison to the experi-

ence in the metropolitan counties, where the courts have heard

large numbers of petitions and granted nearly all, suggests that

some or all of the denials occurring in non-metropolitan coun-

ties are due more to the courts’ unfamiliarity with the judicial

bypass statute than to the petitioners’ immaturity or best inter-

ests. For example, the Anoka County Court denied the first

petition brought before it and then granted each of the 19 peti-

tions heard during the remainder of the period for which statis-

tics were compiled.

D. Effectuation of State Interests

1. Asserted State Interests

58. The Minnesota legislature had several purposes in mind

when it amended Minn. Stat. § 144.343 in 1981. The primary

purpose was to protect the well-being of minors by encouraging

minors to discuss with their parents the decision whether to ter-

minate their pregnancies. Encouraging such discussion was

intended to achieve several salutory results. Parents can provide

emotional support and guidance and thus forestall irrational

and emotional decision-making. Parents can also provide infor-

25a

mation concerning the minor’s medical history of which the

minor may not be aware. Parents can also supervise post-

abortion care. In addition, parents can support the minor’s psy-

chological sequelae that may attend the abortion procedure.

59. The court finds that a desire to deter and dissuade minors

from choosing to terminate their pregnancies also motivated the

legislature. Testimony before a legislative committee consider-

ing the proposed notification requirement indicated that influ-

ential supporters of the measure hoped it ‘‘would save lives’’ by

influencing minors to carry their pregnancies to term rather

than aborting.

2. Testimony as to Beneficial Effect of Minn. Stat.

§ 144.343

a. Judicial Bypass/Notice Requirement

60. The court heard testimony of judges who collectively

have adjudicated over 90 percent of the parental notification

petitions filed since August 1, 1981. None of these judges, on

direct or cross examination, identified a positive effect of the

law.

Honorable Allen Oleisky has heard over 1,000 parental noti-

fication petitions. He characterizes his function as ‘‘a routine

clerical function on my part, just like putting my seal and stamp

on it.’’ Moreover, he believes that the statute dissuades some

minors from having abortions because of the fear of going to

court in a distant city.

Honorable Gerald Martin stated that he doesn’t ‘‘perceive

any useful public purpose to what [he is] doing in these cases;’’

moreover, he finds the court experience difficult for minors. ‘‘]

think they find it a very nervewracking experience,’’ he testi-

fied.

Honorable Neil Riley testified that he saw iio beneficial

effects of the statute and further that he sympathized with ‘‘the

predicament’”’ the minors were in.

Honorable William Sweeney testified, ‘‘] know as a judge

you would like to think your decisions are important, that you

are providing some—you are doing some legitimate purpose.

26a

What I have come to believe . . . [is] that really the judicial]

function is merely a rubber stamp. The decision has already

been made before they have gotten to my chambers. The young

women I have seen have been very mature and capable of giving

the required consent.”’

He further testified that ‘‘the level of apprehension that |

have seen contrasted with even the orders for protection, which

is a very intense situation, very volatile, and the custody ques-

tions, is that the level of apprehension is twice what I normally

see incourt. . . . You see all the typical things that you would

see with somebody under incredible amounts of stress, answer-

ing monosyllabically, tone of voice, tenor of voice, shaky,

wringing of hands, you know, one young lady had her—her

hands were turning blue and it was warm in my office. . . .”’

Mr. Paul Garrity, who adjudicated the same bypass petitions

while a judge in Massachusetts, believed that the Massachusetts

law accomplished nothing. ‘‘It just gives these kids a rough

time. I can’t think it accomplishes a darn thing. I think it basi-

cally erects another barrier to abortion.’ Further, he felt going

to court was ‘‘absolutely’’ traumatic for minors. ‘‘You know, it

was just—it was just another thing at a very, very difficult time

in their lives,’’ he said.

61. Clinic counselors, who participate on a daily basis in the

law’s implementation, are of a similar mind. Paula Wendt has

counseled or supervised the counseling of more than 3,000

minors since the law went into effect. She concludes from her

conversations with both parents and minors that the law has not

promoted family integrity or communication. The law has,

more than anything, disrupted and harmed families.

On the basis of her experience, Tina Welsh concludes that the

law has not benefitted intra-family communication. A minor’s

unplanned pregnancy is a crisis which is not conducive to an

attempt to build good family communications. Ms. Welsh does

not believe that the law helps teenagers make a better decision

about whether to [sic] have an abortion or continue the preg-

nancy. Requiring a minor to tell either her parents or a judge

about her pregnancy and the reasons she wants an abortion

makes no beneficial contribution to the minor’s decision.

27a

62. The public defenders who participate in bypass proceed-

ings believe that the law serves no beneficial] purpose. Its sole

function, in their view, is to create a hurdle and impose addi-

tional stress upon the young women. Similarly, the guardians

ad litem do not perceive a beneficial purpose to their participa-

tion in the process.

63. In most cases, minors seeking judicial authorization to

terminate their pregnancies without informing their parents

have already made up their minds before coming to court.

Thus, judges, public defenders, and guardians ad litem find

they impart no information and provide no counseling in the

course of the bypass proceeding. Neither does the court system

refer minors to their parents for guidance and support, as is

demonstrated by the overwhelming rate of approval. At most,

the bypass proceeding furthers the state’s interest in providing

. Minors with guidance and emotional support only insofar as the

abortion clinics have expanded their counseling of minors at the

insistence of judges who hear the petitions. Counselors and

administrators from the major Minnesota clinics testified, how-

ever, that counseling of minors going to court and that of

minors who do not differs merely in that the former are coun-

seled about the court process and the latter are not.

64. Minors who seek authorization in Minnesota courts for

confidential abortions tend to be above average in intelligence,

education, and personal motivation. They also tend to be ambi-

tious and concerned about the effect their decision will have on

their futures.

65. Minnesota courts have denied only an infinitesimal pro-

portion of the petitions brought since 1981. This fact indicates

that in Minnesota immature, non-best interest minors rarely

seek judicial authorization to terminate their pregnancies with-

out parental involvement. Such minors either inform their par-

ents, obtain an abortion outside Minnesota, or carry the

pregnancy to term.

Dr. Gary B. Melton suggested two partial explanations for

this phenomenon. First, comparisons of personality function-

ing between adolescents who abort and those who carry to term

28a

generally show more adaptive, healthier functioning in the

former group. Adaptation, in turn, marks a level of psychologi-

cal and emotional development colloquially referred to as

**maturity.”” Second, minor’s desire to maintain a measure of

privacy of information about her personal matters is an impor-

tant indication of individuation, a principal development task

of adolescence. Indeed, defendants’ witness Dr. Vincent Rue

testified that teenagers in the early stage of adolescence are

much more likely to discuss a pregnancy than are teenagers in

the mid-phase of adolescence who typically would desire more

privacy, and teenagers in the latter stages of adolescence who

would be the most private, and insist upon confidentiality.

Adult women, in Dr. Rue’s view, would be most insistent upon

maintaining the confidentiality of their decision. Therefore,

while there may be ‘‘no logical relationship between the capac-

ity to become pregnant and the capacity for mature judgment

concerning the wisdom of an abortion,’’ H. L. v. Matheson,

450 U.S. 398, 408 (1981), some relationship does exist between

the decision to abort in privacy and the capacity for mature

judgment concerning the wisdom of this decision. Conse-

quently, a regulation that affects only minors who have elected

to terminate their pregnancies and to do so in privacy tends

inevitably to reach only mature minors and immature minors

driven to this choice by their own best interests. Such a regula-

tion will fail to further the State’s interest in protecting imma-

ture, non-best interest minors.

66. Dr. Jane Hodgson, a leading practitioner in the field of

obstetrics and gynecology, has given Minnesota’s parental noti-

fication law considerable thought. She concludes, ‘‘I honestly

think there is no benefit whatsoever.’ The law has created

‘nothing but problems’’ for her teenage patients. Testimony by

plaintiffs’ other expert witnesses, each of unquestionably high

standing in his or her respective field, corroborates this opin-

ion. For example, Dr. Stephen Butzer testified, on the basis of

his clinical experience, that when knowledge of an adolescent’s

pregnancy or abortion is inadvertently communicated to one or

both parents, the effect of the communication on the family or

29a

relationship between adolescent and parents is ‘‘almost univer-

sally negative.’’

67. Defendants offered the court no persuasive testimony

upon which to base a finding that Minnesota’s parental notifi-

cation law enhances parent-child communications, or improves

family relations generally. Dr. Vincent Rue possesses neither

the academic qualifications nor the professional experience of

plaintiffs’ expert witnesses. More importantly, his testimony

lacked the analytical force of contrary testimony offered by

plaintiffs’ witnesses. Dr. Richard T. F. Schmidt does not prac-

tice medicine in Minnesota, has never performed an abortion,

and does not regularly counsel minors who wish to obtain abor-

tions. Therefore, his testimony is less persuasive than the con-

trary testimony of witnesses closer in each of these respects to

the issue before the court.

The court did not expect defendants to establish that in every

case Minnesota’s parental notification law protects pregnant

minors, promotes parent-child communication, and improves

family relations generally. Defendants did establish that notifi-

cation can serve these interests in individual cases. Defendants

failed, however, to establish that the law promotes these values

more than it undermines them. Five weeks of trial have pro-

duced no factual basis upon which the court can find that

Minn. Stat. § 144.343(2)-(7) on the whole furthers in any mean-

ingful way the State’s interest in protecting pregnant minors or

assuring family integrity.

b. Two Parent Requirement

68. National statistics reveal that approximately one out of

every two marriages ends in divorce. There is no testimony in

the trial of this case indicating that the divorce rate in Minne-

sota differs from the national average. To the contrary, clinic

experience indicates that only 50% of minors in the state of

Minnesota reside with both biological parents. This figure is

corroborated by one study indicating that 9% of minors in Min-

nesota live with neither parent, 33% live with only one parent

and thus 42% do not live with both biological parents.

30a

69. Studies indicating that family violence occurs in two mil-

lion families in the United States substantially underestimate

the actual number of such families. In Minnesota alone, reports

indicate that there are an average of 31,200 incidents of assault

on women by their partners each year. Based on these statistics,

state officials suggest that the ‘‘battering’’ of women by their

partners ‘‘has come to be recognized as perhaps the most fre-

quently committed violent crime in the stace’’ of Minnesota.

These numbers do not include incidents of psychological or sex-

ual abuse, low-level physical abuse, abuse of any sort of the

child of a batterer, or those incidents which are not reported.

Many minors in Minnesota live in fear of violence by family

members; many of them are, in fact, victims of rape, incest,

neglect and violence. It is impossible to accurately assess the

magnitude of the problem of family violence in Minnesota

because members of dysfunctional families are characteristi-

cally secretive about such matters and minors are particularly

reluctant to reveal violence or abuse in their families. Thus the

incidence of such family violence is dramatically under-

reported.

70. Divorce or separation usually impairs family communi-

cation severely. The non-custodial parent often has very little

communication with the child. In addition, communication

between divorced or separated spouses frequently is marked

with the kind of hostility and angry vindictiveness that charac-

terized the divorce or separation.

The effect of compelling an adolescent to share information

about her pregnancy and abortion decision with both parents in

a divorced or separated situation can be harmful. The non-

custodial parent often will reintegrate with the family in a dis-

ruptive manner. The adolescent may be perplexed as to why the

non-custodial parent should become an important factor in her

life at this point, especially when the parent previously has paid

her oittle [sic] attention and offered little support. Moreover,

the testimony revealed no instances in which beneficial relations

between a minor and an absent parent were reestablished fol-

lowing required notification. Therefore, the minor may suffer

disappointment when an anticipated reestablishment of her

3la

relationship with the absent parent does not occur, as is most

likely given the trying circumstances under which communica-

tion is renewed.

Involuntary involvement of the second biological parent is

especially detrimental when the minor comes from an abusive,

dysfunctional family. Notification of the minor’s pregnancy

and abortion decision can provoke violence, even where the

parents are divorced or separated. Studies have shown that vio-

lence and harrassment may continue well beyond the divorce,

especially when children are involved.

The reaction of the custodial parent to the requirement of

forced notification is often one of anger, resentment and frus-

tration at the intrusion of the absent parent. Frequently, the

custodial] parent fears that the absent parent will use the notifi-

cation to threaten the custody rights of the custodial parent.

Furthermore, a mother’s perception in a dysfunctional family

that there will be violence if the father learns of the daughter’s

pregnancy is likely to be an accurate perception.

71. Twenty to twenty-five percent of the minors who go to

court either are accompanied by one parent who knows and

consents to the abortion or have already told one parent of their

intent to terminate their pregnancy. The vast majority of these

voluntarily informed parents are women who are divorced or

separated from spouses whom they have not seen in years.

Going to court to avoid notifying the other parent burdens the

privacy of both the minor and the accompanying parent. The

custodial parents are angry that their consent is not sufficient

and fear tht notification will bring the absent parent back into

the family in an intrusive and abusive way.

72. Minors who ordinarily would notify one parent may be

dissuaded from doing so by the two-parent requirement. A

minor who must go to court for authorization in any event may

elect not to tell either parent. In these instances, the require-

ment that minors notify both biological parents actually

reduces parent-child communication.

32a

c. 48 Hour Waiting Period

73. Some period of mandatory delay between the time of

actual or constructive notification of the minor’s parent and the

abortion itself would reasonably effectuate the State’s interest

in protecting pregnant minors. A waiting period may allow par-

ents to aid, counsel, advise, and assist minors in determining

whether to undergo an abortion or to provide the physician

with information which may be relevant to the medical judg-

ments involved.

74. The interest effectuated by the State’s 48 hour waiting

period could be effectuated as completely by a shorter waiting

period. Therefore, to the extent the waiting period exceeds that

necessary to allow parents to consult with minors contemplat-

ing abortion, it fails to further the State’s interest in protecting

pregnant minors.

CONCLUSIONS OF LAW

Plaintiffs attack the constitutionality of Minn. Stat.

§ 144.343 on several fronts. First, plaintiffs contend that

§ 144.343, subd. 2 is facially unconstitutional because it fails to

afford minors the opportunity to obtain a judicial or adminis-

trative waiver of the statute’s notification requirement. See

Planned Parenthood Ass’n of Kansas City v. Ashcroft, 462

U.S. 476 (1983) (Ashcroft); Bellotti v. Baird, 432 U.S. 622

(1979) (Bellotti I). Second, plaintiffs contend that even with

the judicial bypass procedure of subd. 6 incorporated as subd.

2(c) by virtue of this court’s temporary restraining order of July

31, 1981, § 144.343(2)-(7), as applied in Minnesota, unduly bur-

dens the fourteenth amnedment due process rights of pregnant

minors. Even if § 144.343(2)-(7) is not unconstitutional in its

entirety, plaintiffs contend that the statute’s requirement that

minors notify both parents except when one parent is dead or

the minor is unable to locate a parent with reasonable diligence,

§ 144.343(2), (3), is unconstitutional. Finally, plaintiffs con-

tend the 48-72 hour waiting period imposed upon minors who

choose to notify one or both of their parents in writing, see

33a

Minn. Stat. § 144.343(2)-(4), is unconstitutional because it

impermissibly burdens a minor’s right to choose abertion.

Noting ‘‘a requirement unduly burdensome in operation will

be struck down even if not clearly invalid on its face,’’ see

Planned Parenthood League of Massachusetts v. Bellotti, 641

F.2d 1006, 1011 (Ist Cir. 1981), this court denied defendant's

motion for summary judgment with respect to plaintiffs’ as

applied due process challenge to § 144.343(2)-(7). Hodgson v.

Minnesota, Civ. No. 3-81 538 slip op. at 11 (Jan. 23, 1985). The

court found that dispute existed with respect to material issues

of fact including the confidentiality of the judicial bypass pro-

cedure, delays and inconvenience, and lack of access to the

courts in rural counties. This list of material facts was not all

inclusive. Hodgson, slip op. at 10. Therefore, the action pro-

ceeded to trial upon these issues and others.

1. STANDARD OF REVIEW

Every woman has the fundamental right to terminate her

pregnancy free from unwarranted government intrusion. Roe v.

Wade, 410 U.S. 113 (1973); see Thornburgh v. American Col-

lege of Obstetricians and Gynecologists, US. , 106

S.Ct. 2169, 2178 (1986) (specifically reaffirming Roe v. Wade);

City of Akron v. Akron Center for Reproductive Health, 462

U.S. 416, 420 (1983) (Akron) (similar). The right to choose

abortion rather than childbirth is ‘‘not unqualified and must be

considered against important state interests in regulation.’’ Roe

v. Wade, 410 U.S. at 154. Rather, the right protects the woman

from unduly burdensome interference with her freedom to

decide whether to terminate her pregnancy. Maher v. Roe, 432

U.S. 464, 473-74 (1977).

A state regulation that burdens an individual's right to decide

to terminate her pregnancy by substantially limiting her access

to the means of effectuating that decision is subject to strict

judicial scrutiny. Carey v. Population Services International,

431 U.S. 678, 688 (1977). Such a burden is imposed by a regula-

tion that places an obstacle, absolute or otherwise, in the path

of one seeking to exercise the protected right. Maher v. Roe,

432 U.S. 464, 472 (1977).

34a

The term ‘‘undue burden’’ does not accurately describe the

magnitude of interference necessary to trigger heightened judi-

cial scrutiny. The Supreme Court has squarely rejected this

analysis as ‘‘wholly incompatible with the existence of the fun-

damental right recognized in Roe v. Wade.’’ Akron, 462 U.S.

at 419-21 n. 1. Indeed, the Court’s traditional three tiered con-

stitutional analysis exists to provide the courts a value-neutral

framework by which to test the constitutionality of legislative

enactments. Determining whether a burden is ‘“‘undue’’ as a

threshold inquiry would leave availabie to judges no standard

for making this determination but their individual assessment

of a statute’s worth. Cf. Mississippi University for Women v.

Hogan, 458 U.S. 713, 724 n. 9 (1982) (‘‘[W]hen a classification

expressly discriminates on the basis of gender, the analysis and

level of scrutiny applied to determine the validity of the classifi-

cation do not vary simply because the objective appears accept-

able to individual Members of the Court. While the validity and

importance of the objective may effect the outcome of the anal-

ysis, the analysis itself does not change.’’). Thus the term

‘undue burden’’ as used, for example, in Maher, 432 U.S. at

473-74, refers to the ultimate constitutional issue under height-

ened judicial scrutiny, rather than the threshold requirement

for triggering such scrutiny. Charles v. Carey, 627 F.2d 772,

777 (7th Cir. 1980); Planned Parenthood of Rhode Island v.

Board of Medical Review, 598 F. Supp. 625, 630 n. 2 (D.R.1.

1984).

Regulations imposing a constitutionally significant vurden

on the free exercise of a protected right, including the right to

choose to terminate one’s pregnancy, must be supported by a

compelling state interest. Akron, 462 U.S. at 427; Roe v. Wade,

410 U.S. at 155. Such a regulation must also be narrowly drawn

to express only the legitimate state interests at stake. Carey v.

Population Services International, 431 U.S. 678, 686, 688

(1977).

Constitutional rights do not mature and come into being only

when one attains the state-defined age of majority. Minors, as

well as adults, are protected by the Constitution and possess

constitutional rights. Planned Parenthood of Central Missouri

v. Danforth, 428 U.S. 52, 74 (1976) (Danforth). See Bellotti Il,

35a

433 U.S. at 633; Carey v. Population Services International,

431 U.S. at 693. Similarly, the burdens imposed by state regula-

tion of abortion are no different for minors than for adults.

Zbaraz v. Hartigan, 763 F.2d 1532, 1536 (7th Cir. 1985), appeal

docketed, No. 85-673 (U.S. Oct. 16, 1985); see Bellotti I], 443

U.S. at 642 (‘‘[T]he potentially severe detriment facing a preg-

nant woman is not mitigated by her minority. Indeed, consider-

ing her probable education, employment skills, financial

resources, and emotional] maturity, unwanted motherhood may

be exceptionally burdensome for a minor.’’). Therefore, the

degree of burden that triggers heightened judicial scrutiny

depends in no way upon whether the regulation applies to

minor or adult women.

The Supreme Court, however, long has recognized that a

State has somewhat broader authority to regulate the activities

of children than of adults. Danforth, 428 U.S. at 74. This

broader authority derives from the peculiar vulnerability of

children; their inability to make critical decisions in an

informed, mature manner; and the importance of the parental

role in child rearing. Thus the difference between abortion stat-

utes which regulate adults and those which regulate only minors

is that the latter may be justified by a significant state interest

that is not present in the case of an adult. Zbaraz v. Hartigan,

763 F.2d at 1536. See Akron, 462 U.S. at 427 n. 10; Carey v.

Population Services International, 431 U.S. at 693 n. 15; Dan-

forth, 428 U.S. at 75. In addition, the State is not constitution-

ally bound to employ the least burdensome method of

effectuating its interests. Indiana Planned Parenthood Affili-

ates Ass'n, Inc. v. Pearson, 716 F.2d 1127, 1133 (7th Cir. 1983)

(Pearson). Compare Pearson with Carey v. Population Ser-

vices, 431 U.S. at 688 (state regulation burdening the right of

adult women to terminate their pregnancies must ‘‘be narrowly

drawn to express only the legitimate state interests at stake.’’).

Instead, the state regulation must be rationally calculated to

serve the state’s significant interests. Planned Parenthood of

Rhode Island v. Board of Medical Review, 598 F. Supp. 625,

640 (D.R.I. 1984).

As immature minors often lack the ability to make fully

informed choices that take account of both immediate and

36a

long-range consequences, a State reasonably may determine

that parental consultation often is desirable and in the best

interests of the minor. Bellotti IJ, 443 U.S. at 640. Therefore, a

State’s interest in protecting immature minors will sustain the

requirement of consent, either parental or judicial. Akron, 462

U.S. at 439. But even the State’s interest in encouraging paren-

tal involvement in their minor children’s decision to have an

abortion must give way to the constitutional right of a mature

minor or an immature minor whose best inerests are contrary to

parental involvement. Jd. at 427 n. 10; Planned Parenthood of

Rhode Island v. Board of Medical Review, 598 F. Supp. at 640.

See Bellotti IT, 443 U.S. 649.

Even under the less rigorous standard applicable to regula-

tions burdening the rights of minor women to obtain an abor-

tion, the burden of demonstrating a connection between the

regulation and the asserted state policy falls on the state. Carey

v. Population Services International, 431 U.S. at 696, 696 n. 22;

Pearson, 716 F.2d at 1133. Neither a bare assertion that the

burden is connected to a significant state policy, Carey, 431

U.S. at 696, nor sentiment or folklore, Jn re Gault, 387 U.S. 1,

21-22 (1967), will satisfy this burden.

Minnesota Statute § 144.343(2)-(7) requires minors either to

notify their parents of their desire to obtain an abortion, or to

obtain the judicial waiver of this requirement. The statute does

not require parental consent or a waiver of parental consent.

The parties agreed in response to a question from the court that

the constitutional analysis applicable to notice requirements

does not differ from that applicable to consent requirements.

Moreover, despite the contrary suggestions of individual Mem-

bers of the Supreme Court, see Akron, 462 U.S. at 469 (O’Con-

nor, J., dissenting); H.L. v. Matheson, 450 U.S. 338, 421

(Stevens, J., concurring), the court concludes that it is ‘‘paren-

tal involvement”’ that an emancipated or mature minor must

have an opportunity to avoid, without regard to whether that

‘tinvolvement”’ takes the form of notification or consent. See

Akron, 462 U.S. at 427 n. 10; Pearson, 716 F.2d at 1132. See

also Bellotti IJ, 443 U.S. at 647 (statute unconstitutional!

because, inter alia, it failed to provide every minor an opportu-

37a

nity to ‘‘go directly to a court without first consulting or notify-

ing her parents’’).

li. Minn, Stat. § 144.343(2)

Subdivision 2 of § 144.343 prohibits performing an abortion

upon an unemancipated minor, or upon a woman for whom a

guardian or conservator has been appointed because of a find-

ing of incompetency, until at least 48 hours after written notice

of the pending operation has been delivered to the minor’s par-

ents or guardian or conservator. By its order of July 31, 1981,

this court temporarily restrained defendants from enforcing the

provisions of Minn. Stat. § 144.343(2) because the court found

it probable that plaintiffs would be successful in their challenge

to subdivision 2. As a result of this restraining order, subdivi-

sion 6 of § 144.343 took effect. This subdivision provides that

subdivision 2 shall be enforced as though the judicial bypass

provisions of subdivision 6 were incorporated as paragraph c of

subdivision 2. Subdivision 6 further provides that if the court’s

temporary injunction is ever stayed or dissolved, or otherwise

ceases to have effect, subdivision 2 shall have full force and

effect, without being modified by the addition of the substitute

paragraph, and the substitute paragraph shall have no force or

effect until or unless an injunction or restraining order is again

in effect.

A State choosing to encourage parental involvement in their

minor child’s decision to have an abortion must provide an

alternative procedure through which a minor may demonstrate

that she is mature enough to make her own decision or that the

abortion is in her best interests. Akron, 462 U.S. at 430 n. 10;

see Bellotti II, 443 U.S. at-643-44. The unique nature and conse-

quences of the abortion decision make it inappropriate ‘‘to give

a third party an absolute, and possibly arbitrary, veto over the

decision of a physician and his patient to terminate the patient’s

pregnancy, regardless of the reason for withholding the con-

sent.’’ Bellotti IT, 443 U.S. at 643; Planned Parenthood of Cen-

tral Missouri v. Danforth, 428 U.S. 52, 74 (1976).

The Bellotti IJ court set forth the following requirements:

38a

A pregnant minor is entitled in such a proceeding to show

either: (1) that she is mature enough and well enough

informed to make her abortion decision, in consultation

with her physician, independently of her parents’ wishes;

or (2) that even if she is not able to make this decision inde-

pendently, the desired abortion would be in her best inter-

ests. The proceeding in which this showing is made must

assure that a resolution of the issue, and any appeals that

may follow, will be completed witfanonymity and suffi-

cient expedition to provide an effective opportunity for an

abortion to be obtained.

443 U.S. at 643-44. A statute that fails to previde such an alter-

native to a consent or notification requirement imposes an

undue burden upon the exercise by minors of the right to seek

an abortion. Jd., at 647.

Without the judicial bypass option of subdivision 6, Minn.

Stat. § 144.343(2) would unduly burden the exercise by minors

of the right to seek an abortion. There are parents who would

obstruct, and perhaps altogether prevent, the minor’s efforts to

exercise the right. Bellotti, 443 U.S. at 647. Young, pregnant

minors, especially those living at home, are particularly vulner-

able to their parent’s efforts to obstruct an abortion. Jd.; Indi-

ana Planned Parenthood Affiliates Ass’n, Inc. v. Pearson, 716

F.2d 1127, 1132 (7th Cir. 1983). The interests of the State and

of these parents, must give way to the constitutional right of a

mature minor or of an immature minor whose best interests are

contrary to parental involvement. See, e.g., Akron, 428 n. 10.

Therefore, the court concludes that it must permanently enjoin

defendants from enforcing Minn. Stat. § 144.343(2) as unmodi-

fied by subdivision 6. i

Ill. Constitutionality of Minnesota’s Parental Notification

Law

Plaintiffs contend that Minn. Stat. § 144.343(2)-(7) is uncon-

stitutional as applied because it interferes with and burdens

minors in the exercise of their constitutional rights and defen-

dants have failed to demonstrate that the statute is necessary,

narrowly drawn, and that it is accomplishing significant state

interests. Defendants respond that plaintiffs’ position improp-

39a

erly asks this court to disregard controlling Supreme Court

precedent. In view of the fact that the relevant legal standards

governing the constitutionality of parental notification require-

ments are not in dispute, see Akron, 462 U.AS. at 439, defen-

dants contend that the scope of this court’s inquiry properly is

restricted to determining whether the statute complies with the

guidelines set forth by the Bellotti I] plurality and subsequently

approved by majority of the the Supreme Court in Planned

— Ass’n of Kansas City v. Ashcroft, 462 U.S. 476

Plainly, it is within neither the power nor the desire of this

court to overrule Supreme Court precedent. E.g., Thurston

Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 533, 535

(1983); Jaffree v. Board of School Commissioners, 459 U.S.

1314, 1316 (Powell, Circuit Justice 1983). Nevertheless, the

court is mindful that:

Where the existence of a rational basis for legislation

whose constitutionality is attacked depends upon facts

beyond the sphere of judicial notice, such facts may prop-

erly be made the subject of judicial inquiry . . . and the

constitutionality of a statute predicated upon the existence

of a particular state of facts may be challenged by showing

to the court that those facts have ceased to exist.

United States v. Carolene Products Co., 304 U.S. 144, 153

(1938) (Citations omitted); see New Jersey Citizen Action v.

Edison Township, 797 F.2d 1250, 1260 (3d Cir. 1986). Compare

Wisconsin Action Coalition v. City of Kenosha, 767 F.2d 1248

(7th Cir. 1985) (ordinance limiting hours of solicitation held

invalid) with City of Watseka v. Illinois Public Action Council,

796 F.2d 1547 (7th Cir. 1986) (conducting de novo analysis of

validity of similar ordinance). If the court properly may inquire

into whether a change has occurred in the factual basis upon

which the constitutionality of a statute depends, then surely an

inquiry into the existence of a particular state of facts assumed

but never demonstrated is at least equally proper. To this

court’s knowledge, it is the first ever to examine a parental noti-

fication or consent substitute statute in actual operation. See,

e.g., Akron 462 U.S. 425 (enforcement of ordinance enjoined

40a

before its effective date); Planned Parenthood Ass’n of Kansas

City v. Ashcroft, 483 F. Supp. 679, 683, (W.D.Mo. 1980) (stat-

ute at issue in Planned Parenthood Ass’n v. Ashcroft, 462 U.S.

476, enjoined on day after becoming effective); Bellotti II, 443

U.S. at 645 n. 25 (because appellees successfully sought to

enjoin Massachusetts from putting statute into effect, there

existed an ‘‘absence of any evidence as to the operation of judi-

cial proceedings under § 12s.’’). Initiation of the factual inquiry

mandated by the Carolene Products court lies squarely within

the province of a federal district court. Therefore, this court

heard testimony and has made findings of fact with respect to

plaintiffs’ allegation that Minn. Stat. § 144.343 (2)-(7) is not

rationally related to the State’s asserted interests.

Plaintiffs’ as applied challenge to the constitutionality of

Minn. Stat. § 144.343(2)-(7) proceeded at trial on two levels.

Plaintiffs’ more limited challenge attached the sufficiency of

Minnesota’s compliance with the Bellotti IJ guidelines for

establishing an alternative procedure whereby authorization for

the abortion can be obtained. See Bellotti IJ, 443 U.S. at 643-

44. Plaintiffs’ broader challenge attacked the assumption,

implicit in the Bellotti I] and Ashcroft decisions, that a notifica-

tion or consent requirement imposed in conjunction with an

appropriate alternative bypass procedure would serve the

State’s interest in protecting pregnant minors without unduly

burdening the right of mature or best interests minors to obtain

an abortion.

The bulk of the testimony at trial related to whether requiring

pregnant minors either to notify their parents of their desire to

terminate their pregnancies or to go to court to obtain a waiver

of the notification requirement actually furthers the State’s

interest in proiecting pregnant minors. The court heard testi-

mony of at least 37 witnesses who spoke to this issue. Only two

of these witnesses related facts and expressed opinions from

which a court could draw a reasonable inference that the statute

does young women more good than harm. Neither of these wit-

nesses, Dr. Vincent Rue or Dr. Richard T.F. Schmidt, has any

direct contact with minors affected by Minn. Stat. § 144.343(2)-

(7). Neither witness counsels minors on a regular basis concern-

ing the decision whether to terminate a pregnancy, neither

4la

witness performs abortions, and neither witness sees minors

who have had abortions on a regular basis.

Of the remaining witnesses who spoke to the issue whether

Minn. Stat. § 144.343 effectuates the State’s interest in protect-

ing pregnant minors, all but four of these are personally

involved in the statute’s implementation in Minnesota. They are

judges, public defenders, guardians ad litem, and clinic coun-

selors. None of these witnesses testified that the statute has a

beneficial effect upon the minors whom it affects. Some testi-

fied the law has a negligible effect upon intra-family communi-

cation and upon the minors’ decision-making process. Others

testified the statute has a deleterious effect on the well-being of

the minors to whom it applies because it increases the stress

attendant to the abortion decision without creating any corre-

sponding benefit. Thus five weeks of trial have produced no

factual basis upon which this court can find that Minn. Stat.

§ 144.343(2)-(7) on the whole furthers in any meaningful way

the state’s interest in protecting pregnant minors or assuring

family integrity.

The court has considered the possibility that the statute’s

existence encourages immature, non-best interest minors to tell

their parents, and that this intangible effect is not amenable to

proof at trial. The court does not believe this to be the case.

First, several witnesses who testified at trial were involved in

providing abortions to minors both before and after the enact-

ment of Minn. Stat. § 144.343(2)-(7). These witnesses could

have testified as to a change in the level of parental participa-

tion occurring at about the time of the statute’s effective date.

Although these and other witnesses testified that a sizable pro-

portion of minors seeking an abortion in Minnesota voluntarily

notify at least one parent of their intention, none testified that

this proportion changed at or around the effective date of the

Minnesota parental notification law.

Furthermore, the testimony indicates that the sort of inde-

pendent self-assessment by the minor of her own maturity sug-

gested by this scenario actually does not occur as a result of the

statute. Although the major abortion providers in Minnesota

inquire into a minor’s maturity in the course of the informed

consent process, abortion providers to not decline to assist

42a

minors because of their immaturity with any frequency. To the

contrary, the testimony revealed the major providers tend to

resolve any doubts as to a minor’s maturity by referring her to

the judicial bypass system. These minors are almost universally

successful in obtaining judicial waivers. Thus there appears to

be little self-selection among those minors who come to the clin-

ics initially without both parents. Instead, any self-selection as

to maturity occurring among pregnant minors appears to be a

result of the natural maturation process, rather than an effect

of Minn. Stat. § 144.343(2)-(7). As descTibed in finding of fact

number 65, the desire on the part of minors to retain their pri-

vacy with respect to the abortion decision is, at least in part, a

result of the maturation process. Therefore, it does not appear

Minn. Stat. § 144.343(2)-(7) has any greater beneficial effect

upon immature minors than it does upon mature minors and

minors whose best interests are not served by notification.

In view of the foregoing, the court finds as a matter of fact

that Minn. Stat. § 144.343(2)-(7) fails to serve the State’s

asserted interest in fostering intra-family communication and

protecting pregnant minors. This is not a case in which the State

merely has failed to demonstrate that the challenged statute

employs the alternative means of effectuating its interest that is

least burdensome upon the rights of the affected individuals.

See Indiana Planned Parenthood Affiliates Ass’n, Inc. v. Pear-

son, 716 F.2d 1127, 1134 (7th Cir. 1983) (state is not constitu-

tionally required to provide the least burdensome alternative to

notification.). Similarly, this is not a case in which the legisla-

ture has utilized a yardstick that is imprecise or even unjust in

particular cases. See H.L. v. Matheson, 450 U.S 398, 425 (1981)

(Stevens, J., concurring) (over-inclusiveness of parental-notice

requirement does not undercut its validity). Instead, Minn.

Stat. § 144.1343(2)-(7) imposes the substantial burden of

obtaining a judicial waiver of the parental notification require-

ment upon a group of minors composed a.most entirely of

either mature minors or minors whose best interests are not

served by notification. This substantial burden is not justified

by the state’s interests in encouraging intra-family communica-

tion and protecting immature minors because Minn. Stat.

§ 144.343(2)-(7) fails to further either of those interests in any

43a

meaningful way. When, as here, the state’s asserted interest

fails to justify the burden imposed upon pregnant minors by an

abortion regulation, the Supreme Court has invalidated such

regulations as unduly burdensome upon the rights of pregnant

minors. Bellotti II 443 U.S. 622, 651 (1979); Planned Parent-

hood of Central Missouri v. Danforth, 428 U.S. 52, 75 (1976).

This court does not, however, write on a clean slate in deter-

mining the constitutionality of Minnesota’s parental notifica-

tion statute. The Supreme Court carefully delineated the

elements of the alternative procedure states must employ if they

wish to require parental consent or notification prior to abor-

tion. Bellotti IT, 443 U.S. at 643-44. Although the Court’s dis-

cussion of the necessary alternative procedure appears in a

plurality opinion and at least arguably was unnecessary to the

decision in the Bellotti I] case, the Supreme Court left no doubt

as to its commitment to the Bellotti I] procedure in Planned

Parenthood Ass’n v. Ashcroft, 462 U.S. 476 (1983). Noting its

Statement in Akron that the relevant legal standards with

respect to parental-consent requirements are not in dispute, 462

U.S. at 439, the Court treated a challenge to the constitutional-

ity of Missouri’s consent/bypass statute as an issue purely of

statutory construction. Ashcroft, 462 U.S. at 491. Because the

Missouri statute at issue could fairly be construed to comply

with the Bellotti I] requirements, it avoided any constitutional

infirmities. Jd. at 493.

Because no court has had occasion to consider the actual

effect of a consent/bypass or notification/bypass statute in

operation, plaintiffs contend the issue now before this court is

far more complex than the statutory interpretation issue

addressed by the Ashcroft court. Indeed, it appears to this court

that the prophecy with which Mr. Justice Stevens closed his

concurrence in Bellotti I] is fulfilled.’ Nevertheless, this court is

1 In arguing that the Bellotti 1] case presented the Supreme Court no

occasion to render an advisory opinion on the constitutionality of the alter-

native procedure recommended in Justice Powell's plurality opinion, Justice

Stevens predicted ‘‘a real statute—rather than a mere outline of a possible

statute—and a real case or controversy may well present questions thai

appear quite different from the hypothetical questions Justice Powell has

elected to address.’’ 433 U.S. at 656 n.4 (Stevens, J., concurring).

44a

bound by applicable Supreme Court precedent. E.g. Thurston

Motor Lines, Inc. v. Jordan K. Rand, Ltd., 460 U.S. 534

(1983); Jaffree v. Board of School Commissioners, 459 U.S.

1314 (Powell, Circuit Justice 1983). This court has made factual

findings as to the effect of Minnesota’s parental notification

law as it affected the minors to whom it applied between its

effective date in 1981 and trial in 1986. Were this court writing

on a clean slate, it could not uphold the constitutionality of

Minn. Stat. § 144.343(2)-(7) under the intermediate scrutiny

appropriate in challenges to regulations that burden the funda-

mental rights of minors. But it is not this court’s place to deter-

mine the assumptions upon which the Supreme Court based its

holdings in Bellotti I] and Ashcroft. Nor is it this court’s place

to determine whether the facts actually demonstrated at trial

comport or conflict with any assumptions the Supreme Court

may have made. The Supreme Court directs that this court’s

inquiry be limited instead to an issue purely of statutory con-

struction: whether Minnesota provides a judicial alternative

that is consistent with established legal standards. Ashcroft, 462

U.S. at 491-92.

Minnesota Statute § 144.343(2)-(7) satisfies these legal stan-

dards. The court has found twat Minn. Stat. § 144.343(6) cor-

rectly directs courts hearing bypass petitions to conduct the

inquiry required by the Be//otti I] court. Although the language

of the Minnesota statute with respect to maturity varies slightly

from that of the Bellotti I] decision, the requirement that the

woman be ‘‘mature and capable of giving informed consent to

the proposed abortion’’ is the functional and legal equivalent of

the Supreme Court’s requirement that the minor be ‘‘mature

enough and well enough informed to make her abortion deci-

sion, in consultation with her physician, independently of her

parents’ wishes.’’ See Bellotti I], 443 U.S. at 643.

Arguably, however, the statute’s requirement that the court

inquire in the case of an immature minor ‘‘whether the per-

formance of an abortion upon her without notification of her

parents, guardian, or conservator would be in her best inter-

ests’’ differs from the Court’s inquiry whether ‘“‘the desired

abortion would be in her best interests.’’ See id. at 644. Indeed,

testimony indicates that some Minnesota courts consider

45a

whether the abortion itself is in the minor’s best interests, while

others examine whether avoiding parental involvement in the

minor’s decision, whatever it may be, is in the minor’s best

interests. This court, however, perceives that the former inquiry

imposes the greater burden upon the minor in terms of what she

must demonstrate before proceeding without involving her par-

ents. Because the Supreme Court’s language approves the

imposition of this more restrictive standard, this court con-

cludes that the practice of some Minnesota courts of interpret-

ing Minn. Stat. § 144.343(6) to require a less intrusive and less

burdensome inquiry does not violate the legal standards set

forth in Bellotti I] and approved in Ashcroft.

The court further finds that judges who hear the bypass peti-

tions in Minnesota faithfully apply the standards set forth in

Minn. Stat. § 144.343(6), and those judges who consider them-

selves unable to faithfully apply the standard have consistently

refused to hear bypass petitions. Furthermore, the court finds

that Minnesota courts have established procedures to assure the

minors’ anonymity, and to expedite both the initial hearing and

any subsequent appeal. Finally, the court finds that the delays

which do attend the bypass proceedings in practice, although

burdensome to minor petitioners, do not reflect a systematic

failure to provide a judicial bypass procedure created by Minn.

Stat. § 144.343(6), as presently executed by Minnesota courts

and the other offices that participate in the bypass proceedings,

coplies with the procedural requirements set forth in Bellotti J]

and approved in Ashcroft. Therefore, the court must reject

plaintiffs’ challenge to Miuinnesota’s notification/bypass

requirement as a whole.

IV. Two Parent Notification Requirement

Subdivision 3 of Minnesota Statute § 144.343 identifies the

individuals entitled to notification as ‘‘both parents of the preg-

nant woman if they are both living, one parent of the woman if

only one is living or if the second cannot be located through rea-

sonably diligent effort, or the guardian or conservator if the

pregnant woman has one.”’ Plaintiffs contend the statute’s two

parent notice requirement unduly burdens the exercise by

46a

minors of the right to seek an abortion. The court finds that this

requirement places a significant burden upon pregnant minors

who do not live with both parents. Particularly in these cases,

notification of an abusive, or even a disinterested, absent par-

ent has the effect of reintroducing that parent’s disruptive or

unhelpful participation into the family at a time of acute stress.

Similarly, the two parent notification requirement places a sig-

nificant obstacle in the path of minors in two parent homes who

voluntarily have consulted with one parent but not with the

other out of fear of psychological, sexual, or physical abuse

toward either the minor or the notified parent. In either case,

the alternative of going to court to seek authorization to pro-

ceed without notifying the second parent introduces a traumatic

distraction into her relationship with the parent whom the

minor has notified. The anxiety attending either option tends to

interfere with and burden the parent-child communication the

minor voluntarily initiated with the custodial parent.

The State has the burden of demonstrating that its interest in

encouraging parental consultation justifies the burden imposed

upon pregnant minors by the statute’s two parent notification

requirement. See, e.g., Carey v. Population Services Interna-

tional, 431 U.S. 678, 696 n. 22 (1977); Pearson, 716 F.2d at

1133. The Supreme Court has concluded that the requirement

of obtaining both parent’s consent does not unconstitutionally

burden a minor’s right to seek an abortion ‘‘[a]t least when the

parents are together and the pregnant minor is living at home.”’

Bellotti IJ, 443 U.S. at 649. When all three live together, both

the father and mother have an interest—one normally

supportive—in helping to determine the course that is in the

best interests of the daughter. Jd. This court concludes, how-

ever, that a regulation requiring notification of both parents

even when the nuclear family unit either has broken apart or

never formed is not reasonably designed to further the State's

interest in protecting pregnant minors.

To the contrary, the court finds that the regulation adversely

affects communication voluntarily initiated with one parent in a

large number of cases. Indeed, 20 to 25% of minors seeking

judicial authorization to proceed with an abortion without

parental notification are accompanied to court by one parent,

47a

or at least have obtained the approval of one parent. In these

cases the necessity either to notify the second parent despite the

agreement of both the minor and the notified parent that such

notification is undesirable, or to obtain a judicial waiver of the

notification requirement, distracts the minor and her parent

and disrupts their communication. Thus the need to notify the

second parent or to make a burdensome court appearance

actively interferes with the parent-child communication volun-

tarily initiated by the child, communication assertedly at the

heart of the State’s purpose in requiring notification of both

parents. In these cases, requiring notification of both parents

affirmatively discourages parent-child communication. Thus

the court concludes that this requirement fails to further the

State’s interest. Because ‘‘state restrictions inhibiting privacy

rights of minors are valid only if they serve any significant state

interest,’’ Carey v. Population Services, 431 U.S. at 693; Dan-

forth, 428 U.S. at 75, the court must enjoin defendants from

enforcing the two parent notification requirement of Minn.

Stat.§ 144.343. -

V. Waiting Period

Minnesota Statute § 144.343(2) prohibits performing an

abortion upon an unemancipated minor until at least 48 hours

after written notice of the pending operation has been delivered

to the minor’s parenis. The notice may be delivered personally

to the parent by the physician or his agent, or notice may be

made by certified mail addressed to the parent at his usual place

of abode, with constructive delivery occurring at 12:00 noon on

the next day upon which regular mail delivery takes place, sub-

sequent to mailing. Thus minors in Minnesota who choose to

notify their parents in writing of their determination to obtain

an abortion must wait at least 48 hours, and more commonly

approximately 72 hours, between initiating the notification pro-

cess and the abortion itself.

Lower courts have split on the issue of the constitutionality

of mandatory waiting periods imposed upon minor women

seeking abortion. Some courts, including this one, have found

that a reasonable period of notice is permissible to allow par-

48a

ents to aid, counsel, advise, and assist their minor daughter in

connection with the determination to undergo abortion or to

provide the physician with information which may be relevant

to the medical judgments involved. Akron Center for Repro-

ductive Health v. Rosen, 633 F. Supp. 1123, 1138-39 (N.D.

Ohio 1986); Hodgson v. Minnesota, Civ. No. 3-81-538, slip op.

at 5 (D. Minn. March 22, 1982). The Rosen court concluded

that the notification requirement which the Supreme Court

explicitly upheld for immature minors in Matheson would be an

empty formalism with no practical effect if the abortion could

proceed before parental consultation could take place. 633 F.

Supp. at 1139.

The Seventh Circuit Court of Appeals has invalidated an Illi-

nois statute requiring pregnant minors to wait 24 hours between

notifying their parents and obtaining an abortion. Zbaraz v.

Hartigan, 763 F.2d 1532 (7th Cir. 1985), appeal docketed, No.

85-673 (U.S. Oct. 16, 1985). The Zbaraz court based its decision

upon its conclusion that the mandatory waiting period placed a

direct and substantial burden on women who seek to obtain an

abortion, and that the waiting requirement did not significantly

further the State’s interest in promoting consultation when

combined with the notification requirement because the notifi-

cation requirement itself adequately promotes the State’s inter-

est. 763 F.2d at 1537-38. The court further concluded that the

statutory alternatives to the mandatory waiting period, such as

having both parents accompany the minor to the place the abor-

tion will be performed or having both parents submit signed,

notarized statements indicating they have been notified, do not

redeem the statute. Jd. at 1538. The Seventh Circuit based its

decision in large part upon its prior decision in Jndiana Planned

Parenthood Affiliates Ass’n, Inc. v. Pearson, 716 F.2d 1127

(7th Cir. 1983). There the court upheld a mandatory waiting

period to the extent it delayed the abortion for the purpose of

effective constructive notice. Jd. at 1142-43. Requiring delay

after notification has been effected, however, is impermissible.

Id.; see Zbaraz, 763 F.2d at 1538.

The Eighth Circuit Court of Appeals three times has affirmed

district court decisions that a mandatory 48 hour waiting

period, applicable to adult and minor women alike, is unconsti-

49a

tutional. See Women’s Services, P.C. v. Thone. 69

568-69 (8th Cir. 1982), vacated and remanded for ur

sideration sub nom. Kerrey v. Women’s Services ! ‘

U.S. 1126 (1983); Planned Parenthood Ass'n of Kanse

Ashcroft, 655 F.2d 848, 866 (8th Cir. 1981), aff'¢ 462

(1983); Women’s Services, P.C. v. Thone, 636 F 2c 2

(8th Cir. 1980), vacated for further consideration su:

Thone v. Women’s Services, P.C., 452 U.S. 911 (1981)

state of Missouri did not appeal the Eighth Circuit's decision u

Ashcroft invalidating the statute’s 48 hour waiting period

This court agrees with the district court for the Northern Dis-

trict of Ohio that a notification requirement would be an empty

formalism without practical effect if the abortion could proceed

before the parental consultation could take place. See Rosen,

633 F. Supp. at 1139. However, the waiting period must effec-

tuate actual consultation without unduly burdening the oppor-

tunity of pregnant minors to obtain an abortion. In view of the

logistical obstacles facing Minnesota women who live in coun-

ties without a regular provider of abortion services, the court

believes a 48 hour waiting period is excessively long. Travel to

an abortion provider, particularly in winter from a rural area in

Minnesota, can be a very burdensome undertaking. A require-

ment that a minor either bear this burden twice or spend up to

three additional days in a city distant from her home cannot be

justified by the State’s interests in encouraging parental consul-

tation, because a shorter waiting period would effectuate that

interest as completely. Therefore, the court concludes that if a

minor chooses to notify her parent by certified mail as provided

in Minn. Stat. § 144.343(2)(b), the State properly may deem

delivery to occur at 12:00 noon on the next day on which regu-

lar mail delivery takes place, subsequent to mailing. The State

further may impose some reasonable waiting period subsequent

to delivery of notification during which consultation may

occur. Under conditions presently existing in Minnesota, how-

ever, 48 hours is an unreasonable waiting period. Therefore, the

court will enjoin defendants from enforcing the 48 hour waiting

period imposed by Minn. Stat. § 144.343(2).

50a

V1. Severability

Defendants contend that the two parent notification require-

ment and the 48 hour waiting period, which the court today

holds unconstitutional, should be severed from the remainder

of Minn. Stat. § 144.343(2)-(7).

Subdivision 7 of Minnesota’s parental notification statute

provides:

If any provision, word, phrase or clause of this action or

the application thereof to any person or circumstance shall

be held invalid, such invalidity shall not affect the provi-

sions, words, phrases, clauses or application of this section

which can be given effect without the invalid provision,

word, phrase, clause or application, and to this end the

provisions, words, phrases, and clauses of this section are

declared to be severable.

This language clearly evinces the legislature’s intent that any

unconstitutional portions of Minnesota’s parental notification

statute amenable to severance should be severed.

Subdivision 7 creates a ‘‘presumption of divisibility’’ and

places ‘‘the burden . . . on the litigant who would escape its

operation.”’ Carter v. Carter Co., 298 U.S. 238, 335 (1936)

(Cardozo, J.). See Regan v. Time, Inc., 468 U.S. 641, 643

(1984); Immigration and Naturalization Service v. Chadha, 462

U.S. 919, 932 (1983). Unless it is evident that the legislature

would not have enacted those provisions which are within its

power, independently of that which is not, the invalid part may

be dropped if what is left is fully operative as a law. See Regan

468 U.S. at 653; Chadha, 462 U.S. at 932. Severance is

improp , however, if the offending language is ‘‘inseparably

intertwined’’ within a subsection of the law. Women’s Services,

P.C. v. Thone, 636 F.2d 206, 210 (8th Cir. 1980), vacated for

further consideration on other grounds sub nom. Thone v.

Women’s Services P.C., 452 U.S. 911 (1982).

The 48 hour waiting period in Minn. Stat. § 144.343(2)-(7) is

severable from the remainder of the statute. Excising the words

‘at Jeast 48 hours after’? from subdivision 2 does not disable

the statute from reasonably effectuating the legislature’s intent.

Sla

Accordingly, the court holds that this language is severable

from the remainder of Minn. Stat. § 144.343. See Zbaraz v.

Hartigan, 463 F.2d 1532, 1545 (7th Cir. 1985), appeal docketed,

No. 85-673 (U.S. Oct. 16, 1985).

The language of subdivision 3 defining ‘‘parent’’ as ‘‘both

parents of the pregnant woman if they are both living, one par-

ent of the pregnant woman if only one is living or if the second

cannot be located through reasonably diligent effort, or the

guardian or conservator if the pregnant woman has one’”’ is

inseparably intertwined within Minn. Stat. § 144.343(2)-(7).

The Minnesota legislature would not have enacted a statute

requiring notification of a minor’s parents prior to the abortion

without identifying the individuals entitled to such notice. More

importantly, the remainder of the statute cannot be given effect

without the offending language. See Minn. Stat. § 144.343(7).

In addition, this court is ill-situated to determine what alter-

native definition the legislature would employ to remedy the

constitutional infirmity identified in this decision. For example,

the legislature may determine that requiring notice only to one

parent is the functional equivalent of requiring notice to both in

families enjoying healthy communication, while requiring

notice only to one parent permits the notified parent in an intact

but dysfunctional family to exercise his or her judgment con-

cerning the wisdom of notifying the other parent. Alternatively,

the legislature may determine that notification of both parents

is appropriate when the parents are together and the pregnant

minor is living at home. See Bellotti IJ, 443 U.S. at 649. Other

options also may suggest themselves to the legislature. Any of

these choices, however, would leave Minn. Stat. 144.343 (2)-(7)

with little resemblance to the program actually intended by the

Minnesota legislature. See Thornburgh v. American College of

Obstetricians and Gynecologists, U.S. : , 106

Sup. Ct. 2169, 2181 (1986); City of Akron v. Akron Center for

Reproductive Health, 462 U.S. 416, 472 (1983) (O’Connor, J.,

dissenting). Therefore, the definition of parent contained in

Minn. Stat. § 144.343(3) is not severable from the remainder of

the statute. The court must enjoin defendants from enforcing

Minn. Stat. § 144.343(2)-(7) in its entirety.

52a

ORDER

Upon the foregoing, the evidence presented at trial, the sub-

missions and arguments of the parties, and the record as pres-

ently constituted,

IT Is ORDERED That Minn. Stat. § 144.343(2)-(7) be and the

same hereby is declared unconstitutional.

IT Is FURTHER ORDERED That the Clerk enter judgment as

follows:

IT Is ORDERED, ADJUDGED, AND DECREED That Minn.

Stat. § 144.343(2)-(7) is unconstitutional.

IT Is FURTHER ORDERED That defendants be and the same

hereby are permanently enjoined from enforcing the provisions

of Minn. Stat. § 144.343(2)-(7).

It Is FINALLY ORDERED That the following injunction shall

issue without security:

IT Is ORDERED, ADJUDGED, AND DECREED That defen-

dants are permanently enjoined from enforcing the provi-

sions of Minn. Stat. § 144.343(2)-(7).

DATED: November 6, 1986.

Donald D. Alsop //s//

DONALD D. ALSOP

Chief U.S. District Judge

53a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 86-5423-MN and 86-5431-MN

——

Jane Hodgson, M.D.; Arthur Horowitz, M.D.; Nadine T.,

Janet T., Ellen Z., Heather P., Mary J., Sharon L., Kathy

M., and Judy M., individually and on behalf of all other

persons similarly situated; Diane P., Sarah L. and Jackie

H.; Meadowbrook Women’s Clinic, P.A., Planned Parent-

hood of Minnesota, a nonprofit Minnesota corporation;

Midwest Health Center for Women, P.A., a nonprofit Min-

nesota corporation; Women’s Health Center of Duluth, a

nonprofit Minnesota corporation.

P a seeemaeneee Appellees,

Vv.

The State of Minnesota; Rudy Perpich as Governor of the State

of Minnesota; Hubert H. Humphrey, III, as Attorney Gen-

eral of the State of Minnesota,

Appellants.

Appeal from the United States District Court

for the District of P.A., Minnesota

Argued: June 9, 1987

Filed: August 27, 1987

Before

LAY, Chief Judge, Heaney, Circuit Judge,

and ROSENN,* Senior Circuit Judge.

* Max Rosenn, Senior Circuit Judge, Third Circuit Court of Appeals,

sitting by designation.

S4a

ROSENN, Circuit Judge.

This appeal raises the constitutionality of a Minnesota stat-

ute, Minn. Stat. Ann. §§ 144.343(2)-(7) (1987), which requires

those providing abortions for minors’ to give notice of the

pending abortion, when possible,” to both of the minor’s par-

ents at least forty-eight hours before the abortion is to occur.

The statute further provides that if the notification requirement

is ever restrained or enjoined, as it has been since 1981, then the

minor shall have the choice of either notifying both parents

forty-eight hours before the abortion or demonstrating to the

court in an expedited confidential proceeding either that she is

‘‘mature and capable of giving informed consent’’ or that the

performance of an abortion without notification of her parents

would be in her best interests.

We conclude that a state may not constitutionally require a

minor to notify her parents of her intent to have an abortion

without providing the option of an appropriate alternative

court procedure by which the minor may demonstrate either her

maturity or that the performance of an abortion without notifi-

cation to her parents would be in her best interests. We further

conclude that even where there is the option of such an alterna-

tive court procedure, a state may not constitutionally require

the minor to always notify both of her parents whenever possi-

ble, and that this requirement in the present statute is not sever-

able from the remainder of the statute. Accordingly, we will

affirm the district court’s judgment permanently enjoining the

State of Minnesota from enforcing the provisions of Minn.

Stat. Ann. §§ 144.343(2)-(7).

l Specifically, the statute covers unemancipated minors and women

for whom a conservator has been appointed pursuant to state law because of

a finding of incompetency. See Minn. Stat. Ann. § 144.343(2) (1987) (subd.

2). The statute also contains a number of exceptions, termed ‘‘limitations,’’

which we shall discuss further infra. For our purposes here, however, we will

refer generically to those whom the statute covers as ‘‘minors.”’

2 Again, the specific statutory requisites will be discussed further,

infra.

5Sa

In general, Minn. Stat. Ann. § 144.343 provides guidelines

for the treatment of pregnancy, venereal disease, alcohol and

drug abuse, and abortions for minors. For example,

§ 144.343(1) (subdivision 1), which is not at issue, provides that

a “‘minor may give effective consent for medical, mental and

other health services to determine the presence of or to treat

pregnancy and conditions asscciated therewith, venereal dis-

ease, alcohol and other drug abuse, and the consent of no other

person is required.’’ The constitutionality of the remainder of

the statute, which deals with abortion treatment for minors, is

at issue.

Subdivision 2 (Subd. 2) is a notification provision, and has

been under temporary restraint (and later preliminary injunc-

tion) since July 31, 1981, the day before it was to go into effect.

The measure states that no abortion may be performed ‘‘upon

an unemancipated minor or upon a woman for whom a guard-

ian or conservator has been appointed . . . until at least 48

hours after written notice of the pending operation has been

delivered . . .’’ to her ‘“‘parent.’’ It also provides for the

mechanics of effecting notice. Subd. 2(a) provides for persona!

notice by the physician or his agent. In the alternative, subd.

2(b) provides that notice may also be effected ‘‘by certified mail

addressed to the parent at the usual place of abode of the parent

with return receipt requested and restricted delivery to the

addressee . . . .”’ If notice is mailed, ‘‘[t)ime of delivery [is]

deemed to occur at 12 o’clock noon on the next day on which

regular mail takes place, subsequent to mailing.’’ Thus, when

notice is ma led, as a practical matter the waiting period may

become 72 hours. Further, the district court found that in many

cases ‘‘scheduling factors’’ may cause the effective length of the

delay to reach ‘‘a week or more.’’ Hodgson v. Minnesota, 648

F. Supp. 756, 765 (D. Minn. 1986).

Parent is defined in subd. 3 as ‘‘both parents of the pregnant

woman if they are both living, one parent of the pregnant

woman if only one is living or if the second one cannot be

located through reasonably diligent effort, or the guardian or

conservator if the pregnant woman has one.’’ Subd. 4 provides

S6a

that no notice is required if: (a) the attending physician certifies

that the abortion is necessary to prevent the woman’s death and

there is insufficient time to provide the required notice; or (b)

the abortion is authorized in writing by the person or persons

who are entitled to notice; or (c) the pregnant minor declares

that she is a victim of sexual abuse, neglect, or physical abuse as

defined in the statute. In the latter case, notice of abuse is to be

made to the proper authorities. Although not required, it

appears that most or all ‘‘abortion providers’’ require a prior

report of abuse before dispensing with notice under subd. 4(c).

Subd. 5 is a penalty provision and subjects anyone perform-

ing an abortion in violation of the statute to criminal penalties,

and civil liability to any person wrongfully denied notification.

Subd. 6 provides that if the notification provision of subd. 2 is

ever enjoined by judicial order, as it has been since before its

effective date, then during those periods of restraint a pregnant

minor has the choice of either providing notice as set forth in

subd. 2, or submitting to a ‘‘court bypass’’ procedure. Under

the court bypass, a judge after an expedited confidential hear-

ing, may authorize an abortion without parental notice after

determining ‘‘that the pregnant woman is mature and capable

of giving informed consent to the proposed abortion,’’ or that

the performance of an abortion without notification would be

in her best interests.

The district court made a variety of factual findings with

respect to the operation over the past five years of the court

bypass procedure contained in subdivision 6. According to the

court, confidentiality has generally been maintained. See

Hodgson, 648 F. Supp. at 763. Further, proceedings have gen-

erally been expedited, so that minors have only had to wait two

or three days between their first contact with the court and the

hearing on their petitions. Jd. at 762-763. Thus, as with the

notification delay, total delay (including scheduling problems)

has been ‘‘a week or more.”’ Jd. at 763. This can increase both

the cost and risk of an abortion. Further, the system frequently

requires the pregnant minor to make two or three trips of often

great distances, see id. at 761, which may in part be because by

the time the court proceeding is over, it is too late in the day to

still have the abortion. Judges have almost never denied a

S7a

minor a requested abortion; there were only nine instances, sev-

eral of which were apparently justified (e.g., minor didn’t really

want an abortion/changed her mind), and one of which was

reversed on appeal. See id. at 765. The district court also found

that the whole process produced a great deal of stress, and con-

cluded that were the court writing on a clean slate it would have

found the burdens greater than the benefits, of which the court

found none. See id. at 775-76. The asserted benefit or purpose

of the statute, as in part expressed at oral argument before this

court, is to foster intra-family communication and to protect

pregnant minors, by promoting parental involvement in the

minor daughter’s abortion decision.

The final provision in the statute, subd. 7, is a severability

provision. It provides that if any part of the statute is held

invalid, such invalidity should not affect any portion of the

statute which can be given effect without the invalid portion.

The statute was to become effective on August 1, 1981. On

July 30, 1981, however, the plaintiffs, class action minors, a

parent, four clinics, and two physicians, brought suit seeking a

declaratory judgment and an injunction. The plaintiffs alleged:

(1) that the statute violated due process on its face and as

applied; (2) that the statute violated equal protection; (3) that as

applied to estranged families the statute violated the due pro-

cess and first amendment rights of custodial parents; and (4)

that the statute violated various provisions of the Minnesota

constitution.

On July 31, 1981, the district court temporarily restrained

enforcement of subd. 2 of the statute (the pure notice provi-

sion), but not subd. 6. On March 2, 1982, the court issued a pre-

liminary injunction against enforcement of subd. 2.

On January 23, 1985, the district court granted partial sum-

mary judgment in the defendant's favor on the plaintiffs’ state

constitutional, equal protection, and facial due process claims

against continued enforcement of the ‘‘notice/bypass’’ proce-

dure, and accordingly dismissed those claims. Then, on Novem-

ber 6, 1986, after a lengthy trial, the court held, inter alia, that:

(1) the notification requirement, standing alone, was facially

invalid; (2) the notice/bypass requirement was facially invalid

to the extent it required a 48 hour waiting period instead of

58a

some shorter period, and notification of both parents; (3) the 48

hour waiting period requirement was severable; (4) the two-

parent notification requirement was not severable; (5) an ‘‘as

applied’’ analysis of the notice/bypass procedure was barred by

Supreme Court precedent; and (5) if an ‘‘as applied’’ analysis

had not been barred, the district court would have found the

statute unconstitutional as applied because it failed to serve the

state’s asserted interests. Both sides appeal.

Il.

Plaintiffs first seek to keep permanent the current injunciton

against the enforcement of subd. 2. They argue that subd. 2 is

unconstitutional on its face, becuase it fails to afford mature

minors and minors whose best interests are contrary to parental

involvement, with an opportunity to obtain a judicial or admin-

istrative waiver of the notification requirement. We agree.

It is by now well established that, in general, any regulation

restrictive of a woman’s right to choose an abortion must be

justified by a ‘‘compelling’’ state interest; See Thornburgh v.

American College of Obstetricians and Gynecologists, 54

U.S.L.W. 4618, 4621 (U.S. June 11, 1986); Akron v. Akron

Center for Reproductive Health, 462 U.S. 416, 427 (1982); Roe

v. Wade, 410 U.S. 113, 155 (1972). Where minors are involved,

however, the State has somewhat broader authority to regulate,

and thus need only demonstrate a ‘“‘significant’’ state interest.

See Akron, 462 U.S. at 427-28 n.10; Carey v. Population Serv.

Int’l, 431 U.S. 678, 693 & n.15 (1976); Planned Parenthood of

Missouri v. Danforth, 428 U.S. 52, 74-75 (1975). Accordingly,

the Supreme Court has repeatedly held that states may, in cer-

tain circumstances, permissibly encourage parental involvement

in a minor’s decision to have an abortion. See Planned Parent-

hood Ass’n v. Ashcroft, 462 U.S. 476, 490-91 (1982) (plurality

portion of cpinion); Akron, 462 U.S. at 427-28 n.10, 439; H.L.

v. Matheson, 450 U.S. 398, 409 (1980); Bellotti v. Baird, 443

U.S. 622, 640, 648 (1978) (plurality opinion) (Bellotti 11); Dan-

forth, 428 U.S. at 75.

59a

Nevertheless, the State’s right to regulate the activities of

minors is not absolute. See Danforth, 428 U.S. at 74; Wynn v.

Carey, 582 F.2d 1375, 1386 (7th Cir. 1978). See also Bellotti II,

443 U.S. at 642 (The potentially severe detriment facing a preg-

nant woman is not mitigated by her minority. ‘‘Indeed, consid-

ering her probable education, employment skills, financial

resources, and emotional maturity, unwanted motherhood may

be exceptionally burdensome for a minor.’’). For example, the

Supreme Court has squarely held that ‘‘the State may not

impose a blanket provision. . . requiring the consent of a par-

ent or person in loco parentis as a condition for abortion of an

unmarried minor during the first 12 weeks of pregnancy.’’ Dan-

forth, 428 U.S. at 74. Rather, at least in consent cases, ‘‘[iJt is

clear. . . that ‘the State must provide an alternative procedure

whereby a pregnant minor may demonstrate that she is suffi-

ciently mature to make the abortion decision herself or that,

despite her immaturity, an abortion would be in her best inter-

ests.’ ’’ Ashcroft, 462 U.S. at 491 (quoting Akron, 462 U.S. at

439-40). See Bellotti Il, 443 U.S. at 643-44, 647-48. The ration-

ale for requiring this alternative procedure is clear: the State’s

“‘significant’’ interest in encouraging parental involvement in a

minor’s abortion decision ‘‘must give way to the constitutional

right of a mature minor or of an immature minor whose best

interests are contrary to parental involvement.’’ Akron, 462

U.S. at 428 n.10.

In Bellotti II, supra, the Supreme Court’s plurality opinion

specifically reached the question of notice (as opposed to con-

sent) in the context of a statute which required that an unmar-

ried minor’s parents be notified whenever the minor child, as an

alternative to obtaining her parents’ consent, sought court per-

mission to have an abortion. The Supreme Court struck down

the notice requirement, stating that such a requirement ‘‘would

impose an undue burden upon the exercise by minors of the

right to seek an abortion.’’ Jd. at 647. According to the Court,

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

60a

parents hold strong view® on the subject of abortion, and

young pregnant minors, especially those living at home,

are particularly vulnerable to their parents’ efforts to

obstruct both an abortion and their access to court. it

would be unrealistic, therefore, to assume that the mere

existence of a legal right to seek relief in superior court

provides an effective avenue of relief for some of those

who need it the most.

We conclude, therefore, that under state regulation such

as that undertaken by Massachusetts, every minor must

have the opportunity—if she so desires—to go directly to a

court without first consulting or notifying her parents. If

she satisfies the court that she is mature and well enough

informed to make intelligently the abortion decision on

her own, the court must authorize her to act without

parental consultation or consent. If she fails to satisfy the

court that she is competent to make this decision indepen-

dently, she must be permitted to show that an abortion

nevertheless would be in her best interests. If the court is

persuaded that it is, the court must authorize the abortion.

‘d. at 647-48 (emphasis added). See Zbaraz v. Hartigan, 763

.2d 1532, 1539 (7th Cir. 1985), review granted, 55 U.S.L.W.

3247 (U.S. Oct. 14, 1986); Indiana Planned Parenthood Affili-

ates Ass’n v. Pearson, 716 F.2d 1127, 1132 (7th Cir. 1983);

Planned Parenthood of Rhode Island v. Board of Medical

Review, 598 F. Supp. 625, 634 (D.R.1I. 1984). Cf. H.L. v.

Matheson, 450 U.S. at 406-07 (As applied to an unemancipated

minor girl living with and dependent upon her parents, and

making no claim or showing as to her maturity or as to her rela-

tionship with her parents, parental notification requirement is

constitutional); American College of Obstetricians v. Thorn-

burgh, 656 F. Supp. 879, 882-84 (E.D. Pa. 1987) (distinguishing

statute which gives parents with notice right to observe judicial!

proceedings from statute which would give parents notice)

(judgment on remand from Supreme Court).

Despite the above Supreme Court rulings, none of which has

ever sanctioned either a blanket consent or a blanket notice

requirement, the defendants urge that no Supreme Court

6la

majority opinion has ever squarely extended the blanket con-

sent proscription to a blanket notice requirement.’ According to

the defendants, a notice requirement is less burdensome than a

consent requirement, and is therefore a constitutional means of

furthering the State’s significant interest in encouraging paren-

tal involvement in a minor’s abortion decision. We disagree.

We believe that both parental consent and notice require-

ments are burdensome to a pregnant minor. Although a notice

requirement does not, as in a consent statute, enable the parent

to exercise an absolute and unilateral veto regardless of the best

interests of the minor, it does add to the minor’s burdens at a

time when she is confronted with a major personal decision of

“‘grave and indelible consequences.’’ Bellotti IJ, 443 U.S. at

642. First, there is the waiting period that is required until the

blanket statutory notice is given. ‘‘[T]he abortion decision is

one that simply cannot be postponed, or it will be made by

default with far-reaching consequences.’’ Jd. at 643. Second,

such a blanket requirement, particularly when the minor is

mature and in situations where notice to her parents would not

be in her best interests, may do more to fractionalize the family

integrity than preserve it, and may be adverse to the best inter-

ests of the pregnant minor. There is no reason to believe that

parents who refuse to consent to an abortion will be less

obstructive to such a medical procedure or to the minor’s access

to the court bypass procedure when they are merely notified of

the pending abortion, regardless of the maturity of the minor or

her ability to make an intelligent assessment of her circum-

stances with the advice of her physician. See Bellotti IJ, 443

U.S. at 647.

3 ~—- Bellotti I] was only a piurality opinion. However, the four concur-

ring members of the Court would have gone further than the plurality and

held any veto power over a minor’s abortion decision to be unconstitutional.

See Bellotti 11, 443 U.S. at 652-56 (Stevens, J., concurring). H.L. v. Mathe-

son, though a majority opinion, technically never reached the question of

whether it would be constitutional to apply a notice requirement to mature,

emancipated, or ‘‘non-best interest’’ minors. Ashcroft, Akron, and Dan-

forth each dealt with a requirement that minors obtain parental consent;

none dealt with a notification requirement.

62a

Testimony by experts whom the trial court evaluated as credi-

ble and of unquestionably high standing in their respective

fields agreed that although family relationships benefit from

voluntary and open communication, compelling parental notice

has an opposite effect. It is almost always disastrous. Clinic

counselors with extensive experience counseling minors in Min-

nesota supported this view. There was evidence that the law did

not promote family integrity or communication; on the con-

trary, it disrupted and damaged family relationships. The dis-

trict court found that the defendants offered no persuasive

testimony to the contrary. Hodgson v. State of Minnesota, 648

F. Supp. at 768. Accordingly, we hold that Minnesota may not

constitutionally require a minor to notify her parents of her

intent to have an abortion without providing the option of an

alternative court procedure by which the minor may demon-

strate either her maturity or that the performance of an abor-

tion interests.

Ill.

Minn. Stat. Ann. § 144.343(3) (1987) (subd. 3) defines ‘‘par-

ent’’ as ‘‘both parents of the pregnant woman if they are both

living, one parent of the pregnant woman if only one is living or

if the second one cannot be located through reasonably diligent

effort, or the guardian or conservator of the pregnant woman

has one.”’ The plaintiffs claim that this provision is unconstitu-

tional because, at least where the minor does not live with both

parents, the statute unduly burdens the minor’s exercise of her

right to seek an abortion. The defendants, on the other hand,

claim that the two-parent notification requirement is constitu-

tional, and that even if it were not, the statute as a whole is con-

stitutional because under subdivision 6 the pregnant minor

retains the option of having her abortion authorized by the

court. It is to these opposing claims which we now turn.

63a

In Bellotti II, the Supreme Court’s plurality opinion upheld a

requirement that a pregnant minor seeking an abortion obtain

both parents’ consent, but explicitly left open the question of

whether such a requirement would be constitutional where both

parents were not residing together and living at home with the

minor. According to the Court plurality:

We are not persuaded that, as a general rule, the

requirement of obtaining both parents’ consent unconsti-

tutionally burdens a minor’s right to seek an abortion. The

abortion decision has implications far broader than those

associated with most other kinds of medical treatment. Ar

least when the parents are together and the pregnant minor

is living at home, both the father and mother have an

interest—one normally supportive—in helping to deter-

mine the course that is in the best interests of a daughter.

Consent and involvement by parents in important deci-

sions by minors long have been recognized as protective of

their immaturity.

Id. at 649 (emphasis added). Our task is to determine whether

these same interests are served by a requirement that a pregnant

minor seeking an abortion notify even a non-custodial parent

who is no longer, and perhaps never was, living at home as a

part of the ‘‘family unit.’”

4 _ By phrasing the issue in this way, we do not mean to suggest that it

would be constitutional to carve out of a two-parent notification requirement

only non-custodial parents not living at home. Rather, we discuss such par-

ents here because subd. 3 requires that they be notified, and because we con-

clude that this is unconstitutional. It is conceivable to us that a requirement

that others be notified, such as parents with joint custody who do not live

with the minor most of the time or at the time she learns of her pregnancy,

might be unconstitutional as well. We do not, however, decide this issue.

Further, we note in passing that Justice Powell’s plurality opinion in Bellotti

I] is the only Supreme Court decision to reach the two-parent requirement,

and that the plurality’s discussion on this point does not appear to have been

necessary to its decision. See Bellotti I], 443 U.S. at 656 n.4. (‘‘A real

statute—rather than 2 mere outline of a possible statute—and a real case or

64a

In making his findings of fact, Judge Alsop, in a careful and

thorough opinion, specifically discussed the high incidence of

divorce, and the effect this often has on family communication.

According to the district court, approximately 50% of all mar-

riages in Minnesota end in divorce, and approximately 42% of

all minors in Minnesota do not live with both biological par-

ents. Hodgson, 648 F. Supp. at 768. Further, the district court

found that many minors in Minnesota who are victims of dys-

functional families ‘‘live in fear of violence by family mem-

bers.’’ Parental notification of a pending abortion can only add

to the magnitude of the problem of family violence which in

turn intensifies the distress and anxieties of the abortion deci-

sion confronting the pregnant minor. Jd. at 768-69.° Most par-

ticularly, the court noted:

Divorce or separation usually impairs family communi-

cation severely. The non-custodial parent often has very

little communication with the child. In addition, commu-

nication between divorced or separated spouses frequently

is marked with the kind of hostility and angry vindictive-

ness that characterized the divorce or separation.

The effect of compelling an adolescent to share infor-

mation about her pregnancy and abortion decision with

both parents in a divorced or separated situation can be

harmful. The non-custodial parent often will reintegrate

with the family in a disruptive manner. The adolescent

may be perplexed as to why the non-custodial parent

should become an important factor in her life at this point,

especially when the parent previously has paid her little

attention and offered little support. Moreover, the testi-

controversy may well present questions that appear quite different from the

hypothetical questions MR. JUSTICE POWELL has elected to address.’’)

(Stevens, J., concurring). Accordingly, in view of our disposition of this

appeal, we decline to rule definitively on the constitutionality of requiring

that both parents be notified when the parents reside together and the minor

is living at home.

S The district court also noted that the incidence of violence in dys-

functional families is severely underreported. Hodgson, 648 F. Supp. at

768-69.

65a

mony revealed no instances in which beneficial relations

between a minor and an absent parent were reestablished

following required notification. . . .

Involuntary involvement of the second biological parent

is especially detrimental when the minor comes from an

abusive, dysfunctional family. Notification of the minor’s

pregnancy and abortion decision can provoke violence,

even where the parents are divorced or separated. Studies

have shown that violence and harassment may continue

well beyond the divorce, especially when children are

involved.

Id. at 769.° Finally, the court found that of the twenty to

twenty-five percent of minors going to court who voluntarily

notified one but not both parents, ‘‘the vast majority’’ told

divorced or separated mothers who had not seen their spouses

in years, and that minors who ordinarily would notify one par-

ent might be dissuaded from doing so by the two-parent

requirement. Jd. We conclude that these findings are supported

by the record and are not clearly erroneous.

Based on the above findings of fact, the district court con-

cluded that ‘‘the need to notify the second parent or to make a

burdensome court appearance actively interferes with the

parent-child communication voluntarily initiated by the child,

communication assertedly at the heart of the State’s purpose in

requiring notification of both parents. In these cases, requiring

notification of both parents affirmatively discourages parent-

6 For example, in one instance a non-custodial father called the Mead-

owbrook Clinic on the morning of his daughter’s proposed abortion, and

told the Clinic’s administrator that he was anti-abortion and planned to stop

the abortion from happening. The administrator told him he could not stop

the abortion, but then told the mother, who was there at the time, that the

clinic could not perform the abortion until things ‘‘calmed down.’’ The

mother responded that the clinic should not worry because she would ‘‘take

care of it,’’ and then proceeded to drive to the father’s house and shoot a

bullet from her gun through his door. Afterwards, the mother returned to the

clinic stating, ‘‘he will not bother you again.’’ Dr. Lenore Walker, one of the

plaintiffs’ expert witnesses, testified that pregnancy of a daughter or of a

wife triggers violent reactions in abusive dysfunctional families ‘‘like a red

cape to a bull.’’

66a

child communication.’’ Jd. at 778. Thus, held the court, ‘‘this

requirement fails to further the State’s interest.’’ We agree.

As extensively detailed by the district court and noted above,

the effect of notifying an absent non-custodial parent of his or

her minor daughter’s decision to have an abortion is frequently

negative for all concerned. Indeed, the problems which inevita-

bly arise when two divorced parents both attempt to raise and

influence the same minor child are often a primary reason that

courts decline to award joint custody.’ Thus, unless some other

arrangement is made, where the court awards sole custody to

one parent, that parent

has the right to make decisions about the child’s educa-

tion, religious training, residence, and medical treatment.

Generally, this parent also has ‘‘physical’’ or ‘‘actual’’

custody which entitles her to control the child’s daily

activities such as sleeping, eating, and recreation. The

rights and obligations of the non-custodial parent are a

good deal more limited. Typically, that parent loses all

power with respect to major decisions. The non-custodial]

parent’s influence over day-to-day childrearing activities is

limited to the period of visitation, and visitation itself is

frequently confined to a brief time.

7 See, e.g., Chapman v. Chapman, 352 N.W.2d 437 (Minn. App.

1984), in which the Minnesota trial court had granted joint legal custody in

the hope that it would encourage the parents to cooperate. The court of

appeals rejected this rationale for awarding joint custody, stating:

Instead of granting joint custody because the parties can cooperate

and amicably settle disputes about the children, the judge granted joint

custody because they cannot. Although ideally the parents should

make major decisions concerning their children jointly, joint legal cus-

tody should not be used as a ‘‘legal baseball bat’’ to coerce coopera-

tion, as advocated by the father’s attorney.

The record shows that the parents have basic differences concerning

the health care, religious training and general upbringing of their chil-

dren. They have not been able to communicate or cooperate in resolv-

ing their differences. Joint custody would only exacerbate the problem

by dividing authority and increasing opportunities for conflict.

Id. at 441 (emphasis in original).

67a

Wexler, Rethinking the Modification of Child Custody

Decrees, 94 Yale L. J. 757, 808 (1985) (emphasis added; foot-

note omitted). See J. Goldstein, A. Freud & A. Solnit, Beyond

the Bests Interests of the Child 38 (1973).

To be sure, in some instances the absent non-custodial par-

ent’s advice may be important, helpful, and desirable, and a

two-parent notification requirement does, in those cases, fur-

ther the state’s significant interest in promoting intra-family

communication. The problem, however, is that the occasions

on which the State’s interests are furthered are simply too infre-

quent to justify the burden imposed—particularly where the

court has explicitly awarded custody to one parent instead of

another. Indeed, one of the prerogatives of being the custodial

parent is deciding, in conjunction with the child, when and

whether to tell the non-custodial parent about decisions which

may affect the child’s well-being. See Wexler, supra; J. Gold-

stein, A. Freud & A. Solnit, supra. Further, even in the absence

of a two-parent notification requirement there is certainly noth-

ing to prevent a custodial parent from consulting, or encourag-

ing the minor to consult, the non-custodial parent. See J.

Goldstein, A. Freud & A. Solnit, supra. Accordingly, we con-

clude that because it frequently does more harm than good, on

balance the present statute fails to further the State’s asserted

interests and is therefore unconstitutional.

We now turn to the question of whether, notwithstanding our

conclusion that it is unconstitutional to require absent non-

custodial parents to be notified of their minor daughter’s abor-

tion decision, the present statute is nevertheless saved by the

presence in the statute of an alternative court bypass procedure.

In this respect, we note initially that after the plurality in Be/-

lotti II suggested it would approve two-parent notification

requirements where the parents are together and the minor is

living at home, the plurality stated that, ‘‘[a]s every pregnant

minor is entitled in the first instance to go directly to the court

for a judicial determination without prior parental notice, con-

sultation, or consent, the general rule with respect to parental

68a

consent does not unduly burden the constitutional right.’”* Be/-

lotti II, 443 U.S. at 649. Nevertheless, we conclude that where,

as in this case, the underlying notification requirement imper-

missibly burdens the minor’s abortion decision, that require-

ment cannot be saved by the presence in the statute of an

alternative court bypass procedure.

Our reasons for this conclusion are twofold. The first and

most fundamental reason for our conclusion is that the court

bypass procedure itself constitutes a burden on the minor’s

exercise of her right to have an abortion. See Harris v. McRae,

448 U.S. 297, 316 (1980) (impliedly recognizing that any state

regulation which places an obstacle, absolute or otherwise, in

the path of a woman’s fundamental right to proceed with an

abortion, is a burden); Maher v. Roe, 432 U.S. 464, 472-74

(1977) (same). See also Danforth, 428 U.S. at 74 (‘‘Constitu-

tional 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.’’). Where the bypass procedure is insti-

tuted as an alternative to an otherwise valid parental notifica-

tion or consent requirement, this burden is justified by the

state’s significant interest in fostering intra-family communica-

tion and protecting minors through parental involvement in the

abortion decision. Indeed, where a state chooses to impose an

otherwise valid consent or notification requirement upon

minors, it must also provide an alternative court procedure.

Ashcroft, supra; Akron, supra; Bellotti Il, supra. Where the

underlying notification provision is unconstitutional because

with respect to children of broken families it fails to further the

state’s significant interests, however, a mature minor or minor

whose best interests are contrary to notifying the non-custodial

parent is forced to either suffer the unconstitutional require-

ment or submit to the burdensome court bypass procedure.

8 Indeed, in a footnote the plurality recognized that ‘‘(t}here will be

cases where the pregnant minor has received approval of the abortion deci-

sion by one parent.’’ According to the plurality, ‘‘[i]n that event, the parent

can support the daughter’s request for a prompt judicial determination, and

the parent’s support should be given great, if not dispositive weight.’’ See

Bellotti I], 443 U.S. at 649 n.29.

69a

Such a Hobson’s choice fails to further any significant interest.

Just as there must be a constitutional judicial alternative to a

notice requirement, so there must be a constitutional notice or

consent alternative to the court bypass.”

The second reason for our conclusion that the court bypass

procedure does not save the two-parent notification require-

ment is that where the parents are divorced, the minor and/or

custodial parent, and not a court, is in the best position to

determine whether notifying the non-custodial parent would be

in the child’s best interests. See J. Goldstein, A. Freud & A.

Solnit, supra. In situations where the minor has a good relation-

ship with the non-custodial parent but the custodial parent does

not, there is nothing to prevent the minor from consulting with

the non-custodial parent if she so desires. The minor and custo-

dial parent, however, by virtue of their major interest and supe-

rior position, should alone have the opportunity to decide to

whom, if anyone, notice of the minor’s abortion decision

should be given. See id. Accordingly, we conclude that the

unconstitutional notice provisions in Minn. Stat. Ann.

§§ 144.343(2)-(7) are not saved by the presence in the statute of

an alternative court bypass procedure.

Finally, we must reach the question of whether the two-

parent notification provision is severable from the remainder of

the statute. In this regard, we recall that subd. 7 provides for

severability where the valid portions of the statute ‘‘can be

given effect without the invalid provision,’ and therefore cre-

ates a presumption of severability. ‘‘Unless it is evident that the

Legislature would not have enacted those provisions which are

within its power, independently of that which is not, the invalid

part may be dropped if what is left is fully operative as a law.”’

Alaska Airlines, Inc. v. Brock, 55 U.S.L.W. 4396, 4398 (U.S.

March 25, 1987) (quoting Buckley v. Valeo, 424 U.S. 1, 108

9 Indeed, the defendants conceded at oral argument before this court

that they could not constitutionally strip Minn. Stat. Ann. §§ 144.343(2)-(7)

of all but the court bypass procedure. This concession is flatly inconsistent

with the defendant's claim that the statute’s unconstitutional notification

requirement is saved by the court bypass procedure.

70a

(1976) (per curiam), and Champlin Refining Co. v. Corpora-

tion Comm’n of Oklahoma, 286 U.S. 210, 234 (1932)). Accord

Regan v. Time, Inc., 468 U.S. 641, 653 (1984) (plurality opin-

ion). Severance is improper if the offending language is ‘‘insep-

arably intertwined within a subsection of the law.’’ Women’s

Services, P.C. v. Thone, 636 F.2d 206, 210 (8th Cir. 1980),

vacated for further consideration sub nom. Thone v. Women’s

Services, P.C., 452 U.S. 911 (1981).

In the case of the present statute, the defendants urge us to

sever the two-parent notification requirement in such a way as

to make it a single parent notification requirement. In particu-

lar, they urge us to make singular the few references to the word

**parent’’ which are in the plural, and to modify by excision the

definition of parent in subd. 3 by removing the phrases, ‘‘both

parents of the pregnant woman if they are both living,’’ and “‘if

only one is living or if the second one cannot be located through

reasonably diligent effort.’’ So modified, ‘“‘parent’’ would be

defined as ‘‘one parent of the pregnant woman or the guardian

or conservator if the pregnant woman has one.”’

The problem with the defendants’ suggestion is that even so

modified portions of the statute cannot be given meaning. For

example, subd. 5 provides that ‘‘[p]erformance of an abortion

in violation of this section . . . shall be grounds for a civil

action by a person wrongfully denied notification.’’ If the stat-

ute were modified to require notification of only one parent,

then it would be impossible to determine which of the two par-

ents would have a cause of action. This would be particularly

difficult where both parents are residing together and the preg-

nant minor is living at home.

Further, such a ‘‘radical dissection’? would leave Minn. Stat.

Ann. §§ 144,341(2)-(7) ‘“‘with little resemblance to that

intended,’’ Thornburgh, 54 U.S.L.W. at 4623, by the Minne-

sota legislature. See Akron, 462 U.S. at 446 n.37. As the course

of this litigation demonstrates, the Minnesota legislature clearly

intended to require notification of both parents whenever possi-

ble and constitutional. Indeed, Senator Waldorf, one of the

authors of the bill, specifically stated during a hearing before

the Minnesota Legislative Committee on Health, Welfare and

Corrections that ‘‘parent’’ was intended to mean both parents

7la

even when the parents were divorced and that he believed it

would be constitutional to go this far.'° If, however, as Bellotti

II suggests, requiring notification of both parents is constitu-

tional where both parents are residing together and the preg-

nant minor is living at home, then the modification which the

defendants suggest would be far more drastic than necessary to

make the statute constitutional. As the district court noted,

“‘this court is ill-suited to determine what alternative definition

the legislature would employ to remedy the constitutional infir-

mity in this decision.’’ Hodgson, 648 F. Supp. at 780-81. The

job of rewriting Minn. Stat. Ann. §§ 144.343(2)-(7) must,

therefore, fall to the Legislature, and not to the courts. Accord-

ingly, we conclude that the two-parent notification requirement

cannot be severed.

IV.

In summary, we hold that a State may not constitutionally

require a minor to notify her parents of her intent to have an

abortion without providing the option of an appropriate alter-

native court procedure by which the minor may demonstrate

either her maturity or that the performance of an abortion with-

out notification to her parents would be in her best interests.

We further hold that even where there is the option of such an

alternative court procedure, a State may not constitutionally

require the minor to always notify both of her parents whenever

possible, and that this requirement in the present statute is not

severable from the remainder of the statute. Accordingly, the

district court’s judgment permanently enjoining the State of

Minnesota from enforcing the provisions of Minn. Stat. Ann.

§ 144.343(2)-(7) will be affirmed.

aed

10 According to Senator Waldorf, ‘‘what we're trying to do is to make

the bill constitutional. I am not aware of any [C]ourt decisions, [S)upreme

[Cjourt decisions that would not give status to the natural parent who is

divorced.”’

72a

HEANEY, Circuit Judge, concurring.

I concur in the opinion insofar as it holds unconstitutional

the Minnesota statute which requires a pregnant minor seeking

an abortion to notify a noncustodial parent who is no longer

living at home at least forty-eight hours before the abortion. |

do so for the reason noted by Judge Alsop in his opinion and

quoted on pages 16 and 17 of this opinion. I also agree that the

“two parent’’ requirement cannot be saved by the presence in

the statute of the court bypass procedure. Finally, I agree that

we cannot sever the two-point notification in such a way as to

make it a single parent notification requirement. It is for the

legislature to make that change.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

73a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

Nos. 86-5423 and 86-5431

—>

Jane Hodgson, et al.,

Appellees,

The State of Minnesota, et al.,

Appellants.

On Petition for Rehearing En Banc

Filed: December 31, 1987

The panel’s order of November 13, 1987, vacating the judg-

ment and opinion in the above-entitled case is hereby rescinded.

The panel reinstates the opinion and judgment of the court.

The petition for rehearing by the court en banc is granted; the

panel opinion and judgment entered thereon are vacated. The

case shall be argued to the court of appeals en banc and submit-

ted on original briefs and record on February 12 at 9:00 a.m. in

St. Paul, Minnesota, in the court of appeals Courtroom No. 1,

584 Federal Courts Building, 316 North Robert Street. Each

side will be given 30 minutes for oral argument. Additional

citations may be submitted to the court under Fed. R. App.

P. 28 (j).

A true copy.

Attest:

/s/ ROBERT D. ST. VRAIN

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.

74a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-5423

No. 86-5431

Jane Hodgson, M.D.; Arthur Horowitz, M.D.; Nadine T..,

Janet T., Ellen Z., Heather P., Mary J., Sharon L., Kathy

M., and Judy M. individually and on behalf of all other per-

sons similarly situated; Diane P., Sarah L. and Jackie H.;

Meadowbrook Women’s Clinic, P.A., Planned Parenthood

of Minnesota, a nonprofit Minnesota corporation; Midwest

Health Center for Women, P.A., a nonprofit Minnesota

corporation; Women’s Health Center of Duluth, P.A., a

nonprofit Minnesota corporation, Appellees,

Vv.

The State of Minnesota; Rudy Perpich as Governor of the State

of Minnesota; Hubert H. Humphrey, III, as Attorney Gen-

eral of the State of Minnesota,

Appellants.

Appeals from the United States District Court

for the District of Minnesota.

—+

Submitted: February 12, °988 Filed: August 8, 1988

Before

LAY, Chief Judge, HEANEY, MCMILLAN, ARNOLD, JOHN R.

GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and

BEAM, Circuit Judges, En Banc.

7Sa

JOHN R. GIBSON, Circuit Judge.

The issue before us is the constitutionality of a Minnesota

statute which requires a pregnant minor to notify her parents of

her desire to obtain an abortion or to seek judicial bypass. The

statute, Minn. Stat. Ann. §§ 144.343(2)-(7) (1987), requires a

minor to notify both parents at least forty-eight hours before a

planned abortion or demonstrate to a court in an expedited con-

fidential proceeding either that she is ‘‘mature and capable of

giving informed consent”’ or that the performance of an abor-

tion without such notification would be in her ‘‘best interests.”’

The district court held that the notice/bypass statute was

unconstitutional because the two-parent notice requirement

failed to serve the state’s interest in protecting pregnant minors

or promoting family communication and that the 48-hour wait-

ing period requirement was unreasonable under conditions

existing in Minnesota. A panel of this court affirmed the judg-

ment of the district court and we granted rehearing en banc. We

now reverse and remand with directions that the district court

enter judgment that the notice/bypass statute is constitutional.

In 1981, the Minnesota legislature enacted Minn. Stat. Ann.

§ 144.343, which deals generally with minor’s consent to treat-

ment for pregnancy, venereal disease, and alcohol and drug

abuse.’ Subd. 2 provides that no abortion may be performed

upon an unemancipated minor until at least 48 hours after writ-

ten notice to her parent’ and provides the mechanics for effect-

ing notice.’ Subd. 6 provides that if the notification provision

1 Only the constitutionality of the portion of the statute dealing with

abortions for minors is at issue.

2 Subd. (2) provides:

[N]o abortion operation shall be performed upon an unemancipated

minor * * * until at least 48 hours after written notice of the pending

operation has been delivered in the manner specified in subdivisions 2

to 4,

3. Subd. (2)(a) provides for personal notice by the physician or his

ager. In the alternative, subd. 2(b) provides that notice may also be effected

by ‘‘certified mail addressed to the parent at the usual place of abode of the

74a

UNITED STATES COURT OF APPEALS

FOR THE EIGHTH CIRCUIT

No. 86-5423

No. 86-5431

Jane Hodgson, M.D.; Arthur Horowitz, M.D.; Nadine T.,

Janet T., Ellen Z., Heather P., Mary J., Sharon L., Kathy

M., and Judy M. individually and on behalf of all other per-

sons similarly situated; Diane P., Sarah L. and Jackie H.;

Meadowbrook Women’s Clinic, P.A., Planned Parenthood

of Minnesota, a nonprofit Minnesota corporation; Midwest

Health Center for Women, P.A., a nonprofit Minnesota

corporation; Women’s Health Center of Duluth, P.A., a

it Mi orporation,

nonprofit Minnesota corp Appellees,

Vv.

The State of Minnesota; Rudy Perpich as Governor of the State

of Minnesota; Hubert H. Humphrey, II], as Attorney Gen-

era' of the State of Minnesota, Appellants.

Appeals from the United States District Court

for the District of Minnesota.

Submitted: February 12, 1988 Filed: August 8, 1988

Before

LAY, Chief Judge, HEANEY, MCMILLAN, ARNOLD, JOHN R.

GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and

BEAM, Circuit Judges, En Banc.

—$>—

75a

JOHN R. GIBSON, Circuit Judge.

The issue before us is the constitutionality of a Minnesota

statute which requires a pregnant minor to notify her parents of

her desire to obtain an abortion or to seek judicial bypass. The

statute, Minn. Stat. Ann. §§ 144.343(2)-(7) (1987), requires a

minor to notify both parents at least forty-eight hours before a

planned abortion or demonstrate to a court in an expedited con-

fidential proceeding either that she is ‘‘mature and capable of

giving informed consent’’ or that the performance of an abor-

tion without such notification would be in her ‘‘best interests.’’

The district court held that the notice/bypass statute was

unconstitutional because the two-parent notice requirement

failed to serve the state’s interest in protecting pregnant minors

or promoting family communication and that the 48-hour wait-

ing period requirement was unreasonable under conditions

existing in Minnesota. A panel of this court affirmed the judg-

ment of the district court and we granted rehearing en banc. We

now reverse and remand with directions that the district court

enter judgment that the notive/ bypass statute is constitutional.

In 1981, the Minnesota legislature enacted Minn. Stat. Ann.

§ 144.343, which deals generally with minor’s consent to treat-

ment for pregnancy, venereal disease, and alcohol and drug

abuse.’ Subd. 2 provides that no abortion may be performed

upon an unemancipated minor until at least 48 hours after writ-

ten notice to her parent” and provides the mechanics for effect-

ing notice.’ Subd. 6 provides that if the notification provision

1 Only the constitutionality of the portion of the statute dealing with

abortions for minors is at issue.

2 Subd. (2) provides:

[N]o abortion operation shall be performed upon an unemancipated

minor * * * until at least 48 hours after written notice of the pending

operation has been delivered in the manner specified in subdivisions 2

to 4.

3 Subd. (2a) provides for personal notice by the physician or his

agent. In the alternative, subd. 2(b) provides that notice may also be effected

by ‘‘certified mail addressed to the parent at the usual place of abode of the

76a

of subd. 2 is restrained by judicial order, which as we will dis-

cuss occurred here, then a pregnant minor has the choice of

either providing notice as set forth in subd. 2, or submitting to a

“court bypass’’ procedure.* Under the court bypass, a judge,

after an expedited confidential hearing, may authorize an abor-

tion without parental notice after determining ‘‘that the preg-

nant woman is mature and capable of giving informed

consent,’’ or that the performance of an abortion without noti-

fication would be in her ‘‘best interests.’’ ‘‘Parent”’ is defined

parent with return receipt requested and restricted delivery to the addressee

* * *.’’ If notice is mailed, “‘[t}ime of delivery [is] deemed to occur at 12

o’clock noon on the next day on which regular mail delivery takes place, sub-

sequent to mailing.”’

4 Subd. 6 provides:

If subdivision 2 of this law is ever temporarily or permanently restrained or

enjoined by judicial order, subdivision 2 shall be enforced as though the fol-

lowing paragraph were incorporated as paragraph (c) of that subdivision;

provided, however, that if such temporary or permanent restraining order or

injunction is ever stayed or dissolved, or otherwise ceases to have effect, sub-

division 2 shall have full force and effect, without being modified by the

addition of the fol'owing substitute paragraph which shall! have no force or

effect until or unless an injunction or restraining order is again in effect.

(chi) If such a pregnant woman elects not to allow the notification of one

or both of her parents or guardian or conservator, any judge of a court of

competent jurisdiction shall, upon petition, or motion, and after an appro-

priate hearing, authorize a physician to perform the abortion if said judge

determines that the pregnant woman is mature and capable of giving

informed consent to the proposed abortion. If said judge determines that the

pregnant woman is not mature, or if the pregnant woman does not claim to

be mature, the judge shall determine whether the performance of an abortion

upon her without notification of her parents, guardian or conservator would

be in her best interests and shall authorize a physician to perform the abor-

tion without such notification if said judge concludes that the pregnant wom-

an’s best interests would be served thereby.

(ii) Such a pregnant woman may participate in proceedings in the court on

her own behalf, and the court may appoint a guardian ad litem for her. The

court shall, however, advise her that she has a right to court appointed coun-

sel, and shall, upon her request, provide her with such counsel.

(iii) Proceedings in the court under this section shall be confidential and

shall be given such precedence over other pending matters so that the court

may reach a decision promptly and without delay so as to serve the

77a

in subd. 3 a

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