Amicus Curiae Brief — Hodgson v. Minnesota

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No. 88-1125 and 88-1309

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

JANE HODGSON, ET AL., PETITIONERS

STATE OF MINNESOTA, ET AL.

STATE OF MINNESOTA, ET AL., CROSS-PETITIONERS

VY.

JANE HODGSON, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS IN NO. 88-1125

AND SUPPORTING CROSS-PETITIONERS IN NO. 88-1309

KENNETH W. STARR

Solicitor General

STUART E. SCHIFFER

Acting Assistant Attorney General

THOMAS W. MERRILL

Deputy Solicitor General

PAUL J. LARKIN, JR.

STEPHEN J. MARZEN

Assistants to the Solicitor General

STEVEN R. VALENTINE

Deputy Assistant Attorney General

Department of Justice

Washington, D.C. 20530

(202) 633-2217

QUESTION PRESENTED

The United States will address the following question:

Whether the constitutionality of a state statute that requires

notification of both parents that their unemancipated daughter

has sought an abortion should be assessed under a standard of

review that asks whether it is reasonably designed to serve a

legitimate state interest and, if so, whether that statute is con-

stitutional.

(1)

TABLE OF CONTENTS

ek cece cncocccecece

Argument:

The Minnesota parental notification requirement

does not violate the Due Process Clause ..........

1. Abortion regulations, including parental

notification requirements, should be upheld if

they are reasonably designed to serve legiti-

mate state interests ..... 0.0... cee eee

A. Abortion regulations are subject to

heightened review under the Due Process

Clause only if they implicate a funda-

EEE EEE OCTET TET

B. No fundamental right is implicated by the

Minnesota notification requirement ... .

1. This nation’s history and traditions

do not establish that there is a funda-

mental right to an abortion ........

2. An unemancipated minor does not

have a fundamental right to an abor-

tion without her parents’ consent .. .

3. An unemancipated minor does not

have a fundamental right to an abor-

tion without her parents’ knowledge .

C. The “undue burden” analysis does not

constitute a substitute for a standard of

Ne tet eeeese

(111)

Page

Il. Parental notification requirements are reason-

ably designed to serve legitimate state inter-

GE oo ciccecaccececseceequansdseteusones 22

A. Parental notification requirements ad-

vance the legitimate state interests of in-

forming and involving parents in deci-

sions affecting the welfare of their minor

DR 4... oc ctcvetsdcccscseteesvcce: 22

B. Parental notification requirements are not

subject to judicial cost/benefit analysis . . 25

Crnmntietigy 6 ooo con ccheebbeceeseeeeeebeesscesscone 28

TABLE OF AUTHORITIES

Cases:

Agar-Ellis, In re, (1883) 24 Ch. D. 317(C.A.)...-. 15

Baldwin v. Missouri, 281 U.S. 586 (1930) ........ 21

Baliard v. Anderson, 4 Cal. 3d 873, 484 P.2d 1345,

95 Cal. Rptr. 1 (1971)... 6.6 eee eee 17

Bell v. Wolfish, 441 U.S. 520 (1979) ..... 6.6... 27

Bellotti v. Baird, 443 U.S. 622 (1979) ............ 5, 9,

18, 20, 21

Bose Corp. v. Consumers Union of United States,

Inc., 466 U.S. 485 (1984) ... 6. 0 eee 25

Bowen v. American Hosp. Ass’n, 476 U.S. 610

CBGBED oo cvcccccccescccesccocecccccesccecs: 16

Bowers v. Hardwick, 478 U.S. 186 (1986) ........ 10, 11

Califano v. Aznavorian, 439 U.S. 170 (1978) ..... 10-11

Carey v. Population Servs. Int'l, 431 U.S. 678

QDDTTD occcccccesesccececcscccescencesesese 13

City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983)... 2... 66 6 oe eee 5, 20

Cruzan v. Missouri Dep’t of Health, cert. granted,

Si, GED vccuccuasascocesc: ) 14

DeShaney v. Winnebago County Dep't of Social

Servs., 109 S. Ct. 998 (1989) ... ' 18

Cases — Continued: Page

Diane, In re, 381 A.2d 629 (Del. Ch. 1974) ....... 17

Doe v. Bolton, 410 U.S. 179 (1973) .............. 3

Ferguson v. Skrupa, 372 U.S. 726 (1963) ......... 11

Ginsberg v. New York, 390 U.S. 629 (1968) ...... 1>

H.L. v. Matheson, 450 U.S. 398 (1981) .......... 6, 9,

. 16, 22, 23

Harris v. McRae, 448 U.S. 297 (1980) .......... 9, 13, 27

Icicle Seafoods, Inc. v. Worthington, 475 U.S. 714

Ft Es a a a 25

Ingraham v. Wright, 430 U.S. 651 (1977) ........ 21

Jehovah's Witnesses v. King County Hosp., 390

U.S. 598 (1968), aff'g 278 F. Supp. 488 (W.D.

ded unwieuendvendddusbeccctaces 18

Massachusetts v. Sullivan, No. 88-1279 (ist Cir.

ER ET EES Se ee 2

Meyer v. Nebraska, 262 U.S. 390 (1923) ......... 16

Michael H. v. Gerald D., 109 S. Ct. 2233 (1989) ... 10, 11,

. 12, 13, 15-16, 17

Moore v. City of East Cleveland, 431 U.S. 494

SEE cent dite dtei nd eMiebdil nd i ccnstnewe 10, 11

Palko v. Connecticut, 302 U.S. 319 (1937) ....... 1!

Parham v. J.R., 442 U.S. 584 (1979) ...... 0.0... 15, 18

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 10, 15

Planned Parenthood v. Danforth, 428 U.S. 52

I ee he ie Se 3, 8, 14, 17, 18, 23

Planned Parenthood Ass’n v. Ashcroft, 462 U.S.

a es 5

Prince v. Massachusetts, 321 U.S. 158 (1944) ..... 16

Rhodes v. Chapman, 452 U.S. 337 (1981) ........ 27

Roe v. Wade, 410 U.S. 113 (1973) .......... 1, 2, 3, 6, 9,

11, 12, 13, 16, 18

Santosky v. Kramer, 455 U.S. 745 (1982) ......... 15

Smith, In re, 16 Md. App. 209, 295 A.2d 238

Dy ¢kccpeuaddenabnddatebaeteiaciowes ede 17

Snyder v. Massachusetts, 291 U.S. 97 (1934) ...... 17

Stanford v. Kentucky, 109 S. Ct. 2969 (1989) ...15, 16, 27

eS Ul rl ele

il - .

Cases — Continued: Page

State v. Hultgren, 295 Minn. 299, 204 N.W.2d

BOP IGTED occ cvcccccccccccccccvcescccccccss 3

Thornburgh v. American College of Obstetricians

& Gynecologists, 476 U.S. 747 (1986) .......... 14, 20

Turner v. Safley, 482 U.S. 78 (1987) ..........-.. 10, 25

Vance v. Bradley, 440 U.S. 93 (1979) ............ 26

Webster v. Reproductive Health Servs., 109 S. Ct.

SOED CIGTDD oc cvcccccccccccccccsccccccccces 1, 2, 6,

7, 11, 21, 22

Williamson v. Lee Optical Co., 348 U.S. 483

GGG occ cc vcccccesccccccnscecdvcccvcccecs 11

Wisconsin v. Yoder, 406 U.S. 205 (1972) ......... 16

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

aff'd, 484 U.S. 171 (1987)... 2.6... ee eee ee 5, 22

Constitution, statutes, and rule:

U.S. Const. Amend. XIV .............05500655 13

Due Process Clause .............6+-+-- 8, 10, 11, 26

Act of Sept. 30, 1976, Pub. L. No. 94-439, § 209,

90 Stat. 1434 (1976) (Hyde Amendment) ....... 2

Adolescent Family Life Act of 1981, 42 U.S.C.

SORE GOGTEL oc cccceneccccccccccccccccccccees 2

Public Health Service Act of 1970, Tit. 10, 42

UDI. TED GUGDE, 2 cccccccccvcccccsesscccees

1971 Minn. Laws ch. 544 .... 2.0.2.0. 6 666 eee eee 2

1981 Minn. Laws ch. 228 ..............-. akvens 3

Minn. Stat. § 617.18 (1971) (repealed 1974) ...... 3

Minn. Stat. Ann. (West 1989):

DIED cccccccccccescccecescescccecose 3

§ 144.3402) .. 2. ccc cece cece ee eececee 4

BR) Uy. errs 4,19

OB BOD DERI cc cc ccccccccccccccccccccees 3, 19, 24

SD BERD oc ccccccccccccccecvesecoveces +

Vil

Statutes, and rule — Continued:

PPL Sec cheese bcescesccccesaneve

§ 144.343(6)(cMi) .. 6... cece ee

§ 144.343(6)(c)fii)-{iv) .. eee

Pee Os OG MEE ne cccccccscccccceseescesss

Miscellaneous:

1A M. Dunnell, Minnesota Digest 2d Abortion

a i aw eeee

Hafen, Children’s Liberation and the New Egali-

tarianism: Some Reservations About Abandon-

ing Youth to Their “Rights”, 1976 B.Y.U. L.

PE 6 Sad ddnnbedddhesuseseccececdénccees

L. Hand, The Bill of Rights (1958) ..............

W. Keeton, Prosser and Keeton on The Law of

eis ve cdcteleeecoececee

L. Nolan, The Legal Status of Parent and Child

CRSA aint a ee

Note, The Minor’s Right to Abortion and the Re-

quirement of Parental Consent, 60 Va. L. Rev.

PE Pclindediehulbedadasabeceeneseces

Pilpel & Zuckerman, Abortion and the Rights of

Minors, 23 Case W. Res. L. Rev. 779 (1972) ....

Pine, Speculation and Reality: The Role of Facts

in Judicial Protection of Fundamental Rights,

136 U. Pa. L. Rev. 655 (1988) ................

Recent Development, Minors’ Rights to Medical

Care, 14 J. Fam. L. 581 (1975) ...............

U.S. Department of Commerce, Statistical

Abstract of the United States (1989) ...........

16, 20

In the Supreme Court of the Gnited States

OCTOBER TERM, 1989

No. 88-1125

JANE HODGSON, ET AL., PETITIONERS

STATE OF MINNESOTA, ET AL.

No. 88-1309

STATE OF MINNESOTA, ET AL., CROSS-PETITIONERS

Vv.

JANE HODGSON, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE EIGHTH CIRCUIT

BRIEF FOR THE UNITED STATES AS AMICUS CURIAE

SUPPORTING RESPONDENTS IN NO. 88-1125

AND SUPPORTING CROSS-PETITIONERS IN NO. 88-1309

INTEREST OF THE UNITED STATES

In Webster v. Reproductive Health Services, 109 S. Ct. 3040

(1989), the United States filed a brief as amicus curiae in which

it joined the State of Missouri in urging the Court to abandon

the framework for judicial review of abortion legislation

established in Roe v. Wade, 410 U.S. 113 (1973), and to adopt

in its place a standard of review that would ask whether such

legislation is reasonably related to the advancement of

legitimate governmental objectives. (A copy of our brief has

been provided to the parties.) The Court was deeply divided in

its response to that submission. Four Members of the Court ex-

pressed the view that Roe v. Wade and succeeding cases should

be limited or overruled, 109 S. Ct. at 3056-3058 & n.15 (plurality

(1)

opinion); id. at 3064-3067 (opinion of Scalia, J.); a fifth

Member was willing to reconsider Roe in a proper case, id. at

3061 (opinion of O’Connor, J.). In addition, although the

plurality applied a standard of review similar to that endorsed

by the United States, see id. at 3057, 3058, three dissenting

Justices disagreed with that statement of the applicable stand-

ard, id. at 3076 (Blackmun, J., concurring and dissenting), and

three other Justices authored separate opinions that did not ex-

pressly discuss the standard of review. See id. at 3058-3064

(O’Connor, J., concurring); id. at 3064-3067 (Scalia, J., concur-

ring in part and concurring in the judgment); id. at 3079-3085

(Stevens, J., concurring and dissenting). In Webster's wake,

there is now considerable uncertainty about the proper standard

of review to be applied by courts in assessing the constitutionali-

ty of abortion regulations.

The United States has a substantial interest in the resolution

of that question. Congress has previously enacted legislation

concerning avortion. See, e.g., Act of Sept. 30, 1976, Pub. L.

No. 94-439, § 209, 90 Stat. 1434 (1976) (the Hyde Amendment);

Title X of the Public Health Service Act of 1970, 42 U.S.C. 300

et seq.; the Adolescent Family Life Act of 1981, 42 U.S.C. 300z

et seq. Moreover, federal regulations implementing Title X of

the Public Health Services Act of 1970 are currently being

challenged in the lower courts on the ground that they are in-

consistent with Roe v. Wade and succeeding cases. E.g.,

Massachusetts v. Sullivan, No. 88-1279 (ist Cir. May 8, 1989)

(rehearing en banc granted). The manner in which the Court ar-

ticulates the standard of review in this case could therefore af-

fect the authority of Congress to enact legislation concerning

abortion, and could have a direct impact on the outcome of

pending constitutional challenges in the lower courts involving

the federal government.

STATEMENT

1. In 1971, Minnesota enacted an exception to the common-

law rule that required parental consent before medical treatment

could be provided to minor children. 1971 Minn. Laws ch. 544.

Section 3 of that statute authorized minors to “give effective

consent for medical, mental, and other health services to deter-

mine the presence of or to treat pregnancy and conditions

associated therewith, venereal disease, alcohol and other drug

abuse.” Minn. Stat. Ann. § 144.343 (West 1989). Because abor-

tion was at that time a crime under Minnesota law,' the

Statutory exception for pregnancy-related medical care did not

authorize minors to consent to an abortion.

On February 2, 1973, less than two weeks after this Court

decided Roe v. Wade and Doe v. Bolton, 410 U.S. 179, the Min-

nesota Supreme Court held, on authority of Roe, that the Min-

nesota abortion statute was unconstitutional in its entirety.

State v. Hodgson, 295 Minn. 294, 204 N.W.2d 199; State v.

Hultgren, 295 Minn. 299, 204 N.W.2d 197. By striking down

the Minnesota abortion statute, the Minnesota Supreme Court

in effect enabled minors to consent to abortions under the ex-

ception for pregnancy-related medical care in Minn. Stat. Ann.

§ 144.343 (West 1989).

In 1981, the Minnesota legislature amended Section 144.343

by adopting the provisions at issue in this case. 1981 Minn.

Laws ch. 228. The legislature did not attempt to require parental

consent for an abortion.” Instead, in Subdivision 2 of the 1981

amendment the legislature qualified the statutory exception to

the general parental consent requirement by directing “the

physician or an agent” to notify both parents of an uneman-

cipated minor in writing that their daughter has sought to have

an abortion. Minn. Stat. Ann. § 144.343(2) (West 1989).}

' Minn. Stat. § 617.18 (1971) (repealed 1974) contained an exception for

abortions “necessary to preserve the life of the woman or of the child.” Min-

nesota’s prohibition of abortions dated from the late 1800s. See 1A M. Dun-

nell, Minnesota Digest 2d Abortion § 2.00 (3d ed. 1982).

? In the years between 1973 and 1981, this Court had ruled that a State can-

not require parental consent in all cases before a minor can have an abortion.

Planned Parenthood v. Danforth, 428 U.S. §2, 74-75 (1976).

* Subdivision 3 requires notification of both parents only “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 woman has one.” Minn. Stat. Ann. § 144.343(3) (West

1YRY).

Notification can be delivered personally to the parents at their

residence, or by certified mail if return receipt is requested and

delivery is restricted to the parents. Jd. § 144.343(2)(a) and (b).

Performance of an abortion must be delayed “at least 48 hours”

after written notification has been delivered. Jbid. Notice is not

required in cases in which (1) the attending physician certifies

that an abortion is necessary to prevent the death of the minor

and there is insufficient time to notify her parents; (2) the abor-

tion is authorized in writing by the person(s) entitled to notice;

or (3) the minor declares that she is a victim of sexual or physical

abuse, or neglect Jd. § 144.343(4). The Act makes it a misde-

meanor and a basis for a civil action for any person to perform

an abortion without complying with its requirements. /d.

§ 144.343(5).

Subdivision 6 of the Act contains an alternative procedure to

become effective if the above requirements are held invalid or

are restrained by a court. Under the alternative procedure, a

‘minor can obtain an abortion without notifying her parents if

she can prove in court that she is sufficiently mature to make

that decision for herself or that performing an abortion without

notifying her parents is in her best interests. Minn. Stat. Ann.

§ 144.343(6)(c)(i) (West 1989). The Act specifies procedures to

be followed in making those determinations. /d.

§ 144.343(6)(c)(ii)-(iv).

2. On July 30, 1981, just two days before the Act was to go in-

to effect, petitioners filed this class action against the State in

federal district court seeking a declaraiion that the Act was un-

consitutional and an injunction against its enforcement. The

district court issued a temporary restraining order and later a

preliminary injunction enjoining the operation of the parental

notification requirement contained in Subdivision 2, but not the

alternative procedure in Subdivision 6. 88-1125 Pet. App. 14a.

Thereafter, the court granted the State partial summary judg-

ment, ruling that the alternative procedure specified in Subdivi-

sion 6 was facially constitutional. The court reserved for trial

the question whether Subdivision 6 was being applied in an un-

constitutional manner. Jd. at 146a-157a.

After a bench trial, the district court held that the statute was

unconstitutional in its entirety. 88-1125 Pet. App. 10a-52a.

Relying on Bellotti v. Baird (Bellotti Il, 443 U.S. 622, 647

(1979) (plurality opinion), the court ruled that the parental

notification requirement in Subdivision 2 “unduly burdenf{ed]” a

minor’s right to an abortion. 88-1125 Pet. App. 38a. Relying on

Bellotti 11, City of Akron v. Akron Center for Reproductive

Health, 462 U.S. 416 (1983), and Planned Parenthood Ass’n v.

Ashcroft, 462 U.S. 476 (1983), the court determined that the

alternative procedure set forth in Subdivision 6, standing alone,

wouldtonstitutional, although it also found that this procedure

did not serve the State’s interests in fostering intra-family com-

munication and protecting pregnant minors. 88-1125 Pet. App.

40a-4S5a. The court then separately considered the constitu-

tionality of the requirement in Subdivision 3 that both parents

be notified. The court held that requirement invalid, even

though Subdivision 6 permitted a minor to avoid notifying both

parents by obtaining court authorization for an abortion. /d. at

45a-47a. The court also separately examined the 48-hour

waiting period required by Subdivision 2. The court held that “a

48 hour waiting period is excessively long” because it would

compound the delays associated with making travel arrange-

ments in rural areas, and because a shorter waiting period would

serve the State’s interests “as completely.” /d. at 49a. After rul-

-ing that the two-parent notification requirement could not be

severed from the remainder of the Act, the court held the Act

invalid in its entirety and permanently enjoined the State from

enforcing it. Jd. at Sia-52a.

3. Both sides appealed. The en banc court of appeals, by a

divided vote, affirmed in part and reversed in part. 88-1125 Pet.

App. 73a-109a.* Relying on the plurality opinion in Bellotti I]

* A panel had previously affirmed the district court’s judgment in its entire-

ty. 88-1125 Pet. App. $3a-72a. The panel later vacated its judgment and held

the case in abeyance pending this Court’s decision in Zbaraz v. Hartigan, 763

F.2d 1552 (7th Cir. 1985), aff'd by an equally divided Court, 484 U.S. 171

(1987). 88-1125 Pet. App. 158a-159a. When this Court evenly divided in

Zbaraz, the full court of appeals granted rehearing en banc. Pet. App. 160a

and on the combination of concurring and dissenting opinions

in H.L. v. Matheson, 450 U.S. 398 (1981); see id. at 420

(Powell, J., concurring); id. at 434-454 (Marshall, J., dis-

senting), the court held unconstitutional the parental notifica-

tion requirement of Subdivision 2. 88-1125 Pet. App. 8la. By

contrast, the court upheld the alternative procedure set forth in

Subdivision 6, ruling that it complied with Bellotti II, Akron,

and Ashcroft. Id. at 81a-96a. The court also upheld the two-

parent notification and 48-hour waiting period requirements,

ruling that they serve legitimate state interests and do not

unduly burden a minor’s right to an abortion. /d. at 96a-97a.°

SUMMARY OF ARGUMENT

1. This Court’s decisions in the highly contested abortion area

have suggested a variety of different formulations for the ap-

plicable standard of review. Most of those decisions, starting

with Roe v. Wade itself, have proceeded on the assumption that

the regulation of abortion implicates a fundamental right, and

thus should be subject to a heightened standard of judicial

review, such as the “compelling state interest” standard applied

by Roe itself. See 410 U.S. at 155. In Webster v. Reproductive

Health Servs., however, the plurality concluded that Roe v.

Wade should be “modiffied] and narrow[ed],” 109 S. Ct. at

3058; consistent with that judgment, the plurality would have

upheld the viability testing required by the Missouri law

challenged in that case because it was “reasonably designed” to

’ The court also rejected petitioners’ equal protection challenges to the Act.

88-1125 Pet. App. 98a. Petitioners appear to have abandoned those claims in

this Court.

Judges Lay, McMillian, and Heaney dissented. Judges Lay and McMillian

concluded that the two-parent notification requirement served no purpose if a

minor’s parents were divorced or separated and the custodial parent consents

to an abortion. 88-1125 Pet. App. 99a-106a. They also concluded that the

48-hour waiting period unduly burdens a minor’s right to an abortion. /d. at

106a-108a. Judge Heaney said that the two-parent notification requirement is

unconstitutional, but a one-parent notification requirement would be valid.

Id. at 109a.

serve legitimate state interests. /bid. We believe that the Court

should adopt the standard articulated by the Webster plurality

as the applicable standard of review for all abortion regulations.

This Court’s recent decisions demonstrate that a liberty in-

terest is “fundamental” and therefore deserving of a heightened

standard of review only if our Nation’s history and traditions

have protected that interest from state restrictions. But the Na-

tion’s history and traditions do not demonstrate that there is a

fundamental right to an abortion; to the contrary, state laws

condemning or limiting abortion were common when the Four-

teenth Amendment was ratified. In particular, our Nation’s

history and traditions do not prove that an unemancipated

minor has any such right independent of her parents’ consent.

At common law, a physician could not operate on a minor pa-

tient without the parents’ consent. And before Roe and Dan-

forth, only three of the 17 States that permitted some form of

abortion exempted that procedure from the operation of the

prevalent statutory or common-law rules requiring parental

consent. Finally, even if an unemancipated minor were deemed

(under Roe and Danforth) to have a right to an abortion

regardless of her parents’ consent, any such right does not imply

a fundamental right to an abortion without her parents’ knowl-

edge. Thus, Minnesota’s parental notification statute cannot be

said to implicate a fundamental right. The appropriate standard

ef review for determining the constitutionality of that statute,

therefore, is the standard endorsed by the plurality in Webster.

2. There can be little doubt that the Minnesota parental

notification law is reasonably designed to serve a legitimate state

interest. Parental notification requirements advance the

legitimate state interests of informing and involving parents in

decisions affecting their minor child’s welfare. Given the grave

medical, emotional, and psychological consequences of the

abortion decision, the State can reasonably provide an oppor-

tunity for parental consultation in recognition of parents’ tradi-

tional concern and responsibility for their child’s upbringing.

Such consultation benefits even mature minors, and those

benefits are more secure when both parents are notified, rather

than just one. In the majority of cases, both parents will be

~ ’

responsible for their daughter’s welfare, either because they are

married and live together or because they hold custody jointly.

Even a non-custodial parent may care very deeply about his or

her daughter. Finally, because it is administratively infeasible to

restrict notification to “functional” but not “dysfunctional”

families, the State may require notification of both parents in all

families to achieve the benefits demonstrable in most.

Parental notification requirements are not subject to a

judicial cost/benefit analysis. The approach petitioners urge

camouflages as impartial truths “expert” opinions that were

unpersuasive in the legislative process. Due process does not

authorize a court to review de novo the wisdom of a state law in

the guise of assessing its factual support, its effectiveness, or its

overall merit. Due process only permits a court to ask whether a

law deprives a party of a historically protected liberty without

sufficient justification. Because this law does not do so, the

district court’s “factual” findings are immaterial.

ARGUMENT

THE MINNESOTA PARENTAL NOTIFICATION REQUIRE-

MENT DOES NOT VIOLATE THE DUE PROCESS CLAUSE

I. ABORTION REGULATIONS, INCLUDING PARENTAL

NOTIFICATION REQUIREMENTS, SHOULD BE

UPHELD IF THEY ARE REASONABLY DESIGNED TO

SERVE LEGITIMATE STATE INTERESTS

Because none of the opinions in Webster commanded a ma-

jority of the Court, there is now considerable uncertainty about

the standard of review to be applied when abortion legislation is

challenged under the Due Process Clause. That uncertainty is

compounded in the present case by the divergent formulations

of the applicable standard offered by the Court in previous

cases concerning abortion and parental rights. In its initial deci-

sion on this issue, Planned Parenthood v. Danforth, 428 U.S.

52, 74 (1976), the Court held that the fundamental right

recognized in Roe extends to unemancipated minors, and

framed the inquiry in terms of whether a requirement of paren-

tal consent would permit a “veto” of that right. Three years

later, in Bellotti II, a plurality of four Justices reaffirmed Dan-

forth, but appeared to formulate the question before the Court

in terms of whether a provision for parental notice and consent

would “unduly burden the right to seek an abortion.” 443 U.S.

at 640. And in H.L. v. Matheson, a different plurality sent con-

flicting signals about the proper standard. On the one hand, the

plurality, using language reminiscent of Roe v. Wade, see 410

U.S. at 155, stated that a parental notification statute would be

upheld if “narrowly drawn” to serve “important state interests.”

450 U.S. at 413. But the Matheson plurality also quoted

language from Harris v. McRae, 448 U.S. 297, 325 (1980), to

the effect that such a measure would be upheld if “rationally

related to the legitimate governmental objective of protecting

potential life” — suggesting a more relaxed standard of review.

450 U.S. at 413.

The parties to this case devote relatively little attention to the

standard of review, but they, too, disagree about what it should

be. Petitioners appear to endorse a variation on one of the

standards suggested by the Matheson plurality, stating that

parental notification laws “must ‘plainly serve[] important state

interests [and be] narrowly drawn to protect only those in-

terests.”” Pet. Br. 28-29 (quoting Matheson, 450 U.S. at 413).

Petitioners do not, however, consider what impact Webster may

have had on this standard. The State cross-petitioners briefly

discuss the significance of Webster, and attempt to synthesize a

multi-tiered standard of review based on the various opinions in

that case. They conclude that although an “outright

prohibition” of abortion is subject to strict scrutiny and may be

sustained only upon the showing of a “compelling state

interest,” when a state statute “imposes some burden short of

virtual prohibition or severe limitation it should be upheld if it

rationally furthers legitimate public purposes.” Cross-Pet. Br.

24. Thus, the cross-petitioners appear to endorse a standard of

review similar to that applied by the Webster plurality, at least

with respect to the issues presented by this case.

The question of the correct standard of review in abortion

cases is manifestly in need of clarification by this Court if lower

courts, litigants, and legislative bodies are to have adequate

guidance in this difficult and contentious area. For the reasons

set forth below, we believe that the standard articulated by the

Webster plurality — which asks whether an abortion regulation

is reasonably designed to serve a legitimate state interest — states

the correct standard and should be applied both to questions in-

volving parental authority and to abortion regulations general-

ly.

A. Abortion Regulations Are Subject To Heightened Review

Under The Due Process Clause Only If They implicate A Fun-

damental Right

The Due Process Clause, by its terms, is primarily concerned

with ensuring that interests in life, liberty, and property are af-

forded the “process” to which they are due. In addition,

however, this Court’s decisions establish that the Clause pro-

vides a measure of substantive protection to certain liberty in-

terests. Turner v. Safley, 482 U.S. 78, 94-99 (1987); Moore v.

City of East Cleveland, 431 U.S. 494 (1977); Pierce v. Society of

Sisters, 268 U.S. 510 (1925). The Court has been justifiably

cautious in identifying such rights, recognizing that once it ven-

tures beyond the “core textual meaning” of liberty as freedom

from bodily restraints, the imputation of substantive content to

the concept of liberty is necessarily a “ ‘treacherous’ ” under-

taking. Michael H. v. Gerald D., 109 S. Ct. 2333, 2341 (1989)

(plurality opinion). As stated in Bowers v. Hardwick, 478 U.S.

186, 194 (1986), the Court “is most vulnerable and comes

nearest to illegitimacy when it deals with judge-made constitu-

tional law having little or no cognizable roots in the language or

design of the Constitution.”

The general standard of review in assessing substantive due

process claims is highly deferential to legislative judgments. As

a rule, a state (or federal) statute that trenches upon a liberty in-

terest will be upheld so long as it is rationally related to a

legitimate state interest. See, e.2g., Califano v. Aznavorian, 439

U.S. 170, 176-178 (1978); Ferguson v. Skrupa, 372 U.S. 726

(1963); Williamson v. Lee Optical Co., 348 U.S. 483, 488

(1955). In certain narrow areas, however, the Court has gone

further, and has held that particular liberty interests are subject

to a more exacting standard of review. The critical determina-

tion in finding that a liberty interest will be afforded this

heightened protection is the conclusion that it constitutes a

“fundamental” right. Michael H., 109 S. Ct. at 2341 (plurality

opinion). Thus, the applicable standard of review in substantive

due process cases is primarily a function of the method

employed by the Court for identifying those rights that are

deemed to be constitutionally fundamental.

In recent decisions, the Court has consistently stated that a

right will be regarded as fundamental if it is “implicit in the con-

cept of ordered liberty,” Palko v. Connecticut, 302 U.S. 319,

325 (1937), or “deeply rooted in this Nation’s history and tradi-

tion,” Moore, 431 U.S. at 503 (plurality opinion). See Bowers,

478 U.S. at 192-194. Under either rubric, the applicable

methodology is historical. Michael H., 109 S. Ct. at 2342-2343

(plurality opinion); Moore, 431 U.S. at 504 n.12 (plurality

opinion); Bowers, 478 U.S. at 192-194; Palko, 302 U.S. at 325.

By limiting the scope of “fundamental rights” to those liberties

historically regarded as essential to our Nation, the Court has

sought, in the words of the Michael H. plurality, both to “pre-

vent future generations from lightly casting aside important

- traditional values,” and yet also to assure that the Due Process

Clause does not become a judicial license “to invent new ones.”

Id. at 2341 n.2. See Moore, 431 U.S. at 504 n.12 (plurality

opinion).

B. No Fundamental Right Is Implicated By The Minnesota

Notification Requirement

Petitioners’ claim that Minnesota’s parental notification

statute should be reviewed under heightened scrutiny rests on

the assumption that the state law implicates a fundamental

right. At bottom, of course, the fundamental right on which

they rely is the right to abortion identified in Roe v. Wade. For

the reasons discussed below and set forth more fully in our brief

in Webster v. Reproductive Health Servs., we continue to

believe that Roe was wrongly decided and should be overruled.

But regardless of Roe’s continuing vitality, petitioners’ argu-

ment in support of heightened scrutiny necessarily rests on two

further premises: that the parents of an unemancipated minor

may not exercise a “veto” over her decision to have an abor-

tion—the holding of Danforth—and that the parents of an

unemancipated minor are not even entitled to notice that she

has sought an abortion. In our view, none of the three assump-

tions on which petitioners’ case for heightened scrutiny is built is

tenable: there is, in view of the Nation’s history and traditions,

no fundamental right to abortion; there is no fundamental right

of a minor to an abortion without parental consent; and there is

no fundamental right of a minor to an abortion without paren-

tal knowledge. If any of these three claims of fundamental right

is rejected by the Court, and each should be, then the statute at

issue must be upheld as long as it reasonably advances a

legitimate state interest.

1. This Nation’s History And Traditions Do Not Establish A Fun-

damental Right To An Abortion

If abortion is not a fundamental right, there is no appropriate

basis for subjecting the Minnesota statute in this case to

heightened scrutiny. As we explained more fully in our brief in

Webster, there is simply no credible foundation for the proposi-

tion that abortion is a fundamental right. This conclusion

follows whether the inquiry is framed broadly, in terms of a

right to “privacy” or a right to “reproductive choice,” or narrow-

ly, in terms of a right to abortion. Compare Michael H., 109 S

Ct. at 2344-2345 n.6 (opinion of Scalia, J.), with id at

2346-2347 (O’Connor, J., concurring in part).

Roe discovered a fundamental right to abomion by generaliz-

ing broadly from previous decisions, which it characterized as

recognizing a “guarantee of personal privacy.” 410 U.S. at 152.

Those decisions, the Court said, “make it clear that the right has

some extension to activities relating to marriage, Loving v.

Virginia, 388 U.S. 1, 12 (1967); procreation, Skinner v.

Oklahoma, 316 U.S. 535, 541-542 (1942); contraception,

Eisenstadt v. Baird, 405 U.S., at 453-454, id., at 460, 463-465

(White, J., concurring in result); family relationships, Prince v.

Massachusetts, 321 U.S. 158, 166 (1944); and child rearing and

education, Pierce v. Society of Sisters, 268 U.S. 510, 535 (1925);

Meyer v. Nebraska, (262 U.S. 390 (1923)}.” 410 U.S. at 152-153.

The Court then concluded that “[t}his right of privacy * * * is

broad enough to encompass a woman’s decision whether or not

to terminate her pregnancy.” Jd. at 153.

If we look more specifically at the historical record regarding

abortion, however, it cannot seriously be maintained that abor-

tion is a right so deeply rooted in our history and traditions that

it can be ranked as fundamental. To the contrary, state laws

condemning or limiting abortion were common when the Four- —

teenth Amendment was ratified. In 1868, at least 36 state or ter-

ritorial laws limited abortion, and 21 of those laws were in effect ~

in 1973. Roe, 410 U.S. at 174-176 & n.1 (Rehnquist, J., dissen-

ting).* Plainly, our history does not “exclude * * * a societal

tradition of enacting laws denying that interest.” Michael H.,

109 S. Ct. at 2341 n.2 (plurality opinion). In fact, the historical

record in favor of the liberty in question here is no stronger than

it was in Michael H. or Bowers, where the Court found no war-

rant in the common-law tradition for identifying a fundamental

right to visitation privileges for adulterous fathers, or a fun-

damental right to engage in homosexual sodomy.

Moreover, even if the decisions relied upon by Roe may be

- Said to establish a “right of privacy” — or a right “whether to ac-

complish or prevent conception,” Carey v. Population Servs.

Int'l, 431 U.S. 678, 685 (1977) —iit does not follow that this right

extends to the decision to have an abortion. A decision not to

conceive does not entail the deliberate destruction of fetal life; a

decision to abort manifestivdoes. Harris v. McRae, 448 U.S. at

325; Carey, 431 U.S. at G9). The State’s interest in protecting

fetal life throughout pregmamey thus provides an entirely ade-

quate basis for limiting amy right of privacy or procreative

choice to the decision mot to conceive. Here again, the

* The abortion of a fevus after “quickening” was regarded as a crime at com-

mon law. Roe, 410 U.S. at 192-136. The earliest English abortion statute,

adopted in 1803, made abortion a crime throughout pregnancy. /d. at 136.

interest in protecting fetal life is at least as compelling as the in-

terest in promoting family autonomy (at issue in Michael H.) or

_ the interest in condemning homosexual conduct as immoral (at

issue in Bowers) — both of which were found by the Court to be

sufficient to defeat any claim that a generalized right to privacy

should be extended to those cases. See Thornburgh v. American

College of Obstetricians & Gynecologists, 476 U.S. 747, 792-793

& n.2 (1986) (White, J., dissenting); id. at 828 (O’Connor, J.,

dissenting). In short, whether viewed in terms of a general right

of privacy or reproductive choice, or more narrowly i terms of

abortion itself, it cannot reasonably be said that the right to

abortion is fundamental.’

2. An Unemancipated Minor Does Not Have A Fundamental

Right To An Abortion Without Her Parents’ Consent

Even were the Court not to revisit the underlying question

whether there is a fundamental right to an abortion, it may wish

to reconsider the next step in petitioners’ argument for height-

ened scrutiny. This Court held in Danforth that an uneman-

cipated minor has a fundamental right to abortion that may not

be qualified by “an absolute, and possibly arbitrary, veto” by

her parents. 428 U.S. at 74. If that conclusion was in er-

ror —that is, if the State can constitutionally require that parents

must give their consent to a minor’s abortion — then there can be

no claim that an unemancipated minor has a fundamental right

to avoid notice to her parents that she has sought an abortion.

Notice is indisputably a less intrusive form of parental involve-

ment than consent, which necessarily entails notice.

1. Our history and traditions provide no support for the no-

tion that a minor has a fundamental right to an abortion

without her parents’ consent. That conclusion follows, regard-

less of the level of specificity at which this inquiry is made.

’ By contrast, a state law mandating abortions would present a starkly dif-

ferent question. See Cruzan v. Missouri Dep't. of Health, cert. granted. No.

88-1503 (to be argued Dec. 6, 1989). Our Nation's history and traditions

establish that a competent adult may generally refuse unwanted medical intru-

sions. This right would, we believe, extend to an unwanted abortion

At the most general level, there can be no doubt that our legal

traditions recognize the right of parents to control their

childrens’ upbringing. Anglo-American law has “historically

* * * recognized that natural bonds of affection lead parents to

act in the best interests of their children.” Parham v. J.R., 442

U.S. 584, 602 (1979); id. at 621 (Stewart, J., concurring in the

judgment) (collecting authorities). See Hafen, Children’s

Liberation and the New Egalitarianism: Some Reservations

About Abandoning Youth to Their “Rights”, 1976 B.Y.U. L.

Rev. 605, 615-619. Accordingly, common law courts were ex-

tremely reluctant to interfere in the parent-child relationship as

long as the parents did not treat their children cruelly or im-

morally. See, e.g., In re Agar-Ellis, [1883] 24 Ch. D. 317(C.A.);

Recent Development, Minors’ Rights to Medical Care, 14 J.

Fam. L. 581, 581-583 (1975). This strong tradition of parental

control continues today. Every State limits the participation of

minors in a substantial number of activities in which adults may

engage, such as marriage, voting, or driving a car. Such restric-

tions “reflect[] the simple truth derived from our communal ex-

perience, that juveniles as a class have not the level of matura-

tion and responsibility that we presume in adults and consider

desirable for full participation in the rights and duties of

modern life.” Stanford v. Kentucky, 109 S. Ct. 2969, 2988

(1989) (Brennan, J., dissenting).

- This Court’s decisions, rendered in a variety of constitutional

contexts, reflect the same understanding. The Court has long

recognized that “the parents’ claim to authority in their own

household to direct the rearing of their children is basic in the

structure of our society.” Ginsberg y. New York, 390 U.S. 629,

639 (1968). “The child is not the mere creature of the State;

those who nurture him and direct his destiny have the right,

coupled with the high duty, to recognize and prepare him for

additional obligations.” Pierce, 268 U.S. at 535. Consequently,

this Court has repeatedly acknowledged that “a natural parent’s

‘desire for and right to “the companionship, care, custody, and

management of his or her children” ’” is itself a significant

liberty interest. Santosky v. Kramer, 455 U.S. 745, 758-759

(1982) (citations omitted);. see also, e.g., Michael H., 109S. Ct.

at 2342 (plurality opinion); Matheson, 450 U.S. at 410; Wiscon-

sin v. Yoder, 406 U.S. 205, 231-233 (1972); Prince v.

Massachusetts, 321 U.S. 158, 166 (1944); Meyer v. Nebraska,

262 U.S. 390, 399-401 (1923). Indeed, if there is a fundamental

right implicated by this case, this Court’s decisions suggest it is

the right of parents to direct the upbringing of their children,

not the right of children to evade parental control.

The conclusion drawn from the general historical under-

standing of parent-child relations is reinforced by more specific

consideration of the traditions regarding the provision of

medical treatment to children. The rule at common law was that

a physician could not treat a minor without parental consent.

W. Keeton, Prosser and Keeton on The Law of Torts ch. 4,

§ 18, at 115 (Sth ed. 1984). Over time, common law courts

developed limited exceptions to this rule for emergencies, eman-

cipated minors, relatively safe operations for mature minors,

and necessary lifesaving treatment. Jd. at 114-118; L. Nolan,

The Legal Status of Parent and Child 1986, at 161-172 (1987).

But all jurisdictions today still follow the common-law rule

unless it has been modified by case law or statute. L. Nolan,

supra, at 161. See Stanford, 109 S. Ct. at 2988 (Brennan, J.,

dissenting) (37 States by statute fix 18 as the age of consent for

medical treatment); Bowen v. American Hosp. Ass’n, 476 U.S.

610, 627-628 & n.13 (1986) (plurality opinion) (summarizing

current law).

Even when we consider history and tradition at the most

specific level—and ask whether a minor was generally recog-

nized to have a right to an abortion without parental con-

sent—the answer is the same: there was no such generally

recognized right. Specifically, in those States that had legalized

abortion to some extent prior to this Court’s decision in Roe v.

Wade, the general rule was that parental consent was required

before the operation could be performed on an unemancipated

minor. Of the 17 States that permitted some form of abortion in

1971, eight had laws expressly requiring minors to obtain paren-

tal consent, and six continued to apply the common-law rule of

parental consent. Pilpel & Zuckerman, Abortion and the Rights

of Minors, 23 Case W. Res. L. Rev. 779, 783-785 (1972). Oniy

three state courts had construed state laws allowing minors to

consent to pregnancy-related medical care to permit a minor to

obtain an abortion without parental consent. Ballard v. Ander-

son, 4 Cat..3d 873, 484 P.2d 1345, 95 Cal. Rptr. 1 (1971); Jn re

Diane, 318 A.2d 629 (Del. Ch. 1974). See Jn re Smith, 16 Md.

App. 209, 225, 295 A.2d 238, 246 (1972) (a minor may refuse to

have an abortion over parent’s objection). See also Note, The

Minor’s Right to Abortion and the Requirement of Parental

Consent, 60 Va. L. Rev. 305, 305 (1974).

Thus, whether considered at the most general level of parent-

child relations, or at the most specific level of a minor’s right to

have an abortion without her parents’ consent, the historical

record speaks with a single, powerful voice. Against this

background, it simply cannot be said that a minor’s right to

have an abortion without her parent*’ sonsent is so “rooted in

the traditions and conscience of our people” as to be deemed

fundamental. Michael H., 109 S. Ct. at 2341 (plurality opinion).

To the contrary, the conscience of the American people, as em-

bodied in law, Snyder v. Massachusetts, 291 U.S. 97, 122 (1934)

(Cardozo, J.), stands unmistakably for the proposition that

unemancipated minor children are not free to make such pro-

foundly important decisions without the involvement of their

parents.

2. Nor does the reasoning of Danforth, as amplified by

Bellotti I, support the notion that a minor has a fundamental

right to an abortion without obtaining her parents’ consent.

Starting with the premise that the State cannot (subject to cer-

tain qualifications) veto an adult’s decision to have an abor-

tion—the holding of Roe— Danforth held that a State cannot

allow parents to veto their unemancipated daughter’s decision

to have an abortion. 428 U.S. at 74. But that conclusion does

not follow from the premise. While a State cannot ordinarily

veto an adult’s decision to obtain (or forgo) medical care, a

State can give a minor’s parents the right to select medical care

for their child. Thus, even if the decision whether to have an

abortion is ultimately only a medical decision (as Roe treated it,

410 U.S. at 156-162), the State should be free to leave the deci-

sion to a minor’s parents, just as the State leaves all other

medical decisions to them.®

Danforth also reasoned that a parental consent requirement

was unlikely to promote family unity and parental authority

when a minor’s pregnancy “already has fractured the family

structure.” 428 U.S. at 75. The Bellotti I] plurality elaborated

on this point, stating that the question of whether a minor

should have an abortion is fraught with “grave and indelible”

consequences, and that the parent’s decision may be “arbitrary.”

443 U.S. at 642-643.

The issue, however, is not whether a minor’s unwanted

pregnancy is a stressful event having lasting consequences both

for her and her family; it surely is. And the question & is not

whether certain parents will exercise poor judgment in deciding

what is in the best interests of their daughter; they surely will.

‘ Rather, the issue is whether a State may reasonably conclude

that a minor’s parents are, as a general matter, better suited to

make these critical decisions than a min r and her physician, or

a minor and her physician in conjunction with a judge. There is

no legal presumption that parents will not aci in the best in-

terests of their child; to the contrary, the presumption lies in

precisely the other direction. Parham, 442 U.S. at 602. And

unless the minor’s life is at risk, her pregnancy is the result of in-

cest, or she is the victim of parental abuse, there is no objective

standard by which to determine whether the parents’ decision is

“arbitrary.” The pregnant minor is confronted with choices that

implicate the most basic values—not just about the minor’s

future options, but also about the morality of abortion itself. It

strains credulity to think that these matters are more properly

resolved by the minor and persons who, in all probability, are

* To be sure, a State can intervene in the parent-child relationship, for ex-

ample, to supply a child with life-saving medical care. Jehovah's Witnesses v.

King County Hosp., 390 U.S. 598 (1968), summarily aff 278 F. Supp. 488

(W.D. Wash. 1967). But just as due process does not require the State to in-

tervene even in that setting in order to protect a minor from her parents,

DeShaney v. Winnebago County Dep't of Social Servs., 109 S. Ct. 998 (1989),

due process should not compel a State to allow a physician to intervene either.

Strangers she will never meet again, than by the minor in con-

sultation with those who have a lifetime commitment to her

care, nurturing, and upbringing.

3. An Unemancipated Minor Does Not Have A Fundamental

Right To An Abortion Without Her Parents’ Knowledge

Pretermitting the two foregoing questions — whether there is a

fundamental right to an abortion and whether there is a fun-

damental right on the part of minors to an abortion without

parental consent —petitioners still must show that the fun-

damental right recognized in Roe and Danforth extends to a

provision requiring only that parents be given notice of their

minor daughter’s request for an abortion. Parental notification

differs in obvious respects from parental consent. Notification

laws like Minnesota’s do not empower parents to “veto” their

child’s decision; at most they postpone that decision for a brief

period in order to allow parents to discuss that decision with

their child.® In fact, a parental notification requirement does no

more than preserve for parents the opportunity they have tradi-

tionally enjoyed to discuss with their daughter significant deci-

sions that arise during her minority, and to be aware of impor-

tant actions taken by third parties toward her.

There is utterly no support for the proposition that a minor

has a fundamental right to keep her parents in the dark about

her welfare. The historical materials surveyed above concerning

the right of parents to control the upbringing of their children

and their right to select the medical procedures performed on

* The Minnesota statute clearly differs from the laws held invalid in Akron,

Bellowti 1, and Danforth. \t requires that written notification be personally

delivered to the parents, Minn. Stat. Ann. § 144.343(2) (West 1989), but there

is nO requirement that the parents (or anyone else) provide written evidence

that such notice was given. The attending physician or his clinic can send the

notice by mail, id. § 144.343(2)(b), and the 48-hour waiting period can run

while the abortion is being scheduled, 88-1125 Pet. App. 97a n.18. Only one

parent need be notified if the other parent cannot be located by reasonably

diligent effort. Minn. Stat. Ann. § 144.343(3) (West 1989). It is an affirmative

defense that a person attempted with reasonable diligence to deliver notice,

but was unable to do so. /d. § 144.343(5). None of these provisions is similar

tO a parental veto.

their children —including abortion —conclusively .efute the no-

tion that a child has a fundamental right to conceal important

facts about her physical condition and well-being from her

parents.'® In the final analysis, petitioners’ objection to notify-

ing parents—i.e., that disclosure of their minor daughter’s

pregnancy and desire for an abortion will disrupt everyone’s life

without any attendant benefit—supports concealing the

pregnancy from the parents even after their daughter has had an

abortion. But there is no support in this Court’s cases or com-

mon sense for the remarkable principle that a minor has a fun-

damental right to keep her parents in ignorance about her

welfare. What petitioners’ argument ultimately reveals is how

far afield their claim is from the history and traditions of this

Nation, and from what due process can be said legitimately to

protect.

C. The “Undue Burden” Analysis Does Not Constitute A

Substitute For A Standard of Review

In Bellotti II, the plurality analyzed the parental consent pro-

visions at issue in that case not in terms of a conventional stand-

ard of review, but rather in terms of whether the statute would

“unduly burden the right to seek an abortion.” 443 U.S. at 640.

Similarly, Justice O’Connor, in her dissenting opinions in City

of Akron v. Akron Center for Reproductive Health, 462 U.S. at

452-475, and Thornburgh v. American College of Obstetricians

& Gynecologists, 476 U.S. at 827-833, examined a variety of

abortion restrictions under an “undue burden” analysis. Indeed,

the United States, in an amicus brief filed in Akron, also urged

the Court to adopt an “undue burden” approach.

Although we believe that there is a limited role for an “undue

burden” analysis in constitutional adjudication, we do not

believe, upon full reflection, that the “undue burden” inquiry

enacted laws increasing a minor’s right to consent to medical care. See general-

ly L. Nolan, supra, Apps. A-F, at 442-461. Abortion, however, is not among

those medical procedures.

can legitimately substitute for a standard of review. The basic

problem is revealed within the very formulation of the Bellotti I]

plurality: the question is whether a statute will “unduly burden

the right to seek an abortion.” 443 U.S. at 640 (emphasis

added). In other words, undue burden analysis presupposes that

there is a fundamental right potentially implicated by the regula-

tion at issue; the analysis cannot assist in distinguishing between

fundamental rights and other liberty interests. Thus, unless we

are to embrace the assumption that any regulation touching

upon the question of abortion necessarily implicates a fun-

damental right, the undue burden analysis begs the question at

issue: whether there is a fundamental right at stake that requires

application of heightened scrutiny.

The “undue burden” analysis suffers from an additional infir-

mity when coupled with a judicially created, highly abstract, or

generalized right — such as the “right to privacy” or the “right to

abortion.” In such a context, asking whether a particular

measure unduly burdens the right provides no meaningful

guidelines for assessing the weigit of the competing interests, or

for determining how much deference to give to legislative

judgments. The only measure of constitutionality would be the

courts’ own subjective assessment of what is “due” or “undue”

in any particular context. In these circumstances, the undue

burden analysis would offer “no guide but the Court’s own

discretion,” Baldwin v. Missouri, 281 U.S. 586, 595 (1930)

(Holmes, J., dissenting); see Webster, 109 S. Ct 3066 n.*

(Scalia, J., concurring in part and concurring in the judgment),

and would serve only to mask judgments made on the basis of

assumptions that would remain unarticulated. In our view,

great caution should be exercised in resolving important con-

stitutional controversies under the “undue burden” mantle.'!

'' This is not to say that the “undue burden” approach may not play a pro-

per role in cases where the relevant universe of constitutional rights is fully

specified and well defined. In those circumstances, we believe that the “undue

burden” inquiry would operate in a fashion analogous to the principle

reflected in the maxim de minimis non curat lex —that minor or de minimis in-

cursions upon settled rights do not call for judicial redress. See Ingraham v.

Wright, 430 U.S. 651, 674 (1977).

ll. PARENTAL NOTIFICATION REQUIREMENTS ARE

REASONABLY DESIGNED TO SERVE LEGITIMATE

STATE INTERESTS

Because Minnesota’s parental notification statute does not

implicate any fundamental right, it should be assessed under the

standard of review formulated by the Webster plurality. As

previously noted, that standard asks whether a particular

regulation is “reasonably designed” to serve a legitimate state in-

terest. 109S. Ct. at 3058. There can be little doubt that the Min-

nesota statute readily passes muster under this standard.

A. Parental Notification Requirements Advance The Legitimate

State Interests Of Informing And Involving Parents In Deci-

sions Affecting The Welfare Of Their Minor Children

The State unquestionably has a legitimate interest in inform-

ing and involving parents in decisions affecting the welfare of

their minor children. See Matheson, supra. This interest clearly

extends to the decision whether to have an abortion. “The

medical, emotional, and psychological consequences of an

abortion are serious and can be lasting; this is particularly so

when the patient is immature.” Matheson, 450 U.S. at 411. And

a parental notification requirement, in association with a

reasonable waiting period, furthers these legitimate interests.

Such laws postpone a minor’s decision for a brief period to

allow her parents to discuss with her what is likely to be the most

important and irrevocable decision of her minority life. A State

thus has a significant interest in promulgating a parental notice

requirement in order to ensure that a minor will not act im-

providently, and to preserve her parents’ traditional respon-

sibility for her nurturing and upbringing. Matheson, 450 U.S. at

409-413; id. at 421-425 (Stevens, J., concurring in the

judgment); Zbaraz v. Hartigan, 763 F.2d 1532, 1548-1557 (7th

Cir. 1985) (Coffey, J., dissenting), aff'd by an equally divided

Court, 484 U.S. 171 (1987).

The foregoing considerations apply whether or not the minor

is determined to be “mature” (i.e., able to give informed con-

sent). The abortion decision “is an important, and often a

stressful one, and it is desirable and imperative that it be made

with full knowledge of its nature and consequences.” Danforth,

428 U.S. at 67. A minor’s parents can counsel their daughter

about the moral and psychological consequences of her deci-

sion, and thereby assist her to make an informed judgment.

Parents can also help their daughter select a competent physi-

cian, and can supply the physician with necessary medical and

psychological information, some of which their child may not

know. In addition, parents can provide emotional support both

before and after the procedure, and ensure that their child

receives any necessary post-operative care. Matheson, 450 U.S.

at 411; Zbaraz, 763 F.2d at 1549-1551 (Coffey, J., dissenting).

For these reasons, a State may reasonably conclude that parents’

awareness of their daughter’s pregnancy and consultation about

the options available to her will improve the quality of her deci-

sion, even if she is mature. And if she is not, we believe that few

would genuinely argue that her parents should not be informed

about, and involved in, the decision whether she is to have an

abortion. It is well to remember that thousands of minors below

the age of fifteen have abortions every year; they should net

have to face this profoundly important decision alone.'?

A State may also reasonably conclude that a hearing before a

judge is not an acceptable substitute for notification of the

minor’s parents. First, the respective roles of judge and parents

are manifestly different. The judge is charged with determining

either that the pregnant minor is mature or that an abortion is

nonetheless in her best interests. In contrast, the parents’ re-

sponsibility is the overall welfare of their daughter, which encom-

passes advice on a wide range of considerations bearing on her

decision. Second, the background and interest of the judge and

'? According to statistics supplied by the Alan Guttmacher Institute, whose

Director of Research testified for plaintiffs as an expert on the Institute's

statistics, J.A. 97, approximately 16,000 women less than fifteen years old had

abortions in the United States in 1983. U.S. Department of Commerce,

Statistical Abstract of the United States 70 (1989).

the parents are by no means identical. The judge has probably

never seen the minor before, will likely never see her again, and

his duty lies in discharging his statutory obligations. In contrast,

a minor’s parents, in the typical situation, will have known and

cared for their daughter from her birth, and they will be deeply,

lovingly concerned about her well-being. Third, the nature of

the judicial proceeding prevents judges from acting as surrogate

parents. Hearings are secret (to protect anonymity), abbreviated

(to minimize delay), and ex parte. Even under the best of cir-

cumstances and with the best of intentions, a judge would find

it enormously difficult to do anything more than make an

educated guess about whether a minor is mature or whether an

abortion is in her best interests."

It is also reasonable for Minnesota to insist that both parents

be notified where possible. If both parents are married and live

together, a two-parent notification rule is no more burdensome

than a one-parent notification rule. If the parents are separated |

or divorced but hold custody jointly, both parents will be

responsible for their daughter’s welfare and will be interested in

her decision. Even if only one parent has custody, the non-

custodial parent may well have strong emotional bonds with his

or her daughter (and vice versa), and notifying the noncustodial

parent may help preserve those ties. Morcover, notifying both

parents may help to ensure that the attending physician will

receive important medical information. On the other hand, it

would be administratively infeasible to notify both parents in

“functional” families but not in “dysfunctional” families, at

least without establishing an expensive and cumbersome (and

highly intrusive) threshold judicial proceeding to distinguish be-

tween the two. In lieu of that unwieldy process, Minnesota was

entitled to require notification of both parents in all families

where both parents can be located “through reasonably diligent

effort.” Minn. Stat. Ann. § 144.343(3) (West 1989).

'? The chance that a judge will guess correctly is greatly reduced if he

believes that his job is “ ‘a routine clerical function on my part, like putting my

seal and stamp on it.’ ” Pet. App. 25a (quoting a judge). Moreover, any advice

volunteered by the professional staff of an abortion clinic will be limited for

similar reasons of role, background, and setting. Peer counseling is even less

reliable.

B. Parental Notification Requirements Are Not Subject To

Judicial Cost/Benefit Analysis

The district court “f[ouJnd{] 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.” 88-1125 Pet. App. 42a. That factual finding, if that is

what it is,'* does not contradict the conclusion that parental

notification is reasonably designed to advance legitimate state

interests. Nor does the district court’s “finding” demonstrate

that Minnesota’s parental notification law is unconstitutional as

applied to petitioners. To the contrary, the facts establish that

parental notification is valid in the case of the vast majority of

unemancipated Minnesota minors. '*

'* The district court’s conclusion, like many of the court's other “findings,”

is not a “fact” in the sense used by Fed. R. Civ. P. 52(a) to identify determina-

tions to which an appellate court must defer. Under that rule, only the

evidence and legitimate inferences therefrom are reviewed under the clearly er-

roneous standard; everything else is subject to de novo review. See Icicle

Seafoods, Inc. v. Worthington, 475 U.S. 714, 715 (1985); Bose Corp. v. Con-

sumers Union of United States, Inc., 466 U.S. 485, 511 (1984). Because the

district court's conclusion presupposes application of the correct legal stand-

ard to the evidence, it is a mixed finding of law and fact to which Rule $2(a) in-

dicates no special deference is owed. See Bose Corp., 466 U.S. at 501; Turner,

482 U.S. at 93-94 n.*.

'? As the court of appeals pointed out, the district court’s conclusion that

parental notification imposed an undue burden on pregnant minors rested

“primarily on its factual findings regarding the burden imposed on minors ir.

family units that have either ‘broken apart or never formed.’ ” 88-1125 Fet.

App. 92a-93a. These findings in turn were based on “somewhat limited factual

findings” predicated on “the minor living in a one-parent household who

notified only her custodial parent.” /d. at 93a n.16. Accepting the district

court's factual findings for all they are worth— namely, that involvement of

the non-custodial parent introduces either a “traumatic distraction” or

“disruptive and unhelpful participation” and that these events are “not uncom-

mon,” id. at 22a; see id. at 30a-31a—those findings still say nothing about the

58% of Minnesota minors who live with both parents, id. at 29a, as well as

those minors whose parents naturally take an interest in their welfare even

though they are living apart.

The district court’s unprecedented inquiry represents, ac-

cording to one of petitioners’ counsel, a new mode of fact-based

“across-the-board constitutional challenge” dubbed an “opera-

tional challenge.” Pine, Speculation and Reality: The Role of

Facts in Judicial Protection of Fundareental Rights, 136 U. Pa.

L. Rev. 655, 703 (1988). Under this piovocative approach,

courts are entitled to weigh for themselves the costs and benefits

of legislation. Properly understood, this mode of attack has

nothing to do with abortion, or even adjudication of claims in-

volving fundamental constitutional rights. Because all legisla-

tion must (if challenged) pass muster under the Due Process

Clause, this methodology puts every legislative enactment on

trial at least to determine whether it is rational. That novel ap-

proach, employed by the district court and urged by petitioners,

is misguided both in conception and execution.

To begin with, that approach fails to recognize that legisla-

tion is a product of a complex collective judgment by a

representative body about the desirability or morality of a

specific goal, the social utility of different ways to achieve it,

and the trade-offs necessary to enact it. There is no scientifically

correct answer to any of these questions, and the Constitution

does not demand the impossible — that a legislative judgment be

error-proof. To the contrary, the Constitution assumes, absent

some reason to presume antipathy, that improvident decisions

will be rectified by the democratic process. Cf. Vance v.

Bradley, 440 U.S. 93, 97 (1979).

Indeed, petitioners’ approach rests on a pervasive confusion

of “facts” and legitimate legislative value judgments. The “fac-

tual” inquiry pursued by the district court — whethet a parental

notification requirement, on balance, benefits or harms minors

and their parents—touches matters so subjective, value-laden,

and contestable that it is almost meaningless to inquire as to

their truth or falsity. Indeed, it transforms the judicial process

into that of a super-legislature acting outside the constraints of

the democratic process.'® It is ultimately an assault on the right

petitioners’ evidence—can confirm or disprove the hypothesis that, as a

of the people, subject to constitutional constraints, to govern

themselves. When a law is based on normative, not empirical,

grounds, the adducing of “expert” opinions merely camouflages

personal value judgments as impartial truths. Cf. L. Hand, The

Bill of Rights 38 (1958). For that reason, the Court has con-

sistently held that constitutional law does not rest on the

opinions of experts. Stanford v. Kentucky, 109 S. Ct. at

2979-2980 (plurality opinion); Rhodes v. Chapman, 452 U.S.

337, 348-349 n.13 (1981); Bell v. Wolfish, 441 U.S. 520, 543-544

n.27 (1979). |

This Court firmly rejected an approach similar to that nov:

urged by petitioners in Harris v. McRae, 448 U.S. at 326, which

involved the constitutionality of abortion funding restrictions.

The district court in that case, after holding a year-long eviden-

tiary hearing into the public funding of abortions, concluded

that “ ‘[t}he interests of . . . the federal government . . . in the

fetus and in preserving it are not sufficient, weighed in the

balance with the woman’s threatened health, to justify

withdrawing medical assistance unless the woman consents. . .

to carry the fetus to term.’” 448 U.S. at 325-326 (quoting

district court decision). This Court held that the district court

had undertaken the wrong equal protection inquiry and that the

question was one for the legislature, not the court, to decide:

. It is not the mission of this Court or any other to decide

whether the balance of competing interests reflected in the

Hyde Amendment is wise social policy. If that were our

mission, not every Justice who has subscribed to the judg-

ment of the Court could have done so. But we cannot, in

the name of the Constitution, overturn duly enacted

Statutes simply because they may be unwise, improvident,

general matter, a minor’s parents should be aware of and involved in her sex-

ual upbringing, since there is no objective standard to guide a court in making

that judgment. Nor is the evidence considered by the district court il-

luminating. The court dismissed the benefits of parental notification by

reference to the opinions of experts who, at bottom, simply disagreed with the

state legislature that parents can contribute to their daughter's sexual upbring-

ing. Sec, e.g., 88-1125 Pet. App. 26a-29a.

or out of harmony with a particular school of thought.

Rather, when an issue involves policy choices as sensitive as

those implicated [here] . . ., the appropriate forum for their

resolution in a democracy is the legislature.

Id. at 326 (citations and internal quotation marks omitted).

These observations, grounded firmly in democratic theory, ap-

ply with equal force to the wide-ranging “fact finding” under-

taken by the district court in this case.

CONCLUSION

The judgment of the court of appeals should be affirmed in

No. 88-1125 and reversed in No. 88-1309.

Respectfully submitted.