# Amicus Curiae Brief — Hodgson v. Minnesota

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1061%3A14

## Record

- **Collection:** Supreme Court brief
- **Document type:** Amicus Curiae Brief
- **Published:** January 1, 1990
- **Citation:** 497 U.S. 417

## Text

‘
«'

a

ae |

" AWG 28 196
Nos. 88-805, 88-1125, 88-1309 en ee
JOSEPH F. SPANIO
ee SLERK
IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

STATE OF OHIO,

. Appellant,

AKRON CENTER FOR REPRODUCTIVE HEALTH, et al,
Appellees.

On Appeal from the United States Court of Appeals
for the Sixth Circuit

———————

JANE Hopcson, et al.,
ji Petitioners,
STATE OF MINNESOTA, et al.,
Respondents.

On Writ of Certiorari to the United States Court of Appeals
for the Eighth Circuit

BRIEF OF THE UNITED STATES CATHOLIC
CONFERENCE AS AMICUS CURIAE IN
SUPPORT OF THE STATES OF OHIO AND MINNESOTA

MARK E. CHOPKO *
General Counsel

U.S. CATHOLIC CONFERENCE
3211 Fourth Street, N.E.
Washington, DC 20017
(202) 541-3300

* Counsel of Record

2

WILSON - Eres PRINTING Co., INC. - 789-0096 - WASHINGTON, D.c. 20001

La ee

TABLE OF CONTENTS

TABLE OF AUTHORITIES ............22:...:.-:e--cceeeesesnenensnees

INTEREST OF AMICUS. .............2-----cc---ccseeccsscecensssessneens

SUMMARY OF ARGUMENT ..........-...-------cec-seeeeseeeeeeee:

ARGUBIBNT ........<cccccencccsessesereessceccevescrccsseecseressserssessnessonsnss

I. SIMPLIFYING THE INTRICATE RULES IN
THIS COURT’S ABORTION JURISPRU-
DENCE EFFECTIVELY MEANS RECON-
SIDERATION OF ROE v. WADE ................-..----

If.

A.

B.

A

The Abortion Decisions Reflect Increasingly
Complex Legislative Activity by the Court..

Judicial Review of State Health and Welfare
Laws Should Exhibit Deference to the Leg-
Re, TI, secsnmniisiintidiiianniininiaanmaains

STATE MAY PERMISSIBLY REQUIRE

NOTICE TO PARENTS OF THEIR DAUGH-
TER’S INTENTION TO SEEK AN ABOR-
TION AND A REASONABLE CHANCE TO
CONFER WITH HER ............-....-0---scccseescssooeseseee

A.

Protection of Family Integrity Is An Im-
portant Public Welfare Interest that Merits
Legislative Protection ............................0:cess--

. The Court Should Reject Efforts to Redraft

State Statutes That Promote the States’ and
the Family’s Interests in Family Integrity..

et) P| |) ce

Page

11

14

15

26

ii

TABLE OF AUTHORITIES

Cases: Page

Akron v. Akron Center for Reproductive Health,

RS ae 7,10, 14, 19
Akivon Center for Reproductive Health v. Slaby,

854 F.2d 852 (6th Cir. 1988), juris. noted, 109

S.Ct. 3239 (1989) (No. 88-805) ..................... 6, 9, 10, 18
Application of President and Directors of George-

town College, 331 F.2d 1000 (D.C. Cir.), cert.

denied, 877 U.S. 978 (1964) ................0-..002-e0cee0-+- 16
Baltimore Gas & Electric Co. v. NRDC, 462 U.S.

ROSES SE TRE Se 12
Bellotti v. Baird (1), 428 U.S. 182 (1976) ............... 9
Bellotti v. Baird (11), 443 U.S. 622 (1979)............ passim
Bender v. Williamsport Area School Dist., 475

REE ee 7
Berger v. New York, 388 U.S. 41 (1967) ............... 8
Berman v. Parker, 348 U.S. 26 (1954) ................... 12
Butler v. Pennsylvania, 51 U.S. (10 How.) 402

RTI incccusieecetnsesenetnksentionastititalialilaamalbeaaemmannenetanencsovies 11
Duchesne v. Sugarman, 566 F.2d 817 (2d Cir

cack arias Mic hla bldaniiaaabannenerennes 15

Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).... 11, 25
Ginsburg v. New York, 390 U.S. 629 (1968) ....16, 18, 21
Glici: v. McKay, 616 F. Supp. 322 (D. Nev. 1985)... 10
Goss v. Lopez, 419 U.S. 565 (1978)....................-..-- 17
Harris v. McRae, 448 U.S. 297 (1980) ................... 2
Hartigan v. Zharaz, 484 U.S. 171 (1987) (evenly

divided court), aff’g, 763 F.2d 1532 (7th Cir.

si acer eeonaeeoninreomesesoe 9
H. L. v. Matheson, 450 U.S. 398 (1981) .................. passim
Hodason v. Minnesota, 853 F.2d 1452 (8th Cir.

1988) (en banc), cert. granted, 109 S.Ct. 3240

(1989) (Nos. 88-1125, 88-1309) ......................... 6, 10, 18
Hodason v. Minnesota, 648 F. Supp. 756 (D. Minn.

iss ta Se SE 20
In Re Gault, 387 U.S. 1 (1967).........................-...00-- 17
Kleppe v. New Mevico, 426 U.S. 529 (1976) ........... 21
Legal Tender Cases, 79 U.S. (12 Wall.) 457

LE pat aS ae ot Ee ee 5, 13, 25
Lehr v. Robertson, 463 U.S. 248 (1983) -................ 4, 15, 18

—__— oa

iii
TABLE OF AUTHORITIES—Continued

Page
Maher v. Roe, 482 U.S. 464 (1977) ......-------------0---+ 19

McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316
C1B1D) ...ccccccceccecesccecesscovcsesessene-sesssssessrscssseaseneessssessess 12
McKeiver v. Pennsylvania, 403 U. S. 528 (1971). 17
Meyer v. Nebraska, 262 U.S. 390 (1923) .. 1 16, 16
Michael H. v. Gerald D., 109 S.Ct. 2333 (1989)... 17

Moore v. City of East Cleveland, 431 U.S. 494
CDOT TD neeceoneccccecseccseceeseersevsncsscsnscsencssesssnesenesenseswesseees 4,15
New Jersey v. T.L.O., 469 U.S. 325 (1985) ........... 16
Otis v. Parker, 187 U.S. 606 (1903) .............. sonia 5, 12, 25
Parham v. J.R., 442 U.S. 584 (1979) ........-.-----.-.---. 17, 23

Pierce v. Society of Sisters, 268 U.S. 510 (1925)... 15, 16
Planned Parenthood Ass’n v. Ashcroft, 462 U.S.

«Serre ae. passim

Planned Parenthood of Central Missouri v. Dan-
forth, 428 U.S. 52 (1976) “ _...... passim
Prince v. Massachusetts, 321 U.S. 158 (1944) er 14, 15,
16, 18

Resevne Army v. Municipal Court, 331 U.S. 549
EAE 12
Roe v. Wade, 410 U.S. 113 (1973) passim
Santosky v. Kramer, 455 U.S. 745 (1982) _............. 5,17

Smith v. Organization of Foster Families, 431
LS, 19
Stanford v. Kentuchky, 109 S.Ct. 2969 (1989) 12

Thompson v. Oklahoma, 108 S.Ct. 2687 (1988)... 12, 22
Thornburagh v. American College of Obstetricians

and Gynecologists, 476 U.S. 747 (1986) passim
Tinker v. Des Moines Independent School Dist.,
393 U.S. 503 (1969) ........ | ae EE oon eee 16
Webster v. Reproductive Health Services, 109
S.Ct. 3040 (1989) passim
Wisconsin v. Yoder, 406 U.S. 205 (1972)... 14, 15, 16,
17, 23

Statutory Provisions:

Omnibus Crime Control Act, Title ITI, 18 U.S.C.
BE BEIO, ef EG. ......00..2..--ccrereeereveeesseeroressoees a aaa x

iv

TABLE OF AUTHORITIES—Continued

Miscellaneous:

Bernardin, “The Role of the Religious Leader in
the Development of Public Policy,” 34 De Paul
L. Rev. (1984) (Address to ABA) .......................

W. Blackstone, Commentaries on the Laws of Eno-
*. aa Sn

Brief Amicus Curiae of U.S. Catholic Conference
in Webster v. Reproductive Health Services,
Ties, GTI cxrecriccscsscitaseccentintiniinsinsabiniaestnssiasneiamaadnsiaauamaaiamiaiats

0
Hafen, “Children’s Liberation and the New Egali-
tarianism: Some Reservations About Abandon-
ing Youth to their ‘Rights,’” 1976 B.Y.U. L.
TS Ee ee ei ee
S. Jordan, Decision Making for Incompetent Per-
sons (1966) ..............-. s ieaiaieiaiaieeimaaeieeemaamanieatbieatiis
J. Kent, Commentaries on American Law (Da
ll 6 ee
G. Melton (ed.), Adolescent Abortion: Psycholog-
ical and Legal Issues (1986) ...................-.---22---0---
J. Noonan, A Private Choice: Abortion in Amer-
ica in the Seventies (1979) ...........-.-------e00--eeccceeeeee-
Rue, “Abortion in Relationship Context,” 9 Jnt’l
Rev. of Natural Family Planning 95 (1985)....
U.S. Bishops’ Committee for Pro-Life Activities
and American Jewish Congress, Joint State-
ment on Treatment of Handicapped Newborns
RUT, ccidusiacsiniscacisesstinteniiniichiasststunsesdinmetsennediaentditacasibeamaat
U.S. Bishops, Statement on the Christian Family
I Ti a eeeenlmemalaiaias
U.S. Catholic Conference, Administrative Board,
Political Responsibility: Choices for the 1980s
(Oct. 26, 1979) and (Rev. Ed. Mar. 22, 1984)...

Page

15,17

18

18

IN THE

Supreme Court of the United States

OCTOBER TERM, 1989

Nos. 88-805, 88-1125, 88-1309

STATE OF OHIO,

. Appellant,

AKRON CENTER FOR REPRODUCTIVE HEALTH, et al.,
Appellees.

On Appeal from the United States Court of Appeals
for the Sixth Circuit

JANE Hopecson, et al.,

- Petitioners,

STATE OF MINNESOTA, et al.,
Respondents.

On Writ of Certiorari to the United States Court of Appeals
for the Eighth Circuit

BRIEF OF THE UNITED STATES CATHOLIC
CONFERENCE AS AMICUS CURIAE IN
SUPPORT OF THE STATES OF OHIO AND MINNESOTA

INTEREST OF AMICUS

The United States Catholic Conference (“Conference”)
is a nonprofit corporation organized under the laws of the
District of Columbia. Its members are the active Catholic

2

Bishops in the United States. The Conference advocates
and promotes the pastoral teaching of the Bishops in such
areas as education, family life, health and hospitals, so-
cial welfare, immigrant aid, poverty assistance, civic edu-
cation, youth activities, and communications. When per-
mitted by court rules and practice, the Conference files
briefs as amicus curiae in litigation of importance to the
Catholic Church and its peopie in the United States.
Values of particular importance to the Church are the
protection of family life and the protection of unborn
life.' Both are implicated in the cases at bar.

Both Ohio and Minnesota request this Court to clarify
the scope of a State’s authority to legislate in the area of
abortion when it concerns the rights and responsibilities
of parents regarding their children. Because both States
seek more definitive and detailed judicial direction of the
content of their laws, this amicus is concerned that the
Court will be tempted to grant those requests. Less not
more specificity about the intricacies and facets of legisla-
tion is required from this Court. Unless plainly uncon-
stitutional, a legislature’s balance of the various rights,
interests, and obligations in abortion, as in other areas
of the law, should receive judicial deference, not redraft-
ing. These cases offer the Court an opportunity to restore
what Roe v. Wade and subsequent cases have denied:
legitimate legislative prerogatives to set public policy in
matters deeply affecting the welfare of parents and chil-
dren.

1 Although such values may have religious or denominational
roots, they are shared by many, including those who profess no
religion. The suggestion that legislation restricting abortion “es-
tablishes” religion is spurious. Marris v. McRae, 448 U.S. 297
(1980). The mere fact that religious organizations advocate par-
ticular legislative approaches does not establish “religion” but only
“free expression,” a right we do not surrender by either self-
restraint or enforced silence. Compare Webster v. Reproductive
Health Services, 109 S.Ct. 3040, 3085 (1989) (Stevens, J., dissent-
ing) with Bernardin, “The Role of the Religious Leader in the
Development of Public Policy,” 34 DePaul L. Rev. 1 (1984) (Ad-
dress to ABA).

3

These cases also present an opportunity for this Court
to resist efforts to portray parental notice laws as creat-
ing conflicts between rights of parents and rights of chil-
dren, and in the process, to strengthen family integrity.
This Court has historically affirmed and strengthened
family life in many areas, but has not done so meaning-
fully in the context of abortion. If a family is to retain
any vitality when confronted by this reality, its members
must, at a minimum, be entitled to reflect upon and dis-
cuss whether a pregnant dependent adolescent should con-
sider termination of her pregnancy through abortion. To
rule that a State may not shield the family for a brief
time for this kind of consultation is to deny family inte-
grity and ultimately to undermine familial relationships.

Through their counsel, the parties have consenteu to the
appearance of this amicus.

SUMMARY OF ARGUMENT

In its most recent Term, this Court upheld portions of
a Missouri statute regulating abortion and establishing
the State’s policy regarding unborn life. Webster v. Re-
productive Health Services, 109 S.Ct. 3040 (1989). A
plurality recognized a conflict with existing decisions on
abortion and expressed a willingness to narrow their scope
or even overrule them if necessary. Certainly, as the plu-
rality there recognized, the Court’s jurisprudence has en-
couraged judicial involvement in the crafting of a “code
of regulations rather than a body of constitutional doc-
trine.” Jd. at 3057. Its abortion decisions being essen-
tially legislative, this Court until recently effectively re-
served to the judiciary the task of writing the rules that
would govern abortion regulation.

The States have continually expressed frustration over
the constant and detailed involvement of the federal
courts in the development of their statutory law. A par-
ticular area of concern has been the extent to which this
Court has constitutionalized an adolescent’s choice to have

4

an abortion, contrary to her parents’ views or even with-
out their knowledge. Starting with Planned Parenthood
of Central Missouri v. Danforth, 428 U.S. 52 (1976),
this Court has ruled in one fashion or another on the per-
missible parameters of that choice some eight times.
Still, the ultimate issue of who must settle the scope of
parents’ involvement in their child’s decisions persists. As
the courts continue to prescribe the intricate details of
the law, the legislatures—the traditional forum in which
such issues are resolved—are stripped of their legitimate
policy-making functions. In the process, the family unit
suffers.

Society owes much of its stability to the strength of the
family and has a vital interest in preserving family integ-
rity. “The intangible fibers that connect parents and
child . . . are woven throughout the fabric of our society,
providing it with strength, beauty, and flexibility.” Lehr
v. Robertson, 463 U.S. 248, 256 (1983). Indeed, “the Con-
stitution protects the sanctity of the family precisely be-
cause the institution of the family is deeply rooted in this
Nation’s history and tradition. It is through the family
that we inculeate and pass down many of our most cher-
ished values, moral and cultural.” Moore v. City of East
Cleveland, 431 U.S. 494, 503-504 (1977) (plurality).

Abortion challenges that institution and its values, as
well as society itself, in fundamental ways. Under the
abortion decisions of this Court, one member of a house-
hold may dictate to all the others whether new life—
plainly a member of the family—may be allowed to be
born. Planned Parenthood of Central Missouri v. Dan-
forth, 428 U.S. at 70-71, 74-75. When the person making
that decision is an adolescent, the implications are espe-
cially serious. If she is to appreciate meaningfully the
import and consequences of her actions, the adolescent
needs guidance from knowledgeable and caring persons,
not abortion clinic employees who lack intimate informa-
tion about her life. /d. at 91 (Stewart, J., concurring).

5

The persons she may and should look to are her parents
or those who legally stand in their place. Bellotti v.
Baird (IJ), 443 U.S. 622, 640 (1979) (plurality).

This Court has recognized the importance of parental
consultation and consent when the person seeking an
abortion is an adolescent. Planned Parenthood Ass'n v.
Ashcroft, 462 U.S. 476, 490-91, 505 (1983); H.L. ».
Matheson, 450 U.S. 398, 409-11 (1981). The process of
intra-family discussion and decisionmaking is advanced
by statutes requiring that an adolescent pause for a brief
time, facilitating consultation with her parents. It is well
settled that such a legislative judgment, which reflects a
proper balance of State, family and individual interests,
should not be lightly set aside, and then only when it is
“clearly incompatible” with supervening constitutional
mandate. Legal Tender Cases, 79 U.S. (12 Wall.) 457,
530-31: (1870) ; Otis v. Parker, 187 U.S. 606, 608 (1903).
The legitimacy of such a legislative judgment, presented
in this case, cannot be seriously doubted. The normative
principle that should guide this Court is its teaching that
parents, even in families under stress, have a “vital in-
terest in preventing the irretrievable destruction of their
family life.” Santosky v. Kramer, 455 U.S. 745, 753
(1982). That vital interest is properly advanced by the
statutes under review here, and should be affirmed by this
Court.

But more is needed. The underlying problem presented
by these cases is the narrow role some would accord the
legislature in the regulation of abortion. Opponents of
parental notice demand that the trial! courts entertain
their opinion evidence that such laws are impractical and
unwise, and for this reason, unconstitutional. Whatever
merit these opinions might have, they are misdirected.
Such argumentation, with corresponding rebuttal, would
ordinarily be presented to the legislatures, not the courts,
for debate and resolution. The increasingly intricate
jurisprudence of this Court encourages, unfortunately, a

6

contrary result. A thorough reevaluation of Roe v. Wade,
410 U.S. 113 (1973), and the sixteen years of subsequent
decisions, would lead to, at least, one singular result—
restoration of the legislative function to the State legisla-
tures. That kind of reconsideration should begin with
these cases, where such issues are legitimately presented.

ARGUMENT
I ~

SIMPLIFYING THE INTRICATE RULES IN THIS
COURT’S ABORTION JURISPRUDENCE EFFEC-
TIVELY MEANS RECONSIDERATION OF ROE v.
WADE.

Both Ohio and Minnesota sought review from this
Court to clarify certain questions of statutory detail on
the general issue of parental notice in instances of ado-
lescent abortion. E.g., Jurisdictional Statement of Ohio
at 18-19; Cross-Petition for Writ of Certiorari of Min-
nesota at 16-17. Both lower courts endorsed the prin-
ciple of parental involvement in the lives of their chil-
dren. Akron Center for Reproductive Health v. Slaby,
854 F.2d 852, 857-58 (6th Cir. 1988); Hodgson v. Min-
nesota, 853 F.2d 1452, 1455 (8th Cir. 1988) (en banc).
However, both courts questioned specific aspects of the
statutes and in fact found fault in one or another detail
of the statutes. Akron Center, 854 F.2d at 861; Hodgson,
853 F.2d at 1457. Minnesota notes that, in any other
context, the principle advanced by the statute would be
nondebatable: that parents should know about important
aspects of their children’s lives and be involved in their
significant, life-affecting decisions. Cross-Petition at 15.
Ohio goes further, noting that this case is a “para-
digm of the inability of State legislatures to enact laws
that effectuate the States’ interest in encouraging pa-
rental involvement in the decision of a minor.” Juris-
dictional Statement at 16. Both States call for more
definitive direction about the details of their statutes

7

from this Court. In other words, they seek an outline of
a permissible statute.

These cases illustrate problems inherent in this Court’s
abortion jurisprudence. The Court has taken onto itself
a broad rule-writing function, and created a code that
has become even more ponderous and difficult, not only
for the legislatures to interpret and apply, but also for
courts to review. Until this Court is willing to face the
issues legitimately presented by these cases’? and recon-
sider the jurisprudence begun in Roe v. Wade, these prob-
lems will persist.*

A. The Abortion Decisions Reflect Increasingly Complex
Legislative Activity by the Court.

In 1973, the Court created a new constitutional right
to obtain an abortion with an accompanying “legislative”

2 Neither state has yet expressly sought reconsideration of Roe
v. Wade. But see Ohio Jurisdictional Statement at 16-17. There is
sentiment on the Court for avoiding such reconsideration unless the
issue is actually presented and a proper party demands it. Compare
Akron v. Akron Center for Reproductive Health, 462 U.S. 416, 452
(1983) (O’Connor, J., dissenting) (conflict but no demand) with
Webster v. Reproductive Health Services, 109 S.Ct. 3040, 3060
(1989) (O’Connor, J., concurring) (demand but no conflict). In
these cases, however, the scope and role of proper legislative activ-
ity is raised legitimately and should be resolved. See id. at 3058
(plurality). So too, the legislative balance given to competing inter-
ests, each of which this Court has called “fundamental” at one time
or another, gives 2 legitimate basis on which to reconsider Roe v.
Wade. See note 3, infra.

3 Because the existence of a federal constitutional right to abor-
tion is crucial to subject matter jurisdiction, the efficacy of Roe v.
Wade, under which the federal question is presented, is always at
issue in abortion cases, whether raised by a party or not. See
Bender v. Williamsport Area School Dist., 475 U.S. 534, 541, 547
(1986). It is plain that unless the Court is willing to take action
in an appropriate case, such as these, litigation will compound the
Court’s problems and the problems for those who must live or die
with its decisions. Brief Amicus Curiae of U.S. Catholic Confer-
ence in Webster v. Reproductive Health Services, No. 88-605 at 4-6.

8

outline for how the right should be exercised.‘ Roe v.
Wade, 410 U.S. at 156. In that case, however, this Court
declined to rule that the newly discovered right was broad
enough to encompass the decision of a minor to terminate
her pregnancy. Jd. at 165 n.67. In 1976, when the issue
was presented, this Court concluded that a child had at
least some protected privacy interest that precluded an
absolute decision on her behalf by her parents, backed by
the authority of the law. Planned Parenthood of Central
Missouri v. Danforth, 428 U.S. 52, 74 (1976). Although
this Court discussed the rights of minors to seek and
obtain abortions without regard to the views of their
parents, the Court’s holding does not use language that
reflects the adolescent in her precise status, namely, an
unemancipated minor whose most fundamental relation-
ship is not with her physician but with her parents.’ In-
stead, it created a conflict between a “patient” (the
adolescent) and a “third party” (her parents) and re-
solved the supposed struggle in favor of the “decision

* The Court essentially acts “legislatively” any time it announces
rules or guides the subsequent action of the legislature. Compare
Berger v. New York, 388 U.S. 41 (1967) with Omnibus Crime
Control Act, Title III, 18 U.S.C. §§ 2510, et seq. Nonetheless,
the Court’s abortion jurisprudence goes much further than other
examples of judicial direction of legislation. Whereas other illus-
trations draw distinctions or offer singular guidance, abortion cases
are repetitious and divisive, and involve the courts in readjusting
delicate balances, resolving matters of deep dispute, and redrafting
the intricate details of statutes and regulations.

5 Justice Stevens dissented, and implied that there was some
broader role for the States to play in this jurisprudence. For ex-
ample, in Danforth he would have voted to uphold the parental
consent requirement as consistent with the holding in Roe. 428
U.S. at 102-103. On balance, Justice Stevens indicated that “a
legislative determination that children should be entitled to the
advice and moral support of parents is not irrational.” Indeed, he
pointed out the absence of focus by the majority on the status of
the child and relationship with her parents, and the unseemly focus
on the relationship with the physician as the “constitutionally per-
missible yardstick for determining whether a young woman can
independently make an abortion decision.” Jd. at 105.

of the physician and his patient to terminate the pa-
tient’s pregnancy, regardless of the reason for withhold-
ing [parental] consent.” Jd. (emphasis added).

By 1979, the Court took further legislative action in
Bellotti v. Baird (II), 443 U.S. 622 (1979),® when it not
only held the Massachusetts consent law invalid but also
specified the circumstances under which parental consent
could be valid and included an outline for what has be-
come known as a judicial bypass procedure. It should
therefore not have been surprising that in Planned Par-
enthood Association v. Ashcroft, 462 U.S. 476, 490-91, 505
(1983), such a statute was upheld when it followed the
recipe offered in Bellotti IJ. Although the present cases
deal with parental notice rather than consent, the same
kind of detailed judicial direction is common nonetheless.

In these many years of abortion litigation, in only one
case has this Court ruled directly on parental notice.’
In H. L. v. Matheson, 450 U.S. 398 (1981), the Court
upheld a Utah parental notice statute but only after the
majority narrowed the class represented by the plaintiffs
to unemancipated dependent minors. It did not answer
the question presented by the statute precisely, nor did

6 In 1976 the Court in Bellotti v. Baird (I), 428 U.S. 132 (1976),
held open the prospect that the Court might defer to legislative
judgment in particular cases by abstaining from passing on the
particulars of the Massachusetts statute until the Massachusetts
Supreme Judicial Court had construed that law. By abstaining,
this Court reserved the right to decide in appropriate cases when
consent could be required and under what circumstances, and de-
cided not to strengthen the legislative role. See Bellotti v. Baird
(II), 443 U.S. 622, 656 n.4 (1979).

7In Hartigan v. Zbaraz, 484 U.S. 171 (1987), this Court divided
evenly without opinion on the validity of a State statute that cou-
pled parental notice with a waiting period. That order left standing
a lower court determination that such a law was unconstitutional.
763 F.2d 1532 (7th Cir. 1985). Unfortunately, despite the narrow
effect of the ruling, one of the courts below attempted to read
some larger precedential principle into it. Akron Center v. Slaby,
854 F.2d at 861.

10

it answer the question posed by Justice Stevens in his
concurring opinion. Justice Stevens pointed out that un-
like parental consent laws, parental notice involved a
much different calculus of competing values, most notably
because it did not require a final parental decision. The
principles he espoused in earlier cases (note 5, supra)
“plainly dictate[d] that the Utah statute now before us
be upheld.” 450 U.S. at 421. Because the majority spe-
cifically narrowed the scope of its own decision, H. L. v.
Matheson became the subject of speculation in the next
series of abortion cases.

In Akron v. Akron Center for Reproductive Health, the
majority asserted, but did not decide, that an “alterna-
tive procedure” is required under any law that would
provide for parental involvement in their child’s abor-
tion decision. 462 U.S. 416, 428 n.10 (1983). Lower
courts reading the Akron majority dicta believe they have
divined both the mind of the Court favoring particular
kinds of statutes as well as the specifics of the “legis-
lative” relief that this Court would provide if the case
were presented. E.9., Glick v. McKay, 616 F. Supp. 322,
324-25 (D. Nev. 1985).* This supposed need for an
alternative procedure has invited the lower courts in
these very cases to mandate the specifics of parental
notice statutes. Akron Center v. Slaby, 854 F.2d at 860-
61; Hodgson v. Minnesota, 853 F.2d at 1455-56. That
this issue was not even presented in H. L., as pointed out
by Justice O’Connor in Akron, 462 U.S. at 469 n.12, was
not discussed in those cases. Nor was it apparent that

8 In the cases at bar, the Ohio litigation is truly a paradigm of
the inability of the legislature to legislate. Juris. Stat. at 16. In
that case, the court of appeals rejected the statute simply on the
alleged inadequacy of various details in the bypass or “alternative”
procedure. It is difficult to imagine how a court could act less like a
court and more like a legislature in deciding how a statute should
be constructed. The point is not how an “alternative” procedure
is designed or even if one is “required.” Rather, the decisionmaker
and the designer should be the State legislature, not a federal court.

11

this kind of judicial role was inappropriate, or subject
to any limits.

As the plurality in Webster v. Reproductive Health
Services noted, the Court’s abortion jurisprudence has in-
deed become “a web of legal rules that have become in-
creasingly intricate, resembling a code of regulations
rather than a body of constitutional doctrine.” 109 S.Ct.
at 3057. The solution to these cases does not lie in add-
ing to the weave of the fabric but in untangling it. When
courts usurp the legislative role, they frustrate not only
the legislatures but themselves. Id. “The goal of consti-
tutional adjudication is to hold true the balance between
that which the Constitution puts beyond the reach of the
democratic process and that which it does not.” Jd. at
3058. When the legislature balances competing interests
to promote meaningful family consultation on issues that
are deeply life-affecting, that legislative judgment is en-
titled to great respect and, unless plainly unconstitu-
tional, should be sustained.

B. Judicial Review of State Health and Welfare Laws
Should Exhibit Deference to the Legislative Process.

Chief Justice John Marshall once counseled that judg-
ing the unconstitutionality of State legislation was a
task of “much delicacy, which ought seldom, if ever to
be decided in the affirmative in a doubtful case.” Fletcher
v. Peck, 10 U.S. (6 Cranch) 87, 128 (1810). See Butler
v. Pennsylvania, 51 U.S. (10 How.) 402, 415 (1850).
Legislation should not be voided “on slight implication
and vague conjecture.” Fletcher v. Peck, 10 US. (6
Cranch) at 128. Rather, in reviewing the conformance
of a statute with the Constitution, a court must not so
act unless and until it forms “a clear and strong convic-
tion of their incompatability [sic] with each other.” Id.
The philosophy inherent in Chief Justice Marshall’s ad-
monition is judicial restraint—that courts reach constitu-
tional issues only when strictly necessary. Among other

12

things, this philosophy serves “the consideration due to
the judgment of other repositories of constitutional power
concerning the scope of their authority.” Rescue Army v.
Municipal Court, 331 U.S. 549, 571 (1947).

The constitutional authority to resolve public debates
over which actions shall be undertaken in the public
interest is entrusted primarily to the legislative branch.
McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316, 420-21,
423 (1819). A legislature’s role in matters affecting im-
portant health and safety interests is paramount, espe-
cially when it resolves matters of intense public contro-
versy.® See Webster v. Reproductive Health Services, 109
S.Ct. at 3058; Berman v. Parker, 348 U.S. 26, 33 (1954) ;
Thornburgh v. American College of Obstetricians and
Gynecologists, 476 U.S. 747, 794-96 (1986) (White, J.,
dissenting). It is not the province of a court to frustrate
the legislative will because the law “may seem to the
judges who pass upon it, excessive, unsuited to its osten-
sible end, or based on conceptions of morality with which
they disagree.” Otis v. Parker, 187 U.S. at 608; see Bal-
timore Gas & Electric Company v. NRDC, 462 U.S. 87,
97 (1983); B. Cardozo, The Nature of the Judicial Proc-

®In the juvenile death penalty cases, this point has been amply
illustrated. In Thompson v. Oklahoma, 108 S.Ct. 2687, 2698-99
(1988), a plurality decided there were numerous State statutes ex-
pressing the view that minors did not have the experience, educa-
tion, or maturity to evaluate the consequences of their conduct,
citing, among other things, Bellotti v. Baird. See id. at 2709
(O’Connor, J., concurring). This rule of law was strengthened, not
vitiated, by reconsideration of the juvenile death penalty cases in
the last Term. Stanford v. Kentucky stands for the proposition
that the jury system is best suited to determine individual responsi-
bility in the absence of some considered legislative judgment evalu-
ating the entire class of juveniles. 109 S.Ct. 2969, 2975-76 (1989).
Thus the views expressed last Term reinforced the principle that
legislative judgments on matters within their competence should
ordinarily be upheld. Unfortunately, that has not always been the
case when abortion statutes are involved. Thornburgh v. American
College of Obstetricians and Gynecologists, 476 U.S. 747, 814
(1986) (O’Connor, J., dissenting).

13

ess, 141 (1921). Rather, it is incumbent upon those at-
tacking a statute to show that the law is “clearly in-
compatible” with the Constitution. Legal Tender Cases,
79 U.S. at 530-31. Although courts are and should be
vigilant in the protection of fundamental rights (such as
religious freedom), the means by which the courts act
are essentially procedural, allocating burdens of »yroof
and setting standards of certitude. Courts do not dis-
place the legislative process entirely, especially where
there is more than one claim to a fundamental interest.’®

Because the intricate jurisprudence of this Court on
abortion has departed from these normative principles,
it continues to frustrate even a carefully exercised and
balanced legislative will. The problem lies in the nature
of the jurisprudence rather than in particular statutes
that come before the Court. The law becomes more cum-
bersome to administer, and more difficult to predict with
certaintv by the States. Thornburgh v. American Col-
lege, 476 U.S. at 814 (O’Connor, J., dissenting). The
answer for the Court, not just for these cases, but for
the many cases to come, lies in a thorough reconsidera-
tion of the line of cases that begins with Roe v. Wade.
Such a reconsideration was demanded by the dissenters
in Thornburgh and Akron and finally broached by a
plurality in Webster. While there may be merit in the

In abortion decisions, the calculation is never simply one of
individual interests competing with interests of the State. The
choices made in an abortion decision are complex and certainly
affect the life interests of others: the unborn child, the father,
other members of the family, and society itself. S. Jordan, Decision
Making for Incompetent Persons 19 (1985). The decision impli-
cates the procreative interests of both partners, can affect the
sanctity of a marriage relationship, ends a life, and has other
impacts on family relations, alienating children from their parents
and separating those parents from their unborn grandchildren. It
subjugates liberties that in other contexts are found to be funda-
mental, but in this context are found to be less worthy of protec-
tion. J. Noonan, A Private Choice: Abortion in America in the
Seventies 90-95, 190 (1979).

14

suggestion that such reconsideration should allow “time
enough . . . to do so carefully,” Webster, 109 S.Ct. at
3061 (O’Connor, J., concurring), the problem grows more
urgent with each case. For this Court the time has come
to decide whether to continue to write rules or to allow
legislatures to legislate. Akron, 462 U.S. at 456 (O’Con-
nor, J., dissenting).

II

A STATE MAY PERMISSIBLY REQUIRE NOTICE
TO PARENTS OF THEIR MINOR DAUGHTER'S IN-
TENTION TO SEEK AN ABORTION AND A REA-
SONABLE CHANCE FOR THEM TO CONFER WITH
HER PRIOR TO EXECUTION OF HER DECISION
TO ABORT HER CHILD.

Both States present a plain, and plainly valid, argu-
ment to this Court through their respective parental
notice laws: parents should know about and be involved
in life-affecting decisions made by their children. Such
a proposition would appear to be beyond dispute. How-
ever, those who oppose parental notice in these cases sug-
gest that these legislative efforts neither aid families nor
promote legitimate exercise of rights, to the extent that
parents may act to deny their adolescent daughters un-
fettered access to abortion. By framing the debate in
these cases as a conflict between parents’ rights and chil-
dren’s rights, those opponents have missed the most im-
portant point. This Court has cautioned against “intru-
sion by a State into family decisions,” Wisconsin v. Yoder
406 U.S. 205, 231 (1972), delineating instead a “private
realm of the family which the State cannot enter.” Prince
v. Massachusetts, 321 U.S. 158, 166 (1944). As with
other significant subjects that might come up from time
to time within a family, the family must be given the
opportunity to consider and resolve for itself matters
relating to abortion.

15

A. Protection of Family Integrity Is an Important Pub-
lic Welfare Interest that Merits Legislative Protec-
tion.

The mutual support and interdependence of family
members have been strongly endorsed and protected in
American law. “The intangible fibers that connect par-
ent and child have infinite variety. They are woven
throughout the fabric of our society, providing it with
strength, beauty, and flexibility. It is self-evident that
they are sufficiently vital to merit constitutional protec-
tion in appropriate cases.” Lehr v. Robertson, 463 U.S.
at 256. Protection of the family is a principle of life
and law “deeply rooted in this Nation’s history and tra-
dition.” Moore v. City of East Cleveland, 431 U.S. 494,
503 (1977) .™

Drawing on this rich historical tradition, this Court
found the “natural duty of parents” to educate their
children to be part of the fourteenth amendment liberty
interest in marriage, establishing a home, and raising
children. Meyer v. Nebraska, 262 U.S. 390, 399, 400
(1923). Parental nurture and direction of children is
more than a “right” but a “high duty.” Pierce v. So-
ciety of Sisters, 268 U.S. 510, 535 (1925)."% In Prince
v. Massachusetts, this Court stated:

11 At common law in England and in the United States, the
duties of parents to maintain, support, and educate their children
were well-established. I W. Blackstone, Commentaries on the Laws
of Engiand, Ch. 16, 435, 440-41 (1765); II J. Kent, Commentaries
on American Law, 160 (Da Capo ed. 1971). The duties of children
relative to their parents were also well-established. Jd. The com-
mon law family relationship may be described as mutual and
reciprocal. I Blackstone at 440-41; II Kent at 170-78. Each
member was bonded to the other in what one court called a “mu-
tual interest in interdependence.” Duchesne v. Sugarman, 566
F.2d 817, 825 (2d Cir. 1977). See Hafen, “Children’s Liberation
and the New Egalitarianism: Some Reservations About Abandon-
ing Youth to their ‘Rights,’” 1976 B.Y.U. L.Row. 604, 615-17,
651-52.

2 The Court in Wisconsin v. Yoder, 406 U.S. 205, 213, 232
(1972) described Pierce v. Society of Sisters as a “charter of the

16

It is cardinal with us that the custody, care and
nurture of the child must reside first in the parents,
whose primary function and freedom include prep-
aration for obligations the State can neither supply
nor hinder. And it is in recognition of this that these
decisions [Meyer and Pierce] have respected the pri-
vate realm of the family which the State cannot
enter.

321 U.S. at 166 (emphasis added) ; see Ginsburg v. New
York, 390 U.S. 629, 639 (1968). The “primary role
of the parents in the upbringing of their children is now

established as an enduring American tradition.” Wis-
consin v. Yoder, 406 U.S. at 232.

Children, however, have rights as against certain kinds
of parental actions and as against the State. Children
cannot, at their parents’ direction, be refused beneficial
medical treatment or subjected to extensive work hours.
See Application of President and Directors of George-
town College, 331 F.2d 1000, 1007-1008 (D.C. Cir.),
cert. denied, 377 U.S. 978 (1964); Prince v. Massachu-
setts, supra. Similarly, children cannot be denied rights
to political expression or to an expectation of privacy in
public schools. Tinker v. Des Moines Independent School
Dist., 393 U.S. 503, 506, 511 (1969); New Jersey v.
T.L.O., 469 U.S. 325, 334 (1985). Nor can children be

rights of parents to direct the religious upbringing of their chil-
dren.” If anything, this should apply even more strongly to situa-
tions involving consideration of abortion where strong moral and
religious convictions are implicated.

13 In Ginsburg v. New York, the Court upheld a statutory ban on
sale of non-obscene but adult-oriented magazines to all minors. 390
U.S. 629 (1968). The Court observed it “has consistently recog-
nized that the parents’ claim to authority in their own household
is basic in the structure of our society [quotation from Prince v.
Massachusetts omitted). The legislature could properly conclude
that parents .. . who have this primary responsibility for children’s
well-being are entitled to the support of laws designed to aid dis-
charge of that responsibility.” 390 U.S. at 639.

17

deprived of liberty without due process in public schools
or in courts. Goss v. Lopez, 419 U.S. 565, 574, 575
(1975); In Re Gault, 387 U.S. 1, 13 (1967). The Court
has not automatically either extended these rights to
children, or granted them the full adult scope of the
rights; both actions have been made dependent upon the
nature of the countervailing State and parental interests.
E.g., McKeiver v. Pennsylvania, 403 U.S. 528, 545
(1971).

The resulting blend of “rights,” “duties,” and “obli-
gations” is the family unit as it is now recognized in
the law."* Although it has recognized children’s “rights,”
the Court has affirmed the principle that parents play a
“substantial, if not the dominant role” in their children’s
lives. Parham v. J.R., 442 U.S. 584, 604 (1979); see
Wisconsin v. Yoder, 406 U.S. at 244 (Douglas, J., dissent-
ing). This role is displaced only where there is a serious
threat to the child’s health or safety or a “potential for
significant social burdens.” Jd. at 233-34; see Thorn-
burgh, 476 U.S. at 793 n.2 (White, J., dissenting). Even
in families where relations between parents and chil-
dren are strained, parents, because of their interest in
preventing the “destruction of their family life,” must
have a chance to resolve their problems apart from State
interference. Santosky v. Kramer, 455 U.S. 745, 753
(1982) ."*

In Bellotti v. Baird (II), the plurality strongly en-
dorsed the need for familial involvement in the lives of
dependent children. 443 U.S. at 634, 640. Protection of
family integrity may be advanced even in competition

14 Hafen, supra note 11 at 616-17 and authorities noted therein.

1 This Court recently reaffirmed its long-standing deference to
legislative judgments preserving the integrity of the marital fam-
ily against asserted rights to establish paternity. Michael H. v.
Gerald D., 109 S.Ct. 2333, 2342, 2345 (1989).

18

with the separate interests of its members. “The unique
role in our society of the family . . . requires that con-
stitutional principles be applied with sensitivity and
flexibility to the special needs of parents and children.”
Id. at 634. In particular, relying on Ginsburg v. New
York and Prince v. Massachusetts, the plurality noted
that “minors often lack the experience, perspective and
judgment to recognize and avoid choices that could be
detrimental to them.” Jd. at 635-36.

Although neither lower court in the cases on review
disputed these principles,’* the opponents of the legisla-
tion in effect urge this Court to abandon the time hon-
ored conclusion that the integrity of the family unit is
itself a privacy interest deserving constitutional protec-
tion. Lehr v. Robertson, 463 U.S. at 258. For reasons
developed below, in many cases such as the present, that
interest is superior to and may limit the interest of a
minor in unfettered access to abortion. More to the
point, protection of the family is sufficiently important
to justify appropriate limitations on a minor’s access to
abortion on her exclusive demand. “There is... an
important State interest in encouraging a family rather
than a judicial resolution of a minor’s abortion decision.”
Id. at 648. This case presents an opportunity to re-
affirm that principle."

16 Akron Center v. Slaby, 854 F.2d at 857-58; Hodgson v. Minne-
sota, 853 F.2d at 1555.

17 The Catholic Church’s moral teaching on the role of and pro-
tection for the family reflects similar considerations. The Vatican
Charter of the Rights of the Family (Oct. 22, 1983) provides that:
“lplublic authorities must respect and foster the dignity, lawful
independence, privacy, integrity and stability of every family
(Article 6).” The Bishops of the United States have long recog-
nized the need to stabilize and strengthen family life. U.S. Bishops,
Statement on the Christian Family §% 8-10 (Nov. 21, 1949); USCC
Administrative Board, Political Responsibility: Choices for the
1980s %% 42-43 (Oct. 26, 1979) (Rev. Ed. Mar. 22, 1984). They
have likewise recognized that parents may not do that which is

19

B. The Court Should Reject Efforts to Redraft State
Statutes that Promote the States’ and the Family’s
Interests in Family Integrity.

Parental notice statutes are well within the permissible
range of legislative action under this Court’s family
jurisprudence. Through these statutes, the States assure
some private space for a family to discuss an adolescent’s
decision to seek an abortion. Bellotti v. Baird (II), supra.
It is as if the State has drawn a line around the family
members to shield them for a brief moment to allow dis-
cussion of a decision that intimately affects the entire
family relationship.’* Both the parents’ rights and their
child’s rights are implicated by abortion. Akron v.
Akron Center for Reproductive Health, 462 U.S. at 428
n.10 (1983). The child’s desire for her s~'ution can strain
against her parents’ natural desire to provide guidance,
direction, and support in making a responsible decision.
In that time and private space, no one “right” is more
important than the others. The integrity of the family is
at stake. In devising such a statute, the legislature may
decide that the family members normally act out of love,
concern, and respect for each other. Evidence that a stat-
ute is not operating as designed, or that perhaps the leg-
islature incorrectly balanced the various outlooks and
perspectives, should not be presented to a court on judi-
cial review, but rather should be presented to the legisla-
ture which has the constitutional authority in the first

‘ instance to make such a resolution. Maher v. Roe, 432

injurious to their children. U.S. Bishops’ Committee for Pro-Life
Activities and American Jewish Congress, Joint Statement on
Treatment of Handicapped Newborns (1985).

18“The importance of the familial relationship, to the individual
involved and to the society, stems from the emotional attachments
that derive from the intimacy of daily association, and from the
role it plays in ‘promot{ing] a way of life’... .” Smith v. Organi-
zation of Foster Families, 431 U.S. 816, 844 (1977) (citing Wis-
consin v. Yoder, 406 U.S. at 231-34).

20

U.S. 464, 479 (1977). In a doubtful case, in which there
are various viewpoints in competition with each other in
the legislature, that judgment itself may not be displaced
because it is alleged to be unwise or impractical.

What the statutory opponents demand of this Court
is that federal district courts become the means by which
such legislative action is reconsidered and refined. They
insist that, although legislatures may act on the basis of
factual presumptions in enacting statutes, subsequent
evidence that casts doubt on the wisdom or efficacy of
a particular approach and its underlying presumptions
is an adequate basis for any court to declare that statute
unconstitutional. Hodgson Petition for Writ of Cer-
tiorari at 16-17, 21, 23."° As the Hodgson court noted,
the opponents’ record in the district court “raise[d] con-
siderable questions about the practical wisdom of this
statute. Nevertheless, we believe these are questions for
the legislature.” 853 F.2d at 1459. The opponents’ re-
newed insistence that the lower courts should have relied
only on the trial record that they created *® appears to
be nothing more than a guise to entice a court to substi-
tute its judgment for that of a legislature. Redrafting
the law should be the task of those who initially weighed
the competing evidence and resolved conflicts in drafting
the statute.

19In that petition, the statutory opponents urge the Court to
void not just Minnesota’s two parent notice statute, but more
broadly, “to revisit the question of the constitutionality of [notice]
laws ... on the factual record herein.” Hodgson Petition at 17.
Such an action would not only be inappropriate for lack of standing
and other reasons, it shows the reach of the opponents’ aims—to
shut children off from parents.

20 For example, the overwhelming majority of witnesses testified
as part of the opponents’ main case in Hodgson v. Minnesota, 648
F. Supp. 756, 774 (D. Minn. 1986). The district court nonetheless
found that parental notice was effective. E.g., Finding 58, id. at
766.

21

These are not cases in which the States blur the dis-
tinction between facial and operational challenges by
urging a more rational and deferential judicial review.
If a statute that is valid on its face nonetheless unduly
burdens a constitutional right in practice, a court is free
to consider that evidence and so rule without engaging in
“legislative” activity. Here, only some of the argument
or evidence goes to the application of either statute on
review. The bulk of the opponents’ case is directed at
pushing this Court to redraw lines already set by the
legislature, something a court may not do. See, e.9.,
Kleppe v. New Mexico, 426 U.S. 529, 541 n.10 (1976).
These opponents, having lost in their legislatures, seek to
enlist the courts in refighting their battles. Why these
opponents could not just as readily reopen the legislative
process goes unexplained. One searches the opponents’
papers and the opinions below in vain for some reason
excusing their abandonment of the legislative process.

One possible excuse implicit in the opponents’ position
lies in the fact that this Court continues to describe a
woman’s choice of abortion in constitutional terms. Al-
though this amicus plainly disagrees, assuming arguendo
the existence of a constitutional right, there is still no
reason to second-guess legitimate choices designed to
protect the family. First, the mere existence of a con-
stitutional right does not empower the judiciary to as-
sume a greater role. The first amendment interest ad-
vanced in Ginsburg v. New York is presumably no less
fundamental. 390 U.S. at 636. Yet this Court flatly
refused to sustain a child’s interest as the dominant
concern, siding instead with the legislature and the par-
ents’ obligations and interests. Jd. at 639. Neither the
absence of an opportunity to demonstrate “emancipation”
or “maturity,” nor the prospect of a parental veto was
fatal. Likewise in the abortion context, at least a plu-
rality has recognized that advancement of parental au-
thority was not “inconsistent with our tradition of in-

22

dividual liberty . . . . Legal restrictions on minors,
especially those supportive of the parental role, may be
important to the child’s chances for the fuli growth and
maturity that make eventual participation in a free
society meaningful and rewarding.” Bellotti v. Baird
(11), 443 U.S. at 639. This implicit acknowledgment of
the parents’ fundamental rights offers more, not less,
reason for deference to legislation that seeks to balance
and resolve various concerns.

Second, the mere existence of a constitutional right
does not guarantee the corresponding capacity to exer-
cise it wisely. For this reason there are many restric-
tions on otherwise available and necessarily private
choices for adolescents, without regard to “emancipation”
or “maturity,” including, inter alia, the privilege to
drink, drive an automobile, marry, make purchases or
enter into contracts. Thompson v. Oklahoma, 108 S.Ct.
2687, 2698-99 (1988); see note 9, supra. Yet opponents
of parental notice accompanied by a waiting period for
family discussion assert that such statutes “unduly bur-
den” a minor’s decision to obtain an abortion because
parents might, on occasion, discourage the abortion that
these opponents have decided is in the best interests of
all minors.2' This assertion involves two erroneous as-
sumptions—that parents act contrary to their children’s
best interests and that abortion is in the best interests
of the child.

As to the first assumption, our common law heritage
from Blackstone and Kent to the most recent decisions
of this Court (see note 11, supra) presumes that the

21 For example, one of the principal pieces of evidence that the
opponents have used against the Minnesota law is the statistic that
the teenage birthrate has increased over the duration of the statute,
while remaining more or less constant for the age group not
covered by the statute. The implicit assumption is that those
births would or should have been prevented by abortion. Hodgson
Petition at 11 n.16. This is relevant only if there is a mandate to
perform as many abortions as possible.

23

“natural bonds of affection lead parents to act in the
best interests of their children.” Parham v. J.R., 442
U.S. at 602. Although “experience and reality may rebut
what the law accepts as a starting point .. ., [s]imply
because the decision of a parent is not agreeable to the
child or because it involves risks does not automatically
transfer the power to make that decision from the par-
ents... .” Jd. at 602, 603. This Court has repeatedly
resisted the suggestion that it presume the worst. H.L.
v. Matheson, 450 U.S. at 413; Wisconsin v. Yoder, 406
U.S. at 232. Where evidence exists as to specific con-
cerns, it does not serve the public interest for this Court,
on the basis of “expert” opinion in one trial court, to
upset centuries of tradition.** Respecting parental rights
and familial obligations, other decisions of this Court
allow parents a “substantial, if not the dominant role”
in making medical treatment decisions for their children.
Parham v. J.R., 442 US. at 604 (analyzing and re-
jecting Danforth). Because this Court has found that
“children, even in adolescence, simply are not able to
make sound judgments concerning . . . medical care or
treatment,” Parham v. J.R., 442 U.S. at 603, it must
not divest parents of meaningful input to their dependent
child’s abortion decision. What the Court recognized in
H.L. v. Matheson, 450 U.S. at 412-13, about the grave
consequences of abortion strengthens the need for effec-
tive and meaningful parental involvement.

As to the second assumption, H.L. v. Matheson author-
itatively dismissed the assertion that abortion is in the
child’s best interest :

22 If this is not the measure for constitutional adjudication, it
would be just as reasonable for this Court to note the existence of
contrary expert opinion supporting the need for parental consulta-
tion in these circumstances. Rue, “Abortion in Relationship Con-
text,” 9 Int’l Rev. of Natural Family Planning 95, 97-99 (1985).
Crisis, argument, and discussion are inherent in family decision-
making. Fear of the process does not justify judicially mandated
avoidance by those who stand to benefit most.

24

If the pregnant girl elects to carry her child to term,
the medical decision to be made entails few—perhaps
none—of the potentially grave emotional and psycho-
logical consequences of the decision to abort.

450 U.S. at 412-13; see id. at 411 and n.20 (describing
unique medical, emotional and psychological complications
associated with an adolescent’s decision to have an abor-
tion not present in adult cases). These considerations
are particularly important in the abortion context:

The abortion decision differs in important ways from
other decisions that may be made during minority.

& e * *

[Clonsidering her probable education, employment
skills, financial resources, and emotional maturity,
unwanted motherhood may be exceptionally burden-
some for a minor. ... {[T]here are few situations
in which denying a minor the right to make an
important decision will have consequences so grave
and indelible.

Yet, an abortion may not be the best choice for a
minor. In a given case, alternatives to abortion,
such as marriage to the father of the child, arrang-
ing for its adoption, or assuming the responsibilities
of motherhood with the assured support of family,
may be feasible and relevant to the minor’s best
interest.

Bellotti v. Baird (IT), 443 U.S. at 642-43. G. Melton
(ed.), Adolescent Abortion: Psychological and Legal

23 The plurality endorsed Justice Stewart’s view that the State
may encourage a minor “to seek the help and advice of her parents
in making the very important decision whether or not to bear a
child.” Jd. at 641 (quoting Planned Parenthood v. Danforth, 428
U.S. at 91 (Stewart, J., concurring)). Justice Stewart tied his
reliance on parental involvement to the fact that the adolescent
“under emotional stress, may be ill-equipped to make [the decision]
without mature advice and emotional support.” Planned Parent-
hood v. Danforth, 428 U.S. at 91 (Stewart, J., concurring). Clinic
personnel, with an economic interest at stake, would not likely offer

25

Issues 84 (1986). Those consequences are too grave to
secure unrestricted exercise of the abortion decision for
minors.

The effort to overturn the considered judgment of
the legislatures, advancing meaningful family discussion
over the de minimis “burden” imposed on the adolescent,
must be firmly rejected. In H.L. v. Matheson, supra, this
Court found that any inhibition of the decision to obtain
an abortion based on actual or perceived parental action
due to statutory notice was of no constitutional signifi-
cance. Moreover, this Court has upheld consent statutes
which present the possibility that parents may withhold
consent and there may be no abortion. Planned Parent-
hood Ass’n v. Ashcroft, supra. Given these prior decisions,
the statutes challenged here are plainly constitutional.

It is not the province of the courts to speculate about
the quality of family relations and about the wisdom of
particular legislation. See Otis v. Parker, 187 U.S. at
608. To do so is to exercise judicial review by, as John
Marshall stated, “slight implication and vague conjec-
ture.” Fletcher v. Peck, supra. Unless the legislation is
“clearly incompatible” with the Constitution, Legal
Tender Cases, supra, it may not be set aside. Here, both
Ohio and Minnesota were on firm constitutional ground
in striving to balance important life interests. The op-
ponents of these parental notice statutes seek to discour-
age parental involvement in their children’s lives. Al-
lowing them to succeed contravenes important constitu-

such “counsel and support.” Jd. As the plurality expanded in
Bellotti v. Baird (II), 443 U.S. at 642 n.21: “Many minors who
bypass their parents probably will resort to an abortion clinic,
without being able to distinguish the competent and ethical from
those that are incompetent and unethical.” Parental “consulation
and consent” are the “traditional way by which states have sought
to protect children from their own immature and improvident
decisions.” Planned Parenthood v. Danforth, 428 U.S. at 95 (White,
J., dissenting).

26

tionally protected interests, and sacrifices family integ-
rity to the adolescent’s perceptions of self-interest. There
is simply no legitimate basis upon which to allow rejec-
tion of the statutes in question.

CONCLUSION

For the foregoing reasons, the judgment of the Court
of Appeals for the Sixth Circuit should be reversed and
the judgment of the Court of Appeals for the Eighth Cir-
cuit should be reversed in part and affirmed in part.

Respectfully submitted,

MARK E. CHOPKO *
General Counsel

U.S. CATHOLIC CONFERENCE
3211 Fourth Street, N.E.
Washington, DC 20017
(202) 541-3300

* Counsel of Record

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_1061%3A14. Public record. Not legal advice.