Ohio v. Akron Center for Reproductive Health , 110 S. Ct. 2972 ( 1990 )

Justice Kennedy

announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and IV, ^† and an opinion with respect to Part V, in which The Chief Justice, Justice White, and Justice Scalia join.

The Court of Appeals held invalid an Ohio statute that, with certain exceptions, prohibits any person from performing an abortion on an unmarried, unemancipated, minor woman absent notice to one of the woman’s parents or a court order of approval. We reverse, for we determine that the statute accords with our precedents on parental notice and consent in the abortion context and does not violate the Fourteenth Amendment.

I

A

The Ohio Legislature, in November 1985, enacted Amended Substitute House Bill 319 (H. B. 319), which amended Ohio Rev. Code Ann. § 2919.12 (1987), and created Ohio Rev. Code Ann. §§ 2151.85 and 2505.073 (Supp. 1988). Section 2919.12(B), the cornerstone of this legislation, makes it a criminal offense, except in four specified circumstances, for a physician or other person to perform an abortion on an unmarried and unemancipated woman under 18 years of age. See § 2919.12(D) (making the first offense a misdemeanor and subsequent offenses felonies); § 2919.12(E) (imposing civil liability).

The first and second circumstances in which a physician may perform an abortion relate to parental notice and consent. First, a physician may perform an abortion if he provides “at least twenty-four hours actual notice, in person or by telephone,” to one of the woman’s parents (or her guardian or custodian) of his intention to perform the abortion. §2919.12(B)(l)(a)(i). The physician, as an alternative, may notify a minor’s adult brother, sister, stepparent, or grandparent, if the minor and the other relative each file an affidavit in the juvenile court stating that the minor fears physical, sexual, or severe emotional abuse from one of her parents. See §§ 2919.12(B)(l)(a)(i), 2919.12(B)(1)(b), 2919.12(B)(1)(c). If the physician cannot give the notice “after a reasonable effort,” he may perform the abortion after “at least forty-eight hours constructive notice” by both ordinary and certified mail. §2919.12(B)(2). Second, a physician may perform an abortion on the minor if one of her parents (or her guardian or custodian) has consented to the abortion in writing. See § 2919.12(B)(l)(a)(ii).

The third and fourth circumstances depend on a judicial procedure that allows a minor to bypass the notice and consent provisions just described. The statute allows a physician to perform an abortion without notifying one of the minor’s parents or receiving the parent’s consent if a juvenile court issues an order authorizing the minor to consent, § 2919.12(B)(l)(a)(iii), or if a juvenile court or court of appeals, by its inaction, provides constructive authorization for the minor to consent, § 2919.12(B)(l)(a)(iv).

The bypass procedure requires the minor to file a complaint in the juvenile court, stating (1) that she is pregnant; (2) that she is unmarried, under 18 years of age, and uneman-cipated; (3) that she desires to have an abortion without notifying one of her parents; (4) that she has sufficient maturity and information to make an intelligent decision whether to have an abortion without such notice, or that one of her parents has engaged in a pattern of physical, sexual, or emotional abuse against her, or that notice is not in her best interests; and (5) that she has or has not retained an attorney. §§ 2151.85(A)(1) — (5). The Ohio Supreme Court, as discussed below, has prescribed pleading forms for the minor to use. See App. 6-14.

The juvenile court must hold a hearing at the earliest possible time, but not later than the fifth business day after the minor files the complaint. § 2151.85(B)(1). The court must render its decision immediately after the conclusion of the hearing. Ibid. Failure to hold the hearing within this time results in constructive authorization for the minor to consent to the abortion. Ibid. At the hearing the court must appoint a guardian ad litem and an attorney to represent the minor if she has not retained her own counsel. § 2151.85(B) (2). The minor must prove her allegation of maturity, pattern of abuse, or best interests by clear and convincing evidence, § 2151.85(C), and the juvenile court must conduct the hearing to preserve the anonymity of the complainant, keeping all papers confidential. §§ 2151.85(D), (F).

The minor has the right to expedited review. The statute provides that, within four days after the minor files a notice of appeal, the clerk of the juvenile court shall deliver the notice of appeal and record to the state court of appeals. § 2505.073(A). The clerk of the court of appeals dockets the appeal upon receipt of these items. Ibid. The minor must file her brief within four days after the docketing. Ibid. If she desires an oral argument, the court of appeals must hold one within five days after the docketing and must issue a decision immediately after oral argument. Ibid. If she waives the right to an oral argument, the court of appeals must issue a decision within five days after the docketing. Ibid. If the court of appeals does not comply with these time limits, a constructive order results authorizing the minor to consent to the abortion. Ibid.

B

Appellees in this action include the Akron Center for Reproductive Health, a facility that provides abortions; Max Pierre Gaujean, M. D., a physician who performs abortions at the Akron Center; and Rachael Roe, an unmarried, un-emancipated, minor woman, who sought an abortion at the facility. In March 1986, days before the effective date of H. B. 319, appellees and others brought a facial challenge to the constitutionality of the statute in the United States District Court for the Northern District of Ohio. The District Court, after various proceedings, issued a preliminary injunction and later a permanent injunction preventing the State of Ohio from enforcing the statute. Akron Center for Reproductive Health v. Rosen, 633 F. Supp. 1123 (1986).

The Court of Appeals for the Sixth Circuit affirmed, concluding that H. B. 319 had six constitutional defects. These points, discussed below, related to the sufficiency of the expedited procedures, the guarantee of anonymity, the constructive authorization provisions, the clear and convincing evidence standard, the pleading requirements, and the physician’s personal obligation to give notice to one of the minor’s parents. Akron Center for Reproductive Health v. Slaby, 854 F. 2d 852 (1988). The State of Ohio, on appeal under 28 U. S. C. § 1254(2) (1982 ed.), prob. juris, noted, 492 U. S. 916 (1989), challenges the Court of Appeals’ decision in its entirety. Appellees seek affirmance on the grounds adopted by the Court of Appeals and on other grounds.

II

We have decided five cases addressing the constitutionality of parental notice or parental consent statutes in the abortion context. See Planned Parenthood of Central Mo. v. Danforth, 428 U. S. 52 (1976); Bellotti v. Baird, 443 U. S. 622 (1979); H. L. v. Matheson, 450 U. S. 398 (1981); Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U. S. 476 (1983); Akron v. Akron Center for Reproductive Health, Inc., 462 U. S. 416 (1983). We do not need to determine whether a statute that does not accord with these cases would violate the Constitution, for we conclude that H. B. 319 is consistent with them.

A

This dispute turns, to a large extent, on the adequacy of H. B. 319’s judicial bypass procedure. In analyzing this aspect of the dispute, we note that, although our cases have required bypass procedures for parental consent statutes, we have not decided whether parental notice statutes must contain such procedures. See Matheson, supra, at 413, and n. 25 (upholding a notice statute without a bypass procedure as applied to immature, dependent minors). We leave the question open, because, whether or not the Fourteenth Amendment requires notice statutes to contain bypass procedures, H. B. 319’s bypass procedure meets the requirements identified for parental consent statutes in Danforth, Bellotti, Ashcroft, and Akron. Danforth established that, in order to prevent another person from having an absolute veto power over a minor’s decision to have an abortion, a State must provide some sort of bypass procedure if it elects to require parental consent. See 428 U. S., at 74. As we hold today in Hodgson v. Minnesota, ante, p. 417, it is a corollary to the greater intrusiveness of consent statutes that a bypass procedure that will suffice for a consent statute will suffice also for a notice statute. See also Matheson, supra, at 411, n. 17 (notice statutes are not equivalent to consent statutes because they do not give anyone a veto power of over a minor’s abortion decision).

The principal opinion in Bellotti stated four criteria that a bypass procedure in a consent statute must satisfy. Appellees contend that the bypass procedure does not satisfy these criteria. We disagree. First, the Bellotti principal opinion indicated that the procedure must allow the minor to show that she possesses the maturity and information to make her abortion decision, in consultation with her physician, without regard to her parents’ wishes. See 443 U. S., at 643 (opinion of Powell, J.). The Court reaffirmed this requirement in Akron by holding that a State cannot presume the immaturity of girls under the age of 15. 462 U. S., at 440. In the case now before us, we have no difficulty concluding that H. B. 319 allows a minor to show maturity in conformity with the principal opinion in Bellotti. The statute permits the minor to show that she “is sufficiently mature and well enough informed to decide intelligently whether to have an abortion.” Ohio Rev. Code Ann. §2151.85(0(1) (Supp. 1988).

Second, the Bellotti principal opinion indicated that the procedure must allow the minor to show that, even if she cannot make the abortion decision by herself, “the desired abortion would be in her best interests.” 443 U. S., at 644. We believe that H. B. 319 satisfies the Bellotti language as quoted. The statute requires the juvenile court to authorize the minor’s consent where the court determines that the abortion is in the minor’s best interest and in cases where the minor has shown a pattern of physical, sexual, or emotional abuse. See §2151.85(0(2).

Third, the Bellotti principal opinion indicated that the procedure must insure the minor’s anonymity. See 443 U. S., at 644. H. B. 319 satisfies this standard. Section 2151.85 (D) provides that “[t]he [juvenile] court shall not notify the parents, guardian, or custodian of the complainant that she is pregnant or that she wants to have an abortion.”- Section 2151.85(F) further states:

“Each hearing under this section shall be conducted in a manner that will preserve the anonymity of the complainant. The complaint and all other papers and records that pertain to an action commenced under this section shall be kept confidential and are not public records.”

Section 2505.073(B), in a similar fashion, requires the court of appeals to preserve the minor’s anonymity and confidentiality of all papers on appeal. The State, in addition, makes it a criminal offense for an employee to disclose documents not designated as public records. See §§ 102.03(B), 102.99(B).

Appellees argue that the complaint forms prescribed by the Ohio Supreme Court will require the minor to disclose her identity. Unless the minor has counsel, she must sign a complaint form to initiate the bypass procedure and, even if she has counsel, she must supply the name of one of her parents at four different places. See App. 6-14 (pleading forms). Appellees would prefer protections similar to those included in the statutes that we reviewed in Bellotti and Ashcroft. The statute in Bellotti protected anonymity by permitting use of a pseudonym, see Planned Parenthood League of Massachusetts v. Bellotti, 641 F. 2d 1006, 1025 (CA1 1981), and the statute in Ashcroft allowed the minor to sign the petition with her initials, see 462 U. S., at 491, n. 16. Appellees also maintain that the Ohio laws requiring court employees not to disclose public documents are irrelevant because the right to anonymity is broader than the right not to have officials reveal one’s identity to the public at large.

Confidentiality differs from anonymity, but we do not believe that the distinction has constitutional significance in the present context. The distinction has not played a part in our previous decisions, and, even if the Bellotti principal opinion is taken as setting the standard, we do not find complete anonymity critical. H. B. 319, like the statutes in Bellotti and Ashcroft, takes reasonable steps to prevent the public from learning of the minor’s identity. We refuse to base a decision on the facial validity of a statute on the mere possibility of unauthorized, illegal disclosure by state employees. H. B. 319, like many sophisticated judicial procedures, requires participants to provide identifying information for administrative purposes, not for public disclosure.

Fourth, the Bellotti principal opinion indicated that courts must conduct a bypass procedure with expedition to allow the minor an effective opportunity to obtain the abortion. See 443 U. S., at 644. H. B. 319, as noted above, requires the trial court to make its decision within five “business day[s]” after the minor files her complaint, § 2151.85(B)(1); requires the court of appeals to docket an appeal within four “days” after the minor files a notice of appeal, § 2505.073(A); and requires the court of appeals to render a decision within five “days” after docketing the appeal, ibid.

The District Court and the Court of Appeals assumed that all of the references to days in §§ 2151.85(B)(1) and 2505.073(A) meant business days as opposed to calendar days. Cf. Ohio Rule App. Proc. 14(A) (excluding nonbusiness days from computations of less than seven days). They calculated, as a result, that the procedure could take up to 22 calendar days because the minor could file at a time during the year in which the 14 business days needed for the bypass procedure would encompass 3 Saturdays, 3 Sundays, and 2 legal holidays. Appellees maintain, on the basis of an affidavit included in the record, that a 3-week delay could increase by a substantial measure both the costs and the medical risks of an abortion. See App. 18. They conclude, as did those courts, that H. B. 319 does not satisfy the Bellotti principal opinion’s expedition requirement.

As a preliminary matter, the 22-day calculation conflicts with two well-known rules of construction discussed in our abortion cases and elsewhere. “Where fairly possible, courts should construe a statute to avoid a danger of unconstitutionality.” Ashcroft, 462 U. S., at 493 (opinion of Powell, J.). Although we recognize that the other federal courts “ ‘are better schooled in and more able to interpret the laws of their respective States’ ” than are we, Frisby v. Schultz, 487 U. S. 474, 482 (1988), the Court of Appeals’ decision strikes us as dubious. Interpreting the term “days” in § 2505.073(A) to mean business days instead of calendar days seems inappropriate and unnecessary because of the express and contrasting use of “business day[s]” in § 2151.85(B)(1). In addition, because appellees are making a facial challenge to a statute, they must show that “no set of circumstances exists under which the Act would be valid.” Webster v. Reproductive Health Services, 492 U. S. 490, 524 (1989) (O’Connor, J., concurring). The Court of Appeals should not have invalidated the Ohio statute on a facial challenge based upon a worst-case analysis that may never occur. Cf. Ohio Rev. Code Ann. § 2505.073(A) (Supp. 1988) (allowing the court of appeals, upon the minor’s motion, to shorten or extend the time periods). Moreover, under our precedents, the mere possibility that the procedure may require up to 22 days in a rare case is plainly insufficient to invalidate the statute on its face. Ashcroft, for example, upheld a Missouri statute that contained a bypass procedure that could require 17 calendar days plus a sufficient time for deliberation and decisionmak-ing at both the trial and appellate levels. See 462 U. S., at 477, n. 4, 491, n. 16.

B

Appellees ask us, in effect, to extend the criteria used by some Members of the Court in Bellotti and the cases following it by imposing three additional requirements on bypass procedures. First, they challenge the constructive authorization provisions in H. B. 319, which enable a minor to obtain an abortion without notifying one of her parents if either the juvenile court or the court of appeals fails to act within the prescribed time limits. See Ohio Rev. Code Ann. §§2151.85 (B)(1), 2505.073(A), and 2919.12(B)(l)(a)(iv) (1987 and Supp. 1988). They speculate that the absence of an affirmative order when a court fails to process the minor’s complaint will deter the physician from acting.

We discern no constitutional defect in the statute. Absent a demonstrated pattern of abuse or defiance, a State may expect that its judges will follow mandated procedural requirements. There is no showing that the time limitations imposed by H. B. 319 will be ignored. With an abundance of caution, and concern for the minor’s interests, Ohio added the constructive authorization provisions in H. B. 319 to ensure expedition of the bypass procedures even if these time limits are not met. The State represents that a physician can obtain certified documentation from the juvenile or appellate court that constructive authorization has occurred. Brief for Appellant 36. We did not require a similar safety net in the bypass procedures in Ashcroft, supra, at 479-480, n. 4, and find no defect in the procedures that Ohio has provided.

Second, appellees ask us to rule that a bypass procedure cannot require a minor to prove maturity or best interests by a standard of clear and convincing evidence. They maintain that, when a State seeks to deprive an individual of liberty interests, it must take upon itself the risk of error. See Santosky v. Kramer, 455 U. S. 745, 755 (1982). House Bill 319 violates this standard, in their opinion, not only by placing the burden of proof upon the minor, but also by imposing a heightened standard of proof.

This contention lacks merit. A State does not have to bear the burden of proof on the issues of maturity or best interests. The principal opinion in Bellotti indicates that a State may require the minor to prove these facts in a bypass procedure. See 443 U. S., at 643 (opinion of Powell, J.). A State, moreover, may require a heightened standard of proof when, as here, the bypass procedure contemplates an ex parte proceeding at which no one opposes the minor’s testimony. We find the clear and convincing standard used in H. B. 319 acceptable. The Ohio Supreme Court has stated:

“Clear and convincing evidence is that measure or degree of proof which will produce in the mind of the trier of facts a firm belief or conviction as to the allegations sought to be established. It is intermediate, being more than a mere preponderance, but not to the extent of such certainty as is required beyond a reasonable doubt as in criminal cases. It does not mean clear and unequivocal.” Cross v. Ledford, 161 Ohio St. 469, 477, 120 N. E. 2d 118, 123 (1954) (emphasis deleted).

Our precedents do not require the State to set a lower standard. Given that the minor is assisted in the courtroom by an attorney as well as a guardian ad litem, this aspect of H. B. 319 is not infirm under the Constitution.

Third, appellees contend that the pleading requirements in H. B. 319 create a trap for the unwary. The minor, under the statutory scheme and the requirements prescribed by the Ohio Supreme Court, must choose among three pleading forms. See Ohio Rev. Code Ann. § 2151.85(C) (Supp. 1988); App. 6-14. The first alleges only maturity and the second alleges only best interests. She may not attempt to prove both maturity and best interests unless she chooses the third form, which alleges both of these facts. Appellees contend that the complications imposed by this scheme deny a minor the opportunity, required by the principal opinion in Bellotti, to prove either maturity or best interests or both. See 443 U. S., at 643-644.

Even on the assumption that the pleading scheme could produce some initial confusion because few minors would have counsel when pleading, the simple and straightforward procedure does not deprive the minor of an opportunity to prove her case. It seems unlikely that the Ohio courts will treat a minor’s choice of complaint form without due care and understanding for her unrepresented status. In addition, we note that the minor does not make a binding election by the initial choice of pleading form. The minor, under H. B. 319, receives appointed counsel after filing the complaint and may move for leave to amend the pleadings. See § 2151.85(B) (2); Ohio Rule Juvenile Proc. 22(B); see also Hambleton v. R. G. Barry Corp., 12 Ohio St. 3d 179, 183-184, 465 N. E. 2d 1298, 1302 (1984) (finding a liberal amendment policy in the state civil rules). Regardless of whether Ohio could have written a simpler statute, H. B. 319 survives a facial challenge.

Ill

Appellees contend our inquiry does not end even if we decide that H. B. 319 conforms to Danforth, Bellotti, Mathe-son, Ashcroft, and Akron. They maintain that H. B. 319 gives a minor a state-law substantive right “to avoid unnecessary or hostile parental involvement” if she can demonstrate that her maturity or best interests favor abortion without notifying one of her parents. They argue that H. B. 319 deprives the minor of this right without due process because the pleading requirements, the alleged lack of expedition and anonymity, and the clear and convincing evidence standard make the bypass procedure unfair. See Mathews v. Eldridge, 424 U. S. 319, 335 (1976). We find no merit in this argument.

The confidentiality provisions, the expedited procedures, and the pleading form requirements, on their face, satisfy the dictates of minimal due process. We see little risk of erroneous deprivation under these provisions and no need to require additional procedural safeguards. The clear and convincing evidence standard, for reasons we have described, does not place an unconstitutional burden on the types of proof to be presented. The minor is assisted by an attorney and a guardian ad litem and the proceeding is ex parte. The standard ensures that the judge will take special care in deciding whether the minor’s consent to an abortion should proceed without parental notification. As a final matter, given that the statute provides definite and reasonable deadlines, Ohio Rev. Code Ann. §2505.073(A) (Supp. 1988), the constructive authorization provision, § 2151.85(B)(1), also comports with due process on its face.

> 1 — I

Appellees, as a final matter, contend that we should invalidate H. B. 319 in its entirety because the statute requires the parental notice to be given by the physician who is to perform the abortion. In Akron, the Court found unconstitutional a requirement that the attending physician provide the information and counseling relevant to informed consent. See 462 U. S., at 446-449. Although the Court did not disapprove of informing a woman of the health risks of an abortion, it explained that “[t]he State’s interest is in ensuring that the woman’s consent is informed and unpressured; the critical factor is whether she obtains the necessary information and counseling from a qualified person, not the identity of the person from whom she obtains it.” Id., at 448. Appellees maintain, in a similar fashion, that Ohio has no reason for requiring the minor’s physician, rather than some other qualified person, to notify one of the minor’s parents.

Appellees, however, have failed to consider our precedent on this matter. We upheld, in Matheson, a statute that required a physician to notify the minor’s parents. See 450 U. S., at 400. The distinction between notifying a minor’s parents and informing a woman of the routine risks of an abortion has ample justification; although counselors may provide information about general risks as in Akron, appel-lees do not contest the superior ability of a physician to garner and use information supplied by a minor’s parents upon receiving notice. We continue to believe that a State may require the physician himself or herself to take reasonable steps to notify a minor’s parent because the parent often will provide important medical data to the physician. As we explained in Matheson:

“The medical, emotional, and psychological consequences of an abortion are serious and can be lasting; this is particularly so when the patient is immature. An adequate medical and psychological case history is important to the physician. Parents can provide medical and psychological data, refer the physician to other sources of medical history, such as family physicians, and authorize family physicians to give relevant data.” 450 U. S., at 411 (footnote omitted).

The conversation with the physician, in addition, may enable a parent to provide better advice to the minor. The parent who must respond to an event with complex philosophical and emotional dimensions is given some access to an experienced and, in an ideal case, detached physician who can assist the parent in approaching the problem in a mature and balanced way. This access may benefit both the parent and child in a manner not possible through notice by less qualified persons.

Any imposition on a physician’s schedule, by requiring him or her to give notice when the minor does not have consent from one of her parents or court authorization, must be evaluated in light of the complete statutory scheme. The statute allows the physician to send notice by mail if he or she cannot reach the minor’s parent “after a reasonable effort,” Ohio Rev. Code Ann. §2919.12(B)(2) (1987), and also allows him or her to forgo notice in the event of certain emergencies, see §2919.12(0(2). These provisions are an adequate recognition of the physician’s professional status. On this facial challenge, we find the physician notification requirement unobjectionable.

V

The Ohio statute, in sum, does not impose an undue, or otherwise unconstitutional, burden on a minor seeking an abortion. We believe, in addition, that the legislature acted in a rational manner in enacting H. B. 319. A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronted by a woman who is considering whether to seek an abortion. Her decision will embrace her own destiny and personal dignity, and the origins of the other human life that lie within the embryo. The State is entitled to assume that, for most of its people, the beginnings of that understanding will be within the family, society’s most intimate association. It is both rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature. The statute in issue here is a rational way to further those ends. It would deny all dignity to the family to say that the State cannot take this reasonable step in regulating its health professions to ensure that, in most cases, a young woman will receive guidance and understanding from a parent. We uphold H. B. 319 on its face and reverse the judgment of the Court of Appeals.

It is so ordered.

† Justice Stevens and Justice O’Connor join only Parts I, II, III, and IV of the opinion.