Planned Parenthood of the Blue Ridge v. Camblos

Volume 1 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PLANNED PARENTHOOD OF THE BLUE
RIDGE; HERBERT C. JONES, JR., M.D.;
PLANNED PARENTHOOD OF
METROPOLITAN WASHINGTON;
VIRGINIA LEAGUE FOR PLANNED
PARENTHOOD; HILLCREST CLINIC;
RICHMOND MEDICAL CENTER FOR
WOMEN; THOMAS GRESINGER, M.D.;
COMMONWEALTH WOMEN'S CLINIC;
PLANNED PARENTHOOD OF
No. 97-1853
SOUTHEASTERN VIRGINIA,
Plaintiffs-Appellees,
v.
JAMES L. CAMBLOS, in his official
capacity as Commonwealth's
Attorney for the County of
Albemarle, and as a representative
of all the Commonwealth's
Attorneys in Virginia,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James C. Turk, District Judge.
(CA-97-43-C)
Argued: March 3, 1998
Decided: August 20, 1998
Before WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, LUTTIG,
WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Chief Judge Wilkinson and Judges Widener, Wil-
kins, Niemeyer, and Williams joined. Chief Judge Wilkinson wrote a
concurring opinion. Judge Widener wrote a concurring opinion. Judge
Michael wrote an opinion concurring in the judgment, in which
Judges Murnaghan, Ervin, and Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: William Henry Hurd, Deputy Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lant. Simon Heller, THE CENTER FOR REPRODUCTIVE LAW &
POLICY, New York, New York, for Appellees. ON BRIEF: Richard
Cullen, Attorney General of Virginia, Claude A. Allen, Deputy Attor-
ney General, Siran S. Faulders, Senior Assistant Attorney General,
Garland L. Bigley, Assistant Attorney General, Alison P. Landry,
Assistant Attorney General, Brian M. McCormick, Assistant Attorney
General, Daniel J. Poynor, Assistant Attorney General, Rita R. Woltz,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellant. Karen A. Raschke,
MACAULAY, LEE & POWELL, Richmond, Virginia, for Appellees.
_________________________________________________________________
OPINION
LUTTIG, Circuit Judge:
Following eighteen years of public debate among the citizens of the
Commonwealth of Virginia, the General Assembly of the Common-
wealth enacted, and the Governor of the Commonwealth signed into
law, the state's Parental Notice Act, which requires that a minor who
decides to have an abortion inform one of her parents twenty-four
2
hours prior to performance of the procedure. Only hours before this
law was to become effective, the federal district court for the Western
District of Virginia enjoined enforcement of the Act by the Common-
wealth. Upon extraordinary motion of Virginia's Attorney General,
we immediately stayed the district court's injunction, and allowed the
law to become effective in accordance with its terms.
We hold today that the Commonwealth's parental notice statute, as
legislation that respects the fundamental interests of responsible par-
ents in the rearing and in the educational, moral, and religious devel-
opment of their children, without unduly burdening the fundamental
abortion right, is facially constitutional under the Fourteenth Amend-
ment. A contrary holding -- that the People of Virginia are forbidden
by the Constitution of the United States from requiring that the
responsible mother and father of a pregnant teenage daughter even be
told of the life-defining decision their own daughter confronts -- we
are convinced, would be a holding not of law, but of will, and thus
would betray the trust upon which our very legitimacy as an institu-
tion depends.
I.
Virginia's Governor Allen signed into law the Commonwealth's
Parental Notice Act, Va. Code § 16.1-241(V), on March 22, 1997.
The Virginia General Assembly had passed the measure a month ear-
lier. By its terms, the Act was to become effective at 12:01 Tuesday
morning, July 1, 1997.
As the title denotes, the Act is a parental notice statute, not a paren-
tal consent statute; it prohibits a physician from performing an abor-
tion on an unemancipated minor unless, twenty-four hours in advance
of the procedure, notice of the anticipated abortion is provided to one
of the minor's parents, to a duly appointed legal guardian or custodian
of the minor, or to one standing in loco parentis to the minor.
The Act expressly allows the performance of abortions without
notice in circumstances in which the minor seeking the abortion has
been the victim of parental abuse or neglect, and in circumstances in
which either an abortion is immediately necessary to prevent the
3
mother's death or there is insufficient time to permit notification with-
out exposing the minor to serious health risk.
Although the Supreme Court has never held that a parental notifi-
cation law must include a judicial bypass procedure in order to with-
stand constitutional challenge, the Parental Notice Act includes such
a procedure. That procedure permits, if it does not require, authoriza-
tion of an abortion without parental notification for a minor who
shows that she is mature and capable of giving informed consent, and
it requires such authorization for an immature minor, and at least the
abused mature minor as well, as to whom it is determined that an
abortion would be in her best interest.
The Act confers upon every minor who avails herself of the bypass
procedure the right to participate in the court proceedings on her own
behalf and to have counsel assist her throughout the proceedings. If
the minor so requests, the court is obligated to appoint counsel for the
purpose of assisting the young woman in the bypass proceedings.
The Act also provides that bypass proceedings, which are to be
conducted before the Commonwealth's Juvenile and Domestic Rela-
tions District Court, "shall be confidential." And the statute further
provides both that judicial bypass proceedings "shall be given prece-
dence over other pending matters so that the court may reach a deci-
sion promptly and without delay in order to serve the best interests
of the minor" and that bypass petitions "shall be heard as soon as
practicable but in no event later than four days after the petition [seek-
ing judicial authorization] is filed." Finally, the Act provides any
minor for whom judicial bypass of notification is denied "an expe-
dited confidential appeal to the circuit court."
Notwithstanding the Commonwealth's inclusion of a judicial
bypass procedure in its Parental Notice Act, and of the other afore-
mentioned safeguards, the Federal District Court for the Western Dis-
trict of Virginia, on the eve of the Act's effective date, preliminarily
enjoined enforcement of the Act by the Commonwealth, holding that
a substantial probability exists that the Act is facially unconstitutional.
See District Court's Memorandum Op. at 7-8.
At 4:00 p.m. that afternoon, following issuance of the district
court's order and the district court's subsequent denial of the Com-
4
monwealth's motion for stay of its decision, the Commonwealth filed
a motion with a single Circuit Judge to stay the district court's injunc-
tion, and, at 7:45 p.m. that night, the judgment of the district court
was stayed pending appeal. See Planned Parenthood v. Camblos, 116
F.3d 707 (4th Cir. 1997). The stay was thereafter affirmed by the en
banc court, see Planned Parenthood v. Camblos, 125 F.3d 884 (4th
Cir. 1997), and the full en banc court subsequently heard oral argu-
ment in the matter on March 3, 1998.
II.
In enjoining Virginia's Parental Notice Act, the district court relied
entirely upon the Supreme Court's decision in Bellotti v. Baird, 443
U.S. 622 (1979) (Bellotti II), reasoning that, in that decision, the
Supreme Court had set forth the constitutional standards applicable to
state parental notification statutes, not merely parental consent stat-
utes. Thus, said the district court, "[t]his court will . . . apply [Planned
Parenthood v.] Casey, [505 U.S. 833 (1992)] and Bellotti II to the
case at bar. Bellotti II requires that a judicial bypass satisfy four
criteria." Memorandum Op. at 9 (footnote and citation omitted). And
the court went on to examine the judicial bypass provisions of Virgin-
ia's parental notification statute under the criteria identified by the
Court in Bellotti II as essential in order for a judicial bypass procedure
within a parental consent statute to satisfy the Constitution.
Specifically, the district court observed that the Supreme Court in
Bellotti II held that "[i]f [a pregnant minor] satisfies the court that she
is mature and well enough informed to make intelligently the abortion
decision on her own, the court must authorize her to act without
parental consultation or consent." Memorandum Op. at 10 (quoting
Bellotti II, 443 U.S. at 647 (op. of Powell, J.) (emphasis added by dis-
trict court)). The court then contrasted this requirement with the rele-
vant provision of the Commonwealth's Act, which provides that,
"[a]fter a hearing, a judge may authorize a physician to perform an
abortion upon finding that the minor is mature and capable of giving
informed consent to the proposed abortion." Id. (quoting Va. Code
§ 16.1-241 (V) (emphasis added by district court)). Concluding that
the Virginia statute confers upon the judicial officer the absolute dis-
cretion whether to authorize a physician to perform an abortion with-
out notice on a minor whom the court has determined is mature, the
5
district court held that "[t]his discretion violates the Bellotti II rule for
`mature' minors." Memorandum Op. at 11.
As discussed more fully below, although the Supreme Court held
in Bellotti II that parental consent statutes must include specified judi-
cial bypass procedures, including mandatory judicial bypass for
mature minors, the Court did not address what, if any, such proce-
dures are necessary in the context of a parental notice statute, like that
enacted by the Commonwealth. And although the Supreme Court has
subsequently upheld parental notice statutes which included Bellotti
II-style bypass procedures, see Lambert v. Wicklund, 117 S. Ct. 1169
(1997) (per curiam); Ohio v. Akron Center for Reproductive Health,
497 U.S. 502 (1990) (Akron II); Hodgson v. Minnesota, 497 U.S. 417
(1990), the Court has always carefully distinguished such statutes
from parental consent statutes, explicitly reserving the question of
what, if any, bypass procedures are required for parental notice stat-
utes, see, e.g., Lambert, 117 S. Ct. at 1171-72; Akron II, 497 U.S. at
510-11; see discussion infra.
In concluding that the Supreme Court has held that a parental noti-
fication statute must meet the very same requirements that obtain for
a parental consent statute, the district court seems to have confused
the question of the standard of review applicable in facial challenges
to abortion statutes and the question of the substantive requirements
that a state's judicial bypass must satisfy if it is to meet constitutional
standards. It appears that the district court conflated these two distinct
questions because of its misreading of the Eighth Circuit's decision
in Planned Parenthood v. Miller, 63 F.3d 1452 (8th Cir. 1995), as
equating the two separate questions. Thus, for example, and most tell-
ingly, the district court stated that,
[i]n [Miller], the Eighth Circuit considered whether Bellotti
II or [United States v.] Salerno, [481 U.S. 739 (1987),]
applied to a parental notification statute. The court con-
cluded that "the [Supreme] Court [in Casey, 505 U.S. at
833,] effectively overruled Salerno for facial challenges to
abortion statutes" and went on to apply the Bellotti II stan-
dard. Significantly, the Supreme Court denied certiorari of
Miller.
6
Memorandum Op. at 8 (citations omitted); see also id. (stating that
plaintiffs argue that "Casey left intact the Bellotti v. Baird standard
of review for judicial bypass provisions in parental consent statutes"
(citations omitted)). The Eighth Circuit in Miller, however, did not
reason or hold as the district court believed. That court first decided
that the standard of review articulated in Casey , rather than that in
Salerno, applies to facial challenges to abortion statutes and then, sep-
arately, concluded that a Bellotti II-type bypass procedure is required
if a parental notification statute is to be upheld as constitutional. As
that court framed the standard of review issue before it:
The critical issue in this case is a threshold one: what is the
standard for a challenge to the facial constitutionality of an
abortion law? The State would have us apply the test set out
in United States v. Salerno, 481 U.S. 739 (1987), under
which "the challenger must establish that no set of circum-
stances exists under which the Act would be valid." Salerno,
481 U.S. at 745. Planned Parenthood, on the other hand,
contends that the Supreme Court replaced the Salerno test
in Casey, 112 S. Ct. 2791. Under Casey, it claims, an abor-
tion law is unconstitutional on its face if, "in a large fraction
of the cases in which [the law] is relevant, it will operate as
a substantial obstacle to a woman's choice to undergo an
abortion." 112 S. Ct. at 2830.
Miller, 63 F.3d at 1456-57 (parallel citations omitted). Indeed, the
Eighth Circuit did not even cite Bellotti II in its discussion of the
appropriate standard of review. See Miller, 63 F.3d at 1456-58.
The district court compounded the error created by its misreading
of Miller by misunderstanding the Supreme Court's decision in
Lambert as "reinforc[ing]" its misreading of Miller. See Memorandum
Op. at 9. Specifically, the district court reasoned that the Supreme
Court affirmed in Lambert that Bellotti II applies in the context of
parental notification statutes because the Court described the Ninth
Circuit's error in that case merely as a "misapplication" of the Bellotti
II standard, and not as an application of the"wrong" standard. Thus,
said the district court:
The Supreme Court reinforced the Eighth Circuit's Miller
conclusion in Lambert v. Wicklund, 117 S. Ct. at 1169,
7
when it reversed a Ninth Circuit decision which held the
Montana Notice of Abortion Act unconstitutional under
Glick v. McKay, 937 F.2d 434 (1991). In its opinion, the
Court discussed the Ninth Circuit's application of the
Bellotti II standard to the Montana act and concluded that
the court had misapplied existing case law. Lambert, 117
S. Ct. at 1171. This discussion of the misapplication of the
Bellotti II standard -- as opposed to the application of the
wrong standard -- and the denial of certiorari in Miller
leads this court to conclude that the Supreme Court intends
for Casey and Bellotti II to be applied to parental notice
bypass provisions. This court will therefore apply Casey and
Bellotti II to the case at bar.
Memorandum Op. at 9 (emphases in original; footnote and citations
omitted). Contrary to the district court's belief, the Court in Lambert
said nothing whatsoever concerning the standard of review applicable
to facial challenges to abortion regulation statutes, as one would
expect given that Lambert was a summary reversal of the Ninth Cir-
cuit's decision, without even argument. Indeed, neither Salerno nor
Casey is even cited in the Court's relatively brief per curiam opinion
in Lambert.
In Lambert, the Supreme Court did, as the district court noted, dis-
cuss the Bellotti II criteria. But it did so only in demonstration that
the judicial bypass provision at issue in Lambert was "substantively
indistinguishable" from the bypass in the Ohio notice statute which
the Court sustained in Akron II on the grounds that it satisfied the
Bellotti II standards, and, therefore, that the Ninth Circuit's Lambert
decision "simply [could not] be squared with [the Supreme Court's]
decision in Akron II." 117 S. Ct. at 1171-72. The Court emphatically
did not apply Bellotti II, as the district court surmised, having con-
cluded that a parental notification statute must satisfy Bellotti II's
requirements for a bypass procedure within a parental consent statute.
In fact, in Lambert, the Court went out of its way to repeat both that
it had not held in Akron II that a parental notification statute must
include a bypass procedure and that it had held only that Ohio's
bypass provision "a fortiori . . . satisfied any criteria that might be
required for bypass provisions in parental notification statutes"
because it "satisfied the four Bellotti criteria required for bypass pro-
8
visions in parental consent statutes." Lambert, 117 S. Ct. at 1171. The
Court even chided the Ninth Circuit for invalidating Nevada's paren-
tal notification statute in Glick v. McKay, 937 F.2d 434 (9th Cir.
1991), the decision as to which the Ninth Circuit concluded in
Lambert that it was bound, "[d]espite the fact that Akron II involved
a parental notification statute, and Bellotti involved a parental consent
statute." Lambert, 117 S. Ct. at 1171. In doing so, the Court cited and
quoted Justice Stevens' concurrence in the judgment in Bellotti II that
Bellotti II did not determine "the constitutionality of a statute which
does no more than require notice to the parents, without affording
them or any other third party an absolute veto." Lambert, 117 S. Ct.
at 1171 n.3 (citing and quoting Bellotti II, 443 U.S. at 654 n.1 (Ste-
vens, J., concurring in the judgment)).
In the end, therefore, the district court correctly seemed to recog-
nize that an issue has arisen as to whether, in Casey, the Supreme
Court sub silentio overruled its decision in Salerno on the standard of
review applicable to facial challenges to statutes regulating abortion,
and therefore that a question exists as to whether the plaintiff in a
facial challenge to an abortion statute must show that "no set of cir-
cumstances exists under which the Act would be valid," Salerno, 481
U.S. at 745, or instead must show only that "in a large fraction of the
cases in which [the law] is relevant, it will operate as a substantial
obstacle to a woman's choice to undergo an abortion." Casey, 505
U.S. at 895.1 The district court erred, however, in reasoning from its
_________________________________________________________________
1 See also Janklow v. Planned Parenthood, 116 S. Ct. 1582, 1583
(1996) (Stevens, J., respecting the denial of certiorari) ("Salerno's rigid
and unwise dictum has been properly ignored in subsequent cases even
outside the abortion context."); id. at 1585 (Scalia, J., dissenting from
denial of certiorari) (noting that the Court has"sent mixed signals on the
question," but affirming his belief that the Court in Casey did not intend
to change the Salerno standard); Fargo Women's Health Organization v.
Schafer, 507 U.S. 1013, 1014 (1993) (O'Connor, J., concurring in denial
of application for stay and injunction pending appeal) ("In striking down
Pennsylvania's spousal-notice provision [in Casey], we did not require
petitioners to show that the provision would be invalid in all circum-
stances. Rather, we made clear that a law restricting abortions constitutes
an undue burden, and hence is invalid, if, `in a large fraction of the cases
in which [the law] is relevant, it will operate as a substantial obstacle to
9
conclusion that the Eighth Circuit was correct in Miller that Casey
overruled Salerno, that Bellotti II perforce establishes the proper stan-
dard of review for facial challenges to abortion regulation statutes and
directly controls the inquiry as to the constitutionality of judicial
bypass procedures within parental notification (and not just parental
consent) statutes. It is plain not only that Bellotti II does neither, but
also that the scope of the substantive holding of the Court in that deci-
sion will be unaffected by the final resolution of the question of
whether the standard of review is that in Salerno or Casey. That is,
regardless of the standard of review for facial challenges finally
adopted, the Court held in Bellotti II, as we discuss below, only that
a parental consent statute must include a judicial bypass procedure,
and only established the procedures necessary for a consent statute.
Accordingly, the conclusion of law on which the district court's
injunction to the Commonwealth rested, namely, that a parental noti-
fication statute must include a judicial bypass procedure that satisfies
Bellotti II's requirements governing bypass procedures in parental
consent statutes in order to be constitutional, was simply in error.
III.
We ordinarily review a district court's ruling on a preliminary
injunction only for abuse of discretion, that is, only in order to deter-
mine "whether the trial court abused its discretion in finding the pres-
ence or absence of irreparable harm and a probability that the
plaintiffs would succeed on the merits," Thornburgh v. American Col-
lege of Obstetricians and Gynecologists, 476 U.S. 747, 755 (1986).
Cf. University of Texas v. Camenisch , 451 U.S. 390, 395 (1981) (stat-
ing that "it is generally inappropriate for a federal court at the
preliminary-injunction stage to give a final judgment on the merits"
_________________________________________________________________
a woman's choice to undergo an abortion.'" (emphasis in original) (cita-
tion omitted)). Compare Casey v. Planned Parenthood, 14 F.3d 848, 863
n.21 (3d Cir. 1994), with Barnes v. Moore, 970 F.2d 12, 14 & n.2 (5th
Cir. 1992). Because we conclude today that the Commonwealth's paren-
tal notice statute is facially constitutional under either the Salerno or the
Casey standard, we need not, and do not, decide which of these two stan-
dards applies in facial challenges to abortion statutes.
10
(emphasis added)); Alabama v. United States, 279 U.S. 229, 231
(1929) (similar). However, it is only as a prudential matter that we
normally so circumscribe our review. In other words, this practice is
"a rule of orderly judicial administration," Thornburgh, 476 U.S. at
757, and not an "inflexible" "limit on[our] judicial power," id. at 756-
57. Where a district court's decision "rests solely on a premise as to
the applicable rule of law, and the facts are established or of no con-
trolling relevance," id. at 757, we may, even on appeal from the entry
of a preliminary injunction, proceed to the merits underlying the dis-
trict court's judgment. For, in such cases, "[t]he customary discretion
accorded to a District Court's ruling on a preliminary injunction
yields to our plenary scope of review as to the applicable law." Id.
(quoting American College of Obstetricians and Gynecologists v.
Thornburgh, 737 F.2d 283, 290 (3d Cir. 1984)); see also Youngstown
Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 585 (1952) (finding,
despite the early stage of the litigation, that the case was ripe for mer-
its review on appeal from stay of preliminary injunction).
Appellate adjudication of the underlying legal merits, on an appeal
from the issuance of a preliminary injunction, is most clearly justified
where not only does the injunction rest entirely upon a pure question
of law, but it is plain that the plaintiff cannot prevail as a matter of
the governing law. When this is apparent to the court of appeals, a
defendant is, as the Supreme Court has observed for more than a cen-
tury, entitled both to immediate relief and to relief from the expense
of further litigation. See, e.g., Thornburgh, 476 U.S. at 756 (citing
Smith v. Vulcan Iron Works, 165 U.S. 518, 525 (1897)); Deckert v.
Independence Shares Corp., 311 U.S. 282, 287 (1940); North Caro-
lina Railroad Co. v. Story, 268 U.S. 288, 292 (1925) ("By the ordi-
nary practice in equity as administered in England and this country,
an appellate court has the power on appeal from a temporary or inter-
locutory order or decree to examine the merits of the case if suffi-
ciently shown by the pleadings and the record and upon deciding
them in favor of the defendant to dismiss the bill and save both parties
the needless expense of further prosecution of the suit."); City of
Denver v. New York Trust Co., 229 U.S. 123, 136 (1913) (explaining
that the appellate power to review preliminary injunctions "is not con-
fined to the act of granting the injunctions, but extends as well to
determining whether there is any insuperable objection, in point of
jurisdiction or merits" to the underlying claim,"and, if so, to directing
11
a final decree dismissing it"); Metropolitan Water Co. v. Kaw Valley
Drainage District, 223 U.S. 519, 523 (1912) ("For, while at one time
there was some difference in the rulings on that subject, it was finally
settled by Smith v. Vulcan Iron Works , 165 U.S. 518, that, on appeal
from a mere interlocutory order, the circuit court of appeals might
direct the bill to be dismissed if it appeared that the complainant was
not entitled to maintain its suit." (parallel citations omitted)).
These principles confirm the appropriateness of our proceeding to
the underlying merits in this case. Here, the district court's injunction
rests entirely upon that court's holding, as a matter of pure law, that
a parental notice statute must include a judicial bypass in order to be
constitutional and that that bypass must be identical to that required
in order to sustain a parental consent statute. And the district court
fundamentally erred in its resolution of these questions.
Furthermore, the facts necessary to resolve these issues are undis-
puted, as even the plaintiffs-appellees correctly conceded at argument.
Consequently, additional proceedings in the district court would serve
no purpose whatsoever. While the parties dispute the precise contours
of the judicial bypass included within the Commonwealth's parental
notice statute (in particular, the meaning of the maturity bypass and
the scope and efficacy of its requirements for confidentiality and
expeditiousness), these disputes turn upon disagreements as to the
proper interpretation of the statute, and secondarily upon predictions
as to how the statute will actually operate in practice -- disagree-
ments resolvable ultimately, not through determinations of fact, but
rather only through determinations of, and predictions as to, state law.
Because the appellate court does not defer to the trial court on inter-
pretations of state law, see Salve Regina College v. Russell, 499 U.S.
225, 231 (1991), and the parties have already extensively briefed,
both before the district court and this court, their respective predic-
tions as to how the statute will actually be applied, further proceed-
ings in the district court would obviously aid neither enterprise.
Recognizing that this dispute is ripe for consideration on the mer-
its, the parties themselves agreed at oral argument that further pro-
ceedings in the district court are not necessary and that resolution of
the merits of the dispute by this court would be appropriate. There-
fore, rather than extend this litigation -- which is plainly ripe for final
12
adjudication, implicates fundamental constitutional rights as deter-
mined by the Supreme Court, and has already been pending for over
a year -- we proceed to the merits of plaintiffs' contention that Vir-
ginia's Parental Notice Act, on its face, violates the Fourteenth
Amendment rights of minor women in the Commonwealth who
choose to have abortions.
IV.
The Supreme Court held in Roe v. Wade , 410 U.S. 113 (1973), that
a woman has a fundamental liberty interest in the decision whether to
carry a pregnancy to term, and, in Planned Parenthood v. Casey, the
Court reaffirmed that a woman has the "right`to be free from unwar-
ranted governmental intrusion'" in making the abortion decision, 505
U.S. at 875 (joint op. of O'Connor, Kennedy, and Souter, JJ.) (quot-
ing Eisenstadt v. Baird, 405 U.S. 438, 453 (1972)). In accordance
with its recognition of this fundamental liberty interest, the Court has
consistently held that the state may not permit another to exercise, in
fact or in effect, an absolute, and therefore potentially arbitrary, veto
over a woman's -- even a minor woman's -- decision whether to ter-
minate her pregnancy.
Since Roe, the Court has reviewed both parental consent and paren-
tal notice statutes challenged on the grounds that they impermissibly
permitted third-party veto of the abortion decision, invalidating sev-
eral parental consent statutes on the grounds that they did effectively
permit such veto of the abortion decisions of mature minors and
minors for whom an abortion was in their best interest. The Court first
addressed the constitutionality of a parental consent statute in
Planned Parenthood v. Danforth, 428 U.S. 52 (1976). Because it con-
ferred on the parent "an absolute, and possibly arbitrary, veto over the
decision" of the minor and her doctor to terminate the minor's preg-
nancy, the Court struck down a "blanket" parental consent provision
that prohibited all minors under the age of eighteen from obtaining an
abortion without a parent's consent.2 Id. at 74.
_________________________________________________________________
2 The Supreme Court also invalidated in Danforth a blanket provision
requiring married women to obtain the consent of their husbands before
obtaining abortions, because that requirement afforded husbands an
absolute veto -- "exercisable for any reason whatsoever or for no reason
at all" -- over their wives' abortion decisions. Id. at 71.
13
Three years later, in Bellotti II, the Court considered a parental
consent statute that required a minor to obtain the consent of both of
her parents or of a court before she could have an abortion. Again
expressing concern over the possibility of an impermissible, absolute
parental veto over the minor's abortion decision, the principal opinion
of the Court held that,
if the State decides to require a pregnant minor to obtain one
or both parents' consent to an abortion, it also must provide
an alternative procedure whereby authorization for the abor-
tion can be obtained.
443 U.S. at 643 (op. of Powell, J.) (footnote omitted). The principal
opinion defined the constitutional requirements for that alternative, or
bypass, procedure as follows:
A pregnant minor is entitled in such a proceeding to show
either: (1) that she is mature enough and well enough
informed to make her abortion decision, in consultation with
her physician, independently of her parents' wishes; or (2)
that even if she is not able to make this decision indepen-
dently, the desired abortion would be in her best interests.
The proceeding in which this showing is made must assure
that a resolution of the issue, and any appeals that may fol-
low, will be completed with anonymity and sufficient expe-
dition to provide an effective opportunity for an abortion to
be obtained. In sum, the procedure must ensure that the pro-
vision requiring parental consent does not in fact amount to
the "absolute, and possibly arbitrary, veto" that was found
impermissible in Danforth.
Bellotti II, 443 U.S. at 643-44 (op. of Powell, J.) (footnote omitted).
It then went on to invalidate the Massachusetts consent statute in
question because it permitted the court to exercise an absolute veto
over the abortion decision of a minor whom the court determined to
be "mature and fully competent to make th[e] decision indepen-
dently," id. at 651, a discretion the first of the four Bellotti II criteria
forbids. See id. (op. of Powell, J., joined by Burger, C.J., and Stewart
and Rehnquist, JJ.); id. at 653-56 (Stevens, J., joined by Brennan,
Marshall, and Blackmun, JJ., concurring in the judgment) (concluding
14
that the statute was unconstitutional because it subjected the abortion
decision of every minor -- "no matter how mature" -- to "an absolute
third-party veto" by either a parent or a judge). 3
Although the Court invalidated Massachusetts' two-parent consent
statute for the reasons stated, a majority of the Court expressed that,
because of the value of responsible parental involvement in the
minor's abortion decision, it would have upheld the state's two-parent
consent statute if that statute had included a bypass that satisfied the
criteria outlined in the principal opinion:
We are not persuaded that, as a general rule, the requirement
of obtaining both parents' consent unconstitutionally bur-
dens a minor's right to seek an abortion. The abortion deci-
sion has implications far broader than those associated with
most other kinds of medical treatment. At least when the
parents are together and the pregnant minor is living at
home, both the father and mother have an interest-- one
normally supportive -- in helping to determine the course
that is in the best interests of a daughter. Consent and
involvement by parents in important decisions by minors
long have been recognized as protective of their immaturity.
Id. at 649 (op. of Powell, J.); see id . at 643-44; id. at 656-57 (White,
J., dissenting) (noting his continuing dissent from the holding of
Danforth that a state cannot require a minor to obtain the consent of
her parents before undergoing an abortion). And, in Planned
Parenthood v. Ashcroft, 462 U.S. 476 (1983), the Court did sustain
a one-parent consent statute that included a judicial bypass that
allowed the minor to obtain an abortion without consent if she proved
that she was mature enough to make her own decision or that the
abortion was otherwise in her best interests. See id. at 491-93. The
_________________________________________________________________
3 The Court confirmed the necessity of an adequate bypass procedure
to parental consent requirements in Akron v. Akron Center for Reproduc-
tive Health, Inc., 462 U.S. 416 (1983) ("Akron I") (overruled in part by
Casey, 505 U.S. at 870, 882-85), when it struck down an Ohio parental
consent statute that made no provision for a minor to make an individual-
ized showing that she was mature enough to make her own decision, see
id. at 440-41.
15
Court similarly upheld a one-parent consent statute in Casey that
allowed a bypass of consent if the minor could demonstrate to the
court that she "[wa]s mature and capable of giving informed consent
and ha[d] in fact given her informed consent, or that an abortion
would be in her best interests." 505 U.S. at 899 (joint op.); id. at 970-
71 (Rehnquist, C.J., joined by White, Scalia, and Thomas, JJ., concur-
ring in the judgment in part and dissenting in part) (upholding the
parental consent provision).
Thus, although the Supreme Court has held that states may permis-
sibly condition a minor's abortion even on parental consent to the
procedure, it has required that parental consent statutes include
Bellotti II judicial bypasses in order to ensure that the minor's deci-
sion is not subject to an absolute and arbitrary third-party veto. See
Casey, 505 U.S. at 899 (joint op.) ("reaffirm[ing] . . . that a State may
require a minor seeking an abortion to obtain the consent of a parent
or guardian, provided that there is an adequate judicial bypass
procedure").4
In contrast to its assessment of parental consent statutes, the Court
has consistently recognized that the same potential for absolute veto
over the abortion decision that inheres in a parental consent statute
does not inhere in a parental notice statute, and therefore that notice
statutes are fundamentally different from -- and less burdensome
than -- consent statutes. As Justice Kennedy stated for four Members
of the Court in Hodgson,
[t]he difference between notice and consent[requirements]
_________________________________________________________________
4 In so holding, the joint opinion in Casey explicitly distinguished
parental notice and consent requirements from spousal notice require-
ments, which the Court invalidated as unduly burdensome. See, e.g.,
Casey, 505 U.S. at 895 (joint op.) ("[Parental notice and consent require-
ments], and our judgment that they are constitutional, are based on the
quite reasonable assumption that minors will benefit from consultation
with their parents and that children will often not realize that their par-
ents have their best interests at heart. We cannot adopt a parallel assump-
tion about adult women."); id. at 898 ("A State may not give to a man
the kind of dominion over his wife that parents exercise over their chil-
dren.").
16
was apparent to us before and is apparent now. Unlike
parental consent laws, a law requiring parental notice does
not give any third party the legal right to make the minor's
decision for her, or to prevent her from obtaining an abor-
tion should she choose to have one performed. We have
acknowledged this distinction as "fundamental," and as one
"substantially modify[ing] the federal constitutional chal-
lenge."
497 U.S. at 496 (Kennedy, J., joined by Rehnquist, C.J., and White
and Scalia, JJ., concurring in the judgment in part and dissenting in
part) (quoting Bellotti v. Baird, 428 U.S. 132, 145, 148 (1976)
(Bellotti I)). And Justices Stevens and O'Connor have likewise noted
that,
[a]lthough the Court has held that parents may not exercise
"an absolute, and possibly arbitrary, veto" over [the abor-
tion] decision, it has never challenged a State's reasonable
judgment that the decision should be made after notification
to and consultation with a parent.
Hodgson, 497 U.S. at 445 (op. of Stevens, J., joined by O'Connor, J.)
(citation omitted); compare Akron II, 497 U.S. at 511 (majority) (cit-
ing H.L. v. Matheson, 450 U.S. 398, 411 n.17 (1981), for observation
that "notice statutes are not equivalent to consent statutes because
they do not give anyone a veto power over a minor's abortion deci-
sion"), with id. at 526 (Blackmun, J., joined by Brennan and Marshall,
JJ., dissenting) ("I conclude . . . [that] a parental-notice statute is tan-
tamount to a parental-consent statute. As a practical matter, a notifica-
tion requirement will have the same deterrent effect on a pregnant
minor seeking to exercise her constitutional right as does a consent
statute.").
The Court has addressed the constitutionality of parental notice
provisions in four cases. In the first, H.L. v. Matheson, 450 U.S. 398
(1981), it held that a state can, without providing any bypass proce-
dure at all, constitutionally require notice to the parents of an uneman-
cipated minor who has "made no claim or showing as to her maturity
or as to her relations with her parents." Id . at 407. The Court
explained that even if "the requirement of notice to parents [might]
17
inhibit some minors from seeking abortions," id. at 413, the require-
ment extended to "neither parents nor judges a veto power over the
minor's abortion decision," id. at 411 (footnote omitted), and there-
fore was constitutionally permissible:
Although we have held that a state may not constitutionally
legislate a blanket, unreviewable power of parents to veto
their daughter's abortion, a statute setting out a"mere
requirement of parental notice" does not violate the constitu-
tional rights of an immature, dependent minor.
Id. at 409 (footnotes omitted).
Since Matheson, the Court has twice more upheld parental notice
statutes. In each of these instances, the statute included the Bellotti II
bypass procedures required for consent statutes, and the Court simply
sustained the statutes on the grounds that a notice statute that satisfies
the requirements for a consent statute necessarily satisfies any
requirements that might exist for a mere notice statute. In Akron II,
the Court sustained Ohio's single-parent notification statute, which
included a judicial bypass that met the Bellotti II consent bypass
requirements. Akron II, 497 U.S. at 511-15. And most recently, in
Lambert, the Court summarily reversed a Ninth Circuit decision
which invalidated a Montana one-parent notice provision that
included a Bellotti II bypass. Lambert , 117 S. Ct. at 1172; see discus-
sion supra.
Indeed, in the twenty-five years since Roe v. Wade, the Supreme
Court has invalidated only one parental notice provision -- the Min-
nesota two-parent notification provision at issue in Hodgson -- and
that was on the narrow ground that the statute failed to provide ade-
quate exceptions to notice in circumstances where a parent was abu-
sive or had not assumed the responsibilities of parenthood.
The Court in Hodgson was so fractured as to render its opinions
collectively all but impenetrable, with five different Justices filing
opinions variously concurring and dissenting in other opinions and
parts of other opinions, prompting Justice Scalia to canvass thus the
Court's action in Hodgson (and in Akron II, decided the same day):
18
One Justice holds that two-parent notification is unconstitu-
tional (at least in the present circumstances) without judicial
bypass, but constitutional with bypass; four Justices would
hold that two-parent notification is constitutional with or
without bypass; four Justices would hold that two-parent
notification is unconstitutional with or without bypass,
though the four apply two different standards; six Justices
hold that one-parent notification with bypass is constitu-
tional, though for two different sets of reasons; and three
Justices would hold that one-parent notification with bypass
is unconstitutional.
Hodgson, 497 U.S. at 479-80 (citations omitted) (Scalia, J., concur-
ring in the judgment in part and dissenting in part). But at the end of
the day, one majority of the Court struck down the state's two-parent
notification provision without any bypass, see id. at 455 (op. of Ste-
vens, J., for the Court), and a different majority sustained the statute
with a Bellotti II bypass, which became operative in the event of the
notification provision's invalidation, see Hodgson, 497 U.S. at 461
(O'Connor, J, concurring in part and concurring in the judgment in
part); id. at 496 (Kennedy, J., joined by Rehnquist, C.J., and White
and Scalia, JJ., concurring in the judgment in part and dissenting in
part).
The specific reasoning of the individual Justices was as follows.
Four Justices, it is plain, would have upheld Minnesota's two-
parent notice statute without any judicial bypass at all, reasoning that
it is "permissible for a State to legislate on the premise that parents,
as a general rule, are interested in their children's welfare and will act
in accord with it." See id. at 485, 489-497 (Kennedy, J., joined by
Rehnquist, C.J., White and Scalia, JJ., concurring in the judgment in
part and dissenting in part).
Four other Members of the Court joined in an opinion written by
Justice Stevens that could fairly be understood as holding that all two-
parent notice statutes are per se unconstitutional because (with respect
to the functioning family) they either "fail to serve any state interest"
at all or fail to serve any "legitimate interest," id. at 450 (op. of Ste-
vens, J., for the Court), and because (with respect to the dysfunctional
19
family) they actually "disserve[ ] the state interest in protecting and
assisting the minor" by "prov[ing] positively harmful to the minor and
her family." Id. Justice Stevens' opinion notes that the state defended
the statute on the basis of its interest in having the minor make the
abortion decision "only after consultation with both parents who
should naturally be concerned with the child's welfare" and "in pro-
tecting the independent right of the parents `to determine and strive
for what they believe to be best for their children,'" id. at 451-52
(citation omitted), and then states, without qualification, that
"[n]either of these reasons can justify the two-parent notification
requirement," id. at 452. Then, after surveying statutes nationwide
"governing the health, welfare, and education of children" that autho-
rized a minor to act with notice to or with the consent of a single par-
ent or guardian, and declaring the Minnesota statute an "oddity" by
comparison, id. at 454, the opinion concludes:
These statutes provide testimony to the unreasonableness of
the Minnesota two-parent notification requirement and to
the ease with which the State can adopt less burdensome
means to protect the minor's welfare. We therefore hold that
this requirement violates the Constitution.
Id. at 455 (citations omitted); see also id. at 481 (Kennedy, J., concur-
ring in the judgment in part and dissenting in part) ("Today, the Court
holds that a statute requiring a minor to notify both parents that she
plans to have an abortion is not a permissible means of furthering the
[state's interest in encouraging a minor to seek the advice of her par-
ents when making the abortion decision.]").
It is apparent, however, that, although Justice O'Connor provided
the fifth vote for the majority that invalidated the Minnesota notice
statute without a bypass, she did not subscribe to the precise reason-
ing in Justice Stevens' opinion. In her separate opinion in which she
sets forth her own reasoning for invalidating Minnesota's two-parent
notice statute, Justice O'Connor contrasts the Minnesota statute with
the statute in Arkansas, which, she noted, provided for exceptions to
its two-parent notice requirement that would permit notice bypass in
instances of abuse and permanently absent parents. See id. at 459-60
("Subdivision 2 is the most stringent notification statute in the coun-
try. The only other State that defines the generic term `parents' as
20
`both parents' is Arkansas, and that statute provides for numerous
exceptions to the two-parent notification requirement and permits
bypassing notification where notification would not be in the best
interests of the minor." (citations omitted)). She then identifies the
specific flaws in the statute that prompted her vote to strike down the
statute as first, that its exception to notification for abused or
neglected minors was "less than effectual" because "in reality, [it was]
a means of notifying the parents," and, second, that the statute
required two-parent notice when "only half of the minors in the State
of Minnesota reside with both biological parents" and "[a] third live
with only one parent." Id. Justice O'Connor thus makes clear that she
struck down the statute, not because a state may never require notice
to both a mother and a father, but, rather, because of the "broad
sweep" of Minnesota's statute in particular, and"its failure to serve
the purposes asserted by the State in too many cases." Id. at 460
(O'Connor, J., concurring in part and concurring in the judgment in
part); see also id. at 459 ("I agree with JUSTICE STEVENS that
Minnesota has offered no sufficient justification for its interference
with the family's decisionmaking processes created by subdivision 2
. . . ." (emphasis added)); id. at 479 (Scalia, J., concurring in the judg-
ment in part and dissenting in part) (noting that he understood Justice
O'Connor's opinion as holding "that two-parent notification is uncon-
stitutional (at least in the present circumstances) without judicial
bypass, but constitutional with bypass" (emphasis added)).
That this was Justice O'Connor's understanding also of Justice Ste-
vens' opinion, and thus was the narrow grounds upon which Justice
Stevens' opinion rests, is conclusively confirmed by the fact that Jus-
tice O'Connor ultimately voted to sustain the Minnesota statute, with
a judicial bypass. Id. at 461 (O'Connor, J., concurring in part and con-
curring in the judgment in part). Obviously, if Justice O'Connor had
believed that a state never has a legitimate interest in notice to both
parents -- as Justice Stevens' opinion could be read to hold, and as,
from his opinion in dissent, he appears to believe, see id. at 455-58
(Stevens, J., dissenting) -- she could not have sustained the provision
with the bypass. In fact, the Court as a whole could not have upheld
the Minnesota statute with the bypass, as it did, if five Justices had
actually held that the state has no interest whatsoever in requiring that
two parents be notified of their minor daughter's abortion decision.
See id. at 461 (O'Connor, J., concurring in part and concurring in the
21
judgment in part) (upholding the two-parent notice statute with
bypass); id. at 497 (Kennedy, J., joined by Rehnquist, C.J., and White
and Scalia, JJ., concurring in part and dissenting in part). As Justice
Stevens noted in his dissent, a bypass cannot save a statute that is not
reasonably related to any legitimate state interest in the first place. Id.
at 457.
Therefore, it is evident that the Court in Hodgson did not hold that
a two-parent notice requirement is per se unconstitutional; in fact, a
majority of the Court held that a two-parent notice requirement gener-
ally furthers important and legitimate state interests. It is equally evi-
dent that the Court did not hold that a parental notification statute --
even a two-parent statute -- must include a judicial bypass in order
to be constitutional. As noted, Justices Kennedy, White, Rehnquist
and Scalia would have sustained the statute even without the bypass
and actually did (together with Justice O'Connor) sustain the statute
with the bypass. Justice O'Connor voted to invalidate the statute with-
out the bypass, but only because it failed adequately to provide excep-
tions to notice for the abusive parent5 and the parent who failed to
accept the responsibilities of parenthood. And she ultimately voted to
uphold the statute, not because all two-parent notice statutes require
a Bellotti II bypass and the modified Minnesota statute contained such
a bypass, but, rather, because the statute's Bellotti II bypass necessar-
ily cured the defects she identified in Minnesota's notice statute. See
Akron II, 497 U.S. at 511 ("As we hold today in Hodgson v.
Minnesota, it is a corollary to the greater intrusiveness of consent stat-
utes that a bypass procedure that will suffice for a consent statute will
suffice also for a notice statute." (citations omitted; emphasis added)).
That the Court did not strike down the statute because it lacked a
_________________________________________________________________
5 Although the Minnesota statute purported to include an exception to
notice for abused minors, if the minor availed herself of the exception by
declaring herself abused, the abuse, by law, had to be reported immedi-
ately to state authorities. The resulting investigation would result in
notice to the parent. Id. at 426 n.7 (op. of Stevens, J., for the Court); see
also id. at 460 (O'Connor, J., concurring in part and concurring in the
judgment in part) ("The Minnesota exception to notification for minors
who are victims of neglect or abuse is, in reality, a means of notifying
the parents.").
22
judicial bypass, but, rather, because of the overbreadth of the statute's
notice requirement, even appears upon a careful reading of Justice
Stevens' opinion. As that opinion recites its holding at the beginning
of its analysis: "It is equally clear that the requirement that both par-
ents be notified, whether or not both wish to be notified or have
assumed responsibility for the upbringing of the child, does not rea-
sonably further any legitimate state interest." Hodgson, 497 U.S. at
450 (op. of Stevens, J., for the Court) (first emphasis in original; sec-
ond emphasis added); see also id. at 424-25 ("No exception [to the
notice requirement] is made for a divorced parent, a noncustodial par-
ent, or a biological parent who never married or lived with the preg-
nant woman's mother."); id. at 445-46 (noting that biological parents'
"interest in controlling the education and upbringing of their children"
rises to "the level of a liberty interest" only "through the assumption
of personal, financial, or custodial responsibility").
Indeed, the very same day that Hodgson was decided, the Court in
Akron II, avoiding the notice bypass issue in the same way that it had
in Hodgson, expressly confirmed, in an opinion in which Justice
O'Connor herself joined, that it had yet to decide whether the Consti-
tution requires that a parental notice statute include a judicial bypass:
[A]lthough our cases have required bypass procedures for
parental consent statutes, we have not decided whether
parental notice statutes must contain such procedures. See
Matheson, [450 U.S. at 413 & 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, [the Ohio parental
notice statute's] bypass procedure meets the requirements
identified for parental consent statutes . . . .
Akron II, 497 U.S. at 510; see also Lambert, 117 S. Ct. at 1171 (reaf-
firming that, in Akron II (and therefore presumably in Hodgson as
well), the Court had "declined to decide whether a parental notifica-
tion statute must include some sort of bypass provision to be constitu-
23
tional"). And the question of whether a bypass is necessary within a
parental notice (as opposed to consent) statute still remains open today.6
_________________________________________________________________
6 To the extent that the principal opinion in Bellotti II suggests that
some bypass to parental notice may be required, see, e.g., 443 U.S. at
646-48 (op. of Powell, J.), that suggestion is dicta which failed to com-
mand a majority of the Court. In fact, Justice Stevens, writing for himself
and the three other Justices whose concurrence in the judgment was nec-
essary to invalidate the parental consent provision at issue in Bellotti,
explicitly stated that "this case [does not] determin[e] the constitutional-
ity of a statute which does no more than require notice to the parents,
without affording them or any other third party an absolute veto." Id. at
654 n.1 (Stevens, J., concurring in the judgment). The Court in Lambert
even relied upon this statement by Justice Stevens in support of its con-
clusion that, in Bellotti II, it had addressed only a parental consent stat-
ute, and in affirming that whether parental notice statutes must include
some sort of bypass remains an open question. See Lambert, 117 S. Ct.
at 1171 & n.3; see also Matheson, 450 U.S. at 411 n.17 ("In Bellotti II
. . . we expressly declined to equate notice requirements with consent
requirements.").
Contrary to Justice Stevens' suggestion in concurrence in Akron II, see
497 U.S. at 522-23 (Stevens, J., concurring in part and concurring in the
judgment), the Court in Akron I also did not hold that some bypass to
notice -- judicial or other -- is required. The Court in Akron I invali-
dated the parental consent statute there at issue because it did not believe
that the statute was "reasonably susceptible of being construed to create
`an opportunity for case-by-case evaluations of the maturity of pregnant
minors,'" Akron I, 462 U.S. at 441 (quoting Bellotti II, 443 U.S. at 643
n.23 (op. of Powell, J.)). The Court opined in a footnote that even if the
general Ohio statute governing juvenile proceedings could be construed
to create procedures allowing a minor to make an individualized showing
of maturity, those procedures would nonetheless be inadequate to cure
the constitutional infirmity of the consent requirement because, under
state law, the minor's parents would receive notice if the minor availed
herself of the procedures. See id. at 441 n.31. This footnote suggestion
was obviously dicta to the Court's holding that the statute did not create
a maturity bypass to its consent requirement. Cf . id. at 469 n.12
(O'Connor, J., dissenting) ("In my view, no decision of this Court has yet
held that parental notification in the case of mature minors is unconstitu-
tional.").
24
V.
Turning now to this question for the first time in our Circuit, we
conclude, based upon the substantial authority from the Court empha-
sizing the fundamental differences between consent and notice stat-
utes, that the Constitution does not require for"mere notice" statutes
the full panoply of safeguards required by the Court in Bellotti II for
parental consent statutes. In particular, we conclude that a parental
notice statute that includes the exceptions to notice identified in
Hodgson is, without more, facially constitutional. That is, provided
that a parental notice statute does not condition the minor's access to
abortion upon notice to abusive or neglectful parents, absent parents
who have not assumed their parental responsibilities, or parents with
similar relationships to their daughters, we do not believe that more
is required in order to withstand a facial challenge to its constitution-
ality. For a parental notice statute -- unlike either a spousal notice or
a blanket parental consent statute -- has neither"the purpose [n]or
effect of placing a substantial obstacle in the path of a woman seeking
an abortion," Casey, 505 U.S. at 877 (joint op.), and therefore cannot
reasonably be said to unduly burden the minor's abortion right, see
id.
A.
1.
A parental notice statute -- one-parent or two-parent -- that
excepts from its requirements notice to the abusive or neglectful par-
ent, or the parent who has not assumed responsibility for the minor,
indisputably furthers legitimate and important state interests.
Such a notice statute serves the compelling state interest in secur-
ing inviolate the right of a mother and a father to rear their child as
they see fit, and to participate fully in that child's life, as free from
governmental interference as constitutionally permissible. It is a fun-
damental premise of our society that "[t]he child is not the mere crea-
ture of the State" and that "those who nurture him and direct his
destiny have the right, coupled with the high duty, to recognize and
prepare him for," the challenges and decisions of life. Bellotti II, 443
U.S. at 637 (op. of Powell, J.); see also Hodgson, 497 U.S. at 445 (op.
25
of Stevens, J.) (stating that as "`a counterpart of the responsibilities
they have assumed[,]'" "[p]arents have an interest in controlling the
education and upbringing of their children") (quoting Lehr v.
Robertson, 463 U.S. 248, 257 (1983)). As the Court observed in
Matheson, "constitutional interpretation has consistently recognized
that the parents' claim to authority in their own household to direct
the rearing of their children is basic in the structure of our society."
450 U.S. at 410 (quoting Ginsberg v. New York, 390 U.S. 629, 639
(1968)); see also Bellotti II, 443 U.S. at 638 (op. of Powell, J.)
("[D]eeply rooted in our Nation's history and tradition[ ] is the belief
that the parental role implies a substantial measure of authority over
one's children."). And as Justice Kennedy has stated,
[t]he history and culture of Western civilization reflect a
strong tradition of parental concern for the nurture and
upbringing of their children. This primary role of the parents
in the upbringing of their children is now established
beyond debate as an enduring American tradition.
Hodgson, 497 U.S. at 484 (Kennedy, J., concurring in the judgment
in part and dissenting in part) (internal quotation and citation omit-
ted).
Indeed, the parental right to shape and direct the life of one's child
during that child's minority is itself a fundamental liberty interest pro-
tected by the Constitution:
The Court has frequently emphasized the importance of the
family. The rights to conceive and to raise one's children
have been deemed essential, basic civil rights of man . . . .
It is cardinal with us that the custody, care and nurture of the
child reside first in the parents, whose primary function and
freedom include preparation for obligations the state can
neither supply nor hinder.
Id. at 447 (op. of Stevens, J.) (internal quotations and citations omit-
ted); see also Bellotti II, 443 U.S. at 639 n.18 (op. of Powell, J.) ("The
Court's opinions [in] Pierce, Yoder, Prince and Ginsburg . . . all have
contributed to a line of decisions suggesting the existence of a consti-
tutional parental right against undue, adverse interference by the
26
State."); Matheson, 450 U.S. at 410 ("We have recognized on numer-
ous occasions that the relationship between parent and child is consti-
tutionally protected." (citations omitted)); see also Hodgson, 497 U.S.
at 484 (Kennedy, J., concurring in the judgment in part and dissenting
in part). And this parental liberty interest is, the Court has recognized,
fully consistent with the minor's liberty interest in the abortion deci-
sion. See, e.g., id. at 444 n.31 (op. of Stevens, J.) ("Properly under-
stood . . . the tradition of parental authority is not inconsistent with
our tradition of individual liberty; rather, the former is one of the
basic presuppositions of the latter.") (quoting Bellotti II, 443 U.S. at
638 (op. of Powell, J.)). In fact, this fundamental parental interest,
derivatively asserted by the state on behalf of the parent, is at its
zenith when the decision as to which parental involvement is urged
is one -- like the abortion decision -- with profound and enduring
consequences not merely for the physical well-being of the child, but
for the child's spiritual, moral, and emotional development. See
Bellotti II, 443 U.S. at 637-38, 640 (op. of Powell, J.); see also
Danforth, 428 U.S. at 103 (Stevens, J., concurring in part and dissent-
ing in part) ("[E]ven if [the abortion decision] is the most important
kind of a decision a young person may ever make, that assumption
merely enhances the quality of the State's interest in maximizing the
probability that the decision be made correctly and with full under-
standing of the consequences of either alternative"); Casey, 505 U.S.
at 899-900 (joint op.) (explaining that waiting period required by
informed parental consent provision legitimately provided "the parent
or parents of a pregnant young woman the opportunity to consult with
her in private, and to discuss the consequences of her decision in the
context of the values and moral or religious principles of their fam-
ily"); Hodgson, 497 U.S. at 480 (Kennedy, J., concurring in the judg-
ment in part, and dissenting in part) (describing abortion decision as
a "grave" one, and observing that "a girl of tender years, under emo-
tional stress, may be ill-equipped to make it without mature advice
and emotional support") (quoting Bellotti II , 443 U.S. at 641 (opinion
of Powell, J.)).
Because parents do have a fundamental liberty interest in the parent
to child relationship, see id. at 484 -- an interest that is not only com-
patible with, but also supportive of, the minor's liberty interest in her
pregnancy -- the state plainly furthers a legitimate constitutional end
when it affirmatively encourages continued parental involvement with
27
the minor child by requiring that mothers and fathers know of the
most profound choices their children confront, see id.
As importantly, the requirement that responsible parents be
apprised of their minor daughter's decision to obtain an abortion fur-
thers the state's legitimate interest in ensuring that the minor's abor-
tion decision is fully informed. That the states may constitutionally
enact reasonable regulations to ensure informed consent, even for
adult women, is beyond question. As the Court observed in Casey:
What is at stake is the woman's right to make the ultimate
decision, not a right to be insulated from all others in doing
so. . . . Regulations which do no more than create a struc-
tural mechanism by which the State, or the parent or guard-
ian of a minor, may express profound respect for the life of
the unborn are permitted, if they are not a substantial obsta-
cle to the woman's exercise of the right to choose.
505 U.S. at 877 (joint op.) (emphasis added). It was precisely because
of the importance of this state interest that the Court upheld, as not
"unduly burdensome" on the abortion right, Pennsylvania's informed
consent provision, which permitted women to obtain abortions only
after being given truthful and nonmisleading information regarding
the nature of the abortion procedure. The requirement that women
contemplating an abortion be provided such information, reasoned the
Court, merely "facilitate[d] the wise exercise of th[e] [abortion]
right." Id. at 887.
Of course, the state has an even stronger interest in ensuring that
the consent of minors is informed because minors are more likely
than adults to proceed uninformed. See, e.g., id. at 899 (explaining
that informed consent provisions "have particular force with respect
to minors"). As the Court has often recognized,"at the same time
[that the teenager] is much more apt to be motivated by mere emotion
or peer pressure than is an adult," she is, due to her "[i]nexperience,
less education, and less intelligence . . . less able to evaluate the con-
sequences of . . . her conduct." Hodgson, 497 U.S. at 459 (O'Connor,
J., concurring in part, and concurring in the judgment in part) (quoting
Thompson v. Oklahoma, 487 U.S. 815, 835 (1988)); Bellotti II, 443
U.S. at 635 (op. of Powell, J.) (noting that "minors often lack the
28
experience, perspective, and judgment to recognize and avoid choices
that could be detrimental to them" and therefore that the state validly
may limit their freedom to choose). The parents, on the other hand,
"possess what a child lacks in maturity, experience, and capacity for
judgment required for making life's difficult decisions" and the "natu-
ral bonds of affection" lead them to act in their children's best inter-
ests. Hodgson, 497 U.S. at 495 (Kennedy, J., concurring in the
judgment in part and dissenting in part) (quoting Parham v. J.R., 442
U.S. 584, 602 (1979)).
Certainly, therefore, the state may conclude that a minor's abortion
decision will be more informed and better considered if her parents
know of her impending decision and thus are able to assist her in
making that grave decision. As Justice Kennedy has written:
A free and enlightened society may decide that each of its
members should attain a clearer, more tolerant understand-
ing of the profound philosophic choices confronted by a
woman who is considering whether to seek an abortion. . . .
The State is entitled to assume that, for most of its people,
the beginnings of that understanding will be within the fam-
ily, 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. . . . It would
deny all dignity to the family to say that the State cannot
take this reasonable step [of requiring parental notice] to
ensure that, in most cases, a young woman will receive
guidance and understanding from a parent.
Akron II, 497 U.S. at 520 (op. of Kennedy, J., joined by Rehnquist,
C.J., and White and Scalia, JJ.); see also Casey , 505 U.S. at 895
(majority) (noting that parental notice or consent statutes "are based
on the quite reasonable assumption that minors will benefit from con-
sultation with their parents and that children will often not realize that
their parents have their best interests at heart"); Hodgson, 497 U.S. at
458 (O'Connor, J., concurring in part and concurring in the judgment
in part) ("[P]arental notice and consent are qualifications that typi-
cally may be imposed by the State on a minor's right to make impor-
tant decisions. As immature minors often lack the ability to make
29
fully informed choices that take account of both immediate and long-
range consequences, a State reasonably may determine that parental
consultation often is desirable and in the best interest of the minor.")
(quoting Bellotti II, 443 U.S. at 640-41 (op. of Powell, J.)).
Finally, parental notice statutes serve the important state interest of
ensuring that the physician advising the minor on her abortion deci-
sion has access to the child's full medical and, where relevant, psy-
chological, history. The Court has repeatedly observed that,
[t]he medical, emotional, and psychological consequences
of an abortion are serious and can be lasting; this is particu-
larly 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.
Akron II, 497 U.S. at 519 (quoting Matheson, 450 U.S. at 411); see
also id. at 518-19 ("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 medi-
cal data to the physician."); cf. id . at 518 (recognizing "the superior
ability of a physician to garner and use information supplied by a
minor's parents upon receiving notice"). Relatedly, by ensuring that
parents are informed of their child's intention to obtain an abortion,
the parental notice statute also enables the parents to advise their
daughter on her choice of a competent and compassionate physician,
see Bellotti II, 443 U.S. at 641 n.21 (op. of Powell, J.) (noting that
even "mature" 17-year olds "are less likely than adults to know or be
able to recognize ethical, qualified physicians"), and to better support
their daughter's physical and emotional recovery in the aftermath of
the abortion, if that is the course decided upon.
In short,
[t]here can be little doubt that the State furthers a constitu-
tionally permissible end by encouraging an unmarried preg-
nant minor to seek the help and advice of her parents in
30
making the very important decision whether or not to bear
a child.
Hodgson, 497 U.S. at 445 (op. of Stevens, J.) (quoting Danforth, 428
U.S. at 91 (Stewart, J., concurring)); see also id. at 480 (Kennedy, J.,
concurring in the judgment in part, and dissenting in part) (same).
2.
At the same time that the state indisputably furthers legitimate
purposes when it requires notice to responsible parents, the effect of
such a notice requirement on the abortion right is markedly different
from that of a consent requirement, as the Supreme Court has noted
in every case in which it has addressed a parental notice or consent
provision.
A statute that conditions a minor's access to abortions on parental
consent, by definition, gives parents an absolute, and potentially arbi-
trary, veto over their child's decision. See Danforth, 428 U.S. at 74.
Absent a judicial bypass, such a statute unmistakably places a sub-
stantial obstacle in the path of the minor who would choose abortion
over childbirth. The ultimate abortion decision is, in reality, that of
the parent, not that of the minor.
The effect of a mere notice provision on the abortion decision is
different not merely in degree, but in kind. A parental notice statute
that includes the specific exceptions constitutionally mandated by the
Court in Hodgson vests with parents neither a veto in fact nor a veto
in effect. As the Supreme Court has consistently recognized, the
choice of whether to abort the pregnancy remains ultimately and
exclusively that of the minor. See discussion supra at 16-17 (citing
cases).
Nor does a parental notice requirement that excepts notice to the
abusive, the irresponsible, the permanently absent, or the similarly
disaffected parent, otherwise constitute a substantial obstacle to, or an
undue burden on, the abortion decision. Although we appreciate well
the emotional trauma that can attend a discussion between parent and
child on a subject so fraught with moral, ethical, and religious impli-
31
cations as abortion, a mere notice requirement does not even neces-
sarily force such a discussion between the minor and her parents;
insofar as the law is concerned, the young woman need not even
return home or otherwise establish contact with her parents following
the required notice and before the abortion is performed. To be sure,
if the young woman does willingly return home, or even if she only
initiates telephone contact with her parents, she will almost certainly
be exposed to her parents' views on the grave decision she contem-
plates. And, we may assume, those views may be passionately held,
contrary to her own, and forcefully expressed. But the period of time
between notice and abortion during which the minor may be exposed
to those views is typically short (and may be shorter still, if she
chooses to contact her parents only by telephone), and, during this
short period, the young woman has but to listen to her parents; at least
under a pure notice statute, the law does not even undertake to require
consultation in the sense of a frank and open exchange between mutu-
ally receptive parent and child. And in no event need the minor con-
form or otherwise accommodate her plans to the desires of her
parents.
We understand fully, and do not discount, the influence, if not pres-
sure, that can be brought to bear (intentionally or not) during a discus-
sion between parents and a child who is in the throes of a decision
so emotionally wrenching as that of whether to end a pregnancy
(whether the parents approve of abortion or not), even as we recog-
nize also the tendency of teenagers in difficulty to exaggerate their
parents' likely reactions to their dilemmas and to underestimate their
parents' capacity for understanding and compassionate response. The
opinions the parents express and the advice the parents impart will
undoubtedly change the calculus of the child's decision, as properly
they should. In all but the rarest of circumstances, this discussion will
force the young woman, whether admittedly or not, to examine and
reexamine the decision she has preliminarily made, against not only
her own values, morals, and beliefs, but, where they differ, against
those of her mother and her father. And, assuredly, the reaction the
minor gets and the counsel she receives from her parents will, in
many instances, bring about either a change of mind or a change of
heart, and a consequent change in decision from that she initially
reached without the benefit of her parents' experience and insight. To
imagine the discussion between the concerned parents and their
32
frightened daughter is to understand the power of the dynamic to add
to the burden of the imminent decision.
However, without minimizing its effect, this additional imposition
on the minor's otherwise completely unfettered abortion decision can-
not be said to constitute a burden that is "undue" under a Constitution
that jealously protects the sanctity of the family as the cornerstone of
society. For, in the end, the decision of whether to carry the preg-
nancy to term remains that of the minor woman alone, and no one
else. And the incremental weight added to the young woman's abor-
tion decision through the encouraged parental involvement is an inci-
dental and inescapable consequence of the state's pursuit of its
legitimate interests not only in the minor's informed consent and
health, but also in preservation of the cardinal right of responsible
parents to shape, as they deem appropriate, their children's lives, their
beliefs, their values, their morals, their character. Just as it is in large
part the absence of this latter interest which renders unconstitutional
a spousal notice statute or a parental notice statute which requires
notification to abusive parents or parents who have not taken respon-
sibility for the support or upbringing of their children, so is it the pres-
ence of this interest that in substantial part renders constitutional the
properly tailored parental notice statute. See , e.g., Casey, 505 U.S. at
898 (majority) (distinguishing parental notice or consent requirements
from spousal notice requirements on the grounds that"[a] State may
not give to a man the kind of dominion over his wife that parents
exercise over their children"); Hodgson, 497 U.S. at 496 (Kennedy,
J., concurring in the judgment in part and dissenting in part) (observ-
ing that notice statutes "represent[ ] a considered weighing of the
competing interests of minors and their parents"); compare id. at 445-
46 (op. of Stevens, J.) (noting that a natural parent's interest in "con-
trolling the education and upbringing of their children" rises to the
level of a liberty interest only through "the demonstration of commit-
ment to the child through the assumption of personal, financial, or
custodial responsibility") with id. at 450 (op. of Stevens, J., for the
Court) (holding that the state has no legitimate interest in requiring
notice to a parent who has not assumed such responsibility).
Indeed, to hold that the Constitution affirmatively forbids a state
from requiring that mothers and fathers of pregnant teenagers merely
be told of their daughters' decisions to abort their pregnancies would
33
be nothing less than an arrogation of the parental role by judicial fiat,
a wresting from parents and rendering unto the courts of the privi-
leges and responsibilities that are parenthood itself. And this, at the
very moment when not only child is most in need of parent, but also,
paradoxically, parent is most in need of child. Not only does the Con-
stitution not require such an expropriation of the rights and duties of
mother and father, we doubt that the People would submit to such.
Even in an age of tolerance, not all is tolerable-- or to be tolerated.
B.
Accordingly, we hold today that the state may constitutionally
require that mothers and fathers of teenage daughters be informed of
their daughters' life-defining decisions to abort their pregnancies, pro-
vided that the state excepts from its requirement notice to abusive par-
ents, noncustodial parents who have refused to accept their parental
responsibilities, and parents with similar relationships to their chil-
dren, as required by the Supreme Court's decision in Hodgson. In
contrast to the full panoply of safeguards required of parental consent
statutes, more is not required of the state in order for its mere notice
statute to withstand facial constitutional challenge.
In particular, as to the "best interest" bypass, we hold that a notice
statute that includes at least the Hodgson"best interest" exceptions for
abusive or neglectful parents and parents who have otherwise refused
to accept the responsibilities of parenthood, is facially constitutional,
without more. While the Supreme Court might eventually require that
a parental notice statute include a "best interest" bypass that would
except notice in additional circumstances akin to those identified in
Hodgson, we do not believe that those circumstances are likely to be
sufficiently large in number that such a statute must account for them
in order to withstand a facial challenge to its constitutionality. And,
because a broader bypass would be in substantial tension, if not irrec-
oncilable, with the liberty interest of parents to decide for themselves,
as free as possible from governmental interference, what is and what
is not in the best interests of their own children, we do not believe it
likely that the Court will constitutionally require, for purposes of a
facial challenge, a broader "best interest" bypass -- for example, one
that would allow exceptions to notice for reasons wholly unrelated to
the safety or health of the minor or to parental forfeiture of rights.
34
Such a wholesale substitution of court for parent we do not under-
stand the Court's precedents to contemplate. See id. at 491 (Kennedy,
J., concurring in the judgment in part and dissenting in part) ("The
possibility that some parents will not react with compassion and
understanding upon being informed of their daughter's predicament
or that, even if they are receptive, they will incorrectly advise her,
does not undercut the legitimacy of the State's attempt to establish a
procedure that will enhance the probability that a pregnant young
woman exercise as wisely as possible her right to make the abortion
decision.") (quoting Matheson, 450 U.S. at 423-24 (Stevens, J., con-
curring in the judgment)) (emphasis omitted); cf . Bellotti II, 443 U.S.
at 648 (op. of Powell, J.) (noting that in a consent bypass proceeding
the court properly should take into account that there is "an important
state interest in encouraging a family rather than a judicial resolution
of a minor's abortion decision" and that "parents naturally take an
interest in the welfare of their children -- an interest that is particu-
larly strong where a normal family relationship exists and where the
child is living with one or both parents").
As to the "mature minor" bypass, we hold that a notice statute that
is tailored so as to satisfy the requirements of Hodgson need not
include, in addition, a bypass for the mature minor in order to pass
constitutional muster. Cf. Akron I, 462 U.S. at 469 n.12 (O'Connor,
J., joined by White and Rehnquist, JJ., dissenting) (noting that "no
decision of this Court has yet held that parental notification in the
case of mature minors is unconstitutional" and that in Matheson, the
Court "expressly did not decide that a parental notification require-
ment would be unconstitutional if the state otherwise permitted
mature minors to make abortion decisions free of parental or judicial
`veto'" (citations omitted; first emphasis in original; second emphasis
added)). We recognize that a requirement that a mature minor provide
notice of her abortion to her parents -- like a requirement that an
immature minor provide such notice -- will inhibit some abortions.
"That a state regulation may `inhibit' abortions to some degree," how-
ever, "does not require that we find that the regulation is invalid," as
Justice O'Connor has observed. Id. at 464 (citing Matheson, 450 U.S.
at 413). And we are satisfied that, in the vast majority of instances,
notice to parents will do no more than this, provided exceptions exist
for the abusive and neglectful parent, and the parent who has other-
wise refused to accept responsibility for his or her child.
35
A notice requirement does not become a veto merely because the
minor has become mature enough that she must be allowed to decide
for herself whether to end her pregnancy. Indeed, there is every rea-
son to believe that the burden imposed upon the mature minor by a
parental notice requirement will actually be less onerous than that
imposed upon the immature minor. As Justice Stevens has noted,
"[a]lmost by definition, . . . a woman intellectually and emotionally
capable of making important decisions without parental assistance
also should be capable of ignoring any parental disapproval."
Matheson, 450 U.S. at 425 n.2 (Stevens, J., concurring in the judg-
ment).
Moreover, that a young woman may, under law, be considered suf-
ficiently mature that she must be allowed to make the ultimate abor-
tion decision, does not mean that she is in fact mature or that she is
mature in all respects, and it certainly does not mean that she is
mature enough that the state no longer has a legitimate and substantial
interest in encouraging her to seek parental counseling, guidance, and
assistance with regard to the abortion decision. As the Court itself has
acknowledged, "[t]here is no logical relationship between the capacity
to become pregnant and the capacity for mature judgment concerning
the wisdom of an abortion." Id. at 408 (majority); see also Danforth,
428 U.S. at 75 ("[O]ur holding . . . does not suggest that every minor,
regardless of age or maturity, may give effective consent for termina-
tion of her pregnancy."). Thus, even the most mature teenager will
benefit from the experienced advice of a parent, and, as a conse-
quence of that dialogue, make a more informed, better considered,
abortion choice. Cf. Bellotti II, 443 U.S. at 643 n.23 (op. of Powell,
J.) ("[T]he fact that a minor may be very much an adult in some
respects does not mean that his or her need and opportunity for
growth under parental guidance and discipline have ended.").
She will be better able to select the physician who will perform the
abortion, if she decides upon ending the pregnancy. See id. at 641
n.21 (noting that even 17-year olds "are less likely than adults to
know or be able to recognize ethical, qualified physicians"). She will
be better situated to provide her physician with the full medical his-
tory necessary to the professional treatment she will undergo. And
with her parents' knowing involvement, her physical and emotional
post-operative recovery will be eased.
36
Finally, it should go without saying, the parents' interest in the
well-being, and continued care and support, of their minor daughter
likewise does not cease upon a judicial finding that their daughter is
sufficiently mature to make the abortion decision herself. As a factual
matter, of course, that interest presumptively continues for life; but,
even as a matter of law, that interest continues at least until the child
achieves majority. Although the age of majority might be considered
arbitrary, in the most important sense it is not. It represents the collec-
tive experience and insight of a society with respect not merely to the
physical, but also to the emotional, development of its children and
their ability to make mature decisions without parental assistance.
In sum, we find unassailable Justice Stevens' considered conclu-
sion in Matheson, that,
[t]he fact that certain members of the class of unmarried
"minor women who are suffering unwanted pregnancies and
desire to terminate the pregnancies" may actually be eman-
cipated or sufficiently mature to make a well-reasoned abor-
tion decision does not . . . undercut the validity of [a
notification statute that requires immature and mature
minors alike to provide notice of their abortion decision to
their parents]. . . . [A] state legislature has constitutional
power to utilize, for purposes of implementing a parental-
notice requirement, a yardstick based upon the chronologi-
cal age of unmarried pregnant women. That this yardstick
will be imprecise or even unjust in particular cases does not
render its use by a state legislature impermissible under the
Federal Constitution.
Matheson, 450 U.S. at 424-25 (Stevens, J., concurring in the judg-
ment); id. at 425 n.2 (noting that "if every minor with the wisdom of
an adult has a constitutional right to be treated as an adult, a uniform
minimum voting age is surely suspect").
VI.
Measured against the foregoing standards, it is evident that the
Commonwealth of Virginia's parental notice statute comfortably
passes constitutional muster as a facial matter.
37
A.
Initially, and quite possibly dispositively, the Commonwealth's
notice provision suffers from neither of the flaws of the Minnesota
notice statute at issue in Hodgson.
First, the Virginia parental notice statute, in contrast to the two-
parent notice provision invalidated in Hodgson , does not require
notice to absent or noncustodial parents who have not assumed signif-
icant responsibility for their children's care and upbringing. The gen-
eral notice provision requires notice to "an authorized person," who,
in turn, is defined as:
(i) a parent or duly appointed legal guardian or custodian of
the minor or (ii) a person standing in loco parentis, includ-
ing, but not limited to, a grandparent or adult sibling, with
whom the minor regularly and customarily resides and who
has care and control of the minor.
Va. Code § 16.1-241(V). Therefore, a minor is, at most, required to
notify only one parent, and, if the person who has assumed responsi-
bility for the minor's care and upbringing is someone other than her
parent, she may provide notice to that person instead. Consequently,
the statute never requires a minor to notify a parent with whom she
does not reside or who has not undertaken to provide for her care and
well-being.
Second, the Virginia statute does not require notice to abusive par-
ents. In fact, the statute includes an express notice exception for
abused minors:
[N]either notice nor judicial authorization shall be required
if the minor declares that she is abused or neglected and the
attending physician has reason to suspect that the minor may
be an abused or neglected child as defined in § 63.1-248.2
[of the Virginia Code] and reports the suspected abuse or
neglect in accordance with § 63.1-248.3. Id. § 16.1-241(V).7
(Text continued on page 40)
_________________________________________________________________
7 Moreover, the statute also provides for an abortion without notice or
judicial authorization when,
38
in the attending physician's good faith medical judgment, (i) the
abortion is medically necessary immediately to avert the minor's
death or (ii) there is insufficient time to provide the required
notice or judicial authorization because a delay would create a
serious risk of substantial impairment of a major bodily function
or substantial physical injury.
Va. Code § 16.1-241(V). These exceptions to the notice or judicial
authorization requirements ensure that the statute's requirements will not
endanger the minor's health or life.
Appellees argue for the first time on appeal that this provision of the
statute is unconstitutional because it does not allow abortions without
notice when delay would risk the minor's emotional health. See Appel-
lees' Brief at 27-28, 4, 13. Even assuming that this argument has not
been waived, it is meritless.
We doubt that the Court would require an emotional health exception
even to an abortion regulation that banned certain abortions entirely, and
Casey settles beyond doubt that a state need not provide such an excep-
tion to a requirement -- like the notice requirement at issue here -- that
merely delays the contemplated abortion for a short period of time. The
medical emergency exception to parental consent in the Pennsylvania
statute upheld by the Court in Casey defined medical emergency as
[t]hat condition which, on the basis of the physician's good faith
clinical judgment, so complicates the medical condition of a
pregnant woman as to necessitate the immediate abortion of her
pregnancy to avert her death or for which a delay will create seri-
ous risk of substantial and irreversible impairment of a major
bodily function.
Casey, 505 U.S. at 879 (majority) (quoting 18 Pa. Cons. Stat. § 3203
(1990)). With regard to physical health, the Casey medical emergency
exception to consent is, on its face, more restrictive than Virginia's medi-
cal emergency exception to notice, which does not require that the doctor
conclude that delay risks "irreversible impairment" and which specifi-
cally provides for an exception to notice when delay risks "substantial
physical injury," not merely "substantial impairment of a major bodily
function." Moreover, with regard to emotional health, the two emergency
exceptions are identical: the Casey statute, like the Virginia statute,
appears on its face to make no allowance for an"emotional health" emer-
39
Appellees do not suggest any reason why this abuse excep-
tion is not wholly efficacious.
From our own review of the statute it appears that this abuse excep-
tion perhaps may not be sufficient in and of itself to satisfy Hodgson
because of the possibility that the provision's reporting requirement
could indirectly result in notice to the abusive parent. As we have dis-
cussed, a majority of the Court in Hodgson, and Justice O'Connor in
particular, concluded that an abuse exception is"less than effectual"
where the abuse must be reported and the resulting investigation
would provide the parent indirect notice of the minor's abortion deci-
sion. Hodgson, 497 U.S. at 460 (O'Connor, J., concurring in part and
concurring in the judgment in part).
However, even assuming that this abuse exception may be inade-
quate while standing alone,8 the abused minor is fully protected under
(Text continued on page 42)
_________________________________________________________________
gency. And, indeed, the Court of Appeals' construction of the Casey
medical emergency exception, to which the Supreme Court deferred, see
id. at 880, was clearly limited to "[p]hysically threatening emergencies."
Planned Parenthood v. Casey, 947 F.2d 682, 702 (3d Cir. 1991); see
also id. at 701 ("The essence of the definition . . . is that it allows a
woman and her doctors to forego many of the Act's requirements when
there is a medical emergency to the woman's physical health . . . .")
(emphasis added). Accordingly, the facial constitutionality of Virginia's
medical emergency exception cannot be disputed.
8 It may be that the risk of indirect parental notice of the minor's abor-
tion decision and, in particular, the risk that indirect notice will occur
before the minor can carry out her decision, is significantly lower under
the Virginia statute than under the Minnesota statute at issue in Hodgson.
The Court found that the Minnesota law provided a parent who was the
subject of an investigation "a right of access to the record of the investi-
gation." Hodgson, 497 U.S. at 460 (O'Connor, J., concurring in part and
concurring in the judgment in part) (citation omitted). Presumably, the
Court was concerned that this record would include the fact that the
abuse complaint was initiated when the minor sought an abortion without
notice from a physician on the ground that she was abused.
In contrast, Virginia law apparently gives the parent "access to his own
record" only when the abuse report was determined by the social services
40
agency to be unfounded, Va. Code § 63.1-248.5:1.A., and perhaps not
even then as a matter of course, see id.§ 63.1-248.5:1.C (requiring the
parent to petition the court for release of the record), and gives a parent
whom the agency believes or suspects abused the child access to the
information used to make that determination only if such disclosure
would not "endanger the well-being" of the child and is not prohibited
by state or federal law, id. § 63.1-248.6:1.A. Thus, in most cases, the
only information provided to the parent will be a report by the agency
assessing whether the initial "report of abuse or neglect is founded or
unfounded," sent within 45 days of the time that the abuse is reported.
Id. § 63.1-248.6.E.7. Presumably, neither this report nor any disclosure
of the investigative record to a parent suspected of abuse would detail the
circumstances surrounding the initial abuse report, particularly where, as
here, such disclosure would be constitutionally suspect and would con-
travene, in spirit if not by terms, the confidentiality provisions of the Vir-
ginia notice statute, see discussion infra, which require that the minor's
decision to bypass notice be strictly confidential"[n]otwithstanding any
other provision of law." Va. Code § 16.1-241(V).
Moreover, the non-judicial abuse exception in the statute invalidated
in Hodgson required that the physician report the abuse within 24 hours,
whereupon the state welfare agency would "immediately conduct an
assessment and offer protective social services" to the minor. Hodgson,
497 U.S. at 426 n.7 (op. of Stevens, J., for the Court) (emphasis added).
If the agency then interviewed the minor, it was required to notify the
parent that the interview had occurred. See id . at 460 (O'Connor, J., con-
curring in part and concurring in the judgment). As Justice O'Connor's
opinion noted, the agency's assessment and the concomitant notice to the
parent could all occur "in a time frame even before the abortion occurs."
Id. (quoting Tr. of Oral Arg. at 19). In contrast, although the Virginia
reporting statute advises physicians to report abuse"immediately," the
physician can wait to report the abuse for up to 72 hours without penalty.
See Va. Code § 63.1-248.3.B. And, unless the minor is in need of imme-
diate protective care -- in which case her removal from the home will
prevent the parent from obstructing her abortion decision -- the parent
is apparently not entitled to notice of the investigation until the agency
is required to report on its assessment of the charges within 45 days of
the initial abuse report. Additionally, Virginia law does not appear to
require notice to the parent even when the minor is interviewed by social
services. See id. § 63.1-248.10.
41
the Virginia statute -- as under the Minnesota notice statute ulti-
mately upheld in Hodgson -- because the statute includes a manda-
tory best interest bypass which allows an abused minor to bypass
notice. The Virginia statute provides:
After a hearing, a judge may authorize a physician to per-
form an abortion upon finding that the minor is mature and
capable of giving informed consent to the proposed abor-
tion. If the judge determines that the minor is not mature,
the judge shall, after a hearing, determine whether the per-
formance of an abortion upon the minor without notice to
an authorized person would be in the minor's best interest,
and if the court finds that the abortion would be in the
minor's best interest, it shall so authorize a physician.
Va. Code § 16.1-241(V) (emphasis added).9 Because the courts of the
_________________________________________________________________
Thus, in most cases, if indirect notice of the minor's abortion decision
occurs at all, it will not occur until after the minor has had the opportu-
nity to obtain an abortion. While the risk that her parent will eventually
discover her decision may make a minor more reluctant to undergo an
abortion, that effect is much more attenuated than the actual obstruction
that may result if the abusive parent learns of her decision before she
obtains the abortion.
9 It is not entirely clear whether the statute directs the court to authorize
the abortion when the abortion is in the child's best interest or when the
abortion without notice to her parents is in the child's best interest. The
statutory language references both inquiries: it instructs the judge to con-
sider whether "an abortion upon the minor without notice to an autho-
rized person would be in the minor's best interest," but then it directs the
judge to authorize the abortion if the "court finds that the abortion would
be in the minor's best interest." Va. Code § 16.1-241(V). In any event,
the Supreme Court made clear in Lambert that any difference between
these two formulations is immaterial to the constitutionality of the stat-
ute. See Lambert, 117 S. Ct. at 1171 (noting that the Supreme Court held
in Akron II that a statute authorizing bypass if "notice is not in [the
minor's] best interests" satisfied the requirement for a best interest
bypass in Bellotti that the minor be allowed to show that the "abortion
would be in her best interests") (citations and internal quotations omit-
ted).
42
Commonwealth would be required under Hodgson, as well as by the
bypass language itself, to authorize the abused minor to proceed with
an abortion without notice under this best interest bypass, the abused
minor's interests are protected against the contingency of indirect
notice to the abusive parent or parents.10 Indeed, the Virginia statute's
best interest bypass not only protects a minor from having to provide
notice to an abusive parent, it also sweeps more broadly, guaranteeing
a minor the right to bypass notice whenever she can demonstrate that
her parents are likely to impede her choice contrary to her best inter-
est. The Virginia statute thus provides safeguards well beyond those
mandated by Hodgson.
It might be argued from the language of the Virginia statute that
a mature minor cannot avail herself of the best interest bypass
because the court is directed to consider the minor's best interest only
after the court finds that the minor does not qualify for the maturity
bypass. The mature minor obviously has no need for such a best inter-
_________________________________________________________________
10 The Court in Hodgson affirmed that such a best interest bypass ade-
quately protects abused minors and cures the inadequacy of a statute's
non-judicial abuse exception when it upheld the version of the Minnesota
notice statute that included a best interest judicial bypass, even though
the statute's specific abuse exception was ineffective. See Hodgson, 497
U.S. at 460-61 (O'Connor, J., concurring in part and concurring in the
judgment in part) (explaining that the Minnesota notice statute passed
constitutional muster with a judicial best interest bypass, even though it
was unconstitutional without the bypass because of the risk that invoking
the non-judicial abuse exception would result in indirect notice to the
parents); id. at 492-93, 497 (Kennedy, J., joined by Rehnquist, C.J.,
White and Scalia, JJ., concurring in the judgment in part and dissenting
in part) (concluding that the non-judicial abuse exception was alone suf-
ficient to validate the Minnesota statute even if the risk of indirect notice
to a parent deterred some minors from seeking abortions because it was
reasonable "[b]eyond any question" for"the State to require that physi-
cians report declarations of abuse to ensure that mistreatment is known
to authorities responsible for the protection of minors" and that the stat-
ute was, of course, a fortiori constitutional with a best interest bypass);
see also Akron II, 497 U.S. at 508, 515 (sustaining a parental notice stat-
ute with a judicial bypass for abuse that required an abused minor to
prove a "pattern" of abuse by "clear and convincing evidence" before
judicial bypass would be permitted).
43
est bypass if her maturity alone is sufficient to guarantee her the
opportunity to proceed without parental notice, but appellees contend
that the Virginia statute confers discretion on a court to deny a mature
minor the right to bypass notice.
Even if the maturity bypass truly is discretionary as appellees con-
tend, see discussion infra, it must be assumed that the judicial discre-
tion to deny bypass is not unbounded, but rather must be exercised in
the best interest of the minor. It would be a strange construction of
the statute that would require the court to allow an immature minor
to bypass parental notice when notice was not in her best interest, but
that would allow the court to disregard the best interest of a mature
minor simply because she is mature.11 Thus, if the maturity bypass
does prove to be discretionary, it is reasonable to assume that the dis-
cretion of the judicial officer will be constrained by the duty to act in
the best interest of the child.
Moreover, because the Constitution requires that Virginia's bypass
authorize an abused minor -- whether mature or immature -- to pro-
ceed without parental notice, and because the Virginia statute is rea-
sonably susceptible of such a construction, we, as a federal court, are
required by principles of federalism and comity to assume that the
Virginia courts will construe the statute so as to provide a mandatory
notice bypass for an abused mature minor. See , e.g., Akron I, 462 U.S.
at 441 ("It is reasonable to assume . . . that a state court presented
with a state statute specifically governing abortion consent procedures
for pregnant minors will attempt to construe the statute consistently
with constitutional requirements."); Lambert , 117 S. Ct. at 1174 (Ste-
vens, J., joined by Ginsburg and Breyer, JJ., concurring in the judg-
ment) (noting that the Ninth Circuit "erroneously construed the statute
in a manner that caused that court to hold the statute unconstitutional"
and affirming that, although the language of the Montana statute at
issue was somewhat ambiguous, "it [wa]s surely appropriate to
assume" a construction that obviated any constitutional concern). To
_________________________________________________________________
11 We do not believe that the Virginia statute purports to authorize the
court arbitrarily to withhold or grant authorization to the mature minor
to proceed without parental notice, and -- in this context -- any decision
that would be contrary to the minor's best interest would almost certainly
be arbitrary as well.
44
assume otherwise would be to ignore the clear and express require-
ment of Virginia law that Virginia courts interpret state statutes so as
to save them from unconstitutionality, see note 17 infra, and to invali-
date prematurely on a facial challenge a state statute that the Virginia
courts have yet not had an opportunity to construe.
These considerable statutory safeguards for the child's best interest
confirm that Virginia's statute is plainly adapted to the legitimate pur-
poses of promoting informed consent, facilitating physicians' access
to relevant medical information and otherwise ensuring that minors
obtain appropriate medical care, as well as to accommodating the lib-
erty interests of parents in the rearing, care, and guidance of their chil-
dren. They also confirm beyond question that the statute cannot
possibly be understood to afford parents a veto over their child's
abortion decision. The statute does not require that notice be given to
parents who are abusive, or who have not assumed significant respon-
sibility for their children, and thus avoids the constitutional defects of
the statute struck down in Hodgson. It also includes both a broader
mandatory best interest judicial bypass and, quite possibly, a manda-
tory bypass for minors who are sufficiently mature that they can
determine for themselves whether to end or carry their pregnancy to
term.12 See discussioninfra. Such a statute is unquestionably constitu-
tional, having neither the purpose nor the effect of placing a substan-
tial obstacle in the path of the minor who wishes to obtain an
abortion.
B.
Even if the Commonwealth's Parental Notice Act were not consti-
tutional for the reasons recited, we would still be obliged to sustain
the statute as against appellees' facial challenge to its constitutional-
ity. Although the Supreme Court has never held that a notice statute
must include a Bellotti II bypass, the Court has repeatedly held, as we
have discussed, that the constitutionality of a notice statute that does
meet the Bellotti II standards is beyond question, "it [being] a corol-
lary to the greater intrusiveness of consent statutes that a bypass pro-
_________________________________________________________________
12 As we discuss infra, there is no question at all that Virginia ade-
quately ensures that its bypass proceedings are both confidential and
expeditious.
45
cedure that will suffice for a consent statute will suffice also for a
notice statute," Akron II, 497 U.S. at 511. Virginia courts could read-
ily interpret the Commonwealth's parental notice statute to satisfy the
Bellotti II requirements, and therefore it would be premature for us,
as a federal court, to further question its facial constitutionality.
In almost every respect, the judicial bypass in the Commonwealth's
statute is constitutionally indistinguishable from, and arguably more
protective of the minor's abortion right than, the bypass held by the
Court in Akron II to be adequate to sustain Ohio's single-parent noti-
fication statute. And, in many respects, it is also more protective of
the minor's abortion right than the bypass in Hodgson, which a major-
ity of the Court held validated the more intrusive law at issue in that
case.
First, as discussed, the Virginia statute, like the Ohio statute in
Akron II and the Minnesota statute upheld in Hodgson, provides for
judicial bypass of the notice requirement in cases where the court
finds that an abortion without notice would be in the best interests of
the minor. Indeed, the Ohio statute required the minor to prove by
"clear and convincing evidence" that notification was not in her best
interest before bypass was allowed. Ohio Rev. Code§ 2151.85(C)(2).
Obviously, this "clear and convincing evidence" standard works a
greater burden on the minor's right to an abortion than does the pre-
ponderance of the evidence standard of the Virginia statute.
Second, as required in the parental consent context, the Virginia
statute guarantees confidential bypass procedures. The Ohio statute in
Akron II forbade the court to "notify the parents, guardian, or custo-
dian of the complainant that she is pregnant or that she wants to have
an abortion," Ohio Rev. Code § 2151.85(D), and further provided that
all bypass hearings "be conducted in a manner that will preserve the
anonymity" of the minor, including a requirement that "[t]he com-
plaint and all other papers and records that pertain to an action [for
judicial bypass] . . . be kept confidential and are not public records."
Id. § 2151.85(F). Similarly, the Commonwealth's statute specifically
provides that "[c]ourt proceedings under this subsection shall be con-
fidential," and that "[n]otwithstanding any other provision of law, an
expedited confidential appeal to the circuit court shall be available to
46
any minor for whom the court denies an order authorizing an abortion
without notice." Va. Code § 16.1-241(V) (emphasis added).
Appellees argue that, when judged against the Bellotti II consent
standards, the Virginia confidentiality guarantees are inadequate
because the law only makes "proceedings" confidential and does not
explicitly guarantee the confidentiality of court records. Appellees'
Brief at 5, 26. However, the Chief Justice of the Virginia Supreme
Court, in his role as "the administrative head of the judicial system,"
Va. Const. Art. VI. § 4, has issued, through the Office of the Execu-
tive Secretary of the Court, specific instructions to the judges and
clerks who will handle cases under the parental notification law that
they shall ensure that all records and proceedings be kept strictly con-
fidential. The Chief Justice has imposed upon judges and clerks an
obligation to adhere to the most rigorous standard of "deep confiden-
tiality," see J.A. at 399-400, 433-44, and interpreted "[c]onfidentiality
of the proceedings (and the records of those proceedings)" as "a right
specifically guaranteed by Virginia Code § 16.1-241(V)," J.A. at 399,
433 (emphasis added).
The Virginia Supreme Court instructions also answer appellees'
second objection that the confidentiality provisions will be circum-
vented by other sections of the Virginia juvenile code which, while
guaranteeing "confidentiality" in juvenile proceedings, also provide
that the court shall issue a summons "to the parents, guardian, legal
custodian or other person standing in loco parentis, and such other
persons as appear to the court to be proper or necessary parties to the
proceedings." Va. Code. § 16.1-263. The instructions specifically pro-
vide that "[t]he petitioner is the only party to [the bypass] proceeding"
and that "[n]o parent, guardian, custodian, or other person standing in
loco parentis to the petitioner should be served with a notice" of the
proceeding. Id. at 376, 395, 429. This interpretation is clearly the
most logical synthesis of the Act and the background provisions gov-
erning juvenile proceedings: it would make little sense for a judge to
conclude that a parent is a "proper or necessary part[y]" to a proceed-
ing, the very purpose of which is to avoid providing that parent notice
of her child's actions. Similarly, the explicit guarantees of confidenti-
ality in the judicial bypass provision would obviously trump the gen-
eral rule in juvenile proceedings that court records are open for
inspection to the child's parent. See Va. Code § 16.1-300(A)(3). And,
47
tracking the language of the notice statute itself that confidentiality is
to be maintained "[n]otwithstanding any other provision of law," id.
§ 16.1-241(V), the Virginia Supreme Court has instructed that "[t]he
customary exceptions to confidentiality which are found in or read
into Virginia Code §§ 16.1-302 and -305 are not applicable to these
bypass proceedings." J.A. at 400, 434.
These imposing confidentiality protections provided for in the Vir-
ginia statute and promulgated by the Virginia Supreme Court would
be adequate to sustain a consent statute, and they clearly are adequate
to sustain the notice provision at issue here. Indeed, the judicial
bypass to two-parent notice in Hodgson provided only that
"[p]roceedings" of the court be "confidential," and did not make
explicit provision for the confidentiality of court records, see
Hodgson, 497 U.S. at 428 n.9 (op. of Stevens, J., for the Court) (quot-
ing subdivision 6(c)(iii) of the Minnesota statute), and the Court read-
ily approved that statute.
Third, Virginia's parental notice statute provides for expeditious
resolution of minors' bypass petitions. Under the Ohio statute in
Akron II, the trial court was required to make its decision within five
business days of the filing of the minor's petition, Ohio Rev. Code
§ 2151.85(B)(1); the court of appeals was required to docket a
minor's appeal within four days, id. § 2505.073(A); and the court of
appeals was required to render a decision within five days of docket-
ing the appeal, id. The Virginia law, by comparison, requires the court
to hear the minor's bypass petition "as soon as practicable but in no
event later than four days after the petition is filed," and it further pro-
vides that a minor's appeal of a denial of bypass"shall be heard and
decided no later than five days after the appeal is filed." Va. Code.
16.1-241(V). Because the Virginia time frame for decision on appeal
is predicated only on the date that the minor files her appeal and does
not allow any delay by the court of appeals in docketing her appeal,
it appears that the longest interval contemplated by the Virginia stat-
ute between a minor's filing of her petition and the resolution of any
appeal may well be significantly shorter than under the Ohio statute.
Thus, Virginia's bypass procedures are, if anything, likely to be more
48
expeditious than the Ohio procedures upheld by the Supreme Court
in Akron II.13
Appellees contend nonetheless that the Virginia statute does not
provide for sufficiently expeditious resolution of minors' bypass
requests because, although it requires that petitions be heard by the
district court within four days of filing, it does not expressly specify
how quickly such petitions must be decided. The Virginia statute
does, however, command that bypass proceedings "be given prece-
dence over other pending matters so that the court may reach a deci-
sion promptly and without delay in order to serve the best interests
of the minor." Va. Code § 16.1-241(V). Additionally, the guidance
given by the Virginia Supreme Court to its lower courts clearly con-
templates that, in accordance with the long established practice of
Virginia's Juvenile and Domestic Relations Courts, see J.A. at 456,
469, the decision on the petition will usually be made at the end of
the hearing held within four days of filing:
The order granting or denying the petition should be entered
at the end of the hearing using the form entitled ORDER IN
PROCEEDING SEEKING JUDICIAL AUTHORIZATION
OF ABORTION. A copy of this form is attached. The peti-
tioner should be provided with an attested copy of the order
before she leaves the court.
_________________________________________________________________
13 Moreover, one might assume from the fact that the Ohio statute's
deadline for trial court decision explicitly counts only business days and
not calendar days, that all of the references to"days" in the Ohio statute
are to business days. Under such a reading, it could take a minor up to
22 calendar days under the statute to obtain judicial bypass of the notifi-
cation requirement. Virginia's bypass provisions nowhere refer to busi-
ness days, and therefore it is reasonable to assume that its expedited time
frames are calculated by reference to calendar -- rather than business --
days, except perhaps when the last day of the time period falls on a Sat-
urday, Sunday, or legal holiday, in which case the time frame may expire
on the next business day. See Va. Code§ 1-13.3:1 (stating that when the
"last day [of a time period] fixed by statute . . . falls on a Saturday, Sun-
day, legal holiday, or any day on which the clerk's office is closed as
authorized by statute," the time frame will expire on the next business
day).
49
J.A. at 378, 431 (emphasis added). Elsewhere in the guidance, the
Virginia Court does acknowledge that the lack of a deadline for
deciding the petition may allow a court to take the petition under
advisement, but the court pointedly cautions that"exercising the [`ad-
visement option'] liberally certainly conflicts with the urgency of the
proceedings, as reflected in the tight statutory time frames" and that
"[t]oo long a delay in adjudicating a bypass petition could have con-
stitutional implications." J.A. at 412, 445-46. The unmistakable impli-
cation is that, whenever possible, petitions should be resolved within
the statutory four-day period required for holding hearings. No more
is required to sustain the statute against a facial challenge.
The bypass provision upheld by the Court in Hodgson required
only that the court give precedence to bypass petitions and resolve
them promptly, see Hodgson, 497 U.S. at 428 n.9 (op. of Stevens, J.,
for the Court) (quoting subdivision 6(c)(iii)-(iv) of the Minnesota stat-
ute, requiring the court to give the minor's petition "precedence over
other pending matters so that the court may reach a decision promptly
and without delay" and providing for an "expedited . . . appeal"). It
did not prescribe any specific time frames in which the court had to
hear or decide the minor's petition. Similarly, the one-parent consent
statute upheld by the Court in Ashcroft apparently did not specify a
time frame for deciding the minor's bypass petition. 462 U.S. at 479
n.4. Neither of these provisions was considered insufficient to ensure
expeditious resolution of bypass requests, and we have no reason to
so consider the provision before us.
Appellees contend that a judge still may flout the clear language of
the statute and the cautionary instructions of the Virginia Supreme
Court and withhold decision for an indefinite time after hearing a case
under the Act. This argument not only inappropriately ascribes a form
of lawlessness to the judges of the Commonwealth of Virginia, it is
also irrelevant in the context of a facial challenge to this statute. See
Akron II, 497 at 515 ("Absent a demonstrated pattern of abuse or defi-
ance, a State may expect that its judges will follow mandated proce-
dural requirements."). In any event, according to the state, every
bypass petition heard and decided by the Virginia courts thus far has,
in fact, been decided no later than the fourth day after filing. Appel-
lant's Reply Brief at 5.
50
The only possibly relevant distinction between the Ohio notice stat-
ute in Akron II, which satisfied the Bellotti II consent statute require-
ments, and Virginia's statute, is in the maturity bypass. The Ohio
statute provided that, "if the court finds, by clear and convincing evi-
dence, that the complainant is sufficiently mature and well enough
informed to decide intelligently whether to have an abortion, the court
shall issue an order authorizing the complainant to consent to the per-
formance or inducement of an abortion without the notification of her
parents, guardian, or custodian." Ohio Rev. Code§ 2151.85(C)(1)
(emphasis added). Similarly, the Minnesota statute at issue in
Hodgson required the court to authorize the minor to obtain an abor-
tion if the court determined that she was mature. 497 U.S. at 427 n.9
(op. of Stevens, J., for the Court) (quoting subdivision 6(c)(i)). Vir-
ginia's statute, by contrast, provides that "[a]fter a hearing, a judge
may authorize a physician to perform an abortion upon finding that
the minor is mature and capable of giving informed consent to the
proposed abortion." Va. Code § 16.1-241(V) (emphasis added).
Appellees argue that this distinction is crucial because Virginia's use
of the term "may," rather than "shall," confirms that the Virginia
maturity bypass vests discretion in the court to deny a mature minor's
bypass petition, and that that discretion alone renders the Virginia
statute unconstitutional on its face.
We have concluded today that the Supreme Court would not
require a parental notice provision that satisfies Hodgson to also pro-
vide a maturity bypass, and this is especially so where, as in this case,
the statute includes even a fuller best interest bypass. See discussion
supra. It follows, therefore, that where the state does provide a matu-
rity bypass, as Virginia does, we do not believe that the presence of
some residual discretion in the judge to require a"mature" minor to
notify her parents when such notice is in her best interest works an
undue burden on a mature minor's abortion right. And it certainly
cannot be said in a facial challenge either that there are no circum-
stances in which such an act would be valid, see Salerno, 481 U.S.
at 745, or that the provision poses a substantial obstacle to exercise
of the abortion right "in a large fraction" of cases, Casey, 505 U.S.
at 895.14 Thus, in our view, the Virginia courts are not constitutionally
_________________________________________________________________
14 As discussed supra note 1, the circuits are split over whether the
Salerno standard for facial challenges applies in the abortion context
51
required to construe the Commonwealth's statute so as to deprive the
juvenile courts of all discretion to require mere notice to the parents
of even a mature minor.
We are comfortable, however, that the Commonwealth's maturity
bypass provision could reasonably be interpreted to require notice
bypass for mature minors, and this would be sufficient alone to sus-
tain the statute against appellees' facial challenge. The Virginia courts
have yet to interpret the statute authoritatively, 15 but under established
_________________________________________________________________
after Casey. See Manning v. Hunt , 119 F.3d 254, 268 n.4 (4th Cir. 1997).
Although our circuit suggested in dicta in Manning that the Salerno stan-
dard remains the governing standard until the Supreme Court explicitly
holds otherwise, see Manning, 119 F.3d at 268 n.4, it is unnecessary for
us to resolve this question in this case, because plaintiffs cannot meet
either the Salerno standard or the Casey standard.
15 We reject appellees' contention that the Virginia Supreme Court has,
in its administrative capacity, authoritatively construed the maturity
bypass as discretionary. See Appellees' Brief at 7, 22. Appellees' argue
that, by issuing forms for use by the juvenile courts which provide a
place for the court that has found a minor mature to check either a box
indicating that the petition is granted or a box indicating that the petition
is denied, the Commonwealth has definitively construed the maturity
bypass to be discretionary. Appellees' Brief at 7 (citing forms at J.A.
420, 454). However, these forms were not provided to the courts without
explanation, as appellees' would have us believe. In fact, significantly,
in written guidance distributed with the forms, the Virginia Supreme
Court specifically advised its lower courts:
The use of "may" suggests that the statute contemplates the pos-
sibility that a judge could deny the petition, despite finding that
the petitioner is mature. This possibility is reflected on our form
order. The language of Bellotti and its progeny raise concerns
about such a disposition.
J.A. at 405, 439 (emphasis added). The materials then went on to explain
the nature of the constitutional issues that would be raised by a discre-
tionary maturity bypass. Thus, the Virginia Supreme Court did not pur-
port to authoritatively construe the statute as authorizing a judge to
exercise his discretion to deny a bypass to a mature minor. Rather, it
acknowledged the existence of an important constitutional question that
might arise from one possible construction of the statute and it left the
resolution of the statutory construction and constitutional issues to the
52
principles of Virginia statutory interpretation, if not also as a matter
of common parlance, it is clear that the word "may" can be construed
as mandatory.16 Compare Causeway Medical Suite v. Ieyoub, 109
_________________________________________________________________
judicial process. Cf. Preface to the Virginia Supreme Court Materials,
J.A. at 389 (explaining that some of the issues addressed by the materials
"have no clear, definite resolution" and that the materials are intended to
present the "competing arguments" on those issues).
16 Indeed, the Commonwealth has argued in these proceedings that such
a construction would be appropriate here. See Appellant's Brief at 29-30.
The Commonwealth asserts that the statutory language that a judge "may
authorize a physician to perform an abortion" upon a finding of maturity
can reasonably be interpreted to mean that the judge shall authorize such
an abortion except where such an abortion would otherwise be prohibited
by law. According to this argument, the Virginia legislature may well
have chosen the permissive term "may" because the Virginia statute
authorizes the abortion itself, and not merely the minor "to act without
parental consultation" as in Bellotti II. Given this, using "shall" rather
than "may" would have had the effect of requiring judges to authorize
abortions even where they would be affirmatively prohibited by other
state abortion laws, such as Virginia's strict regulations on third-trimester
abortions. See Appellant's Brief at 29-30. Interestingly, recognition of
this kind of problem may have underlay, even if subconsciously, the
Supreme Court's own transposition of the terms "may" and "shall" in
Casey itself. The Pennsylvania statute there at issue did provide, as plain-
tiffs contend is constitutionally required here, that if both of the minor's
parents refuse consent to the abortion, the court"shall" authorize a physi-
cian to perform the abortion after a hearing in which it is determined that
the minor is mature. See Casey, 505 U.S. at 905 (Appendix). Notwith-
standing the statute's use of the word "shall," the Court described the
bypass provision as if it were (at least according to plaintiffs' arguments)
permissive:
If neither a parent nor a guardian provides consent, a court may
authorize the performance of an abortion upon a determination
that the young woman is mature and capable of giving informed
consent and has in fact given her informed consent .. . .
Id. at 899 (joint op.) (emphasis added). Accord Hodgson, 497 U.S. at 427
(op. of Stevens, J., for the Court) (stating that, under the Minnesota stat-
ute containing mandatory maturity and best interest bypasses, the "court
can authorize" an abortion without notice when the minor is mature or
when the abortion without notice is in her best interest (emphasis
added)).
53
F.3d 1096 (5th Cir. 1997) (rejecting similar construction of Louisiana
consent statute where state legislature had amended the existing statu-
tory term "shall" to read "may" and governing statute required that
"may" be interpreted as permissive). In fact, the Virginia Supreme
Court recently interpreted the term "may" to be mandatory, despite
the inclusion of the word "shall" elsewhere within that same statute.
See Harper v. Virginia Department of Taxation, 462 S.E.2d 892, 895,
898 (Va. 1995). So construed, of course, the statute's bypass provi-
sions would be indistinguishable from those found within the statutes
upheld in Akron II and Hodgson, and the statute's constitutionality
would be beyond dispute. See Lambert, 117 S. Ct. at 1171-72.
Given that a reasonable construction of the Commonwealth's
notice statute exists by which it would satisfy even the requirements
for a consent statute -- including a mandatory bypass for the mature
minor -- we, as a federal court, would be most reluctant to invalidate
the measure facially before the state courts have even had an opportu-
nity to construe the statute. As the Supreme Court has often reminded,
our partners in federalism deserve more by way of comity than would
be implied by such a hasty invalidation of the Commonwealth's
responsibly enacted legislation. See, e.g., Akron I, 462 U.S. at 468-70
(O'Connor, J., joined by White and Rehnquist, JJ., dissenting) (argu-
ing that the majority improperly treated the consent requirement at
issue as a blanket consent requirement without a best interest or matu-
rity bypass because there was "no reason to assume that the Akron
[laws] compel state judges to notify the parents of a mature minor if
such notification was contrary to the minor's best interests" and "no
reason to believe that the state courts would construe the consent
requirement to impose any type of parental or judicial veto on the
abortion decisions of mature minors").
C.
Even if we were to accept, as decided law, that a parental notice
statute must meet the identical requirements that a parental consent
statute must meet in order to be constitutional-- not merely that a
notice statute that includes a Bellotti II bypass is a fortiori constitu-
tional, as we do for purposes of our analysis in Part VI.B. -- the fact
that the Commonwealth's statute can reasonably be interpreted to
include a mandatory maturity bypass would in itself still be sufficient
54
to defeat appellees' facial challenge. For, under Virginia law, where
a statute is susceptible to two interpretations, one of which would ren-
der the statute unconstitutional, the courts are required to interpret the
statute so as to avoid its unconstitutionality. 17 And as a federal court
reviewing such a statute -- especially a statute that has yet to be inter-
preted by the state courts because of federal court intervention before
the statute's effective date -- we would be obliged to assume that the
state courts would follow not only the state's own law, but also the
Constitution. As the Supreme Court also has frequently observed in
the specific context of federal court review of state abortion statutes,
the federal courts, as a matter of federalism and comity, should not
sustain a facial challenge to a state statute that has yet to be construed
by state courts, when a reasonable construction exists which would
eliminate the constitutional infirmity. See citations infra at 64, 79; see
also Ashcroft, 462 U.S. at 493 (op. of Powell, J., joined by Burger,
C.J.) (holding that a statute that arguably allowed the court for "good
cause" to deny a mature minor the opportunity to bypass parental con-
sent was properly construed by the court of appeals to require bypass
whenever the court found the minor mature because"[w]here fairly
possible, courts should construe a statute to avoid a danger of uncon-
stitutionality"); see also Manning v. Hunt, 119 F.3d 254, 270 (4th Cir.
1997) ("The Supreme Court has ruled, in the context of challenges to
abortion regulations, that federal courts should not assume lightly that
a state will not comply with Supreme Court mandates."). That such
a saving construction would be available and appropriate if necessary
to avoid the statute's invalidation proves the error in the district
court's conclusion (even on its understanding of the Constitution as
requiring a mandatory maturity bypass) that, while the federal courts
and the Virginia state courts are obligated to construe state statutes so
as to avoid their unconstitutionality, both the federal courts and the
courts of the Commonwealth would be without the authority to "re-
_________________________________________________________________
17 "There is a presumption that the legislature in the passage of an act
did not intend to violate the constitution of the state or of the United
States, and if such an act is susceptible of two constructions, one of
which would make the same invalid as in violation of the state or federal
constitutions and the other give validity to the act, the latter interpretation
will be adopted upon the theory of legislative intent not to violate any
provision of either of such instruments." 17 Michie's Jurisprudence of
Virginia and West Virginia, Statutes, § 56.
55
write" what the district court characterized as the "express, carefully
thought-out words of the Virginia General Assembly." Memorandum
Op. at 12.
VII.
Our Constitution confers no more fundamental rights than those
brought into relief by a statute requiring that the mother and father of
a teenager with child be informed of the daughter's decision to termi-
nate her pregnancy by abortion. A mother and father who assume the
responsibility of the highest calling in life are entitled to the fullest
possible measure of not only constitutional solicitude, but constitu-
tional encouragement, in their sacred endeavor. They are obliged to
know, and they are entitled to know, the life-defining decisions their
children face. By the same token, as the Supreme Court has held and
recently reaffirmed, there are few rights more fundamental than that
of a woman -- even a minor -- to decide herself whether or not to
carry her pregnancy to term. We conclude today, however, that these
liberties are fully compatible, each with the other, when the law
requires what the Supreme Court itself has repeatedly characterized
as "mere notice" by the child to the parent. To hold otherwise, we are
convinced, would be to turn child from parent, and parent from child
-- at the very moment in life when each is most in need of the other.
Such a plenary violation of family the Constitution cannot be con-
strued to require. Were it to be so, right would be they who said that
with arrogance implacable we had our foundation rent asunder.
The preliminary injunction issued by the district court was in error
and is vacated. The case is remanded for entry of judgment in favor
of the Commonwealth of Virginia.
VACATED AND REMANDED
56
Volume 2 of 2
PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
PLANNED PARENTHOOD OF THE BLUE
RIDGE; HERBERT C. JONES, JR., M.D.;
PLANNED PARENTHOOD OF
METROPOLITAN WASHINGTON;
VIRGINIA LEAGUE FOR PLANNED
PARENTHOOD; HILLCREST CLINIC;
RICHMOND MEDICAL CENTER FOR
WOMEN; THOMAS GRESINGER, M.D.;
COMMONWEALTH WOMEN'S CLINIC;
PLANNED PARENTHOOD OF
No. 97-1853
SOUTHEASTERN VIRGINIA,
Plaintiffs-Appellees,
v.
JAMES L. CAMBLOS, in his official
capacity as Commonwealth's
Attorney for the County of
Albemarle, and as a representative
of all the Commonwealth's
Attorneys in Virginia,
Defendant-Appellant.
Appeal from the United States District Court
for the Western District of Virginia, at Charlottesville.
James C. Turk, District Judge.
(CA-97-43-C)
Argued: March 3, 1998
Decided: August 20, 1998
Before WILKINSON, Chief Judge, and WIDENER,
MURNAGHAN, ERVIN, WILKINS, NIEMEYER, LUTTIG,
WILLIAMS, MICHAEL, and MOTZ, Circuit Judges.
_________________________________________________________________
Vacated and remanded by published opinion. Judge Luttig wrote the
opinion, in which Chief Judge Wilkinson and Judges Widener, Wil-
kins, Niemeyer, and Williams joined. Chief Judge Wilkinson wrote a
concurring opinion. Judge Widener wrote a concurring opinion. Judge
Michael wrote an opinion concurring in the judgment, in which
Judges Murnaghan, Ervin, and Motz joined.
_________________________________________________________________
COUNSEL
ARGUED: William Henry Hurd, Deputy Attorney General, OFFICE
OF THE ATTORNEY GENERAL, Richmond, Virginia, for Appel-
lant. Simon Heller, THE CENTER FOR REPRODUCTIVE LAW &
POLICY, New York, New York, for Appellees. ON BRIEF: Richard
Cullen, Attorney General of Virginia, Claude A. Allen, Deputy Attor-
ney General, Siran S. Faulders, Senior Assistant Attorney General,
Garland L. Bigley, Assistant Attorney General, Alison P. Landry,
Assistant Attorney General, Brian M. McCormick, Assistant Attorney
General, Daniel J. Poynor, Assistant Attorney General, Rita R. Woltz,
Assistant Attorney General, OFFICE OF THE ATTORNEY GEN-
ERAL, Richmond, Virginia, for Appellant. Karen A. Raschke,
MACAULAY, LEE & POWELL, Richmond, Virginia, for Appellees.
_________________________________________________________________
WILKINSON, Chief Judge, concurring:
The great turn-of-the-century astronomer, Percival Lowell, contrib-
uted much to our knowledge of the planets and the vastness of the
cosmos. Pluto is named after him, the first two letters of its name
being Percival Lowell's own initials. Lowell's lifelong passion, how-
ever, was the planet Mars. See generally William G. Hoyt, Lowell and
Mars (1976).
58
Working from his observatory on Mars Hill in Flagstaff, Arizona,
Lowell became convinced that Mars teemed with life. The lines on
the planet's surface seemed to him a vast network of canals, a huge
planetary distribution system. Perhaps not surprisingly, the astrono-
mer's theories on Mars bore an uncanny resemblance to Lowell's life
on Earth, the extraterrestrial engineering feats mirroring the industrial
revolution of the late nineteenth century and the Martian irrigation
ditches alleviating conditions like those found in the observatory's
own American Southwest. Fanned by Lowell's observations, a popu-
lar belief in a populated Mars took root. Id.
Lowell, of course, sought scientific truth, while we, as judges, go
in search of legal, ethical, or philosophic certainty. Yet judges, no less
than astronomers, have but a blurred, imperfect gaze upon the objects
of their passions. Truth is as elusive to those learned in the law as to
those versed in the stars, clouded as it is by new discovery and deep
complexity.
Judges' observations need not resolve every highly-charged debate.
In Hoffman v. Hunt, 126 F.3d 575 (4th Cir. 1997), this circuit prop-
erly upheld the constitutionality of the Freedom of Access to Clinic
Entrances Act of 1994, in which Congress acted to prevent nation-
wide violence and obstruction of access at abortion facilities. See also
American Life League, Inc. v. Reno, 47 F.3d 642 (4th Cir. 1995). And
today, this court sustains the constitutionality of Virginia's parental
notification law. The binding principle of these decisions is not one
of political philosophy, but of judicial restraint.
The astronomers of the bench do not have all the answers to such
questions as: When does human life begin? Where does the role of
the state in intimate decisions end? The perplexity of these questions
perhaps explains why Americans remain so deeply and so passion-
ately divided on the answers. On matters touching profound moral
beliefs and intimate human freedom, a democratic system holds forth
no prospect of agreement. What it does promise is a compromise that
disenfranchises no one and that, though fully satisfactory to few, may
be partly satisfactory to many.
The compromise reached here, the Virginia Parental Notification
Act, imposes only the mildest form of regulation upon the fundamen-
59
tal constitutional right to terminate an unwanted pregnancy. Va. Code
§ 16.1-241(V). The Act prescribes notification, not consent, and
requires informing one parent, not two. The Act contains exemptions
for medical emergencies and situations where the minor has been the
victim of parental abuse or neglect. And the Act allows judicial by-
pass of the notification requirement both for mature minors who are
capable of giving informed consent to an abortion and for any minor
if an abortion without notice would be in her best interests. Though
petitioners object that the Act says a court "may" rather than "must"
waive notification in these circumstances, the Act is certainly suscep-
tible to a construction that avoids this objection. Finally, the Act pro-
vides an array of procedural safeguards: a minor seeking to avail
herself of the by-pass procedure may act on her own behalf or the
court may appoint a guardian ad litem; the minor shall be advised of
her right to counsel and may request that counsel be appointed to rep-
resent her; all proceedings pursuant to the Act are confidential; and
the Act outlines an expedited schedule for hearing by-pass petitions
and deciding appeals from adverse rulings. If the Act were a consent
statute or otherwise imposed more onerous burdens on the abortion
right, we would have a very different case.
To be sure, the legislative compromise here does not please every-
one. The law does not go so far as to satisfy those who would condi-
tion abortion on the giving of parental consent. And it goes too far for
those who would leave the decision of whether to consult a parent
solely in the hands of a minor. The procedure for bypassing parental
notification may be too cumbersome for some, and it may be too
porous for others. But such things inhere in the nature of compromise.
Here, the compromise was reached after more than a decade of public
debate. Virginia has taken a modest step to promote the consultation
of parent and child in reaching the profound decision to terminate an
unwanted pregnancy. This is not, as I read the Supreme Court's case
law, an illegitimate exercise in democracy. So long as the core consti-
tutional right is safeguarded, I understand the Court to say that demo-
cratic debate, at least at the margins, may continue. For all its raucous
moments, such debate may ultimately unify Americans more than the
Lowellian solution of a court.
60
WIDENER, Circuit Judge, concurring:
I.
I concur in the result, and I concur in the majority opinion.
II.
Left to my own devices, I would arrive at the same result by a more
direct route. In my opinion, under existing precedent, a Virginia court
which has found an infant to be mature but has declined to authorize
an abortion upon request of the infant, has abused its discretion. So
the use of "may" in the Virginia statute, which has caused all the com-
motion here, is of no moment. Along the same line, the infant may
have chosen the notice route, or she may have chosen the bypass
route. Since the statute, however, contains a bypass proceedure for a
mature infant, the fact that she may choose the notice route is a matter
of indifference, and that aspect of the statute does not invalidate it.
As the Virginia statute is thus construed, our case is indistinguish-
able from Akron II.
MICHAEL, Circuit Judge, concurring in the judgment:
The Virginia Parental Notice Act requires that unmarried women
under eighteen notify their parents before they can obtain an abortion.
The statute contains an exception to the notice requirement, however:
if a Virginia juvenile court judge finds that the minor is mature and
capable of giving informed consent, the judge "may authorize a physi-
cian to perform an abortion." Va. Code § 16.1-241(V). The plaintiffs
argue that this statute gives a judge discretion to force a young
(minor) woman to notify her parents before she can exercise her con-
stitutional right to obtain an abortion, even if the judge concludes that
she is mature and capable of informed consent. However, if "may"
means "must," the statute would meet what I believe is the constitu-
tional requirement that a parental notice statute have a mandatory
judicial bypass for mature minors.
The United States Supreme Court has never directly decided
whether a parental notice statute must accord mature minors a manda-
61
tory judicial bypass. The majority takes this as an invitation to ignore
the implication of the Court's clear statements that the state's interest
in encouraging parental involvement in the abortion decision must
give way to a mature minor's constitutional right to obtain an abor-
tion. It then overlooks the harmful consequences (physical and psy-
chological abuse) that will surely befall many mature minors if all are
forced to tell their parents of their wish to have an abortion. These
harmful consequences cannot be ignored because under Casey they
must be considered in determining whether a statute poses an undue
burden on the abortion right. Yet the majority refuses to recognize
that a parental notice statute without a mandatory bypass brings the
prospect of abuse and intimidation for a large fraction of mature
young women who choose an abortion but who do not wish to notify
their parents. As a result, the majority comes to the erroneous conclu-
sion that a statute lacking a mandatory bypass would not pose an
undue burden on a mature minor's right to an abortion. Because I
believe the majority misreads the thrust of what the Supreme Court
has said and refuses to recognize the harms that make parental notice
statutes without a mandatory bypass an undue burden, I cannot join
in its opinion.
However, the Virginia statute must be construed by the Virginia
courts in accordance with the United States Constitution. Under Vir-
ginia law a statute that employs the word "may" will be interpreted
to be mandatory rather than permissive if that is what the Constitution
requires. Since the Constitution requires Virginia state judges to per-
mit mature young women to obtain abortions without parental notice,
the word "may" must be interpreted as a mandatory term. For that rea-
son alone, I concur in the judgment that the Virginia statute is not
unconstitutional on its face.
I.
I agree with the majority that the Supreme Court has never
squarely held that a parental notice statute requires a mandatory judi-
cial bypass just like a parental consent statute does. See Lambert v.
Wicklund, 117 S. Ct. 1169, 1171 (1997). However, I do not under-
stand how the majority can transform this lack of a square holding
into "substantial authority" for the proposition that mature minors
may be forced to notify their parents before exercising their right to
62
choose an abortion. See ante at 25. This flies in the face of twenty
years of clear indications by the Court that mature minors share the
same rights as adult women in exercising the abortion right. I believe
there is little doubt that, if squarely presented with the issue, the Court
would require a mandatory judicial bypass for mature minors.
The Supreme Court's insistence on the preservation of a mature
minor's constitutional right to obtain an abortion free of parental
obstacles has its origins in Bellotti v. Baird , 443 U.S. 622, 647 (1979)
(Bellotti II). In Bellotti II the Court struck down a statute requiring
that parents be notified of their minor daughter's desire to seek an
abortion before she could obtain judicial consent, even though the
Commonwealth of Massachusetts attempted to justify this require-
ment on the ground that it enabled the parents to argue in court that
an abortion would not be in the minor's best interests. Writing for a
four-Justice plurality, Justice Powell said, "[i]f [a minor] satisfies the
court that she is mature and well enough informed to make intelli-
gently the abortion decision on her own, the court must authorize her
to act without parental consultation or consent ." Id. at 647 (plurality
opinion) (emphasis added). While, as the majority notes, this state-
ment did not command a majority, subsequent opinions have demon-
strated the continued vitality of the statement that mature minors must
be permitted to receive an abortion without parental notice. See, e.g.,
Hodgson v. Minnesota, 497 U.S. 417, 453-54 (1990) ("the constitu-
tional defects that Justice Powell identified in the statute [in Bellotti
II] - its failure to allow a minor who is found to be mature and fully
competent to make the abortion decision independently and its
requirement of parental consultation even when an abortion without
notification would be in the minor's best interests-- are predicated
on the assumption that the justification for any rule requiring parental
involvement in the abortion decision rests entirely on the best inter-
ests of the child" (citing Bellotti II) (emphasis added, footnote
deleted)).
In H.L. v. Matheson, 450 U.S. 398 (1981), the majority opinion
declined to consider whether the Constitution required a mandatory
judicial bypass for mature minors in a parental notice statute because
the plaintiff did not argue that she was a mature minor. See id. at 406.
However, Justice Powell (in a separate concurrence joined by Justice
Stewart) said that "a State may not validly require notice to parents
63
in all cases, without providing an independent decisionmaker to
whom a pregnant minor can have recourse if she believes that she is
mature enough to make the abortion decision independently or that
notification otherwise would not be in her best interest." Id. at 420
(Powell, J., concurring). In the same case Justice Marshall noted in a
four-vote dissent that the Court was "not question[ing] that exceptions
from a parental notice requirement are necessary . .. for minors able
to demonstrate their maturity." Id. at 428 n.3 (Marshall, J., dissent-
ing). When the votes for Justice Powell's concurrence and Justice
Marshall's dissent are combined, six justices agreed that a mature
minor cannot be required to notify her parents before obtaining an
abortion.
This principle was explicitly approved by the Court in Akron v.
Akron Center for Reproductive Health, 462 U.S. 416 (1983) (Akron
I), overruled in part on other grounds by Planned Parenthood v.
Casey, 505 U.S. 833, 881-83 (1992). The Court there held that a stat-
ute requiring parental notice for all minors under the age of fifteen
without a case-by-case determination of whether a minor is mature is
unconstitutional. The Court recognized the state's considerable inter-
est in protecting children and encouraging parental involvement in
such a weighty decision as whether to have an abortion, an interest
the majority highlights in its opinion today. Nevertheless, the Court
indicated that "these state and parental interests must give way to the
constitutional right of a mature minor" to obtain an abortion. Id. at
428 n.10 (citing Justice Powell's concurrence and Justice Marshall's
dissent in Matheson) (emphasis added).
I agree with the majority that a minor child's parents have a major
interest in guiding the child's decisions, particularly on the important
choices surrounding the matter of abortion. In Planned Parenthood v.
Casey, 505 U.S. 833, 895 (1992), the Court recognized that it had
upheld some parental notice or consent statutes as constitutional "on
the quite reasonable assumption" that minors benefit from consulta-
tion with their parents.1 On this point the Court referred to its prior
_________________________________________________________________
1 A study reported in our record reveals that "in states without parental
involvement laws in effect, the majority of unmarried minors having an
abortion (61%) said that one or both of their parents knew about their
abortion. Of the parent who knew about the pregnancy, 75% had been
told by the daughter herself." In the majority of cases, therefore, notice
occurs, and positive parental guidance can follow, without intervention
by the state.
64
decisions in Ohio v. Akron Center for Reproduction Health, 497 U.S.
502 (1990) (Akron II), Bellotti II, and Planned Parenthood v.
Danforth, 428 U.S. 52, 74 (1976). See Casey , 505 U.S. at 895. Those
decisions approved only those statutes that permitted mature minors
to opt out of the parental notice or consent provision through a
mandatory judicial bypass. See, e.g., Akron II, 497 U.S. at 510-12
(upholding parental notice statute because it contained a mandatory
judicial bypass for mature minors). This is consistent with the Court's
prior statement in Akron I that a mature minor's constitutional right
to an abortion outweighs the interests of the state and parents to
require that the minor notify her parents about a planned abortion.
The Court's statements in these cases make clear that once a minor
is found to be mature and capable of making an informed choice, she
must be given the same consideration as an adult woman when it
comes to her constitutional rights. See Bellotti II, 443 U.S. at 647
(plurality opinion); Akron I, 462 U.S. at 428 n.10; Hodgson, 497 U.S.
at 453-54. Thus, the state cannot impose any restrictions on a mature
minor's right to choose an abortion that cannot be imposed on an
adult woman. See Planned Parenthood v. Miller , 63 F.3d 1452, 1460
(8th Cir. 1995) (Arnold, C.J.), cert. denied sub nom. Janklow v.
Planned Parenthood, 517 U.S. 1174 (1996); see also Causeway Med-
ical Suite v. Ieyoub, 123 F.3d 849, 851 n.3 (5th Cir. 1997) (Jones, J.,
dissenting from denial of reh'g en banc) (Under Bellotti II "[i]f the
court finds [a young woman] sufficiently mature to make the abortion
decision, that is the end of the matter. Neither the court nor the par-
ents can tell her what to do"). Until today, this principle has led every
circuit considering the issue to conclude that any statute which forbids
mature minors from obtaining abortions without parental notice is
unconstitutional unless it provides a mandatory judicial bypass. See,
e.g., Causeway Medical Suite v. Ieyoub, 109 F.3d 1096, 1104-06 (5th
Cir. 1996), reh'g en banc denied 123 F.3d 849 (5th Cir.), cert. denied,
118 S. Ct. 357 (1997); Miller, 63 F.3d at 1459-61; Zbaraz v.
Hartigan, 763 F.2d 1532, 1536 (7th Cir. 1985), aff'd by an equally
divided court, 484 U.S. 171 (1987); Indiana Planned Parenthood
Affiliate Assoc. v. Pearson, 716 F.2d 1127, 1134 (7th Cir. 1983) (A
parental notice statute "constitutionally cannot . . . give the juvenile
court the authority to refuse to waive notification despite a finding
that the minor is mature"). Against this background, I cannot agree
with the majority's conclusion that the Constitution allows a state to
65
forbid mature minors from exercising their right to an abortion unless
they first notify their parents.
II.
In evaluating the constitutionality of the Virginia Parental Notice
Act, the majority purports to apply the Supreme Court's test in Casey.
Under this test if a statute restricting abortion has "the effect of plac-
ing a substantial obstacle in the path of a woman's choice," it is
invalid on its face. In its analysis the majority only considers one pos-
sible effect of a statute that forces mature minors to notify their par-
ents before having an abortion: that the minors may be "exposed to
[their] parents' views" on the abortion decision. Ante at 32. Unsur-
prisingly, the majority finds this effect not to be a substantial obstacle
to the rights of mature minors, and it concludes that the Virginia stat-
ute is constitutional.
The majority's analysis slights the real and very serious conse-
quences that a requirement of parental notification without a manda-
tory judicial bypass would have for many mature young women who
have very good reasons to avoid parental notice. These reasons
include the fear and prospect of physical and psychological abuse by
parents. The Supreme Court has held in the spousal notification con-
text that these fears have the unconstitutional effect of placing a sub-
stantial obstacle in the path of a woman's right to choose abortion.
Because many mature minor women would reasonably have similar
fears of abuse under a parental notification statute without a manda-
tory judicial bypass, such a statute is also unconstitutional.
A.
In Casey the Supreme Court established a clear test for determining
whether a statute restricting abortion could survive constitutional
scrutiny. A statute is invalid on its face if it places an undue burden
on a woman's right to have an abortion. An undue burden exists if the
state regulation has "the effect of placing a substantial obstacle in the
path of a woman's choice" to obtain an abortion. Casey, 505 U.S. at
877 (joint op. of O'Connor, Kennedy, and Souter, JJ.). A statute that
creates a substantial obstacle for a large fraction of those women
66
affected by the regulation creates an undue burden and is facially
unconstitutional. See id. at 894-95.2
_________________________________________________________________
2 The majority seems to have some doubt about whether the "undue
burden" standard used by the Court in Casey is the proper standard for
facial challenges to abortion regulations, a doubt our court first articu-
lated in dicta in Manning v. Hunt, 119 F.3d 254, 268 n.4 (4th Cir. 1997).
The focus of the controversy hinges on whether the Casey "undue bur-
den" test overruled United States v. Salerno , 481 U.S. 739 (1987), which
indicated that a facial challenge must "establish that no set of circum-
stances exists under which the Act would be valid." Id. at 745.
I harbor no such doubts. Casey is clear on its face that the Court "set
forth a standard of general applicability" for reviewing facial challenges
to abortion restrictions. Casey, 505 U.S. at 876; see also Fargo Women's
Health Org. v. Schafer, 507 U.S. 1013, 1014 (1993) (O'Connor, J., con-
curring in denial of application for stay and injunction pending appeal)
("In striking down Pennsylvania's spousal-notice provision [in Casey],
we did not require petitioners to show that the provision would be invalid
in all circumstances. Rather, we made clear that a law restricting abor-
tions constitutes an undue burden, and hence is invalid, if, `in a large
fraction of the cases in which [the law] is relevant, it will operate as a
substantial obstacle to a woman's choice to undergo an abortion.'"
(emphasis and second alteration in original) (citation omitted)); cf.
Janklow v. Panned Parenthood, 517 U.S. 1174, 1175 (1996) (Stevens, J.,
respecting the denial of certiorari) ("Salerno's rigid and unwise dictum
has been properly ignored in subsequent cases even outside the abortion
context."); Michael C. Dorf, Facial Challenges to State and Federal
Statutes, 46 Stan. L. Rev. 235, 271-79 (1994) (noting that even before
Casey, Supreme Court did not apply Salerno standard in the abortion
context). I would therefore join the overwhelming majority of our sister
circuits in accepting that the Casey undue burden test must be applied in
facial challenges to abortion restrictions. See, e.g., Women's Medical
Professional Corp. v. Voinovich, 130 F.3d 187 (6th Cir. 1997), cert.
denied, 118 S. Ct. 1347 (1998); Jane L. v. Bangerter, 102 F.3d 1112
(10th Cir. 1996), cert. denied, 117 S. Ct. 2453 (1997); Planned Parent-
hood v. Miller, 63 F.3d 1452 (8th Cir. 1995) (Arnold, C.J.), cert. denied
sub nom. Janklow v. Planned Parenthood, 517 U.S. 1174 (1996); Casey
v. Planned Parenthood, 14 F.3d 848 (3d Cir. 1994) (on remand), stay
denied sub nom. Casey v. Planned Parenthood, 510 U.S. 1309 (Souter,
Circuit Justice 1994); Wicklund v. Lambert, 979 F. Supp. 1285 (D. Mont.
1997) (on remand) (citing Compassion in Dying v. Washington, 79 F.2d
790, 798 n.9 (9th Cir. 1996) (en banc), rev'd on other grounds sub nom.
Washington v. Glucksberg, 117 S. Ct. 2258 (1997)).
67
In Casey the Court evaluated the constitutionality of a Pennsylva-
nia statutory provision that required spousal notification before a mar-
ried woman could obtain an abortion. The Court focused its analysis
on the effects of the provision on "married women selecting abortions
who do not wish to notify their husbands." Id. at 895. Relying on
extensive factfinding by the district court, the Court concluded that
several factors would tend to dissuade a large fraction of this class of
women from seeking abortions even if they were legally entitled to
one. These factors included the very real and tragic possibility of
physical abuse. The Court noted that there is considerable undisputed
evidence that violence against wives by their husbands is all too prev-
alent, affecting thousands of women every day . It further recognized
that "[m]ere notification of pregnancy is frequently a flashpoint for
battering and violence within the family. The number of battering
incidents is high during pregnancy and often the worst abuse can be
associated with pregnancy." Id. at 889 (citation and internal quota-
tions omitted).
The Casey Court also considered evidence of non-physical abuse
or coercion that could prevent women from seeking an abortion. The
Court observed:
Many [women] may fear devastating forms of psychological
abuse from their husbands, including verbal harassment,
threats of future violence, the destruction of possessions,
physical confinement to the home, the withdrawal of finan-
cial support, or the disclosure of the abortion to family and
friends. These methods of psychological abuse may act as
_________________________________________________________________
I must also note that even the Fifth Circuit, the sole court to reject
Casey and follow Salerno, has determined that a parental notice statute
must include a mandatory judicial bypass for mature minors in order to
survive a facial constitutional challenge. See Causeway Medical Suite v.
Ieyoub, 109 F.3d 1096, 1104 (5th Cir. 1996), reh'g en banc denied 123
F.3d 849 (5th Cir.), cert. denied, 118 S. Ct. 357 (1997).
At any rate, the majority claims that even under the Casey test, the
Virginia statute is facially valid. Accordingly, I proceed by challenging
this conclusion under Casey.
68
even more of a deterrent to notification than the possibility
of physical violence, but women who are the victims of the
abuse are not exempt from [the] notification requirement.
Id. at 894. The Court ultimately concluded that because of the danger
of physical and psychological abuse facing a large fraction of married
women who do not wish to notify their husbands about a planned
abortion, a spousal notice statute posed the same undue burden on
women as a statute giving the husband veto power over his wife's
decision to have an abortion.
Whether the prospect of notification itself deters such
women from seeking abortions, or whether the husband,
through physical force or psychological pressure or eco-
nomic coercion, prevents his wife from obtaining an abor-
tion until it is too late, the notice requirement will often be
tantamount to the veto found unconstitutional in Danforth.
The women most affected by this law -- those who most
reasonably fear the consequences of notifying their hus-
bands that they are pregnant -- are in the gravest danger.
Id. at 897. The court accordingly struck down the spousal notice pro-
vision as facially unconstitutional. See id.
B.
As I have said, the majority purports to apply the Casey "undue
burden" standard in considering whether the Virginia parental notice
statute passes constitutional muster. See ante at 25. But instead of
addressing the real effects of a mandatory parental notice statute, the
majority builds a man of straw which it finds easy to knock down.
The only possible effect of parental notice that the majority even con-
siders is that the minor "may be exposed to her parents' views" on the
abortion decision. Ante at 32. By suggesting only such a minor bur-
den, the majority is able to dismiss it with ease by asserting that par-
ents have the right to guide their children through moral suasion.
The majority's argument fails to acknowledge the serious effects
that parental notice of an abortion has for many young women under
69
eighteen. It does not address the evidence in the record that a very real
danger of physical and psychological abuse exists for a large fraction
of those young women who would be forced (against their will) to
notify their parents that they are pregnant and considering an abor-
tion. These dangers are not only virtually identical to those which
caused the Supreme Court to invalidate a spousal notification provi-
sion in Casey, but in one way the dangers are even more pronounced
for mature minors. These young women are by definition dependent
on their parents and therefore particularly vulnerable to the fear of
parental abuse or coercion.
The most detrimental burden of a statute without a mandatory
mature minor bypass would be the risk of physical harm to the minor
by a parent. There is no doubt that child abuse is a pervasive problem
in our society. See Council on Ethical and Judicial Affairs, American
Medical Assoc., Mandatory Parental Consent to Abortion, 269
JAMA 82 (1993) (noting that there are about 1.5 million cases of
child abuse every year in the United States). The Supreme Court itself
recognizes a strong relationship between spousal abuse and child
abuse. See Casey 505 U.S. at 891. One study, which is in our record,
reveals that six percent of those minors who did not tell their parents
about their pregnancy and abortion feared that they would be beaten
if their parents found out. Yet the majority never acknowledges the
possibility that a parent may abuse a child who reveals that she is con-
sidering an abortion.3
While the Virginia statute does provide an exception for abused
minors who meet certain criteria, these statutory requirements do not
address the concerns of most young women who may be exposed to
abuse. The Virginia statute only provides an exception for those cases
where (1) the minor declares that she is abused and (2) the physician
"has reason to suspect" that she is telling the truth and (3) the physi-
cian reports the abuse to the authorities. See Va. Code § 16.1-241(V).
This procedure will not catch many of the cases where a parent might
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3 The case of Spring Adams, a young woman of 13 from Idaho, illus-
trates that this possibility is all too real. Adams became pregnant after
being repeatedly raped by her father. When he found out that she was
about to get an abortion, he shot and killed her. See Margie Boule, An
American Tragedy, Portland Oregonian, Aug. 27, 1989.
70
resort to physical abuse to dissuade a minor daughter from seeking an
abortion. Child abuse, like spousal abuse, is shrouded in secrecy, and
an abused young woman will be very reluctant to reveal her plight to
a doctor she has just met. Cf. Casey, 505 U.S. at 889-90. Further, the
statute's requirement that a minor must have already experienced
abuse completely misses those cases in which revelation of a preg-
nancy might provoke an abusive situation that did not previously
exist. See id. at 889; Mandatory Parental Consent, supra. Even
worse, this provision places full power and discretion over the
minor's constitutional rights in the hands of a third party, the physi-
cian, who would wield an effective veto over his patient's abortion
choice by his sole and unreviewable determination that a declaration
of abuse is not credible. This is exactly the kind of third-party veto
that the Court has flatly rejected as a violation of a minor's constitu-
tional rights. See Danforth, 428 U.S. at 74. I therefore believe that the
statute's abuse exception is constitutionally inadequate to protect
mature minors who are in danger of physical abuse if they notify their
parents about their wish to have an abortion.
Beyond physical abuse, some mature minors, like some of the adult
women in Casey, will also be subject to serious psychological abuse
or intimidation that would pose a substantial obstacle to their right to
seek an abortion. In response to being forced to notify their parents
about their intended abortion, some young women will be exposed to
severe punishment short of actual battery. This punishment could
include parents forcing the young women to leave the family home
or denying them financial support. Data in the record show that eigh-
teen percent of minors who declined to inform their parents did so
because they feared being evicted from their homes. If anything, the
potential consequences of such psychological abuse or intimidation
are more severe for minor women, even mature minors, than for adult
women because of their obvious dependence on their parents for sup-
port. This fact was recognized by the Supreme Court in Bellotti II:
"[y]oung pregnant minors, especially those living at home, are partic-
ularly vulnerable to their parents' efforts to obstruct both an abortion
and their access to court." 443 U.S. at 647 (plurality opinion). Psycho-
logical abuse and intimidation pose substantial obstacles to a mature
minor's right to an abortion just as surely as does physical abuse.
Again, the majority never considers that forcing young women to tell
71
their parents that they wish to receive an abortion could have such
harmful effects.
These consequences illustrate that parental notification without a
mandatory bypass for mature minors permits parents to place much
more significant (and harmful) obstacles than mere moral suasion in
the path of young women's constitutional right to an abortion. The
empirical evidence advanced by the plaintiffs demonstrates that the
danger of parental retaliation, like that of spousal abuse, would likely
dissuade a large fraction of mature minors -- forced against their will
to notify their parents -- from exercising their right to an abortion.
A parental notice statute without a mandatory judicial bypass, like the
spousal notification provision overturned in Casey, would allow par-
ents to resort to physical and psychological coercion, thereby placing
a substantial roadblock in the path of mature young women who seek
an abortion. This type of statute, which denies a mature minor sure
recourse to the courts, is "tantamount to the veto found unconstitu-
tional in Danforth." Casey, 505 U.S. at 897 (discussing spousal notifi-
cation statute). Since such a statute creates an undue burden on the
constitutional rights of mature young women, it is unconstitutional. I
would therefore join every other circuit considering the issue and hold
that parental notice statutes must contain a mandatory judicial bypass
for mature minors.
III.
The majority suggests that if a mandatory bypass is a constitutional
necessity for the mature minor, the Virginia statute"could reasonably
be interpreted to require notice bypass for mature minors." Ante at 52.
The majority, however, does not hold that "may" has to be read as
"must" in the bypass language of the Act. I would so hold.
The Virginia Supreme Court has in the past interpreted "may" to
carry a mandatory rather than permissive meaning. In Harper v. Vir-
ginia Dept. of Taxation, 462 S.E.2d 892 (Va. 1995), for instance, the
Virginia Supreme Court interpreted the term "may" in a statute to be
mandatory, even though the word "shall" appeared elsewhere within
the same statute, because a mandatory meaning accorded with the
clear intent of the legislature. See id. at 895, 898; see also Whitlock
v. Hawkins, 53 S.E. 401, 408 (Va. 1906) ("[w]here a statute can be
72
construed in harmony with the fundamental law, the courts will adopt
that construction, rather than one which will render the law void");
see generally 17 Michie's Jurisprudence of Virginia & West Virginia,
Statutes § 56 ("[I]f . . . an act is susceptible of two constructions, one
of which would make the same invalid as in violation of the . . . fed-
eral constitution[ ] and the other give validity to the act, the latter
interpretation will be adopted" (footnote omitted)). In this case Vir-
ginia concedes that if a parental notification statute must constitution-
ally provide a mandatory judicial bypass for mature minors, "`may'
must be given a mandatory meaning." Appellant's Br. at 32.4
Construing the Virginia Parental Notice Act to read"may" as man-
datory will require Virginia courts to authorize abortions for every
minor found to be mature. There is no question that the Virginia
parental notice statute thus construed would be constitutional. See
Akron II, 497 U.S. at 510-13 (holding statute which provided manda-
tory bypass for mature minors constitutional). Accordingly, I concur
in the judgment that the Virginia Parental Notice Act is constitutional
on its face because the term "may" must be interpreted to be manda-
tory.
IV.
A quarter century ago in Roe v. Wade, 410 U.S. 173 (1973), the
Supreme Court firmly established that women have the fundamental
constitutional right to choose an abortion. Roe v. Wade has been
under constant assault ever since. It has been inveighed against, cam-
paigned against, legislated against, and litigated against. But it is still
on the books, and one thing remains clear: a state law cannot place
an undue burden on a woman's right to have an abortion. I think it
inescapable that forcing parental notification without mandatory
bypass on mature women under eighteen would be an undue burden
on this right. Thus, when all is said and done, I believe the Supreme
Court will uphold the right of mature minors to choose an abortion
without parental notification.
_________________________________________________________________
4 I am also persuaded by Judge Widener's statement that under Virginia
law, any court that denied permission for an abortion to a mature minor
would commit reversible error. See ante at 61 (Widener, J., concurring).
73
Judge Murnaghan, Judge Ervin, and Judge Motz join in this opin-
ion.
74