JANE HODGSON, ET AL., PETITIONERS V. STATE OF MINNESOTA, ET AL.

   STATE OF MINNESOTA, ET AL., CROSS-PETITIONERS V. JANE HODGSON, ET
AL.

   No. 88-1125, No. 88-1309

   In The Supreme Court Of The United States

   October Term, 1989

   On Writ Of Certiorari To The United States Court Of Appeals For The
Eighth Circuit

   Brief For The United States As Amicus Curiae Supporting Respondents
In No. 88-1125 And Supporting Cross-Petitioners In No. 88-1309

            TABLE OF CONTENTS
   Question Presented
   Interest of the United States
   Statement
   Summary of argument
   Argument:
       The Minnesota parental notification requirement does not
       violate the Due Process Clause
       I. Abortion regulations, including parental notification
          requirements, should be upheld if they are reasonably
          designed to serve legitimate state interests
          A. Abortion regulations are subject to heightened review
             under the Due Process Clause only if they implicate a
             fundamental right
          B. No fundamental right is implicated by the Minnesota
             notification requirement
             1. This nation's history and traditions do not establish
                that there is a fundamental right to an abortion
             2. An unemancipated minor does not have a fundamental
                right to an abortion without her parents' consent
             3. An unemancipated minor does not have a fundamental
                right to an abortion without her parents' knowledge
          C. The "undue burden" analysis does not constitute a
             substitute for a standard of review
      II. Parental notification requirements are reasonably designed
          to serve legitimate state interests
          A. Parental notification requirements advance the legitimate
             state interests of informing and involving parents in
             decisions affecting the welfare of their minor children
          B. Parental notification requirements are not subject to
             judicial cost/benefit analysis
   Conclusion

                          QUESTION PRESENTED

   The United States will address the following question:

   Whether the constitutionality of a state statute that requires
notification of both parents that their unemancipated daughter has
sought an abortion should be assessed under a standard of review that
asks whether it is reasonably designed to serve a legitimate state
interest and, if so, whether that statute is constitutional.

                     INTEREST OF THE UNITED STATES

   In Webster v. Reproductive Health Services, 109 S. Ct. 3040 (1989),
the United States filed a brief as amicus curiae in which it joined
the State of Missouri in urging the Court to abandon the framework for
judicial review of abortion legislation established in Roe v. Wade,
410 U.S. 113 (1973), and to adopt in its place a standard of review
that would ask whether such legislation is reasonably related to the
advancement of legitimate governmental objectives.  (A copy of our
brief has been provided to the parties.) The Court was deeply divided
in its response to that submission.  Four Members of the Court
expressed the view that Roe v. Wade and succeeding cases should be
limited or overruled, 109 S. Ct. at 3056-3058 & n.15 (plurality
opinion);  id. at 3064-3067 (opinion of Scalia, J.);  a fifth Member
was willing to reconsider Roe in a proper case, id. at 3061 (opinion
of O'Connor, J.).  In addition, although the plurality applied a
standard of review similar to that endorsed by the United States, see
id. at 3057, 3058, three dissenting Justices disagreed with that
statement of the applicable standard, id. at 3076 (Blackmun, J.,
concurring and dissenting), and three other Justices authored separate
opinions that did not expressly discuss the standard of review.  See
id. at 3058-3064 (O'Connor, J., concurring);  id. at 3064-3067
(Scalia, J., concurring in part and concurring in the judgment);  id.
at 3079-3085 (Stevens, J., concurring and dissenting).  In Webster's
wake, there is now considerable uncertainty about the proper standard
of review to be applied by courts in assessing the constitutionality
of abortion regulations.

   The United States has a substantial interest in the resolution of
that question.  Congress has previously enacted legislation concerning
abortion.  See, e.g., Act of Sept. 30, 1976, Pub. L. No. 94-439,
Section 209, 90 Stat. 1434 (1976) (the Hyde Amendment);  Title X of
the Public Health Service Act of 1970, 42 U.S.C. 300 et seq.; the
Adolescent Family Life Act of 1981, 42 U.S.C. 300z et seq.  Moreover,
federal regulations implementing Title X of the Public Health Services
Act of 1970 are currently being challenged in the lower courts on the
ground that they are inconsistent with Roe v. Wade and succeeding
cases.  E.g., Massachusetts v. Sullivan, No. 88-1279 (1st Cir. May 8,
1989) (rehearing en banc granted).  The manner in which the Court
articulates the standard of review in this case could therefore affect
the authority of Congress to enact legislation concerning abortion,
and could have a direct impact on the outcome of pending
constitutional challenges in the lower courts involving the federal
government.

                               STATEMENT

   1. In 1971, Minnesota enacted an exception to the commonlaw rule
that required parental consent before medical treatment could be
provided to minor children.  1971 Minn. Laws ch. 544.  Section 3 of
that statute authorized minors to "give effective consent for medical,
mental, and other health services to determine the presence of or to
treat pregnancy and conditions associated therewith, veneral disease,
alcohol and other drug abuse." Minn. Stat. Ann. Section 144.343 (West
1989).  Because abortion was at that time a crime under Minnesota law,
/1/ the statutory exception for pregnancy-related medical care did not
authorize minors to consent to an abortion.

   On February 2, 1973, less than two weeks after this Court decided
Roe v. Wade and Doe v. Bolton, 410 U.S. 179, the Minnesota Supreme
Court held, on authority of Roe, that the Minnesota abortion statute
was unconstitutional in its entirety.  State v. Hodgson, 295 Minn.
294, 204 N.W.2d 199;  State v. Hultgren, 295 Minn. 299, 204 N.W.2d
197.  By striking down the Minnesota abortion statute, the Minnesota
Supreme Court in effect enabled minors to consent to abortions under
the exception for pregnancy-related medical care in Minn. Stat. Ann.
Section 144.343 (West 1989).

   In 1981, the Minnesota legislature amended Section 144.343 by
adopting the provisions at issue in this case.  1981 Minn. Laws ch.
228.  The legislature did not attempt to require parental consent for
an abortion.  /2/ Instead, in Subdivision 2 of the 1981 amendment the
legislature qualified the statutory exception to the general parental
consent requirement by directing "the physician or an agent" to notify
both parents of an unemancipated minor in writing that their daughter
has sought to have an abortion.  Minn. Stat. Ann. Section 144.343(2)
(West 1989).  /3/ Notification can be delivered personally to the
parents at their residence, or by certified mail if return receipt is
requested and delivery is restricted to the parents.  Id. Section
144.343(2)(a) and (b).  Performance of an abortion must be delayed "at
least 48 hours" after written notification has been delivered.  Ibid.
Notice is not required in cases in which (1) the attending physician
certifies that an abortion is necessary to prevent the death of the
minor and there is insufficient time to notify her parents;  (2) the
abortion is authorized in writing by the person(s) entitled to notice;
 or (3) the minor declares that she is a victim of sexual or physical
abuse, or neglect Id. Section 144.343(4).  The Act makes it a
misdemeanor and a basis for a civil action for any person to perform
an abortion without complying with its requirements.  Id. Section
144.343(5).

   Subdivision 6 of the Act contains an alternative procedure to
become effective if the above requirements are held invalid or are
restrained by a court.  Under the alternative procedure, a minor can
obtain an abortion without notifying her parents if she can prove in
court that she is sufficiently mature to make that decision for
herself or that performing an abortion without notifying her parents
is in her best interests.  Minn. Stat. Ann. Section 144.343(6)(c)(i)
(West 1989).  The Act specifies procedures to be followed in making
those determinations.  Id. Section 144.343(6)(c)(ii)-(iv).

   2. On July 30, 1981, just two days before the Act was to go into
effect, petitioners filed this class action against the State in
federal district court seeking a declaration that the Act was
unconstitutional and an injunction against its enforcement.  The
district court issued a temporary restraining order and later a
preliminary injunction enjoining the operation of the parental
notification requirement contained in Subdivision 2, but not the
alternative procedure in Subdivision 6.  88-1125 Pet. App. 14a.
Thereafter, the court granted the State partial summary judgment,
ruling that the alternative procedure specified in Subdivision 6 was
facially constitutional.  The court reserved for trial the question
whether Subdivision 6 was being applied in an unconstitutional manner.
 Id. at 146a-157a.

   After a bench trial, the district court held that the statute was
unconstitutional in its entirety.  88-1125 Pet. App. 10a-52a.  Relying
on Bellotti v. Baird (Bellotti II), 443 U.S. 622, 647 (1979)
(plurality opinion), the court ruled that the parental notification
requirement in Subdivision 2 "unduly burden(ed)" a minor's right to an
abortion.  88-1125 Pet. App. 38a.  Relying on Bellotti II, City of
Akron v. Akron Center for Reproductive Health, 462 U.S. 416 (1983),
and Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476 (1983), the
court determined that the alternative procedure set forth in
Subdivision 6, standing alone, would be constitutional, although it
also found that this procedure did not serve the State's interests in
fostering intra-family communication and protecting pregnant minors.
88-1125 Pet. App. 40a-45a.  The court then separately considered the
constiutionality of the requirement in Subdivision 3 that both parents
be notified.  The court held that requirement invalid, even though
Subdivision 6 permitted a minor to avoid notifying both parents by
obtaining court authorization for an abortion.  Id. at 45a-47a.  The
court also separately examined the 48-hour waiting period required by
Subdivision 2.  The court held that "a 48 hour waiting period is
excessively long" because it would compound the delays associated with
making travel arrangements in rural areas, and because a shorter
waiting period would serve the State's interests "as completely." Id.
at 49a.  After ruling that the two-parent notification requirement
could not be severed from the remainder of the Act, the court held the
Act invalid in its entirety and permanently enjoined the State from
enforcing it.  Id. at 51a-52a.

   3. Both sides appealed.  The en banc court of appeals, by a divided
vote, affirmed in part and reversed in part.  88-1125 Pet. App.
73a-109a.  /4/ Relying on the plurality opinion in Bellotti II and on
the combination of concurring and dissenting opinions in H.L. v.
Matheson, 450 U.S. 398 (1981);  see id. at 420 (Powell, J.,
concurring);  id. at 434-454 (Marshall, J., dissenting), the court
held unconstitutional the parental notification requirement of
Subdivision 2.  88-1125 Pet. App. 81a.  By contrast, the court upheld
the alternative procedure set forth in Subdivision 6, ruling that it
complied with Bellotti II, Akron, and Ashcroft.  Id. at 81a-96a.  The
court also upheld the two-parent notification and 48-hour waiting
period requirements, ruling that they serve legitimate state interests
and do not unduly burden a minor's right to an abortion.  Id. at
96a-97a.  /5/

                          SUMMARY OF ARGUMENT

   1. This Court's decisions in the highly contested abortion area
have suggested a variety of different formulations for the applicable
standard of review.  Most of those decisions, starting with Roe v.
Wade itself, have proceeded on the assumption that the regulation of
abortion implicates a fundamental right, and thus should be subject to
a heightened standard of judicial review, such as the "compelling
state interest" standard applied by Roe itself.  See 410 U.S. at 155.
In Webster v. Reproductive Health Servs., however, the plurality
concluded that Roe v. Wade should be "modif(ied) and narrow(ed)," 109
S. Ct. at 3058;  consistent with that judgment, the plurality would
have upheld the viability testing required by the Missouri law
challenged in that case because it was "reasonably designed" to serve
legitimate state interests.  Ibid.  We believe that the Court should
adopt the standard articulated by the Webster plurality as the
applicable standard of review for all abortion regulations.

   This Court's recent decisions demonstrate that a liberty interest
is "fundamental" and therefore deserving of a heightened standard of
review only if our Nation's history and traditions have protected that
interest from state restrictions.  But the Nation's history and
traditions do not demonstrate that there is a fundamental right to an
abortion;  to the contrary, state laws condemning or limiting abortion
were common when the Fourteenth Amendment was ratified.  In
particular, our Nation's history and traditions do not prove that an
unemancipated minor has any such right independent of her parents'
consent.  At common law, a physician could not operate on a minor
patient without the parents' consent.  And before Roe and Danforth,
only three of the 17 States that permitted some form of abortion
exempted that procedure from the operation of the prevalent statutory
or common-law rules requiring parental consent.  Finally, even if an
unemancipated minor were deemed (under Roe and Danforth) to have a
right to an abortion regardless of her parents' consent, any such
right does not imply a fundamental right to an abortion without her
parents' knowledge.  Thus, Minnesota's parental notification statute
cannot be said to implicate a fundamental right.  The appropriate
standard of review for determining the constitutionality of that
statute, therefore, is the standard endorsed by the plurality in
Webster.

   2. There can be little doubt that the Minnesota parental
notification law is reasonably designed to serve a legitimate state
interest.  Parental notification requirements advance the legitimate
state interests of informing and involving parents in decisions
affecting their minor child's welfare.  Given the grave medical,
emotional, and psychological consequences of the abortion decision,
the State can reasonably provide an opportunity for parental
consultation in recognition of parents' traditional concern and
responsibility for their child's upbringing.  Such consultation
benefits even mature minors, and those benefits are more secure when
both parents are notified, rather than just one.  In the majority of
cases, both parents will be responsible for their daughter's welfare,
either because they are married and live together or because they hold
custody jointly.  Even a non-custodial parent may care very deeply
about his or her daughter.  Finally, because it is administratively
infeasible to restrict notification to "functional" but not
"dysfunctional" families, the State may require notification of both
parents in all families to achieve the benefits demonstrable in most.

   Parental notification requirements are not subject to a judicial
cost/benefit analysis.  The approach petitioners urge camouflages as
impartial truths "expert" opinions that were unpersuasive in the
legislative process.  Due process does not authorize a court to review
de novo the wisdom of a state law in the guise of assessing its
factual support, its effectiveness, or its overall merit.  Due process
only permits a court to ask whether a law deprives a party of a
historically protected liberty without sufficient justification.
Because this law does not do so, the district court's "factual"
findings are immaterial.

                               ARGUMENT

   THE MINNESOTA PARENTAL NOTIFICATION REQUIREMENT DOES NOT VIOLATE
THE DUE PROCESS CLAUSE

   I. ABORTION REGULATIONS, INCLUDING PARENTAL NOTIFICATION
REQUIREMENTS, SHOULD BE UPHELD IF THEY ARE REASONABLY DESIGNED TO
SERVE LEGITIMATE STATE INTERESTS

   Because none of the opinions in Webster commanded a majority of the
Court, there is now considerable uncertainty about the standard of
review to be applied when abortion legislation is challenged under the
Due Process Clause.  That uncertainty is compounded in the present
case by the divergent formulations of the applicable standard offered
by the Court in previous cases concerning abortion and parental
rights.  In its initial decision on this issue, Planned Parenthood v.
Danforth, 428 U.S. 52, 74 (1976), the Court held that the fundamental
right recognized in Roe extends to unemancipated minors, and framed
the inquiry in terms of whether a requirement of parental consent
would permit a "veto" of that right.  Three years later, in Bellotti
II, a plurality of four Justices reaffirmed Danforth, but appeared to
formulate the question before the Court in terms of whether a
provision for parental notice and consent would "unduly burden the
right to seek an abortion." 443 U.S. at 640.  And in H.L. v. Matheson,
a different plurality sent conflicting signals about the proper
standard.  On the one hand, the plurality, using language reminiscent
of Roe v. Wade, see 410 U.S. at 155, stated that a parental
notification statute would be upheld if "narrowly drawn" to serve
"important state interests." 450 U.S. at 413.  But the Matheson
plurality also quoted language from Harris v. McRae, 448 U.S. 297, 325
(1980), to the effect that such a measure would be upheld if
"rationally related to the legitimate governmental objective of
protecting potential life" -- suggesting a more relaxed standard of
review.  450 U.S. at 413.

   The parties to this case devote relatively little attention to the
standard of review, but they, too, disagree about what it should be.
Petitioners appear to endorse a variation on one of the standards
suggested by the Matheson plurality, stating that parental
notification laws "must 'plainly serve() important state interests
(and be) narrowly drawn to protect only those interests.'" Pet. Br.
28-29 (quoting Matheson, 450 U.S. at 413).  Petitioners do not,
however, consider what impact Webster may have had on this standard.
The State cross-petitioners briefly discuss the significance of
Webster, and attempt to synthesize a multi-tiered standard of review
based on the various opinions in that case.  They conclude that
although an "outright prohibition" of abortion is subject to strict
scrutiny and may be sustained only upon the showing of a "compelling
state interest," when a state statute "imposes some burden short of
virtual prohibition or severe limitation it should be upheld if it
rationally furthers legitimate public purposes." Cross-Pet. Br. 24.
Thus, the cross-petitioners appear to endorse a standard of review
similar to that applied by the Webster plurality, at least with
respect to the issues presented by this case.

   The question of the correct standard of review in abortion cases is
manifestly in need of clarification by this Court if lower courts,
litigants, and legislative bodies are to have adequate guidance in
this difficult and contentious area.  For the reasons set forth below,
we believe that the standard articulated by the Webster plurality --
which asks whether an abortion regulation is reasonably designed to
serve a legitimate state interest -- states the correct standard and
should be applied both to questions involving parental authority and
to abortion regulations generally.

   A. Abortion Regulations Are Subject To Heightened Review Under The
Due Process Clause Only If They Implicate A Fundamental Right

   The Due Process Clause, by its terms, is primarily concerned with
ensuring that interests in life, liberty, and property are afforded
the "process" to which they are due.  In addition, however, this
Court's decisions establish that the Clause provides a measure of
substantive protection to certain liberty interests.  Turner v.
Safley, 482 U.S. 78, 94-99 (1987);  Moore v. City of East Cleveland,
431 U.S. 494 (1977);  Pierce v. Society of Sisters, 268 U.S. 510
(1925).  The Court has been justifiably cautious in identifying such
rights, recognizing that once it ventures beyond the "core textual
meaning" of liberty as freedom from bodily restraints, the imputation
of substantive content to the concept of liberty is necessarily a
"'treacherous'" undertaking.  Michael H. v. Gerald D., 109 S. Ct.
2333, 2341 (1989) (plurality opinion).  As stated in Bowers v.
Hardwick, 478 U.S. 186, 194 (1986), the Court "is most vulnerable and
comes nearest to illegitimacy when it deals with judge-made
constitutional law having little or no cognizable roots in the
language or design of the Constitution."

   The general standard of review in assessing substantive due process
claims is highly deferential to legislative judgments.  As a rule, a
state (or federal) statute that trenches upon a liberty interest will
be upheld so long as it is rationally related to a legitimate state
interest.  See, e.g., Califano v. Aznavorian, 439 U.S. 170, 176-178
(1978);  Ferguson v. Skrupa, 372 U.S. 726 (1963);  Williamson v. Lee
Optical Co., 348 U.S. 483, 488 (1955).  In certain narrow areas,
however, the Court has gone further, and has held that particular
liberty interests are subject to a more exacting standard of review.
The critical determination in finding that a liberty interest will be
afforded this heightened protection is the conclusion that it
constitutes a "fundamental" right.  Michael H., 109 S. Ct. at 2341
(plurality opinion).  Thus, the applicable standard of review in
substantive due process cases is primarily a function of the method
employed by the Court for identifying those rights that are deemed to
be constitutionally fundamental.

   In recent decisions, the Court has consistently stated that a right
will be regarded as fundamental if it is "implicit in the concept of
ordered liberty," Palko v. Connecticut, 302 U.S. 319, 325 (1937), or
"deeply rooted in this Nation's history and tradition," Moore, 431
U.S. at 503 (plurality opinion).  See Bowers, 478 U.S. at 192-194.
Under either rubric, the applicable methodology is historical.
Michael H., 109 S. Ct. at 2342-2343 (plurality opinion);  Moore, 431
U.S. at 504 n.12 (plurality opinion);  Bowers, 478 U.S. at 192-194;
Palko, 302 U.S. at 325.  By limiting the scope of "fundamental rights"
to those liberties historically regarded as essential to our Nation,
the Court has sought, in the words of the Michael H. plurality, both
to "prevent future generations from lightly casting aside important
traditional values," and yet also to assure that the Due Process
Clause does not become a judicial license "to invent new ones." Id. at
2341 n.2.  See Moore, 431 U.S. at 504 n.12 (plurality opinion).

   B. No Fundamental Right Is Implicated By The Minnesota Notification
Requirement

   Petitioners' claim that Minnesota's parental notification statute
should be reviewed under heightened scrutiny rests on the assumption
that the state law implicates a fundamental right.  At bottom, of
course, the fundamental right on which they rely is the right to
abortion identified in Roe v. Wade.  For the reasons discussed below
and set forth more fully in our brief in Webster v. Reproductive
Health Servs., we continue to believe that Roe was wrongly decided and
should be overruled.  But regardless of Roe's continuing vitality,
petitioners' argument in support of heightened scrutiny necessarily
rests on two further premises:  that the parents of an unemancipated
minor may not exercise a "veto" over her decision to have an abortion
-- the holding of Danforth -- and that the parents of an unemancipated
minor are not even entitled to notice that she has sought an abortion.
 In our view, none of the three assumptions on which petitioners' case
for heightened scrutiny is built is tenable:  there is, in view of the
Nation's history and traditions, no fundamental right to abortion;
there is no fundamental right of a minor to an abortion without
parental consent;  and there is no fundamental right of a minor to an
abortion without parental knowledge.  If any of these three claims of
fundamental right is rejected by the Court, and each should be, then
the statute at issue must be upheld as long as it reasonably advances
a legitimate state interest.

   1. This Nation's History And Traditions Do Not Establish A
Fundamental Right To An Abortion

   If abortion is not a fundamental right, there is no appropriate
basis for subjecting the Minnesota statute in this case to heightened
scrutiny.  As we explained more fully in our brief in Webster, there
is simply no credible foundation for the proposition that abortion is
a fundamental right.  This conclusion follows whether the inquiry is
framed broadly, in terms of a right to "privacy" or a right to
"reproductive choice," or narrowly, in terms of a right to abortion.
Compare Michael H., 109 S. Ct. at 2344-2345 n.6 (opinion of Scalia,
J.), with id. at 2346-2347 (O'Connor, J., concurring in part).

   Roe discovered a fundamental right to abortion by generalizing
broadly from previous decisions, which it characterized as recognizing
a "guarantee of personal privacy." 410 U.S. at 152.  Those decisions,
the Court said, "make it clear that the right has some extension to
activities relating to marriage, Loving v. Virginia, 388 U.S. 1, 12
(1967);  procreation, Skinner v. Oklahoma, 316 U.S. 535, 541-542
(1942);  contraception, Eisenstadt v. Baird, 405 U.S., at 453-454;
id., at 460, 463-465 (White, J., concurring in result);  family
relationships, Prince v. Massachusetts, 321 U.S. 158, 166 (1944);  and
child rearing and education, Pierce v. Society of Sisters, 268 U.S.
510, 535 (1925);  Meyer v. Nebraska, (262 U.S. 390 (1923))." 410 U.S.
at 152-153.  The Court then concluded that "(t)his right of privacy *
* * is broad enough to encompass a woman's decision whether or not to
terminate her pregnancy." Id. at 153.

   If we look more specifically at the historical record regarding
abortion, however, it cannot seriously be maintained that abortion is
a right so deeply rooted in our history and traditions that it can be
ranked as fundamental.  To the contrary, state laws condemning or
limiting abortion were common when the Fourteenth Amendment was
ratified.  In 1868, at least 36 state or territorial laws limited
abortion, and 21 of those laws were in effect in 1973.  Roe, 410 U.S.
at 174-176 & n.1 (Rehnquist, J., dissenting).  /6/ Plainly, our
history does not "exclude * * * a societal tradition of enacting laws
denying that interest." Michael H., 109 S. Ct. at 2341 n.2 (plurality
opinion).  In fact, the historical record in favor of the liberty in
question here is no stronger than it was in Michael H. or Bowers,
where the Court found no warrant in the common-law tradition for
identifying a fundamental right to visitation privileges for
adulterous fathers, or a fundamental right to engage in homosexual
sodomy.

   Moreover, even if the decisions relied upon by Roe may be said to
establish a "right of privacy" -- or a right "whether to accomplish or
prevent conception," Carey v. Population Servs. Int'l, 431 U.S. 678,
685 (1977) -- it does not follow that this right extends to the
decision to have an abortion.  A decision not to conceive does not
entail the deliberate destruction of fetal life;  a decision to abort
manifestly does.  Harris v. McRae, 448 U.S. at 325;  Carey, 431 U.S.
at 690.  The State's interest in protecting fetal life throughout
pregnancy thus provides an entirely adequate basis for limiting any
right of privacy or procreative choice to the decision not to
conceive.  Here again, the interest in protecting fetal life is at
least as compelling as the interest in promoting family autonomy (at
issue in Michael H.) or the interest in condemning homosexual conduct
as immoral (at issue in Bowers) -- both of which were found by the
Court to be sufficient to defeat any claim that a generalized right to
privacy should be extended to those cases.  See Thornburgh v. American
College of Obstetricians & Gynecologists, 476 U.S. 747, 792-793 & n.2
(1986) (White, J., dissenting);  id. at 828 (O'Connor, J.,
dissenting).  In short, whether viewed in terms of a general right of
privacy or reproductive choice, or more narrowly in terms of abortion
itself, it cannot reasonably be said that the right to abortion is
fundamental.  /7/

   2. An Unemancipated Minor Does Not Have A Fundamental Right To An
Abortion Without Her Parents' Consent

   Even were the Court not to revisit the underlying question whether
there is a fundamental right to an abortion, it may wish to reconsider
the next step in petitioners' argument for heightened scrutiny.  This
Court held in Danforth that an unemancipated minor has a fundamental
right to abortion that may not be qualified by "an absolute, and
possibly arbitrary, veto" by her parents.  428 U.S. at 74.  If that
conclusion was in error -- that is, if the State can constitutionally
require that parents must give their consent to a minor's abortion --
then there can be no claim that an unemancipated minor has a
fundamental right to avoid notice to her parents that she has sought
an abortion.  Notice is indisputably a less intrusive form of parental
involvement than consent, which necessarily entails notice.

   1. Our history and traditions provide no support for the notion
that a minor has a fundamental right to an abortion without her
parents' consent.  That conclusion follows, regardless of the level of
specificity at which this inquiry is made.

   At the most general level, there can be no doubt that our legal
traditions recognize the right of parents to control their childrens'
upbringing.  Anglo-American law has "historically * * * recognized
that natural bonds of affection lead parents to act in the best
interests of their children." Parham v. J.R., 442 U.S. 584, 602
(1979);  id. at 621 (Stewart, J., concurring in the judgment)
(collecting authorities).  See Hafen, Children's Liberation and the
New Egalitarianism:  Some Reservations About Abandoning Youth to Their
"Rights", 1976 B.Y.U. L. Rev. 605, 615-619.  Accordingly, common law
courts were extremely reluctant to interfere in the parent-child
relationship as long as the parents did not treat their children
cruelly or immorally.  See, e.g., In re Agar-Ellis, (1883) 24 Ch. D.
317 (C.A.);  Recent Development, Minors' Rights to Medical Care, 14 J.
Fam. L. 581, 581-583 (1975).  This strong tradition of parental
control continues today.  Every State limits the participation of
minors in a substantial number of activities in which adults may
engage, such as marriage, voting, or driving a car.  Such restrictions
"reflect() the simple truth derived from our communal experience, that
juveniles as a class have not the level of maturation and
responsibility that we presume in adults and consider desirable for
full participation in the rights and duties of modern life." Stanford
v. Kentucky, 109 S. Ct. 2969, 2988 (1989) (Brennan, J., dissenting).

   This Court's decisions, rendered in a variety of constitutional
contexts, reflect the same understanding.  The Court has long
recognized that "the parents' claim to authority in their own
household to direct the rearing of their children is basic in the
structure of our society." Ginsberg v. New York, 390 U.S. 629, 639
(1968).  "The child is not the mere creature of the State;  those who
nurture him and direct his destiny have the right, coupled with the
high duty, to recognize and prepare him for additional obligations."
Pierce, 268 U.S. at 535.  Consequently, this Court has repeatedly
acknowledged that "a natural parent's 'desire for and right to "the
companionship, care, custody, and management of his or her children"'"
is itself a significant liberty interest.  Santosky v. Kramer, 455
U.S. 745, 758-759 (1982) (citations omitted);  see also, e.g., Michael
H., 109 S. Ct. at 2342 (plurality opinion);  Matheson, 450 U.S. at
410;  Wisconsin v. Yoder, 406 U.S. 205, 231-233 (1972);  Prince v.
Massachusetts, 321 U.S. 158, 166 (1944);  Meyer v. Nebraska, 262 U.S.
390, 399-401 (1923).  Indeed, if there is a fundamental right
implicated by this case, this Court's decisions suggest it is the
right of parents to direct the upbringing of their children, not the
right of children to evade parental control.

   The conclusion drawn from the general historical understanding of
parent-child relations is reinforced by more specific consideration of
the traditions regarding the provision of medical treatment to
children.  The rule at common law was that a physician could not treat
a minor without parental consent.  W. Keeton, Prosser and Keeton on
The Law of Torts ch. 4, Section 18, at 115 (5th ed. 1984).  Over time,
common law courts developed limited exceptions to this rule for
emergencies, emancipated minors, relatively safe operations for mature
minors, and necessary lifesaving treatment.  Id. at 114-118;  L.
Nolan, The Legal Status of Parent and Child 1986, at 161-172 (1987).
But all jurisdictions today still follow the common-law rule unless it
has been modified by case law or statute.  L. Nolan, supra, at 161.
See Stanford, 109 S. Ct. at 2988 (Brennan, J., dissenting) (37 States
by statute fix 18 as the age of consent for medical treatment);  Bowen
v. American Hosp. Ass'n, 476 U.S. 610, 627-628 & n.13 (1986)
(plurality opinion) (summarizing current law).

   Even when we consider history and tradition at the most specific
level -- and ask whether a minor was generally recognized to have a
right to an abortion without parental consent -- the answer is the
same:  there was no such generally recognized right.  Specifically, in
those States that had legalized abortion to some extent prior to this
Court's decision in Roe v. Wade, the general rule was that parental
consent was required before the operation could be performed on an
unemancipated minor.  Of the 17 States that permitted some form of
abortion in 1971, eight had laws expressly requiring minors to obtain
parental consent, and six continued to apply the common-law rule of
parental consent.  Pilpel & Zuckerman, Abortion and the Rights of
Minors, 23 Case W. Res. L. Rev. 779, 783-785 (1972).  Only three state
courts had construed state laws allowing minors to consent to
pregnancy-related medical care to permit a minor to obtain an abortion
without parental consent.  Ballard v. Anderson, 4 Cal. 3d 873, 484
P.2d 1345, 95 Cal. Rptr. 1 (1971);  In re Diane, 318 A.2d 629 (Del.
Ch. 1974).  See In re Smith, 16 Md. App. 209, 225, 295 A.2d 238, 246
(1972) (a minor may refuse to have an abortion over parent's
objection).  See also Note, The Minor's Right to Abortion and the
Requirement of Parental Consent, 60 Va. L. Rev. 305, 305 (1974).

   Thus, whether considered at the most general level of parent-child
relations, or at the most specific level of a minor's right to have an
abortion without her parents' consent, the historical record speaks
with a single, powerful voice.  Against this background, it simply
cannot be said that a minor's right to have an abortion without her
parents' consent is so "rooted in the traditions and conscience of our
people" as to be deemed fundamental.  Michael H., 109 S. Ct. at 2341
(plurality opinion).  To the contrary, the conscience of the American
people, as embodied in law, Snyder v. Massachusetts, 291 U.S. 97, 122
(1934) (Cardozo, J.), stands unmistakably for the proposition that
unemancipated minor children are not free to make such profoundly
important decisions without the involvement of their parents.

   2. Nor does the reasoning of Danforth, as amplified by Bellotti II,
support the notion that a minor has a fundamental right to an abortion
without obtaining her parents' consent.  Starting with the premise
that the State cannot (subject to certain qualifications) veto an
adult's decision to have an abortion -- the holding of Roe -- Danforth
held that a State cannot allow parents to veto their unemancipated
daughter's decision to have an abortion.  428 U.S. at 74.  But that
conclusion does not follow from the premise.  While a State cannot
ordinarily veto an adult's decision to obtain (or forgo) medical care,
a State can give a minor's parents the right to select medical care
for their child.  Thus, even if the decision whether to have an
abortion is ultimately only a medical decision (as Roe treated it, 410
U.S. at 156-162), the State should be free to leave the decision to a
minor's parents, just as the State leaves all other medical decisions
to them.  /8/

   Danforth also reasoned that a parental consent requirement was
unlikely to promote family unity and parental authority when a minor's
pregnancy "already has fractured the family structure." 428 U.S. at
75.  The Bellotti II plurality elaborated on this point, stating that
the question of whether a minor should have an abortion is fraught
with "grave and indelible" consequences, and that the parent's
decision may be "arbitrary." 443 U.S. at 642-643.

   The issue, however, is not whether a minor's unwanted pregnancy is
a stressful event having lasting consequences both for her and her
family;  it surely is.  And the question is not whether certain
parents will exercise poor judgment in deciding what is in the best
interests of their daughter;  they surely will.  Rather, the issue is
whether a State may reasonably conclude that a minor's parents are, as
a general matter, better suited to make these critical decisions than
a minor and her physician, or a minor and her physician in conjunction
with a judge.  There is no legal presumption that parents will not act
in the best interests of their child;  to the contrary, the
presumption lies in precisely the other direction.  Parham, 442 U.S.
at 602.  And unless the minor's life is at risk, her pregnancy is the
result of incest, or she is the victim of parental abuse, there is no
objective standard by which to determine whether the parents' decision
is "arbitrary." The pregnant minor is confronted with choices that
implicate the most basic values -- not just about the minor's future
options, but also about the morality of abortion itself.  It strains
credulity to think that these matters are more properly resolved by
the minor and persons who, in all probability, are strangers she will
never meet again, than by the minor in consultation with those who
have a lifetime commitment to her care, nurturing, and upbringing.

   3. An Unemancipated Minor Does Not Have A Fundamental Right To An
Abortion Without Her Parents' Knowledge

   Pretermitting the two foregoing questions -- whether there is a
fundamental right to an abortion and whether there is a fundamental
right on the part of minors to an abortion without parental consent --
petitioners still must show that the fundamental right recognized in
Roe and Danforth extends to a provision requiring only that parents be
given notice of their minor daughter's request for an abortion.
Parental notification differs in obvious respects from parental
consent.  Notification laws like Minnesota's do not empower parents to
"veto" their child's decision;  at most they postpone that decision
for a brief period in order to allow parents to discuss that decision
with their child.  /9/ In fact, a parental notification requirement
does no more than preserve for parents the opportunity they have
traditionally enjoyed to discuss with their daughter significant
decisions that arise during her minority, and to be aware of important
actions taken by third parties toward her.

   There is utterly no support for the proposition that a minor has a
fundamental right to keep her parents in the dark about her welfare.
The historical materials surveyed above concerning the right of
parents to control the upbringing of their children and their right to
select the medical procedures performed on their children -- including
abortion -- conclusively refute the notion that a child has a
fundamental right to conceal important facts about her physical
condition and well-being from her parents.  /10/ In the final
analysis, petitioners' objection to notifying parents -- i.e., that
disclosure of their minor daughter's pregnancy and desire for an
abortion will disrupt everyone's life without any attendant benefit --
supports concealing the pregnancy from the parents even after their
daughter has had an abortion.  But there is no support in this Court's
cases or common sense for the remarkable principle that a minor has a
fundamental right to keep her parents in ignorance about her welfare.
What petitioners' argument ultimately reveals is how far afield their
claim is from the history and traditions of this Nation, and from what
due process can be said legitimately to protect.

   C. The "Undue Burden" Analysis Does Not Constitute A Substitute For
A Standard of Review

   In Bellotti II, the plurality analyzed the parental consent
provisions at issue in that case not in terms of a conventional
standard of review, but rather in terms of whether the statute would
"unduly burden the right to seek an abortion." 443 U.S. at 640.
Similarly, Justice O'Connor, in her dissenting opinions in City of
Akron v. Akron Center for Reproductive Health, 462 U.S. at 452-475,
and Thornburgh v. American College of Obstetricians & Gynecologists,
476 U.S. at 827-833, examined a variety of abortion restrictions under
an "undue burden" analysis.  Indeed, the United States, in an amicus
brief filed in Akron, also urged the Court to adopt an "undue burden"
approach.

   Although we believe that there is a limited role for an "undue
burden" analysis in constitutional adjudication, we do not believe,
upon full reflection, that the "undue burden" inquiry can legitimately
substitute for a standard of review.  The basic problem is revealed
within the very formulation of the Bellotti II plurality:  the
question is whether a statute will "unduly burden the right to seek an
abortion." 443 U.S. at 640 (emphasis added).  In other words, undue
burden analysis presupposes that there is a fundamental right
potentially implicated by the regulation at issue;  the analysis
cannot assist in distinguishing between fundamental rights and other
liberty interests.  Thus, unless we are to embrace the assumption that
any regulation touching upon the question of abortion necessarily
implicates a fundamental right, the undue burden analysis begs the
question at issue:  whether there is a fundamental right at stake that
requires application of heightened scrutiny.

   The "undue burden" analysis suffers from an additional infirmity
when coupled with a judicially created, highly abstract, or
generalized right -- such as the "right to privacy" or the "right to
abortion." In such a context, asking whether a particular measure
unduly burdens the right provides no meaningful guidelines for
assessing the weight of the competing interests, or for determining
how much deference to give to legislative judgments.  The only measure
of constitutionality would be the courts' own subjective assessment of
what is "due" or "undue" in any particular context.  In these
circumstances, the undue burden analysis would offer "no guide but the
Court's own discretion," Baldwin v. Missouri, 281 U.S. 586, 595 (1930)
(Holmes, J., dissenting);  see Webster, 109 S. Ct. 3066 n.* (Scalia,
J., concurring in part and concurring in the judgment), and would
serve only to mask judgments made on the basis of assumptions that
would remain unarticulated.  In our view, great caution should be
exercised in resolving important constitutional controversies under
the "undue burden" mantle.  /11/

   II. PARENTAL NOTIFICATION REQUIREMENTS ARE REASONABLY DESIGNED TO
SERVE LEGITIMATE STATE INTERESTS

   Because Minnesota's parental notification statute does not
implicate any fundamental right, it should be assessed under the
standard of review formulated by the Webster plurality.  As previously
noted, that standard asks whether a particular regulation is
"reasonably designed" to serve a legitimate state interest.  109 S.
Ct. at 3058.  There can be little doubt that the Minnesota statute
readily passes muster under this standard.

   A. Parental Notification Requirements Advance The Legitimate State
Interests Of Informing And Involving Parents In Decisions Affecting
The Welfare Of Their Minor Children

   The State unquestionably has a legitimate interest in informing and
involving parents in decisions affecting the welfare of their minor
children.  See Matheson, supra.  This interest clearly extends to the
decision whether to have an abortion.  "The medical, emotional, and
psychological consequences of an abortion are serious and can be
lasting;  this is particularly so when the patient is immature."
Matheson, 450 U.S. at 411.  And a parental notification requirement,
in association with a reasonable waiting period, furthers these
legitimate interests.  Such laws postpone a minor's decision for a
brief period to allow her parents to discuss with her what is likely
to be the most important and irrevocable decision of her minority
life.  A State thus has a significant interest in promulgating a
parental notice requirement in order to ensure that a minor will not
act improvidently, and to preserve her parents' traditional
responsibility for her nurturing and upbringing.  Matheson, 450 U.S.
at 409-413;  id. at 421-425 (Stevens, J., concurring in the judgment);
 Zbaraz v. Hartigan, 763 F.2d 1532, 1548-1557 (7th Cir. 1985) (Coffey,
J., dissenting), aff'd by an equally divided Court, 484 U.S. 171
(1987).

   The foregoing considerations apply whether or not the minor is
determined to be "mature" (i.e., able to give informed consent).  The
abortion decision "is an important, and often a stressful one, and it
is desirable and imperative that it be made with full knowledge of its
nature and consequences." Danforth, 428 U.S. at 67.  A minor's parents
can counsel their daughter about the moral and psychological
consequences of her decision, and thereby assist her to make an
informed judgment.  Parents can also help their daughter select a
competent physician, and can supply the physician with necessary
medical and psychological information, some of which their child may
not know.  In addition, parents can provide emotional support both
before and after the procedure, and ensure that their child receives
any necessary post-operative care.  Matheson, 450 U.S. at 411;
Zbaraz, 763 F.2d at 1549-1551 (Coffey, J., dissenting).  For these
reasons, a State may reasonably conclude that parents' awareness of
their daughter's pregnancy and consultation about the options
available to her will improve the quality of her decision, even if she
is mature.  And if she is not, we believe that few would genuinely
argue that her parents should not be informed about, and involved in,
the decision whether she is to have an abortion.  It is well to
remember that thousands of minors below the age of fifteen have
abortions every year;  they should not have to face this profoundly
important decision alone.  /12/

   A State may also reasonably conclude that a hearing before a judge
is not an acceptable substitute for notification of the minor's
parents.  First, the respective roles of judge and parents are
manifestly different.  The judge is charged with determining either
that the pregnant minor is mature or that an abortion is nonetheless
in her best interests.  In contrast, the parents' responsibility is
the overall welfare of their daughter, which encompasses advice on a
wide range of considerations bearing on her decision.  Second, the
background and interest of the judge and the parents are by no means
identical.  The judge has probably never seen the minor before, will
likely never see her again, and his duty lies in discharging his
statutory obligations.  In contrast, a minor's parents, in the typical
situation, will have known and cared for their daughter from her
birth, and they will be deeply, lovingly concerned about her
well-being.  Third, the nature of the judicial proceeding prevents
judges from acting as surrogate parents.  Hearings are secret (to
protect anonymity), abbreviated (to minimize delay), and ex parte.
Even under the best of circumstances and with the best of intentions,
a judge would find it enormously difficult to do anything more than
make an educated guess about whether a minor is mature or whether an
abortion is in her best interests.  /13/

   It is also reasonable for Minnesota to insist that both parents be
notified where possible.  If both parents are married and live
together, a two-parent notification rule is no more burdensome than a
one-parent notification rule.  If the parents are separated or
divorced but hold custody jointly, both parents will be responsible
for their daughter's welfare and will be interested in her decision.
Even if only one parent has custody, the noncustodial parent may well
have strong emotional bonds with his or her daughter (and vice versa),
and notifying the noncustodial parent may help preserve those ties.
Moreover, notifying both parents may help to ensure that the attending
physician will receive important medical information.  On the other
hand, it would be administratively infeasible to notify both parents
in "functional" families but not in "dysfunctional" families, at least
without establishing an expensive and cumbersome (and highly
intrusive) threshold judicial proceeding to distinguish between the
two.  In lieu of that unwieldy process, Minnesota was entitled to
require notification of both parents in all families where both
parents can be located "through reasonably diligent effort." Minn.
Stat. Ann. Section 144.343(3) (West 1989).

   B. Parental Notification Requirements Are Not Subject To Judicial
Cost/Benefit Analysis

   The district court "f(ou)nd() as a matter of fact that Minn. Stat.
Section 144.343(2)-(7) fails to serve the State's asserted interest in
fostering intra-family communication and protecting pregnant minors."
88-1125 Pet. App. 42a.  That factual finding, if that is what it is,
/14/ does not contradict the conclusion that parental notification is
reasonably designed to advance legitimate state interests.  Nor does
the district court's "finding" demonstrate that Minnesota's parental
notification law is unconstitutional as applied to petitioners.  To
the contrary, the facts establish that parental notification is valid
in the case of the vast majority of unemancipated Minnesota minors.
/15/

   The district court's unprecedented inquiry represents, according to
one of petitioners' counsel, a new mode of fact-based
"across-the-board constitutional challenge" dubbed an "operational
challenge." Pine, Speculation and Reality:  The Role of Facts in
Judicial Protection of Fundamental Rights, 136 U. Pa. L. Rev. 655, 703
(1988).  Under this provocative approach, courts are entitled to weigh
for themselves the costs and benefits of legislation.  Properly
understood, this mode of attack has nothing to do with abortion, or
even adjudication of claims involving fundamental constitutional
rights.  Because all legislation must (if challenged) pass muster
under the Due Process Clause, this methodology puts every legislative
enactment on trial at least to determine whether it is rational.  That
novel approach, employed by the district court and urged by
petitioners, is misguided both in conception and execution.

   To begin with, that approach fails to recognize that legislation is
a product of a complex collective judgment by a representative body
about the desirability or morality of a specific goal, the social
utility of different ways to achieve it, and the trade-offs necessary
to enact it.  There is no scientifically correct answer to any of
these questions, and the Constitution does not demand the impossible
-- that a legislative judgment be error-proof.  To the contrary, the
Constitution assumes, absent some reason to presume antipathy, that
improvident decisions will be rectified by the democratic process.
Cf. Vance v. Bradley, 440 U.S. 93, 97 (1979).

   Indeed, petitioners' approach rests on a pervasive confusion of
"facts" and legitimate legislative value judgments.  The "factual"
inquiry pursued by the district court -- whether a parental
notification requirement, on balance, benefits or harms minors and
their parents -- touches matters so subjective, value-laden, and
contestable that it is almost meaningless to inquire as to their truth
or falsity.  Indeed, it transforms the judicial process into that of a
super-legislature acting outside the constraints of the democratic
process.  /16/ It is ultimately an assault on the right of the people,
subject to constitutional constraints, to govern themselves.  When a
law is based on normative, not empirical, grounds, the adducing of
"expert" opinions merely camouflages personal value judgments as
impartial truths.  Cf. L. Hand, The Bill of Rights 38 (1958).  For
that reason, the Court has consistently held that constitutional law
does not rest on the opinions of experts.  Stanford v. Kentucky, 109
S. Ct. at 2979-2980 (plurality opinion);  Rhodes v. Chapman, 452 U.S.
337, 348-349 n.13 (1981);  Bell v. Wolfish, 441 U.S. 520, 543-544 n.27
(1979).

   This Court firmly rejected an approach similar to that now urged by
petitioners in Harris v. McRae, 448 U.S. at 326, which involved the
constitutionality of abortion funding restrictions.  The district
court in that case, after holding a year-long evidentiary hearing into
the public funding of abortions, concluded that "'(t)he interests of .
. . the federal government . . . in the fetus and in preserving it are
not sufficient, weighed in the balance with the woman's threatened
health, to justify withdrawing medical assistance unless the woman
consents . . . to carry the fetus to term.'" 448 U.S. at 325-326
(quoting district court decision).  This Court held that the district
court had undertaken the wrong equal protection inquiry and that the
question was one for the legislature, not the court, to decide:

         It is not the mission of this Court or any other to decide
      whether the balance of competing interests reflected in the Hyde
      Amendment is wise social policy.  If that were our mission, not
      every Justice who has subscribed to the judgment of the Court
      could have done so.  But we cannot, in the name of the
      Constitution, overturn duly enacted statutes simply because they
      may be unwise, improvident, or out of harmony with a particular
      school of thought.  Rather, when an issue involves policy
      choices as sensitive as those implicated (here) . . ., the
      appropriate forum for their resolution in a democracy is the
      legislature.

Id. at 326 (citations and internal quotation marks omitted).  These
observations, grounded firmly in democratic theory, apply with equal
force to the wide-ranging "fact finding" undertaken by the district
court in this case.

                              CONCLUSION

   The judgment of the court of appeals should be affirmed in No.
88-1125 and reversed in No. 88-1309.

   Respectfully submitted.

   KENNETH W. STARR

      Solicitor General

   STUART E. SCHIFFER

      Acting Assistant Attorney General

   THOMAS W. MERRILL

      Deputy Solicitor General

   PAUL J. LARKIN, JR.

   STEPHEN J. MARZEN

      Assistants to the Solicitor General

   STEVEN R. VALENTINE

      Deputy Assistant Attorney General

   OCTOBER 1989

   /1/ Minn. Stat. Section 617.18 (1971) (repealed 1974) contained an
exception for abortions "necessary to preserve the life of the woman
or of the child." Minnesota's prohibition of abortions dated from the
late 1800s.  See 1A M. Dunnell, Minnesota Digest 2d Abortion Section
2.00 (3d ed. 1982).

   /2/ In the years between 1973 and 1981, this Court had ruled that a
State cannot require parental consent in all cases before a minor can
have an abortion.  Planned Parenthood v. Danforth, 428 U.S. 52, 74-75
(1976).

   /3/ Subdivision 3 requires notification of both parents only "if
they are both living, one parent of the pregnant woman if only one is
living or if the second one cannot be located through reasonably
diligent effort, or the guardian or conservator if the woman has one."
Minn. Stat. Ann. Section 144.343(3) (West 1989).

   /4/ A panel had previously affirmed the district court's judgment
in its entirety.  88-1125 Pet. App. 53a-72a.  The panel later vacated
its judgment and held the case in abeyance pending this Court's
decision in Zbaraz v. Hartigan, 763 F.2d 1532 (7th Cir. 1985), aff'd
by an equally divided Court, 484 U.S. 171 (1987).  88-1125 Pet. App.
158a-159a.  When this Court evenly divided in Zbaraz, the full court
of appeals granted rehearing en banc.  Pet. App. 160a.

   /5/ The court also rejected petitioners' equal protection
challenges to the Act.  88-1125 Pet. App. 98a.  Petitioners appear to
have abandoned those claims in this Court.

   Judges Lay, McMillian, and Heaney dissented.  Judges Lay and
McMillian concluded that the two-parent notification requirement
served no purpose if a minor's parents were divorced or separated and
the custodial parent consents to an abortion.  88-1125 Pet. App.
99a-106a.  They also concluded that the 48-hour waiting period unduly
burdens a minor's right to an abortion.  Id. at 106a-108a.  Judge
Heaney said that the two-parent notification requirement is
unconstitutional, but a one-parent notification requirement would be
valid.  Id. at 109a.

   /6/ The abortion of a fetus after "quickening" was regarded as a
crime at common law.  Roe, 410 U.S. at 132-136.  The earliest English
abortion statute, adopted in 1803, made abortion a crime throughout
pregnancy.  Id. at 136.

   /7/ By contrast, a state law mandating abortions would present a
starkly different question.  See Cruzan v. Missouri Dep't. of Health,
cert. granted, No. 88-1503 (to be argued Dec. 6, 1989).  Our Nation's
history and traditions establish that a competent adult may generally
refuse unwanted medical intrusions.  This right would, we believe,
extend to an unwanted abortion.

   /8/ To be sure, a State can intervene in the parent-child
relationship, for example, to supply a child with life-saving medical
care.  Jehovah's Witnesses v. King County Hosp., 390 U.S. 598 (1968),
summarily aff'g 278 F. Supp. 488 (W.D. Wash. 1967).  But just as due
process does not require the State to intervene even in that setting
in order to protect a minor from her parents, DeShaney v. Winnebago
County Dep't of Social Servs., 109 S. Ct. 998 (1989), due process
should not compel a State to allow a physician to intervene either.

   /9/ The Minnesota statute clearly differs from the laws held
invalid in Akron, Bellotti II, and Danforth.  It requires that written
notification be personally delivered to the parents, Minn. Stat. Ann.
Section 144.343(2) (West 1989), but there is no requirement that the
parents (or anyone else) provide written evidence that such notice was
given.  The attending physician or his clinic can send the notice by
mail, id. Section 144.343(2)(b), and the 48-hour waiting period can
run while the abortion is being scheduled, 88-1125 Pet. App. 97a n.18.
 Only one parent need be notified if the other parent cannot be
located by reasonably diligent effort.  Minn. Stat. Ann. Section
144.343(3) (West 1989).  It is an affirmative defense that a person
attempted with reasonable diligence to deliver notice, but was unable
to do so.  Id. Section 144.343(5).  None of these provisions is
similar to a parental veto.

   /10/ Plaintiffs are correct that a number of States, including
Minnesota, have enacted laws increasing a minor's right to consent to
medical care.  See generally L. Nolan, supra, Apps. A-F, at 442-461.
Abortion, however, is not among those medical procedures.

   /11/ This is not to say that the "undue burden" approach may not
play a proper role in cases where the relevant universe of
constitutional rights is fully specified and well defined.  In those
circumstances, we believe that the "undue burden" inquiry would
operate in a fashion analogous to the principle reflected in the maxim
de minimis non curat lex -- that minor or de minimis incursions upon
settled rights do not call for judicial redress.  See Ingraham v.
Wright, 430 U.S. 651, 674 (1977).

   /12/ According to statistics supplied by the Alan Guttmacher
Institute, whose Director of Research testified for plaintiffs as an
expert on the Institute's statistics, J.A. 97, approximately 16,000
women less than fifteen years old had abortions in the United States
in 1983.  U.S. Department of Commerce, Statistical Abstract of the
United States 70 (1989).

   /13/ The chance that a judge will guess correctly is greatly
reduced if he believes that his job is "'a routine clerical function
on my part, like putting my seal and stamp on it.'" Pet. App. 25a
(quoting a judge).  Moreover, any advice volunteered by the
professional staff of an abortion clinic will be limited for similar
reasons of role, background, and setting.  Peer counseling is even
less reliable.

   /14/ The district court's conclusion, like many of the court's
other "findings," is not a "fact" in the sense used by Fed. R. Civ. P.
52(a) to identify determinations to which an appellate court must
defer.  Under that rule, only the evidence and legitimate inferences
therefrom are reviewed under the clearly erroneous standard;
everything else is subject to de novo review.  See Icicle Seafoods,
Inc. v. Worthington, 475 U.S. 714, 715 (1985);  Bose Corp. v.
Consumers Union of United States, Inc., 466 U.S. 485, 511 (1984).
Because the district court's conclusion presupposes application of the
correct legal standard to the evidence, it is a mixed finding of law
and fact to which Rule 52(a) indicates no special deference is owed.
See Bose Corp., 466 U.S. at 501;  Turner, 482 U.S. at 93-94 n.*.

   /15/ As the court of appeals pointed out, the district court's
conclusion that parental notification imposed an undue burden on
pregnant minors rested "primarily on its factual findings regarding
the burden imposed on minors in family units that have either 'broken
apart or never formed.'" 88-1125 Pet. App. 912a-93a.  These findings
in turn were based on "somewhat limited factual findings" predicated
on "the minor living in a one-parent household who notified only her
custodial parent." Id. at 93a n.16.  Accepting the district court's
factual findings for all they are worth -- namely, that involvement of
the non-custodial parent introduces either a "traumatic distraction"
or "disruptive and unhelpful participation" and that these events are
"not uncommon," id. at 22a;  see id. at 30a-31a -- those findings
still say nothing about the 58% of Minnesota minors who live with both
parents, id. at 29a, as well as those minors whose parents naturally
take an interest in their welfare even though they are living apart.

   /16/ It is not obvious that statistics, surveys, or expert opinions
-- the bulk of petitioners' evidence -- can confirm or disprove the
hypothesis that, as a general matter, a minor's parents should be
aware of and involved in her sexual upbringing, since there is no
objective standard to guide a court in making that judgment.  Nor is
the evidence considered by the district court illuminating.  The court
dismissed the benefits of parental notification by reference to the
opinions of experts who, at bottom, simply disagreed with the state
legislature that parents can contribute to their daughter's sexual
upbringing.  See, e.g., 88-1125 Pet. App. 26a-29a.