# Hodgson v. Minnesota
## Concurring Opinions

    O'Connor
    Marshall
    Scalia
United States Supreme Court
497 U.S. 417
Hodgson v. Minnesota
No. Nos 88-1125, 88-1309 Argued: Nov. 29, 1989. --- Decided: June 25, 1990
Syllabus
Subdivision 2 of Minn.Stat. § 144.343 provides that no abortion shall be performed on a woman under 18 years of age until at least 48 hours after both of her parents have been notified. The two-parent notice requirement is mandatory unless, inter alia, the woman declares that she is a victim of parental abuse or neglect, in which event notice of her declaration must be given to the proper authorities. Subdivision 6 provides that, if a court enjoins the enforcement of subdivision 2, the same two-parent notice requirement is effective unless a court of competent jurisdiction orders the abortion to proceed without notice upon proof by the minor that she is "mature and capable of giving informed consent" or that an abortion without notice to both parents would be in her best interest. Two days before the statute's effective date, a group consisting of doctors, clinics, pregnant minors, and the mother of a pregnant minor filed suit in the District Court, alleging that the statute violated the Due Process and Equal Protection Clauses of the Fourteenth Amendment. The court declared the statute unconstitutional in its entirety and enjoined its enforcement. The Court of Appeals, sitting en banc, reversed. Although it rejected the State's submission that subdivision 2's two-parent notice requirement was constitutional without any bypass procedure, the court held that subdivision 6 was valid and that its bypass procedure saved the statute as a whole. The court also rejected the argument that the 48-hour waiting period imposed a significant burden on the minor's abortion right.
Held: The judgment is affirmed.
853 F.2d 1452 (CA8 1988), affirmed.
Justice STEVENS delivered the opinion of the Court with respect to Parts I, II, IV, and VII, concluding that subdivision 2 of § 144.343 violates the Constitution insofar as it requires two-parent notification. Pp. 436-444, 450-455.
(a) Since none of this Court's abortion decisions dealing with parental consent or notification statutes focused on the possible significance of making the consent or notice applicable to both parents instead of just one, the District Court's extensive and unchallenged findings on the question are significant. On the basis of extensive trial testimony, the District Court found, inter alia, that the two-parent notification requirement had particularly harmful effects on both the minor and the custodial parent when the parents were divorced or separated, especially in the context of an abusive or dysfunctional family; that the requirement also had adverse effects in families in which the minor lives with both parents, particularly where family violence is a serious problem; that the requirement actually impairs family communication in many instances, since minors who otherwise would inform one parent were unwilling to do so when such notification would involve going to court for a bypass in any event; that few minors can take advantage of the abuse exception because of the obligation to report the information to the authorities and the attendant loss of privacy; and that the two-parent requirement did not further the State's interests in protecting pregnant minors or assuring family integrity. The court also found that, in many cases, the statutory 48-hour waiting period was extended to a week or more by scheduling considerations, thereby increasing the risk associated with the abortion to a statistically significant degree. Pp. 436-444.
(b) The requirement that both parents be notified, whether or not both wish to be notified or have assumed responsibility for the upbringing of the child, does not reasonably further any legitimate state interest. Any such interest in supporting the authority of a parent, who is presumed to act in the minor's best interest, to assure that the abortion decision is knowing, intelligent, and deliberate, would be fully served by a one-parent notification requirement as to functioning families, where notice to either parent would normally constitute notice to both. As to the many families in which the parent notified would not notify the other parent, the State has no legitimate interest in questioning the first parent's judgment or in presuming him or her incompetent to make decisions regarding the child's health and welfare. Moreover, as the record demonstrates, the two-parent requirement actually disserves the state interest in protecting and assisting the minor with respect to the thousands of dysfunctional families affected by the statute, where the requirement proved positively harmful. There is no merit to the argument that the two-parent requirement is justified because, in the ideal family, the minor should make her decision only after consultation with both parents, who should naturally be concerned with her welfare. The State has no legitimate interest in conforming family life to a state-designed ideal by requiring family members to talk together. Nor can the State's interest in protecting a parent's interest in shaping a child's values and lifestyle overcome the liberty interests of a minor acting with the consent of a single parent or court. The combined force of the separate interest of one parent and the minor's privacy interest outweighs the separate interest of the second parent, and the justification for any rule requiring parental involvement in the abortion decision rests entirely on the best interests of the child. The fact that the two-parent requirement is virtually an oddity among state and federal consent provisions governing childrens' health, welfare, and education further demonstrates its unreasonableness and the ease with which the State can adopt less burdensome means to protect the minor's welfare. Pp. 450-455.
Justice STEVENS, joined by Justice O'CONNOR, concluded in Parts V and VI that:
1. Three separate but related interests are relevant to the constitutionality of the 48-hour waiting period and the two-parent notification requirement. First, the State has a strong and legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely. That interest justifies a state-imposed requirement that the minor notify and consult with a parent before terminating her pregnancy. See, e.g., Ohio v. Akron Center for Reproductive Health, 497 U.S. 502, 510-511, 110 S.Ct. 2972, 2978-2979, 111 L.Ed.2d 405. Second, parents have an interest in controlling their childrens' education and upbringing, and a natural parent's stake in the relationship with a child may rise to the level of a protected liberty interest if the parent has demonstrated his or her commitment by assuming personal, financial, or custodial responsibility for the child. Third, the family has a privacy interest in its children's upbringing and education which is constitutionally protected against undue state interference. When government intrudes on the family's choices, the governmental interests advanced and the extent to which they are served by the challenged regulation must be carefully examined. Pp. 444-448.
2. To the extent that subdivision 2 of the state statute requires that a minor wait 48 hours after notifying a single parent of her intention to obtain an abortion, it reasonably furthers the legitimate state interest in ensuring that the minor's decision is knowing and intelligent. The State may properly enact laws designed to aid a parent who has assumed "primary responsibility" for a minor's well-being in discharging that responsibility, and the 48-hour delay provides the parent the opportunity to consult with his or her spouse and a family physician, to inquire into the competency of the abortion doctor, and to discuss the decision's religious and moral implications with the minor and provide needed guidance and counsel as to how the decision will affect her future. The delay imposes only a minimal burden on the minor's rights. The statute does not impose any period of delay if the parents or a court, acting in loco parentis, provide consent to the procedure. Moreover, the record reveals that the waiting period may run concurrently with the time necessary to make an appointment for the abortion. Pp. 448-449
Justice O'CONNOR concluded that subdivision 6 of the state statute-two-parent notification plus judicial bypass-passes constitutional muster because the interference with the family's internal operation required by subdivision 2's two-parent notice requirement simply does not exist where the minor can avoid notifying one or both parents by using the bypass procedure. See, e.g., Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 90-91, 96 S.Ct. 2831, 2850-2851, 49 L.Ed.2d 788. P. 461.
Justice KENNEDY, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA, concluded:
1. The state statute's 48-hour waiting period is necessary to enable notified parents to consult with their daughter or her physician, if they so wish, results in little or no delay, and is therefore constitutional. Pp. 496-497
2. Subdivision 6 of the statute-which requires two-parent notification unless the pregnant minor obtains a judicial bypass is constitutional. By creating a judicial mechanism to identify, and exempt from the strictures of the law, those cases in which the minor is mature or in which parental notification is not in her best interest, subdivision 6 precisely addresses the concern underlying the Court's invalidation of subdivision 2: the possibility that, in some cases, two-parent notification would not work to the benefit of minors or their parents. In providing for the bypass, moreover, Minnesota has simply attempted to fit its legislation into the framework supplied by this Court's previous cases, particularly Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797, which stands for the proposition that a two-parent consent law is constitutional if it provides for a sufficient judicial bypass alternative. See id., at 643, 99 S.Ct., at 3048 (opinion of Powell, J.); id., at 656-657, 99 S.Ct., at 3054-3055 (WHITE, J., dissenting). The conclusion that subdivision 6 must be sustained is compelled not only by Bellotti, but also by H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388, in which the Court held that a two-parent notice statute without a bypass was constitutional as applied to immature minors whose best interests would be served by notice. If that is the case, but if such a law is not constitutional as applied to minors who are mature or whose best interests are not so served, a judicial bypass is an expeditious and efficient means by which to separate the applications of the law which are constitutional from those which are not. Pp. 497-501.
STEVENS, J., announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, in which BRENNAN, MARSHALL, BLACKMUN, and O'CONNOR, JJ., joined, an opinion with respect to Part III, in which BRENNAN, J., joined, an opinion with respect to Parts V and VI, in which O'CONNOR, J., joined, and a dissenting opinion with respect to Part VIII. O'CONNOR, J., filed an opinion concurring in part and concurring in the judgment, post, p. 458. MARSHALL, J., filed an opinion concurring in part, concurring in the judgment in part, and dissenting in part, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 461. SCALIA, J., filed an opinion concurring in the judgment in part and dissenting in part, post, p. 479. KENNEDY, J., filed an opinion concurring in the judgment in part and dissenting in part, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined, post, p. 480.
Janet Benshoof, New York City, for petitioners in No. 88-1125 and respondents in No. 88-1309.
John R. Tunheim, St. Paul, Minn., for respondents in No. 88-1125 and petitioners in No. 88-1309.
Justice STEVENS announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, IV, and VII, an opinion with respect to Part III in which Justice BRENNAN joins, an opinion with respect to Parts V and VI in which Justice O'CONNOR joins, and a dissenting opinion with respect to Part VIII.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
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