# Ohio v. Akron Center for Reproductive Health

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## Concurring Opinions

    Scalia
    Stevens

## Dissenting Opinion

    Blackmun
United States Supreme Court
497 U.S. 502
Ohio v. Akron Center for Reproductive Health
No. 88-805 Argued: Nov. 29, 1989. --- Decided: June 25, 1990
Syllabus
As enacted, Ohio's Amended Substitute House Bill 319 (H.B. 319) makes it a crime for a physician or other person to perform an abortion on an unmarried, unemancipated, minor woman, unless, inter alia, the physician provides timely notice to one of the minor's parents or a juvenile court issues an order authorizing the minor to consent. To obtain a judicial bypass of the notice requirement, the minor must present clear and convincing proof that she has sufficient maturity and information to make the abortion decision herself, that one of her parents has engaged in a pattern of physical, emotional, or sexual abuse against her, or that notice is not in her best interests. Among other things, H.B. 319 also allows the physician to give constructive notice if actual notice to the parent proves impossible "after a reasonable effort"; requires the minor to file a bypass complaint in the juvenile court on prescribed forms; requires that court to appoint a guardian ad litem and an attorney for the minor if she has not retained counsel; mandates expedited bypass hearings and decisions in that court and expedited review by a court of appeals; provides constructive authorization for the minor to consent to the abortion if either court fails to act in a timely fashion; and specifies that both courts must maintain the minor's anonymity and the confidentiality of all papers. Shortly before H.B. 319's effective date, appellees-an abortion facility, one of its doctors, and an unmarried, unemancipated, minor woman seeking an abortion there-and others filed a facial challenge to the statute's constitutionality in the Federal District Court, which ultimately issued an injunction preventing H.B. 319's enforcement. The Court of Appeals affirmed, concluding that various of the statute's provisions were constitutionally defective.
Held: The judgment is reversed.
854 F.2d 852 (CA6 1988), reversed.
Justice KENNEDY delivered the opinion of the Court with respect to Parts I, II, III, and IV, concluding that, on its face, H.B. 319 does not impose an undue, or otherwise unconstitutional, burden on a minor seeking an abortion. Pp. 510-519.
1. House Bill 319 accords with this Court's cases addressing the constitutionality of parental notice or consent statutes in the abortioncon text. Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788; Bellotti v. Baird, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797; H. L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388; Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733; Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687. Pp. 510-517.
(a) Whether or not the Fourteenth Amendment requires parental notice statutes, as opposed to parental consent statutes, to contain judicial bypass procedures, H.B. 319's bypass procedure is sufficient because it meets the requirements identified in Danforth, Bellotti, Ashcroft, and Akron for the more intrusive consent statutes, particularly the four criteria set forth by the principal opinion in Bellotti, supra, 443 U.S. at 643-644, 99 S.Ct., at 3048-3049 (opinion of Powell, J.). First, the statute satisfies the requirement that the minor be allowed to show the maturity to make her abortion decision without regard to her parents' wishes. Second, by requiring the juvenile court to authorize her consent upon determining that the abortion is in her best interests and in cases where she has shown a pattern of abuse, H.B. 319 satisfies the requirement that she be allowed to show that, even if she cannot make the decision by herself, the abortion would be in her best interests. Third, the requirement that a bypass procedure ensure the minor's anonymity is satisfied, since H.B. 319 prohibits the juvenile court from notifying the parents that the complainant is pregnant and wants an abortion and requires both state courts to preserve her anonymity and the confidentiality of court papers, and since state law makes it a crime for any state employee to disclose documents not designated as public records. Neither the mere possibility of unauthorized, illegal disclosure by state employees nor the fact that the H.B. 319 complaint forms require the minor to provide identifying information for administrative purposes is dispositive. Complete anonymity is not critical under this Court's decisions, and H.B. 319 takes reasonable steps to prevent the public from learning of the minor's identity. Fourth, H.B. 319's time limits on judicial action satisfy the requirement that a bypass procedure be conducted with expedition. Even if, as appellees contend, the bypass procedure could take up to 22 calendar days, including weekends and legal holidays, that possibility does not suffice to invalidate the statute on its face. See, e.g., Ashcroft, supra, 462 U.S. at 477, n. 4, 491, n. 16, 103 S.Ct., at 2518, n. 4, 2525, n. 16. Pp. 510-514.
(b) The Bellotti criteria need not be extended by imposing appellees' suggested additional requirements on bypass procedures. First, H.B. 319 is not rendered unconstitutional by the fact that its constructive authorization provisions do not require an affirmative order authorizing the physician to act in the event that either state court fails to act within the prescribed time limits. Absent a showing that those limits will be ignored, the State may expect that its judges will follow mandated procedural requirements. Moreover, Ashcroft, supra, 462 U.S. at 479-480, n. 4, 103 S.Ct., at 2519-2520, n. 4, does not require constructive authorization provisions, which were added by Ohio out of an abundance of caution and concern for the minor's interests. Second, a bypass procedure such as Ohio's does not violate due process by placing the burden of proof on the issues of maturity or best interests on the minor or by requiring a heightened, clear and convincing evidence standard of proof. Justice Powell in Bellotti, supra, 443 U.S. at 634, 99 S.Ct., at 3043, indicated that a State may require the minor to bear the burden of proof on these issues. Moreover, a State may require a heightened standard of proof when, as here, the bypass procedure contemplates an ex parte proceeding at which no one opposes the minor's testimony and she is assisted by an attorney and a guardian ad litem. Third, H.B. 319's statutory scheme and the bypass complaint forms do not deny an unwary and unrepresented minor the opportunity to prove her case by requiring her to choose among three forms, the first of which relates only to maturity, the second to best interests, and the third to both. Even assuming some initial confusion, it is unlikely that the Ohio courts will treat a minor's choice of forms without due care and understanding for her unrepresented status. Moreover, she does not make a binding election by her initial form choice, since H.B. 319 provides her with appointed counsel after filing the complaint and allows her to move to amend the pleadings. Pp. 514-517.
2. Even assuming that H.B. 319 gives a minor a substantive, state-law liberty or property right "to avoid unnecessary or hostile parental involvement" upon proof of maturity or best interests, the statute does not deprive her of this right without due process, since its confidentiality provisions, expedited procedures, pleading form requirements, clear and convincing evidence standard, and constructive authorization provisions are valid on their face. Pp. 517-518
3. House Bill 319 is not facially invalid simply because it requires parental notice to be given by the physician rather than by some other qualified person. Since the physician has a superior ability to garner and use important medical and psychological data supplied by a parent upon receiving notice, a State may require the physician himself to take reasonable steps to notify the parent. See Matheson, supra, 450 U.S. at 400, 411, 101 S.Ct., at 1166, 1172. In addition, the conversation with an experienced and detached physician may assist the parent in approaching the problem in a mature and balanced way and thereby enable him to provide better advice to the minor than would a conversation with a less experienced person. Any imposition on the physician's schedule is diminished by provisions allowing him to give notice by mail if he cannot reach the parent "after a reasonable effort" and to forgo notice in the event of certain emergencies, which provisions constitute an adequate recognition of his professional status. Akron, supra, 462 U.S. at 446-449, 103 S.Ct., at 2501-2503, distinguished. Pp. 518-519.
Justice KENNEDY, joined by THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA, concluded in Part V that H.B. 319 constitutes a rational way to further legitimate ends. A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronting a woman considering an abortion, which decision will affect her own destiny and dignity and the origins of the other human life within the embryo. It is both rational and fair for the State to conclude that, in most instances, the beginnings of that understanding will be within the family, which will strive to give a lonely or even terrified minor advice that is both compassionate and mature. Pp. 519-520.
Justice STEVENS, agreeing that H.B. 319 is not unconstitutional on its face, concluded that, in some of its applications, the one-parent notice requirement will not reasonably further the State's legitimate interest in protecting the welfare of its minor citizens. The question whether the judicial bypass is so obviously inadequate for such exceptional situations that the entire statute should be invalidated must await the statute's implementation and the evaluation of the significance of its restrictions in light of its administration. The State must provide an adequate mechanism for avoiding parental notification for cases in which the minor is mature or notice would not be in her best interests. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 441, n. 31, 103 S.Ct. 2481, 2498, n. 31, 76 L.Ed.2d 687. Pp. 521-523.
KENNEDY, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III, and IV, in which REHNQUIST, C.J., and WHITE, STEVENS, O'CONNOR, and SCALIA, JJ., joined, and an opinion with respect to Part V, in which REHNQUIST, C.J., and WHITE and SCALIA, JJ., joined. SCALIA, J., filed a concurring opinion, post, p. 520. STEVENS, J., filed an opinion concurring in part and concurring in the judgment, post, p. 521. BLACKMUN, J., filed a dissenting opinion, in which BRENNAN and MARSHALL, JJ., joined, post, p. 524.
Rita S. Eppler, Columbus, Ohio, for appellant.
Linda R. Sogg, Cleveland, Ohio, for appellees.
Justice KENNEDY announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II, III, and IV , and an opinion with respect to Part V, in which THE CHIEF JUSTICE, Justice WHITE, and Justice SCALIA join.
The Court of Appeals held invalid an Ohio statute that, with certain exceptions, prohibits any person from performing an abortion on an unmarried, unemancipated, minor woman absent notice to one of the woman's parents or a court order of approval. We reverse, for we determine that the statute accords with our precedents on parental notice and consent
Justice STEVENS and Justice O'CONNOR join only Parts I, II, III, and IV of this opinion. in the abortion context and does not violate the Fourteenth Amendment.

## 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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