In the Interest of Doe

Justice ORIE MELVIN,

concurring and dissenting.

I join the majority’s articulation of the appropriate standard of review that an appellate court should apply to appeals from the denial of judicial authorization pursuant to section 3206(c) of Pennsylvania’s Abortion Control Act (“Act”), Act of June 11, 1982, P.L. 476, No. 138 (codified as amended at 18 Pa.C.S. §§ 3201-3320). I disagree, however, with the majority’s conclusion that the trial court somehow misapplied the mandate of section 3206(c) by inquiring into the reasons why the minor elected not to seek the consent of either parent and thereby abused its discretion.

*630Our General Assembly has placed “a supreme value upon protecting human life” and has expressed its interest in the “right of a minor woman voluntarily to decide to submit to abortion or carry her child to term.” 18 Pa.C.S. § 3202(a) and (b)(4). Additionally, it has expressed an interest in protection of minors and parental involvement through obtaining the informed consent of both. See 18 Pa.C.S. § 3206(a) (“[A] physician shall not perform an abortion upon [a minor] unless, ... he first obtains the informed consent both of the pregnant woman and one of her parents.”). Likewise, the United States Supreme Court has repeatedly recognized the importance of parental involvement in a minor’s decisions, noting:

The unique role in our society of the family, the institution by which “we inculcate and pass down many of our most cherished values, moral and cultural,” Moore v. East Cleveland, 431 U.S. 494, 503-504, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977) (plurality opinion), requires that constitutional principles be applied with sensitivity and flexibility to the special needs of parents and children. We have recognized three reasons justifying the conclusion that the constitutional rights of children cannot be equated with those of adults: the peculiar vulnerability of children; their inability to make critical decisions in an informed, mature manner; and the importance of the parental role in child rearing.

Bellotti v. Baird, 443 U.S. 622, 634, 99 S.Ct. 3035, 61 L.Ed.2d 797 (1979) (plurality opinion).

The High Court further noted:

As immature minors often lack the ability to make 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. It may further determine, as a general proposition, that such consultation is particularly desirable with respect to the abortion decision — one that for some people raises profound moral and religious concerns. As MR. JUSTICE STEWART [stated]:
There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.

Id. at 640-41, 99 S.Ct. 3035 (internal quotation marks, citation and footnotes omitted).

In denying judicial authorization in this case, the trial court’s searching inquiry appropriately relied upon a multitude of factors and applied a totality of the circumstances analysis to reach its conclusion that the minor was not “mature and capable” of giving informed consent independently as required by section 3206(c) of the Act. As part of its reasoning, it took into consideration the minor’s explanation for electing to not seek her mother’s consent, and it also underscored that her post-petition compliance with section 3205(a)(2) of the Act reflected poorly on her ability to provide informed consent to the procedure. The Superior Court affirmed the trial court’s denial of judicial authorization, finding no abuse of discretion. I agree with the Superior Court’s determination.

*631While I acknowledge, and I further believe, the lower courts also recognized, that section 3206(c) does not require parental consent or even parental consultation, such a reading should not be equated with a complete prohibition of any consideration of the reasons for electing not to seek parental consent. Rather, I believe the Act contemplates a searching inquiry into the minor’s maturity and capacity to give informed consent, which reasonably includes the minor’s reasons for seeking judicial authorization in lieu of parental consent. As noted by the majority, the Act specifically grants the judge the authority to consider “any other evidence that the court may find useful in determining whether the pregnant woman should be granted full capacity for the purposes of consenting to the abortion or whether the abortion is in the best interest of the pregnant woman.” 18 Pa.C.S. § 3206(f)(4). I believe that such an inquiry is relevant, as that information serves to assist the court in determining the minor’s emotional development and level of maturity as contemplated by section 3206(f)(4). While the minor has a statutory right not to involve her parents in the decision-making process, the impetus supporting that decision can, depending upon her reasons, reflect either positively or negatively upon her maturity and capacity to give informed consent.1

I further distance myself from the majority’s acceptance of Appellant’s argument that sections 3206(c) and (f)(4) of the Act were “nullified” by the trial court “utilizing improperly her failure to seek parental consent as a ground for concluding that she lacked the maturity and capacity necessary to give ... informed consent.” Majority Opinion, at 627 (emphasis added). It appears the majority is imparting an improper motive to the trial court’s inquiry by concluding that the minor’s lack of parental consultation was used against her as the sole basis for the court’s decision to deny judicial authorization. See Majority Opinion, at 628 (“To hold otherwise would leave open the door for result-oriented decisions utilizing the lack of parental consent, which, as stated, is not a disqualifying factor, to justify denial of judicial authorization under the guise of the minor’s lack of maturity.”). Contrary to the majority’s assessment, it is my considered perspective that the record does not support the majority’s conclusion that the trial court “[relied] upon the failure to seek parental consent as a ground upon which to deny the application for judicial authorization.” See Majority Opinion, n. 19 at 628.2 Rather, it was her reason for not seeking parental consent and not the fact that she elected not to seek consent that properly formed but one of many factors bearing upon the trial court’s maturity assessment.3 The trial court simply *632made a credibility determination in rejecting her proffered explanation, which is a matter properly within its purview.4 Accordingly, I would find that the trial court engaged in a thorough and reasoned approach to the difficult task imposed by section 3206(c), and it did not abuse its discretion.

. As, for example, when she is truly afraid to inform her parents because of an abusive situation at home versus a desire for secrecy or to avoid embarrassment.

. The majority, despite its protestations to the contrary, converts a credibility determination into an abuse of discretion by presuming that the trial court relied upon a failure to seek parental consent.

. I further note that appellate review is not available in those cases where judicial authorization is granted to the minor. See 18 Pa. C.S. § 3206(h) ("An expedited confidential appeal shall be available to any pregnant woman whom the court fails to grant an order authorizing an abortion....”) (emphasis added). The scarcity of appellate review of a judicial bypass petition is apparently attributable to the fact that the overwhelming majority of these petitions are granted. Consequently, the trial court’s determination of the credibility and maturity of the minor in those cases where it grants the petition to have an abortion will escape the same scrutiny that this case has now received. This reality further highlights the need for trial *632judges to engage in meaningful and objective evaluations of requests for judicial authorizations and for appellate courts to refrain from re-weighing their credibility determinations, as I believe the majority does here, in those apparently few cases where the authorization is denied.

. Respectfully, I believe the majority takes the trial court’s comments in this regard out of context. See Majority Opinion, at 628. Specifically, with reference to the statement, "a minor, such as [Appellant], must attempt to secure the consent of at least one parent,” the court was merely offering an alternate rationale based upon its interpretation of the United States Supreme Court's decision in Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833, 112 S.Ct. 2791, 120 L.Ed.2d 674 (1992), it did not form the basis for its initial and primary holding. Rather, the court was just pointing out the fact the consent of one parent was not obtained in this case for whatever relevance an appellate court would attribute to that fact. See Trial Ct. slip op. at 19-21. I view the trial court's other comments as properly explaining why the minor’s reasons for failing to involve her mother lacked credibility and, therefore, contributed to its finding of immaturity.