Planned Parenthood League of Massachusetts, Inc. v. Attorney General

O’Connor, J.

(dissenting, with whom Lynch, J., joins). General Laws c. 112, § 12S, provides with certain exceptions that an unmarried minor may not obtain an abortion in the Commonwealth without the consent of both of her parents or the authorization of a Superior Court judge. The court holds that § 12S violates the due process provisions of the Massachusetts Constitution unless it “be enforced as if it stated a requirement only of one-parent consent.” Ante at 600. Perhaps if § 12S were to require only one-parent consent or judicial authorization, it would be constitutional. However, I do not agree that the requirement, with specified exceptions, of two-parent consent or judicial authorization, as the statute is written, violates the Commonwealth’s Constitution. I would order that the statute be enforced according to its terms.

In order to obtain an abortion in the Commonwealth, an unmarried minor is not required to seek or obtain parental consent. Section 12S simply provides for two-parent consent as an alternative to judicial approval, which is not difficult to obtain. As the court notes, ante at 592 n.6, “[tjypically, the minor is at the court house for approximately two hours and before a judge for between fifteen and thirty minutes.” “[T]he judicial response to such requests, once made, is expeditious.” Ante at 592. “[T]he proceeding is confidential and lawyers are available to process applications through the court at public expense. The record shows that judicial approval is nearly a *604certainty. There is no showing that judicial procedures are not carried out promptly in this Commonwealth, or that the necessity of seeing a judge, in spite of emotional concerns such as fear or nervousness, have deterred young women who want abortions from obtaining judicial authorization . . . .” Ante at 592.

As the court recognizes, a significant legislative reason to provide two-parent consent as an option to easily obtained judicial authorization is to encourage dialogue between the parents and the minor so as to give real meaning to the minor’s constitutional right to choose between aborting the fetus and bringing it to term. The right to choose has little value if the decision to be made is based on immaturity, inexperience, stress, fear or panic, unaided by information and advice that concerned parents will frequently give regarding the values at stake and the short and long-term ramifications for the minor and others of that important decision. Choice — free choice — implies the need for the kind of information and advice that responsible parents are likely to provide if given the opportunity. This, of course, is an important legislative concern. As the court says, “The State has an obvious interest in the welfare of minors and in the promotion of the interests of parents in the care and upbringing of their children,” ante at 591; and “[t]he State has an independent interest in assuring that the decision to have an abortion is free and considered . . . .” Ante at 594.

Despite the unassailable fact that a genuine right to choose requires information and consideration to a depth commensurate with the gravity of the decision to be made, and despite the further fact that concerned parents are a likely and legislatively preferred source of such assistance to their unmarried minor child who must decide whether to have an abortion — a most serious decision — and despite the fact that the State has a genuine interest in the welfare of minors and in promoting parental involvement in their children’s upbringing, and despite the fact that alternative judicial approval is quick, free, and virtually assured, the court somehow concludes that § 12S’s “requirement that, with certain exceptions, a pregnant unmarried minor must obtain the consent of both parents to her having an abortion, or else must seek judicial authorization, lacks sufiBcient justification to overcome the burden that the two-parent consent requirement places on the minor’s constitutional right to choose.” *605Ante at 595-596. In my view, the statute’s requirement that both of the unmarried minor’s parents must consent, if both are available,1 or judicial authorization of the minor’s abortion must be obtained, does not burden the minor’s right of free choice. Instead, it supports and promotes that right and gives it substance by encouraging, but not requiring, the minor to obtain meaningful assistance in dealing with a very personal and serious challenge.

The court states:

“The two-parent consent requirement clearly applies in circumstances in which there can be no justification for burdening the minor’s constitutional right to choose an abortion. If, for example, the parents have never married and have never lived together and one or both parents have never supported the child, or one or both have abused the child, the two-parent consent requirement stated in § 12S may nevertheless be applicable. Section 12S even seems to require two-parent consent to an abortion where the minor has been impregnated by her father. In such cases, neither the interest in assuring the free and considered choice of the minor nor the interest in assuring the minor’s welfare is served by requiring the consent of both parents. The two-parent consent requirement operates only as a burden in such cases, a burden uncompensated by the further assurance of any interest the State may legitimately insist on.”

Ante at 596. It is clear to me that, in any of the circumstances hypothesized by the court, the unmarried minor’s right to choose is especially vulnerable if the consent of one parent, for instance the parent who has never supported the child financially or in any other way, will permit the abortion to occur. That parent has already shown his or her disinterest in the child’s well being. He or she cannot be expected to give the unmarried minor the type of information and counsel needed to give the minor’s right of choice the vitality it needs if that right is to be truly honored. So too, the consent of the *606parent who has impregnated the minor is hardly likely to be anything other than his move to further his own interest. It would be naive to assume that numerous unmarried minors, immature, uninformed about abortion and all its implications, and panicked by unintended pregnancy, would not seek the consent only of the parent who would not care and would give consent without counsel, or of the parent whose selfish interests would be served by his consenting to the proposed abortion. It is only by requiring two-parent consent (as an alternative to judicial approval, frequently referred to as judicial bypass) that the minor is inevitably led to dialogue with the other parent, which may be instructive, or dialogue with a judge. Surely, the State’s interest in the welfare of minors, including the minors’ right to an informed choice between abortion and carrying to term, as well as in the promotion of the interests of both parents in the care and upbringing of their children, justifies such a rule. Surely, the Legislature did not exceed its constitutional powers in recognizing and promoting the State’s interest — a critical one indeed — by enacting G. L. c. 112, § 12S.

Relying in part on Hodgson v. Minnesota, 497 U.S. 417 (1990), the court concludes that “[t]he burden that § 12S places on a minor to seek and obtain the consent of both parents can force her, even when one parent consents, to turn to the judicial bypass for relief. That process admittedly imposes delay and emotional stress on such a minor. To require that a minor follow such a process when the purpose of parental consent is fulfilled by the consent of one parent is to burden the minor’s constitutional rights without adequate justification.” Ante at 598. It is worthy of comment that § 12S does not require an unmarried minor seeking an abortion (perhaps because of immaturity, panic, and lack of information) to seek two-parent consent before seeking judicial authorization. The minor is statutorily entitled to seek judicial authorization as a first step. In any event, the process to which the court refers would appear to impose a minimum of delay in consulting with a second “available” parent and, if necessary, promptly going to court for two hours. The delay is minuscule compared to the value of the information and guidance the minor might well receive for the first time from the second parent. Contrary to the court’s reasoning, the purpose of parental consent, which is to educate and counsel *607the unmarried minor so the choice whether to abort or carry to term will be truly informed and free, frequently will not be fulfilled by the consent of one parent. It defies human experience to suggest that the input of two parents will seldom, if ever, exceed the input of one. Indeed, it may only be as a result of consultation with a second parent that a minor concludes from what has been said that abortion does not simply terminate a potentiality of Ufe or an expectancy thereof but that, while the fetus resides in its mother’s womb the fetus takes nourishment and grows, and early in the pregnancy the fetus has a readily detectable heartbeat. The minor may conclude from what she has been told by the second parent that abortion terminates a human life. As a result, the minor may choose Ufe. “A woman considering abortion faces ‘a difficult choice having serious and personal consequences of major importance to her own future — perhaps to the salvation of her own immortal soul.’ ” Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833, 916 (1992) (Stevens, J., concurring in part and dissenting in part), quoting Thornburgh v. American College of Obstetricians & Gynecologists, 476 U.S. 747, 781 (1986) (Stevens, J., concurring). As a further result, the minor may avoid a disabUng sense of guilt and grief that otherwise might occur.

Like the court, I too rely on Hodgson v. Minnesota, supra, although my reason for doing so differs from the court’s reason. I do so because that decision stands for the proposition that a provision of the relevant Minnesota statute requiring two-parent notification or, in the alternative, a judicial authorization procedure identical in every significant way with the procedure provided by G. L. c. 112, § 12S, fifily satisfies the requirements of the United States Constitution. The Court so held. That being so, and there being no relevant difference in the text or history of the United States and Massachusetts Constitutions, Hodgson is persuasive authority for the proposition that § 12S is constitutional as written.

In Hodgson, the Court concluded that Minnesota’s two-parent notice law without judicial bypass was unconstitutional. The Minnesota statute also provided, however, that if the two-parent notice requirement were to be invalidated, the same notice requirement would be effective unless the pregnant minor were to obtain a court order permitting the abortion to proceed. Minn. Stat. § 144.343(6) (1988). The *608United States Court of Appeals for the Eighth Circuit sustained this portion of the statute, in effect a two-parent notice requirement with a judicial bypass. “Five Members of the Court, the four who [joined Justice Kennedy’s opinion] and Justice O’Connor, agree[d] with the Court of Appeals’ decision on this aspect of the statute. As announced by Justice Stevens, who dissented from this part of the Court’s decision, the Court of Appeals’ judgment on this portion of the statute [was] therefore affirmed.” Id. at 481 (Kennedy, J., with whom Rehnquist, C.J., White, J., and Scalia, J., joined, concurring in part and dissenting in part). In her separate opinion, Justice O’Connor stated that a requirement of two-parent notice or judicial authorization identical in all relevant respects with § 12S “passes constitutional muster because the interference with the internal operation of the family required by [the two-parent notice requirement without the judicial bypass] simply does not exist where the minor can avoid notifying [or obtaining the consent of] one or both parents by use of the bypass procedure.” Id. at 461 (O’Connor, J., concurring in part and concurring in the judgment in part). Until today, no court of last resort has declared unconstitutional a parental-consent statute like § 12S which contains an appropriate judicial bypass procedure.2

The court says, ante at 596 n.ll, “Several States have no provision at all concerning parental consent to an abortion. Most States that have a provision for parental consent require the consent of only one parent. Of the States that have a two-parent consent provision, almost all do not enforce it or have been enjoined from enforcing it. See Report of the American Medical Association’s Council on Ethical and Judicial Affairs, Mandatory Parental Consent to Abortion, 269 JAMA 82, 85 (1993).” For the purposes of this discussion, I shall assume that the article’s information is current and accurate. In any event, the routes taken by the Legislatures of other States *609with respect to parental consent are irrelevant to the question before the court, which is whether G. L. c. 112, § 12S, the statute enacted by the Massachusetts Legislature, complies with the Massachusetts Constitution. Also irrelevant is whether almost all of the States that have a two-parent consent provision do not enforce it or have been enjoined from enforcing it. Statutes, unlike G. L. c. 112, § 12S, that lack a satisfactory judicial bypass provision violate the United States Constitution and cannot be enforced. In any event, whether other States do or do not enforce their laws sheds absolutely no light on whether G. L. c. 112, § 12S, survives Massachusetts constitutional scrutiny.

For all the reasons I have given, I respectfully dissent from the court’s opinion. I would hold that G. L. c. 112, § 12S, is fully constitutional as enacted.

General Laws c. 112, § 12S, provides in relevant part: “If one of the pregnant woman’s parents has died or is unavailable to the physician within a reasonable time and in a reasonable manner, consent of the remaining parent shall be sufficient. ... If the pregnant woman’s parents are divorced, consent of the parent having custody shall be sufficient.”

In In re T.W., 551 So. 2d 1186 (Fla. 1989), the Supreme Court of Florida considered the constitutionality of a State statute, Fla. Stat. Ann. § 390.001 (4) (a) (Supp. 1988), requiring parental consent before a minor could receive an abortion. While that statute did provide for a judicial bypass procedure, that procedure made no provision for a lawyer for the minor or for a record hearing. Id. at 1196. The court, relying on the Florida Constitution’s right of privacy and noting the aforementioned procedural infirmities of the judicial bypass mechanism, held the statute unconstitutional.