dissenting.
I agree with the majority opinion that it was proper for the district court to consider the appointment of a guardian ad litem for the minor plaintiff, and that the court clearly had the power to appoint one in her behalf. I respectfully disagree that it was an abuse of discretion for the court to dismiss the action for failure to provide plaintiff’s parents with notice of the guardianship proceedings.
While it may be inappropriate to appoint parents to act as guardians ad litem in litigation challenging a grant of parental veto power, it does not follow that it is equally inappropriate to condition the further progress of the lawsuit upon notification to the parents of the hearing on the appointment of a guardian ad litem. There is a crucial distinction between appointing parents to serve as guardians ad litem and notifying them that their minor child is involved in serious litigation for which a guardian ad litem may be appointed. Of course, both of these are an additional step removed from the merits of this matter concerning the requirement of parental consent to obtain prescription contraceptives against which the plaintiff seeks to assert a right of privacy.
*177The majority quite properly has declined an invitation to decide the merits of the case. Yet a decision of the narrow issue before us calls for at least a brief consideration of the nature of the basic controversy.
Plaintiff, an unmarried fifteen year old female, seeks judicial declaration of an untrammeled constitutional right at public expense1 to fornicate with benefit of prescribed contraceptive supplies. Stated otherwise, she seeks vindication of an alleged constitutional right to put contraceptives to their intended use, notwithstanding the combined objection of both her parents and the state.2
It must be conceded that a number of fundamental constitutional rights have been expressly extended to minors in recent years. Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Breed v. Jones, 421 U.S. 519, 95 S.Ct. 1779, 44 L.Ed.2d 346 (1975); Goss v. Lopez, 419 U.S. 565, 95 S.Ct. 729, 42 L.Ed.2d 725 (1975); In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970); In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967); Tinker v. Des Moines School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969). See also Jones v. T. H., 425 U.S. 986, 96 S.Ct. 2195, 48 L.Ed.2d 811 (1976). However, not all constitutional rights have been made equally applicable to minors as to adults, and it is well established that the activities of children may be more highly regulated than those of adults. McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971); Ginsberg v. New York, 390 U.S. 629, 88 S.Ct. 1274, 20 L.Ed.2d 195, reh. denied, 391 U.S. 971, 88 S.Ct. 2029, 20 L.Ed.2d 887 (1968); Prince v. Massachusetts, 321 U.S. 158, 64 S.Ct. 438, 88 L.Ed. 645, reh. denied, 321 U.S. 804, 64 S.Ct. 784, 88 L.Ed. 1090 (1944). In particular, a state may determine that a child is not possessed of full capacity for individual choice.
South Dakota law contains numerous provisions designed to protect minors in matters of sex. It is observed that a minor female is deemed incapable of consenting to marriage prior to age sixteen. S.D. Compiled Laws Ann. § 25-1-9. A person sixteen years of age or less is presumed incapable of consenting to sexual intercourse, and significantly, such sexual activity with a female sixteen or under constitutes rape. S.D. Compiled Laws Ann. § 22-22-1.3
The legality of such statutes is not in question here and they are perhaps typical of state enactments in the field.
In addition to restriction by the state, minors are subject to parental custody and control. “Constitutional interpretation has consistently recognized that the parents’ claim to authority in their own household to direct the rearing of their children is basic to the structure of society. It is cardinal that the custody, care and nurture of the child reside first in the parents whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Carey v. New York, -U.S.-,---, 97 S.Ct. 2010, 2028, 52 L.Ed.2d 675 (1977).
Judicial decisions have enveloped the sanctity of the family and parental authority with constitutional protection because the institution of the family has long been recognized as a cornerstone of our law. Moore v. East Cleveland,-U.S.-, 97 S.Ct. 1932, 52 L.Ed.2d 531 (1977); Wisconsin v. Yoder, 406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Ginsberg v. New York, *178supra; Pierce v. Society of Sisters, 268 U.S. 510, 45 S.Ct. 571, 69 L.Ed. 1070 (1925).
The right to custody and control over a minor child accrues to parents in reciprocation for their duty to support, educate and protect that child. Consonant with this right, parents may need to know that their minor child has embarked upon a course of litigation, particularly where they probably will not serve as guardians ad litem and where the outcome of the action need not be fatally affected by their awareness of it. Assuming that a minor’s institution of litigation without parental knowledge marks a fracture in the family structure, it is clearly within the scope of their protected power for parents to attempt to make amends and reinforce the family unit. They may seek to reopen closed lines of communication with their child or to rehabilitate common interests they once shared.
To fulfill their protective obligation, parents at least should be entitled to establish that a lawsuit instituted by their minor child is a product of that minor’s own conscientious decision made in her capacity as a maturing young citizen, and not the result of undue influence from outside sources, well meaning though they may be.
The narrow issue presented at this time is whether in the circumstances of this case the fifteen year old plaintiff has an absolute right to conduct litigation free from her parents’ knowledge in order to avoid an alleged chilling effect parental knowledge might have on the right of privacy she ultimately wishes to establish. Considering the cautious recognition by courts of constitutional rights that may be independently asserted by a minor, coupled with the protective nature of South Dakota’s policy toward fifteen year old girls, I remain unconvinced that the minor plaintiff’s participation in this lawsuit is fully protected by a right of privacy.4 On balance, a minor’s right to conduct litigation in private, or be protected from the chill of notice to the parents does not outweigh the parents’ right and duty to advise and protect their child, and to preserve the integrity of the family.
Limited parental participation would be in no way determinative of the merits in this case, even though a similar balancing procedure may be employed when hearing on the merits is reached. The court at this juncture is called upon only to weigh the right of a minor to institute a legal action in private against her parents’ right to know that their child has become a party plaintiff. Correspondingly, a determination of the merits will require a balancing of the minor plaintiff’s right of privacy to obtain prescription contraceptives against the right of her parents to exercise a veto power upon her acquisition of such contraceptives pursuant to the policy of the county health clinic. Though the two decisions may involve the analysis of similar elements, a finding in favor of the parental right at this stage of the proceedings would not preclude a different finding upon consideration of the merits of the case.
Until a decision on the merits has been reached, both the minor’s asserted right of privacy involving access to prescription contraceptives, and the parents’ right to custody and control over their daughter should be protected to the fullest extent possible. The minor’s right to litigate could be protected by appointing someone other than the parents as guardians ad litem. The parents’ right could be protected by informing them of the legal action instituted by their child. To permit parents to remain unaware of major litigation involving their child not only prevents them from counsel-ling with the child but also imparts to the whole proceeding an overcast of deception undermining family solidarity and making suspect the court itself.
Experience teaches that wilful children dread parental confrontation. I would not *179elevate that dread to constitutional status and would prefer to find no abuse of discretion in the district court’s order requiring notice to the parents. I would reverse only insofar as the judgment dismisses with prejudice.
. A modest fee of $2.00 is charged for prescription service to those able to pay; otherwise the service is free.
. While strictly speaking the merits are not before us, it is noteworthy that in different context Mr. Justice Stevens joined by Mr. Justice White has described such an argument as “frivolous.” Carey v. New York, - U.S. -, -, 97 S.Ct. 2010, 52 L.Ed.2d 675 (1977).
. To be sure, it is not necessarily illogical both to condemn statutory rape and to deny contraceptives to those infant females who by statute may not consent to intercourse, but it has been said that it is unreasonable to assume that the state has prescribed pregnancy as punishment for fornication. Carey v. New York, id. at -, 97 S.Ct. 2010.
. The filing of a lawsuit by its very nature is a public act which initiates and becomes a part of a public record. Notwithstanding plaintiff’s attempt to preserve her anonymity by utilizing the initials M.S., in availing herself of access to the court and other privileges accorded a party plaintiff, she in effect relinquished any expectation she may have had of total privacy in the determination of this case.