dissenting.
I respectfully dissent.1 I would adhere to the well-reasoned panel opinion written by Judge Rosenn.*
The majority’s analysis is seriously flawed in several respects:
(1) it fails to focus on the issue involved, which is whether a two-parent notification statute with a judicial bypass provision is constitutional;
(2) it completely ignores the evidence amassed in a five-week trial and the district court’s findings of fact as irrelevant to the constitutional issue;
(3) without legal support, it relies upon the judicial bypass provision to uphold an unconstitutional two-parent notification requirement;
(4) it has created a new right, apparently of constitutional dimension, for non-custodial parents to receive notice of their minor children’s activities; and
(5) its upholding of the 48-hour waiting period is contrary to nearly every other court decision on this issue.
It is important to recognize the limited issue before this court: may a state constitutionally enact a statute that requires a *1467minor to notify both parents before she may obtain an abortion, even though one parent may have deserted her or has no custodial rights over her. The majority spends most of its discussion reciting the reasoning of cases in which the Supreme Court examined the facial constitutionality of various parental consent or notification statutes.2 Its discussion, however, avoids the fundamental issue of this case, which is the effects of the application in Minnesota of the two-parent notice rule. Minnesota is the only state in the union that requires two-parent notification without exception for divorce, separation, or other comparable situations. A statute of this type has never been reviewed by the Supreme Court.
Our duty therefore should be to examine the two-parent notification requirement to determine whether the statute “plainly serves important state interests [and] is narrowly drawn to protect only those interests * * *.” H.L. v. Matheson, 450 U.S. 398, 413, 101 S.Ct. 1164, 1173, 67 L.Ed.2d 388 (1981). The state bears the burden to show that the statute is tailored to achieve a significant state policy. The district court found as a matter of fact that the statute not only fails to serve the state’s asserted interests, but that it actually undermines those interests. Hodgson v. Minnesota, 648 F.Supp. 756, 768 (D.Minn.1986).
The majority simply ignores the district court’s factual findings. I respectfully submit that in doing so it abdicates its judicial responsibility. Judge Gibson, writing for the majority, states: “[T]he district court’s detailed factual findings * * * raise considerable questions about the practical wisdom of this statute. Nevertheless, we believe these are questions for the legislature.” At 1459. Thus, and because it never directly states that the district court's factual findings are clearly erroneous, the majority rejects the established principle that states must demonstrate that their infringements of constitutional rights are closely related to achieving important interests. Nowhere does the majority point to evidence offered by the state to show the relationship between the ends sought and the means utilized. Instead, the majority apparently relies on two factors to support its cavalier treatment of the district court’s factual findings.
The first factor relied upon is “the pages of experience teaching that parents generally do act in their child’s best interests.” At 1464. The second basis for the majority’s action is its misplaced theory that the Supreme Court has decided as a matter of law “that a notice-consent/bypass procedure plainly serves important state interests and is narrowly drawn to protect only those interests.” At 1464. Neither of these assertions can justify the result today.
Our societal presumption that parents generally act in their children’s best interests is not at issue here. The relevant question is whether requiring two-parent notification without exception for cases of divorce, separation, desertion, or other comparable familial situations imposes undue burdens on the minor’s exercise of her constitutional rights. Plaintiffs introduced largely unrebutted factual evidence that persuaded the district court that the requirement is unduly burdensome. We cannot ignore this evidence based on an irrelevant societal presumption. Cf Bikel, Judicial Determination of Questions of Fact Affecting the Constitutional Validity of Legislative Action, 38 Harv.L.Rev. 6, 6 (1924):
[N]o court can undertake to decide upon the validity of legislation * * * [without] first be[ing] informed as to the truth of some question of fact which the statute postulates or with reference to which it *1468is to be applied; and the validity of the legislation depends on the conclusions reached by the court with reference to this question of fact.
Similarly, the majority’s theory that the Supreme Court has held that all notice/bypass procedures are constitutional as a matter of law is insupportable. The Court has never examined the validity of a statute like Minnesota’s; the statute is unparalleled in this country. Furthermore, the Court has never examined a notification requirement in operation, because all of the cases in which it examined such statutes involved facial challenges. It is impossible for the Court to have declared as a matter of law that all notice/bypass procedures are “narrowly drawn to protect only [important state] interests” when the statutory provisions can contain as many variations as there are statutes.
The majority reasons that although the two-parent notification requirement imposes a burden on the minor, this burden is negated by the judicial bypass provision. This analysis is egregiously wrong. The mere presence of an alternative bypass procedure cannot salvage the two-parent notification requirement.
The majority’s analysis fails to recognize that a judicial bypass procedure has been required not for the purpose of making an unconstitutional notice provision constitutional, but because even a valid notice requirement may be imposed only on minors who are immature or whose best interests would not be served by making the abortion decision without parental involvement. See City of Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 427-28 n. 10, 103 S.Ct. 2481, 2490-92 n. 10, 76 L.Ed.2d 687 (1983); Bellotti v. Baird, 443 U.S. 622, 647-48, 99 S.Ct. 3035, 3050-51, 61 L.Ed.2d 797 (1979) (plurality) (Bellotti II). There is an entire class — immature, non-best interests minors — that can never use the judicial bypass procedure. The court therefore must examine the notification requirement in isolation because as to these minors there is absolutely no alternative to parental notification, even with the statutory provision of a bypass procedure.
The second reason the bypass provision does not purge the statute of its unconstitutionality has to do with the combined effect of requiring either two-parent notification or submission to a judicial procedure. As the district court found:
Twenty to twenty-five percent of the minors who go to court either are accompanied by one parent who knows and consents to the abortion or have already told one parent of their intent to terminate their pregnancy. The vast majority of these voluntarily informed parents are women who are divorced or separated from spouses whom they have not seen in years. Going to court to avoid notifying the other parent burdens the privacy of both the minor and the accompanying parent. The custodial parents are angry that their consent is not sufficient and fear that notification will bring the absent parent back into the family in an intrusive and abusive way.
Minors who ordinarily would notify one parent may be dissuaded from doing so by the two-parent requirement. A minor who must go to court for authorization in any event may elect not to tell either parent. In these instances, the requirement that minors notify both biological parents actually reduces parent-child communication.
648 F.Supp. at 769. Thus, a two-parent notification requirement, combined with the alternative bypass provision, actually reduces parent-child communications. The combination also completely negates the interest of certain minors — those twenty to twenty-five percent who go to court accompanied by a parent — in avoiding disclosure of personal matters. See Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977) (right of privacy protects interest in avoiding disclosure of personal matters as well as interest in independent decisionmaking). These minors voluntarily inform one parent of their intent to obtain an abortion; the district court found that these parents generally are divorced or separated. Yet these minors must still go through the burdensome court procedure and the public disclosure of intensely per*1469sonal facts that the procedure entails.3 Coercing public disclosure when one divorced or separated parent has already been informed of the minor’s decision cannot serve any significant state interest; if it does, the state did not offer any persuasive proof of that fact.
Finally, if courts do not separately examine the notification portions of these statutes, states could formulate irrational and burdensome requirements, all in the guise of protecting “family integrity.” Suppose, for instance, that in addition to. requiring parental notification, a state required notice to all living grandparents. Based on the majority’s reasoning, this requirement, although perhaps burdensome to some minors, would be constitutional as long as combined with an alternative expeditious and confidential bypass procedure. Yet at some point a state’s notification requirements could become so burdensome as to force all minors to go to court. As the state conceded at oral argument, however, a bypass provision could not pass constitutional scrutiny by itself. Moreover, the majority acknowledges that “[t]he circumstances relevant to the abortion decision by a minor can and do vary so substantially that absolute rules * * * would create an inflexibility that often would allow for no consideration of the rights and interests [we have] identified.” Matheson, 450 U.S. at 420,101 S.Ct. at 1177 (Powell, J., concurring), quoted at 1461. To avoid these types of absolute rules, states must provide alternatives for the minor, none of which can be so burdensome as to amount to a denial of constitutional rights. If one “alternative” is unconstitutional, minors effectively are governed by absolute rules. Courts therefore must examine each of the alternatives the states devise. The majority’s failure to recognize or accept this principle is inexplicable.
An equally inexplicable thread running through the court’s opinion is its solicitous concern for the rights of non-custodial parents.4 The court’s emphasis on the interest of non-custodial parents in being informed of their minor children’s activities elevates that interest so as to outweigh the recognized constitutional rights of minors. It does so based on a misunderstanding of the reasons the Supreme Court has approved of parental notification laws and of the nature of child custody laws.
The Supreme Court has never declared that parents (much less non-custodial parents) have an absolute, independent right to be informed when their minor children seek to have an abortion. Rather, the Court has approved of such requirements primarily as a means of furthering the state’s interest in protecting the minor by assuring that she makes a well-informed decision. See, e.g., City of Akron, 462 U.S. at 439, 103 S.Ct. at 2497 (“In [Bellotti II,] a majority of the Court indicated that a State’s interest in protecting immature minors will sustain a requirement of a consent substitute, either parental or judicial.”) (emphasis added); Matheson, 450 *1470U.S. at 412, 101 S.Ct. at 1172 (“The [parental notification] statute is reasonably calculated to •protect minors * * * by enhancing the potential for parental consultation concerning a decision that has potentially traumatic and permanent consequences.”) (emphasis added); id. at 419, 101 S.Ct. at 1176 (“The State * * * has an interest in fostering such consultation as will assist the minor in making her decision as wisely as possible.”) (Powell, J., concurring); Bellotti II, 443 U.S. at 638, 99 S.Ct. at 3045 (“Legal restrictions on minors, especially those supportive of the parental role, may be important to the child’s chances for the full growth and maturity that make eventual participation in a free society meaningful and rewarding.”) (plurality) (emphasis added; footnote omitted).5
There is more than a little irony in the majority’s assumption that the state promotes “family integrity” by forcing minor children to locate and inform non-custodial parents of this decision. Approximately 42% of all minors in Minnesota do not live with both biological parents. Hodgson, 648 F.Supp. at 768. For all of these minors, the “family” does not consist of the traditionally accepted unit, because of voluntary relinquishment of parental control, legal separation of parent and child, or other reasons. Yet the state of Minnesota de-dares that in this one instance only (a suspect indication in itself) the “family” must conform to state-mandated principles of what a family should be like.6 Far from promoting the integrity and independence of the family unit, the state is interfering in familial communications in a way that would be unimaginable in any other context. To justify this interference based on the purported rights of non-custodial parents is specious.
I turn now to the majority’s upholding of the 48-hour delay rule. The majority’s conclusion that the delay requirement is constitutional is based not upon logical analysis, but rather upon three assertions:
(1) prolonged delay due to the inaccessibility of abortions in Minnesota is irrelevant;
(2) the 48-hour delay requirement may run concurrently with the scheduling of the appointment to perform an abortion; and
(3) the delay results only when the minor actually complies with the notification requirement rather than using the bypass procedure.
At 1465.
The first assertion ignores the reasoning of many courts that have considered other factors peculiar to the region in assessing the constitutionality of waiting periods.7 *1471The second assertion ignores the possibility that abortion providers could schedule abortions for minors far more quickly absent the delay requirement. The court’s final assertion — that there is no delay if the minor uses the bypass procedure — is utterly irrelevant to the issue at hand: whether a 48-hour waiting period, applied to those minors who choose to notify their parents of their decision, imposes an undue burden on the minor’s exercise of her constitutional rights.
What is most astonishing about the court’s discussion of this issue is its complete disregard of pertinent precedent both in this court and the Supreme Court. Specifically, in City of Akron the Supreme Court invalidated a 24-hour waiting period imposed after a woman gave her consent to the abortion and, if a minor, obtained the requisite parental consent. City of Akron, 462 U.S. at 451, 103 S.Ct. at 2503.8 The Court gave no indication that the statute’s waiting period would be constitutional as applied to a minor. Similarly, this court has held a 48-hour waiting period applicable to all women unconstitutional, a holding that the state of Missouri did not appeal. Planned Parenthood Ass’n of Kansas City v. Ashcroft, 655 F.2d 848, 866 (8th Cir.1981), aff'd in part and rev’d in part on other grounds, 462 U.S. 476, 103 S.Ct. 2517, 76 L.Ed.2d 733 (1983). Although these cases did not address the precise statute at issue here, the court fails to explain why their principles should not be controlling here. Cf. Indiana Planned Parenthood Affiliates Ass’n, Inc. v. Pearson, 716 F.2d 1127, 1143 (7th Cir.1983) (“[T]he same objections to the waiting periods for adults listed in City of Akron apply to waiting periods for minors.”).
As long as the Constitution protects the right of a woman to choose to have an abortion, we are under a judicial mandate to evaluate state regulations in terms of whether they impose undue burdens on the exercise of that right. The majority opinion slights this mandate. Here, in dealing with minors, the court should also consider whether the state’s interest in protecting minors is furthered by the state regulation. The majority slights this concern as well. The majority has proffered no analysis of whether these interests have been served by the two-parent notification rule. The district court’s findings remain unrebutted. *1472The judgment of the district court should be affirmed.
. I concur in section IA. of the majority’s opinion, which holds that Minn.Stat. § 144.343(2) is unconstitutional because Minnesota may not require a minor to notify her parents of her intent to have an abortion without providing an alternative court procedure. See Bellotti v. Baird, 443 U.S. 622, 647, 99 S.Ct. 3035, 3050, 61 L.Ed. 2d 797 (1979) (Bellotti II).
The Honorable Max Rosenn, Senior United States Circuit Judge for the Third Circuit Court of Appeals, sitting by designation.
. On cross-appeal plaintiffs urge that as applied the notice/bypass statute as a whole imposes an unconstitutional burden on minors seeking abortions. They challenge the relevance of the Supreme Court’s holdings in H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981), and Bellotti II, which involved facial attacks on parental consent or notification statutes. But in the interest of judicial restraint the dissent does not need to discuss this issue. It is far better that the Supreme Court make that determination in light of the record. We need to focus only on the two-parent notice Minnesota statute before us.
. The district court found:
The experience of going to court for a judicial authorization produces fear and tension in many minors. Minors are apprehensive about the prospect of facing an authority figure who holds in his hands the power to veto their decision to proceed without notifying one or both parents. Many minors are angry and resentful at being required to justify their decision before complete strangers. Despite the confidentiality of the proceeding, many minors resent having to reveal intimate details of their personal and family lives to these strangers. Finally, minors are left feeling guilty and ashamed about their lifestyle and their decision to terminate their pregnancy. Some mature minors and some minors in whose best interests it is to proceed without notifying their parents are so daunted by the judicial proceeding that they forego the bypass option and either notify their parents or carry to term.
Some minors are so upset by the bypass proceeding that they consider it more difficult than the medical procedure itself. Indeed, the anxiety resulting from the bypass proceeding may linger until the time of the medical procedure and thus render the latter more difficult than necessary.
648 F.Supp. at 763.
. See, e.g., at 1463 (“The Supreme Court has never indicated that [the interests of parents in the rearing and welfare of their childrenj are contingent upon the parent having custody of the child."); id. at 1464 (“[T]he principles enunciated by the Supreme Court as to the parental role [apply] to non-custodial parents as well as custodial parents.”).
. In equating the rights of non-custodial parents with those of custodial parents, the majority ignores basic principles of child custody law. The fact is that the legal rights of non-custodial parents are indeed inferior to those of custodial parents:
[T]he parent with "legal custody” has the right to make decisions about the child’s education, religious training, residence, and medical treatment. Generally, this parent also has "physical” or "actual” custody which entitles her to control the child’s daily activities such as sleeping, eating, and recreation. The rights and obligations of the non-custodial parent are a good deal more limited. Typically, that parent loses all power with respect to major decisions.
Wexler, Rethinking the Modification of Child Custody Decrees, 94 Yale L.J. 757, 808 (1985) (emphasis added; footnote omitted).
. The Supreme Court itself has recognized that concerns for the integrity of the family may be far different when that family no longer conforms to the customary structure. See Bellotti II, 443 U.S. at 649, 99 S.Ct. at 3051 ("At least when the parents are together and the pregnant minor is living at home, both the father and the mother have an interest — one normally supportive — in helping to determine the course that is in the best interests of a daughter.”) (plurality) (emphasis added).
.The Seventh Circuit recently summarized this reasoning:
These cases hold that a waiting period places a direct and substantial burden on women who seek to obtain an abortion. This burden is the same for minors as for adults, Bellotti II, 443 U.S. at 642, 99 S.Ct. at 3047; Charles v. Carey, 627 F.2d [772, 785 (7th Cir.1980) ], and therefore "the same objections to the waiting periods for adults listed in City of Akron apply to waiting periods for minors.” [Indiana Planned Parenthood v.J Pearson, 716 F.2d [1127, 1143 (7th Cir.1983) ]. The burden imposed by a waiting period has been reiterated with little variation in these cases. The District Court of Rhode Island cogently discussed several factors which it considered part of this burden in Women’s Medical Cen*1471ter of Providence, Inc. v. Roberts, [530 F.Supp. 1136 (D.R.I.1982)], stating
Although a mere twenty-four hour delay by itself may not increase the risk of an abortion to a statistically significant degree, the record in this litigation shows that the mandatory wait may combine with other scheduling factors such as doctor availability, work commitments, or sick leave availability, to increase the actual waiting period to a week or more.... [I]t is uncontested that delays of a week or more do indeed increase the risk of abortion to a statistically significant de-gree_ Furthermore, a delay of even twenty-four hours may push a woman into the second trimester, thus requiring that the operation be performed in a hospital, and significantly increasing the procedure’s cost, inconvenience, and, of course, risk. 530 F.Supp. at 1146.
Courts have also noted that difficulties in scheduling may be complicated by the distance which a woman may have to travel in order to obtain an abortion. An extreme example of this was before the District Court of North Dakota in Leigh v. Olson, [497 F.Supp. 1340 (D.N.D.1980) ], in which the district court found that only one doctor in the entire state performed abortions and that women in certain parts of the state would have to drive some 400 miles in order to obtain an abortion. 497 F.Supp. at 1347. Finally, the cases cited above have noted that a waiting period may result in additional mental anguish for a significant number of women seeking abortions. See, e.g., [id.] at 1347 n. 8 and accompanying text.
Zbaraz v. Hartigan, 763 F.2d 1532, 1537 (7th Cir.1985) (footnote omitted), aff'd per curiam by an equally divided court, — U.S. -, 108 S.Ct. 479, 98 L.Ed.2d 478 (1987). The Zbaraz court also listed the "plethora" of cases striking down waiting periods. Id. at 1536.
. The ordinance at issue in City of Akron provided:
"No physician shall perform or induce an abortion upon a pregnant woman until twenty-four (24) hours have elapsed from the time the pregnant woman, and one of her parents or her legal guardian whose consent is required in accordance with Section 1870.05(B) of this Chapter, have signed the consent form required by Section 1870.06 of this Chapter, and the physician so certifies in writing that such time has elapsed.”
Id. at 424 n. 6, 103 S.Ct. at 2489 n. 6 (emphasis added).