H. L. v. Matheson, 450 U.S. 398 (1981)

JUSTICE POWELL, with whom JUSTICE STEWART joins, concurring.

I

This case requires the Court to consider again the divisive questions raised by a state statute intended to encourage parental involvement in the decision of a pregnant minor to have an abortion. See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52 (1976); Bellotti v. Baird, 443 U.S. 622 (1979) (Bellotti II). I agree with the Court that Utah Code Ann. § 76-7-304(2) (1978) does not unconstitutionally burden this appellant’s right to an abortion. I join the opinion of the Court on the understanding that it leaves open the question whether § 76-7-304(2) unconstitutionally burdens the right of a mature minor or a minor whose best interests would not be served by parental notification. See ante at 412, n. 22. I write to make clear that I continue to entertain the views on this question stated in my opinion in Bellotti II.Seen. 8, infra.

II

Section 76-7-304(2) requires that a physician "[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor."{1} Appellant attacks this notice requirement on the ground that it burdens the right of a minor who is emancipated, or who is mature enough to make the abortion decision independently of parental involvement, or whose parents will react obstructively upon notice. See ante at 405. The threshold question, as the Court’s opinion notes, is whether appellant has standing to make such a challenge. Standing depends initially on what the complaint alleges, Warth v. Seldin, 422 U.S. 490, 498, 501 (1975), as courts have the power "only to redress or otherwise to protect against injury to the complaining party."Id. at 499. The complaint in this case was carefully drawn. Appellant’s allegations about herself and her familial situation are few and laconic. She alleged that she did "not wish to inform her parents of her condition, and believe[d] that it [was] in her best interest that her parents not be informed of her condition." Complaint ¶ 6. She also alleged that she understood "what is involved in her decision," ¶ 9, and that the physician she consulted had told her that "he could not and would not perform an abortion upon her without informing her parents prior to aborting her." ¶ 7.

Appellant was 15 years of age, and lived at home with her parents when she filed her complaint. She did not claim to be mature, and made no allegations with respect to her relationship with her parents. She did not aver that they would be obstructive if notified, or advance any other reason why notice to her parents would not be in her best interest. Similarly, the complaint contains no allegation that the physician -- while apparently willing to perform the abortion -- believed that notifying her parents would have adverse consequences. In fact, nothing in the record shows that the physician had any information about appellant’s parents or familial situation, or even that he had examined appellant.

A

This case does not come to us on the allegations of the complaint alone. An evidentiary hearing occurred after the trial court had denied appellant’s motion for a preliminary injunction. Appellant was the only witness, and her testimony -- and statements by her counsel -- make clear beyond any question that the "bare bones" averments of the complaint were deliberate, and that appellant is arguing that a mere notice requirement is invalid per se, without regard to the minor’s age, whether she is emancipated, whether her parents are likely to be obstructive, or whether there is some health or other reason why notification would not be in the minor’s best interests.

On direct examination, appellant merely verified the allegations of her complaint by affirming each allegation as paraphrased for her by her lawyer in a series of leading questions.{2} Her testimony on cross-examination added nothing to the complaint.{3} In addition, appellant’s lawyer insistently objected to all questions by counsel for the State as to the appellant’s reasons for not wishing to notify her parents.{4} The trial court, on its own initiative, pressed unsuccessfully to elicit some reasons, inquiring how it could "find out the validity of [appellant’s] reasons without [the State’s lawyer] being permitted to cross-examine her." Tr. 9. Appellant’s lawyer replied:

It is our position [c]onstitutionally that she has the right to make [the abortion] decision and if she has consulted with a counselor and the counselor concurs that those are valid reasons, why then --

* * * *

In terms of going beyond [the complaint allegations], our point is that the specifics of the reasons are really irrelevant to the [c]onstitutional issue.

Id. at 9-10 (emphasis supplied). When appellant’s lawyer insisted that the facts with respect to this particular minor were irrelevant, the trial court sustained the validity of the statute.{5}

In sum, and as the Court’s opinion emphasizes, appellant alleges nothing more than that she desires an abortion, that she has decided -- for reasons which she declined to reveal -- that it is in her best interest not to notify her parents, and that a physician would be willing to perform the abortion if notice were not required. Although the trial court did not rule in terms of standing, it is clear that these bald allegations do not confer standing to claim that § 76-7-304(2) unconstitutionally burdens the right either of a mature minor or of a minor whose best interests would not be served by parental notification.{6} They confer standing only to claim that § 767-304(2) is an unconstitutional burden upon an unemancipated minor who desires an abortion without parental notification, but also desires not to explain to anyone her reasons either for wanting the abortion or for not wanting to notify her parents.{7}

B

On the facts of this case, I agree with the Court that § 767-304(2) is not an unconstitutional burden on appellant’s right to an abortion. Numerous and significant interests compete when a minor decides whether or not to abort her pregnancy. The right to make that decision may not be unconstitutionally burdened. Roe v. Wade, 410 U.S. 113, 154 (1973); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. at 74-75. In addition, the minor has an interest in effectuating her decision to abort, if that is the decision she makes. Id. at 75; Bellotti II, 443 U.S. at 647. The State, aside from the interest it has in encouraging childbirth, rather than abortion, cf. Maher v. Roe, 432 U.S. 464 (1977); Harris v. McRae, 448 U.S. 297 (1980), has an interest in fostering such consultation as will assist the minor in making her decision as wisely as possible. Planned Parenthood of Central Mo. v. Danforth, supra at 91 (STEWART, J., concurring); post at 422-423 (STEVENS, J., concurring in judgment). The State also may have an interest in the family itself, the institution through 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 (1977). Parents have a traditional and substantial interest in, as well as a responsibility for, the rearing and welfare of their children, especially during immature years. Bellotti II, supra at 637-639.

None of these interests is absolute. Even an adult woman’s right to an abortion is not unqualified. Roe v. Wade, supra, at 154. Particularly when a minor becomes pregnant and considers an abortion, the relevant circumstances may vary widely depending upon her age, maturity, mental and physical condition, the stability of her home if she is not emancipated, her relationship with her parents, and the like. If we were to accept appellant’s claim that § 77-304(2) is per se an invalid burden on the asserted right of a minor to make the abortion decision, the circumstances which normally are relevant would -- as her counsel insisted -- be immaterial. Supra at 417. The Court would have to decide that the minor’s wishes are virtually absolute. To be sure, our cases have emphasized the necessity to consult a physician. But we have never held with respect to a minor that the opinion of a single physician as to the need or desirability of an abortion outweighs all state and parental interests.{8}

In sum, a State may not validly require notice to parents in all cases, without providing an independent decisionmaker to whom a pregnant minor can have recourse if she believes that she is mature enough to make the abortion decision independently or that notification otherwise would not be in her best interests. My opinion in Bellotti II, joined by three other Justices, stated at some length the reasons why such a decisionmaker is needed. Bellotti II, supra at 642-648.{9} The circumstances relevant to the abortion decision by a minor can and do vary so substantially that absolute rules -- requiring parental notice in all cases or in none{10} -- would create an inflexibility that often would allow for no consideration of the rights and interests identified above. Our cases have never gone to this extreme, and, in my view, should not.

1. Section 76-7-304 is quoted in full in the Court’s opinion. Ante at 400.

2. Appellant’s testimony on direct examination is quoted in full in the Court’s opinion. Ante at 402-403, n. 6.

3. Appellant’s testimony on cross-examination is quoted in full in the Court’s opinion. Ante at 403, n. 7.

4. After his direct examination of appellant and the State’s brief cross-examination, appellant’s lawyer insisted repeatedly during subsequent argument that "there is no relevancy to any other facts," Tr. 17; that "the particular facts that come before a [minor’s doctor], are irrelevant," id. at 18; and that "[t]he specific facts of any individual case, no matter how ridiculous they are or how strong or weak they are, really become irrelevant," ibid. In summarizing his position, appellant’s lawyer stated:

Our position is that it is the doctor/patient relationship that is the key. If the doctor determines he should go ahead with the patient, then he should. The specific facts in any case, whether [the doctor] is wrong or right, are [c]onstitutionally protected to make that decision and go ahead and act on it. This is why I say it is irrelevant.

Ibid.

5. At the end of the evidentiary hearing, appellant’s lawyer framed the trial court’s ruling as follows:

If your ruling is that "if possible" [as used in the statute means "physically possible"], and there are no circumstances whatever that justify the violation of the statute, then the issue is closed.

Id. at 19.

6. Because this case is a class action, it might be presumed that other members could raise the question whether a pregnant minor has a right to abortion, without parental notice, upon a showing that she is mature or that her parents will interfere with her abortion. But the record in this case contains no facts to support a presumption that the class includes such members. The only complaint allegations about the class are that appellant’s claims "are typical of the claims of all members of the class," and that the class consists of

minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so inasmuch as their physicians will not perform an abortion upon them without compliance with the provisions of Section 77-304(2).

Complaint ¶ 10. Thus, the record supports only the conclusion that the class consists entirely of pregnant minors who assert the identical claim that appellant presents: a constitutional right to an abortion without notifying their parents, and without claiming to be mature or that notification would not be in their best interest. In short, the class members -- like appellant -- assert an absolute right to make this decision themselves, independently of everyone except a physician.

7. The trial court entered findings of fact and conclusions of law after the evidentiary hearing. Paragraph 7 of the trial court’s findings reads:

The plaintiff consulted with a counselor to assist her in deciding whether or not she should terminate her pregnancy. She determined, after consultation with her counselor, that she should secure an abortion, but was advised when consulting her physician that, under the provisions of Section 76-7-304(2), Utah Code Annotated, 1953, that he believed along with her that she should be aborted and that he felt it was in her best medical interest to do so, but he could not and would not perform an abortion upon her without informing her parents prior to aborting her, because it was required of him by that statute and he was unwilling to perform an abortion upon her without complying with the provisions of the statute even though he believed it was best to do so.

Civil No. C-78-2719 (Dec. 26, 1978).

Precisely what this paragraph finds is ambiguous. At the least, it finds that appellant "consulted" a physician, and that the physician agreed with appellant that an abortion would be in appellant’s best medical interest. The final portion of the finding -- "he was unwilling to perform an abortion upon her without complying with the provisions of the statute even though he believed it was best to do so" -- could be rend to find that the physician also agreed with appellant that "it was best" to "perform an abortion upon her without complying with the provisio[n] " requiring parental notice. Or, the final portion could be read to find only that the physician would not perform an abortion without complying with the statute, even though he believed that "it was best" to abort appellant’s pregnancy. In light of appellant’s limited allegations and testimony, and the legal argument of her lawyer, the trial court’s finding cannot be read as saying that the physician determined that appellant’s parents would react hostilely or obstructively to notice of appellant’s abortion decision.

8. While the medical judgment of a physician, of course, is to be respected, there is no reason to believe as a general proposition that even the most conscientious physician’s interest in the overall welfare of a minor can be equated with that of most parents. Moreover, abortion clinics, now readily available in most urban communities, may be operated on a commercial basis where abortions often may be obtained "on demand." See Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 91-92, n. 2 (1976) (STEWART, J., concurring); Bellotti II, 443 U.S. at 641, n. 21.

9. Although Bellotti II involved a statute requiring parental consent, the rationale of the plurality opinion with respect to this need is applicable here.

10. The dissenting opinion of JUSTICE MARSHALL, which would hold the Utah statute invalid on its face, elevates the decision of the minor and her physician to an absolute status ignoring state and parental interests.