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Bellotti v. Baird (1979)

In Depth


The background of this case-a challenge to the Massachusetts statute requiring that a minor obtain the consent of her parents prior to obtaining an abortion, subject to a judicial bypass procedure-is set forth in the Supreme Court's first opinion in the litigation, Bellotti v. Baird, 428 U.S. 132 (1976).  For a review of the underlying litigation, please see the summary for that case.

Following the Massachusetts Supreme Judicial Court's answers to a series of nine questions certified by the federal district court after the case had been remanded to the district court, see Baird v. Attorney General, 360 N.E.2d 288 (Mass. 1977), the district court again declared the parental consent statute unconstitutional.  The Commonwealth appealed to the Supreme Court.

The Statute Under Review

The challenged statute provided:

If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents [to an abortion to be performed on the mother] is required.  If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior court for good cause shown, after a hearing as he deems necessary.  Such a hearing will not require the appointment of a guardian for the mother.  If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient.  If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient.  The commissioner of public health shall prescribe a written form for such consent.  Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files.

Mass. Gen. Laws Ann. ch. 112, § 12S.

The Court's Decision

By an eight-to-one vote, the Supreme Court struck down the two-parent notice requirement and judicial bypass procedure, as interpreted by the Massachusetts Supreme Judicial Court, and affirmed the judgment of the district court.

The Court's Reasoning

No opinion commanded a majority of the justices.  Justice Powell wrote a plurality opinion for himself and three other justices.  Justice Rehnquist, who concurred in Justice Powell's opinion, wrote a short separate opinion.  Justice Stevens, joined by Justices Brennan, Marshall and Blackmun, concurred in the judgment striking down the statute, and Justice White dissented.  Although Justice Powell's opinion was joined by only three other justices, it has been regarded in later Supreme Court decisions as the controlling authority on the requirements parental consent statutes must satisfy in order to meet federal constitutional standards.

Justice Powell acknowledged that "[a] child, merely on account of his minority, is not beyond the protection of the Constitution."  Bellotti, 443 U.S. at 633 (Op..of Powell, J.).  Nevertheless, the Court has 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."  Id. at 634.  After explaining these reasons, Justice Powell turned to the issue of abortion.  Unlike other decisions a minor might want to make that require parental consent (e.g., marrying or joining the military), which can be postponed until the minor reaches her majority, a decision to carry her child to term or to terminate her pregnancy cannot be postponed.  Id. at 642.  And either decision the minor makes may have serious and far-reaching consequences.  Id. at 642-43.  Accordingly, "if the State decides to require a pregnant minor to obtain one or both parents' consent to an abortion, it also must provide an alternative procedure whereby authorization for the abortion can be obtained." Id. at 643.  In the key passage from his plurality opinion, Justice Powell set forth what that procedure must entail:

A pregnant minor is entitled in such a proceedings to show either: (1) that she is mature enough and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests.  The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be maintained.

Bellotti, 443 U.S. at 644 (Op. of Powell, J.).  Justice Powell emphasized that under a parental consent statute, "every minor must have the opportunity-if she so desires-to go directly to a court without first consulting or notifying her parents."  Id. at 647.

If she satisfies the court that she is mature enough and well enough informed to make intelligently the abortion decision on her own, the court must authorize her to act without parental consultation or consent.  If she fails to satisfy the court that she is competent to make this decision independently, she must be permitted to show that an abortion nevertheless would be in her best interests.  If the court is persuaded that it is, the court must authorize the abortion.  If, however, the court is not persuaded by the minor that she is mature or that the abortion would be in her best interests, it may decline to sanction the operation.

Bellotti, 443 U.S. at 647-48 (Op. of Powell, J.).

Justice Powell determined that the Massachusetts parental consent statute, as authoritatively construed by the Massachusetts Supreme Judicial Court, was deficient in two respects; First, "it permits judicial authorization for an abortion to be withheld from a minor who is found by the superior court to be mature and fully competent to make this decision independently," and, second, "it requires parental consultation or notification in every instance, without affording the pregnant minor an opportunity to receive an independent judicial determination that she is mature enough to consent or that an abortion would be in her best interests."  Bellotti, 443 U.S. at 651 (Op. of Powell, J.).  Because a majority of the Court concluded that the parental consent statute, as construed, was unconstitutional, the judgment of the district court striking it down was affirmed.  Id.

The Concurring And Dissenting Opinions

Justice Rehnquist joined Justice Powell's plurality opinion, but wrote separately to emphasize the need for the Court to provide guidance to state legislatures in drafting parental consent statutes.  Bellotti, 443 U.S. at 651-52 (Rehnquist, J., concurring).

Justice Stevens, joined by Justices Brennan, Marshall and Blackmun, concurred in the judgment striking down the statute, as construed, but on different grounds.  In Justice Stevens' view, a parental consent statute with a judicial bypass procedure was no less burdensome, and perhaps more so, than a parental consent statute without a bypass procedure. Bellotti, 443 U.S. at 654-56 (Stevens, J., concurring in the judgment).  Because the State may not require the former, see Planned Parenthood of Central Missouri v. Danforth, 428 U.S. 52, 72-75 (1976), it may not require the latter, either. Bellotti, 443 U.S. at 654-56 (Stevens, J., concurring in the judgment) (for an analysis of the constitutional issue decided in Danforth, please see the summary for that case)..

Justice White dissented, arguing that a parental consent statute without a judicial bypass procedure is not unconstitutional and that, even if such a procedure is constitutionally required, the Massachusetts statute, as interpreted by the Massachusetts Supreme Judicial Court, passes muster because it allows a judge to authorize an abortion for a minor "if he concludes that an abortion is in the best interests of the child." Bellotti, 443 U.S. at 657 (White, J., dissenting).

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