Bellotti v. Baird (1979)
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
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
Mass. Gen. Laws Ann. ch. 112, §
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
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
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.
The Concurring And Dissenting
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.,