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Hodgson v. Minnesota (1990)

In Depth


In 1981, Minnesota enacted a parental notice statute as an amendment to the Minors' Consent to Health Services Act (the Act).  Minn. Stat. §§ 144.343, 144.346.  Under the amendment, the Act provided, with certain exceptions described below, that no abortion shall be performed on a woman under 18 years of age until at least forty-eight hours after both of her parents have been notified of her intention to obtain an abortion. Another section of the same amendment provided that if a court enjoined the enforcement of the notice requirement, the same requirement shall be effective unless the pregnant woman obtains a court order in a judicial bypass hearing permitting the abortion to proceed.

Shortly before the amendment's effective date, plaintiffs, two physicians who perform abortions, four abortion clinics, six pregnant minors representing a class of pregnant minors and the mother of a pregnant minor, filed a lawsuit in federal district court against defendants, the State of Minnesota and officials charged with enforcing the Act, as amended, alleging that the amendment was unconstitutional.  The two-parent notice requirement without judicial bypass was enjoined throughout the course of the litigation and never went into effect.  The two-parent notice requirement with judicial bypass, however, was allowed to go into effect while its constitutionality was being litigated.  After a five-week trial, the district court, in 1986, declared the entire statute unconstitutional and enjoined its enforcement.  On appeal, a three-judge panel of the court of appeals affirmed.  The panel decision was thereafter vacated and the case was reheard by the entire court of appeals.  The court unanimously held that the two-parent notice requirement without the judicial bypass was unconstitutional.  By a divided vote, however, the court of appeals held that the requirement of two-parent notice with the judicial bypass was constitutional.  The Supreme Court granted both plaintiffs' and defendants' petitions for review

The Statutes Under Review

The 1981 amendment to the Minors' Consent to Health Services Act qualifies the authority of an "unemancipated minor" to give effective consent to an abortion by requiring that either her physician or the physician's agent notify "the parent" personally or by certified mail at least forty-eight hours before the procedure is performed.  Minn. Stat. § 144.343(2).  The term "parent" is defined to mean "both parents of the pregnant woman if they are both living."  Id. § 144.342(3).  No exception is made for a divorced parent, a noncustodial parent or a biological parent who never married or lived with the pregnant woman's mother.  The statute provided, however, that if only one parent is living, or "if the second one cannot be located through reasonably diligent effort," notice to one parent is sufficient.  Id.  It also makes exceptions for cases in which emergency treatment prior to notice "is necessary to prevent the woman's death," both parents have already given their consent in writing the proper authorities have been advised that the minor is a victim of sexual or physical abuse.  Id. § 144.343(4).  A person who violates the statute is subject to criminal prosecution and civil liability. Id. § 144.343(5).

Subdivision 6 of the amended statute authorizes a judicial bypass of the two-parent notice requirement if subdivision 2-requiring notice to both of the minor's parents-is ever "temporarily or permanently" enjoined by judicial order.  Minn. Stat. § 144.342(6).  If the pregnant minor can convince "any judge of a court of competent jurisdiction" that she is "mature and capable of giving informed consent to the proposed abortion," or that an abortion without notice to both parents would be in her best interests, the court can authorize the physician to proceed without notice.  Id.  The statute provides that the bypass procedure shall be confidential, that it shall be expedited, that the minor has a right to court-appointed counsel and that she shall be afforded free access to the court "24 hours a day, seven days a week."  Id.  An order denying an abortion can be appealed on an expedited basis, but an order authorizing an abortion without notification is not subject to appeal. Id.

The Court's Decision

By a five-to-four vote, the Supreme Court struck down the two-parent notice requirement, but, by a differently constituted majority of five-to-four, the Court upheld the two-parent notice requirement subject to the judicial bypass.

The Court's Reasoning

Justice Stevens wrote the principal opinion in Hodgson, but, while sections of his opinion commanded a majority of the Court (Parts I, II, IV and VII), several sections attracted the vote of only one other justice (Parts III, V and VI) and one section (Part VIII) was a dissent.  In Parts I and II, Justice Stevens described the statute and the proceedings in the lower courts (which is summarized above).  In Part III, he sketched the general principles applicable to the regulation of abortion.  And in Part IV, he summarized the evidence presented to the district court on what was the impact of the two-parent notice requirement (with judicial bypass) on pregnant minors seeking abortions in Minnesota.  Parts V, VI, VII and VIII of his opinion are discussed below.

In Part V of his opinion, which only Justice O'Connor joined, Justice Stevens identified three separate but related interests relevant to the Court's consideration of the constitutionality of the forty-eight hour waiting period and the two-parent notification requirement:  First, "[t]he State has a legitimate interest in the welfare of its young citizens, whose immaturity, inexperience, and lack of judgment may sometimes impair their ability to exercise their rights wisely."  Hodgson, 497 U.S. at 444 (Op. of Stevens, J.) (citations omitted).  "That interest," Justice Stevens continued, "which justifies state-imposed restrictions that a minor obtain his or her parent's consent before undergoing an operation, marrying, or entering military service, . . . extends also to the minor's decision to terminate her pregnancy."  Id. at 444-45.  Although the Court has held that parents may not exercise an absolute veto over that decision, "it has never challenged a State's reasonable judgment that the decision should be made after notification to and consultation with a parent."  Id. at 445 (citations omitted).

Second, "[p]arents have an interest in controlling the education and upbringing of their children," which is "a counterpart of the responsibilities they have assumed."  Hodgson, 497 U.S. at 445 (Op. of Stevens, J.).  "[T]he demonstration of commitment to the child through the assumption of personal, financial, or custodial responsibility may give the natural parent a stake in the relationship with the child rising to the level of a liberty interest."  Id. at 446 (citations omitted).

Third, "[w]hile the State has a legitimate interest in the creation and dissolution of the marriage contract, . . . the family has a privacy interest in the upbringing and education of children and the intimacies of the marital relationship which is protected by the Constitution against undue state interference."  Hodgson, 497 U.S. at 446 (Op. of Stevens, J.).  For example, "[t]he family may assign one parent to guide the children's education and the other to look after their health." Id.

In Part VI of his opinion, which only Justice O'Connor joined, Justice Stevens expressed his view that "a requirement that a minor wait 48 hours after notifying a single parent of her intention to get an abortion would reasonably further the legitimate state interest in ensuring that the minor's decision is knowing and intelligent."  Hodgson, 497 U.S. at 448 (Op. of Stevens, J.).  Accordingly, "[t]o the extent that subdivision 2 of the Minnesota statute requires notification of only one parent," it aids the parent in the discharge of his or her responsibilities.  Id. "The brief waiting period provides the parent the opportunity to consult with his or her spouse and a family physician, and it permits the parent to inquire into the competency of the doctor performing the abortion, discuss the religious or moral implications of the abortion decision, and provide the daughter needed guidance and counsel in evaluating the impact of the decision on her future." Id.

The forty-eight hour delay, Justice Stevens wrote, "imposes only a minimal burden on the right of the minor to decide whether or not to terminate her pregnancy." Id.  at 449.  Although "scheduling factors, weather, and the minor's school and work commitments may combine, in many cases, to create a delay of a week or longer between the initiation of notification and the abortion," "there is no evidence that the 48-hour period itself is unreasonable or longer than appropriate for adequate consultation between parent and child."  Significantly, the statute "does not impose any period of delay once a court, acting in loco parentis, or the parents express their agreement that the minor is mature or that the procedure would be in her best interest."  Id. And the forty-eight hour waiting period "may run concurrently with the time necessary to make an appointment for the procedure, thus resulting in little or no delay."  Id.

Two-Parent Notice Without Judicial Bypass

In Part VII of his opinion, which did command a majority of the Court, Justice Stevens held that "the requirement that both parents be notified, whether or not both wish to be notified or have assumed responsibility for the upbringing of the child, does not reasonably further any legitimate interest."  Hodgson, 497 U.S. at 450 (emphasis in original).  To the extent that the State has a legitimate interest in supporting the authority of a parent who is presumed to act in the minor's best interest and thereby assure that her decision to terminate her pregnancy is knowing, intelligent and deliberate, that interest "would be fully served by a requirement that the minor notify one parent who can then seek the counsel of his or her mate or any other party, when such advice and support is deemed necessary to help the child make a difficult decision."  Id.  In an ideal family setting, notice to one parent is notice to both.  A statute requiring two-parent notification "would not further any state interest in those instances." Id.  But even in some functioning families, the parent notified by the child would not notify the other parent.  "In those cases the State has no legitimate interest in questioning one parent's judgment that notice to the other parent would not assist the minor or in presuming that the parent who has assumed parental duties is incompetent to make decisions regarding the health and welfare of the child."  Id.

In Justice Stevens' view, the requirement of two-parent notice not only fails to serve any state interest with respect to functioning families, but "disserves the state interest with respect to dysfunctional families."  Hodgson, 497 U.S. at 450.  Based on the record compiled in the district court, Justice Stevens said that "in the thousands of dysfunctional families affected by this statute, the two-parent notice requirement proved positively harmful to the minor and her family," resulting in "major trauma to the child, and often to a parent as well."  Id. at 450-51.  In some cases, the minor's "parents were divorced and the second parent did not have custody or otherwise participate in the child's upbringing."  Id. at 451.  Requiring notice to the second parent in these circumstances violated the privacy of the first parent and the child. Id.  In other cases, the second parent "had either deserted or abused the child," "had died under tragic circumstances" or was not notified "because of the considered judgment that notification would inflict unnecessary stress on a parent who was ill."  Id. Requiring notice to the second parent in such circumstances was "actually counterproductive."  Id. "The focus on notifying the second parent distracted both the parent and minor from the minor's imminent abortion decision."  Id.

The State did not argue in Hodgson that the two-parent notice requirement was in the minor's best interests.  Instead, it argued that, ideally, "the minor should make her decision only after consultation with both parents who should naturally be concerned with the child's welfare," and that the State had "an interest in protecting the independent right of the parents 'to determine and strive for what they believe to be best for their children.'" Hodgson, 497 U.S. at 451-52 (quoting defendants' brief).  Justice Stevens rejected both of the State's reasons, stating that the State may not "decree" "full communication among all members of a family," and that no state interest "in protecting a parent's interest in shaping a child's values and lifestyle [can] overcome the liberty interests of a minor acting with the consent of a single parent or court."  Id. at 452.  In Justice Stevens' view, "the combined force of the separate interest of one parent and the minor's privacy interest must outweigh the separate interest of the second parent."  Id. In her short opinion concurring with Part VII of Justice Stevens' opinion for the Court, Justice O'Connor agreed that "Minnesota has offered no sufficient justification for its interference with the family's decisonmaking process created by subdivision 2 [requiring two-parent notice without judicial bypass]."  Id. at 459 (O'Connor, concurring in part and concurring in the judgment).

Two-Parent Notice With Judicial Bypass

Five justices, in two separate opinions, concluded that the two-parent notice requirement was constitutional, when considered together with the judicial bypass procedure.  Justice Kennedy wrote an opinion, in which Chief Justice Rehnquist and Justices Scalia and White joined, concurring in the judgment in part and dissenting in part.  After dissenting from Justice Stevens' opinion for the Court striking down the requirement of two-parent notice without judicial bypass, Justice Kennedy explained why the two-parent requirement with judicial bypass is constitutional.

First, the alternative judicial bypass procedure "comports in all respects" with the Court's precedents governing bypass procedures.  Hodgson, 497 U.S. at 497 (Kennedy, J., concurring in the judgment in part and dissenting in party).  Second, because "a two-parent consent law is constitutional if it provides for a sufficient judicial bypass alternative," id. at 497-98 (emphasis added), citing Bellotti v. Baird, 443 U.S. 622 (1979), it necessarily follows that the far less demanding requirement of "two-parent notice . . . when coupled with a [valid] judicial bypass alternative" also is constitutional.  Hodgson, 497 U.S. at 499-500 (emphasis added) (for an analysis of the constitutional issues decided in Bellotti, please see the summary for that case).  In her separate opinion, Justice O'Connor concluded that "subdivision 6 [the judicial bypass] passes constitutional muster because the interference with the internal operation of the family required by subdivision 2 [requiring two-parent notice without the judicial bypass] does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure." Id. at 461 (O'Connor, J., concurring in part and concurring in the judgment in part).

The Concurring And Dissenting Opinions

Justice O'Connor cast the deciding vote striking down the two-parent notice requirement without judicial bypass and upholding the-two parent notice requirement with judicial bypass.  Hodgson, 497 U.S. at 458-61 (O'Connor, J., concurring in part and concurring in the judgment in part).

Justice Kennedy, joined by Chief Justice Rehnquist, Justice White and Justice Scalia, dissented from the Court's decision declaring unconstitutional the two-parent notice requirement without judicial bypass.  The Court's decision to strike down the two-parent notice requirement, in Justice Kennedy's view, "is incompatible with our constitutional tradition and any acceptable notion of judicial review of legislative enactments."  Hodgson, 497 U.S. at 481 (Kennedy, J., concurring in the judgment in part and dissenting in part).  The two-parent notice requirement serves two legitimate purposes-the State's interest "in the welfare of pregnant minors," and its interest "in acknowledging and promoting the role of parents in the care and upbringing of their children."  Id. at 482.  It also served a  third interest, "the right of each parent to participate in the upbringing of her or his own children," a right long recognized by the common law.  Id. at 483 (emphasis added).  "A State pursues a legitimate end under the Constitution when it attempts to foster and preserve the parent-child relationship by giving all parents the opportunity to participate in the care and nurture of their children."  Id. at 484.  Calling the Court's descriptions of the State's interests "caricatures," Justice Kennedy stated that Minnesota had simply asserted an interest "in seeing that parents know about a vital decision facing their child," an interest, he emphasized, that "is a valid one without regard to whether the child is living with either one or both parents, or to the attachment between the minor's parents."  Id. at 485.

"It is beyond dispute," Justice Kennedy wrote, "that in many families, whether the parents are living together or apart, notice to both parents serves the interests of the parents and the minor and that the State can legislate with this fact in mind."  Hodgson, 497 U.S. at 489 (Kennedy, J., concurring in the judgment in part and dissenting in part).  And "many absent parents maintain significant ties with their children, and seek to participate in their lives, to guide, to teach, and to care for them. . . . [T]hese attachments, in cases not involving mistreatment or abuse, are essential to the minor's well-being, and . . . parental notice is supportive of this kind of family tie." Id. at 492.  It may be true that "notice to one parent will often result in notice to both," but "the State need not rely upon the decision of one parent to notify the other, particularly where both parents maintain ties with their daughter but not with each other, and when both parents share responsibilities and duties with respect to the child." Id.

Justice Kennedy acknowledged that, in some cases, "notifying both parents will not produce desirable results," but "[w]e need not decide today . . . whether the Constitution permits the State to require that a physician notify both biological parents before performing an abortion on any minor, for the simple reason that Minnesota has not enacted such a law." Hodgson, 497 U.S. at 492 (Kennedy, J., concurring in the judgment in part and dissenting in part) (noting numerous exceptions in the law to the requirement that both parents be notified and the  protections accorded minors).  Although it remains possible that "in some instances notifying one or both parents will not be in the minor's best interests," "a law is not invalid if it fails to further the governmental interest in every instance."  Id. at 494-95.  See also id. at 496 ("[t]he State is under no obligation to enact perfect laws").  The Court's belief that "a general requirement that both parents be notified is unconstitutional because of its . . . conclusion that the law is unnecessary when notice produces favorable results," and "irrational in all of the instances when it produces unfavorable results," was, as Justice Kennedy noted, expressly rejected by Justice Stevens himself in an earlier case involving a parental notice statute that required notice to both parents without a judicial bypass procedure.  Id. at 490-91 (citing and quoting Justice Stevens' opinion in H.L. v. Matheson. 450 U.S. 398, 423-24 (1981) (Stevens, J., concurring in the judgment) (for an analysis of the constitutional issues decided in Matheson, please see the summary for that case)).

Finally, Justice Kennedy emphasized the significant difference between a consent statute without a judicial bypass procedure and a notice statute without such a procedure:

The difference between notice and consent was apparent to us before and is apparent now.  Unlike parental consent laws, a law requiring parental notice does not give any third party the legal right to make the minor's decision for her, or to prevent her from obtaining an abortion should she choose to have one performed. . . . [T]his distinction [is] fundamental . . . .  The law before us does not place an absolute obstacle before any minor seeking to obtain an abortion, and it represents a considered weighing of the competing interests of minors and their parents.

Hodgson, 497 U.S. at 496 (Kennedy, J., concurring in the judgment in part and dissenting in part).  In sum, "[t]he statute before us, including the 48-hour waiting period, which is necessary to enable notified parents to consult with their daughter or their daughter's physician, if they so wish, and results in little or not delay, represents a permissible, reasoned attempt to preserve the parents' role in a minor's decision to have an abortion without placing any absolute obstacles before a minor who is determined to elect an abortion for her own interest as she sees it."  Id.  In Justice Kennedy's opinion, the statute, even without the judicial bypass procedure, was constitutional.  Id. at 496-97.

In Part VIII of his opinion, Justice Stevens dissented from the Court's judgment upholding the two-parent notice requirement with judicial bypass.  In his view, the unreasonableness of the requirement of two-parent notice was not salvaged by the alternative of a judicial bypass procedure.  Hodgson, 497 U.S. at 455-58 (Op. of Stevens, J.).

Justice Marshall, joined by Justices Brennan and Blackmun, also dissented from the Court's judgment upholding the two-parent notice requirement with judicial bypass.  Justice Marshall was of the view that the Constitution does not permit a State "to require a minor to notify or consult with a parent before obtaining an abortion," and that the judicial bypass procedure itself is "unconstitutional on its face and as applied."  Hodgson, 497 U.S. at 462 (Marshall, J., concurring in part, concurring in the judgment in part and dissenting in part).

Justice Scalia penned a one-paragraph opinion, concurring in the judgment upholding the two-parent notice requirement with judicial bypass and dissenting from the judgment striking down the two-parent notice requirement without judicial bypass.  He reiterated his view that the Constitution does not confer a right to abortion.  Hodgson, 497 U.S. at 479-80 (Scalia, J., concurring in the judgment in part and dissenting in part).

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