Marci A. Hamilton

Professor Marci A. Hamilton-resized

William Rehnquist

Byron White

 JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in part and concurring in the judgment. 
 
 I agree with the Court's treatment of the appellant's arguments based on 
 United States v. Vuitch, 
 
 
 402 U. S. 62 
 
 (1971), 
 and 
 Patterson v. New York, 
 
 
 432 U. S. 197 
 
 (1977). Accordingly, I Join Parts I and II of the Court's opinion. 
 
 
 
 I concur in the judgment of the Court insofar as it affirms the conviction. For reasons stated in my dissent in 
 Akron v Akron Center for Reproductive Health, ante 
 p. 
 
 462 U. S. 416 
 
 , I do not agree that the constitutional validity of the Virginia mandatory hospitalization requirement is contingent in any way on the trimester in which it is imposed. Rather, I believe that the requirement in this case is not an undue burden on the decision to undergo an abortion. 
 

John Paul Stevens

Anthony Kennedy

David Souter

 JUSTICE O'CONNOR, with whom JUSTICE WHITE and JUSTICE REHNQUIST join, concurring in the judgment in part and dissenting in part. 
 
 For reasons stated in my dissent in 
 Akron v. Akron Center for Reproductive Health, ante 
 p. 
 
 462 U. S. 416 
 
 , I believe that the second trimester hospitalization requirement imposed by § 188.025 does not impose an undue burden on the limited right to undergo an abortion. Assuming, 
 arguendo, 
 that the requirement was an undue burden, it would nevertheless "reasonably relat[e] to the preservation and protection of maternal health." 
 Roe v. Wade, 
 
 
 410 U. S. 113 
 
 , 
 
 410 U. S. 163 
 
 (1973). I therefore dissent from the Court's judgment that the requirement is unconstitutional. 
 
 I agree that the second physician requirement contained in § 188.030.3 is constitutional because the State possesses a compelling interest in protecting and preserving fetal life, but I believe that this state interest is extant throughout pregnancy. I therefore concur in the judgment of the Court. 
 
 I agree that the pathology report requirement imposed by § 188.047 is constitutional because it imposes no undue burden on the limited right to undergo an abortion. Because I do not believe that the validity of this requirement is contingent in any way on the trimester of pregnancy in which it is imposed, I concur in the judgment of the Court. 
 
 Assuming, 
 arguendo, 
 that the State cannot impose a parental veto on the decision of a minor to undergo an abortion, I agree that the parental consent provision contained in § 188.028 is constitutional. However, I believe that the provision is valid because it imposes no undue burden on any right that a minor may have to undergo an abortion. I concur in the judgment of the Court on this issue. 
 
 I also concur in the Court's decision to vacate and remand on the issue of attorney's fees in light of 
 Hensley v. Eckerhart, 
 
 
 461 U. S. 424 
 
 (1983). 
 

 Justice O'CONNOR, concurring in part and concurring in the judgment in part. 
 
 
 I 
 
 
 I join all but Parts III and VIII of Justice STEVENS' opinion. While I agree with some of the central points made in Part III, I cannot join the broader discussion. I agree that the Court has characterized 
 
 "[a] woman's decision to beget or to bear a child [as] a component of her liberty that is protected by the Due Process Clause of the Fourteenth Amendment to the Constitution." 
 
 
 Ante 
 at 
 
 497 U. S. 434 
 
 . 
 See, e.g., Carey v. Population Services International, 
 
 
 431 U. S. 678 
 
 , 
 
 431 U. S. 685 
 
 , 
 
 431 U. S. 687 
 
 (1977); 
 Griswold v. Connecticut, 
 
 
 381 U. S. 479 
 
 , 
 
 381 U. S. 502 
 
 -503 (1965) (WHITE, J., concurring in judgment). This Court extended that liberty interest to minors in 
 Bellotti v. Baird, 
 
 
 443 U. S. 622 
 
 , 
 
 443 U. S. 642 
 
 (1979) ( 
 Bellotti II 
 ), and 
 Planned Parenthood of Central Missouri v. Danforth, 
 
 
 428 U. S. 52 
 
 , 
 
 428 U. S. 74 
 
 (1976), albeit with some important limitations: 
 
 "[P]arental notice and consent are qualifications that typically may be imposed by the State on a minor's right to make important decisions. As immature minors often lack the ability to make fully informed choices that take account of both immediate and long-range consequences, a State reasonably may determine that parental consultation often is desirable and in the best interest of the minor." 
 
 
 Bellotti II, supra, 
 at 
 
 443 U. S. 640 
 
 -641; 
 see also H.L. v. Matheson, 
 
 
 450 U. S. 398 
 
 , 
 
 450 U. S. 423 
 
 (1981) (STEVENS, J., concurring in judgment); 
 cf. 
 
 487 U. S. 
 
 
 
 Oklahoma, 
 
 
 
 
 487 U. S. 815 
 
, 
 
 487 U. S. 835 
 
 (1988) ("Inexperience, less education, and less intelligence make the teenager less able to evaluate the consequences of his or her conduct, while at the same time he or she is much more apt to be motivated by mere emotion or peer pressure than is an adult"); 
 Stanford v. Kentucky, 
 
 
 492 U. S. 361 
 
, 
 
 492 U. S. 395 
 
 (1989) (BRENNAN, J., dissenting) ("[M]inors are treated differently from adults in our laws, which reflects the simple truth derived from communal experience, that juveniles as a class have not the level of maturation and responsibility that we presume in adults and consider desirable for full participation in the rights and duties of modern life"). 
 It has been my understanding in this area that 
 
 "[i]f the particular regulation does not 'unduly burde[n]' the fundamental right,... then our evaluation of that regulation is limited to our determination that the regulation rationally relates to a legitimate state purpose." 
 
 
 Akron v. Akron Center for Reproductive Health, Inc., 
 
 
 462 U. S. 416 
 
 , 
 
 462 U. S. 453 
 
 (1983) (O'CONNOR, J., dissenting); 
 see also Webster v. Reproductive Health Services, 
 
 
 492 U. S. 490 
 
 , 530 (1989) (O'CONNOR, J., concurring in part and concurring in judgment). It is with that understanding that I agree with Justice STEVENS' statement that the 
 
 "statute cannot be sustained if the obstacles it imposes are not reasonably related to legitimate state interests. 
 Cf. Turner v. Safley, 
 482 U.S. at 
 
 482 U. S. 97 
 
 ; 
 Carey v. Population Services International, 
 431 U.S. at 
 
 431 U. S. 704 
 
 (opinion of Powell, J.); 
 Doe v. Bolton, 
 
 
 410 U. S. 179 
 
 , 
 
 410 U. S. 194 
 
 -195, 199 (1973)." 
 
 
 Ante 
 at 
 
 497 U. S. 436 
 
 . 
 
 I agree with Justice STEVENS that Minnesota has offered no sufficient justification for its interference with the family's decisionmaking processes created by subdivision 2 -two-parent notification. Subdivision 2 is the most stringent notification statute in the country. 
 See ante 
 at 
 
 497 U. S. 425 
 
 , n. 5. The only other state that defines the generic term "parents," 
 see, e.g., 
 Tenn.Code Ann. § 36-1-201, Art. III(6) (Supp. 1989) (adoption statute) (" 
 Parents' 
 
 means either the singular or plural of the word `parent'"); 
 see also ante 
 at 
 
 497 U. S. 437 
 
 , n. 23, as "both parents" is Arkansas, and that statute provides for numerous exceptions to the two-parent notification requirement and permits bypassing notification where notification would not be in the best interests of the minor. 
 See 
 Ark.Code §§ 20-16-802, 20-16-804, 20-16-808 (Supp.1989). 
 
 
 
 The Minnesota exception to notification for minors who are victims of neglect or abuse is, in reality, a means of notifying the parents. As Justice STEVENS points out, 
 see ante 
 at 
 
 497 U. S. 426 
 
 , n. 7, to avail herself of the neglect or abuse exception, the minor must report the abuse. A report requires the welfare agency to immediately "conduct an assessment." Minn.Stat. § 626.556(10)(a) (1988). If the agency interviews the victim, it must notify the parent of the fact of the interview; if the parent is the subject of an investigation, he has a right of access to the record of the investigation. §§ 626.556(10)(c); 626.556(11); 
 see also 
 Tr. of Oral Arg. 19 ("[I]t turns out that the reporting statute in Minnesota requires that, after it's reported to the welfare department, the welfare department has to do an assessment and tell the parents about the assessment. This could all be done in a timeframe even before the abortion occurs"). The combination of the abused minor's reluctance to report sexual or physical abuse, 
 see ante 
 at 
 
 497 U. S. 440 
 
 , n. 26, with the likelihood that invoking the abuse exception for the purpose of avoiding notice will result in notice, makes the abuse exception less than effectual. 
 
 Minnesota's two-parent notice requirement is all the more unreasonable when one considers that only half of the minors in the State of Minnesota reside with both biological parents. 
 See ante 
 at 
 
 497 U. S. 437 
 
 . A third live with only one parent. 
 Ibid. 
 Given its broad sweep and its failure to serve the purposes asserted by the State in too many cases, I join the Court's striking of subdivision 2. 
 
 
 
 
 
 II 
 
 
 In a series of cases, this Court has explicitly approved judicial bypass as a means of tailoring a parental consent provision so as to avoid unduly burdening the minor's limited right to obtain an abortion. 
 See Bellotti v. Baird, 
 
 
 428 U. S. 132 
 
 , 
 
 428 U. S. 147 
 
 -148 (1976); 
 Planned Parenthood of Central Missouri v. Danforth, 
 
 
 428 U. S. 52 
 
 (1976); 
 Bellotti II, 
 443 U.S. at 
 
 443 U. S. 642 
 
 -644. In 
 Danforth, 
 the Court stated that the 
 
 "primary constitutional deficiency lies in [the notification statute's] imposition of an absolute limitation on the minor's right to obtain an abortion.... [A] materially different constitutional issue would be presented under a provision requiring parental consent or consultation in most cases but providing for prompt (i) judicial resolution of any disagreement between the parent and the minor, or (ii) judicial determination that the minor is mature enough to give an informed consent without parental concurrence or that abortion in any event is in the minor's best interest. Such a provision would not impose parental approval as an absolute condition upon the minor's right, but would assure in most instances consultation between the parent and child." 
 
 428 U.S. at 
 
 428 U. S. 90 
 
 -91. Subdivision 6 passes constitutional muster because the interference with the internal operation of the family required by subdivision 2 simply does not exist where the minor can avoid notifying one or both parents by use of the bypass procedure. 
 

NAME / TITLE	TYPE
Marci A. Hamilton	Law Clerk
Thornburgh v. Amer. Coll. of Obstetricians	Supreme Court Opinion
Akron v. Akron Ctr. for Reprod. Health	Supreme Court Opinion
Simopoulos v. Virginia	Supreme Court Opinion
Planned Parenthood of Southeastern Pa. v. Casey	Supreme Court Opinion
Planned Parenthood Assn. v. Ashcroft	Supreme Court Opinion
Hodgson v. Minnesota	Supreme Court Opinion

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Sandra Day O’Connor: Justice, Ambassador, and Role Model

January 1996

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