U.S. Supreme Court

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

450 U.S. 398

H. L. v. MATHESON, GOVERNOR OF UTAH, ET AL.

APPEAL FROM THE SUPREME COURT OF UTAH.

No. 79-5903.

Argued October 6, 1980.

Decided March 23, 1981.

A Utah statute requires a physician to "[n]otify, if possible," the parents or guardian of a minor upon whom an abortion is to be performed. Appellant, while an unmarried minor living with and dependent on her parents, became pregnant. A physician advised her that an abortion would be in her best medical interest but, because of the statute, refused to perform the abortion without first notifying her parents. Believing that she should proceed with the abortion without notifying her parents, appellant instituted a suit in state court seeking a declaration that the statute is unconstitutional and an injunction against its enforcement. She sought to represent a class consisting of unmarried minors "who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so" because of their physicians' insistence on complying with the statute. The trial court upheld the statute as not unconstitutionally restricting a minor's right of privacy to obtain an abortion or to enter into a doctor-patient relationship. The Utah Supreme Court affirmed.

Held:

1. Since appellant did not allege or offer evidence that either she or any member of her class is mature or emancipated, she lacks standing to challenge the Utah statute as being unconstitutional on its face on the ground of overbreadth in that it could be construed to apply to all unmarried minor girls, including those who are mature and emancipated. Harris v. McRae,  448 U.S. 297 . Moreover, the State is bound by a ruling in another case that the statute does not apply to emancipated minors, and the Utah Supreme Court has had no occasion to consider the statute's application to mature minors. Pp. 405-407.

2. As applied to an unemancipated minor girl living with and dependent upon her parents, and making no claim or showing as to maturity or as to her relations with her parents, the Utah statute serves important state interests, is narrowly drawn to protect only those interests, and does not violate any guarantees of the Constitution. Pp. 407-413.

(a) Although a state may not constitutionally legislate a blanket, unreviewable power of parents to veto their daughter's abortion, Bellotti v. Baird,  443 U.S. 622 ; Planned Parenthood of Central Mo. v. Danforth,  428 U.S. 52 , a statute setting out a mere requirement of parental notice when possible does not violate the constitutional rights of an immature, dependent minor. Pp. 407-410.

(b) The Utah statute does not give parents a veto power over the minor's abortion decision. As applied to immature and dependent minors, the statute serves important considerations of family integrity and protecting adolescents as well as providing an opportunity for parents to supply essential medical and other information to the physician. The statute is not unconstitutional for failing to specify what information parents may furnish to physicians, or to provide for a mandatory period of delay after the physician notifies the parents; or because the State allows a pregnant minor to consent to other medical procedures without formal notice to her parents if she carries the child to term; or because the notice requirement may inhibit some minors from seeking abortions. Pp. 411-413.

604 P.2d 907, affirmed.

BURGER, C. J., delivered the opinion of the Court, in which STEWART, WHITE, POWELL, and REHNQUIST, JJ., joined. POWELL, J., filed a concurring opinion, in which STEWART, J., joined, post, p. 413. STEVENS, J., filed an opinion concurring in the judgment, post, p. 420. MARSHALL, J., filed a dissenting opinion, in which BRENNAN and BLACKMUN, JJ., joined, post, p. 425.

David S. Dolowitz argued the cause and filed a brief for appellant.

Paul M. Tinker, Assistant Attorney General of Utah, argued the cause for appellees. With him on the brief was Robert B. Hansen, Attorney General.^{Footnote *}

Dennis J. Horan, Victor G. Rosenblum, John D. Gorby, Patrick A. Trueman, and Dolores V. Horan filed a brief for Americans United for Life as amicus curiae urging affirmance.

Lynn D. Wardle and Robert W. Barker filed a brief for the Utah Association of Women et al. as amici curiae.

CHIEF JUSTICE BURGER delivered the opinion of the Court.

The question presented in this case is whether a state statute which requires a physician to "[n]otify, if possible,"

the parents of a dependent, unmarried minor girl prior to performing an abortion on the girl violates federal constitutional guarantees.

I

In the spring of 1978, appellant was an unmarried 15-year-old girl living with her parents in Utah and dependent on them for her support. She discovered she was pregnant. She consulted with a social worker and a physician. The physician advised appellant that an abortion would be in her best medical interest. However, because of Utah Code Ann. 76-7-304 (1978), he refused to perform the abortion without first notifying appellant's parents.

Section 76-7-304, enacted in 1974, provides:

"To enable the physician to exercise his best medical judgment [in considering a possible abortion], he shall:

"(1) Consider all factors relevant to the well-being of the woman upon whom the abortion is to be performed including, but not limited to,

"(a) Her physical, emotional and psychological health and safety,

"(b) Her age,

"(c) Her familial situation.

"(2) Notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor or the husband of the woman, if she is married." (Emphasis supplied.)[^{Footnote 1} ]

Violation of this section is a misdemeanor punishable by imprisonment for not more than one year or a fine of not more than $1,000.[^{Footnote 2} ]

Appellant believed "for [her] own reasons" that she should proceed with the abortion without notifying her parents. According to appellant, the social worker concurred in this decision.[^{Footnote 3} ] While still in the first trimester of her pregnancy, appellant instituted this action in the Third Judicial District Court of Utah.[^{Footnote 4} ] She sought a declaration that 76-7-304 (2) is unconstitutional and an injunction prohibiting appellees, the Governor and the Attorney General of Utah, from enforcing the statute. Appellant sought to represent a class consisting of unmarried "minor women who are suffering unwanted pregnancies and desire to terminate the pregnancies but may not do so" because of their physicians' insistence on complying with 76-7-304 (2). The trial judge declined to grant a temporary restraining order or a preliminary injunction.[^{Footnote 5} ]

The trial judge held a hearing at which appellant was the only witness. Appellant affirmed the allegations of the complaint by giving monosyllabic answers to her attorney's

leading questions.[^{Footnote 6} ] However, when the State attempted to cross-examine appellant about her reasons for not wishing to notify her parents, appellant's counsel vigorously objected,[^{Footnote 7} ]

insisting that "the specifics of the reasons are really irrelevant to the Constitutional issue."[^{Footnote 8} ] The only constitutionally permissible prerequisites for performance of an abortion, he insisted, were the desire of the girl and the medical

approval of a physician.[^{Footnote 9} ] The trial judge sustained the objection, tentatively construing the statute to require appellant's physician to notify her parents "if he is able to physically contact them."

Thereafter, the trial judge entered findings of fact and conclusions of law. He concluded that appellant "is an appropriate representative to represent the class she purports to represent."[^{Footnote 10} ] He construed the statute to require notice to appellant's parents "if it is physically possible." He concluded that 76-7-304 (2) "do[es] not unconstitutionally restrict the right of privacy of a minor to obtain an abortion or to enter into a doctor-patient relationship."[^{Footnote 11} ] Accordingly, he dismissed the complaint.

On appeal, the Supreme Court of Utah unanimously upheld the statute. 604 P.2d 907 (1979). Relying on our decisions in Planned Parenthood of Central Mo. v. Danforth,  428 U.S. 52 (1976), Carey v. Population Services International,  431 U.S. 678 (1977), and Bellotti v. Baird,  443 U.S. 622 (1979) (Bellotti II), the court concluded that the statute serves "significant state interest[s]" that are present with respect to minors but absent in the case of adult women.

The court looked first to subsection (1) of 76-7-304. This provision, the court observed, expressly incorporates the factors we identified in Doe v. Bolton,  410 U.S. 179 (1973), as pertinent to exercise of a physician's best medical judgment in making an abortion decision. In Doe, we stated:

"We agree with the District Court . . . that the medical judgment may be exercised in the light of all factors - physical, emotional, psychological, familial, and the woman's

age - relevant to the well-being of the patient. All these factors may relate to health. This allows the attending physician the room he needs to make his best medical judgment." Id., at 192 (emphasis supplied).

Section 76-7-304 (1) of the Utah statute suggests that the legislature sought to reflect the language of Doe.

The Utah Supreme Court held that notifying the parents of a minor seeking an abortion is "substantially and logically related" to the Doe factors set out in 76-7-304 (1) because parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning the child. 604 P.2d, at 909-910. The court also concluded that encouraging an unmarried pregnant minor to seek the advice of her parents in making the decision of whether to carry her child to term promotes a significant state interest in supporting the important role of parents in child-rearing. Id., at 912. The court reasoned that since the statute allows no veto power over the minor's decision, it does not unduly intrude upon a minor's rights.

The Utah Supreme Court also rejected appellant's argument that the phrase "if possible" in 76-7-304 (2) should be construed to give the physician discretion whether to notify appellant's parents. The court concluded that the physician is required to notify parents "if under the circumstances, in the exercise of reasonable diligence, he can ascertain their identity and location and it is feasible or practicable to give them notification." The court added, however, that "the time element is an important factor, for there must be sufficient expedition to provide an effective opportunity for an abortion." 604 P.2d, at 913.

II

Appellant challenges the statute as unconstitutional on its face. She contends it is overbroad in that it can be construed to apply to all unmarried minor girls, including those who are mature and emancipated. We need not reach that question

since she did not allege or proffer any evidence that either she or any member of her class is mature or emancipated.[^{Footnote 12} ] The trial court found that appellant "is unmarried, fifteen years of age, resides at home and is a dependent of her parents." That affords an insufficient basis for a finding that she is either mature or emancipated. Under Harris v. McRae,  448 U.S. 297, 320 (1980), she therefore lacks "the personal stake in the controversy needed to confer standing" to advance the overbreadth argument.

There are particularly strong reasons for applying established rules of standing in this case. The United States District Court for Utah has held that 76-7-304 (2) does not apply to emancipated minors and that, if so applied, it would be unconstitutional. L. R. v. Hansen, Civil No. C-80-0078J (Feb. 8, 1980). Since there was no appeal from that ruling, it is controlling on the State. We cannot assume that the statute, when challenged in a proper case, will not be construed also to exempt demonstrably mature minors.[^{Footnote 13} ] See Bellotti v. Baird,  428 U.S. 132, 146 -148 (1976) (Bellotti I). Nor is there any reason to assume that a minor in need of emergency treatment will be treated in any way different from

a similarly situated adult.[^{Footnote 14} ] The Utah Supreme Court has had no occasion to consider the application of the statute to such situations. In Bellotti I, supra, we unanimously declined to pass on constitutional challenges to an abortion regulation statute because the statute was "susceptible of a construction by the state judiciary `which might avoid in whole or in part the necessity for federal constitutional adjudication, or at least materially change the nature of the problem.'" Id., at 147, quoting Harrison v. NAACP,  360 U.S. 167, 177 (1959). See Kleppe v. New Mexico,  426 U.S. 529, 546 -547 (1976); Ashwander v. TVA,  297 U.S. 288, 346 -347 (1936) (concurring opinion). We reaffirm that approach and find it controlling here insofar as appellant challenges a purported statutory exclusion of mature and emancipated minors.

The only issue before us, then, is the facial constitutionality of a statute requiring a physician to give notice to parents, "if possible," prior to performing an abortion on their minor daughter, (a) when the girl is living with and dependent upon her parents, (b) when she is not emancipated by marriage or otherwise, and (c) when she has made no claim or showing as to her maturity or as to her relations with her parents.

III

A

Appellant contends the statute violates the right to privacy recognized in our prior cases with respect to abortions. She

places primary reliance on Bellotti II, 443 U.S., at 642, 655. In Danforth, we struck down state statutes that imposed a requirement of prior written consent of the patient's spouse and of a minor patient's parents as a prerequisite for an abortion. We held that a state

"does not have the constitutional authority to give a third party an absolute, and possibly arbitrary, veto over the decision of the physician and his patient to terminate the patient's pregnancy, regardless of the reason for withholding the consent." 428 U.S., at 74.

We emphasized, however, "that our holding . . . does not suggest that every minor, regardless of age or maturity, may give effective consent for termination of her pregnancy." Id., at 75, citing Bellotti I, supra. There is no logical relationship between the capacity to become pregnant and the capacity for mature judgment concerning the wisdom of an abortion.

In Bellotti II, dealing with a class of concededly mature pregnant minors, we struck down a Massachusetts statute requiring parental or judicial consent before an abortion could be performed on any unmarried minor. There the State's highest court had construed the statute to allow a court to overrule the minor's decision even if the court found that the minor was capable of making, and in fact had made, an informed and reasonable decision to have an abortion. We held, among other things, that the statute was unconstitutional for failure to allow mature minors to decide to undergo abortions without parental consent. Four Justices concluded that the flaws in the statute were that, as construed by the state court, (a) it permitted overruling of a mature minor's decision to abort her pregnancy; and (b) "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." 443 U.S., at 651. Four other Justices concluded that the defect was in making the abortion decision of a minor subject to veto by a third party, whether parent or judge, "no matter how mature and capable of informed decisionmaking" the minor might be. Id., at 653-656.

Although we have held that a state may not constitutionally legislate a blanket, unreviewable power of parents to veto their daughter's abortion,[^{Footnote 15} ] a statute setting out a "mere requirement of parental notice" does not violate the constitutional rights of an immature, dependent minor.[^{Footnote 16} ] Four Justices in Bellotti II joined in stating:

"[Plaintiffs] suggest . . . that the mere requirement of parental notice [unduly burdens the right to seek an abortion]. As stated in Part II above, however, parental 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. It may further determine, as a general proposition, that such consultation is particularly desirable with respect to the abortion decision - one that for some people raises profound moral and religious concerns. . . .

"`There can be little doubt that the State furthers a constitutionally permissible end by encouraging an unmarried pregnant minor to seek the help and advice of

her parents in making the very important decision whether or not to bear a child. That is a grave decision, and a girl of tender years, under emotional stress, may be ill-equipped to make it without mature advice and emotional support. It seems unlikely that she will obtain adequate counsel and support from the attending physician at an abortion clinic, where abortions for pregnant minors frequently take place.'" Id., at 640-641 (foot-notes omitted), quoting Danforth, 428 U.S., at 91 (concurring opinion).

Accord, 443 U.S., at 657 (dissenting opinion).

In addition, "constitutional interpretation has consistently recognized that the parents' claim to authority in their own household to direct the rearing of their children is basic in the structure of our society." Ginsberg v. New York,  390 U.S. 629, 639 (1968). In Quilloin v. Walcott,  434 U.S. 246 (1978), the Court expanded on this theme:

"We have recognized on numerous occasions that the relationship between parent and child is constitutionally protected. See, e. g., Wisconsin v. Yoder,  406 U.S. 205, 231 -233 (1972); Stanley v. Illinois, [  405 U.S. 645 (1972)]; Meyer v. Nebraska,  262 U.S. 390, 399 -401 (1923). `It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.'" Id., at 255, quoting Prince v. Massachusetts,  321 U.S. 158, 166 (1944).

See also Parham v. J. R.,  442 U.S. 584, 602 (1979); Pierce v. Society of Sisters,  268 U.S. 510, 535 (1925). We have recognized that parents have an important "guiding role" to play in the upbringing of their children, Bellotti II, supra, at 633-639, which presumptively includes counseling them on important decisions.

B

The Utah statute gives neither parents nor judges a veto power over the minor's abortion decision.[^{Footnote 17} ] As in Bellotti I, "we are concerned with a statute directed toward