Ohio v. Akron Center for Reproductive Health/Concurrence Stevens

Justice STEVENS, concurring in part and concurring in the judgment.

As the Court emphasizes, appellees have challenged the Ohio statute only on its face. The State may presume that, in most of its applications, the statute will reasonably further its legitimate interest in protecting the welfare of its minor citizens. See H.L. v. Matheson, 450 U.S. 398, 422-423, 101 S.Ct. 1164, 1177-1178, 67 L.Ed.2d 388 (1981) (STEVENS, J., concurring in judgment). In some of its applications, however, the one-parent notice requirement will not reasonably further that interest. There will be exceptional situations in which notice will cause a realistic risk of physical harm to the pregnant woman, will cause trauma to an ill parent, or will enable the parent to prevent the abortion for reasons that are unrelated to the best interests of the minor. The Ohio statute recognizes that possibility by providing a judicial bypass. The question in this case is whether that statutory protection for the exceptional case is so obviously inadequate that the entire statute should be invalidated. I am not willing to reach that conclusion before the statute has been implemented and the significance of its restrictions evaluated in the light of its administration. I therefore agree that the Court of Appeals' judgment must be reversed, and I join Parts I-IV of the Court's opinion. The Court correctly states that we have not decided the specific question whether a judicial bypass procedure is necessary in order to save the constitutionality of a one-parent notice statute. See ante, at 510. We have, however, squarely held that a requirement of preabortion parental notice in all cases involving pregnant minors is unconstitutional. Although it need not take the form of a judicial bypass, the State must provide an adequate mechanism for cases in which the minor is mature or notice would not be in her best interests.

In Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481, 76 L.Ed.2d 687 (1983), the city argued that the constitutionality of its ordinance requiring parental consent was saved by the minor's opportunity to invoke the State's juvenile court procedures. We held the same day in Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 493, 103 S.Ct. 2517, 2526, 76 L.Ed.2d 733 (1983) (opinion of Powell, J.), that a similar provision which did not require parental notification avoided any constitutional infirmities in such a statute. We rejected the argument in Akron, however, because the procedures in that case required that the parent be given notice when the minor's petition was filed. Writing for six Justices, including the author of the Court's opinion in H.L. v. Matheson, supra, Justice Powell explained:

"Even assuming that the Ohio courts would construe these     provisions as permitting a minor to obtain judicial approval      for the 'proper or necessary . . . medical or surgical care'      of an abortion, where her parents had refused to provide that      care, the statute makes no provision for a mature or      emancipated minor completely to avoid hostile parental      involvement by demonstrating to the satisfaction of the court      that she is capable of exercising her constitutional right to      choose an abortion.  On the contrary, the statute requires      that the minor's parents be notified once a petition has been      filed, [Ohio Rev. Code Ann.] § 2151.28 [ (Supp.1982) ], a      requirement that in the case of a mature minor seeking an abortion would be      unconstitutional.  See H.L. v. Matheson, 450 U.S., at 420      [101 S.Ct., at 1176-1177] (POWELL, J., concurring);  id., at      428, n. 3 [101 S.Ct., at 1181, n. 3] (MARSHALL, J.,      dissenting)." 462 U.S., at 441, n. 31, 103 S.Ct., at 2498,     n. 31.

Thus, while a judicial bypass may not be necessary to take care of the cases in which the minor is mature or parental notice would not be in her best interests-and, indeed, may not be the preferable mechanism-the Court has held that some provision must be made for such cases.

The Ohio statute, on its face, provides a sufficient procedure for those cases. The pleading requirements and the constructive authorization and confidentiality provisions of the Act satisfy the standards established in Ashcroft, supra, for a judicial bypass. As the Court states, the minor is not bound by her initial choice of pleading form, ante, at 517, the constructive authorization provision functions as an additional "safety net" when the statutory deadlines are not met, ante, at 515, and the State has taken reasonable steps to ensure confidentiality, ante, at 512-513. The requirement that the minor prove maturity or best interests by clear and convincing evidence is supported by the presumption that notification to a parent will in most circumstances be in the minor's best interests: It is not unreasonable to require the minor, when assisted by counsel and a guardian ad litem, ante, at 517-518, to overcome that presumption by clear and convincing evidence. Cf. Parham v. J.R., 442 U.S. 584, 610, 99 S.Ct. 2493, 2508, 61 L.Ed.2d 101 (1979) ("[P]resumption that parents act in the best interests of their child" is relevant in determining what process is due in commitment proceeding). I have more concern about the possible delay in the bypass procedure, but the statute permits the Ohio courts to expedite the procedure upon a showing of good cause, see ante, at 515 (citing Ohio Rev.Code Ann. § 2505.073(A) (Supp.1988)), and sensitive administration of the deadlines may demonstrate that my concern is unwarranted.

There is some tension between the statutory requirement that the treating physician notify the minor's parent and our decision in Akron, 462 U.S., at 446-449, 103 S.Ct., at 2501-2503, that a State may not require the attending physician to personally counsel an abortion patient. One cannot overlook the possibility that this provision was motivated more by a legislative interest in placing obstacles in the woman's path to an abortion, see Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 2382-2383, 53 L.Ed.2d 484 (1977), than by a genuine interest in fostering informed decisionmaking. I agree with the Court, however, that the Ohio statute requires only that the physician take "reasonable steps" to notify a minor's parent and that such notification may contribute to the decisionmaking process. Ante, at 518-519. Accordingly, I am unable to conclude that this provision is unconstitutional on its face.

Justice BLACKMUN, with whom Justice BRENNAN and Justice MARSHALL join, dissenting.

* The constitutional right to "control the quintessentially intimate, personal, and life-directing decision whether to carry a fetus to term," Webster v. Reproductive Health Services, 492 U.S. 490, 538, 109 S.Ct. 3040, 3067, 106 L.Ed.2d 410 (1989) (opinion concurring in part and dissenting in part), does "not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights." Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (1976); Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S.Ct. 2926, 2937, 111 L.Ed.2d 344 ("[T]he constitutional protection against unjustified state intrusion into the process of deciding whether or not to bear a child extends to pregnant minors as well as adult women"). Although the Court "has recognized that the State has somewhat broader authority to regulate the activities of children than of adults," in doing so, the State nevertheless must demonstrate that there is a "significant state interest in conditioning an abortion . . . that is not present in the case of an adult." Danforth, 428 U.S., at 74-75, 96 S.Ct., at 2843-2844 (emphasis added). "Any independent interest the parent may have in the termination of the minor daughter's pregnancy is no more weighty than the right of privacy of the competent minor mature enough to have become pregnant." Id., at 75, 96 S.Ct., at 2844.

"The abortion decision differs in important ways from other decisions that may be made during minority. The need to preserve the constitutional right and the unique nature of the abortion decision, especially when made by a minor, require a State to act with particular sensitivity when it legislates to foster parental involvement in this matter." Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 3047, 61 L.Ed.2d 797 (1979) (opinion of Powell, J.) (emphasis added) (Bellotti II ). "[P]articular sensitivity" is mandated because "there are few situations in which denying a minor the right to make an important decision will have consequences so grave and indelible." Ibid. It should be obvious that "considering her probable education, employment skills, financial resources, and emotional maturity, unwanted motherhood may be exceptionally burdensome for a minor." Ibid.

The State of Ohio has acted with particular insensitivity in enacting the statute the Court today upholds. Rather than create a judicial-bypass system that reflects the sensitivity necessary when dealing with a minor making this deeply intimate decision, Ohio has created a tortuous maze. Moreover, the State has failed utterly to show that it has any significant state interest in deliberately placing its pattern of obstacles in the path of the pregnant minor seeking to exercise her constitutional right to terminate a pregnancy. The challenged provisions of the Ohio statute are merely "poorly disguised elements of discouragement for the abortion decision." Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747, 763, 106 S.Ct. 2169, 2180, 90 L.Ed.2d 779 (1986).

The majority does not decide whether the Ohio parental-notice statute must contain a judicial-bypass procedure because the majority concludes that the bypass procedure in the statute "meets the requirements identified for parental consent statutes in Danforth, Bellotti, Ashcroft, and Akron."  Ante, at 510. I conclude, however, that, because of the minor's emotional vulnerability and financial dependency on her parents, and because of the "unique nature of the abortion decision," Bellotti II, 443 U.S., at 642, 99 S.Ct., at 3047, and its consequences, a parental-notice statute is tantamount to a parental-consent statute. As a practical matter, a notification requirement will have the same deterrent effect on a pregnant minor seeking to exercise her constitutional right as does a consent statute. See Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 441, n. 31, 103 S.Ct. 2481, 2498, n. 31, 76 L.Ed.2d 687 (1983); H. L. v. Matheson, 450 U.S. 398, 420, n. 9, 101 S.Ct. 1164, 1188, n. 9, 67 L.Ed.2d 388 (1981) (concurring opinion). Thus a notice statute, like a consent statute, must contain a bypass procedure that comports with the standards set forth in Bellotti II. Because I disagree with the Court's conclusion that the Ohio bypass procedure complies with the dictates of Bellotti II and its progeny, I would strike down Ohio Amended Substitute House Bill 319.

The Bellotti II principal opinion stated: "A pregnant minor is entitled in such a [judicial-bypass] proceeding 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." 443 U.S., at 643-644, 99 S.Ct., at 3048 (opinion of Powell, J.) (footnote omitted). The language of the Ohio statute purports to follow the standards for a bypass procedure that are set forth in Bellotti II, but at each stage along the way, the statute deliberately places "substantial state-created obstacles in the pregnant [minor's] path to an abortion," Maher v. Roe, 432 U.S. 464, 477, n. 10, 97 S.Ct. 2376, 2384, n. 10, 53 L.Ed.2d 484 (1977), in the legislative hope that she will stumble, perhaps fall, and at least ensuring that she "conquer a multi-faceted obstacle course" before she is able to exercise her constitutional right to an abortion. Dellinger & Sperling, Abortion and the Supreme Court: Retreat from Roe v. Wade, 138 U.Pa.L.Rev. 83, 100 (1989). The majority considers each provision in a piecemeal fashion, never acknowledging or assessing the "degree of burden that the entire regime of abortion regulations places" on the minor. Ibid.

The obstacle course begins when the minor first enters the courthouse to fill out the complaint forms. The " 'procedural trap,' " as it appropriately was described by the Court of Appeals, Akron Center for Reproductive Health v. Slaby, 854 F.2d 852, 863 (CA6 1988), requires the minor to choose among three forms. The first alleges only maturity; the second alleges only that the abortion is in her best interest. App. 6-11. Only if the minor chooses the third form, which alleges both, id., at 12-13, may the minor attempt to prove both maturity and best interest as is her right under Bellotti II.  See Ohio Rev.Code Ann. § 2151.85(C)(3) (Supp.1988). The majority makes light of what it acknowledges might be "some initial confusion" of the unsophisticated minor who is trying to deal with an unfamiliar and mystifying court system on an intensely intimate matter. Ante, at 516-517. The Court points out that the minor, with counsel appointed after she filed the complaint, "may move for leave to amend the pleadings" and avers that it "seems unlikely that the Ohio courts will treat a minor's choice of complaint form without due care." Ibid. I would take the Ohio Legislature's word, however, that its pleading requirement was intended to be meaningful. The constitutionality of a procedural provision cannot be analyzed on the basis that it may have no effect. If the pleading requirement prevents some minors from showing either that they are mature or that an abortion would be in their best interests, it plainly is unconstitutional.

The majority fails to elucidate any state interest in setting up this barricade for the young pregnant woman-a barricade that will "serve only to confuse . . . her and to heighten her anxiety." Thornburgh, 476 U.S., at 762, 106 S.Ct., at 2179. The justification the State put forward before the Court of Appeals was the "absurd contention that '[a]ny minor claiming to be mature and well enough informed to independently make such an important decision as an abortion should also be mature enough to file her complaint under [the appropriate subsection].' " See 854 F.2d, at 863, quoting Brief for State of Ohio in No. 86-3664 (CA6), p. 43. This proffered "justification" is even more harsh than the Court of Appeals noted. It excludes the mature minor who may not have the intellectual capacity to understand these tangled forms, and it spurns the immature minor who is abused or who contends for some other reason that an abortion without parental involvement would be in her best interest. Surely, the goal of the court proceeding is to assist, not to entrap, the young pregnant woman.

The State's interest in "streamlining" the claims, belatedly asserted for the first time before this Court, is no less absurd. It is ludicrous to confound the pregnant minor, forced to go to court at this time of crisis in her life, with alternative complaint forms that must later be rescinded by appointed counsel and replaced by the only form that is constitutionally valid. Moreover, this ridiculous pleading scheme leaves to the judge's discretion whether the minor may amend her pleading and attempt to prove both her maturity and best interest. To allow the resolution of this vital issue to turn on a judge's discretion does not comport with Bellotti II § declaration that the minor who "fails to satisfy the court that she is competent to make this decision independently . . . must be permitted to show that an abortion nevertheless would be in her best interests." 443 U.S., at 647-648, 99 S.Ct., at 3050 (opinion of Powell, J.) (emphasis added).

As the pregnant minor attempts to find her way through the labyrinth set up by the State of Ohio, she encounters yet another obstruction even before she has completed the complaint form. In Bellotti II, the principal opinion insisted that the judicial-bypass procedure "must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity. . . ." Id., at 644, 99 S.Ct., at 3048 (emphasis added). That statement was not some idle procedural requirement, but stems from the proposition that the Due Process Clause protects the woman's right to make her decision "independently and privately." Hodgson, 497 U.S., at 434, 110 S.Ct., at 2936. The zone of privacy long has been held to encompass an "individual interest in avoiding disclosure of personal matters." Whalen v. Roe, 429 U.S. 589, 599, 97 S.Ct. 869, 876, 51 L.Ed.2d 64 (1977). The Ohio statute does not safeguard that right. Far from keeping the identity of the minor anonymous, the statute requires the minor to sign her full name and the name of one of her parents on the complaint form. See App. 6-14 (pleading forms). See ante, at 512 "Unless the minor has counsel, she must sign a complaint form to initiate the bypass procedure and, even if she has counsel, she must supply the name of one of her parents at four different places"). Acknowledging that "[c]onfidentiality differs from anonymity," the majority simply asserts that "complete anonymity" is not "critical."  Ante, at 513.  That easy conclusion is irreconcilable with Bellotti § anonymity requirement.  The definition of "anonymous" is "not named or identified." Webster's Ninth New Collegiate Dictionary 88 (1983).  Complete anonymity, then, appears to be the only kind of anonymity that a person could possibly have.  The majority admits that case law regarding the anonymity requirement has permitted no less.  See ante, at 512, citing Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d 1006, 1025 (CA1 1981) (pseudonym);  Planned Parenthood Assn. of Kansas City, Mo., Inc. v. Ashcroft, 462 U.S. 476, 491, n. 16, 103 S.Ct. 2517, 2525, n. 16 (1983) (initials). See also Thornburgh, 476 U.S., at 766, 106 S.Ct., at 2181 ("[T]he decision to terminate a pregnancy is an intensely private one that must be protected in a way that assures anonymity").

The majority points to Ohio laws requiring court employees not to disclose public documents, blithely assuming that the "mere possibility of unauthorized, illegal disclosure by state employees" is insufficient to establish that the confidentiality of the proceeding is not protected. Ante, at 513. In fact, the provisions regarding the duty of court employees not to disclose public documents amount to no more than "generally stated principles of . . . confidentiality." American College of Obstetricians and Gynecologists v. Thornburgh, 737 F.2d 283, 297 (CA3 1984), aff'd on other grounds, 476 U.S. 747, 106 S.Ct. 2169, 90 L.Ed.2d 779 (1986). As the District Court pointed out, there are no indications of how a clerk's office, large or small, is to ensure that the records of abortion cases will be distinguished from the records of all other cases that are available to the public. Akron Center for Reproductive Health v. Rosen, 633 F.Supp. 1123, 1143-1144 (ND Ohio 1986). Cf. Planned Parenthood League of Massachusetts v. Bellotti, 641 F.2d, at 1025 (minor proceeds under pseudonym and affidavit containing her identity is kept in separate, sealed file). Nor are there measures for sealing the record after the case is closed to prevent its public availability; Planned Parenthood Assn. of the Atlanta Area, Inc. v. Harris, 670 F.Supp. 971, 991 (ND Ga.1987) (noting with disapproval that Georgia statute made no provision for court documents to be sealed). This Court is well aware that, unless special care is taken, court documents of an intimate nature will find their way to the press and public. See The Florida Star v. B.J.F., 491 U.S. 524, 109 S.Ct. 2603, 105 L.Ed.2d 443 (1989) (reporter in police room copied police report and published article with rape victim's full name). The State has offered no justification for its failure to provide specific guidelines to be followed by the juvenile court to ensure anonymity for the pregnant minor-even though it has in place a procedure to assure the anonymity of juveniles who have been adjudicated delinquent or unruly. See Ohio Rev.Code Ann. § 2151.358 (1976) (detailed provision for sealing record and for expungement of record).

"A woman and her physician will necessarily be more reluctant to choose an abortion if there exists a possibility that her decision and her identity will become known publicly." Thornburgh, 476 U.S., at 766, 106 S.Ct., at 2182. A minor, whose very purpose in going through a judicial-bypass proceeding is to avoid notifying a hostile or abusive parent, would be most alarmed at signing her name and the name of her parent on the complaint form. Generalized statements concerning the confidentiality of records would be of small comfort, even if she were aware of them. True anonymity is essential to an effective, meaningful bypass. In the face of the forms that the minor must actually deal with, the State's assurances that the minor's privacy will be protected ring very hollow. I would not permit the State of Ohio to force a minor to forgo her anonymity in order to obtain a waiver of the parental-notification requirement.

Because a "pregnant adolescent . . . cannot preserve for long the possibility of aborting, which effectively expires in a matter of weeks from the onset of pregnancy," this Court has required that the State "must assure" that the "resolution of the issue, and any appeals that may follow, will be completed with . . . sufficient expedition to provide an effective opportunity for an abortion to be obtained." Bellotti II, 443 U.S., at 642, 644, 99 S.Ct., at 3047, 3048 (opinion of Powell, J.); see also H.L. v. Matheson, 450 U.S., at 412, 101 S.Ct., at 1172-1173 (time is of the essence in an abortion decision). Ohio's judicial-bypass procedure can consume up to three weeks of a young woman's pregnancy. I would join the Sixth Circuit, the District Court, and the other federal courts that have held that a time span of this length fails to guarantee a sufficiently expedited procedure. See 854 F.2d, at 868; 633 F.Supp., at 1143. See also, e.g., American College of Obstetricians and Gynecologists v. Thornburgh, 656 F.Supp. 879, 887-888 (ED Pa.1987) (statutory scheme allowing 23 days for judicial proceeding is unconstitutional); Glick v. McKay, 616 F.Supp. 322, 326-327 (Nev.1985).

The majority is unconcerned that "the procedure may require up to 22 days in a rare case." Ante, at 514. I doubt the "rarity" of such cases. In any event, the Court of Appeals appropriately pointed out that, because a minor often does not learn of her pregnancy until a late stage in the first trimester, time lost during that trimester is especially critical. 854 F.2d, at 867-868. The Court ignores the fact that the medical risks surrounding abortion increase as pregnancy advances and that such delay may push a woman into her second trimester, where the medical risks, economic costs, and state regulation increase dramatically. See Roe v. Wade, 410 U.S. 113, 150, 163, 93 S.Ct. 705, 725, 731-732, 35 L.Ed.2d 147 (1973); H.L. v. Matheson, 450 U.S., at 439, and n. 25, 101 S.Ct., at 1187, and n. 25 (dissenting opinion). Minors, who are more likely to seek later abortions than adult women, and who usually are not financially independent, will suffer acutely from any delay. See Ashcroft, 462 U.S., at 497-498, 103 S.Ct., at 2528-2529 (opinion concurring in part and dissenting in part) (an increased cost factor "may seem insignificant from the Court's comfortable perspective," but is not "equally insignificant" to "the unemployed teenager" for whom this additional cost may well put an abortion beyond reach). Because a delay of up to 22 days may limit significantly a woman's ability to obtain an abortion, I agree with the conclusions of the District Court and the Court of Appeals that the statute violates this Court's command that a judicial-bypass proceeding be conducted with sufficient speed to maintain "an effective opportunity for an abortion to be obtained." Bellotti II, 443 U.S., at 644, 99 S.Ct., at 3048 (opinion of Powell, J.).

The Ohio statute provides that if the juvenile or appellate courts fail to act within the statutory time frame, an abortion without parental notification is "constructively" authorized. Although Ohio's Legislature may have intended this provision to expedite the bypass procedure, the confusion that will result from the constructive-authorization provision will add further delay to the judicial-bypass proceeding, and is yet one more obstruction in the path of the pregnant minor. The physician risks civil damages, criminal penalties, including imprisonment, as well as revocation of his license for disobeying the statute's commands, but the statute provides for no formal court order or other relief to safeguard the physician from these penalties. See §§ 2151.85(B)(1), 2919.12(D), 2919.12(E), 4731.22(B)(23). The State argues that a combination of a date-stamped copy of the minor's complaint and a "docket sheet showing no entry" would inform the physician that the abortion could proceed. Brief for Appellant 36. Yet, the mere absence of an entry on a court's docket sheet hardly would be reassuring to a physician facing such dire consequences, and the State offers no reason why a formal order or some kind of actual notification from the clerk of court would not be possible. There is no doubt that the nebulous authorization envisioned by this statute "in conjunction with a statute imposing strict civil and criminal liability . . . could have a profound chilling effect on the willingness of physicians to perform abortions. . . ." Colautti v. Franklin, 439 U.S. 379, 396, 99 S.Ct. 675, 686, 58 L.Ed.2d 596 (1979). I agree with the Court of Appeals that the "practical effect" of the " 'pocket approval' " provision is to frustrate the minor's right to an expedient disposition of her petition. 854 F.2d, at 868.

If the minor is able to wend her way through the intricate course of preliminaries Ohio has set up for her and at last reaches the court proceeding, the State shackles her even more tightly with still another "extra layer and burden of regulation on the abortion decision." Danforth, 428 U.S., at 66, 96 S.Ct., at 2839. The minor must demonstrate by "clear and convincing evidence" either (1) her maturity; (2) or that one of her parents has engaged in a pattern of physical, sexual, or emotional abuse against her;  or (3) that notice to a parent is not in her best interest. § 2151.85(C). The imposition of this heightened standard of proof unduly burdens the minor's right to seek an abortion and demonstrates a fundamental misunderstanding of the real nature of a court-bypass proceeding.

The function of a standard of proof is to " 'instruct the factfinder concerning the degree of confidence our society thinks he should have in the correctness of factual conclusions,' " Addington v. Texas, 441 U.S. 418, 423, 99 S.Ct. 1804, 1808, 60 L.Ed.2d 323 (1979), quoting In re Winship, 397 U.S. 358, 370, 90 S.Ct. 1068, 1075-1076, 25 L.Ed.2d 368 (1970) (concurring opinion), and is "a societal judgment about how the risk of error should be distributed between the litigants." Santosky v. Kramer, 455 U.S. 745, 755, 102 S.Ct. 1388, 1395, 71 L.Ed.2d 599 (1982). By imposing such a stringent standard of proof, this Ohio statute improperly places the risk of an erroneous decision on the minor, the very person whose fundamental right is at stake. Cf. id., at 756, 102 S.Ct., at 1396 (clear and convincing standard of proof usually has been employed to preserve fundamental fairness in a variety of government-initiated proceedings that threaten to deprive the individual involved with a significant deprivation of liberty). Even if the judge is satisfied that the minor is mature or that an abortion is in her best interest, the court may not authorize the procedure unless it additionally finds that the evidence meets a "clear and convincing" standard of proof.

The majority asserts that a State may require a heightened standard of proof because the procedure is ''ex parte. Ante,'' at 516. According to the majority, the only alternative to the "clear and convincing" standard is a preponderance of the evidence standard, which would require proof by the greater weight of the evidence. The majority reasons that the preponderance standard is unsuited to a Bellotti II bypass because, if the minor presents any evidence at all, and no evidence is put forth in opposition, the minor always will present the greater weight of the evidence. Yet, as the State explained at argument, the bypass procedure is inquisitorial in nature, where the judge questions the minor to discover if she meets the requirements set down in Bellotti II. See Tr. of Oral Arg. 9. The judge will be making this determination after a hearing that resembles an interview, not an evidentiary proceeding. The District Court observed, "the judge's decision will necessarily be based largely on subjective standards without the benefit of any evidence other than a woman's testimony." 633 F.Supp., at 1137. Thus, unlike the procedure the majority seems to envision, it is not the quantity of the evidence presented that is crucial in the bypass proceeding; rather, the crucial factors are the nature of the minor's statements to the judge and her demeanor. Contrary to the majority's theory, if the minor presents evidence that she is mature, she still must satisfy the judge that this is so, even without this heightened standard of proof. The use of a heightened standard in the very special context of Bellotti § court-bypass procedure does little to facilitate a fair and reliable result and imports an element from the adversarial process into this unique inquiry where it has no rightful place.

Although I think the provision is constitutionally infirm for all minors, I am particularly concerned about the effect it will have on sexually or physically abused minors. I agree that parental interest in the welfare of their children is "particularly strong where a normal family relationship exists." Bellotti II, 443 U.S., at 648, 99 S.Ct., at 3050 (opinion of Powell, J.) (emphasis added). A minor needs no statute to seek the support of loving parents. Where trust and confidence exist within the family structure, it is likely that communication already exists. If that compassionate support is lacking, an unwanted pregnancy is a poor way to generate it.

Sadly, not all children in our country are fortunate enough to be members of loving families. For too many young pregnant women, parental involvement in this most intimate decision threatens harm, rather than promises comfort. The Court's selective blindness to this stark social reality is bewildering and distressing. Lacking the protection that young people typically find in their intimate family associations, these minors are desperately in need of constitutional protection. The sexually or physically abused minor may indeed be "lonely or even terrified," ante, at 520, not of the abortion procedure, but of an abusive family member. The Court's placid reference, ibid., to the "compassionate and mature" advice the minor will receive from within the family must seem an unbelievable and cruel irony to those children trapped in violent families.

Under the system Ohio has set up, a sexually abused minor must go to court and demonstrate to a complete stranger by clear and convincing evidence that she has been the victim of a pattern of sexual abuse. When asked at argument what kind of evidence a minor would be required to adduce at her bypass hearing, the State answered that the minor would tell her side to the judge and the judge would consider how well "the minor is able to articulate what her particular concerns are." Tr. of Oral Arg. 9. The court procedure alone, in many cases, is extremely traumatic. See Hodgson, 497 U.S., at 441, and n. 29, 110 S.Ct. at 2937 and n. 29. The State and the Court are impervious to the additional burden imposed on the abused minor who, as any experienced social worker or counselor knows, is often afraid and ashamed to reveal what has happened to her to anyone outside the home. The Ohio statute forces that minor, despite her very real fears, to experience yet one more hardship. She must attempt, in public, and before strangers, to "articulate what her particular concerns are" with sufficient clarity to meet the State's "clear and convincing evidence" standard. The upshot is that for the abused minor the risk of error entails a risk of violence.

I would affirm the judgments below on the grounds of the several constitutional defects identified by the District Court and the Court of Appeals. The pleading requirements, the so-called and fragile guarantee of anonymity, the insufficiency of the expedited procedures, the constructive-authorization provision, and the "clear and convincing evidence" requirement singly and collectively cross the limit of constitutional acceptance.

Even if the Ohio statute complied with the Bellotti II requirements for a constitutional court bypass, I would conclude that the Ohio procedure is unconstitutional because it requires the physician's personal and nondelegable obligation to give the required statutory notice. Particularly when viewed in context with the other impediments this statute places in the minor's path, there is more than a "possibility" that the physician-notification provision "was motivated more by a legislative interest in placing obstacles in the woman's path to an abortion, see Maher v. Roe, 432 U.S. 464, 474, 97 S.Ct. 2376, 2382-2383, 53 L.Ed.2d 484 (1977), than by a genuine interest in fostering informed decisionmaking." Post, at 2995 (STEVENS, J., concurring in judgment). Most telling in this regard is the fact that, according to the Court of Appeals and the District Court, the State has never claimed that personal notice by the physician was required to effectuate an interest in the minor's health until the matter reached this Court. In fact, the State has taken three different positions as to its justification for this provision. See 854 F.2d, at 862 ("[T]he state's interest is in insuring that immature, unemancipated minors or minors whose best interests require notification have an adequate opportunity for parental intervention. The state has made no showing that this interest is advanced by requiring the attending physician, as opposed to another qualified, responsible person, to effectuate notification");  633 F.Supp., at 1135 ("[T]he state's attempt to characterize this duty as 'merely ministerial' does not advance its case at all, but rather suggests that its interest in having the physician perform this function is even less weighty than having him or her perform counseling to obtain informed consent [that was struck down in Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416, 103 S.Ct. 2481 (1983) ]."). If these chimerical health concerns now asserted in fact were the true motivation behind this provision, I seriously doubt that the State would have taken so long to say so.

Even if the State's interest in the health of the minor were the motivation behind the provision, the State never explains why it is that a physician interested in obtaining information, or a parent interested in providing information to a physician, cannot do so following the actual notification by some other competent professional, such as a nurse or counselor. And the State and the majority never explain why, if the physician's ability to garner information from the parents is of such paramount importance that only the physician may notify the parent, the statute allows the physician to send notice by mail if he or she cannot reach the minor's parent "after a reasonable effort." § 2919.12(B)(2).

The State's asserted interest in the minor's health care is especially ironic in light of the statute's interference with her physician's experienced professional judgment. "If a physician is licensed by the State, he is recognized by the State as capable of exercising acceptable clinical judgment," Doe v. Bolton, 410 U.S. 179, 199, 93 S.Ct. 739, 751, 35 L.Ed.2d 201 (1973), and he should be permitted to exercise that judgment as to whether he or another professional should be the person who will notify a minor's parents of her decision to terminate her pregnancy. I have no doubt that the attending physician, better than the Ohio Legislature, will know when a consultation with the parent is necessary. "If he fails in this, professional censure and deprivation of his license are available remedies" already in place. Ibid. The strictures of this Ohio law not only unduly burden the minor's right to an abortion, but impinge on the physician's professional discretion in the practice of medicine.

The Ohio Legislature, in its wisdom, in 1985 enacted its antiabortion statute. That statute, when subjected to facial challenge, has been held unconstitutional by the United States District Court for the Northern District of Ohio and by the Court of Appeals for the Sixth Circuit. It is now, however, upheld on that challenge by a majority of this Court. The majority opinion takes up each challenged provision in turn; concludes, with brief comment, that it is within the bounds of the principal opinion in Bellotti II ;  and moves on routinely and in the same fashion to the succeeding provisions, one by one. A plurality then concludes, in Part V of the primary opinion, with hyperbole that can have but one result: to further incite an American press, public, and pulpit already inflamed by the pronouncement made by a plurality of this Court last Term in Webster v. Reproductive Health Services, 492 U.S. 490, 109 S.Ct. 3040, 106 L.Ed.2d 410 (1989). The plurality indulges in paternalistic comments about "profound philosophic choices"; the "[woman's] own destiny and personal dignity";  the "origins of the other human life that lie within the embryo";  the family as "society's most intimate association";  the striving of the family to give to the minor "advice that is both compassionate and mature";  and the desired assumption that "in most cases" the woman will receive "guidance and understanding from a parent." Ante, at 520.

Some of this may be so "in most cases" and, it is to be hoped, in judges' own and other warm and protected, nurturing family environments. But those "most cases" need not rely on constitutional protections that are so vital for others. I have cautioned before that there is "another world 'out there' " that the Court "either chooses to ignore or fears to recognize." Beal v. Doe, 432 U.S. 438, 463, 97 S.Ct. 2366, 2399, 53 L.Ed.2d 464 (1977). It is the unfortunate denizens of that world, often frightened and forlorn, lacking the comfort of loving parental guidance and mature advice, who most need the constitutional protection that the Ohio Legislature set out to make as difficult as possible to obtain.

That that legislature set forth with just such a goal is evident from the statute it spawned. The underlying nature of the Ohio statute is proclaimed by its strident and offensively restrictive provisions. It is as though the legislature said: "If the courts of the United States insist on upholding a limited right to an abortion, let us make that abortion as difficult as possible to obtain" because, basically, whether onpro fessed moral or religious grounds or whatever, "we believe that is the way it must be." This often may be the way legislation is enacted, but few are the instances where the injustice is so evident and the impediments so gross as those inflicted by the Ohio Legislature on these vulnerable and powerless young women.