Hodgson v. Minnesota/Concurrence O'Connor

by Sandra Day O'Connor

Justice O'CONNOR, concurring in part and concurring in the judgment in part.

* 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 conceive 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 434. See, e.g., Carey v. Population Services International, 431 U.S. 678, 685, 687, 97 S.Ct. 2010, 2016, 2017, 52 L.Ed.2d 675 (1977); Griswold v. Connecticut, 381 U.S. 479, 502-503, 85 S.Ct. 1678, 1691-92, 14 L.Ed.2d 510 (1965) (WHITE, J., concurring in judgment). This Court extended that liberty interest to minors in Bellotti v. Baird, 443 U.S. 622, 642, 99 S.Ct. 3035, 3047, 61 L.Ed.2d 797 (1979) (Bellotti II), and Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 74, 96 S.Ct. 2831, 2843, 49 L.Ed.2d 788 (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 640-641, 99 S.Ct., at 3046-3047 (opinion of Powell, J.); see also H.L. v. Matheson, 450 U.S. 398, 423, 101 S.Ct. 1164, 1178, 67 L.Ed.2d 388 (1981) (STEVENS, J., concurring in judgment); cf. Thompson v. Oklahoma, 487 U.S. 815, 835, 108 S.Ct. 2687, 2698, 101 L.Ed.2d 702 (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, 395, 109 S.Ct. 2969, 2988, 106 L.Ed.2d 306 (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, 453, 103 S.Ct. 2481, 2504, 76 L.Ed.2d 687 (1983) (O'CONNOR, J., dissenting); see also Webster v. Reproductive Health Services, 492 U.S. 490, 530, 109 S.Ct. 3040, 3063, 106 L.Ed.2d 410 (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 97, 107 S.Ct., at 2266; Carey v. Population Services International, 431 U.S., at 704, 97 S.Ct., at 2026 (opinion of Powell, J.); Doe v. Bolton, 410 U.S. 179, 194-195, 199, 93 S.Ct. 739, 748-749, 751, 35 L.Ed.2d 201 (1973)." Ante, at 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 of Minn.Stat. § 144.343 (1988)-two-parent notification. Subdivision 2 is the most stringent notification statute in the country. See ante, at 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 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 Ann. §§ 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 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 time frame even before the abortion occurs"). The combination of the abused minor's reluctance to report sexual or physical abuse, see ante, at 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 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, 147-148, 96 S.Ct. 2857, 2866-2867, 49 L.Ed.2d 844 (1976); Planned Parenthood of Central Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976); Bellotti II, 443 U.S., at 642-644, 99 S.Ct., at 3047-3048 (opinion of Powell, J.). 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 90-91, 96 S.Ct., at 2850-2851.

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.

Notes