Baird v. Attorney General

• Decision Date: 25 January 1977
• Parties: William BAIRD et al. 1 v. ATTORNEY GENERAL et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 288

360 N.E.2d 288

371 Mass. 741

William BAIRD et al. ¹ v. ATTORNEY GENERAL et al. ²

Supreme Judicial Court of Massachusetts.

Argued Nov. 2, 1976.

Decided Jan. 25, 1977.

[371 Mass. 742] Roy Lucas, Washington, D.C. (Joan C. Schmidt, Boston, with him), for plaintiffs.

Charles P. Kindregan, Boston (Mary Laura Russell, Boston, with him), for defendant-intervener.

S. Stephen Rosenfeld, Asst. Atty. Gen. (Garrick F. Cole and Margot Botsford, Asst. Attys. Gen., with him), for defendants.

Valerie C. Epps, Jeanne Baker, Boston, and Linda M. Scholle, Cambridge, for Civil Liberties Union of Massachusetts and Judith Mears, New Haven, Conn., for American Civil Liberties Union, as amici curiae, submitted a brief.

Before HENNESSEY, C.J., and QUIRICO, BRAUCHER and WILKINS, JJ.

WILKINS, Justice.

We have before us a series of questions, certified to us by the United States District Court, District of Massachusetts, concerning various aspects of § 12P of G.L. c. 112, inserted by St.1974, c. 706, § 1, a section which sets forth certain conditions for the performance of an abortion on an unmarried minor. These questions have been certified to us on the prompting of the Supreme Court of the United States in Bellotti v. Baird, 428 U.S. 132, 151, 96 S.Ct. 2857, 2868, 49 L.Ed.2d 844 (1976). A brief statement of the process by which these questions have arrived here is appropriate.

In 1974 the Legislature adopted St.1974, c. 706, entitled 'An Act to protect unborn children and maternal health within present constitutional limits.' That act added several sections to c. 112 of the General Laws, including § 12P. Section 12P, which is set forth in full in the margin, ³ is the principal target of a constitutional challenge which the plaintiffs addressed to the Federal District Court on October 30, 1974. That section requires parental or judicial approval before a nonemergency abortion may be performed on an unmarried minor. In April, 1975, in a two to one decision, the District Court held that the parental consent provisions of § 12P were constitutionally invalid and ordered the entry of a judgment permanently enjoining the Attorney General and the various district attorneys from enforcing § 12P, 'as it relates to parental consent in any fashion.' Baird v. Bellotti, 393 F.Supp. 847, 857 (D.Mass.1975). The law enforcement officials appealed, as On July 1, 1976, the Supreme Court of the United States accepted the intervener's argument and vacated the judgment of the District Court, holding 'that the District Court should have certified to Supreme Judicial Court of Massachusetts appropriate questions concerning the meaning of § 12P and the procedure it imposes.' Bellotti v. Baird, 428 U.S. at 151, 96 S.Ct. at 2868. The Supreme Court noted that its decision on the same day in Planned Parenthood of Cent. Mo. v. Danforth, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788 (1976), struck down a statute that created a parental veto over an unmarried minor's right to obtain an abortion. Id. at 75, 96 S.Ct. at 2844. In its opinion in the case now before us the Supreme Court stated that the defendants argued that § 12P could be construed not to contain a parental veto, and that, although the statute prefers parental consultation and consent, it permits a mature minor capable of giving informed consent to obtain a court order permitting an abortion without parental consultation if the abortion would be in her best interests. Bellotti v. Baird, 428 U.S. at 145, 96 S.Ct. at 2865. On the other hand, the plaintiffs argued in the Supreme Court that the statute gave parents an unbridled veto. Id. at 146, 96 S.Ct. at 2865.

did an intervening defendant, Jane Hunerwadel, a parent of an unmarried minor female of childbearing age. In the Supreme Court, the intervener argued that the District Court should have certified questions concerning [371 Mass. 744] the construction of § 12P to this court, pursuant to S.J.C. Rule 3:21, 359 Mass. 790 (1971), and that the District Court should have abstained from resolving any constitutional question until this court had answered those questions and construed § 12P.

In deciding that abstention was appropriate here, the Supreme Court did not indicate that the statute would be constitutional if interpreted as the defendants urged, but merely concluded that the statute was susceptible to the defendants' construction and that the nature of the problem would change materially if the defendants' statutory construction were adopted. '(I)n the absence of an authoritative construction, it is impossible to define precisely the constitutional question presented.' Id. at 148, 96 S.Ct. at 2866. That Court recognized that it could not determine then what this court's interpretation might be, 'what factors are impermissible or at what point review of consent and good cause in the case of a minor becomes unduly burdensome.' Id. at 148, 96 S.Ct. at 2866. The Supreme Court, 'assume(d) that (this court) will do everything in its power to interpret the Act in conformity with its title: 'An Act to protect . . . within present constitutional limits. '' Id. at 148 n.16, 96 S.Ct. at 2866 n.16.

Before turning to the specific questions asked of us, we should analyze our function in interpreting § 12P. The Federal District Court has the fundamental obligation to determine the Federal constitutional issue. Our role is to construe the statute. But, traditionally, we have regarded the presence of a serious constitutional question under one interpretation of a statute to be a strong indication that a different possible interpretation of that statute should be adopted, if the constitutional issue can be avoided thereby. Worcester County Nat'l Bank v. Commissioner of Banks, 340 Mass. 695, 701, 166 N.E.2d 551 (1960). See First Nat'l Bank v. Attorney Gen., 362 Mass. 570, 595--596, 290 N.E.2d 526 (1972) (Quirico, Braucher, & Kaplan, JJ., concurring), and cases cited. We think the Supreme Court recognized that we might engage in a construction of § 12P so as to avoid, or at least limit, any constitutional problem. We think it is clear as well that, from its title, the Legislature intended to pass an act which was constitutionally acceptable and, even more important, to save as much of the statute's purpose as it could if any explicit statutory provision could not survive constitutional attack. Statute 1974, c. 706, § 2, provides that '(i)f any section, subsection, sentence or clause of this act is held to be unconstitutional, such holding shall not affect the remaining portion of this act.'

Our principal advice to the Federal District Court is that we would construe § 12P to preserve as much of the expressed legislative purpose as is constitutionally permissible. The fact that the Supreme Court has not yet defined the permissible scope, if any, of parental involvement in an unmarried minor's decision to seek an abortion makes certain of our constructions of § 12P potentially infirm. If the Supreme Court concludes that we have impermissibly assigned a greater role to the parents than we should or that we have otherwise burdened the minor's choice unconstitutionally, we add as a general principle that we would have construed the statute to conform to that interpretation.

We should not be understood to say, however, that we are entirely without guidance from the Supreme Court of the United States on the central issue involved here. In Planned Parenthood of Cent. Mo. v. Danforth, supra, four members of the Court, dissenting on the parental consent issue, joined in the view that parental consent was a constitutionally acceptable precondition to performing an abortion on an unmarried woman under eighteen years of age. See id. 428 U.S. at 92--96, 96 S.Ct. at 2852--2853 (White, J., Burger, C.J., & Rehnquist, J., concurring in part and dissenting in part); id. at 101--105, 96 S.Ct. at 2856--2857 (Stevens, J., concurring in part and dissenting in part). Two Justices who joined in striking down Missouri's absolute parental veto expressed a view which seems to find acceptable a statute which '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.' Id. at 91, 96 S.Ct. at 2851 (Stewart & Powell, JJ., concurring).

With those views of our role in this matter and of the unsettled state of the law on the permissible extent, if any, of parental involvement in an unmarried minor's abortion decision, we turn to the nine question certified to us. Each of the nine questions will be considered in order in sections of the opinion numbered to correspond to the number of the question being answered. The relevant question will be set forth in a footnote to the heading of each section.

1. The Statutory Standard for Parental Consent. ⁴

This question concerns the standard which should be applied by a parent in deciding whether to consent to an abortion for his or her unmarried daughter. The statute provides no explicit standard. In the District Court, the defendants agreed that a parent could consider matters not exclusively relating to the minor's personal interests. Baird v. Bellotti, 393 F.Supp. at 855. Before the Supreme Court, the defendant abandoned this position and argued that the only appropriate parental considerations were those which focused on the best interests of the minor. In light of the Court's opinion in Planned Parenthood of Cent. Mo. v. Danforth, supra, abrogating an absolute parental veto, we construe § 12P so as to avoid any constitutional question, as far as possible, and answer that the parent is to consider 'exclusively . . . what will serve the child's best interest.' We thus answer question 1(a) in the affirmative and need not answer questions 1(b) and 1(c). In many instances, the 'best interest of the child' standard has been adopted in this Commonwealth where the rights and concerns of a minor have been in issue. See cases cited in...