Baird v. Bellotti

Decision Date02 May 1978
Docket NumberCiv. A. No. 74-4992-F.
PartiesWilliam BAIRD, Mary Moe, Parents Aid Society, Inc., Gerald Zupnick, M. D. and all others similarly situated, Plaintiffs, v. Francis X. BELLOTTI, Attorney General of the Commonwealth of Massachusetts, Garrett Byrne, District Attorney of the County of Suffolk, the District Attorneys for all other Counties, their agents, successors, those acting in concert with them, and all others similarly situated, Defendants, Jane Hunerwadel, Defendant-Intervenor.
CourtU.S. District Court — District of Massachusetts

Joseph Balliro, Joan Schmidt, Boston, Mass., for plaintiffs.

Garrick F. Cole, Michael Meyer, Thomas R. Kiley Asst. Attys. Gen., Boston, Mass., for defendants.

Brian Riley, Boston, Mass., for defendant-intervenor.

John H. Henn, Foley, Hoag & Eliot, Boston, Mass., amicus curiae.

Before ALDRICH, Senior Circuit Judge, JULIAN, Senior District Judge, and FREEDMAN, District Judge.


ALDRICH, Senior Circuit Judge.


This is the third time that this class action involving the constitutionality of a Massachusetts statute defining procedures that must be followed before a minor can obtain an abortion,1 has required a full opinion.2 It has been extensively prepared and briefed. Defendants3 commence their most recent brief with this statement.

"With the exception of the Watergate scandal and the Viet Nam war, no issue has divided the country and its governmental officials more dramatically than the debate over the propriety of physicians' performing procedures to induce the termination of pregnancies, or, as they are commonly referred to, abortions. The sparks of this controversy have fallen on all levels of government and flamed into judicial conflagrations involving additional and difficult issues of federalism, the legal process, and the relations among the state, the family, and the family's individual members."

Although we might question how far the Watergate scandal divided the country, and we are unaware of any body of judicial disagreements warranting the description of conflagrations, we agree with the rest of this statement. We do not construe it as an admonition directed to our personal conduct. However, we do accept it as a guide for ourselves in choosing the path we should tread. At the same time, we believe that the Massachusetts legislature should govern itself with the same understanding. When dealing with relatively unimportant and uncontroversial matters the state can paint with a broad brush. When entering an area of highly cherished rights and principles, where the sparks, to use defendants' word, are charged because of basic, conflicting and deeply held beliefs, the state should proceed with corresponding care. We do not find that it has done so. Nor do we agree with defendants that this is a case of parties seeking relief for overbreadth improperly affecting others, not before the court. Cf. Young v. American Mini Theatres, Inc., 1976, 427 U.S. 50, 59, 96 S.Ct. 2440, 49 L.Ed.2d 310; Broadrick v. Oklahoma, 1973, 413 U.S. 601, 93 S.Ct. 2908, 37 L.Ed.2d 830. Plaintiffs are asserting defects in their own right.

The first question is what the statute means. Basically, it requires a minor under 18, unless married, widowed or divorced, who desires an abortion, to obtain the written consent of both parents, unless unavailable, and failing that, the approval of a judge of the superior court, upon a finding of "good cause." Although there are some additional questions, there were three principal areas of disagreement as to the more precise statutory meaning; the right of parents, in withholding consent, to consider interests other than the minor's, i. e., their own, and that of the family as a whole (parents' rights); the power of the court to order an abortion without the parents' knowledge in appropriate instances (parents' bypass); the power of the court to override the informed consent of a mature minor (judicial override). At the original hearing defendants and all members of the court agreed that the statute recognized parents' rights as well as the minor's, and forbade any parent bypass. Our dissenting brother felt, mistakenly, as it turned out, that the informed consent of a mature minor could not be overridden by the superior court. The court majority considered the statute unconstitutional in any event, and rejected his suggestion that we refer its meaning to the Massachusetts Supreme Judicial Court.

On appeal to the Supreme Court defendants changed their position in a number of respects. They abandoned parents' rights; they asserted that parents must regard only the minor's interests in considering whether to consent, and asserted, further, that the statute permitted court proceedings without the parents' knowledge if in the minor's best interests. Finally, they agreed with our dissenting brother that the statute recognized the mature minor rule and that there could be no judicial override in such event. The Supreme Court, without reaching the constitutional questions, but on the basis of the Massachusetts Attorney General's interpretation, which, it said, deserved special consideration, 428 U.S. at 143, 96 S.Ct. 2857, stated that, so read, the Massachusetts statute might differ fundamentally from the Missouri statute struck down in Planned Parenthood of Central Missouri v. Danforth, 1976, 428 U.S. 52, 96 S.Ct. 2831, 49 L.Ed.2d 788. Accordingly, it instructed us to refer the matter of construction to the Massachusetts court. Bellotti v. Baird, 1976, 428 U.S. 132, 96 S.Ct. 2857, 49 L.Ed.2d 844.

Hypothesizing the interpretation that defendants urged upon it, the Supreme Court said,

"The picture thus painted by the respective appellants is of a statute that prefers parental consultation and consent, but that permits a mature minor capable of giving informed consent to obtain, without undue burden, an order permitting the abortion without parental consultation, and, further, permits even a minor incapable of giving informed consent to obtain an order without parental consultation where there is a showing that the abortion would be in her best interests. The statute, as thus read, would be fundamentally different from a statute that creates a `parental veto.'" 428 U.S. at 145, 96 S.Ct. at 2865.4

In other words, the Court envisaged a mature minor rule, with no power in the superior court to override, and which permitted parents' bypass altogether if the court found an informed consent, and even as to an immature minor if the court found that an abortion without her parents' knowledge would be in her best interests.

Pursuant to our instructions, we certified nine questions to the Massachusetts court and, in the meantime, continued the stay of the statute's enforcement. Baird II. Thereafter we received our answers. Baird v. Attorney General, 1977 Mass. A. S. 96, 360 N.E.2d 288. The Massachusetts court there rejected the concept of parents' rights, holding that parents may consider only the minor's personal interests in deciding whether to consent. However, the court also construed the statute to be in some respects radically different from that envisaged by the Supreme Court. The court held that there could be no parents' bypass in any case. Further, it held that the statute eliminated abortions altogether from the mature minor rule. We address the constitutional issues raised by those holdings in that order.

1. Parents' Bypass: The statute's absolute requirement of parental notification.

The Massachusetts court determined that the legislature was "explicit in stating that a judge should pass on an application for a consent order only after one or both parents have declined to consent to the abortion." 360 N.E.2d at 294. Faced with the loss of this alleviating feature, defendants now take the position that there are not enough cases calling for an exception to mandatory consultations.5

Defendants commence with a number of mistaken assumptions. In the first place, they apparently misread the language of the Supreme Court's opinion, quoted ante, and think the Court was contemplating parents' bypass only when there was affirmative proof that this would be in the minor's best interests. We read the Court's language as indicating it understood defendants' contention to be that bypass would be in order in every case that the superior court found informed consent by a mature minor. The evidence warrants our findings that many, perhaps a large majority of 17-year olds are capable of informed consent, as are a not insubstantial number of 16-year olds, and some even younger.

In addition, the Court recognized that even if incapable of informed consent, it may be to a minor's best interest that the hearing be held, and the abortion be performed, without her parents' knowledge. The immature minor may be, in fact, the least capable of dealing with a hostile family situation. We reject defendants' singular contention that the issue of immature minors is not before us.6

Finally, in an apparent attempt to minimize the importance of the statute's defects, defendants' post-trial brief contains a graphic diagram prepared by counsel, divided into trimesters, and again subdivided, from which they conclude that plaintiffs' total complaint relates to only "one-twenty-fourth of the situations which the statute encompasses." Not only does this fractionalization disregard the points just made, but it overlooks the fact that a minor's possible need of an abortion without her parents' knowledge is not limited to the first trimester. However, even were the issues confined to the first trimester, the great majority of abortions occur in the earlier months. Defendants' giving equal numerical weight to each trimester is fanciful.

Coming to the merits, and passing for the moment the separate issue of mature minors, there are a variety of recognized reasons why it would be to a minor's best interests for one or both of her parents to be kept in ignorance...

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    ...of federal law also dictate against courts inserting limitations in order to rescue otherwise invalid statutes." Id.; Baird v. Bellotti, 450 F.Supp. 997 (D.Mass.1978), affirmed, 443 U.S. 622, 99 S.Ct. 3035, 61 L.Ed.2d 797 In holding that it could not redraft the Pennsylvania prohibition on ......
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