Bellotti v. Baird Hunerwadel v. Baird, s. 75-73

CourtUnited States Supreme Court
Citation49 L.Ed.2d 844,428 U.S. 132,96 S.Ct. 2857
Docket Number75-109,Nos. 75-73,s. 75-73
PartiesFrancis X. BELLOTTI, Attorney General of Massachusetts, et al., Appellants, v. William BAIRD et al. Jane HUNERWADEL, etc., Appellant, v. William BAIRD et al
Decision Date01 July 1976

A 1974 Massachusetts statute governs the type of consent, including parental consent, required before an abortion may be performed on an unmarried woman under the age of 18. Appellees, an abortion counseling organization, its president and its medical director, and several unmarried women who were pregnant at the time, brought a class action against appellant Attorney General and District Attorneys, claiming that the statute violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. A temporary restraining order was entered prior to the effective date of the statute. Thereafter, a three-judge District Court held the statute unconstitutional as creating a "parental veto" over the performance of abortions on minor children in that it applied even to those minors capable of giving informed consent, and permanently enjoined its operation, denying by implication appellants' motion that the court abstain from deciding the issue pending authoritative construction of the statute by the Massachusetts Supreme Judicial Court. In 1975, after the District Court's decision Massachusetts enacted a statute dealing with consent by minors to medical procedures other than abortion and sterilization, and in this Court appellees raised an additional claim of impermissible distinction between the consent procedures applicable to minors in the area of abortion under the 1974 statute and the consent required by the 1975 statute in regard to other medical procedures. Held : The District Court should have abstained from deciding the constitutional issue and should have certified to the Massachusetts Supreme Judicial Court appropriate questions concerning the meaning of the 1974 statute and the procedure it imposes. Pp. 143-152.

(a) Abstention is appropriate where an unconstrued state statute is susceptible of a construction by the state judiciary that "might avoid in whole or in part the necessity for federal constitutional adjudication or at least materially change the nature ofhe problem." Harrison v. NAACP, 360 U.S. 167, 177, 79 S.Ct. 1025, 1030, 3 L.Ed.2d 1152, 1158. Pp. 146-147.

(b) Here the 1974 statute is susceptible of appellants' interpretation that while it prefers parental consultation and consent it permits a minor capable of giving informed consent to obtain a court order allowing abortion without parental consultation and further permits even a minor incapable of giving informed consent to obtain an abortion order without parental consultation where it is shown that abortion would be in her best interests, and such an interpretation would avoid or substantially modify the federal constitutional challenge to the statute. P. 147-148.

(c) In regard to the claim of impermissible discrimination due to the 1975 statute, it would be appropriate for the District Court also to certify a question concerning this statute, and the extent to which its procedures differ from the procedures required under the 1974 statute. Pp. 147-148.

393 F.Supp. 847, D.C., vacated and remanded.

S. Stephen Rosenfeld, New York City, for appellants in No. 75-73.

Brian A. Riley, Boston, Mass., for appellant in No. 75-109, pro hac vice, by special leave of Court.

Roy Lucas, Washington, D. C., for appellees.

Mr. Justice BLACKMUN delivered the opinion of the Court.

In this litigation, a three-judge District Court for the District of Massachusetts enjoined the operation of certain provisions of a 1974 Massachusetts statute that govern the type of consent required before an abortion may be performed on an unmarried woman under the age of 18. In so acting, the court denied by implication a motion by appellants that the court abstain from deciding the issue pending authoritative construction of the statute by thSupreme Judicial Court of Massachusetts. We hold that the court should have abstained, and we vacate the judgment and remand the cases for certification of relevant issues of state law to the Supreme Judicial Court, and for abstention pending the decision of that tribunal.


On August 2, 1974, the General Court of Massachusetts (Legislature), over the Governor's veto, enacted legislation entitled "An Act to protect unborn children and maternal health within present constitutional limits." The Act, Mass. Acts and Resolves 1974, c. 706, § 1, amended Mass.Gen.Laws Ann., c. 112 (Registration of Certain Professions and Occupations), by adding §§ 12H through 12R.1 Section 12P provides:

"(1) If the mother is less than eighteen years of age and has not married, the consent of both the mother and her parents is required. If one or both of the mother's parents refuse such consent, consent may be obtained by order of a judge of the superior court for good cause shown, after such hearing as he deems necessary. Such a hearing will not require the appointment of a guardian for the mother.

"If one of the parents has died or has deserted his or her family, consent by the remaining parent is sufficient. If both parents have died or have deserted their family, consent of the mother's guardian or other person having duties similar to a guardian, or any person who had assumed the care and custody of the mother is sufficient.

"(2) The commissioner of public health shall prescribe a written form for such consent. Such form shall be signed by the proper person or persons and given to the physician performing the abortion who shall maintain it in his permanent files.

"Nothing in this section shall be construed as abolishing or limiting any common law rights of any other person or persons relative to consent to the performance of an abortion for purposes of any civil action or any injunctive relief under section twelve R."

All nonemergency abortions are made subject to the provisions of § 12P by § 12N.2 Violations of § 12N are punishable under § 12Q by a fine of not less than $100 nor more than $2,000.3 Section 12R provides that the Attorney General or any person whose consent is required may petition the superior court for an order enjoining the performance of any abortion.4


On October 30, 1974, one day prior to the effective date of the Act,5 plaintiffs, who are appellees here, filed this action in the United States District Court for the District of Massachusetts, asserting jurisdiction under 28 U.S.C. §§ 1343(3), 1331, and 2201, and 42 U.S.C. § 1983, and claiming that § 12P violates the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They sought injunctive and declaratory relief, and requested the empaneling of a three-judge court pursuant to 28 U.S.C. §§ 2281 and 2284.

On October 31, the single District Judge issued an order temporarily restraining the enforcement of the parental-consent requirement of § 12P, and accepting the request for a three-judge court.6 Record Doc. 2.

The plaintiffs, and the classes they purported to represent are:

1. William Baird, a citizen of New York.

2. Parents Aid Society, Inc., a Massachusetts not-for-profit corporation. Baird is president of the corporation and is director and chief counselor of the center it operates in Boston for the purpose of providing, Inter alia, abortion and counseling services. Baird and Parents Aid claim to represent all abortion centers and their administrators in Massachusetts who, on a regular and recurring basis, deal with pregnant minors. App. 13, 43.

3. Mary Moes I, II, III, and IV, four minors under the age of 18, pregnant at the time of the filing of the suit, and residing in Massachusetts. Each alleged that she wished to terminate her pregnancy and did not wish to inform either of her parents.7 Id., at 16-18, 19-22. The Moes claimed to represent all pregnant minors capa- ble of, and willing to give, informed consent to an abortion, but who decle to seek the consent of both parents, as required by § 12P. App. 13, 43.

4. Gerald Zupnick, M.D., a physician licensed to practice in Massachusetts. He is the medical director of the center operated by Parents Aid. He claims to represent all physicians in Massachusetts who, without parental consent, see minor patients seeking abortions. Ibid.

The defendants in the action, who are the appellants in No. 75-73 (and who are hereinafter referred to as the appellants), are the Attorney General of Massachusetts, and the District Attorneys of all the counties in the Commonwealth.

Appellant in No. 75-109 (hereinafter referred to as the intervenor-appellant) is Jane Hunerwadel, a resident and citizen of Massachusetts, and parent of an unmarried minor female of childbearing age. Hunerwadel was permitted by the District Court to intervene as a defendant on behalf of herself and all others similarly situated.8 App. 24.

On November 13, appellants filed a "Motion to dismiss and/or for summary judgment," arguing, Inter alia, that the District Court "should abstain from deciding any issue in this case." Id., at 23. In their memorandum to the court in support of that motion, appellants, in addition to other arguments, urged that § 12P, particularly in view of its judicial-review provision, "was susceptible of a construction by state courts that would avoid or modify any alleged federal constitutional question." Record Doc. 5, p. 12. They cited.Railroad Comm'n v. Pullman Co., 2 U.S. 496, 61 S.Ct. 643, 85 L.Ed. 971 (1941), and Lake Carriers' Assn. v. MacMullan, 406 U.S. 498, 510-511, 92 S.Ct. 1749, 1757, 32 L.Ed.2d 257, 268-269 (1972), for the proposition that where an unconstrued state statute is susceptible of a constitutional construction, a federal court should abstain from deciding a constitutional challenge to the statute until a definitive state construction has been obtained.

The District Court held hearings on the motion for a...

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