H___ B___ v. Wilkinson

• Decision Date: 05 June 1986
• Docket Number: Civ. No. C86-400G.
• Citation: 639 F. Supp. 952
• Parties: H___ B___, on behalf of herself and all other persons similarly situated, Plaintiff, v. David R. WILKINSON, individually and in his capacity as Attorney General of the State of Utah, and Honorable Norman H. Bangerter, individually and his capacity as Governor of the State of Utah, Defendants.
• Court: U.S. District Court — District of Utah

639 F. Supp. 952

H___ B___, on behalf of herself and all other persons similarly situated, Plaintiff, v. David R. WILKINSON, individually and in his capacity as Attorney General of the State of Utah, and Honorable Norman H. Bangerter, individually and his capacity as Governor of the State of Utah, Defendants.

Civ. No. C86-400G.

United States District Court, D. Utah, C.D.

June 5, 1986.

David S. Dolowitz, Salt Lake City, Utah, for plaintiff.

Paul Tinker, Clark Graves, Atty. Gen's Office, State of Utah, Salt Lake City, Utah, for defendants.

MEMORANDUM DECISION AND ORDER

J. THOMAS GREENE, District Judge.

This action was tried on May 21 and 22, 1986, at the conclusion of which the court denied plaintiff's motion for injunctive relief and dismissed the action. Detailed Findings of Fact and Conclusions of Law are filed contemporaneously herewith, and the court now renders its Memorandum Decision and Order.

I. CONSTITUTIONALITY OF UTAH'S PARENTAL NOTICE STATUTE AS APPLIED TO IMMATURE MINORS

This lawsuit challenges Utah Code Ann. § 76-7-304(2) (1953), which provides in pertinent part:

To enable the physician to exercise his best medical judgment, he shall:

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(2) Notify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor....

The statute was construed by the Utah Supreme Court to mandate notice where feasible to parents of all minors seeking abortions. H.L. v. Matheson, 604 P.2d 907 (Utah 1979), aff'd 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981). On appeal, the U.S. Supreme Court carefully fashioned the issue before it to clarify that it made no ruling with respect to whether notice must be given where the individual seeking an abortion is "mature." The Court said:

The only issue before us, then, is the facial constitutionality of a statute requiring a physician to give notice to parents, "if possible," prior to performing an abortion on their minor daughter, (a) when the girl is living with and dependent upon her parents, (b) when she is not emancipated by marriage or otherwise, and (c) she has made no claim or showing as to her maturity or as to her relations with her parents.

H.L. v. Matheson, 450 U.S. 398, 407, 101 S.Ct. 1164, 1170, 67 L.Ed.2d 388 (1981).

It is apparent that a majority of the Court has determined that the state has a legitimate interest in requiring notice to a minor's parents and that the privacy interest of the minor does not supersede that interest, at least as applied to minors who are not "mature." In this regard, Chief Justice Burger, speaking for the majority, stated:

A statute setting out a "mere requirement of parental notice" does not violate the constitutional rights of an immature, dependent minor.

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"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. It may further determine, as a general proposition, that such consultation is particularly desirable with respect to the abortion decision — one that for some people raises profound moral and religious concerns...."

450 U.S. at 409, 101 S.Ct. at 1171 (quoting statement of four Justices in Bellotti v. Baird, 443 U.S. 622, 640-41, 99 S.Ct. 3035, 3046-47, 61 L.Ed.2d 797 (1979) (hereinafter "Bellotti II")). Because of the importance of the minor's privacy interest, in the context of consent statutes, the Supreme Court has required that an alternative to parental consent must be presented in such statutes where the minor is "mature." See Bellotti II, 443 U.S. 623, 99 S.Ct. 3037. Plaintiff here argues that under H.L. v. Matheson, Bellotti II and other case law, if the Utah notice statute were applied to minors who were deemed "mature," it would be constitutionally defective. This court is not convinced that such would be true of Utah's statute which requires mere notice. We do not reach that issue here, however, because this court has found that the plaintiff in this case is an immature minor who does not live in a hostile home environment. Accordingly, this matter is governed by H.L. v. Matheson which upheld the constitutionality of Utah's notification statute in such cases.

II. STANDARD FOR DETERMINING "MATURITY"

The Supreme Court has not explicitly defined "maturity" in the context of a state law requiring parental consent or notice of a decision to perform an abortion on a minor. However, Mr. Justice Powell, writing the plurality opinion in Bellotti II, reviewed prior case law limiting minors in making important decisions:

The Court has held that the States validly may limit the freedom of children to choose for themselves in the making of important, affirmative choices with potentially serious consequences. These rulings have been grounded in the recognition that, during the formative years of childhood and adolescence, minors often lack the experience, perspective and judgment to recognize and avoid choices that could be detrimental to them.

Bellotti II, 443 U.S. at 635, 99 S.Ct. at 3044. Later in the same case, Justice Powell and three other Justices joined in the statement which was quoted with approval in H.L. v. Matheson wherein it was noted that "immature minors often lack the ability to make fully informed choices that take account of both immediate and long range consequences," particularly with respect to the abortion decision. Id. at 640, 99 S.Ct. at 3046.

Manifestly, as related to a minor's abortion decision, maturity is not solely a matter of social skills, level of intelligence or verbal skills. More importantly, it calls for experience, perspective and judgment. As to experience, the minor's prior work experience, experience in living away from home, and handling personal finances are some of the pertinent inquiries. Perspective calls for appreciation and understanding of the relative gravity and possible detrimental impact of each available option, as well as realistic perception and assessment of possible short term and long term consequences of each of those options, particularly the abortion option. Judgment is of very great importance in determining maturity. The exercise of good judgment requires being fully informed so as to be able to weigh alternatives independently and realistically. Among other things, the minor's conduct is a measure of good judgment.¹ Factors such as stress and ignorance of alternatives have been recognized as impediments to the exercise of proper judgment by minors, who because of those factors "may not be able intelligently to decide whether to have have an abortion." American College of Obstetricians & Gynecologists v. Thornburgh, 737 F.2d 283, 296 (3rd Cir. 1984), jurisdiction postponed, ___ U.S. ___, 105 S.Ct. 2015, 85 L.Ed.2d 297 (1985).² Experience, perspective and judgment are often lacking in unemancipated minors who are wholly dependent and have never lived away from home or had any significant employment experience. In this regard, the Utah Legislature has determined that parental notification should be provided to parents of all minors seeking abortions. This court considers that the statute creates a presumption of immaturity as to all minors, although it may be that the statute would be construed in a proper case to exempt demonstrably mature minors and/or minors with hostile home environments.³ This court has already construed the statute as inapplicable to emancipated minors.⁴

No attempt is here made to catalog cases and precedents. No doubt authority could be researched from several disciplines bearing upon the imponderable matter of defining and determining maturity in minors. The only attempt here is to explain the standard utilized by this court in making the determination in this case. The standard for determining maturity in the abortion decision context here adopted calls for sufficient experience and perspective to make a realistic, independent and informed judgment regarding one's best interests, including demonstrated understanding of immediate and long term consequences thereof. The minor in the case at bar did not reach this level of maturity or mature decision making in the court's opinion. Accordingly, this case is governed by H.L. v. Matheson and must be dismissed.

IT IS SO ORDERED.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

The above entitled matter came before the court on the 21st day of May 1986, on plaintiff's Motion and Application for Temporary Restraining Order and/or Preliminary Injunction. David S. Dolowitz appeared on behalf of plaintiff and Deputy Attorneys General Paul Tinker and Keith Graves appeared on behalf of defendants. On motion of plaintiff, unopposed by defendants, and after hearing arguments in opposition by counsel for the Society of Professional Journalists, the Court closed the hearing to the public in order to receive allegedly sensitive testimony and evidence. The court ordered that the action go forward without appointment of a guardian ad litem, which would have required notice to plaintiff's parents. After the hearing commenced, pursuant to Fed.R.Civ.P. 65(a)(2) (1985) the court ordered that trial of the action on the merits be advanced and consolidated with the hearing of the motion and application. At the conclusion of the injunctive phase of testimony no further evidence was offered on behalf of plaintiff and counsel for plaintiff rested its case. Defendant determined to question plaintiff further, which occurred on May 22, 1986, in chambers in a more natural and less formal environment. At the outset of the proceedings in chambers, the Court questioned the plaintiff at length, carefully noting her demeanor. The case previously had been fully argued, and at the conclusion of plaintiff's testimony both sides rested and submitted the matter for ruling. The court rendered an oral decision denying plaintiff's application for...