Hodgson v. State of Minn.

Citation853 F.2d 1452
Decision Date23 September 1988
Docket Number86-5431,Nos. 86-5423,s. 86-5423
PartiesJane HODGSON, M.D.; Arthur Horowitz, M.D.; Nadine T., Janet T., Ellen Z., Heather P., Mary J., Sharon L., Kathy M., and Judy M. individually and on behalf of all other persons similarly situated; Diane P., Sarah L. and Jackie H.; Meadowbrook Women's Clinic, P.A., Planned Parenthood of Minnesota, a nonprofit Minnesota corporation; Midwest Health Center for Women, P.A., a nonprofit Minnesota corporation; Women's Health Center of Duluth, P.A., a nonprofit Minnesota corporation, Appellees, v. The STATE OF MINNESOTA; Rudy Perpich as Governor of the State of Minnesota; Hubert H. Humphrey, III, as Attorney General of the State of Minnesota, Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

John B. Galus, St. Paul, Minn., for appellants.

Janet Benshoof, New York City and William Z. Pentelovitch, Minneapolis, Minn., for appellees.

Before LAY, Chief Judge, and HEANEY, McMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL and BEAM, Circuit Judges, En Banc.

JOHN R. GIBSON, Circuit Judge.

The issue before us is the constitutionality of a Minnesota statute which requires a pregnant minor to notify her parents of her desire to obtain an abortion or to seek judicial bypass. The statute, Minn.Stat.Ann. Secs. 144.343(2)-(7) (1987), requires a minor to notify both parents at least forty-eight hours before a planned abortion or demonstrate to a court in an expedited confidential proceeding either that she is "mature and capable of giving informed consent" or that the performance of an abortion without such notification would be in her "best interests." The district court held that the notice/bypass statute was unconstitutional because the two-parent notice requirement failed to serve the state's interest in protecting pregnant minors or promoting family communication and that the 48-hour waiting period requirement was unreasonable under conditions existing in Minnesota. A panel of this court affirmed the judgment of the district court and we granted rehearing en banc. We now reverse and remand with directions that the district court enter judgment that the notice/bypass statute is constitutional.

In 1981, the Minnesota legislature enacted Minn.Stat.Ann. Sec. 144.343, which deals generally with minor's consent to treatment for pregnancy, venereal disease, and alcohol and drug abuse. 1 Subd. 2 provides that no abortion may be performed upon an unemancipated minor until at least 48 hours after written notice to her parent 2 and provides the mechanics for effecting notice. 3 Subd. 6 provides that if the notification provision of subd. 2 is restrained by judicial order, which as we will discuss occurred here, then a pregnant minor has the choice of either providing notice as set forth in subd. 2, or submitting to a "court bypass" procedure. 4 Under the court bypass, a judge, after an expedited confidential hearing, may authorize an abortion without parental notice after determining "that the pregnant woman is mature and capable of giving informed consent," or that the performance of an abortion without notification would be in her "best interests." "Parent" is defined in subd. 3 as "both parents of the pregnant woman if they are both living, one parent of the pregnant woman if only one is living or if the second one cannot be located through reasonably diligent effort, or the guardian or conservator if the pregnant woman has one." Subd. 5 is a penalty provision and subjects anyone performing an abortion in violation of the statute to criminal penalties and civil liability. The statute also provides exceptions to the notice requirement 5 as well as a severability provision. 6

The statute was to become effective on August 1, 1981. On July 30, 1981, this action seeking declaratory and injunctive relief was brought by a group including six class-action minors seeking abortions who claimed to be mature and that notification of one or both of their parents of their desire to have an abortion would not be in their best interests; a mother of one of the minor plaintiffs alleging that notification of the father was not in the minor's best interests; and four clinics and two physicians performing abortions in Minnesota.

The district court temporarily restrained enforcement of subd. 2 of the statute (the pure notice provision) on July 31, 1981, but denied injunctive relief as to subd. 6 (the notice/bypass provision). 7 Later, the district court granted partial summary judgment for the defendants by dismissing the plaintiffs' state constitutional claims and by ruling that, on its face, the judicial bypass procedure in subd. 6 did not violate the equal protection and due process rights of pregnant minors. The court concluded, however, that plaintiffs should have the opportunity of a trial to prove their allegations that subd. 6 was being applied unconstitutionally.

After a trial lasting five weeks, the district court held that the notification requirement of subd. 2 without judicial bypass was unconstitutional. Hodgson v. Minnesota, 648 F.Supp. 756, 773 (D.Minn.1986), cert. denied, 479 U.S. 1102, 107 S.Ct. 1333, 94 L.Ed.2d 184 (1987). While the court found that the notice/bypass requirement, as a whole, was not supported by factual findings that it furthered in any meaningful way the state's interest in protecting pregnant minors or assuring family integrity, the court concluded that it complied both on its face and in actual practice with standards established by the Supreme Court. Id. at 773-77. The district court then considered in isolation the two-parent notification and the 48-hour waiting period requirement and found both to be unconstitutional. Id. at 777-80. While the 48-hour waiting period requirement was held severable, the two-parent notification requirement was held to be not severable and, accordingly, required that the entire notice-bypass procedure be enjoined in its entirety. Id. at 780-81. Both sides appeal.


The principles governing the constitutionality of the states' regulation of abortion have been set forth by the Supreme Court and bind this court. In Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973), the Supreme Court held that the due process clause of the fourteenth amendment forbids the states from interfering with a pregnant woman's choice, with competent medical advice, to terminate her pregnancy. The right to choose abortion is, however, limited; state regulation is permissible to foster "compelling state interests" by "narrowly drawn" legislation. Id. at 155, 93 S.Ct. at 728. Moreover, in view of the unique status of children under the law, states have a "significant" interest in supporting certain abortion regulations aimed at protecting children that is not present when the state seeks to regulate adults. City of Akron v. Akron Center for Reproductive Health (Akron), 462 U.S. 416, 427 n. 10, 103 S.Ct. 2481, 2491 n. 10, 76 L.Ed.2d 687 (1983) (citing Planned Parenthood v. Danforth, 428 U.S. 52, 74-75, 96 S.Ct. 2831, 2843-44, 49 L.Ed.2d 788 (1976)). Because of "the peculiar vulnerability of children; their inability to make mature decisions in an informed, mature manner; and the importance of the parental role in child rearing," the Court has recognized that states have a significant interest in promoting parental involvement with a minor who is seeking an abortion. See H.L. v. Matheson, 450 U.S. 398, 101 S.Ct. 1164, 67 L.Ed.2d 388 (1981) (parental notice); Bellotti v. Baird (Bellotti II), 443 U.S. 622, 633-39, 648, 99 S.Ct. 3035, 3042-46, 3050, 61 L.Ed.2d 797 (1979) (plurality opinion) (parental consent).

A majority of the Court, however, has indicated that these state and parental interests must give way to the constitutional right of a mature minor, or of an immature minor whose best interests are contrary to parental involvement, to obtain an abortion without consulting or notifying her parents. Akron, 462 U.S. at 427 n. 10 103 S.Ct. 2491 n. 10; see e.g., Matheson, 450 U.S. at 414-420, 101 S.Ct. at 1173-1177 (Powell, J., concurring); id. at 450-54, 101 S.Ct. at 1192-95 (Marshall, J., dissenting); Bellotti II, 443 U.S. at 643-44, 99 S.Ct. at 3048-49 (Powell, J.); id. at 653-56, 99 S.Ct. at 3053-55 (Stevens, J., concurring). In view of the unique nature and consequences of the abortion decision, states do not have the constitutional authority "to give a third party an absolute, and possibly arbitrary, veto" over the minor's abortion decision. Bellotti II, 443 U.S. at 643, 99 S.Ct. at 3048 (Powell, J.); id. at 653-56, 99 S.Ct. at 3053-55 (Stevens, J., concurring); Danforth, 428 U.S. at 74-75, 96 S.Ct. at 2843-44. Thus, a state choosing to encourage parental involvement must provide an alternative procedure through which a minor may demonstrate that she is mature enough to make her own decision or that the abortion is in her best interest. Akron, 462 U.S. at 427 n. 10, 103 S.Ct. at 2491 n. 10; see Bellotti II, 443 U.S. at 643-44, 99 S.Ct. at 3048-49 (plurality); Ind. Planned Parenthood v. Pearson, 716 F.2d 1127, 1132 (7th Cir.1983).

Justice Powell has described the nature and purpose of the required bypass proceeding:

A pregnant minor is entitled in such a proceeding to show either: (1) that she is mature and well enough informed to make her abortion decision, in consultation with her physician, independently of her parents' wishes; or (2) that even if she is not able to make this decision independently, the desired abortion would be in her best interests. The proceeding in which this showing is made must assure that a resolution of the issue, and any appeals that may follow, will be completed with anonymity and sufficient expedition to provide an effective opportunity for an abortion to be obtained. In sum, the procedure must ensure that the provision requiring parental consent does not in fact amount to the ...

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