Planned Parenthood League of Massachusetts, Inc. v. Attorney General

• Citation: 677 N.E.2d 101,424 Mass. 586
• Parties: , 65 USLW 2680 PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC., & others 1 v. ATTORNEY GENERAL.
• Decision Date: 05 November 1996
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 101

677 N.E.2d 101

424 Mass. 586, 65 USLW 2680

PLANNED PARENTHOOD LEAGUE OF MASSACHUSETTS, INC., & others v. ATTORNEY GENERAL.

Supreme Judicial Court of Massachusetts.

Nov. 5, 1996.

March 18, 1997.

John H. Henn, Boston (Sarah Burgess Reed with him), for plaintiff.

Thomas A. Barnico, Assistant Attorney General, for the Attorney General.

Philip D. Moran, Salem, for Massachusetts Citizens for Life, Inc.

Sarah R. Wunsch, Frances S. Cohen & Sarah H. Arnholz, Boston, for American Civil Liberties Union.

Rebecca C. Martin & Kathryn Kolbert for Abortion Rights Fund of Western Massachusetts & others.

Rebecca C. Martin, pro se.

Before WILKINS, C.J., and ABRAMS, LYNCH, O'CONNOR, GREANEY and FRIED, JJ.

WILKINS, Chief Justice.

This case presents a challenge, on State constitutional grounds only, to the constitutionality of the requirement stated in G.L. c. 112, § 12S, that, with certain exceptions, a pregnant unmarried minor may not obtain an abortion in the Commonwealth unless either both of her parents consent or a judge of the Superior Court authorizes the medical procedure. The plaintiffs assert that § 12S violates due process, equal protection, and equal rights provisions contained in arts. 1, 10, and 12 of the Massachusetts Declaration of Rights. They seek an injunction permanently enjoining the enforcement of the parental consent or judicial approval requirement of § 12S. They further contend that, even if their broad challenge fails, the requirement that both available parents consent to a child's abortion is unconstitutional.

The case is here on a reservation and report by a single justice of this court. The parties have filed cross motions for summary judgment, have asserted that there is no genuine issue of material fact, and have entered into stipulations that they accept as a record suitable for decision of this case on summary judgment. The single justice has also reserved and reported the question whether the motion of Massachusetts Citizens for Life to intervene as a defendant should be allowed.

The plaintiffs argue that § 12S is a facially unconstitutional burden on minors' fundamental rights. Additionally, the plaintiffs argue that evidence concerning the operation of § 12S shows that § 12S is unconstitutional as implemented. The stipulations contain extensive recitations of what the plaintiffs' witnesses would testify, if they were to be called as witnesses. The Attorney General has not agreed to the facts to which those witnesses would testify. Much of the proffered testimony concerns facts that are reasonably inferable in the circumstances, but there has been no showing or agreement that § 12S is not being implemented according to its terms. The appeal does not, therefore, present on behalf of a specific pregnant unmarried minor, or a specific class of such minors, a claim of unconstitutionality based on the application of, or failure to apply, § 12S to specific conditions or to circumstances of such a minor. The claim of unconstitutionality rests on the argument that, without justification, § 12S unavoidably creates undesirable delay and emotional tensions that burden a minor's constitutional right to choose.

Section 12S, which is set forth in relevant part in the margin, ² provides that a physician shall not perform an abortion on an unmarried minor "unless he first obtains both the consent of the pregnant woman and that of her parents" except in certain circumstances. If the parents are divorced, the consent of the parent having custody is sufficient. If one parent is dead or is "unavailable to the physician within a reasonable time and in a reasonable manner," consent of the other parent is sufficient. If parental consent to the performance of an abortion is sought but not obtained, or if the minor elects not to seek parental consent, a judge of the Superior Court, on petition or motion and after a confidential hearing, must authorize the abortion if "the judge determines that the pregnant woman is mature and capable of giving informed consent to the proposed abortion" or, if the minor is not mature, the judge must authorize the abortion if the judge determines "that the performance of an abortion upon her would be in her best interests."

We uphold § 12S against the plaintiffs' broad attack on the requirement of parental consent. A minor does not have the same freedom to act on her constitutional right to choose to have an abortion as does an adult woman. We conclude, however, that the requirement that a pregnant unmarried minor obtain the consent of both of her parents, if available, cannot survive the plaintiffs' constitutional challenge. We direct the denial of the motion to intervene of Massachusetts Citizens for Life.

1. The broad challenge to § 12S. In Moe v. Secretary of Admin. & Fin., 382 Mass. 629, 417 N.E.2d 387 (1981), we considered the standard that we should apply in deciding whether the State had justified a burden that it had placed on a minor's fundamental right to choose whether or not to have an abortion. Id. at 655, 417 N.E.2d 387. We rejected the position that the State can justify regulations imposing such a burden only by demonstrating that the regulations serve a compelling State interest, preferring a more flexible, less mechanical balancing of interests. Id. at 655-657, 417 N.E.2d 387. We concluded that the State's failure to fund medically necessary abortions, while funding all other medically necessary procedures (including services in connection with childbirth), invaded a woman's constitutional right of choice to a degree that was not counterbalanced by the State's interest in the preservation of potential life. Id. at 658-659, 417 N.E.2d 387. We concluded that the burden placed on the constitutional rights of a woman who cannot afford a medically necessary abortion but who wishes to have one, and who must, therefore, bear a child against her will, is so great, particularly when no comparable burden is placed on an indigent woman who elects to have a child and has public funds available to cover related medically necessary services, that the due process provisions of our State Constitution cannot countenance such a disparity.

In deciding the Moe case, we reached a conclusion under the Constitution of the Commonwealth that was different from that reached by the Supreme Court of the United States on substantially the same issue in Harris v. McRae, 448 U.S. 297, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). Our position was not based on language in the Constitution of the Commonwealth that differs substantively from that appearing in the Constitution of the United States. While we owe respect to conclusions reached by the Supreme Court interpreting language similar to that in our Declaration of Rights, ultimately we must accept responsibility for interpreting our own Constitution as text, precedent, and principle seem to us to require. In Moe v. Secretary of Admin. & Fin., supra, we could not follow the reasoning and accept the conclusion in Harris v. McRae, supra. We concluded that "our Declaration of Rights affords a greater degree of protection to the right asserted here than does the Federal Constitution as interpreted by Harris v. McRae, supra." Moe v. Secretary of Admin. & Fin., supra at 651, 417 N.E.2d 387. ³

In the case before us we must engage in the same balancing of interests that we used in deciding the Moe case. The constitutional right is the same as it was in the Moe case, but the burden on that constitutional right and the State's interest in the regulation of the exercise of that right are different. Here, the asserted burden on the constitutional right is the requirement of either (a) parental consent or (b) judicial approval. It is, of course, crucial in justification of these alternative requirements that the person seeking to have an abortion is a minor. The State has an obvious interest in the welfare of minors and in the promotion of the interests of parents in the care and upbringing of their children. The question is whether those interests counterbalance the unquestioned limitation that § 12S imposes on a woman's constitutional right of choice. ⁴

We consider first the nature of § 12S's burden on a minor's constitutional right to an abortion. Certainly, the operation of § 12S delays a minor's exercise of her constitutional right, and it is said that delay in obtaining an abortion increases the risk to the minor. Moreover, it is reasonable to assume that pregnant minors may be fearful and anxious about seeking parental or judicial approval and that delays in obtaining abortions result. Where the minor seeks the consent of her parents and obtains it, the delay attributable to the requirements of § 12S (apart from any delay caused by the minor's uncertainty or anxiety) need not be substantial.

If the minor does not seek parental consent or seeks it unsuccessfully, the minor wanting an abortion in the Commonwealth must obtain judicial approval. ⁵ There is inevitable delay in such a process, although the judicial response to such requests, once made, is expeditious. ⁶ Moreover, the judicial bypass process can be traumatic for a young woman, even though the proceeding is confidential and lawyers are available to process applications through the court at public expense. The record shows that judicial approval is nearly a certainty. There is no showing that judicial procedures are not carried out promptly in this Commonwealth, or that the necessity of seeing a judge, in spite of emotional concerns such as fear or nervousness, has deterred young women who want abortions from obtaining judicial approval and thereby caused them to give birth to unwanted children. ⁷

The State's interest in requiring parental consent or judicial approval is, in principle, entirely compatible with the fundamental principle that stands behind Roe v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 (1973). That principle is not one of...