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1989-1990 Preview U.S. Sup. Ct. Cas. 117 (1989-1990)
Minnesota's Two-Parent Notification Requirement 48-Hour Waiting Period and Judicial Bypass Procedure (88-1125) (88-1309)

handle is hein.journals/prvw16 and id is 127 raw text is: ABORTION Minnesota 's two-parent notification requirement 48-hour waiting period andjudicial bypass procedure by Diane Geraghty Jane Hodgson, M.D., et al. V. The State of Minnesota, et al. (Docket No. 88-112 5) The State of Minnesota, et al. V. Jane Hodgson, M.D., et al. (Docket No. 88-1309) Argument Date: Nov, 29, 1989 This case represents the Court's first opportunity to revisit the issue of abortion since its decision last term in Webster v. Reproductive Health Services, 109 S.Ct. 3040 (1989). That decision permitted states greater leeway in regulating abortions than at any time since Roe v Wade. The importance of this case, however, extends beyond whatever clues it may yield on the future of Roe and its progeny. Hodgson is significant because it involves the de- gree to which states may restrict the constitutional rights of minors. The Court's decision in Hodgson may affect minors and their families in matters beyond the abortion context in which this case arises. ISSUES The two issues presented by this case are: 1) whether a state may constitutionally limit a minor's abortion deci- sion by requiring that both her parents be notified at least 48 hours in advance of the abortion (No. 88-1309), and 2) whether an identical parental notification statute is con- stitutional when accompanied by a judicial procedure for bypassing mandatory notice (No. 88-1125). FACTS In 1981 the Minnesota General Assembly enacted a two- part parental notification statute. The first part (Subdivi- sion 2) requires health care providers to notify both bio- logical parents of their unemancipated minor daughter's decision to have an abortion. The abortion cannot be per- Diane Geraghty is president of the Illinois American Civil Liberties Union and a professor of law at Loyola Univer- sity Chicago School of Law, One East Pearson, Chicago, IL 60611; telephone (312) 915-7155. formed until at least 48 hours after written notice has been provided. The notice requirement is waived if both par- ents provide written consent, if the attending physician certifies that the abortion is immediately needed to pre- vent the minor's death, or if the minor has notified proper authorities that she is a victim of abuse or neglect. There is no exception for mature minors or for minors whose parents are divorced or were never married. The notice requirement is enforceable by civil and criminal penalties. The second part of the statute (Subdivision 6) states that if Subdivision 2 is ever enjoined by a court, the statute is to be amended automatically to provide for judicial by- pass as an alternative to mandatory notification. In such an event, Subdivision 6 permits a minor to file a petition in court asking the court to authorize the abortion with- out parental notice if the judge finds either that the mi- nor is sufficiently mature to give informed consent, or that performance of the abortion without parental notification is in the minor's best interests. The Act calls for an ex- pedited confidential hearing and appeal. The plaintiffs at trial (the petitioners/cross-respondents before the Supreme Court) include a class of mature minors who seek an abortion without notice to one or both par- ents; divorced custodial mothers who support their daugh- ters' abortion decisions but who object to the requirement that their former spouses be notified; and health care providers who perform most of Minnesota's teenage abor- tions. They challenged the constitutionality of both parts of the parental notification statute, naming as defendants (the respondents/cross-petitioners before the Supreme Court) the State of Minnesota, its governor and attorney general. On July 31, 1981, a federal district court temporarily en- joined Subdivision 2 from going into effect, but refused to enjoin the operation of Subdivision 6. On Jan. 23, 1985, after the notice/bypass system had operated for nearly four years, the district court granted the defendants' motion for summary judgment (a motion alleging no trial is needed because the facts are not in dis- pute and the issue can be decided as a matter of law) on the grounds that Subdivision 6 is constitutional on its face. The court ruled, however, that plaintiffs were entitled to a trial on the question of whether the notice/bypass stat- ute is unconstitutional as applied. The trial lasted several weeks and included testimony from 57 witnesses, including seven state judges who had heard nearly all the bypass cases. On the basis of the trial Issue No. 5 117

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