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Planned Parenthood Of Central New Jersey v. Farmer

August 15, 2000

PLANNED PARENTHOOD OF CENTRAL NEW JERSEY; PLANNED PARENTHOOD ASSOCIATION OF THE MERCER AREA; AMERICAN ACADEMY OF PEDIATRICS/NEW JERSEY CHAPTER; METROPOLITAN SURGICAL ASSOCIATES, INC., D/B/A METROPOLITAN MEDICAL ASSOCIATES; CHERRY HILL WOMEN'S SURGERY CENTER; WOMEN'S CHOICE MEDICAL CENTER; DOCTORS OF WEST NEW YORK; SOUTH JERSEY WOMEN'S CENTER; GYNE SURGICAL ASSOCIATES OF MIDDLESEX COUNTY, P.A.; WOMEN'S SURGICARE OF HOWELL, P.A.; GERSON WEISS, M.D.; HERBERT HOLMES, M.D. AND GEORGE DAINOFF, D.O., PLAINTIFFS-APPELLANTS,
v.
JOHN J. FARMER, JR., ATTORNEY GENERAL OF THE STATE OF NEW JERSEY, IN HIS OFFICIAL CAPACITY, AND HIS SUCCESSORS IN OFFICE; CHRISTINE GRANT, COMMISSIONER, DEPARTMENT OF HEALTH AND SENIOR SERVICES OF THE STATE OF NEW JERSEY, IN HER OFFICIAL CAPACITY, AND HER SUCCESSORS IN OFFICE; HON. RICHARD S. WILLIAMS, DIRECTOR, ADMINISTRATIVE OFFICE OF THE COURTS OF THE STATE OF NEW JERSEY, IN HIS OFFICIAL CAPACITY, AND HIS SUCCESSORS IN OFFICE, DEFENDANTS-RESPONDENTS.



The opinion of the court was delivered by: Poritz, C.J.

Argued January 19, 2000

On certification to the Superior Court, Chancery Division, Bergen County.

In this appeal plaintiffs challenge a state statute that conditions a minor's right to obtain an abortion on parental notification unless a judicial waiver is obtained, but imposes no corresponding limitation on a minor who seeks "medical and surgical care [otherwise] related to her pregnancy or her child." N.J.S.A. 9:17A-1; §§1.2 et seq. The State responds that its substantial interests in "protecting" immature minors, "in fostering the family," and in preserving "the rights of parents to rear their children" justify that differential treatment. N.J.S.A. 9:17A-1.2. We decide today that the classification created by the Legislature burdens the "fundamental right of a woman to control her body and destiny," Right to Choose v. Byrne, 91 N.J. 287, 306 (1982), without adequate justification and cannot be sustained against plaintiffs' equal protection challenge.

We acknowledge that the State has a substantial interest in preserving the family and protecting the rights of parents. When weighed against the right of a young woman to make the most personal and intimate decision whether to carry a child to term, however, the insubstantial connection between the notification requirement and the interests expressed by the State is not sufficient to sustain the statute. We emphasize that our decision in no way interferes with parents' protected interests, nor does it prevent pregnant minors or their physicians from notifying parents about a young woman's choice to terminate her pregnancy. Simply, the effect of declaring the notification statute unconstitutional is to maintain the State's neutrality in respect of a minor's childbearing decisions and a parent's interest in those decisions. In effect, the State may not affirmatively tip the scale against the right to choose an abortion absent compelling reasons to do so.

We also emphasize, once again, that our holding is not based on, nor do we "presume to answer the profound questions about the moral, medical, and societal implications of abortion." Id. at 299. At the end of the day, those questions are left to the individual to decide for herself. A young woman's right to choose, to personal dignity and autonomy, is imbedded in the liberties found in the Constitutions of the United States and of this State. As Justice O'Connor has so eloquently explained: "At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and of the mystery of human life." Planned Parenthood v. Casey, 505 U.S. 833, 851, 112 S. Ct. 2791, 2807, 120 L. Ed. 2d 674, 698 (1992). Because a minor's right to control her reproductive decisions is among the most fundamental of the rights she possesses, and because the State has failed to demonstrate a real and significant relationship between the statutory classification and the ends asserted, we hold that the statute violates the Constitution of the State of New Jersey.

I.

The Parental Notification for Abortion Act was signed into law on June 28, 1999, by its terms to take effect ninety days thereafter. L. 1999, c. 145, § 2 to 13 (codified at N.J.S.A. 9:17A-1.1 to -1.12). Prior to the effective date, plaintiffs *fn1 sought a declaratory judgment and preliminary injunction precluding enforcement of the Act. The trial court, proceeding by Order to Show Cause, summarily dismissed plaintiffs' challenge on a determination that they had failed to demonstrate a likelihood of success on the merits. This Court stayed implementation of the Act on September 27, 1999, pending an expedited disposition on the merits in the Chancery Division and direct certification to the Court. See R. 2:12-1. The matter is now before us pursuant to our Order.

A. The Parental Notification for Abortion Act

We have previously adverted to the legislative findings that provide the underlying rationale for the Parental Notification Act. More specifically, the Act states:

The Legislature finds that there exist compelling and important State interests in protecting minors against their own immaturity, in fostering the family structure and preserving it as a viable social unit, and in protecting the rights of parents to rear their children.

The Legislature further finds that minors often lack the ability to make fully informed choices that take into account both immediate and long-range consequences of their actions; that the medical, emotional, and psychological consequences of abortion are serious and of indeterminate duration, particularly when the patient is a minor; that parents ordinarily possess information essential to a physician's exercise of his best medical judgment concerning their child; and that parents who are aware that their minor daughter has had an abortion may better insure that the minor receives adequate medical attention after her abortion. The Legislature further finds that parental consultation regarding abortion is desirable and in the best interests of the minor. [N.J.S.A. 9:17A-1.2.]

Toward those ends, the Act requires a physician to wait "at least 48 hours after written notice of the pending abortion has been delivered in the manner specified in this act" before performing an abortion on "an unemancipated minor," N.J.S.A. 9:17A-1.4(a), such notice to be "delivered personally to the parent by the physician." N.J.S.A. 9:17A- 1.4(b). Instead of "personal delivery,"

notice may be made by certified mail addressed to the parent at the parent's last known address with return receipt requested and restricted delivery to the addressee, which means a postal employee may only deliver the mail to the authorized addressee. At the same time that notice is mailed by certified mail, it shall also be sent by first class mail to the parent at the parent's last known address. The 48 hour period for notice sent under the provisions of this subsection shall begin at noon on the next day on which regular mail delivery takes place following the day on which the mailings are posted. [N.J.S.A. 9:17A-1.4(c).]

The Act explains that a "parent" means a parent with care and control of the unemancipated minor, unless the parent has no custodial rights; or if there is no parent with care and control, then the foster parent or the guardian of the unemancipated minor; or a person standing in loco parentis to the unemancipated minor, and a "person standing in loco parentis"

means (1) that the biological or adoptive parent consented to and fostered, the person's formation and establishment of a parent-like relationship with the minor; (2) that the person and the minor live together in the same household; (3) that the person assumed obligations of parenthood by taking significant responsibility for the minor's care, education and development, including contributing towards the minor's support, without expectation of financial compensation; and (4) that the person has been in a parental role for a length of time sufficient to have established with the minor a bonded, dependent relationship parental in nature. [N.J.S.A. 9:17A-1.3.]

Notice is not otherwise required if a parent certifies that he or she has been informed about the pending abortion by setting forth "in a notarized writing that notice was received." N.J.S.A. 9:17A-1.5. Notice is also not required if "the attending physician certifies in the unemancipated minor's medical records that the abortion is necessary due to a medical emergency." N.J.S.A. 9:17A-1.6. Alternatively, when that finding cannot be made, a minor may seek a judicial waiver of the notification requirement by filing a petition or motion with a judge of the Superior Court. N.J.S.A. 9:17A-1.7(a). The minor is entitled to "court appointed counsel," N.J.S.A. 9:17A-1.7(b), and to waiver proceedings that

shall be confidential and insure the anonymity of the minor and [that] shall be given precedence over other pending matters so that the court may reach a decision promptly and without delay so as to serve the best interests of the minor. [N.J.S.A. 9:17A-1.7(c).]

Unless the minor is granted an extension, the judge must rule on the petition or motion for waiver within forty-eight hours or the application is deemed "granted and the notice requirement shall be waived." Ibid. A waiver of notification must be authorized "[i]f the judge finds, by clear and convincing evidence," that the minor is "sufficiently mature," N.J.S.A. 9:17A-1.7(d)(1); that the minor is being subjected to "a pattern of physical, sexual or emotional abuse," N.J.S.A. 9:17A-1.7(d)(2); or that "notification of the parent is not in the best interests of the minor," N.J.S.A. 9:17A-1.7(d)(3). Despite the confidentiality provision of the statute, the Division of Youth and Family Services is to be informed when a determination of abuse is made. N.J.S.A. 9:17A-1.7(d)(2). When a judge does not make findings permitting waiver, the physician must comply with the notice provisions of the Act before performing an abortion procedure. N.J.S.A. 9:17A- 1.7(e). Failure to provide the required notice can subject the physician to civil liability in an action brought by a minor's parents and to civil penalties ranging from $1000 to $5000. N.J.S.A. 9:17A- 1.10.

The Act also requires the DHSS to "prepare a fact sheet for distribution to unemancipated pregnant minors who are seeking abortion services." N.J.S.A. 9:17A-1.8. The fact sheet is to be "written in terms generally understood by a teenager" and must describe the notification and waiver provisions of the Act, including the "procedure established by the court for petitioning or making a motion before the court." Ibid. Finally, N.J.S.A. 9:17A-1.11 directs the Commissioner of Health and Senior Services to promulgate rules that physicians must "follow in effectuating the notice required" by the Act. *fn2

On September 8, 1999, the AOC issued a Directive regarding implementation of the Act's judicial waiver provisions. Under the Directive, a minor seeking an abortion must file a petition in the Chancery Division, Family Part, "in the county where [she] resides, in the county where the abortion is proposed to occur, or in the county where [she] is being sheltered." AOC Directive No. 10-99 § II(A) (Sept. 8, 1999). A filing may be made "Monday through Friday during the normal working hours of the Family Division," id. § II(B)(1), and is handled by a member of the county's Judicial Bypass Team who assists the minor in navigating the procedural shoals of the waiver process. Id. § II(C)(1)(3). All proceedings are confidential, as required by statute, "and the anonymity of the minor [is] preserved." Id. §§ II(G)(2), IV. The Directive also provides that the court shall enter an order dismissing the petition if the minor fails to appear for the waiver hearing. Id. § II(G)(10).

If her petition is denied, the minor may seek review in the Appellate Division. Two Appellate Division judges have been recalled to handle appeals from orders by the trial court denying waivers. Supplement to AOC Directive No. 10-99 at 1 (Sept. 22, 1999). The judges must hold oral argument not later than two business days after receiving the record from the parties. Id. at 3. Should the minor seek further review by this Court, she must file her Notice of Petition for Certification or Notice of Appeal "within two business days of the Appellate Division's decision," along with "a written statement of reasons why the Supreme Court should review the matter." Ibid. The Supplemental Directive further provides that "[t]he Supreme Court shall enter . . . judgment within two business days following oral argument or the submission of the matter to the Court on the papers." Id. at 4.

B. The Trial Court Proceedings

Plaintiffs claim that the Notification Act infringes on a minor's right to privacy and to equal protection of the law granted in Article I, paragraph 1, of the New Jersey Constitution. Plaintiffs also claim that the statutory waiver provision fails "to ensure a confidential and expeditious alternative to the Act's parental notification requirement . . . ." Because of those alleged infirmities, plaintiffs seek a declaration that the Act is facially unconstitutional and the entry of a permanent injunction prohibiting the State from enforcing the Act.

On remand from this Court for disposition on the merits, the parties agreed that the matter should be heard "solely on briefs and certifications." The trial court, after hearing argument, issued a written opinion on December 10, 1999, sustaining the Act. Planned Parenthood v. Farmer, No. BER-C-362-99, 1999 WL 1138605 (N.J. Super. Ct. Ch. Div. Dec. 10, 1999). The court first considered the appropriate standard of review to be applied in a facial challenge but could find no New Jersey case directly on point. Id. at *3. On a review of relevant federal caselaw, it chose the standard adopted by the plurality in Casey, supra, 505 U.S. at 876-77, 112 S. Ct. at 2820-21, 120 L. Ed. 2d at 714-15, namely, whether the statute at issue presents an undue burden to a woman's fundamental right to choose "`in a large fraction of the cases.'" Farmer, supra, 1999 WL 1138605, at *4 (quoting Casey, supra, 505 U.S. at 895, 112 S. Ct. at 2830, 120 L. Ed. 2d at 726).

The court next turned to the right of privacy found in the New Jersey Constitution within Article I, paragraph 1, and discussed by this Court in a series of cases related to the more personal and intimate aspects of the right. See, e.g., In re Grady, 85 N.J. 235, 249 (1981) (recognizing right to sterilization as component of right of privacy); State v. Saunders, 75 N.J. 200, 210-14 (1977) (applying right of privacy to sexual conduct between consenting adults); In re Quinlan, 70 N.J. 10, 38-40 (recognizing right to terminate life as component of right of privacy), cert. denied, 429 U.S. 922, 97 S. Ct. 319, 50 L. Ed. 2d 289 (1976). Whether the New Jersey Constitution affords greater protection than does the Federal Constitution was considered in the context of other state court responses to laws governing minors' access to abortions. Farmer, supra, 1999 WL 1138605, at *5-*7. Noting that only the California Supreme Court has invalidated a parental consent/judicial waiver statute, and that the California court's decision was predicated on an explicit right to privacy in that state's Constitution, the trial court decided that our Constitution had not been so expansively interpreted. Id. at *6 (citing Right to Choose, supra, 91 N.J. at 303- 04).

The court found that minors are persons who "`possess constitutional rights,'" id. at *7 (quoting Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S. Ct. 2831, 2843, 49 L. Ed. 2d 788, 808 (1976)), but that the United States Supreme Court, under Bellotti v. Baird, 443 U.S. 622, 635, 99 S. Ct. 3035, 3044, 61 L. Ed. 2d 797, 808 (1979) (plurality opinion), has permitted the imposition of limitations on those rights for the protection of immature minors. Farmer, supra, 1999 WL 1138605, at *7, *13. After an exhaustive review of the record, including plaintiffs' certifications, the AOC Directives, the DHSS fact sheet, and other relevant materials, the court held that the Act does not place an undue burden on the minor's right to privacy under the New Jersey Constitution. Id. at *16. The court also rejected plaintiffs' equal protection challenge, concluding that differential treatment of minors who choose abortion and minors who choose to carry to term is mitigated by the bypass provision and the State's interest in protecting minors from making ill-informed choices. Id. at *18. Ultimately, the trial court sustained the Parental Notification for Abortion Act against plaintiffs' "facial challenge." Id. at *19.

II.

Plaintiffs bring their facial challenge to the Notification Act under Article I, paragraph 1, of the Constitution of the State of New Jersey. "[O]rdinarily legislative enactments are presumed to be valid and the burden to prove invalidity is a heavy one." Bell v. Township of Stafford, 110 N.J. 384, 394 (1988). However, when legislation impinges on a constitutionally protected right, we have looked more closely at the State's purported justification. Cf. id. at 395. In a case such as this, it is difficult for a young woman to bring an as applied challenge when she will lose the opportunity to exercise the fundamental right she seeks to vindicate in a relatively short period of time. The brevity of the gestation period and concerns about confidentiality create special burdens on minors who wish to have an abortion. Notably, every week of delay increases the risk of health problems associated with the abortion procedure and decreases the opportunity to obtain it. Because of those concerns, we consider plaintiffs' facial challenge to the Notification Act under the more stringent standard we use in cases involving as applied challenges to a legislative classification that burdens the exercise of a fundamental right.

This case also requires us to consider whether our State Constitution affords greater protection of a woman's right of privacy than does its federal counterpart. In that undertaking, we again adhere to the principle set out in Right to Choose, that, "in appropriate cases, the individual states may accord greater respect than the federal government to certain fundamental rights." Supra, 91 N.J. at 300. Thus:

Where provisions of the federal and state Constitutions differ, . . . or where a previously established body of state law leads to a different result, . . . we must determine whether a more expansive grant of rights is mandated by our state Constitution. [Id. at 301.]

We recognize, however, that caution is required when we extend the protections of our State Constitution beyond the limits set by the United States Supreme Court for parallel provisions in the Federal Constitution. Id. at 301 (citing State v. Hunt, 91 N.J. 338, 344-45 (1982)).

Under the Federal Constitution, a woman has a fundamental right to choose whether to carry her pregnancy to term or to choose an abortion. Roe v. Wade, 410 U.S. 113, 153, 93 S. Ct. 705, 727, 35 L. Ed. 2d 147, 177 (1973); see also Stenberg v. Carhart, ___ U.S. ___, ___, 120 S. Ct. 2597, 2604, ___ L. Ed. 2d ___, ___ (2000) ("[T]he Constitution offers basic protection to the woman's right to choose."); Casey, supra, 505 U.S. at 853, 112 S. Ct. at 2808, 120 L. Ed. 2d at 699 (reaffirming Roe). A woman also has a constitutional right to be free from "unwarranted governmental intrusion" in making that personal and life-altering decision. Eisenstadt v. Baird, 405 U.S. 438, 453, 92 S. Ct. 1029, 1038, 31 L. Ed. 2d 349, 362 (1972). Most important in this case, those rights belong equally to adults and to minors. Hodgson v. Minnesota, 497 U.S. 417, 435, 110 S. Ct. 2926, 2937, 111 L. Ed. 2d 344, 360 (1990). As stated by the Supreme Court:

Constitutional rights do not mature and come into being magically only when one attains the state-defined age of majority. Minors, as well as adults, are protected by the Constitution and possess constitutional rights. [Planned Parenthood v. Danforth, 428 U.S. 52, 74, 96 S. Ct. 2831, 2843, 49 L. Ed. 2d 788, 808 (1976).]

Nonetheless, as recognized by the court below, the State may place certain restrictions on a minor's exercise of her rights in order to protect her from her own immaturity. Farmer, supra, 1999 WL 1138605, at *7 (citing Bellotti, supra, 443 U.S. at 635, 99 S. Ct. at 3044, 61 L. Ed. 2d at 808).

Various restrictions relating to both parental consent and parental notification have been discussed by the United States Supreme Court in a series of cases beginning with Planned Parenthood v. Danforth, supra, 428 U.S. at 52, 96 S. Ct. at 2831, 49 L. Ed. 2d at 788. Because they are instructive to our consideration of the state constitutional challenge, we review them here.

A. Consent Statutes

In Planned Parenthood v. Danforth, the Supreme Court addressed for the first time the constitutionality of a state statute that contained a mandatory parental consent provision, and rejected that part of the statute prohibiting unmarried minors from procuring abortions during the first trimester of their pregnancies without a parent's consent. Id. at 75, 96 S. Ct. at 2844, 49 L. Ed. 2d at 808. Five members of the Court determined that a state could not subject a minor's right to terminate her pregnancy to a parent's absolute veto "without a sufficient justification for the restriction." Id. at 74-75, 96 S. Ct. at 2844, 49 L. Ed. 2d at 808.

Shortly thereafter in 1979, the Court assessed the constitutionality of a Massachusetts parental consent statute. Bellotti, supra, 443 U.S. at 622, 99 S. Ct. at 3035, 61 L. Ed. 2d at 797. The statute in Bellotti required unmarried minors to obtain consent from both parents before a physician could perform an abortion. Id. at 625, 99 S. Ct. at 3038, 61 L. Ed. 2d at 802. If the parents refused consent, however, a state court judge could, but was not required to, give judicial consent to an abortion without involving the young woman's parents. Ibid. A plurality of the Court announced that states requiring parental consent from one or both parents had to provide an alternative process in which a minor could obtain a waiver by demonstrating either that she is sufficiently mature to make the decision on her own with her physician, or that an abortion is in her best interests. Id. at 643-44, 99 S. Ct. at 3048, 61 L. Ed. 2d at 813- 14. The process, said Justice Powell, must guarantee anonymity and occur expeditiously so that the minor has a realistic opportunity to procure an abortion. Id. at 644, 99 S. Ct. at 3048, 61 L. Ed. 2d at 814. The Massachusetts statute was deemed unconstitutional by four members of the Court because it failed to meet those essential conditions. Id. at 651, 99 S. Ct. at 3052, 61 L. Ed. 2d at 818. Four other justices concurred in the judgment of the plurality by application of Danforth but expressed reservations regarding the burden imposed under a bypass process. Id. at 655-656, 99 S. Ct. at 3054, 61 L. Ed. 2d at 821. *fn3

In 1983, the Court considered an Ohio statute that, among other things, specifically proscribed abortions for minors under fifteen years of age who did not secure the informed, written consent of one parent. City of Akron v. Akron Ctr. for Reprod. Health, Inc., 462 U.S. 416, 422 n.4, 103 S. Ct. 2481, 2488 n.4, 76 L. Ed. 2d 687, 698 n.4. (1983) (Akron I), overruled in part by Casey, supra, 505 U.S. at 833, 112 S. Ct. at 2791, 120 L. Ed. 2d at 674. Although the statute contained an exception for minors who obtained a court order permitting the abortion, the exception did not provide adequate alternative waiver procedures. The Court concluded "that Akron may not make a blanket determination that all minors under the age of 15 are too immature to make this decision or that an abortion never may be in the minor's best interests without parental approval." Id. at 440, 103 S. Ct. at 2497, 76 L. Ed. 2d at 709. On the same day Akron I was decided, however, the Court sustained a Missouri parental consent statute that contained an acceptable judicial bypass provision. Planned Parenthood Ass'n v. Ashcroft, 462 U.S. 476, 493, 103 S. Ct. 2517, 2526, 76 L. Ed. 2d 733, 746 (1983); id. at 504, 103 S. Ct. at 2532, 76 L. Ed. 2d at 754 (O'Connor, J., concurring in part in the judgment and dissenting in part) (concluding parental consent statute does not impose undue burden on minors).

Most recently, the Court upheld a Pennsylvania statute requiring one parent's consent before a physician can perform an abortion on an unemancipated minor. Casey, supra, 505 U.S. at 899, 112 S. Ct. at 2832, 120 L. Ed. 2d at 728-29. *fn4 That statute passed muster because it too permitted a bypass of parental approval if the minor could show that she was sufficiently mature to make the abortion decision, or that the abortion was in her best interests. Ibid.; id. at 970, 112 S. Ct. at 2868-69, 120 L. Ed. 2d at 776 (Rehnquist, C.J., concurring in the judgment in part and dissenting in part).

B. Notification Statutes

In H.L. v. Matheson, the Supreme Court approved a Utah statute that required a physician to "`[n]otify, if possible, the parents or guardian of the woman upon whom the abortion is to be performed, if she is a minor . . . .'" 450 U.S. 398, 400, 101 S. Ct. 1164, 1167, 67 L. Ed. 2d 388, 393 (1981) (quoting Utah Code Ann. § 76-7-304(c)(2)). The Court determined that the statute was constitutional as applied to an unemancipated minor who is "living with and dependent on her parents" and has not made any "showing as to her maturity or as to her relations with her parents. . . ." Id. at 407-11, 101 S. Ct. at 1171-72, 67 L. Ed. 2d at 397-401. Nine years later, the Court invalidated as unduly burdensome a provision in a parental notification statute that mandated written notice to both parents of an unemancipated minor without providing judicial bypass procedures. Hodgson, supra, 497 U.S. at 450, 110 S. Ct. at 2945, 111 L. Ed. 2d at 370-71. An alternative section of the statute that contained a bypass process was sustained by a five- member majority. Id. at 461, 110 S. Ct. at 2951, 111 L. Ed. 2d at 378 (O'Connor, J., concurring in part and concurring in the judgment in part); id. at 499-501, 110 S. Ct. at 2971-72, 111 L. Ed. 2d at 403 (Kennedy, J., concurring in the judgment in part and dissenting in part).

Subsequently, the Court approved an Ohio one-parent notification statute that provided for judicial bypass and met the Bellotti criteria for a consent statute. Akron II, supra, 497 U.S. at 510-13, 110 S. Ct. at 2978-81, 111 L. Ed. 2d at 416-18. The Ohio statute permitted abortions for unemancipated minors: (1) if the physician provided a minimum twenty-four hours actual notice to a parent; (2) if the minor and an alternative relative certified that the minor feared abuse from one of her parents; (3) if one parent provided written consent to the abortion; or (4) if the juvenile court granted a judicial bypass. Id. at 507-08, 110 S. Ct. at 2977, 111 L. Ed. 2d at 416. Akron II concluded that "a bypass procedure that will suffice for a consent statute will suffice also for a notice statute." Id. at 511, 110 S. Ct. at 2979, 111 L. Ed. 2d at 418.

In Lambert v. Wicklund, 520 U.S. 292, 293-94, 117 S. Ct. 1169, 1169-70, 137 L. Ed. 2d 464, 468 (1997) (per curiam), the Court evaluated a Montana notification statute that was virtually identical to the statute approved in Akron II. Lambert repeated the Akron II conclusion that when a state mandates notice, but also provides for a bypass process that is acceptable in a consent statute, the notice provisions are a fortiori constitutional. Id. at 295-97, 117 S. Ct. at 1171-72, 137 L. Ed. 2d at 467-69. Thus, although the Court has not decided that a parental notification statute must contain a judicial bypass provision, Lambert teaches that if a notice statute has a bypass procedure that satisfies Bellotti, it must necessarily withstand constitutional scrutiny. Id. at 295, 117 S. Ct. at 1171, 137 L. Ed. 2d at 467-68.

C. The Basis for Decision

When faced with a challenge to a notification statute, the United States Supreme Court has relied on a perceived distinction between parental consent and parental notification, namely that a consent statute imposes a more onerous burden than does a notification statute. Hodgson, supra, 497 U.S. at 496, 110 S. Ct. at 2969, 111 L. Ed. 2d at 400 (Kennedy, J., concurring in the judgment in part and dissenting in part). After holding that a consent statute must include a bypass procedure, the Court reasons that a notification statute with a judicial bypass must be acceptable. Akron II, supra, 497 U.S. at 511, 110 S. Ct. at 2979, 111 L. Ed. 2d at 418. Thus, Casey relies on the now-familiar precedents of Bellotti, Akron II, and Hodgson to explain why a notice statute containing a bypass is constitutional. Casey, supra, 505 U.S. at 899, 112 S. Ct. at 2832, 120 L. Ed. 2d at 729. Yet, despite its holding that a reviewing court must, in such cases, consider whether the "state regulation imposes an un- due burden on a woman's ability" to exercise her right to choose, id. at 874, 112 S. Ct. at 2819, 120 L. Ed. 2d at 713, Casey does not address the actual burdens imposed by the bypass process. *fn5 As for Bellotti, Akron II and Hodgson, only the concurring or dissenting Justices in those earlier cases actually discuss the impact of those burdens on young women who seek abortions. Akron II, supra, 497 U.S. at 526-38, 110 S. Ct. at 2985-91, 111 L. Ed. 2d at 428-36 (Blackmun, J., dissenting) (detailing barriers in "obstacle course" of judicial bypass procedure that detrimentally affect abused minors); Hodgson, supra, 497 U.S. at 464-79, 110 S. Ct. at 2952-60, 111 L. Ed. 2d at 379-89 (Marshall, J., concurring in the judgment in part and dissenting in part) (discussing psychological impact of forced notification and health risks of delay); Matheson, supra, 450 U.S. at 437-41, 101 S. Ct. at 1185-88, 67 L. Ed. 2d at 416-19 (Marshall, J., dissenting) (recognizing that "threat of parental notice" endangers minors' health; leads to delays, self-abortions, or illegal abortions; or forces minors to carry to term); Bellotti, supra, 443 U.S. at 655, 99 S. Ct. at 3054, 61 L. Ed. 2d at 820-21 (Stevens, J., concurring) (noting that judicial bypass procedure to "secure the consent of the sovereign" is potentially greater burden than obtaining parental consent because vesting absolute veto power in one judge is "particularly troubling").

In Akron II, for example, the majority held without further comment that the Ohio notification statute did not ...


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