443 U.S. 622 (1979)
On August 2, 1974, the Massachusetts Legislature passed an Act over the Governor's veto that regulated abortions performed within the state.1 The Act included a provision, later codified as Mass. Gen. Laws Ann., ch. 112, § 12S, requiring the consent of both parents for any abortion sought by an unmarried minor under eighteen years of age, with a judicial bypass available upon a showing of good cause after a hearing.2
Shortly before the Act was to take effect, William Baird, the Parents Aid Society, Inc., Dr. Gerald Zupnick, and an unmarried pregnant minor using the pseudonym Mary Moe commenced a class action in the United States District Court for the District of Massachusetts seeking to enjoin enforcement of section 12S.3 Mary Moe was permitted to represent the class of unmarried minors who possessed adequate capacity to give informed consent yet did not wish to involve their parents.4 Dr. Zupnick asserted the rights of immature minors as well.5
A three-judge District Court conducted three days of testimony and, in 1975, declared section 12S unconstitutional.6 The court found that a substantial number of minors under eighteen could form valid consent and were unwilling to inform their parents.7 It also concluded that the statute appeared designed to protect independent parental rights rather than the minors' interests.8 The court rejected the argument that every minor capable of pregnancy could necessarily give informed consent.9
The Supreme Court noted probable jurisdiction, heard argument, and in 1976 vacated the District Court judgment.10 It remanded the case so that the District Court could certify questions concerning the meaning of section 12S to the Supreme Judicial Court of Massachusetts under that court's Rule 3:21.11 After the District Court certified nine questions, the Supreme Judicial Court issued its construction in 1977.12 It held that parents and judges must consider exclusively the minor's best interests, that parental notice is generally required before judicial proceedings, and that a judge may withhold consent even from a mature minor if the abortion would not serve her best interests.13
Following the Supreme Judicial Court's opinion, the District Court stayed enforcement of the statute, permitted further discovery and hearings, and in 1978 again declared section 12S unconstitutional and permanently enjoined its enforcement.14 The Supreme Court noted probable jurisdiction a second time, and the appeals reached the Court for decision in 1979.15
Whether Massachusetts General Laws Annotated, chapter 112, section 12S, as construed by the Supreme Judicial Court, unduly burdens an unmarried minor's right to obtain an abortion by requiring parental consent or notice in virtually every case?16
Yes. Section 12S as construed requires parental notice and consent in virtually every non-emergency case.20 The Supreme Judicial Court held that consent must be obtained for every such abortion and that parents must generally be notified.21
The District Court found after testimony that many parents would obstruct access to court.22 It also found that a substantial number of minors capable of informed consent were unwilling to inform their parents. These requirements therefore impose an undue burden on the right established in the class action brought by Mary Moe and Dr. Zupnick.23
Section 12S unduly burdens the minor's right to seek an abortion and is unconstitutional in this respect.24
Related opinions on this issue
Justice White dissented from the judgment invalidating the Massachusetts statute.25 He maintained the views he had expressed in his partial dissent in Planned Parenthood of Central Missouri v. Danforth.26 Even assuming a parental consent requirement must be deemed invalid under that precedent, the Massachusetts law should stand.27
The statute authorizes a judge to permit an abortion when it serves the child's best interests.28 It also provides parents notice and an opportunity to participate in the hearing that determines best interests.29 Until now, a holding that the Constitution forbids even notice to parents when their minor child objects would have been inconceivable.30
Whether section 12S may constitutionally permit a superior court judge to withhold consent to an abortion for a minor whom the court finds mature enough and well enough informed to decide independently?31
If a court determines that a minor is mature enough and sufficiently informed to make her abortion decision independently in consultation with her physician, the State may not permit the judge to override that decision. The override may not rest on the ground that a parent's or the court's contrary view is better.32
No. The Supreme Judicial Court construed section 12S to allow a judge to withhold consent even after finding that the minor is capable of making and has made an informed and reasonable decision.33 The judge may withhold consent provided he concludes the abortion would not serve her best interests.34 The District Court had found a substantial number of minors under eighteen capable of forming valid consent.35 This judicial override therefore violates the constitutional protection for a mature minor's independent decision.36
Section 12S is unconstitutional because it permits a judge to override the decision of a mature minor.37
Related opinions on this issue
Justice Stevens concurred in the judgment affirming the District Court.38 He concluded that the statute imposes an absolute third-party veto by judge or parents on every minor's decision.39 This renders the statute invalid under Planned Parenthood of Central Missouri v. Danforth.40
He declined to join the majority opinion because it addressed the constitutionality of a less restrictive scheme that Massachusetts had not enacted.41 The provision of an absolute veto to a judge is particularly troubling because the constitutional right to make the abortion decision protects privacy interests in avoiding disclosure and in independence.42 In Massachusetts every minor who cannot secure parental consent must secure the consent of the sovereign.43
Whether section 12S unconstitutionally requires consent from both parents rather than one parent?44
A requirement that both parents consent to a minor's abortion does not unconstitutionally burden the right when the minor retains the option to seek prompt judicial authorization without prior parental involvement and when the parents are together and the minor lives at home.45
No. The District Court noted that it was customary to perform other medical procedures on minors with the consent of only one parent.46 The Supreme Court concluded that the abortion decision carries broader implications justifying both parents' involvement when they are available and the family is intact.47 Because every minor may go directly to court without prior parental consultation, the dual-consent rule does not unduly burden the right.48
The requirement of consent from both parents does not render section 12S unconstitutional.49
Related opinions on this issue
Justice Rehnquist joined the opinion of Mr. Justice Powell and the judgment of the Court.50 At such time as this Court is willing to reconsider its earlier decision in Planned Parenthood of Central Missouri v. Danforth, in which he joined the opinion of Mr. Justice White, dissenting in part, he shall be more than willing to participate in that task.51 But unless and until that time comes, literally thousands of judges cannot be left with nothing more than the guidance offered by a truly fragmented holding of this Court.52
Whether section 12S is facially overbroad because it fails to inform parents explicitly that they must consider only the minor's best interests when deciding whether to consent?53
When the highest court of a State has authoritatively construed a statute to limit parents and judges to considering exclusively the minor's best interests, the statute is not facially overbroad even if the limiting language does not appear on the face of the enactment.54
No. The Supreme Judicial Court construed section 12S to require that parents and judges consider exclusively the minor's best interests and disregard all other objections.55 The District Court had expressed concern that parents would infer broader authority from the statutory text and create a chilling effect.56 The authoritative state-court construction eliminates the overbreadth claim.57
Section 12S is not unconstitutional on grounds of facial overbreadth.58