Ohio v. Akron Center for Reproductive Health

The Respondents, including a facility that provides abortions, a physician who performs abortions, and a minor woman who sought an abortion, brought suit challenging the constitutional validity of Ohio’s Amended Substitute House Bill 319, which made it a criminal offence, except in four specified circumstances, for a physician or other person to perform an abortion on an unmarried, dependant woman under 18 years of age. The specified circumstances required either parental notice or consent, or a judicial procedure that allowed a minor to bypass the parental notice or consent provisions.

The parental notice and consent provisions stated that:

• A physician could perform an abortion if he provided “at least twenty-four hours actual notice, in person or by telephone, to one of the woman’s parents (or her guardian or custodian) of his intention to perform the abortion.”
• As an alternative, the physician could “notify a minor’s adult brother, sister, stepparent, or grandparent, if the minor and the other relative each filed an affidavit in the juvenile court stating that the minor fear[ed] physical, sexual, or severe emotional abuse from one of her parents”
• However, if the physician could not give the notice after a “reasonable effort,” he could perform the abortion after “at least forty-eight hours constructive notice by both ordinary and certified mail.”
• A physician could perform an abortion on the minor if one of her parents (or her guardian or custodian) had consented to the abortion in writing.

The judicial bypass provisions stated that:

• A physician could perform an abortion without notifying one of the minor’s parents or receiving the parent’s consent “if a juvenile court issu[ed] an order authorizing the minor to consent, or if a juvenile court or court of appeals, by its inaction, provid[ed] constructive authorization for the minor to consent.”

The judicial bypass procedure required the minor to file a complaint in the juvenile court on prescribed pleading forms stating: “(1) that she [was] pregnant; (2) that she [was] unmarried, under 18 years of age, and unemancipated; (3) that she desir[ed] to have an abortion without notifying one of her parents; (4) that she [had] sufficient maturity and information to make an intelligent decision whether to have an abortion without such notice, or that one of her parents [had] engaged in a pattern of physical, sexual, or emotional abuse against her, or that notice [was] not in her best interests; and (5) that she [had] or [had] not retained an attorney.”

The Court of Appeals affirmed the District Court’s decision to issue a permanent injunction preventing the State of Ohio from enforcing the statute.

The Court used the criteria established in Bellotti v. Baird, 443 U. S. 622 (1979), to establish whether the judicial bypass procedure imposed an unconstitutional burden on a minor’s right to seek an abortion. The criteria indicated: (1) “that the procedure must allow the minor to show that she possesses the maturity and information to make her abortion decision, in consultation with her physician, without regard to her parents’ wishes”; (2) “that the procedure must allow the minor to show that, even if she cannot make the abortion decision by herself, the desired abortion would be in her best interests”; (3) “that the procedure must insure the minor's anonymity”; and (4) “that courts must conduct a bypass procedure with expedition to allow the minor an effective opportunity to obtain the abortion.”

The Court considered each prong of the Belotti criteria separately:

The Court held that the Ohio statue satisfied the first prong because the statute permitted the minor to show that she was “sufficiently mature and well enough informed to decide intelligently whether to have an abortion.”

The Court held that the Ohio statue satisfied the second prong because the statute required the juvenile court “to authorize the minor's consent where the court determin[ed] that the abortion was in the minor's best interest and in cases where the minor [had] shown a pattern of physical, sexual, or emotional abuse.”

The Court held that the Ohio statute satisfied the third prong because complete anonymity was not necessary. Instead, it held that the statute took “reasonable steps to prevent the public from learning of the minor's identity.” The Court refused to invalidate the provision on the “mere possibility of unauthorized, illegal disclosure by state employees” and explained that the statute required participants “to provide identifying information for administrative purposes, not for public disclosure.”

The Court held that the Ohio statute satisfied the fourth prong because the expedited procedures met the requirements for minimal due process. In deciding the issue, it construed the statute with deference to the legislature, concluding that “the mere possibility that the procedure may require up to 22 days in a rare case [was] plainly insufficient to invalidate the statute on its face.”

The Court upheld the requirement that parental notice be given by the performing physician, rather than any other qualified person, as constitutionally valid. The Court held that physician-parent notification requirement was reasonable due to the physician’s “superior ability to garner and use important medical and psychological information supplied by a parent upon receiving notice.” The Court added that this means of notification may benefit both the parent and child because the parent “who must respond . . . with complex philosophical and emotional dimensions is given some access to an experienced and . . . detached physician who can assist the parent in approaching the problem in a mature and balanced way,” and “in a manner not possible through notice by less qualified persons.”

The Court upheld the constructive judicial authorization provision as constitutionally valid. While the Respondents were concerned that the lack of an affirmative court order would deter the physician from acting, the Court found no constitutional defect in allowing for constructive authorization in circumstances where a court failed to hold a hearing in time. It explained that there had been no showing that the time limitations imposed by the statute would be ignored by the courts and that the provision was added to ensure expedition of the bypass procedures even if time limits were not met. The Court found that in any case the State made it possible for a physician to obtain certified documentation from the juvenile or appellate court declaring that constructive authorization had occurred.

The Court upheld the “clear and convincing evidence” standard as constitutionally valid. The Court held that the clear and convincing evidence standard did not place an unconstitutional burden on the types of proof to be presented by the minor during the judicial bypass procedure. In justifying its opinion, the Court noted that the minor would be assisted by an attorney and a guardian for the purposes of the legal action; that the proceeding was ex parte; and that such a standard merely ensured that the judge would take special care in deciding whether the minor's consent to an abortion should proceed without parental notification.

The Court also upheld the judicial bypass pleading requirements as constitutionally valid. The Court held that the pleading scheme, which required the minor to choose among three pleading forms—the first alleging maturity, the second alleging only best interests and the third alleging both maturity and best interests—did not deprive the minor of any opportunity to prove her case. While the Respondents alleged that the scheme “creat[ed] a trap for the unwary” and did not comply with the Bellotti criteria, the Court explained that it was unlikely that a court would “treat a minor’s choice of complaint form without due care and understanding of her unrepresented status.” It found that in any case, the initial choice of pleading form was not a binding election as the appointed counsel for the minor could seek leave to amend the minor’s initial pleadings.

“We continue to believe that a State may require the physician himself or herself to take reasonable steps to notify a minor's parent because the parent often will provide important medical data to the physician.” 497 U.S., p. 518-19.

“The conversation with the physician, in addition, may enable a parent to provide better advice to the minor. The parent who must respond to an event with complex philosophical and emotional dimensions is given some access to an experienced and, in an ideal case, detached physician who can assist the parent in approaching the problem in a mature and balanced way. This access may benefit both the parent and child in a manner not possible through notice by less qualified persons.” 497 U.S., p. 519.

“A free and enlightened society may decide that each of its members should attain a clearer, more tolerant understanding of the profound philosophic choices confronted by a woman who is considering whether to seek an abortion. Her decision will embrace her own destiny and personal dignity, and the origins of the other human life that lie within the embryo. The State is entitled to assume that, for most of its people, the beginnings of that understanding will be within the family, society's most intimate association.” 497 U.S., p. 520.

“It is both rational and fair for the State to conclude that, in most instances, the family will strive to give a lonely or even terrified minor advice that is both compassionate and mature. The statute in issue here is a rational way to further those ends. It would deny all dignity to the family to say that the State cannot take this reasonable step in regulating its health professions to ensure that, in most cases, a young woman will receive guidance and understanding from a parent.” 497 U.S., p. 520.