OCTOBER TERM, 1996
LAMBERT, GALLATIN COUNTY ATTORNEY v.
WICKL UND ET AL.
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
No. 96-858. Decided March 31, 1997
Montana's Parental Notice of Abortion Act permits a court to waive the requirement that one parent be notified before a minor has an abortion if, inter alia, notification is not in the minor's best interests. The Federal District Court declared the Act unconstitutional because the judicial bypass mechanism does not authorize waiver of the notice requirement whenever the abortion itself is in the minor's best interest. The Ninth Circuit affirmed, basing its conclusion entirely on its earlier decision that Nevada's identical bypass requirement was inconsistent with Bellotti v. Baird, 443 U. S. 622, and Ohio v. Akron Center for Reproductive Health, 497 U. S. 502.
Held: The Act's judicial bypass provision sufficiently protects a minor's right to an abortion. The Ninth Circuit's holding to the contrary is in direct conflict with this Court's precedents. The principal opinion in Bellotti explained the four criteria that a parental consent statute bypass provision must meet to be constitutional, and this Court explicitly held that the Ohio statute at issue in Akron met the second Bellotti requirement: that the minor be allowed to show that the desired abortion would be in her best interests. The Ohio statute was indistinguishable in any relevant way from the statute at issue here, and, thus, the Montana law also meets the second Bellotti requirement. Akron's context, the Ohio statute's language, and Akron's concurring opinion all make clear that requiring a minor to show that parental notification is not in her best interests is equivalent to requiring her to show that abortion without notification is in her best interests. Contrary to respondents' argument, the Montana statute does not draw a distinction between requiring a minor to show that parental notification is not in her best interests and requiring her to show that an abortion (without notification) is in her best interests, and respondents cite no Montana state-court decision suggesting that the statute permits a court to separate these questions.
Certiorari granted; 93 F.3d 567, reversed.cralaw
Before a minor has an abortion in Montana, one of her parents must be notified. A waiver, or "judicial bypass," of the notification requirement is allowed if the minor can convince a court that notification would not be in her best interests. The Court of Appeals for the Ninth Circuit struck down Montana's parental notification law as unconstitutional, holding that the judicial bypass did not sufficiently protect the right of minors to have an abortion. Because the Ninth Circuit's holding is in direct conflict with our precedents, we grant the petition for a writ of certiorari and reverse.
In 1995, Montana enacted the Parental Notice of Abortion Act. The Act prohibits a physician from performing an abortion on a minor unless the physician has notified one of the minor's parents or the minor's legal guardian 48 hours in advance. Mont. Code Ann. § 50-20-204 (1995).1 However, an "unemancipated" minor2 may petition the state youth court to waive the notification requirement, pursuant to the statute's "judicial bypass" provision. § 50-20-212 (quoted in full in an appendix to this opinion). The provision gives the minor a right to court-appointed counsel, and guarantees expeditious handling of the minor's petition (since the petition is automatically granted if the youth court fails to rule on
1 Section 50-20-204 provides in relevant part: "A physician may not perform an abortion upon a minor or an incompetent person unless the physician has given at least 48 hours' actual notice to one parent or to the legal guardian of the pregnant minor or incompetent person of the physician's intention to perform the abortion .... If actual notice is not possible after a reasonable effort, the physician or the physician's agent shall give alternate notice as provided in 50-20-205." Section 50-20-205 provides for notice by certified mail. The notice requirement does not apply if "a medical emergency exists and there is insufficient time to provide notice." § 50-20-208(1).
2" 'Emancipated minor' means a person under 18 years of age who is or has been married or who has been granted an order of limited emancipation by a court .... " § 50-20-203(3).cralaw